US v. Rodriguez, 09-20181.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation602 F.3d 346
Docket NumberNo. 09-20181.,09-20181.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David RODRIGUEZ, Defendant-Appellant.
Decision Date25 March 2010

602 F.3d 346

UNITED STATES of America, Plaintiff-Appellee,
David RODRIGUEZ, Defendant-Appellant.

No. 09-20181.

United States Court of Appeals, Fifth Circuit.

March 25, 2010.

602 F.3d 347


602 F.3d 348

Renata Ann Gowie (argued), and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Thomas B. Dupont, II (Court-Appointed), Heather Elizabeth Morrow (argued), Houston, TX, for Defendant-Appellant.

Before KING, BARKSDALE and ELROD, Circuit Judges.


David Rodriguez challenges a greater sentence imposed on remand by a different

602 F.3d 349
judge from the one who imposed his first sentence. Previously, based on the Government's breach of his plea agreement, Rodriguez successfully appealed his first sentence. In remanding for resentencing, our court ordered it to be conducted by a different judge because of that breach. United States v. Rodriguez, 306 Fed.Appx. 135 (5th Cir.2009) (unpublished)

Primarily, Rodriguez claims his new sentence was vindictive. For this point, the principal issue is whether United States v. Floyd, 519 F.2d 1031 (5th Cir. 1975), has been overruled by Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). In the alternative, he claims the advisory guidelines sentencing range used in imposing his sentence was not supported by the requisite preponderance of the evidence. Although plain-error review applies to each issue, there was no error. AFFIRMED.


Rodriguez, a former Houston police officer, operated a private security company in Houston, Texas, where he employed several illegal aliens as armed security guards. Rodriguez directed them to apply for commissions to carry firearms, which required submission of false information. He also purchased firearms and transferred them to those employees.

In June 2006, Rodriguez was indicted for conspiracy, making false statements in the acquisition of firearms, selling firearms to prohibited persons, and selling firearms without a license. See 18 U.S.C. §§ 371, 922, 924. He pleaded guilty to conspiracy, in exchange for the Government's promise to dismiss the other counts and not to seek any offense-level increases at sentencing.

The presentence investigation report (PSR) recommended: a base offense level of 18 because the offense involved at least 39 firearms; a four-level aggravating-role increase for Rodriguez' being a leader or organizer; and, a two-level increase for obstruction of justice. Rodriguez' advisory guidelines sentencing range would have been 51 to 63 months, but the statutory maximum was 60 months, see 18 U.S.C. § 371; therefore, the range was 51 to 60 months.

Rodriguez filed sealed objections to the PSR's recommended offense-level increases. At sentencing, the Government's responses to those objections defended the PSR's recommended sentencing range. This arguably breached the Government's plea-agreement promise not to seek any offense-level increases.

After considering the parties' contentions, the district judge rejected some parts of the PSR and ruled: the offense involved 23, rather than the recommended 39, firearms, reducing the recommended base offense level by two; and a three-level aggravating-role enhancement, instead of the recommended four levels, along with the recommended two-level obstruction-of-justice enhancement, should be imposed. This resulted in an advisory guidelines sentencing range of 37 to 46 months. Rodriguez was sentenced to, inter alia, 37 months' imprisonment.

Rodriguez appealed his conviction and sentence. Among other things, he claimed the Government had breached its plea agreement by urging enhancements at sentencing; the Government conceded it had "arguably" done so. Rodriguez, 306 Fed.Appx. at 138. Our court affirmed the conviction; but, in the light of the Government's concession, it vacated Rodriguez' sentence and remanded for resentencing. Id. at 138-39.

In doing so, our court ruled that, because of the plea-agreement breach, a different judge would preside at resentencing:

602 F.3d 350
The government . . . concedes . . . that Rodriguez is entitled to be resentenced before a different district judge. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (providing for remedy of resentencing before a different district judge); United States v. Saling, 205 F.3d 764, 768 (5th Cir.2000) (same). In light of this concession, we grant the agreed-upon relief by vacating Rodriguez's sentence and remanding for resentencing before a different district judge. In so doing, we note that this vacatur is caused not by any error on the part of the district judge, but rather by the government's error. Id.

306 Fed.Appx. at 138-39 (footnotes omitted). Our court also stated: "Remand to a different judge is not a reflection upon the original judge". Id. at 138 n. 3 (citing Santobello, 404 U.S. at 263, 92 S.Ct. 495).

At resentencing, Rodriguez renewed his prior objections to the PSR; they were denied. Based upon his independent analysis, the second judge ruled, contrary to the original judge's ruling, that Rodriguez was responsible for 27 firearms (instead of 23). The second judge also ruled, as had the first, that Rodriguez should receive a three-level aggravating-role enhancement (again, instead of the PSR-recommended four levels) and a two-level obstruction-of-justice enhancement. The resulting advisory guidelines sentencing range was 46 to 57 months. Rodriguez was sentenced to, inter alia, 46 months' imprisonment—nine months more than his original sentence.


Rodriguez claims: his sentence on remand was vindictive (either presumed or actual vindictiveness); and, in the alternative, the advisory guidelines sentencing range used for imposing his sentence was not supported by the requisite preponderance of the evidence. For those two claims, this appeal presents several instances in which we must decide whether to exercise our discretion to review an issue. In that regard, plain-error review will be applied to the two claims. (In his opening brief, Rodriguez also claimed he was not credited for time served; at oral argument, his counsel conceded that issue is moot.)


The Fifth and Fourteenth Amendments guarantee due process, which obviously includes the right to be tried and sentenced absent prosecutorial or judicial vindictiveness. See, e.g., Thigpen v. Roberts, 468 U.S. 27, 30, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984) (citing Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)) (prosecutorial vindictiveness); North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (judicial vindictiveness), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Of course, because Rodriguez was convicted of a federal crime, only the Fifth Amendment is in play. Rodriguez claims the second judge's sentence violates his right against vindictiveness.


Before reaching the vindictiveness claim, we must determine our standard of review for it. In contending the claim is unreviewable, the Government asserts Rodriguez' counsel either waived or invited this claimed error at resentencing.


Waived errors are unreviewable. E.g., United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006) (citing United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir.1995)). Review of invited errors

602 F.3d 351
is almost similarly precluded; such errors are reviewed only for "manifest injustice". United States v. Green, 272 F.3d 748, 754 (5th Cir.2001) (quoting United States v. Pankhurst, 118 F.3d 345, 359 (5th Cir. 1997)). Forfeited errors are reviewed under the least strict standard for these three types of error: plain error, as discussed infra. E.g., Arviso-Mata, 442 F.3d at 384 (citing United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002)).

"Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment of a known right." Id. (citing United States v. Reveles, 190 F.3d 678, 683 (5th Cir.1999)). In other words, for waiver, Rodriguez' "counsel must have known of the . . . issue and. . . consciously chosen to forego it". Id. For the invited-error doctrine to apply, defendant (or his counsel) must have induced the error. Green, 272 F.3d at 754.

At resentencing, after sentence was imposed, Rodriguez stated he was confused about that greater sentence. In doing so, he questioned how, in the light of the Government's plea-agreement breach at the first sentencing, he could now receive a greater sentence. In responding, the court explained to Rodriguez the process it had followed; and, after stating it was within the scope of our court's remand mandate as the district court understood it, the court asked Rodriguez' counsel if he had "any argument on the mandate". Counsel replied:

Judge, he was ordered a re-sentencing. And from the looks of it, you have done, you have went through that file extensively. We reurged prior counsel's objections, which were extensive; and you have just summed up exactly what you just did.

The Government maintains counsel's reply constitutes waiver or invited error. But, that reply, made after imposition of sentence, does not show counsel knew of the potential vindictiveness issue and chose intentionally to relinquish it (waiver). And, certainly, sentence having already been imposed, the reply did not induce the claimed error (invited error). Accordingly, the claimed error is reviewable.


Nevertheless, because Rodriguez failed to object in district court on the basis of vindictiveness (forfeited error), review is only for plain error. E.g., United States v. Scott, 48 F.3d 1389, 1398 (5th Cir.1995) (citing United States v. Vontsteen, 950 F.2d 1086, 1089 (5th Cir.1992) (en banc)). (The Government states, and in his reply brief Rodriguez acknowledges, that such forfeited error results in plain-error review. Of course, we, not the...

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