United States v. Cruz Valdovinos Mancilla , 226 F. App'x 941 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16325 APRIL 4, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00175-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRUZ VALDOVINOS MANCILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 4, 2007)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Cruz Valdovinos Mancilla appeals his 294-month sentence, which was
imposed after he pled guilty to conspiring to possess with the intent to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A)(viii)
and § 846, and reentry of a removed alien whose removal was subsequent to a
conviction for commission of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). On appeal, Mancilla argues that the district court failed to
provide him or his counsel the opportunity to object after imposition of his
sentence, in violation of United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.
1990), overruled in part on other grounds by United States v. Morrill, 984 F.2d
1136, 1137 (11th Cir. 1993). After careful review, we vacate and remand for
further proceedings consistent with this opinion.
The relevant facts are these. On April 27, 2005, Mancilla and his
codefendants, Azucena Baltazar Borja and Irma Valle Ramirez, were charged in a
multi-count indictment. Mancilla was charged with: (1) conspiracy to possess with
the intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 846 (Count One); (2) possession with
the intent to distribute and willingly aiding and abetting the possession of 50 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii) and 18 U.S.C. § 2 (Count Two); and (3) reentry of a removed alien
whose removal was subsequent to a conviction for commission of an aggravated
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2) (Count Four). Pursuant to a
written plea agreement, Mancilla pled guilty to Counts One and Four and the
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government agreed to dismiss Count Two. In exchange for Mancilla’s guilty plea,
the government also agreed not to oppose Mancilla’s request for a two-level
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and to
file a motion for an additional one-level downward adjustment if Mancilla
complied with the provisions of U.S.S.G. § 3E1.1(b).1
The plea agreement further stated that the government agreed to
make known to the Court and other relevant authorities
the nature and extent of defendant’s cooperation and any
other mitigating circumstances indicative of the
defendant’s rehabilitative intent by assuming the
fundamental civic duty of reporting crime. However, the
defendant understands that the government can make no
representation that the Court will impose a lesser
sentence solely on account of, or in consideration of,
such cooperation.
The plea agreement did not mention any instances of Mancilla’s cooperation. The
government reserved the right to report to the district court and the probation office
all information concerning the background, character,
and conduct of the defendant, to provide relevant factual
information, including the totality of the defendant’s
criminal activities, if any, not limited to the count(s) to
which defendant pleads, to respond to comments made
1
Upon motion by the government, defendants qualify for one additional level reduction
for acceptance of responsibility if, inter alia, they assisted authorities by timely providing
information to the government about their own misconduct or by timely notifying authorities of
an intent to plead guilty, thereby permitting the government to avoid preparing for trial and the
court to allocate its resources efficiently. See U.S.S.G. § 3E1.1(b).
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by the defendant or defendant’s counsel, and to correct
any misstatements or inaccuracies.
The government also reserved the right to make any recommendation it deemed
appropriate regarding the disposition of the case, subject to any limitations
contained in the plea agreement. Mancilla acknowledged that the government’s
recommendations incorporated within the plea agreement were not binding on the
court, and that the court’s failure to accept the government’s recommendations
would not constitute grounds for withdrawal of his guilty plea or a claim for breach
of the agreement. Assistant U.S. Attorneys Kelley C. Howard and Joseph K.
Ruddy signed the plea agreement.
At Mancilla’s change-of-plea hearing, Mancilla testified, through an
interpreter, that the plea agreement had been translated to him, and that he
reviewed it with his attorney. The magistrate judge explained the terms of the plea
agreement and the charges in the indictment, and Mancilla stated that he
understood. Mancilla also indicated that no one had attempted to force him to
plead guilty, and no one promised him anything in exchange for his guilty plea.
He further agreed with the factual basis for his plea as contained in the plea
agreement.
The magistrate judge explained the maximum possible penalties, the
sentencing procedure, and the sentence-appeal waiver, and Mancilla stated that he
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understood. Finally, the magistrate judge advised Mancilla of the rights he was
waiving by pleading guilty. After finding that Mancilla’s guilty plea was knowing
and voluntary, the magistrate judge recommended that the district court accept his
guilty plea. The district court accepted the plea and Mancilla then proceeded to
sentencing.
The presentence investigation report (“PSI”) stated that Mancilla, a citizen
of Mexico, was convicted in a Minnesota state court of selling cocaine in 1994. In
1996, after Mancilla served his sentence for the Minnesota conviction, he was
deported to Mexico. On April 7, 2005, a confidential informant (“CI”) with the
Polk County Sheriff’s Office (“PCSO”) made arrangements for Mancilla to deliver
five pounds of methamphetamine to the CI in Florida. Mancilla and his two
codefendants were stopped by the PCSO on a highway in Florida on the way to
meet the CI. The officers searched the defendants and found a handgun, separate
ammunition, 7.2 pounds of methamphetamine, and more than $5,000 in cash.
Again, according to the PSI, after being advised of his Miranda 2 rights, on
April 9, 2005, Mancilla told law enforcement officers that an individual named
Carlos had contacted him about the drug deal, Carlos’s cousin in Texas arranged
the deal. Mancilla picked up the methamphetamine five days earlier from two
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 15 L.Ed.2d 694 (1966).
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individuals at a Chili’s restaurant in Dallas. Carlos later told Mancilla to deliver
the drugs to Florida. In a second post-Miranda interview, on April 19, 2005,
Mancilla informed law enforcement officers that he had picked up the package
from an unknown individual in Houston, with instructions to deliver it to Carlos in
Florida. Mancilla was supposed to collect $20,000 for his participation in the
conspiracy, and he had intended to give Ramirez and her husband $10,000.
Mancilla had recently met Ramirez and her husband, who were the owners of a
restaurant in Sulfur, Texas, and they were both aware that they would be providing
transportation to Mancilla for the delivery of drugs.
After applying a three-level reduction for acceptance of responsibility
because Mancilla made the post-Miranda statements acknowledging his criminal
conduct and providing logistical information to agents, the PSI recommended a
total offense level of 38. With a criminal history category II, Mancilla’s
Guidelines range was 262 to 327 months’ imprisonment.
At the sentencing hearing, Assistant U.S. Attorney Jeffrey Downing
represented the government and stated that he was standing in for Assistant U.S.
Attorney Howard. The district court first adopted the factual statements contained
in the PSI and found that the Guidelines range was 262 to 327 months’
imprisonment. The court then stated, “I’ll consider matters in mitigation, including
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any statements that the defendant may wish to make.” In response, Mancilla’s
attorney argued that the court should impose the 120-month mandatory minimum
sentence for several reasons, including that Mancilla was a married man who
supported two small children, that he had a fifth-grade education and no criminal
history other than the Minnesota conviction, and that he played a minor role in the
charged crimes. Defense counsel highlighted Mancilla’s history and lifetime and
argued “it’s a sad commentary of someone who is in the lowest economic strata in
Mexico, trying to-- from that third world country -- do something better for his
family.”
Finally, defense counsel highlighted M ancilla’s two post-
Miranda statements, wherein Mancilla provided information about the charged
offense and the other individuals involved in the scheme. Also at the sentencing
hearing, the district court heard Mancilla’s statement of remorse. The government
requested the court to impose a sentence within the Guidelines range. After
hearing the government’s argument, the district court asked defense counsel if he
had “anything else,” to which counsel responded he did not.
The court then found that “the circumstances of this offense do not cry out
for sympathy” because (1) Mancilla was found with 7 pounds of 97 percent pure
methamphetamine; (2) he had a gun and his two children in the car when he was
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arrested; and (3) he had previously served a substantial sentence for cocaine
trafficking in state prison. The court also found that the circumstances of the
offense required a “significantly long sentence” to satisfy the sentencing factors set
forth in 18 U.S.C. § 3553(a), including the need for the sentence to reflect the
seriousness of the offense, to provide adequate deterrence, and to take into account
Mancilla’s background. Accordingly, the district court imposed a 294-month term
of imprisonment on Count One and a concurrent 240-month term on Count Four.
After imposition of the sentence, the court did not elicit objections, or any further
argument, from either party. This appeal followed.
On appeal, it is undisputed that at the sentencing hearing, the government
did not mention Mancilla’s cooperation, consisting primarily of two post-Miranda
statements to law enforcement which were detailed in the PSI and mentioned by
defense counsel during his argument for a below-Guidelines sentence. Mancilla
argues that the district court erred by failing to elicit further objections, including
the government’s alleged breach of the plea agreement due to its failure to mention
Mancilla’s cooperation, after imposition of sentence, in violation of Jones.3
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On appeal, Mancilla also argues the government breached the plea agreement by failing
to inform the court, at the sentencing hearing, of his cooperation and substantial assistance, as
required by paragraph 9(a) of the plea agreement, which stated the government agreed to “make
known to the Court and other relevant authorities the nature and extent of defendant’s cooperation
. . ..” Given our dispositon of the Jones claim, however, we will not consider this argument at this
juncture.
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In Jones, we held that after imposing sentence, a district court must give the
parties an opportunity to object to the court’s ultimate findings of fact, conclusions
of law, and the manner in which the sentence is pronounced, and must elicit a full
articulation of the grounds upon which any objection is based. See 899 F.2d at
1102. This requirement serves “the dual purpose of permitting the district court to
correct on the spot any error it may have made and of guiding appellate review.”4
Id. Under the Jones rule, when a district court fails to elicit objections after
imposing a sentence, we normally vacate the sentence and remand to the district
court to give the parties an opportunity to present their objections. Id. at 1103. A
remand is unnecessary, however, if the record on appeal is sufficient to enable
review. United States v. Cruz, 946 F.2d 122, 124 n. 1 (11th Cir. 1991).
Here, the district court did not elicit objections after it imposed Mancilla’s
sentence. Although the government urges that the district court’s pre-sentencing
query “anything further” satisfied Jones, we disagree in light of our decision in
United States v. Snyder, in which we held that the district court’s inquiry of
whether there was “anything further,” which took place after the court imposed
Snyder’s sentence, was not sufficient to satisfy Jones. United States v. Snyder, 941
4
The government does not contend, and our own research has not revealed any caselaw
suggesting, that Jones is inapplicable to claims alleging that the government breached a plea
agreement.
9
F.3d 1427, 1428 (11th Cir. 1991); see also United States v. Campbell, --- F.3d ---,
2007 WL 9324 *2 (11th Cir. Jan. 3, 2007) (holding that district court’s post-
sentencing question “Is there anything further?” failed to satisfy Jones). If
“anything further” was insufficient post-sentencing in Snyder (and our recent
Campbell decision), we cannot discern how the exact same inquiry in the instant
case, but this time prior to sentencing, would satisfy Jones.
Moreover, the violation was not a mere “technical” Jones violation since the
record is not sufficient for meaningful appellate review. In the case at bar, the
district court did not solicit any objections after it imposed Mancilla’s sentence and
thereby violated Jones by not eliciting fully articulated objections to the sentence
or the manner in which it was pronounced. Like in Snyder, after the court inquired
whether there was “anything else,” no objections were made. And the record
before us simply does not allow for meaningful appellate review since the
objection Mancilla asserts -- that the government breach the plea agreement by
failing to inform the court of Mancilla’s cooperation -- was not mentioned during
the sentencing hearing. See United States v. Holloway, 971 F.2d 675, 681 (11th
Cir. 1992) (where defendant did not object to PSI or to his sentence at the
sentencing hearing, holding that district court’s failure to elicit objections was not a
mere “technical” violation of Jones, and sentencing record was not sufficiently
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developed for to review); cf. United States v. Cruz, 946 F.2d 122, 124 (11th Cir.
1991) (reviewing technical Jones claim where record was sufficient for appellate
review because, at the sentencing hearing, Cruz objected to the district court’s
calculation of the amount of drugs used to determine his guideline range, which
was the same claim he raised on appeal).
Accordingly, because the record with respect to the government’s
obligations under the plea agreement was not developed before the district court,
we vacate and remand for imposition of sentence consistent with Jones.
VACATED AND REMANDED.
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