USA v. Noemi Meza

Filing

PUBLISHED OPINION FILED. [09-40793 Affirmed ] Judge: CES , Judge: ECP , Judge: JWE Mandate pull date is 10/12/2010 for Appellant Noemi Meza [09-40793]

USA v. Noemi Meza

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Case: 09-40793

Document: 00511238074

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Date Filed: 09/20/2010

IN THE UNITED STATES COURT OF APPEALS United United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 20, 2010 N o . 09-40793 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. N O E M I MEZA , also known as Noemi Bermudez-Meza, D e fe n d a n t -A p p e lla n t

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

B e fo r e STEWART, PRADO, and ELROD, Circuit Judges. C A R L E. STEWART, Circuit Judge: D e fe n d a n t -A p p e lla n t Noemi Meza ("Meza") brings this appeal challenging t h e jurisdiction of the district court to impose a criminal sentence. Meza has b e e n twice arrested for immigrant-trafficking. After allocution and at her mostr e c e n t sentencing, Meza faced a prison term for each of two counts--a new s u b s t a n t iv e charge and sentencing on the revocation of supervised release. The d is t r ic t court announced a sentence of a combined term of forty-three months for b o th charges. Thereafter, within the same hearing and upon application by M e z a 's counsel, the district court reformulated the sentence, but reached the s a m e result: forty-three months.

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Case: 09-40793

Document: 00511238074

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Date Filed: 09/20/2010

No. 09-40793 M e z a brings this appeal contending the amended sentence, as it relates to t h e revocation charge, was an improper modification of a sentence under 18 U .S .C . § 3582(c) and was proscribed by Federal Rule of Criminal Procedure 3 5 (a ). The Government argues that the sentencing judge's reformulation was p e r m is s ib le under the Federal Rules and that the authority upon which Meza r e lie s is distinguishable. For the reasons outlined below, we AFFIRM the ju d g m e n t and sentence of the district court. I . BACKGROUND I n 2005, Noemi Meza pled guilty to unlawfully transporting an u n d o c u m e n te d alien for private financial gain by means of a motor vehicle, in v io la t io n of 8 U.S.C. § 1324(a)(1)(B)(i). The district court sentenced Meza to fift e e n months of imprisonment and three years of supervised release. The d is t r ic t court further ordered Meza to perform 100 hours of community service w it h in the first year of supervised release and to attend vocational training. M e z a began serving her term of supervised release on August 4, 2006. In May 2 0 0 8 , the probation officer filed a report advising the district court that Meza h a d not satisfied her community service requirement. The probation officer r e c o m m e n d e d that Meza be given additional time within which to satisfy this o b lig a t io n . The district court concurred with the recommendation and gave M e z a until December 31, 2008 to complete her community service hours. In March 2009, the probation officer filed a petition for a warrant. The p e t i t i o n alleged that Meza violated the terms of supervised release by c o m m it t in g a new federal offense of unlawfully transporting undocumented a lie n s . The probation officer recommended that Meza's supervised release be r e v o k e d , and that the revocation issue be handled at the time of the disposition o f the new offense. The district court issued a warrant for Meza's arrest. At a consolidated hearing on the two charges, the district court heard from c o u n s e l regarding sentencing and the contents of Meza's pre-sentence report. 2

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No. 09-40793 A t the conclusion of the hearing, the district court sentenced Meza to thirtyt h r e e months imprisonment on the new violation and ten months on the r e v o c a t io n of supervised release.1 The sentences were to run consecutively for a total of forty-three months. The district court then informed Meza of her right to appeal. Meza's a t t o r n e y immediately advised the district court that the United States S en ten c in g Commission's Guidelines ("Guidelines") range on the new trafficking c h a r g e was incorrectly calculated, and that the correct range for the new offense w a s twenty-four to thirty months. The district court then made the following statement: Y o u are correct, which I'll change that, but I'm not g o in g to change the total because I'm changing the r e v o c a t io n because very frankly I was inclined to do the h ig h end of the revocation. But I figured that 43 months w a s sufficient here. So, the correct [G]uideline c a lc u la t io n , because I am obligated to insure we got it c o r r e c t is 24 to 30 months. I will sentence you again at t h e high end of the Guideline, but then I'm going to s e n t e n c e you to 13 months in revocation because I r e a lly ­ y o u know, this behavior concerned the court very m u c h . And I believe the 43 months altogether is r e a s o n a b le . So on the instant offense it is 30 months. O n the revocation it is 13 months for a total of 43 m o n t h s . Anything further? M e z a did not make any objections, and the sentencing hearing was adjourned. Meza filed a timely notice of appeal.

The district court calculated that on the new trafficking charge, the Guidelines range for this offense would be twenty-four to thirty-three months. The district court's original imposition of thirty-three months spoke to its belief that the offenses committed were of a serious nature and that the conduct that compelled the entry of an initial sentence at the high end of the Guidelines range. The district court calculated that on the revocation charge, Meza's Guidelines range was eight to fourteen months. At all times, the district court's sentence as it related to the revocation charge stayed within the unchanged Guidelines range.

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No. 09-40793 I I . ANALYSIS A. S ta n d a r d of Review T h e parties disagreed as to the standard of review. The Government

a r g u e s that Meza's failure to object to the reasonableness of her sentence directs a review on appeal for plain error. Meza, however, claims appellate review is de n o v o because it is not the reasonableness of the sentence she contests, rather the d is t r ic t court's jurisdiction to impose the sentence. It is the court, and not the parties, that determines the appropriate s t a n d a r d of review. United States v. Molina-Solorio, 577 F.3d 300, 303 (5th Cir. 2 0 0 9 ). Because the basis of this appeal is as Meza suggests, this court reviews d e novo whether the district court had authority to issue the sentence r e fo r m u la tio n , pursuant to Rule 35(a) of the Federal Rules of Criminal P r o c e d u r e . United States v. Ross, 557 F.3d 237, 239 (5th Cir. 2009). B. A p p li c a b le Law " [A ] district court's authority to correct or modify a sentence is limited to t h o s e specific circumstances enumerated by Congress in 18 U.S.C. §3582([c])." U n ite d States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). See also United S ta te s v. Lopez, 26 F.3d 512, 515 (5th Cir. 1994) (district court is authorized to m o d ify term of imprisonment only if one or more bases permitted by § 3582(c) is applicable). "The only portion of § 3582(c) [relevant here] is the component of s u b s e c t io n (c)(1)(B) that authorizes a sentencing court to act pursuant to FED. R . CRIM. P. 35." Lopez, 26 F.3d at 515. Under the version of Rule 35 in place at t h e time of sentencing, the district court was authorized to modify a sentence (1) t o reflect a defendant's subsequent, substantial assistance or (2) "[w]ithin 7 days a ft e r sentencing" to "correct a sentence that resulted from arithmetical, t e c h n ic a l, or other clear error." FED. R. CRIM. P. 35. Because any alleged

v a r ia t io n to Meza's sentence is not the product of substantial assistance, the d is t r ic t court presumably acted pursuant to the second provision. 4

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No. 09-40793 T h i s court last addressed the area of sentence modifications in Ross. There, the defendant was arrested on charges of possession of child pornography a n d subsequently pled guilty to one count of the same. Ross, 557 F.3d at 237. Acquiescing to the defendant's pleas for leniency, that court initially sentenced t h e defendant to sixty months imprisonment, ten months below the low end of t h e Guidelines range. Id. at 239. Ten days after sentencing, that court, sua s p o n te , scheduled a re-sentencing hearing where it increased the sentence to s e v e n t y months. On appeal, this court vacated the subsequent sentence with in s t r u c t io n s on remand to reinstate the initial sentence. Id. at 243. C. T h e District Court did not modify Meza's criminal sentence. M e z a argues that the second utterance by the sentencing judge amounts t o an improper modification of her criminal sentence. As an initial matter, we n o te that Meza's argument is not wholly without merit. The language employed b y the district court could arguably support Meza's contentions. For example, t h e sentencing judge acknowledged that the second formulation of Meza's term o f imprisonment was, in fact, a "re-sentence" when she indicated, "I will sentence y o u again . . ." Whether this language is attributable to imprecision or a tacit a c k n o w le d g m e n t that the judge was in fact issuing a new sentence, neither s c e n a r io bolsters the Government's position that the entire course of events c o n s t it u t e d one sentence. Yet, for Meza to find shelter in these words, the logical e n d of her argument necessitates the premise that the initial utterance by the s e n te n c in g judge was in fact a binding sentence. According to Meza, the district c o u r t's initial formulation of the sentence is the type which instantaneously s t r ip s the district court of its jurisdiction to sentence criminal defendants and im m e d ia te ly vests such jurisdiction with this court. This court has never

a d o p t e d such a draconian rule, and we are not persuaded to do so now. With t h a t said, we now apply Ross to Meza's appeal.

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No. 09-40793 M e z a rests the thrust of her legal argument on Ross, yet that case is d is t in g u is h a b le . Here, unlike Ross, not only was the application for a

m o d ific a t io n made by a party, but it was also made within the same hearing, on t h e same day, within moments of the original pronouncement. The unbroken s e q u e n c e of actions in this case is a compelling factor in our consideration of F e d e r a l Rule of Criminal Procedure 35. This counsels in favor of affirming the ju d g m e n t and sentence of the district court and construing the totality of the e v e n t s as one sentence. M e z a next contends that this court's unpublished opinion in United States v . Cross supports her position. 211 F.3d 593, 2000 WL 329247 (5th Cir. 2000). Meza's position is problematic. In Cross, the defendant, upon that court's

r e v o c a t io n of supervised release and imposition of a sentence, lodged a profanityla d e n diatribe aimed at the sentencing judge. 2000 WL 329247, at *1.

Subsequent to the defendant's outburst, the sentencing judge reconvened the h e a r in g and increased the defendant's sentence. On appeal, this court, citing the s e n te n c in g court's want of authority in modifying the sentence, reversed and r e m a n d e d with instructions to reinstate the original sentence. Id. As is the case with Ross, Meza's reliance on Cross is misplaced. True, like C r o s s , any purported modification here happened within the same day and, in t h a t respect, Cross avoids the temporal pitfalls inherent in Ross. Yet, the

m o d ific a t io n in Cross happened after that sentencing judge gaveled the hearing a d jo u r n e d . Cross, 2000 WL 329247, at *1. A modification in Cross required the s e n te n c in g judge to perform the affirmative act of reconvening the hearing and e n te r in g onto the record a sentence different than the one previously entered. Id. The conclusion of the original sentencing hearing, and that court's renewal o f the sentencing proceeding, make Cross readily distinguishable from this case. The instant case provides no formal break in the proceedings from which to lo g ic a lly and reasonably conclude that sentencing had finished. 6

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No. 09-40793 T h e record before this court fails to support Meza's contention that the d is t r ic t court's second pronouncement of her sentence was an improper m o d ific a t io n as that term has been interpreted by this court. III. CONCLUSION M e z a argues her sentence for the new trafficking charge should total t h ir t y months, as the reformulation prescribes, but that the sentence for the r e v o c a t io n of supervised release remain intact from the first formulation: ten m o n th s . Meza effectively seeks both benefits of the bargain. As discussed above, M e z a 's position finds no sanctuary in our precedent. Accordingly, we AFFIRM t h e judgment and sentence of the district court.

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