United States v. Flores-Mejia, 12-3149

Decision Date19 July 2013
Docket NumberNo. 12-3149,12-3149
PartiesUNITED STATES OF AMERICA v. JOSE LUIS FLORES-MEJIA, a/k/a JOSE FLORES MEJIA, a/k/a JOSE LUIS MEJIA, a/k/a MANUEL MENDEZ Jose Luis Flores-Mejia, Appellant
CourtU.S. Court of Appeals — Third Circuit

NOT PRECEDENTIAL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Crim. No. 2-11-00712-01)

District Judge: Honorable Stewart Dalzell

Submitted Under Third Circuit L.A.R. 34.1(a)

May 10, 2013

Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

OPINION OF THE COURT

FUENTES, Circuit Judge:

Jose Luis Flores-Mejia was sentenced to 78 months' imprisonment following his guilty plea to a single count of reentry after deportation. On appeal, he contends that hissentence must be vacated because the District Court failed to sufficiently consider an argument he made in his sentencing memorandum and at the sentencing hearing: that his attempts at cooperation with the Government warranted a below-Guidelines sentence. The Government acknowledges that the District Court erroneously imposed the sentence without considering the cooperation argument. However, it contends that defense counsel's failure to object to this error at sentencing means that Flores-Mejia's claim is subject to, and fails upon, plain error review. The Government recognizes that we held in United States v. Sevilla, 541 F.3d 226, 232 (3d Cir. 2008) that no additional objection is required under circumstances such as these, but urges us to overrule Sevilla or at the very least not follow it.

For the reasons that follow, we conclude that we are bound by Sevilla and that we are not permitted to revisit that case as a three-judge panel. Accordingly, we will vacate Flores-Mejia's sentence and remand for resentencing.

I.

The facts relevant to this appeal are undisputed. Flores-Mejia, a native and citizen of Mexico, has an extensive criminal record and has been deported from the United States on numerous occasions. On April 10, 2012, he pled guilty in the District Court for the Eastern District of Pennsylvania to one count of reentry following deportation in violation of 8 U.S.C. § 1326(a). Based on a criminal history category of VI and an offense level of 21, which included a 16 level enhancement due to one of Flores-Mejia's prior crimes of violence, his Guidelines range was calculated as 77-96 months in prison.

In his sentencing memorandum, Flores-Mejia raised several grounds for downward departures and variances. Relevant here, he argued for a below-Guidelines sentence based on two meetings with Government agents, during which he purported to provide "detailed information regarding a homicide and a prostitution ring" in Newark, New Jersey. App. 58-59. The memorandum also explained, however, that the Government determined that the homicide in question had been solved and that Flores-Mejia's information regarding that crime was contradicted by other evidence, and that the Government decided to not pursue the information regarding the prostitution operation.

Flores-Mejia was sentenced in July of 2012. At the hearing, the District Court first gave meaningful consideration to a number of Flores-Mejia's arguments for a lower sentence that are not relevant here. The Court ultimately denied those requests. Subsequently, the parties addressed Flores-Mejia's argument that his two separate efforts at cooperation regarding criminal activity in Newark warranted a lower sentence. Both the Government and defense counsel offered lengthy proffers regarding Flores-Mejia's attempts to provide the Government with information, consistent with the allegations in the sentencing memo. Defense counsel then urged the Court to "consider [Flores-Mejia's] actions in proffering [to the Government] even though they did not rise to the level of a [motion for a downward departure under U.S.S.G. § 5K1.1] in this case." App. 102-03. Following defense counsel's colloquy, the Court stated: "Ok thanks, anything else?" App. 103. The District Court proceeded to sentence Flores-Mejia to 78 months' imprisonment.

The District Court did not in any way address or mention Flores-Mejia's request for a below-Guidelines sentence based on his attempts at cooperation other than that bare acknowledgment, and neither defense counsel nor the Government brought this failure to the District Court's attention, via an objection or otherwise. This appeal followed.

II.
A. Standard of Review

Flores-Mejia's sole contention on appeal is that his sentence is procedurally unreasonable because the District Court failed to sufficiently consider the argument that his attempts at cooperation warranted a lower sentence. Under the familiar sentencing framework outlined in United States v. Gunter, a district court must at the third and final step of the sentencing process consider the relevant sentencing factors set forth in 18 U.S.C. § 3553(a). 462 F.3d 237, 247 (3d Cir. 2006). To satisfy this step, a 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 factor renders a sentence procedurally unreasonable and generally requires remand for resentencing. Id.

The Government contends, however, that Flores-Mejia's claim is subject to plain error review because his counsel did not object when the District Court failed to address Flores-Mejia's argument regarding his attempts at cooperation.1 The Government arguesthat Flores-Mejia loses under plain error review because his argument regarding cooperation was "clearly meritless, bordering on frivolous," and he therefore cannot establish "that the result of the proceeding would have been different had the court said more about his meritless variance claim," Gov't Br. at 43, 49-50, as is required to prevail under plan error review. Flores-Mejia counters that our review is limited to whether the District Court gave "meaningful consideration" to his asserted grounds for a lower sentence, as per United States v. Sevilla, 541 F.3d 226, 232 (3d Cir. 2008).

As the Government acknowledges, in Sevilla the defendant raised two grounds for a downward variance on two separate occasions—once in his sentencing memorandum and once at the sentencing hearing—but both grounds went unmentioned by the District Court in imposing sentence, other than to say it had "considered all of the § 3553(a) factors." Sevilla, 541 F.3d at 232. Aside from raising the pleas for a lower sentence on two occasions, Sevilla's counsel did not lodge an objection when the District Court failed to address those arguments. We squarely held that under those circumstances, "the District Court's failure to address those issues did not require Sevilla to re-raise them to avert plain error review of these omissions," and that such claims were instead subject to "meaningful consideration" review. Id. at 231. So too here. Flores-Mejia raised his attempts at cooperation both in his sentencing memorandum and at the sentencing hearing, but that argument went unmentioned by the District Court. Sevilla squarelyprecludes us from applying plain error review to Flores-Mejia's claims even though his counsel did not lodge an additional objection to the sentence.

The Government candidly concedes that Sevilla "supports Flores-Mejia's assertion that the issue was . . . preserved," Gov't Br. at 23, but contends that Sevilla is "anomalous," id. at 27, and that its holding "cannot be sustained," id. at 36. The bases for the Government's arguments in this respect are as follows. First, the Government contends that the rule set forth in Sevilla is premised on an erroneous reading of our en banc holding in United States v. Grier, where we stated that "an objection to the reasonableness of the final sentence will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a)." 475 F.3d 556, 571 n.11 (3d Cir. 2007). According to the Government, this statement was dicta because the en banc Court in Grier "had no occasion to consider what standard of review should apply in a case such as this." Gov't Br. at 25-26. Second, the Government argues that Sevilla "conflicts with later decisions of this Court" such as United States v. Russell, 564 F.3d 200, 203 (3d Cir. 2009) and United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009), where we applied plain error review to claims that were not brought to a sentencing court's attention. Third, the Government contends that "virtually [all other Circuits are] unanimous in applying plain error review where a defendant fails to object at sentencing to the procedural reasonableness of the sentence," and that Sevilla therefore conflicts with other Circuit authority. Gov't Br. at 28-29. Fourth, the Government notes that we should revisit Sevilla because this issue is an "important, frequently recurring one." Id. at 23.The Government also suggests that a rule requiring defendants to lodge additional objections saves time and effort in that it allows "any ambiguity [at sentencing to] . . . be instantly corrected" and is therefore better than the rule announced in Sevilla. Id. 39-41.

But none of these arguments provide a basis for a three-judge panel of this Court to revisit a binding decision that controls the outcome of a case. "Under our Internal Operating Procedures, a panel of this Court cannot overrule an earlier binding panel decision; only the entire court sitting en banc can do so." Chester ex rel. N.L.R.B. v. Grane Healthcare Co., 666 F.3d 87, 94 (3d Cir. 2011) (citing Third Circuit I.O.P. 9.1). Alternatively, intervening Supreme Court precedent or amendments to statutes permit us to revisit a binding panel decision without invoking our en banc procedures. See id.; see also Reich v. D.M. Sabia Co., 90 F.3d 854, 858...

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