U.S. v. Saucedo

• Decision Date: 13 November 1991
• Docket Number: No. 91-6126,91-6126
• Citation: 950 F.2d 1508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe Luis SAUCEDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1508

950 F.2d 1508

UNITED STATES of America, Plaintiff-Appellee, v. Joe Luis SAUCEDO, Defendant-Appellant.

No. 91-6126.

United States Court of Appeals, Tenth Circuit.

Nov. 13, 1991.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

F. Michael Ringer, Asst. U.S. Atty., Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before BALDOCK and EBEL, Circuit Judges, and ANDERSON, District Judge. ^*

BALDOCK, Circuit Judge.

Defendant-appellant, Joe Luis Saucedo, appeals his Sentencing Guidelines sentence, following his guilty plea to possession of cocaine with intent to distribute. 21 U.S.C. 841(a)(1). Defendant contends that the district court erred by (I) considering conduct other than that for which he was convicted in imposing a three-level upward adjustment for a managerial or supervisorial role in the offense, U.S.S.G. § 3B1.1(b); (II) imposing a two-level upward adjustment for possession of a firearm during the commission of the offense without any evidence that he had the requisite scienter, id. § 2D1.1(b)(1); and (III) including certain quantities of drugs in the base offense level calculation without any evidence that they were part of a common plan or scheme. Id. § 2D1.1(a)(3). The government contends that defendant waived these issues by failing to object, and, in any event, the district court properly applied the guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).

This case has an unusual procedural background, an understanding of which is necessary to our decision. On January 5, 1989, defendant was indicted on twenty-four counts relating to narcotics trafficking, conspiracy and operating a criminal enterprise. On February 27, 1989, defendant pled guilty to count 20 which charged that, on or about November 16, 1988, he and a codefendant possessed 780 grams of cocaine with intent to distribute. On April 10, 1989, defendant filed objections to the presentence report ¹ alternatively with a motion to withdraw his guilty plea. On June 2, 1989, the district court allowed defendant to withdraw his guilty plea and enter a plea of not guilty because his lawyer failed to advise him properly on the application of the sentencing guidelines to his offense.

Jury trial commenced on June 14, 1989, and two days later, on June 16, 1989, the district court granted defendant leave to withdraw his not guilty plea and plead guilty to count 20. The record indicates that defendant waived the ten-day notice of the presentence report. I R. doc. 145. The earlier presentence report was revised, and neither defendant nor his counsel expressed any objections to the report. ² On June 20, 1989, defendant was sentenced to 130 months, ³ and the remaining counts of the indictment were dismissed.

On August 2, 1990, defendant filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, raising four separate grounds for relief. ⁴ Defendant asserted, inter alia, ineffective assistance of counsel based on his counsel's erroneous estimate of a two-to-six-year sentence, and counsel's failure, despite defendant's request, to appeal the sentence. I R. doc. 202 at 6. Following an evidentiary hearing, the district court found that defense counsel failed to advise defendant of his right to appeal, and defendant was unaware of it until the time for filing a notice of appeal had passed. I R. doc. 231 at 2-3. On March 19, 1991, the district court simultaneously vacated defendant's sentence of June 20, 1989, and reimposed it exactly as previously entered, and informed the defendant of his right to appeal. The record indicates that the district court acted solely by its order filed March 19, 1991. Defendant's appeal of his March 19, 1991, sentence is now before us.

The district court's remedy in granting defendant's § 2255 motion was designed to put defendant back into the position he would have been had counsel perfected a timely notice of appeal. See United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991). Therefore, we must look back to the June 1989 sentencing hearing to determine whether defendant adequately preserved the alleged sentencing errors for appeal. After specific inquiry by the district court, neither defense counsel nor defendant objected to the presentence report ⁵ which was the basis for the district court's imposition of a 130 month sentence.

"Normally, failure to alert the trial court to an error precludes review of that same issue by this court." United States v. Frederick, 897 F.2d 490, 494 (10th Cir.) (citing United States v. Mitchell, 783 F.2d 971, 975 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986)), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990). See also United States v. Rios-Ramirez, 929 F.2d 563, 566 n. 2 (10th Cir.1991) (defendant who fails to draw district court's attention to U.S.S.G. § 6A1.3, which provides procedure for resolving sentencing factors in dispute, waives issue of noncompliance with § 6A1.3 on appeal). However, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b). Defendant's failure to object to the presentence report precludes us from considering the merits of defendant's claims unless such claims constitute plain error.

"[T]he plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)). In order to invoke the exception, the error must be "particularly egregious," id. (quoting Frady, 456 U.S. at 163, 102 S.Ct. at 1592), as well as "obvious and substantial." United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.1991) (citations omitted). See also United States v. Mitcheltree, 940 F.2d 1329, 1334 (10th Cir.1991). "We will, however, apply the plain error rule less rigidly when reviewing a potential constitutional error." Jefferson, 925 F.2d at 1254 (citations omitted).

I

Defendant first contends that the district erred by considering conduct other than that for which he was convicted in imposing a three-level upward adjustment for a managerial or supervisorial role in the offense. The guidelines provide for a three-level enhancement if, "[b]ased on the defendant's role in the offense, ... the defendant was a manager or supervisor ... and the criminal activity involved five or more participants or was otherwise extensive...." U.S.S.G. § 3B1.1(b). In United States v. Pettit, 903 F.2d 1336 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990), we held that "the plain language of the Guidelines § 3B1.1 requires that the sentencing court focus on the 'defendant's role in the offense,' rather than other criminal conduct." Id. at 1341. See also United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990) ("the defendant's role is considered only in relation to the offense of conviction, we do not look at all to relevant conduct"), cert. denied, --- U.S. ----, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). Thus, under Pettit, the adjustment is proper only if "defendant maintained a [managerial or supervisorial] role in the transaction on which his conviction is based," United States v. Mourning, 914 F.2d 699, 705 (5th Cir.1990), and only if the criminal activity for which defendant was convicted involved five or more participants. Reid, 911 F.2d at 1464-65; United States v. Lanese, 890 F.2d 1284, 1293 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990).

In United States v. Riles, 928 F.2d 339 (10th Cir.1991), we interpreted the same version of the guidelines at issue in Pettit as requiring the sentencing court to consider all relevant conduct in determining whether a defendant is entitled to a downward adjustment for a mitigating role in the offense pursuant to U.S.S.G. § 3B1.2. Id. at 343. Contrary to our holding in Pettit, we held that "in deciding whether the defendant played a minimal or minor role ... in a drug offense, a sentencing court properly considers his role in all distributions which are part of the same pattern of conduct." Id. Riles and Pettit are fundamentally at odds and lack any principled distinction. ⁶ We see no reason why all relevant conduct should be considered for a mitigating role downward adjustment, but not for an aggravating role upward adjustment. ⁷

Notwithstanding Riles, Pettit was the law of this circuit with respect to the scope of conduct that may be considered in determining aggravating role adjustments pursuant to U.S.S.G. § 3B1.1. Riles, which addressed mitigating role adjustments pursuant to § 3B1.2, did not, nor could not, overrule Pettit. See United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990) (three-judge panel cannot overrule circuit precedent). Indeed, Riles does not even cite Pettit, much less discuss its contrary analysis in determining role in the offense adjustments. Pettit is squarely on point as to the specific guideline and relevant facts at issue in the case before us. A district court, unable to distinguish Pettit, would be compelled to follow it. Id. at 709.

Subsequent to Pettit, the Sentencing Commission amended the Introductory Commentary to Chapter 3, Part B, stating, in relevant part, that "[t]he determination of a defendant's role in the offense is to be made on the basis of all conduct within the scope of section 1B1.3 (Relevant Conduct) ... and not solely on the basis of elements and acts in the count of the conviction." United States Sentencing Comm'n, Guidelines Manual, Ch. 3, Pt. B, intro. comment., at 3.5 (Nov.1990). This amendment was effective ...