United States v. Pleitez

• Decision Date: 22 November 2017
• Docket Number: No. 16-20570,16-20570
• Citation: 876 F.3d 150
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Francis Yuvini Guerra PLEITEZ, also known as Colochin, also known as Flaco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

876 F.3d 150

UNITED STATES of America, Plaintiff–Appellee,

v.Francis Yuvini Guerra PLEITEZ, also known as Colochin, also known as Flaco, Defendant–Appellant.

No. 16-20570

United States Court of Appeals, Fifth Circuit.

November 22, 2017

John Richard Berry, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Edward A. Mallett, Esq., Mallett Saper Berg, L.L.P., Houston, TX, for Defendant–Appellant.

Before DAVIS, CLEMENT, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This Court is asked to determine whether the entry of a final restitution order or an amended judgment that imposes a more onerous restitution award under 18 U.S.C. § 3664(d)(5) constitutes a "critical stage" of trial proceedings requiring access to counsel. Defendant–Appellant Francis Yuvini Guerra Pleitez ("Pleitez") entered into a plea agreement for a crime mandating restitution and waived his right to appeal all claims other than claims of ineffective assistance of counsel. At sentencing, the district court issued a partial restitution order but deferred its final determination of restitution pending further investigation by the probation officer.

After Pleitez's trial counsel was dismissed, but before his appellate counsel was appointed, the probation officer submitted a Fourth Addendum to Pleitez's presentence report ("PSR") recommending a more onerous restitution award based on a new method of calculation. The district court amended the restitution order to reflect the updated findings in the Fourth Addendum. Subsequently, the court entered an amended judgment on the same day Pleitez's appellate counsel was appointed. On appeal, Pleitez argues that he was unconstitutionally deprived of the effective assistance of counsel during a critical stage of trial proceedings. Because we find that the acceptance of an addendum to a PSR recommending a more onerous restitution award constitutes a critical stage, we VACATE and REMAND.

I. BACKGROUND

On August 7, 2015, Pleitez pleaded guilty to conspiracy to engage in sex trafficking of children by force, fraud, or coercion. He agreed as part of his plea agreement to waive the right to appeal his conviction and sentence but reserved the right to raise claims of ineffective assistance of counsel. He also agreed to pay restitution to the victims in an amount to be determined by the district court and, subject to the appeal waiver provision, waived the right to challenge the restitution order on any ground.

In order to assist the trial court in determining the restitution amount, 18 U.S.C. § 3664 requires the probation officer to complete a PSR that contains sufficient information for the court to order restitution, including "a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant." 18 U.S.C. § 3664(a) ; see also Fed. R. Crim. P. 32(c)(1)(B). The original PSR, prepared on May 13, 2016, included victim interviews and specified types of victim losses that could be ordered as restitution but reported that no response had been received from the victims. Pleitez filed objections to the PSR on June 8, 2016, arguing that various sentencing enhancements should not apply. The First Addendum to the PSR, filed on June 24, 2016, addressed Pleitez's objections, and noted that mandatory restitution applied. The Second Addendum to the PSR was filed on the day of the sentencing hearing, August 17, 2016, and reflects three of the victims' claims for restitution: victim L.T.S. claiming $71,240,¹ victim I.H. claiming $18,380, and victim M.G.C. claiming $490, for a total of $90,110 in restitution.

At the sentencing hearing, Pleitez did not object to M.G.C.'s claim for $490 or to the restitution owed to victims for future counseling expenses.² He did, however, challenge the claims by L.T.S. and I.H. to the extent they were based on "lost wages;"³ according to Pleitez, the victims were not entitled to restitution for lost wages because they worked illegal jobs and were not legally present in the United States. The probation officer maintained that victims could receive either the value of prostitution services rendered or the wages they would have earned for their services. The court acknowledged defense counsel's position, reviewed his filings, and understood defense counsel's objection to paying $71,240 to L.T.S. and $18,380 to I.H. to the extent these figures were based on lost wages. But the court refrained from ruling, stating that it would first "take the probation department's research" into account. The court sentenced Pleitez to 210 months' imprisonment, five years' supervised release, and ordered $490 in restitution for M.G.C.'s claim. Regarding the $71,240 for L.T.S. and $18,380 to I.H., the court stated it would withhold its decision based on its "statutory or case interpretation" with the assistance of the parties and the probation office. The court said it would consider anything in writing defense counsel submitted after the sentencing hearing, but added that the defense counsel was not obligated to submit anything further.

On August 24, 2016, the probation officer filed the Third Addendum to the PSR after sentencing. The Third Addendum reported that it was appropriate to award restitution to illegal aliens, and trafficking victims are entitled to "the greater of the gross income or value to the defendant of the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act." The probation officer estimated that the value of the victims' services likely exceeded $120,000 but, because it was speculative, recommended that the court use the lower lost-wage amounts previously requested by the victims. Pleitez again filed objections on August 25, 2016, challenging the inclusion of lost wages and arguing that the proposed amount was speculative, ambiguous, and impermissibly based on victim impact statements. And he filed a notice of appeal the following day. On August 30, 2016, the district court permitted Pleitez's trial counsel to withdraw.

On September 6, 2016, while Pleitez was not represented by counsel, the probation officer filed the Fourth Addendum responding to Pleitez's objections. But the Fourth Addendum went further. The lost wages claimed by L.T.S. and I.H. at sentencing were based on a computation of minimum wage under the Fair Labor Standards Act ("FLSA"), but the Fourth Addendum based its recommendation of restitution owed for lost wages on a new method of calculation: estimating wages the victims actually earned for their services by relying on the victims' statements regarding the number of hours worked, the amount charged for each sex act, and the number of customers. As a result, the Addendum concluded that an "extremely conservative" calculation estimated that L.T.S. generated $50,400 in gross income and I.H. generated $33,600 in gross income. Because these amounts were higher than the FLSA estimates proposed at sentencing, the Addendum recommended an increased mandatory restitution award of $76,400 for L.T.S. and $36,900 for I.H.⁴ The same day, the district court entered an order for restitution in the amount of $76,400 to L.T.S. and $36,900 to I.H., reflecting the Fourth Addendum's recommendation. The district court also signed an amended judgment ordering Pleitez to pay restitution of $490 to M.G.C., $76,400 to L.T.S., and $36,900 to I.H., for a total of $113,790 in restitution.

After spending nine days without counsel, appellate counsel was appointed for Pleitez on September 9, 2016. That same day, the district court entered an Amended Final Judgment reflecting a final restitution award of $113,790. Pleitez then timely filed a supplemental notice of appeal.

II. DISCUSSION

Pleitez appeals the judgment of conviction and sentence of imprisonment entered on September 9, 2016. This Court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. § 1291. Pleitez's appeal presents two issues: (1) whether Pleitez's appeal is barred by the appeal waiver in his plea agreement; and (2) whether the district court violated Pleitez's Sixth Amendment right to counsel by amending the judgment and issuing a new restitution order during the nine-day period where Pleitez was not represented by either trial or appellate counsel.

A. The Appeal Waiver

The Government argues that Pleitez's appeal is barred by the appeal waiver provision of his plea agreement. "This court reviews de novo whether an appeal waiver bars an appeal." United States v. Keele , 755 F.3d 752, 754 (5th Cir. 2014). In order to determine whether an appeal waiver applies to the issues presented, this Court "ascertain[s] the ordinary meaning of the waiver provision." United States v. Jacobs , 635 F.3d 778, 781 (5th Cir. 2011). The Fifth Circuit "construe[s] appeal waivers narrowly, and against the government." United States v. Palmer , 456 F.3d 484, 488 (5th Cir. 2006). Because we find that Pleitez's appeal falls within the waiver provision's exception for ineffective assistance of counsel claims, we may hear this case.

A criminal defendant may waive his statutory right to appeal in a valid plea agreement. See United States v. Story , 439 F.3d 226, 231 (5th Cir. 2006) (holding appellate waivers are enforceable if invoked by the United States). "An appeal waiver bars an appeal if the waiver (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement." United States v. Higgins , 739 F.3d 733, 736 (5th Cir. 2014). "A defendant must know that he had a right to appeal his sentence and that he was giving up that right." United States v. Portillo , 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted).

Both parties agree that the appeal...