USA v. Nelson Carales-Villalta

Filing

USA v. Nelson Carales-Villalta

Doc. 0

Case: 09-40468

Document: 00511216186

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 26, 2010 N o . 09-40468 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. N E L S O N ARCENY CARALES-VILLALTA, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JOLLY and GARZA, Circuit Judges, and STARRETT,1 District Judge. K E I T H STARRETT, District Judge: N e ls o n Arceny Carales-Villalta (Carales) appeals the 37-month sentence im p o s e d on remand for resentencing following his initial appeal from his guilty p le a conviction and original sentence for illegal reentry, in violation of 8 U.S.C. § 1326. Specifically, he challenges the eight-level aggravated felony

e n h a n c e m e n t assessed by the district court under U.S.S.G. § 2L1.2(b)(1)(C) b a s e d on his 1999 Texas conviction for delivery of cocaine,2 on the grounds that

1

District Judge of the Southern District of Mississippi, sitting by designation.

We do not address Carales's arguments challenging the district court's consideration of a twelve-level drug-trafficking increase pursuant to § 2L1.2(b)(1)(B) because the district court did not in fact impose such an increase.

2

Dockets.Justia.com

Case: 09-40468

Document: 00511216186

Page: 2

Date Filed: 08/26/2010

No. 09-40468 it violates the law-of-the-case doctrine and the mandate rule. Carales urges that t h e district court was limited on remand to consideration of a four-level "any o t h e r felony" increase under § 2L1.2(b)(1)(D) only. He contends that the

G o v e r n m e n t is bound by its concession on initial appeal that the eight-level in c r e a s e was error due to insufficient evidence at the original sentencing d e m o n s t r a t in g that the 1999 conviction for delivery of a controlled substance in v o lv e d actual possession instead of a mere offer to sell cocaine. See United S ta te s v. Fuentes, 245 F. App'x 358, 359-360 (5th Cir.) (finding guilty plea and c o n ju n c t iv e charging document insufficient evidence of actual or constructive t r a n s fe r of drugs), cert. denied, 552 U.S. 964 (2007). Carales further argues that t h e district court erred in considering new evidence in the form of his judicial c o n fe s s io n on remand, both because the judicial confession had been available a t the time of the original sentencing and because it was inconsistent on its face a n d therefore inherently unreliable to support the enhancement. We review de novo a district court's application of the remand order, i n c lu d in g whether the law-of-the-case doctrine or mandate rule forecloses the d is t r i c t court's actions on remand. United States v. Pineiro, 470 F.3d 200, 204 (5 t h Cir. 2006). "Under the law of the case doctrine, an issue of fact or law d e c id e d on appeal may not be reexamined either by the district court on remand o r by the appellate court on a subsequent appeal." United States v. Matthews, 3 1 2 F.3d 652, 657 (5th Cir. 2002) (quoting Tollett v. City of Kemah, 285 F.3d 357, 3 6 3 (5th Cir. 2002)). A corollary of this doctrine, the mandate rule, requires

t h a t the district court follow both "the letter and spirit of the mandate by taking in t o account the appeals court's opinion and circumstances it embraces." Pineiro, 470 F.3d at 205; see also United States v. Sandlin, 589 F.3d 749, 758 (5 t h Cir. 2009) (mandating that government may present evidence not p r e v io u s ly presented to justify sentence on remand for resentencing and d e fe n d a n t may offer rebuttal); United States v. Becerra, 155 F.3d 740, 754 (5th 2

Case: 09-40468

Document: 00511216186

Page: 3

Date Filed: 08/26/2010

No. 09-40468 C ir . 1998) (mandating that district court limit its consideration on remand for r e s e n t e n c in g to testimony presented at trial). This Court has not precisely stated what is proper for the district court to c o n s id e r on remand absent a specific mandate. At one end of the spectrum, the C o u r t has taken an open approach to the introduction of evidence upon remand, n o t i n g that "[w]e seek justice and truth and therefore do not preclude the in t r o d u c tio n of information that is helpful in determining a proper sentence." United States v. Kinder, 980 F.2d 961, 963 (5th Cir. 1992) (allowing drug purity e v id e n c e not already in record to be considered when remanded to determine if d r u g s seized met the purity requirement for a more severe statutory penalty). More recently, the Court has taken a middle ground approach, limiting evidence o n remand for resentencing to "relevant facts and evidence on the specific and p a r tic u la r issues heard by the appeals court and remanded for resentencing." United States v. Marmejelo, 139 F.3d 528, 530 (5th Cir. 1998); see also Pineiro, 4 7 0 F.3d at 205 (advising that issues not raised before appeals court are not p r o p e r for reconsideration in district court below). In Marmejelo, we noted that " o n c e an issue is remanded for resentencing, all new matter relevant to that is s u e appealed, reversed, and remanded, may be taken into consideration by the r e s e n t e n c in g court." 139 F.3d at 530. A "full blown sentencing hearing" on r e m a n d was rejected because it "merely gives a defendant a `second bite at the a p p le .'" Id. at 531 (quoting United States v. Whren, 111 F.3d 956, 959 (D.C. Cir. 1 9 9 7 )).3 I t is important that the sentencing judge have sufficient information to m e t e out a fair sentence, but reconsidering all sentencing factors de novo on

As this Court has noted, other circuits allow a district court, on remand for resentencing, to "take any evidence and hear any argument that it could have considered in the original sentencing proceeding" absent a specific mandate. United States v. Lee, 358 F.3d 315, 323 n.4 (5th Cir. 2004) (citations omitted). The Fifth Circuit has expressly departed from this view. Id. at 323.

3

3

Case: 09-40468

Document: 00511216186

Page: 4

Date Filed: 08/26/2010

No. 09-40468 r e m a n d is unreasonable due to the passage of time and logistical considerations. In the absence of a specific mandate and in the interest of truth and fair s e n te n c in g , the district court may consider any corrections and additions r e le v a n t to the issues addressed by this Court on appeal. Therefore, when the c a s e is remanded for resentencing without specific instructions, the district court s h o u ld consider any new evidence from either party relevant to the issues raised o n appeal. This Court may still, however, mandate a particular result or limit c o n s id e r a t io n to only particular evidence on remand when it is prudent to do so, a n d the district court would be bound under the law-of-the-case doctrine. See B e c e r r a , 155 F.3d at 754. The prior opinion did not mandate such a result in this case. On initial appeal, Carales argued that his Texas conviction for delivery of a controlled substance was not an aggravated felony within the meaning of § 2 L 1 .2 (b )(1 )(C ) due to the absence of any proof that he actually possessed a c o n t r o lle d substance; and the Government conceded that the proof was in s u ffic ie n t . United States v. Carales-Villalta, 311 F. App'x 727, 727 (5th Cir. 2 0 0 9 ). This Court's opinion vacated the sentence and remanded for resentencing b e c a u s e "the sentence enhancement was erroneous." Id. It did not provide a c le a r indication that the government conceded that only a four-level e n h a n c e m e n t should apply. Nor did the opinion purport to limit the ability of e it h e r party to present or the district court to consider other evidence on remand b e a r in g on the issue of whether Carales's prior offense was an aggravated felony b e c a u s e it involved actual possession of cocaine. Carales had equal opportunity t o present any new evidence to the district court contrary to the judicial c o n fe s s io n in support of his contention that the Texas conviction was not an a g g r a v a t e d felony. Accordingly, the district court properly considered the

ju d ic ia l confession in its sentence calculations on remand because it was relevant t o the issue appealed. 4

Case: 09-40468

Document: 00511216186

Page: 5

Date Filed: 08/26/2010

No. 09-40468 A d d it io n a lly , the district court found the judicial confession to be reliable, a n d Carales has not demonstrated that the district court's finding was clearly e r r o n e o u s . This Court reviews factual determinations regarding sentencing fa c t o r s for clear error, meaning that the finding must be plausible in light of the r e c o r d as a whole. See United States v. Betancourt, 422 F.3d 240, 244-45 (5th C ir . 2005); see also United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (n o t in g that clear error in fact-finding may exist if district court relied on PSR in fo r m a t io n shown to contain a material untruth). Carales objects to the

r e lia b ilit y of the judicial confession because it contains internal discrepancies. Specifically, the first page of the confession alleges that Carales committed the d r u g offenses in question on July 23, 1997, whereas on the second page, Carales a d m it s to acts committed on December 21, 1998. However, the probation officer a t resentencing testified that the dismissal of the charges involving the D e c e m b e r conduct was part of Carales's plea bargain in connection with the July c o n d u c t , resulting in the April 1999 delivery conviction. Carales did not provide a n y rebuttal evidence to dispute that he pleaded guilty in April 1999 to actual p o s s e s s io n and/or constructive transfer of cocaine on July 23, 1997. Therefore, t h e district court's factual determination based on the judicial confession was not c le a r error as the court had sufficient indicia of reliability to support its probable a c c u r a c y . Accordingly, the district court properly considered Carales's judicial c o n fe s s io n in resentencing Carales on remand. Carales does not argue that his prior Texas delivery conviction does not a c t u a lly support an eight-level aggravated felony enhancement, nor does he c h a lle n g e the manner in which the district court calculated the guidelines range o r the ultimate reasonableness of his sentence. He has therefore waived any s u c h claims. See United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989) (fin d in g that issues not properly argued are abandoned). T h e district court's judgment is AFFIRMED. 5