United States v. Cruzado-Laureano

United States Court of Appeals
For the First Circuit

No. 06-1815
UNITED STATES OF AMERICA,

Appellee,

v.

JUAN M. CRUZADO-LAUREANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Alexander Zeno for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief, for
appellee.

June 4, 2008

_______________________

* Of the Tenth Circuit Court of Appeals, sitting by
designation.
 LIPEZ, Circuit Judge. In two prior appeals to this

court, appellant Juan Manuel Cruzado-Laureano ("Cruzado")

successfully raised claims that required remand to the district

court for recalculation of his sentence. A third sentencing

hearing was held in April 2006, nearly four years after Cruzado was

convicted on corruption-related charges. He now attempts a new

round of challenges to his sixty-three month term of imprisonment

and the related imposition of restitution and a fine. Finding no

merit in any of these claims, we affirm all aspects of his

sentence.

I.

The factual background of appellant's crimes was fully

detailed in our two prior opinions. See United States v. Cruzado-

Laureano, 440 F.3d 44, 45 (1st Cir. 2006) ("Cruzado II"); United

States v. Cruzado-Laureano, 404 F.3d 470, 473-79 (1st Cir. 2005)

("Cruzado I"). It suffices to say here that Cruzado, the former

mayor of Vega Alta, Puerto Rico, was convicted by a jury in June

2002 on charges of embezzlement, extortion, money laundering and

witness tampering stemming from conduct undertaken while he was in

office, including demanding kickbacks on municipal contracts. The

district court imposed a 63-month term of imprisonment and a

$10,000 fine, and subsequently ordered Cruzado to pay restitution

in the amount of $14,251.82.

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 In his first appeal, we rejected various challenges to

his conviction, but remanded for resentencing because the district

court had applied the wrong version of the Sentencing Guidelines.

After a new calculation on remand, the court again imposed a 63-

month term, which was the bottom of the new Guidelines range of 63-

78 months, and reinstated the same fine and restitution amounts.

See Cruzado II, 440 F.3d at 47. Cruzado filed a second appeal

challenging the district court's application of several Guidelines

provisions. We detected a single flaw – that the court erroneously

had applied an enhancement for abuse of a position of public trust

under U.S.S.G. § 3B1.3. Id. at 48-49. We therefore again remanded

for resentencing, noting that "we do not intend to intimate that

the length of the sentence should necessarily be changed." Id. at

50. We also stated that Cruzado's challenges to the district

court's imposition of restitution, a fine and supervised release

were "too perfunctory . . . to permit us to evaluate the merits of

those aspects of his punishment," citing our well established

precedent that issues "'unaccompanied by some effort at developed

argumentation[] are deemed waived,'" Id. at 47 n.7 (quoting United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

A third sentencing hearing was held on April 26, 2006.

Cruzado and the government agreed on the criminal history category

(I) and the total base offense level (24), which resulted in a

Guidelines range of 51 to 63 months of imprisonment. Cruzado

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argued at the hearing that the district court could reconsider all

aspects of his sentence, including restitution, because the appeals

court had not explicitly limited the remand to a reassessment of

the correct term of imprisonment without the abuse-of-trust

enhancement. He also sought to present witnesses to prove that he

was "actually innocent," that he had been subject to malicious

prosecution, and that there were no victims of his crime – and

hence no need for restitution – because no loss had occurred. The

district court determined that it could consider only the

appropriate sentence within the applicable Guidelines range. It

agreed, however, to hear character testimony from four witnesses,

and it allowed Cruzado to submit the questions his counsel had

planned to ask of those witnesses and the five additional witnesses

he had wanted to call. At the conclusion of the hearing, the court

again imposed a 63-month term and also re-imposed the same

restitution ($14,251.82) and fine ($10,000).

Cruzado has once again appealed his sentence, raising

five claims of error: (1) the district court improperly refused to

conduct a de novo hearing; (2) even if a full de novo resentencing

was barred, the court should have made new findings on the

restitution and fine amounts because they are integral elements of

every sentence; (3) the court impermissibly double-counted his lack

of acceptance of responsibility; (4) appellant should have been

allowed to present victim testimony in mitigation of his

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punishment; and (5) bias on the part of the sentencing judge denied

appellant due process, requiring resentencing before a different

judge. We briefly explain why each of these contentions fails.1

II.

A. Scope of Remand/Restitution and Fine

Appellant argues that the district court improperly

limited the scope of his latest sentencing hearing to a decision on

the appropriate term of imprisonment within the recalculated

Guidelines range, which was corrected from 63-78 months to 51-63

months. Cruzado asserts that resentencings after remand should be

conducted as de novo proceedings and that his entire sentence –

including the amount of restitution – was therefore open to

reconsideration. Although some circuits do generally allow de novo

resentencing on remand, see, e.g., United States v. Duso, 42 F.3d

365, 368 (6th Cir. 1994); United States v. Smith, 930 F.2d 1450,

1
Although Cruzado has completed serving his term of
imprisonment, this appeal has not become moot because of his
challenges to the amounts of restitution and fine. See Spencer v.
Kemna, 523 U.S. 1, 7 (1998) (holding that appeal of a conviction is
rendered moot upon expiration of sentence unless defendant alleges
some continuing "'collateral consequence'"); United States v.
Molak, 276 F.3d 45, 48-49 (1st Cir. 2002) (noting that restitution
order provides a pecuniary interest in the outcome of the appeal,
avoiding mootness). In addition, if Cruzado were to succeed with
a claim that his sentence was improperly calculated, his three-year
period of supervised release could be reduced on remand. See,
e.g., United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001)
(finding that defendant's sentencing appeal was not moot because,
"[i]f he were to prevail . . . he could be resentenced to a shorter
period of supervised release").

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1456 (10th Cir. 1991), the First Circuit does not. In United

States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999), we held:

"[U]pon a resentencing occasioned by a remand,
unless the court of appeals [has expressly
directed otherwise], the district court may
consider only such new arguments or new facts
as are made newly relevant by the court of
appeals' decision – whether by the reasoning
or by the result."

Id. at 32 (quoting United States v. Whren, 111 F.3d 956, 960 (D.C.

Cir. 1997)).

Appellant acknowledges this precedent, which gives the

panel remanding the case for resentencing the responsibility for

altering the normal scope of the new sentencing hearing. Hence, he

appears to concede that the issue of de novo resentencing is not,

as a general principle, properly before us. See Naser Jewelers,

Inc. v. Concord, 513 F.3d 27, 36 (1st Cir. 2007) (noting that a

subsequent panel lacks power to overrule the decision of an earlier

panel). The issue is raised, he explains, to preserve it for en

banc and Supreme Court review.

However, as a separate challenge, he contends that

restitution and a fine are such "integral" parts of a sentence

that, even in a remand limited to correcting the abuse-of-trust

error, they are within the exception carved out in Ticchiarelli for

matters "'made newly relevant by the court of appeals' decision.'"

171 F.3d at 32. In effect, he argues that whenever a court

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resentences a defendant, it must reconsider any related restitution

and fine.

This attempt to avoid the holding in Ticchiarelli is

unavailing in this case. Cruzado contested restitution at his

second sentencing hearing and challenged both restitution and the

fine in his prior appeal. However, as noted above, we deemed those

challenges waived because the claims were inadequately developed.

The need to correct the abuse-of-trust error has not given new

merit to his opposition to those assessments. In this appeal, he

argues that restitution was improper because no victim had a loss

and that the fine was improper because he had no resources to pay

it. These assertions are unrelated to the abuse-of-trust issue and

had no relationship to the issue before the court on remand – the

appropriate length of the sentence under the Guidelines. See,

e.g., United States v. Elizondo, 475 F.3d 692, 697 (5th Cir. 2007)

(holding that a remand for resentencing in light of United States

v. Booker, 543 U.S. 220 (2005), did not re-open the issue of

restitution).

Cruzado also suggests that, given the lower base offense

level resulting from his second appeal, the district court should

have considered imposing lower amounts of restitution and fine.

However, defense counsel acknowledged at the sentencing hearing

that the fine imposed, $10,000, was the lowest point of a range

that went up to $500,000. The restitution order was based on

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specific findings of loss and not on Guidelines sentencing ranges.

Because neither the amount of restitution nor the size of the fine

was "'made newly relevant by the court of appeals' decision,'"

appellant is not entitled to another opportunity to assert these

claims. Ticchiarelli, 171 F.3d at 32 (quoting Whren, 111 F.3d at

960).

The district court therefore properly limited the scope

of the latest sentencing hearing to consideration of the

appropriate sentence within the applicable Guidelines range, and

our review is likewise restricted to issues related to appellant's

term of imprisonment.

B. Double Counting of Failure to Express Remorse

Appellant argues that the district court improperly

considered his lack of remorse in deciding to re-impose a 63-month

term of imprisonment, which had become the high end of the

applicable Guidelines range after the court eliminated the

erroneous two-level enhancement for abuse of trust. At his

previous sentencing, 63 months was the low end of the applicable

range. Appellant contends that using his lack of remorse to

justify a high-end sentence amounted to impermissible double-

counting because his refusal to admit guilt already was taken into

account when he did not receive a decrease in offense level for

acceptance of responsibility under U.S.S.G. § 3E1.1.

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 This contention also is foreclosed by First Circuit

precedent. In United States v. Paz Uribe, 891 F.2d 396, 400 (1st

Cir. 1989), we rejected the appellant's claim that the district

court erred by twice considering his failure to accept

responsibility. The appellant had argued that improper double

counting occurred when the court considered his denial of

responsibility in sentencing him at the top of the applicable

Guidelines range given that the range had been "premised on there

being no acceptance of responsibility." Id. We noted that the

district court has discretion to tailor a sentence to the

individual defendant and the circumstances of his offense, and

concluded that, "in the absence of an acceptance of

responsibility," the court properly selected the high end of the

Guidelines range "[d]ue to the substantial amount of cocaine

involved." Id.

We thus recognized in Paz Uribe that lack of remorse may

permissibly serve two different functions under the Guidelines: to

disqualify a defendant from receiving a reduction in offense level

for acceptance of responsibility and as a factor in determining the

defendant's particular sentence within the Guidelines range. The

district court's ruling here also properly reflected that dual

role. In explaining its choice of a sentence, the district court

described appellant's offense as "serious" and "egregious," noted

that his unlawful activity began "not even a year" after he had

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taken office as mayor, and pointed to his attempt to tamper with

three potential witnesses during the investigation. The court also

observed that, despite opportunities for appellant to express

remorse, "sadly, he has failed to do so." The court concluded its

review of the circumstances as follows:

So where should I sentence the defendant under
these circumstances? I do think if we are
going to consider the seriousness of what
happened in this case and we are going to
consider the state of affairs in this case as
of today, the only thing to do, the only
proper thing to do would be to sentence him at
the same level we sentenced him before, which
is the 63 months.

In other words, the court did not "increase" his sentence based on

lack of remorse, but instead chose the sentence from within the

recommended range that it deemed most suited to the defendant and

his conduct.

The court's consideration of appellant's attitude toward

the crime, as well as the serious nature of the offense, was

appropriate under both the Guidelines and 18 U.S.C. § 3553(a), the

statutory provision governing the imposition of a sentence.

Guidelines § 1B1.4 provides:

In determining the sentence to impose within
the guideline range, or whether a departure
from the guidelines is warranted, the court
may consider, without limitation, any
information concerning the background,
character and conduct of the defendant, unless

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 otherwise prohibited by law. See 18 U.S.C. §
3661.2

Section 3553 states that, "in determining the particular sentence

to be imposed," the court shall consider "the nature and

circumstances of the offense and the history and characteristics of

the defendant." 18 U.S.C. § 3553(a)(1). The statute also directs

the court to consider, inter alia, "the need for the sentence

imposed . . . to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense," id. § 3553(a)(2)(A), and the need "to protect the public

from further crimes of the defendant," id. § 3553(a)(2)(C).

Appellant's refusal to acknowledge that he committed criminal acts

is information that falls well within both of these guiding

provisions, giving relevant insight into his character and raising

concerns about his respect for the law and his future conduct.

Appellant argues that, despite its seeming relevance, his

lack of remorse is "prohibited by law" from being considered, see

U.S.S.G. § 1B1.4, because reliance on his refusal to accept

responsibility violates his constitutional right to maintain his

innocence. We explicitly have rejected an equivalent argument –

that the Guidelines provision allowing a reduction for acceptance

2
Section 3661 provides: "No limitation shall be placed on the
information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an appropriate
sentence."

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of responsibility places the defendant "in the unconstitutional

dilemma of abandoning his right not to incriminate himself or

risking a higher sentence." Paz Uribe, 891 F.2d at 400; see also

United States v. De Jongh, 937 F.2d 1, 5 (1st Cir. 1991). The

constitutional argument is no more persuasive here. "[N]ot every

burden on a right or encouragement to waive a right is invalid,"

Paz Uribe, 891 F.2d at 400, and it is well established that lack of

remorse is a proper consideration in sentencing, United States v.

Johnson, 903 F.2d 1084, 1090 (7th Cir. 1990) (citing cases). See

also United States v. Jahagirdar, 466 F.3d 149, 157 (1st Cir. 2006)

(noting district court's reliance on lack of remorse, among other

factors, in upholding sentence as reasonable); United States v.

Thompson, 476 F.2d 1196, 1091 (7th Cir. 1973) ("A show of lenience

to those who exhibit contrition by admitting guilt does not carry

a corollary that the Judge indulges a policy of penalizing those

who elect to stand trial.").

Accordingly, we find no error in the court's reliance on

lack of remorse among the factors it considered in setting

appellant's sentence at the high end of the applicable Guidelines

range.3

3
We note that the district court originally imposed a 63-month
term of imprisonment at the first of appellant's three sentencing
proceedings. At that time, the term was at the top of the
Guidelines range the district thought applicable. At appellant's
initial resentencing hearing, the government recommended that, even
though 63 months was the low end of the correct range, the court
"in all fairness, should go ahead and give him the minimum range of

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C. Mitigation Testimony

Appellant argues that the district court erred in

restricting his presentation of testimony in mitigation of his

punishment. He sought to present nine witnesses on various issues,

including his innocence and the amount of restitution. Consistent

with its ruling that the single issue before it was the appropriate

term of imprisonment, the court allowed testimony only about

appellant's character.4 Defendant called four witnesses, only two

of whom turned out to know him personally. They testified that

appellant was "a good citizen," that he was "very devoted to the

municipality," that he was, in general, "a good person," and, "if

he made any mistakes or infractions, perhaps it was lack of

orientation." In addition, his attorney submitted the questions he

this guideline which is 63 months." The prosecutor observed that
it would be unfair to impose a higher sentence as a result of his
successful appeal. The court accepted that recommendation, stating
that "it would be a material injustice to a defendant who has done
nothing other than to exercise his constitutional right to an
appeal and trial, . . . to punish him for the fact that he ended up
with a higher guideline." Thus, the record shows that the court
has never viewed appellant as deserving a sentence at the low end
of the applicable Guidelines range, having imposed a low-end
sentence in the second sentencing hearing as a matter of fairness.
Thus, the court's latest determination that the appropriate
sentence is 63 months – which once again falls at the high end of
the applicable range – does not indicate either a new or improper
escalation in the court's perception of appellant's culpability or
the appropriate penalty.
4
Appellant argues that the amount of loss suffered by the
victims was relevant to the determination of his sentence, as well
as to restitution. However, testimony about loss at the sentencing
hearing was unnecessary given that the court already had made a
finding on loss in connection with the restitution order.

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had wanted to ask all nine witnesses as well as the outline of the

argument he intended to make if he had been allowed to fully

question the proposed witnesses. The court thus had ample insight

into defendant's concerns. Cruzado also gave a lengthy allocution

in which he asserted that the case against him was fabricated by

the government. In support of his statement, the court allowed him

to submit an audit report from the municipality.

In claiming that the court's limitations on witness

testimony violated his right to allocution under Fed. R. Crim. P.

32, appellant primarily relies on inapposite case law concerning

the rights of defendants in death penalty cases. Federal Rule of

Civil Procedure 32 does not give defendants the right to call

witnesses in their behalf at sentencing. The rule only requires

the court to allow the defendant and his attorney to speak. Fed.

R. Crim. P. 32(i)(4)(A)(i), (ii);5 see United States v. Rodriguez,

336 F.3d 67, 70 (1st Cir. 2003) ("It is a familiar rule that a

criminal defendant, about to be sentenced, is not entitled to an

evidentiary hearing on demand."); United States v. Heller, 797 F.2d

5
Rule 32(i)(4) states, in relevant part:
(A) By a Party. Before imposing sentence, the court
must:
(i) provide the defendant's attorney an
opportunity to speak on the defendant's
behalf;
(ii) address the defendant personally in order
to permit the defendant to speak or present
any information to mitigate the sentence
. . . .

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41, 43 (1st Cir. 1986) ("Although the defendant must be given the

chance to inform the court of any mitigating circumstances, he does

not have the right to have others testify for him at a

sentencing."). In the context of this case, the district court was

more than generous in giving appellant an opportunity to comment on

the appropriate sentence through witness testimony, his own

statement, counsel's argument, and the supporting documents. He

was entitled to no more.

D. Judicial Bias

Appellant claims that he was denied due process at his

resentencing hearing because the district judge was biased against

him and should have disqualified himself. In support of this

claim, appellant primarily relies on the district court's refusal

to grant him bail pending the resentencing hearing, which was

scheduled to occur after appellant already had been incarcerated

for more than 51 months – the low point of the applicable

Guidelines range. Appellant asserts that the denial of bail "could

mean only one thing – [the judge] already knew that he would impose

a sentence above the time already served. Hence he was clearly

biased." Appellant also cites the district court's rulings on the

scope of the appeal, the presentation of mitigation evidence, and

the appropriateness of considering his lack of acceptance of

responsibility. In addition, he refers in a footnote to

disciplinary proceedings against his counsel that were processed by

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the district judge in this case in his role as Chief Judge of the

District, but that were initiated by two other judges.

These complaints do not remotely establish a due process

violation. Recusal is required only when a judge's "impartiality

might reasonably be questioned," 28 U.S.C. § 455(a), and judges

should not "recuse themselves lightly," United States v. Snyder,

235 F.3d 42, 45 (1st Cir. 2000). See also id. at 46 ("[A] judge

has a duty to recuse himself if his impartiality can reasonably be

questioned; but otherwise, he has a duty to sit."). The court's

denial of bail pending the hearing is an insufficient indicator of

bias, given that the sentencing range went up to 63 months and a

higher non-Guidelines sentence could have been imposed. The court

was familiar with the case, having presided over the trial and

twice previously sentenced appellant; it reasonably could have

anticipated that appellant's new sentence would not be at the

bottom of the range. See In re United States, 441 F.3d 44, 67 (1st

Cir. 2006) (noting "the principle that a judge's rulings and

statements in the course of proceedings before him or her rarely

provide a basis for recusal under § 455(a)").

Moreover, the court did not ignore the timing issue. It

ordered appellant's expedited transfer to Puerto Rico so that the

hearing could take place as soon as possible. In addition, as

described above, the judge did not have a closed mind about the

term of imprisonment and stated that he would have considered a

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lower sentence if appellant had expressed remorse. Finally, the

fact that disciplinary complaints were filed by other judges

against defense counsel is insufficient to taint a sentencing

hearing that was, as we have discussed, properly conducted. Cf.

United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006)

(holding that judge's own referral of counsel for disciplinary

review was not a basis for questioning judge's impartiality); In re

Cooper, 821 F.2d 833, 838 (1st Cir. 1987) (per curiam) ("Generally,

clashes between court and counsel are an insufficient basis for

disqualification . . . ."). We therefore reject appellant's

contention that judicial bias caused a denial of his due process

rights.

Affirmed.

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