United States v. Flores-Mejia

Decision Date16 July 2014
Docket NumberNo. 12-3149,12-3149
CourtU.S. Court of Appeals — Third Circuit


On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. No. 2-11-cr-00712-01)

District Judge: Honorable Stewart Dalzell

Submitted Under Third Circuit L.A.R. 34.1(a) on May 10, 2013

Argued En Banc on February 19, 2014



VANASKIE, SHWARTZ, SLOVITER and ROTH, Circuit JudgesRobert Epstein, Esquire (Argued)

Federal Community Defender Office

for the Eastern District of Pennsylvania

Counsel for Appellant

Robert A. Zauzmer, Esquire (Argued)

Jeffery W. Whitt, Esquire

Office of United States Attorney

Counsel for Appellee


ROTH, Circuit Judge:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence. At the sentencing hearing, Flores-Mejia made a mitigation argument, based on his cooperation with the government. Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument. The government counters that Flores-Mejia's failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record. We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing - such as the court's failure to meaningfully consider that party's arguments or to explain one or more aspectsof the sentence imposed - that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal.1 Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008),2 differs from our holding today and is superseded.


Flores-Mejia, a citizen of Mexico, pled guilty to one count of reentry after deportation, in violation of 8 U.S.C. § 1326(a). This illegal reentry was in fact Flores-Mejia's sixth illegal entry into the United States. Flores-Mejia had an extensive criminal record with 18 prior convictions, including several for repeated assaults on his wife. As his attorney admitted at sentencing, "This man has an atrocious record." JA103. Based on a criminal history category of VI and an offense level of 21, including a 16-level enhancement for a prior violent crime, his Guidelines range was 77 to 96 months in prison.

In his sentencing memorandum, Flores-Mejia raised several grounds for downward departures and variances. At issue here is his argument that he cooperated with the government by providing information regarding a homicide and a prostitution ring. At the sentencing hearing, the District Court heard argument on a number of Flores-Mejia's grounds for mitigation and denied them. The parties then addressed Flores-Mejia's argument that his cooperation warranted a reduced sentence. Both the government and defense counsel made proffers on the issue. The government argued that the homicide in question had already been solved and that the information about the prostitution ring did not involve involuntary sex trafficking or children and so it fell outside the ordinary purview of federal law enforcement. For those reasons, the government asserted that the cooperation did not warrant a variance. Following this colloquy, the District Court stated: "Okay, thanks. Anything else?" There was no reply from either party; instead each side summed up its position on sentencing. On completion of the summations, the District Court proceeded to sentence Flores-Mejia to 78 months in prison. Defense counsel did not at that time object to the court's failure to rule on the request for variance based on the alleged cooperation, nor did she point out the District Court's failure to explicitly address or give further consideration to that argument.

Flores-Mejia appealed, contending that his sentence is procedurally unreasonable because the District Court failed to sufficiently consider his argument that his attempts at cooperation warranted a lower sentence. Based on our decision in Sevilla, a divided panel of this Court agreed. United States v. Flores-Mejia, 531 F. App'x 222 (3d Cir. 2013). We then granted en banc review.


In United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), we set forth a three-step framework for sentencing. First, a district court must calculate a defendant's Guidelines sentence as it would have before United States v. Booker, 543 U.S. 220 (2005). Gunter, 462 F.3d at 247. Second, a district court must "formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force." Id. (citation, quotation marks and alterations omitted). Third, a district court "[is] required to exercise [its] discretion by considering the relevant § 3553(a) factors . . . in setting the sentence [it imposes] regardless whether it varies from the sentence calculated under the Guidelines." Id. (internal citation, quotation marks, and alterations omitted).

To satisfy step three, the district court must "acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis." United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). Failure to give "meaningful consideration" to any such argument renders a sentence procedurally unreasonable which, when appealed, generally requires a remand for resentencing. Id. (internal citation omitted).

This error of failure to give meaningful consideration must be brought to the district court's attention through an objection. If a defendant fails to preserve the error for appeal by objecting, the authority of the court of appeals to remedy the error is "strictly circumscribed." Puckett v. United States, 556 U.S. 129, 134 (2009). However, Rule 52(b) of the Federal Rules of Criminal Procedure provides for limited relief: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."

The issue in this appeal is whether, in order to preserve the objection for appeal and to avert plain error review, a defendant must object after the sentence is pronounced to the district court's failure to meaningfully consider his argument.3 In Sevilla, we heldthat "the District Court's failure to address those issues [when sentence was pronounced] did not require Sevilla to re-raise them to avert plain error review of these omissions." Sevilla, 541 F.3d at 231. However, for the reasons that follow, we now hold that a defendant must raise any procedural objection to his sentence at the time the procedural error is made, i.e., when sentence is imposed without the court having given meaningful review to the objection. Until sentence is imposed, the error has not been committed. At the time that sentence is imposed, if the objection is made, the court has the opportunity to rectify any error by giving meaningful review to the argument.

We are adopting this new rule for several reasons. First, we are dealing with a procedural objection to the sentencing process. We must appreciate the difference between a challenge to the substantive reasonableness of the sentence and a challenge to its procedural reasonableness. While a substantive objection to the sentence that a court will impose is noted when made and need not be repeated after sentencing, a procedural objection is to the form that the sentencing procedure has taken, e.g., a court's failure to give meaningful review to a defendant's substantive arguments. See United States v. Judge, 649 F.3d 453, 458 (6th Cir. 2011). Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced, and, unless the objection is meaningfully dealt with earlier, no challenge to the sufficiency of the court's explanation can be made until that time. Simply put, a defendant has no occasion to object to the district court's inadequate explanation of the sentence until the district court has inadequately explained the sentence. Thus, the procedural objection can be raised for the first time only after the sentence is pronounced without adequate explanation.4

Second, we are satisfied that there are compelling reasons why objecting to procedural error after the sentence is pronounced would promote judicial efficiency. Objecting when sentence is pronounced permits the quick resolution of such errors. As the Supreme Court observed, "errors are a constant in the trial process," and when a defendant contemporaneously objects, the district court "can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome." Puckett, 556 U.S. at 134 (citation and quotation marks omitted); see also United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010) ("[T]he sentencing judge, not the court of appeals, is in a superior position to find facts and judge their import under § 3553(a) in the individual case.")(...

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