United States v. Talero , 287 F. App'x 369 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 21, 2008
No. 07-41038
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUZ STELLA TALERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-74-3
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Luz Stella Talero received a prison sentence of 160 months after pleading
guilty to conspiracy to possess with the intent to distribute one kilogram or more
of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
Because the district court sentenced Talero before the Supreme Court handed
down its decision in United States v. Booker, 543 U.S. 220 (2005), the case was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-41038
remanded for resentencing under the now advisory Federal Sentencing
Guidelines scheme. On remand, Talero received a prison sentence of 151
months, a sentence she now appeals.
Talero argues that the district court erred in failing to award her credit for
acceptance of responsibility under U.S.S.G. § 3E1.1. Because Talero did not
raise this issue in her original appeal and does not argue now that she was
unable to raise it then, this issue is foreclosed and beyond the scope of the
remand order unless the exception to the mandate rule applies. See United
States v. Lee, 358 F.3d 315, 323 (5th Cir. 2004) (noting that issues “not raised in
the appeals court, which could have been brought in the original appeal,” are
deemed waived (citation omitted)); United States v. Marmolejo, 139 F.3d 528,
530-31 (5th Cir. 1998) (stating that only the “discrete, particular issues
identified by the appeals court for remand are properly before the resentencing
court”). “Absent exceptional circumstances, the mandate rule compels
compliance on remand with the dictates of a superior court and forecloses
relitigation of issues expressly or impliedly decided by the appellate court.” Lee,
358 F.3d at 321. The mandate rule also “bars litigation of issues decided by the
district court but foregone on appeal or otherwise waived, for example because
they were not raised in the district court.” Id.
The mandate rule, “which is but a specific application of the general
doctrine of law of the case[,]” has the same exceptions as law of the case: “(1)
[t]he evidence at a subsequent trial is substantially different; (2) there has been
an intervening change of law by a controlling authority; and (3) the earlier
decision is clearly erroneous and would work a manifest injustice.” United
States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Talero contends that the
third exception to the mandate rule applies and argues that the district court’s
finding that she had not accepted responsibility was both clearly erroneous and
manifestly unjust. The district court’s factual findings are not clearly erroneous
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No. 07-41038
unless they are implausible in light of the record as a whole. United States v.
Griffith, 522 F.3d 607, 612 (5th Cir. 2008).
Talero concedes that her guilty plea does not automatically entitle her to
credit for acceptance of responsibility. See United States v. Patino-Cardenas, 85
F.3d 1133, 1135 (5th Cir. 1996) (stating that a defendant is not entitled to credit
for acceptance of responsibility simply for pleading guilty). Moreover, as the
presentence report indicates, there is overwhelming evidence in the form of
phone intercepts and interviews of co-defendants that Talero was intimately
involved in the conspiracy as a leader and organizer of the drug trafficking
business. However, at the original sentencing hearing, Talero testified that
although she knew about the transportation and distribution of the drugs and
even participated in selling some of the drugs, she did not have a leadership
position. Instead, she maintained that her role was mostly limited to relaying
messages. Similarly, Talero denied knowing Miguel Sines, and employing him
to transport drugs, even though she had stated in her objection to the
presentence report that “[I] clearly admit[] to knowing and employing Sines to
move the cocaine.” At the conclusion of Talero’s testimony, the district judge
noted, “[Talero] has attempted in every way I know . . . to minimize her
involvement in this offense.”
The district court concluded that based on a “preponderance of the credible
evidence . . . [Talero] has not, in fact, accepted responsibility within the meaning
of the [G]uidelines.” In light of the record as a whole, the district court’s finding
that Talero had not accepted responsibility was not clearly erroneous and was
not manifestly unjust. Accordingly, the mandate rule applies, and the issue of
acceptance of responsibility is foreclosed and beyond the scope of the remand
order.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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