U.S.A v. Mireles

• Decision Date: 20 August 2010
• Docket Number: No. 09-3267.,09-3267.
• Parties: UNITED STATES of America, Appellee,v.Velma MIRELES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

617 F.3d 1009

UNITED STATES of America, Appellee,v.Velma MIRELES, Appellant.

No. 09-3267.

United States Court of Appeals Eighth Circuit.

Submitted: April 13, 2010.

Filed: Aug. 20, 2010.

COPYRIGHT MATERIAL OMITTED

Lee D. Short, Law Student, argued, Calabasas, CA, William “Bill” Owen James, Jr., on the brief, Little Rock, AR, for appellant.

Angela Sue Jegley, AUSA, argued, Patricia, S. Harris, AUSA, on the brief, Little, AR, for Appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A federal grand jury returned an indictment charging Velma Mireles with one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Pursuant to a plea agreement, the Government agreed to move to dismiss the indictment, and Mireles agreed to waive indictment and plead guilty to one count of misprision of a felony, a violation of 18 U.S.C. § 4. The district court ¹ sentenced Mireles to 18 months' imprisonment and one year of supervised release. Mireles appeals her sentence.

I. BACKGROUND

In January 2008, Mireles agreed to transport the cash proceeds of illegal drug sales from Decatur, Alabama, to Rio Grande City, Texas. On January 29, 2008, Mireles left her home in San Antonio, Texas, and drove with Rene Rodriguez to Decatur, Alabama. Mireles picked up the drug money in a motel room in Decatur and concealed the cash in the waistband of her pantyhose. She and Rodriguez then began driving to Rio Grande City.

On February 1, 2008, Arkansas State Police Corporal Vic Coleman stopped Rodriguez and Mireles near Lonoke, Arkansas, for speeding. Corporal Coleman searched the vehicle. During the search, he noticed that Mireles appeared to be hiding something under her clothing. Corporal Coleman frisked Mireles and discovered that she was concealing several bundles of cash, totaling $29,920. Mireles admitted that she knew the money was drug proceeds and that she had been promised $2,000 as payment for transporting it to Rio Grande City.

Mireles was indicted on one count of conspiracy to commit money laundering. Based on a plea agreement with the Government, Mireles instead pled guilty to a superseding information charging her with one count of misprision of a felony. The Presentence Investigation Report (PSR) calculated an advisory sentencing guidelines range of 0 to 6 months' imprisonment. The district court adopted the PSR but concluded that Mireles's “criminal history is not adequately represented and that her guideline [range] does not adequately reflect the seriousness of her conduct.” The district court sentenced Mireles to 18 months' imprisonment and one year of supervised release.

II. DISCUSSION

Mireles first argues that the district court procedurally erred by failing to consider a traditional guidelines departure before imposing a sentence outside the guidelines range. In determining an appropriate sentence, “the district court ordinarily should determine first the appropriate guideline range, then decide if the guidelines permit a traditional departure, and finally determine whether the § 3553(a) factors justify a variance from this ‘guidelines sentence.’ ” United States v. Miller, 479 F.3d 984, 986 (8th Cir.2007) (citing United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005)).² Mireles concedes that the district court properly calculated the advisory guidelines range but argues that the court failed to determine whether the guidelines permitted a traditional departure before sentencing her to 18 months' imprisonment.

We addressed a similar allegation of procedural error in United States v. Maurstad, 454 F.3d 787 (8th Cir.2006). The district court characterized Maurstad's sentence as one that “used to be called [an] upward departure,” but it “did not explicitly refer to the Guidelines departure provisions.” Id. at 790. Thus, it was “unclear whether the district court intended to impose an upward departure under the Guidelines or an upward variance outside of the Guidelines.” Id. While reiterating that “departures under the Guidelines should still be considered after Booker,” we concluded that the district court's “failure to explicitly consider a departure under the Guidelines represents clear but harmless error” because “the same considerations that render the upward variance reasonable could have also justified an upward departure under the Guidelines.” Id.

Similarly, in United States v. Zeigler, 463 F.3d 814 (8th Cir.2006), we observed that it was “unclear whether the district court imposed an upward departure or an upward variance,” because “the district court did not engage in a traditional departure analysis as contemplated by Haack,” id. at 818. We held that this error was also harmless, in part because “the considerations made by the district court ‘could have justified a traditional upward departure under the guidelines.’ ” Id. (quoting United States v. Lyons, 450 F.3d 834, 837 (8th Cir.2006)). But cf. United Statesv. Washington, 515 F.3d 861, 866-67 (8th Cir.2008) (noting that the district court “described its sentence as a variance or upward departure ... and drew no distinctions between the two terms” but concluding that the district court “committed no significant procedural error” because the court “appropriately considered [and explained] the relevant factors of § 3553(a)” (citation and internal quotation marks omitted)).

In Maurstad and Zeigler, we applied the harmless error standard, apparently because the alleged errors had been preserved. Here, however, Mireles failed to raise any objection to the alleged procedural error before the district court, so our review is for plain error. See United States v. Burnette, 518 F.3d 942, 946 (8th Cir.2008) (citing United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc)). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” United States v. Bain, 586 F.3d 634, 640 (8th Cir.2009) (per curiam) (quoting United States v. Vaughn, 519 F.3d 802, 804 (8th Cir.2008)) petition for cert. filed, 78 U.S.L.W. 3629 (2010) (No. 09-1242). “A plain error will not be corrected unless (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “An error affects a substantial right if it is prejudicial.” Id. (citing Olano, 507 U.S. at 734, 113 S.Ct. 1770). “A sentencing error is prejudicial if there is a reasonable probability the defendant would have received a lighter sentence but for the error.” Id. (citing Pirani, 406 F.3d at 552).

Mireles acknowledges that “an upward departure may be warranted” under the Guidelines when “reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes....” See U.S.S.G. § 4A1.3(a) But Mireles contends that she would have received a more favorable sentence if the district court had engaged in a traditional departure analysis under § 4A1.3(a).

To determine the extent of a departure under § 4A1.3(a)(1), the district court “first must proceed along the criminal history axis of the sentencing matrix, comparing the defendant's criminal history with the criminal histories of other offenders in each category.” United States v. Walking Eagle, 553 F.3d 654, 657 (8th Cir.2009) (quoting United States v. Day, 998 F.2d 622, 625 (8th Cir.1993)). “If the district court reaches Category VI, which is the highest criminal history category, but determines ‘the Guidelines range is still inadequate, it may impose a reasonable sentence above the Category VI range.’ ” Id. (quoting Day, 998 F.2d at 625). At that point, “the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B).

Here, the district court calculated Mireles's advisory guidelines range of 0 to 6 months based on an offense level of 2 and a criminal history category of III. To reach a sentence of 18 months under the guidelines, the district court would have needed to determine first that Mireles, notwithstanding her four criminal history points, belonged in criminal history category VI see id. § 4A1.3(a)(4)(A). Such a finding would have resulted in a guidelines range of 1 to 7 months, so the district court also would have needed to move down the sentencing table from offense level 2 to offense level 6 before a sentence of 18 months' imprisonment would qualify as a departure under § 4A1.3(a).

Mireles argues that the district court would not have imposed such an “egregious” departure if it had utilized the appropriate departure procedure under § 4A1.3(a), but she points to no evidence supporting this speculative contention, and we find none. This failure to demonstrate prejudice is fatal to Mireles's claim. See United States v. Chauncey, 420 F.3d 864, 878 (8th Cir.2005) (“[W]here the effect of the error on the result in the district court is uncertain or indeterminate-where we would have to speculate-the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error.” (alteration in original) (quoting Pirani, 406 F.3d at 553)).

Even if this issue had been preserved, we would conclude that any error was harmless. The district court specifically found that “[Mireles's] criminal history is not adequately represented” and provided support for its finding. Noting that Mireles had four prior convictions for offenses related to drug trafficking, the district court stated at sentencing that “it is very seldom when we see someone who has been in drug trafficking for as many years or has as many convictions as [Mireles does] over that time span.”...