U.S. v. Tamayo

• Decision Date: 19 April 1996
• Docket Number: No. 93-5253,93-5253
• Citation: 80 F.3d 1514
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo De Jesus TAMAYO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1514

80 F.3d 1514

UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo De Jesus TAMAYO, Defendant-Appellant.

No. 93-5253.

United States Court of Appeals Eleventh Circuit.

April 19, 1996.

Sheryl Lowenthal, Coral Gables, FL, for Appellant.

Kendall Coffey, U.S. Attorney, Cheryl A. Bell, Linda Collins Hertz, Carol Herman, Miami, FL, for Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and BIRCH, Circuit Judges, and JOHNSON, Senior Circuit Judge.

BIRCH, Circuit Judge:

This appeal presents the question of whether the district court erred in not according a convicted defendant the opportunity to allocute at resentencing, which was restricted to the issue of whether an unadjudicated state nolo contendere disposition can be used for computing criminal history under the Sentencing Guidelines. On remand for resentencing, the district court determined that the unadjudicated nolo contendere disposition, although unsigned by the state judge, constituted a diversionary disposition recognized by the Sentencing Guidelines as eligible for calculating criminal history and reinstated the original sentence. On the facts of this case, we AFFIRM.

I. BACKGROUND

Defendant-appellant, Gonzalo De Jesus Tamayo, was convicted for laundering money in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A); conspiring to launder money in violation of 18 U.S.C. § 371; possessing unregistered firearms, a sawed-off shotgun, a silencer, and a pipe bomb, in violation of 26 U.S.C. §§ 5861(i) and 5871; and possessing firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1). At his initial sentencing on January 18, 1991, the district court asked Tamayo if there was "anything" that he wanted to tell the court "by way of mitigation or allocution before sentence [wa]s imposed." R7-52. Tamayo, a Colombian citizen, declined and replied: "My lawyer has said everything, Your Honor." Id. Based upon the presentence report, the sentencing hearing, and "in consideration of the scope and extent" of his criminal conduct, the district court sentenced Tamayo to the "upper end" of the Sentencing Guidelines range, consisting of 168 months of imprisonment, followed by three years of supervised release. ¹ Id.

On direct appeal, Tamayo challenged his conviction and sentence. This court affirmed his conviction, but it vacated his sentence and "remand[ed] the case for resentencing in light of our decision in United States v. Rockman [, 993 F.2d 811 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 900, 127 L.Ed.2d 92 (1994) ]," decided subsequent to Tamayo's 1991 original sentencing, to determine if Tamayo's 1988 state nolo contendere plea, where adjudication was withheld, was a diversionary disposition qualifying for the addition of one point to his criminal history under U.S.S.G. § 4A1.2(f). United States v. Tamayo, 2 F.3d 404, No. 91-5055, slip op. at 12 (11th Cir. Aug. 19, 1993) ("Tamayo I "). This court further stated that "[w]e see no merit in Tamayo's objections to his sentence other than the 'prior sentence' issue discussed infra." Id. at 11 n. 3.

On remand, the district court ordered a presentence report on the issue of Tamayo's criminal history calculation using the unadjudicated state nolo contendere plea and scheduled a resentencing hearing. Additionally, both Tamayo's counsel and the government addressed this issue for the court. The probation officer prepared an updated presentence report, which states that the subject state proceeding meets the criteria of a diversionary disposition under section 4A1.2(f) and Rockman because Tamayo pled nolo contendere in Dade County Circuit Court to carrying a concealed firearm and unlawful possession of marijuana, for which he was sentenced to three days with credit for time served in custody. ²

In response, Tamayo's appellate counsel filed a resentencing memorandum, including objections to the former presentence report. Tamayo's counsel admitted that "if a trial court withholds adjudication of guilt after a nolo contendere plea, the prior offense does constitute a 'diversionary disposition' for purposes of computing the criminal history under Sentencing Guidelines Section 4A1.1(c) and 4A1.2(f)." R1-88-1-2. Defense counsel, however, challenged the use of the state conviction to compute Tamayo's criminal history on the alternative basis that it was unsigned by the state judge and, thus, invalid and unenforceable. Additionally, counsel "ask[ed] that at the hearing on November 4, 1993 the Court will consider all factors that affect the overall sentence." Id. at 4 (emphasis added). Counsel then addressed objections to the former presentence report, such as Tamayo's acceptance of responsibility, his motion to suppress, his knowledge of the unlawful source of the funds involved in his conviction, and his probable deportation, as well as factors that occurred subsequent to his sentence, such as Tamayo's advancing age, his service of four years of his imprisonment term, and prison overcrowding as reasons to reduce his imprisonment term.

At the resentencing proceeding, Tamayo's counsel questioned under the Sentencing Guidelines whether the nolo contendere plea was a valid judgment without the judge's signature, but she conceded inability to locate any cases to support that proposition. The district court then ruled as follows:

[I]n the absence of any case decisions, I am going to rule that it is a prior sentence within the meaning of 4A1.2, it's not a conviction, a nolo plea and a withhold of adjudication, but it is a diversionary disposition under 4A1.2(f) of the Guidelines. A diversionary disposition resulting from a finding or admission of guilt or a plea of nolo contendere is a judicial proceeding, is counted as a sentence under 4A1.1(c), even if the conviction is not formally entered, except that diversion from juvenile court is not counted. So even if the conviction has not formally entered, it's counted as a conviction.

In this case, there is supporting documentation there was a conviction. They did appear before the judge, that there was a plea--rather there was a withhold of adjudication upon a nolo plea. He appeared before the judge as reflected by Exhibit A attached to the order, and I will rule it is a clerical error, the judge did not sign it, and for all intent[s] and purposes that is a prior conviction under 4A1.2(f) of the Guidelines, and that his Guideline range is an offense level of 32, his criminal history is two. I have no intention of departing or entering any other sentence other than I previously did.

So the sentence that was previously entered by this court on January 25th, 1991, in which the defendant was sentenced as to a term of 168 months, consisting of 168 months as to Count I and a term of 60 months as to Count 2; in terms of 120 months as to Counts 3, 4, 5, and 6, all to be served concurrently is ratified and affirmed.

R8-6-7 (emphasis added).

In objecting to the reimposition of Tamayo's original sentence, his recently appointed appellate counsel, after consultation with him, wanted to address additional issues related to his sentence, ³ including a reevaluation of an appropriate imprisonment term, given the time that he already had spent incarcerated. The district court clarified that it considered the mandate limited to the question on which it had ruled:

[T]here is a very narrow matter I am to consider on the mandate, and it does not, as I read the mandate, does not require me to open up the entire case for resentencing.

....

[I]n light of this case, and in light of the fact Mr. Tamayo did make objections at the time of his sentencing, appealed his conviction, not only as to the substance of the conviction, but objections to the presentence report, and the remand is for the limited purpose of considering whether under United States vs. Rockman, a prior conviction, when there is a withhold of adjudication, not being a prior sentence, could be used to calculate his criminal history. And in obedience to strict remand principles, I cannot go beyond the narrow four corners of the mandate. So that's all I'm going to consider today.

If there are other matters that you deem that are inappropriate about the prior sentencing or the conviction, then you will have to file a 2255.

Id. at 9, 11-12 (emphasis added). After ruling that Tamayo's original sentence would be reimposed, the district judge explained that she would allow Tamayo's counsel ten days within which to proffer case authority showing that the judicially unsigned, state nolo contendere disposition was invalid and unavailable to count in his criminal history. The district judge also ordered that Tamayo remain in the district during this ten-day period to assist his counsel.

The district judge then conversed congenially with Tamayo and specifically asked him if he was learning to speak English in prison. ⁴ Tamayo, who had an interpreter responded: "I can understand, but it's very hard to speak myself sometimes, you know." Id. at 16 (emphasis added). Finally, the district judge asked if counsel had any objections to the proposed resentencing. Tamayo's counsel stated that she had made all objections and did not mention that Tamayo had not been given the opportunity to allocute. Furthermore, defense counsel filed no objections, motions or memoranda within the ten-day period allowed by the district court to bring any case authority relating to the invalidity of Tamayo's judicially unsigned state nolo contendere disposition. Therefore, his original sentence, reinstated at the resentencing proceeding on November 4, 1993, remained effective.

Tamayo appeals his reimposed sentence on two bases. First, he contends that his resentencing is invalid because the district court did not allow him to allocute. Second, he pursues his argument that the state nolo contendere plea was used improperly to increase his criminal history by one point because it was...