United States v. Yoni Barahona-Sales , 524 F. App'x 235 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0427n.06
No. 12-5613
FILED
UNITED STATES COURT OF APPEALS Apr 29, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On Appeal from the United
States District Court for the
YONI ALBERTO BARAHONA-SALES, Middle District of Tennessee
Defendant-Appellant.
/
Before: BATCHELDER, Chief Judge; GUY and BOGGS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. On M ay 11, 2012, the defendant, Yoni
Alberto Barahona-Sales, was convicted of unlawful reentry into the United States by a
removed alien subsequent to the commission of a felony in violation of 8 U.S.C. §§ 1326(a)
and (b)(2). He was sentenced to 96 months of imprisonment, with three years of supervised
release. At sentencing, the judge also imposed a twelve-month prison sentence (to run
concurrently with his 96-month sentence) because Defendant had violated the terms of his
supervised release. At the time of sentencing, Defendant was serving a ten-year prison
sentence for an assault conviction in Tennessee.
No. 12-5613 2
Defendant appeals his conviction and sentence claiming that: (1) the district court
erred in admitting his statements to immigration officials because such statements were not
voluntarily made; and (2) the court committed procedural and substantive errors at
sentencing. We affirm Defendant’s conviction but vacate and remand his sentence so that
the Court may address Defendant’s request that his federal sentence be served concurrently
with his state court sentence.
I.
On December 16, 2009, Defendant, a Honduran citizen, was charged with unlawful
reentry into the United States by a removed alien subsequent to the commission of a felony
in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Prior to trial, Defendant filed a motion in
limine to exclude two statements that he made to United States Immigration and Customs
Enforcement (“ICE”) agents, challenging the voluntariness of such statements.
The first statement, made on February 14, 2006, involved a written sworn statement
Defendant made to an ICE agent who was processing his removal from the United States. In
that statement, Defendant admitted that he was a citizen of Honduras and that he was present
in the United States without authorization. Prior to the Defendant’s executing this statement,
the ICE agent asked Defendant a series of questions concerning his citizenship and the
circumstances surrounding his presence in the United States. The agent then Mirandized
Defendant. The second statement involves another sworn written statement, which Defendant
made on August 20, 2008, when Defendant admitted that he was a citizen of Honduras and
No. 12-5613 3
present in the United States without authorization. On the form, Defendant indicated that
such statement was “freely and voluntarily” given.
After conducting a “jury out” hearing pursuant to 18 U.S.C. § 3501, the district court
judge ruled that the statements were voluntary and admissible. On February 1, 2012, a jury
convicted Barahona-Sales of the charge and he was later sentenced to 96 months of
imprisonment.
At the time of sentencing, Defendant was serving a ten-year sentence for an assault
conviction in Tennessee. His attorney requested that the district court run his federal sentence
concurrently with that state court sentence. The district judge failed to address this request.
II.
A. Voluntariness of Barahona-Sales’ Statements
We review the district court’s findings of fact with respect to the voluntariness of
Defendant’s statements for clear error, and its ultimate legal conclusion as to voluntariness
de novo. See United States v. Al-Cholan, 610 F.3d 945, 953 (6th Cir. 2010). “Statements
made in response to custodial police interrogation must be suppressed unless the suspect first
waived his Miranda rights ‘voluntarily, knowingly and intelligently.’” Id. at 954 (quoting
Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The government bears the burden of proving,
by a preponderance of the evidence, that the confession was voluntary. United States v.
Mahan, 190 F.3d 416, 422 (6th Cir. 1999). Defendant claims that the government failed to
meet this burden because it did not establish that he understood the warnings that were given
No. 12-5613 4
and, alternatively, that both statements were the result of impermissible “Miranda-in-the-
middle” questioning (where interrogators question first and warn later) in violation of
Missouri v. Seibert. 542 U.S. 600 (2004).
We inquire into the “totality of the circumstances surrounding the interrogation” to
determine whether the Defendant voluntarily waived his rights. Fare v. Michael C., 442 U.S.
707, 725 (1979). This requires us to consider the Defendant's age, experience, education,
background, and intelligence, and his capacity to understand the Miranda warning. Id. We
review the evidence in the light most favorable to the government. United States v. Fowler,
535 F.3d 408, 417 (6th Cir. 2008).
1. The 2006 Statement
The district court ruled that Defendant’s 2006 statement was voluntary. At the “jury
out” hearing, the evidence established that the ICE agent read Defendant a Miranda warning
in Spanish, and provided him a written Miranda warning in both English and Spanish. The
court found that Defendant spoke English, there was no evidence that he did not understand
the warnings, and the Defendant was “cooperative and cordial” during the interview.
Reviewing such findings for clear error, we find none. See Al-Cholan, 610 F.3d at 953.
Defendant’s age, experience, and background also support a finding of voluntariness.
At the time, Defendant was 25 years old and had considerable experience with the U.S.
criminal justice system. Given that there was no evidence of coercion or evidence that the
police had reason to believe that Defendant misunderstood the warnings, we have no basis to
No. 12-5613 5
invalidate the Miranda waiver. See id., 610 F.3d at 954 (citing Garner v. Mitchell, 557 F.3d
257, 263 (6th Cir. 2009) (en banc)). The government met its burden to prove the
voluntariness of the 2006 statement.
2. The 2008 Statement
The district court ruled that Defendant’s 2008 statement was voluntary. The court
found that there was no evidence of coercion and that Defendant acknowledged that he made
the statement freely and voluntarily. We find no clear error in such findings. The
Defendant’s age, experience, and background, referenced above, also support a finding of
voluntariness. At that time, Defendant was 27 years old, spoke English, and had acquired
more experience with the U.S. criminal justice system than he had in 2006. We find that the
government met its burden to prove voluntariness of the 2008 statement.
3. Miranda-In-The-Middle
Defendant argues that both statements were the result of impermissible “Miranda-in-
the-middle” questioning (where interrogators question first and warn later) in violation of
Missouri v. Seibert. 542 U.S. 600 (2004). There was no evidence of such tactics in relation
to Defendant’s 2008 statement. As to Defendant’s 2006 statement, there was evidence that
the ICE agent, prior to Mirandizing Defendant, attempted to complete an I-213 form to
process Defendant’s removal proceedings. To complete that form, the agent inquired into
Defendant’s name, citizenship, parents’ citizenship, and when he last entered the United
States. Defendant argues that such questions, although biographical in nature, implicate
No. 12-5613 6
Miranda because they were likely to elicit an incriminating response in this context. See
United States v. Pacheco-Lopez, 531 F.3d 420, 424 (6th Cir. 2008) (holding that police were
required to Mirandize the defendant prior to asking him where he was from, how he had
arrived at the crime scene, and when he arrived, because such questions were “reasonably
likely to elicit an incriminating response” under the circumstances.)
We need not decide this issue because any error in admitting the 2006 statement was
harmless beyond a reasonable doubt. See Arizona v. Fulminante, 499 U.S. 279, 295 (1991)
(applying harmless error analysis to coerced confessions if the court determines the error is
harmless beyond a reasonable doubt). Although the 2006 statement provided evidence that
Defendant was an unauthorized alien who had been previously removed from the United
States (both of which were elements of the crime for which he was ultimately convicted), he
admitted the same information in his 2008 statement. Although not conclusive proof,
numerous other records from the United States Citizenship and Immigration Services and
Defendant’s alien file identified Defendant as an unauthorized alien who had been previously
removed from the United States.1 The 2006 statement was therefore cumulative and
unnecessary to establish the government’s case. United States v. Daniel, 932 F.2d 517, 521
1
A district records manager for the United States Citizenship and Immigration Services testified that
Defendant was not a citizen or permanent resident of the United States, and that he had not applied for
permission to reenter the United States. An ICE agent testified that he reviewed Defendant’s alien file in
2009 and, based on that file, determined that Defendant was then unlawfully present in the United States.
The government also admitted a 2008 removal order, which effected Defendant’s 2008 deportation,
identifying Defendant as an alien, and prohibiting him from reentering the United States without special
permission.
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(6th Cir. 1991) (holding that admission of an involuntary statement was harmless error where
such statement was merely cumulative and unnecessary to establish the government’s case).
B. Procedural Error at Sentencing
Defendant argues that the district court committed procedural error at sentencing by:
(1) failing to consider Defendant’s mitigation argument in its consideration of his variance
request (i.e., his desire to return to Honduras due to his parents’ failing health); and (2) failing
to address his request that his federal sentence be served concurrently with his ten-year state
court sentence.
Although we find no merit in Defendant’s first argument, we agree that the district
court was required to address Defendant’s request for a concurrent sentence. We note at the
outset that a, “challenge to a court's decision to impose a consecutive or a concurrent sentence
is not easily classified as ‘substantive’ or ‘procedural.’ This is so because an evaluation of
the substantive reasonableness of a decision to impose a consecutive sentence depends heavily
upon an evaluation of the procedural reasonableness.” United States v. Berry, 565 F.3d 332,
342 (6th Cir. 2009). However, because U.S.S.G. § 5G1.3 gives the district court discretion
to impose consecutive or concurrent sentences, our review is for an abuse of discretion.
United States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997).
“A district court has the discretion to impose consecutive or concurrent sentences
pursuant to [U.S.S.G.] § 5G1.3, upon consideration of the factors listed in 18 U.S.C. § 3553(a)
and the applicable guidelines and policy statements in effect at the time of sentencing.” Id.
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(footnote omitted); see also 18 U.S.C. § 3584(a). This discretion is not unlimited – “the
record on appeal should show that the district court turned its attention to [U.S.S.G.] §
5G1.3(c) and the relevant commentary in its determination of whether to impose a concurrent
or consecutive sentence.” Id; see also 18 U.S.C. § 3584(b).
We find no evidence that the district court considered Defendant’s request for a
concurrent sentence. Defendant requested a concurrent sentence in his sentencing
memorandum, during oral argument, and during allocution. The district court failed to
acknowledge such request or otherwise address whether his federal sentence would run
consecutively or concurrently with his state-court sentence. Neither the pre-sentence
investigation report nor the government addressed the issue.2
Although we do not require that the district court follow a specific methodology for
reviewing a concurrent sentence request or that the court specifically invoke a departure from
the guidelines, see id., we do require some evidence that the court was aware of the request
and considered it, United States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012). As we
explained in United States v. Cochrane:
2
The government acknowledged that the Defendant was sentenced to serve ten years for the state-court
conviction. At the hearing, Defendant was being sentenced for both the unlawful reentry conviction and for
violating the terms of his supervised release. The government stated that it, “would seek a sentence of at least
92 months on [the] new case and at least 18 months consecutive on the other case.” Given that the
government’s argument focused on why the supervised release violation should run consecutively to the
unlawful reentry sentence, the government’s reference to “the other case,” in this context, refers to the
supervised release violation. As to such request, the district court stated: “I . . . strongly state that that [sic]
he should get credit [for his state court sentence] for [sic] November 18, 2010[,] when he was continuously
detained on the federal warrant.”
No. 12-5613 9
What the district court may not do is say nothing at all. When deciding to
impose consecutive sentences, we hold that a district court must indicate on the
record its rationale, either expressly or by reference to a discussion of relevant
considerations contained elsewhere. Otherwise, meaningful appellate review
becomes impossible.
Because there is no indication that the district court even considered Defendant’s request for
a concurrent sentence, we must vacate the sentence and remand to the district court to address
such request. See id.
C. Substantive Error at Sentencing
Defendant received a within-guidelines sentence of 96 months of imprisonment for his
unlawful reentry conviction and a sentence of 12 months of imprisonment for violating the
terms of his supervised release, which the judge ordered served concurrently with his 96-
month sentence. The defendant challenges the substantive reasonableness of that sentence,
which we evaluate for an abuse of discretion. United States v. Bolds, 511 F.3d 568, 581 (6th
Cir. 2007). Because Defendant’s sentence was a within-guidelines sentence, we apply a
rebuttable presumption of substantive reasonableness. Id.
Defendant claims that the district court gave unreasonable weight to the need for
deterrence and failed to consider evidence that Defendant was needed back in Honduras to
care for his elderly parents. The record belies Defendant’s claims. The district court, in
addition to considering all the relevant § 3553(a) factors, thoroughly considered Defendant’s
argument and rejected it. We find no merit to Defendant’s claim of substantive error.
No. 12-5613 10
Conviction AFFIRMED. The sentence is VACATED and the matter REMANDED
for resentencing, consistent with this opinion.