U.S. v. Zubia-Torres

• Decision Date: 22 December 2008
• Docket Number: No. 08-2067.,08-2067.
• Citation: 550 F.3d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo ZUBIA-TORRES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

550 F.3d 1202

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo ZUBIA-TORRES, Defendant-Appellant.

No. 08-2067.

United States Court of Appeals, Tenth Circuit.

December 22, 2008.

Scott M. Davidson, Albuquerque, New Mexico for Defendant-Appellant.

Andrea Hattan, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, and Terri J. Abernathy, Assistant United States Attorney, Las Cruces, New Mexico, on the brief) for Plaintiff-Appellee.

Before HENRY, Chief Judge, McKAY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Ricardo Zubia-Torres was convicted, pursuant to a guilty plea, of one count of reentry of a removed alien, in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2). His advisory guidelines offense level was calculated at twenty-one, largely on the basis of a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a "drug trafficking offense" committed nine years previously. On appeal, with new counsel, Mr. Zubia-Torres argues that because the statutory language defining his prior offense was broad enough to include mere possession as well as trafficking, the district court erred in concluding that the enhancement applied. Unfortunately for Mr. Zubia-Torres, however, no such objection was lodged in the district court at sentencing and accordingly no record was developed for determination of the applicability of the enhancement. Moreover, on appeal, he points to no evidence suggesting that the imposition of the sixteen-level enhancement was ultimately inappropriate. He is therefore unable to prevail on plain error review.

I. BACKGROUND

On June 9, 2007, Mr. Zubia-Torres was arrested by United States Border Patrol agents in Las Cruces, New Mexico. Mr. Zubia-Torres previously was deported in 2001. Prior to his deportation on that occasion, he had been convicted of violating section 453.3385 of the Nevada Revised Statutes, which prescribes a penalty for "trafficking in controlled substances." Mr. Zubia-Torres's pre-sentencing report ("PSR") indicated that his prior offense, which occurred nine years previously, involved 26.9 grams of methamphetamine. Treating this prior conviction as a felony conviction for a "drug trafficking offense" within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(i), the PSR recommended that Mr. Zubia-Torres receive a sixteen-level enhancement atop the base offense level of eight for his reentry offense. Because Mr. Zubia-Torres received a three point reduction for demonstrating acceptance of responsibility under U.S.S.G. § 3E1.1, the PSR recommended his advisory guidelines sentence be calculated based on a total offense level of twenty-one.

At sentencing, the district court adopted the PSR's calculation of Mr. Zubia-Torres's guidelines range and imposed a sentence of forty-one months, at the low end of the guidelines range of forty-one to fifty-one months. On appeal, with new counsel, Mr. Zubia-Torres argues that his Nevada conviction was not a "drug trafficking offense" within the meaning of § 2L1.2(b)(1)(A)(i).

II. STANDARD OF REVIEW

We must first address two issues regarding standard of review: first, whether defense counsel's acquiescence in the PSR guideline calculation constituted a waiver of the right to raise this issue on appeal, as opposed to a mere forfeiture, which would lead to plain error review; and second, whether Mr. Zubia-Torres's own comments during allocution were sufficient to preserve the issue for appeal on a de novo basis.

A. Waiver or Forfeiture

Pointing to an exchange between defense counsel and the court during sentencing, the government contends that the defendant waived his right to challenge the imposition of a sixteen-level enhancement on appeal. When the court asked defense counsel whether she had anything to state on "—the 16 le[vel]—or the offense calculation or his criminal history score," counsel responded: "Your Honor, the offense was correctly calculated by Probation. Our issue is whether or not it's a Booker issue." Tr. 4. The Government argues that this response was an "intentional" and "deliberate" concession that the sixteen-level enhancement applied, such that appellate review is foreclosed. See United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006) (holding that a party who has waived a right is not entitled to appellate review).

The defendant argues that we should, at most, treat counsel's failure to object as a forfeiture, subject to plain error review. See Teague, 443 F.3d at 1314 (holding that in cases of forfeiture, the defendant may obtain appellate review on a plain error standard). We agree with the defendant.

Although it is true that counsel stated that "the offense was properly calculated by probation," this was said in the context of directing the court's attention to Mr. Zubia-Torres's primary argument at sentencing, seeking a variance. There is nothing in the record to suggest that counsel actually identified the issue related to Mr. Zubia-Torres's sentencing enhancement and either invited the court to make the particular error or abandoned any claim that the enhancement did not apply. Rather, we think counsel was merely indicating that she was not raising a sentencing calculation issue and attempting to draw the court's attention instead to the issue she had briefed in her sentencing memorandum. See Sent. Tr. 4. The record suggests that counsel did not "consciously cho[o]se to forego" the argument, United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006), but rather that she failed to recognize the argument and instead agreed to the PSR's calculation of the sentence. Accordingly, we will review Mr. Zubia-Torres's claim for plain error.

Because there is some uncertainty in our cases regarding the difference between waiver and forfeiture,¹ and because this is a particularly close case, we will lay out in greater detail than usual the reasons we classify the error here as a forfeiture. As we have explained, "waiver is accomplished by intent, [but] forfeiture comes about through neglect." United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.2007), quoting United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). We typically find waiver in cases where a party has invited the error that it now seeks to challenge, or where a party attempts to reassert an argument that it previously raised and abandoned below. See, e.g., Teague, 443 F.3d at 1316 (defendant waived his challenge to conditions of supervised release because he had proposed them through counsel and personally agreed to them at sentencing); Carrasco-Salazar, 494 F.3d at 1271-73 (defendant waived challenge to sentencing enhancement because he had explicitly abandoned it below). The Supreme Court has instructed that "waiver is the `intentional relinquishment or abandonment of a known right.'" United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (emphasis added).

Our cases demonstrate the distinction. We begin with this Court's unanimous en banc decision in United States v. Haney, 318 F.3d 1161 (10th Cir.2003) (en banc) (Kelly, J.). There, the defendant was charged with two crimes: attempted escape from prison and possession of escape paraphernalia in prison, and was convicted only on the latter charge. The question on appeal was whether he should have been permitted an instruction on a duress defense. As the opinion for the Court painstakingly recounts, "the district court was told repeatedly that Mr. Haney did not assert a duress defense to any claim that he was attempting to escape." Id. at 1166. First in a written "Notice of Defense," id. at 1164, then at a pre-trial hearing, id., then at a status conference, id. at 1164-65, then in an offer to enter a stipulation, id. at 1165, then in a written brief addressing jury instructions, id. at 1165-66, and finally at the charging conference, id. at 1166, counsel explicitly stated that the defendant was raising a duress defense only with regard to potential aiding and abetting liability on the escape charge. Counsel expressly stated that "[w]e don't need duress" if the government did not present an aiding and abetting theory. Id. at 1165. When the government represented to the court that it would not seek aiding and abetting liability, the judge stated that the duress question was a "nonissue." Id. Defense counsel then said: "I conceded in my motion Haney should not have a duress defense as it applies solely to his own alleged attempted escape." Id. Nonetheless, citing Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the en banc court unanimously concluded that this was a case of forfeiture, and applied plain error review, apparently because the question of duress for the paraphernalia charge never arose and therefore could not have been intentionally relinquished or abandoned.

This case is similar. In both cases, in the course of pursuing a particular theory of the defense, counsel told the court that the defense was not raising another, closely related issue. (In Haney, counsel made this statement repeatedly; in our case only once.) But in neither was there any evidence that counsel had deliberately considered the unraised issue and made an intentional decision to forego it. Counsel simply was focused on another theory.

This case is also strikingly similar to United States v. Arviso-Mata, 442 F.3d 382 (5th Cir.2006) (Higginbotham, J.). There, counsel made a Blakely objection to sentencing on the basis of judge-found facts. When the court asked if there were any objections to the PSR, counsel answered that he had made a Blakely objection but "[o]utside of that, Your Honor, we have no objections to the PSR." Id. at 383. On appeal, the defendant sought to argue that the district court plainly erred in assessing two criminal history points for a misdemeanor more than ten years old. As in our...