USA v. De Jesus, 98-50639

• Decision Date: 13 September 1999
• Docket Number: No. 98-50639,98-50639
• Citation: 217 F.3d 638
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO MEZAS DE JESUS, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 638

217 F.3d 638 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO MEZAS DE JESUS, Defendant-Appellant.

No. 98-50639

U.S. Court of Appeals for the Ninth Circuit

Submitted September 13, 1999¹ Pasadena, California

Filed June 16, 2000

Monica Knox, Federal Public Defendant, Los Angeles, California, for the defendant-appellant.

Marc R. Greenberg, Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CR-98-00016-GLT

Before: Betty B. Fletcher, Harry Pregerson, Circuit Judges, and Charles R. Weiner, Senior District Judge.²

PREGERSON, Circuit Judge:

Pedro Mezas de Jesus was convicted in 1998 of being an undocumented immigrant in possession of a firearm in violation of 18 U.S.C. S 922(g)(5). At sentencing, the government argued that Mezas de Jesus committed this offense during a purported, uncharged kidnaping. The sentencing court applied the preponderance of the evidence standard and found that Mezas de Jesus possessed a firearm in connection with a kidnaping. On this basis, the court sentenced him under the kidnaping guideline, U.S. Sentencing Guidelines Manual ("U.S.S.G.") S 2A4.1 (1998), instead of the guideline governing possession of a firearm, U.S.S.G. S 2K2.1(a)(6). As a result, Mezas de Jesus received a nine-level upward adjustment in offense level and was sentenced to 57 months of imprisonment. On appeal, he argues that the district court erred in applying the preponderance of the evidence standard in finding that he used a firearm in connection with the uncharged kidnaping because that sentencing factor had an extremely disproportionate affect on his sentence. We agree.

I. FACTUAL AND PROCEDURAL HISTORY

Mezas de Jesus was arrested, along with Antonio CruzBaires, and charged with kidnaping for ransom by the State of California. After the state dropped the kidnaping charges against both defendants, the federal government jointly tried and convicted each of them for unlawful possession of a firearm by an undocumented immigrant in violation of 28 U.S.C. S 922(g)(5). Cruz-Baires and Mezas de Jesus filed separate appeals.³ At sentencing, Mezas de Jesus was sentenced to 57 months of imprisonment on the basis of the district court's

finding that he possessed the firearm in connection with the uncharged kidnaping. Had the district court applied only the Sentencing Guideline for possession of a firearm by an undocumented immigrant, U.S.S. G. S 2K2.1(a)(6), his base offense level would have been 14, which, with a criminal history category of III, would have produced a sentencing range of 21 to 27 months.

The federal probation office in its Presentence Report (PSR) recommended the 57-month sentence based on the following Sentencing Guidelines calculations. First, probation cross-referenced the firearm possession offense to the base offense level for kidnaping (24 points), see U.S.S.G. SS 2K2.1(c)(1)(A) (cross-reference); 2X1.1 (attempt, solicitation, or conspiracy); 2A4.1(a) (kidnaping); then probation decreased the offense level by one point for the release of the victim within 24 hours (23 points), see U.S.S.G. S 2A4.1(b)(4)(C); and then probation established a criminal history category of III. The sentencing range for offense level 23 and criminal history category III is 57 to 71 months.

Probation applied the kidnaping provision largely on the basis of hearsay contained in the police report of the investigating officers. Specifically, probation relied on the investigating officers' notes of statements purportedly made by the alleged kidnap victim, Pancho Aragon (Aragon), and his wife at various times during the investigation, and statements that Aragon and his wife claimed that the defendants made to them. In preparing the PSR, probation did not interview Aragon or his wife, and neither of them testified at trial because the district court precluded the government from presenting any testimony about the alleged kidnaping due to its potential prejudicial effect.

The record indicates that Aragon was a drug dealer and an associate of the defendants. According to the PSR, Aragon initially told the police that he and his wife had voluntarily gotten into a defendant's car to attend a wedding. Later he told the police that he was separated from his wife and kidnaped because he did not have the money to pay for the 3 kilos of the "boss's" cocaine that he had lost. His wife told the police that, although she was initially fearful of the defendants, she asked to go with them and that defendants agreed. She also told the police that her husband subsequently left her in one car and voluntarily went off with the defendants in another car. At no time did she suggest that the defendants were armed. Aragon, on the other hand, claimed that the defendants were armed and forcibly took him. Aragon who had bruises on the left side of his face and "burn" marks on both wrists when he spoke with the police, claimed that he was bound and beaten, and that his life was threatened if he did not pay back the "boss" by the following week⁴. Thereafter, Aragon told the police that the defendants untied him, disposed of their weapons, and started to drive him home when the police stopped the vehicle⁵.

Mezas de Jesus, through defense counsel, filed a sentencing memorandum in which he objected to the application of S 2A4.1 (kidnaping) because (1) the kidnaping was not supported by a preponderance of the evidence, and (2) he had not had an opportunity to cross-examine the witnesses to the alleged kidnaping. In the sentencing memorandum, Mezas de Jesus also demanded an evidentiary hearing so that he could cross-examine these witnesses.

At the sentencing hearing, the district court determined that Mezas de Jesus was entitled to an evidentiary hearing to determine whether a kidnaping had occurred. But the government reported that the whereabouts of Aragon and his wife were unknown and that they were unavailable to testify at an evidentiary hearing. The record does not indicate why the government could not locate the alleged victim and his wife or when they disappeared.

Because the alleged kidnap victim and his wife were unavailable, Mezas de Jesus withdrew his request for the hearing. He argued instead that the hearsay statements made by Aragon and his wife that were contained in the police report and recounted in the PSR should not be considered by the court because they were inherently unreliable ⁶ and insufficient to show by even a preponderance of the evidence standard that a kidnaping had in fact taken place. Mezas de Jesus further argued that because the uncharged and unproved kidnaping would have an extreme effect on his sentence, its use as a sentencing factor would become the "tail which wags the dog of the substantive offense."⁷

After expressing some concern about the limited reliability of the "untested" hearsay testimony of the alleged victim and his wife, the inability of the government to produce these witnesses for cross-examination at an evidentiary hearing, and the absence of defense evidence rebutting the alleged victim's "story," the district court nonetheless accepted the probation office's recommendation and sentenced Mezas de Jesus to 57 months imprisonment.

On appeal, Mezas de Jesus argues, inter alia, that under the circumstances of his case, the district court should have applied a standard of proof higher than mere preponderance of the evidence before using the alleged kidnaping as a sentencing factor. We have jurisdiction under 28 U.S.C.S 1291.

II. ANALYSIS

A. Standard of Review

We review de novo the constitutionality of a sentence imposed under the Sentencing Guidelines. See United States v. Estrada-Plata, 57 F.3d 757, 762 (9th Cir. 1995). Because "due process protects a defendant's interest in fair sentencing." Restrepo II, 946 F.2d at 659 (citing McMillan, 477 U.S. at 87-91, 92 n.8), we review the district court's application of the standard of proof at sentencing for harmless error beyond a reasonable doubt. See Delaware v. Van Arsdall , 475 U.S. 673, 680-81 (1986) (holding that constitutional error is reversible unless "the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt") (citation omitted). We review the district court's factual findings at sentencing for clear error. See United States v. Ladum, 141 F.3d 1328, 1344 (9th Cir. 1998).

B. Standard of Proof

"[A]s a general rule [at sentencing] due process does not require a higher standard of proof than preponderance of the evidence to protect a convicted defendant's liberty interest in the accurate application of the Guidelines." Restrepo II, 946 F.2d at 661. However, "when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction . . . a higher standard of proof" may be required. Id. at 659-60 (citing McMillan, 477 U.S. at 8791). In a case decided after Mezas de Jesus was sentenced, we held that the government must prove such a sentencing factor by "clear and convincing" evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999) (quoting Restrepo II, 946 F.2d at 659), cert. denied, McKendrick v. U.S., 120 S. Ct. 1179 (2000).

In Hopper, a jury convicted the defendants of, inter alia, conspiring "to obstruct the due and proper proceedings of law before the [Internal Revenue Service]." 177 F.3d at 829. The jury also acquitted one defendant, George Reed, of the additional charge of using violence to obstruct or impede the IRS's lawful proceedings. See id. at 832. Nevertheless, the district court upwardly adjusted Reed's sentence seven levels based on the violent activity for which he was acquitted. See id. at 833. "The seven-level adjustment increased [Reed's] sentencing range from 24-30 months to 63-78 months....