United States v. Garcia-Robles

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0116p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1980
v.
,
>
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Defendant-Appellant. -
JULIO C. GARCIA-ROBLES,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-20165-001—Lawrence P. Zatkoff, District Judge.
Argued: December 8, 2010
Decided and Filed: May 10, 2011
Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*

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COUNSEL
ARGUED: Todd A. Shanker, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellant. Michael R. Mueller, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee. ON BRIEF: Todd A. Shanker, Rafael C. Villarruel,
FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. Michael R.
Mueller, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee.
_________________

OPINION
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GRIFFIN, Circuit Judge. This is defendant Julio C. Garcia-Robles’s second
sentencing appeal. In our prior opinion, we vacated Garcia-Robles’s sentence as

*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 09-1980 United States v. Garcia-Robles Page 2

procedurally unreasonable and remanded for resentencing in a general remand order.
However, on remand, over defendant’s objections, the district court resentenced
defendant to the same sentence without holding a resentencing hearing. In this appeal,
Garcia-Robles claims that his resentencing was procedurally unreasonable because he
was denied his right to be present and allocute. We agree and hold that upon a general
remand for resentencing, a defendant has a right to a plenary resentencing hearing at
which he may be present and allocute. We further hold that when a plenary resentencing
hearing is held, the district court is required to state its reasons for the sentence “in open
court.”

I.

In an April 2009 opinion, we summarized the relevant background facts as
follows:

Garcia-Robles is a Mexican national. In 1997, Garcia-Robles was
arrested in Utah with four grams of cocaine and pleaded guilty in state
court to attempted possession with intent to distribute a controlled
substance in the third degree and to providing false personal information
to a police officer. He received a five-year suspended sentence for the
first crime and was sentenced to 30 days in jail and 36 months of
probation for the second. On December 4, 1997, Garcia-Robles was
deported to Mexico. Following this deportation, Garcia-Robles illegally
reentered the United States and was arrested in Utah again in 1999.
Police stopped Garcia-Robles’s car because it did not have a front license
plate and found that he was driving under the influence and had three
firearms in his vehicle. Garcia-Robles pleaded guilty in state court to
purchase and possession of a dangerous weapon and to driving under the
influence and was sentenced to 90 days in jail with 60 days suspended.
After he served his state sentence, Garcia-Robles was charged in federal
court with reentry of a deported alien. Garcia-Robles pleaded guilty and
was sentenced to 46 months of incarceration and 36 months of supervised
release. On September 18, 2002, Garcia-Robles was removed to Mexico.
***
On March 8, 2007, law-enforcement officers stopped Garcia-Robles’s car
because it had expired license plate tabs. Garcia-Robles gave officers his
name and told them that he was not present in the United States legally.
Immigrations and Customs Enforcement identified Garcia-Robles and
learned that he had been deported twice. Garcia-Robles was charged with
No. 09-1980 United States v. Garcia-Robles Page 3

and pleaded guilty to unlawful reentry after deportation after an
aggravated felony in violation of 8 U.S.C. § 1326.
Before Garcia-Robles was sentenced, the government prepared a
Presentence Report (“PSR”) that indicated a sentencing range of 30 to 37
months of imprisonment based on a total offense level of 17 and a
criminal history category of III. Garcia-Robles did not object to anything
contained in the PSR. At sentencing, Garcia-Robles’s counsel detailed
the difficult life that Garcia-Robles had led and asked the district court
to grant him a variance and to sentence him to 24 months of
imprisonment. The government asked the district court to sentence
Garcia-Robles within the 30-37 month guidelines range.
After hearing argument from the parties, the district court announced a
sentence of 96 months of incarceration - 59 months longer than the
guidelines maximum. . . . After imposing sentence on September 18,
2007, the district court informed the parties’ counsel that it would issue
a written opinion, and “if they disagree with any of the findings or
conclusions contained in the Opinion, [they] may file objections to that
Opinion within five days of today.” The day after the sentencing
hearing, on September 19, 2007, the district court issued a written
sentencing opinion.
***
After the September 19 opinion was filed, Garcia-Robles timely objected
to the district court’s sentence on September 26, 2007, and he filed his
notice of appeal on September 28, 2007. Garcia-Robles objected on the
grounds that the sentence was unduly severe and could not have taken the
18 U.S.C. § 3553(a) factors into account and to the fact that the district
court imposed this significant variance without alerting the parties to its
intent to do so. Additionally, Garcia-Robles explained that the district
court had relied on unreliable facts and had taken other information from
the PSR out of context. On October 3, 2007, although the district court
found Garcia-Robles’s objections to be timely, nonetheless the district
court overruled these objections in a single paragraph opinion that
summarized the case and concluded that “[t]he Court has reviewed and
considered [Garcia-Robles’s] objections but adheres to the sentence of
96 months imposed on September 18, 2007.”

United States v. Garcia-Robles, 562 F.3d 763, 764-66 (6th Cir. 2009) (internal citations
omitted).

In the prior appeal, we held that Garcia-Robles’s sentence was procedurally
unreasonable. Specifically, we ruled that the district court lacked jurisdiction to decide
No. 09-1980 United States v. Garcia-Robles Page 4

Garcia-Robles’s objections to his sentence because the judgment was entered and the
claim of appeal filed:

Given the sequence of events in this case, Garcia-Robles was never
afforded an opportunity meaningfully to respond to the district court’s
decision to impose an upward variance. The district court chose to issue
a written sentencing opinion and to permit Garcia-Robles to object to his
sentence after that opinion issued rather than to permit oral objections
during the sentencing hearing. However, the district court failed actually
to provide that opportunity when it entered judgment before
Garcia-Robles’s time to object had elapsed and when it failed to respond
to Garcia-Robles’s objections until after its jurisdiction was divested by
Garcia-Robles’s notice of appeal. . . . Because the district court had no
jurisdiction to alter Garcia-Robles’s sentence at the time it heard his
objections to a greatly increased sentence, the district court failed to
provide Garcia-Robles with an opportunity meaningfully to address the
upward variance in his sentence.

Id. at 768. Accordingly, we vacated Garcia-Robles’s sentence and remanded for
resentencing.

Upon remand, the district court issued an “Order Regarding Remand,” directing
the parties to submit updated objections to the September 19, 2007, sentencing opinion.
Garcia-Robles filed several objections on May 15, 2009, one objection being that he was
entitled to a resentencing hearing. The United States filed no objections.

On July 17, 2009, the district court issued an opinion sentencing Garcia-Robles
to the same 96-month term of imprisonment. The court noted that it was unaware of any
authority granting Garcia-Robles the right to a hearing upon remand for resentencing.
This timely appeal followed.

II.

We review a district court’s sentencing decision for reasonableness, United
States v. Bates, 552 F.3d 472, 476 (6th Cir.), cert. denied, 130 S. Ct. 166 (2009), which
has both procedural and substantive components. United States v. Sedore, 512 F.3d 819,
822 (6th Cir. 2008). The court “must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating) the
No. 09-1980 United States v. Garcia-Robles Page 5

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence[.]” Gall v. United States, 552 U.S. 38, 51 (2007). If the
sentence is procedurally sound, the court then considers the substantive reasonableness
of the sentence under an abuse-of-discretion standard. Id.

Garcia-Robles’s main contention on appeal is that his sentence is procedurally
unreasonable because the district court failed to conduct a resentencing hearing.
According to Garcia-Robles, this failure: (1) denied him his right to be present in
violation of the Confrontation Clause, the Due Process Clause, and Rule 43 of the
Federal Rules of Criminal Procedure; (2) denied him his right to allocute in violation of
the Due Process Clause and Rule 32 of the Federal Rules of Criminal Procedure;
(3) violated 18 U.S.C. § 3553(c), which requires a sentencing court to state the reasoning
underlying a sentence “in open court”; and (4) violated the terms of this court’s mandate.

III.

It is beyond peradventure that a defendant has a right to be present and allocute
at his sentencing, and that the reasons underlying the sentence must be stated “in open
court.” Fed. R. Crim. P. 32, 43; 18 U.S.C. § 3553(c). Rule 32(i)(4) provides that
“[b]efore imposing sentence, the court must . . . address the defendant personally in
order to permit the defendant to speak or present any information to mitigate the
sentence[.]” Rule 43(a) provides that “the defendant must be present at . . . sentencing.”
Finally, § 3553(c) provides that “[t]he court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular sentence.” (emphasis added).

Every circuit court to address the issue has held that when resentencing is
directed pursuant to a general remand order, a defendant is entitled to be present and/or
allocute. Such holdings rely upon the Federal Rules of Criminal Procedure, although
some are constitutionally based. See United States v. DeMott, 513 F.3d 55, 58 (2d Cir.
2008) (defendant has constitutional right to be present at resentencing); United States
v. Muhammad, 478 F.3d 247, 249-50 (4th Cir. 2007) (defendant has right to allocute
upon resentencing under Rule 32); United States v. Faulks, 201 F.3d 208, 212 (3d Cir.
No. 09-1980 United States v. Garcia-Robles Page 6

2000) (defendant has right to be present at resentencing under Rule 43); United States
v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991) (noting that the right to be present is
constitutionally based and “extends to the imposition of a new sentencing package after
an original sentencing package is vacated in its entirety on appeal”); United States v.
Moree, 928 F.2d 654, 656 (5th Cir. 1991) (defendant has right to be present and allocute
at resentencing under Rules 32 and 43); United States v. Smith, 930 F.2d 1450, 1456
(10th Cir. 1991) (citing Rule 32 and holding that a “defendant is accorded the same
procedural rights on resentencing as on the initial sentencing”); Rust v. United States,
725 F.2d 1153, 1154 (8th Cir. 1984) (“[A] defendant must be present [pursuant to Rule
43] only where . . . the entire sentence is set aside and the cause remanded for
resentencing.”).

We agree with our sister circuits and hold that upon general remand, when a
sentence has been vacated on direct appeal, the defendant is entitled to a resentencing
hearing where he may exercise the right to be present and allocute as provided by Rules
32 and 43 of the Federal Rules of Criminal Procedure. We further hold that when a
plenary resentencing hearing is held, § 3553(c) requires the district court to state “in
open court” the reasons underlying the imposed sentence.

Rule 43 of the Federal Rules of Criminal Procedure affords the defendant the
opportunity to “be present at every stage of the trial including the imposition of
sentence.” United States v. Behrens, 375 U.S. 162, 165 (1963) (internal quotation marks
and formatting omitted). “[T]he notion that the sentencing court must ‘eyeball’ the
defendant at the instant it exercises its most important judicial responsibility . . . is far
from a formality.” Faulks, 201 F.3d at 209. Indeed, this requirement “is a fundamental
procedural guarantee that places the defendant before the judge at a culminating moment
of the criminal judicial process.” Id. at 211.

The issue of whether a defendant has the right under Rule 43 to be present at
resentencing after his sentence is vacated on direct appeal has not been previously
addressed by this court. However, we have specified that Rule 43 provides a “general
requirement that a defendant must be present upon the imposition of sentence” unless
No. 09-1980 United States v. Garcia-Robles Page 7

one of its enumerated exceptions applies.1 United States v. Waters, 158 F.3d 933, 942-
43 (6th Cir. 1998). Because resentencing upon remand is not an exception to the
presence requirement, the right to be present is mandated here. Moreover, the plain
language of Rule 43 requires the defendant’s presence “at . . . sentencing.”2 This
generalized directive does not distinguish between a defendant’s initial sentencing and
a resentencing upon direct appeal.

“Rule 32(a) requires a district judge before imposing sentence to afford every
convicted defendant an opportunity personally to speak in his own behalf.” Hill v.
United States, 368 U.S. 424, 426 (1962). The right of a defendant to allocute is of the
utmost importance, as “[t]he most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for himself.” United
States v. Green, 365 U.S. 301, 304 (1961). This right “is not an empty formality.”
United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996) (abrogated on other
grounds). Its purpose is “to temper punishment with mercy in appropriate cases, and to
ensure that sentencing reflects individualized circumstances.” Id. (internal quotation
marks and citation omitted). Additionally, the right to allocute “has value in terms of
maximizing the perceived equity of the process.” United States v. Barnes, 948 F.2d 325,
328 (7th Cir. 1991) (internal quotation marks and citation omitted).

We hold that a defendant possesses the right to be present and allocute upon a
general remand when his original sentence is vacated on direct appeal. Indeed, the
Supreme Court has noted that the right to allocute “is of most importance” at the hearing

1
Rule 43(b) provides that a defendant need not be present under the following circumstances:
(1) Organizational Defendant. The defendant is an organization represented by counsel
who is present. (2) Misdemeanor Offense. The offense is punishable by fine or by
imprisonment for not more than one year, or both, and with the defendant’s written
consent, the court permits arraignment, plea, trial, and sentencing to occur in the
defendant’s absence. (3) Conference or Hearing on a Legal Question. The proceeding
involves only a conference or hearing on a question of law. (4) Sentence Correction.
The proceeding involves the correction or reduction of sentence under Rule 35 or
18 U.S.C. § 3582(c).
2
This right, like all others, may be waived. See United States v. Calderon, 388 F.3d 197, 199 (6th
Cir. 2004) (“It is well settled that a defendant in a criminal case may waive any right, even a constitutional
right[.]”) (internal quotation marks and citation omitted); United States v. Evans, 459 F.2d 1134, 1136
(D.C. Cir. 1972) (noting that the allocution right may be waived).
No. 09-1980 United States v. Garcia-Robles Page 8

where the district court’s “final words are spoken and the defendant’s punishment is
fixed.” Behrens, 375 U.S. at 165 (emphases added). When a defendant’s sentence is
vacated, allocution is permitted upon resentencing because the defendant’s sentence is
neither final, nor fixed. See Barnes, 948 F.2d at 329 (“[T]he opportunity to address the
court at a subsequent hearing arises precisely because the scope of punishment is not
preordained.”). Accordingly, the right to allocute at this time, despite a defendant’s
previous opportunity to allocute, is essential. See Moree, 928 F.2d at 656 (internal
quotation marks and citation omitted) (“Even if he has spoken earlier, a defendant has
no assurance that when the time comes for final sentence the district judge will
remember the defendant’s words in his absence and give them due weight. Moreover,
only at the final sentencing can the defendant respond to a definitive decision of the
judge.”).

IV.

There is only one published opinion by this court addressing the right to allocute
when a sentence is vacated on direct appeal. In United States v. Jeross, we held that
“Rule 32 requires allocution only before a court imposes the original sentence on a
defendant, and does not require allocution at resentencing.” 521 F.3d 562, 585 (6th Cir.
2008). However, in so holding, we noted that the resentencing at issue followed a
limited remand. Id. at 585-86.

The distinction between a limited and general remand is important. “A general
remand allows the district court to resentence the defendant de novo, which means that
the district court may redo the entire sentencing process, including considering new
evidence and issues. Conversely, a limited remand constrains the district court’s
resentencing authority to the issue or issues remanded.” United States v. Moore, 131
F.3d 595, 597-98 (6th Cir. 1997) (internal citations omitted). “[A]bsent explicit
limitations in the appellate court’s mandate, an order vacating a sentence and remanding
the case for resentencing directs the sentencing court to begin anew, so that fully de novo
resentencing is entirely appropriate[.]” United States v. Moored, 38 F.3d 1419, 1422
(6th Cir. 1994) (internal quotation marks and citation omitted, emphasis added).
No. 09-1980 United States v. Garcia-Robles Page 9

Accordingly, when no express limitations are given, a remand is presumed to be general.
Moore, 131 F.3d at 598.

Upon limited remand, the district court in Jeross was not required to “begin
anew,” and thus could rely upon the procedural rights provided to the defendants prior
to remand. See United States v. Ramsdale, 179 F.3d 1320, 1324 (11th Cir. 1999) (noting
that upon limited remand, when the issues under consideration are restricted, the
defendant does not have a right to allocute under Rule 32). Here, unlike in Jeross, the
remand was general as it contained no express limitation,3 thereby requiring the district
court to conduct resentencing de novo.4 Accordingly, the district court was required to
provide Garcia-Robles the right to be present and allocute. See United States v.
Jennings, 83 F.3d 145, 151 (6th Cir. 1996) (holding that sentencing upon general remand
“is to be de novo,” requiring the district court to consider new objections to the
presentence report).5

V.

Next, Garcia-Robles asserts that the district court violated § 3553(c) when it
failed to explain the reasons underlying his sentence “in open court.” Indeed, the Second
Circuit has held that upon resentencing, the reasons supporting the sentence must be
pronounced by the district court from the bench. See DeMott, 513 F.3d at 58 (holding

3
The remand order reads as follows: “Accordingly, we VACATE Garcia-Robles’s sentence as
procedurally unreasonable and REMAND for resentencing.” Garcia-Robles, 562 F.3d at 768. The
judgment provides: “it is ORDERED that the sentence imposed on defendant Julio Cesar Garcia-Robles
is VACATED as procedurally unreasonable and the case is REMANDED for resentencing.”
4
The interpretation of a mandate is a legal issue reviewed de novo. Moore, 131 F.3d at 598.
5
Jeross is also distinguishable because, unlike Garcia-Robles, the Jeross defendants did not
affirmatively request allocution. 521 F.3d at 585. Such a request is significant. In Hill v. United States,
the Supreme Court held that “[t]he failure of a trial court to ask a defendant represented by an attorney
whether he has anything to say before sentence is imposed is not of itself an error of the character or
magnitude cognizable under a writ of habeas corpus.” 368 U.S. at 428. However, in so holding, the Court
noted that it was not confronted “with a case where the defendant was affirmatively denied an opportunity
to speak during the hearing at which his sentence was imposed.” Id. at 429. Accordingly, the Supreme
Court intimated that the request to allocute is to be treated differently than the mere failure to invite a
defendant to speak, a difference which may have constitutional significance. Indeed, other circuits have
held that when allocution is requested and thereafter denied, such a denial violates the Due Process Clause.
See Boardman v. Estelle, 957 F.2d 1523, 1528-30 (9th Cir. 1992); Ashe v. North Carolina, 586 F.2d 334,
336 (4th Cir. 1978).
No. 09-1980 United States v. Garcia-Robles Page 10

that upon resentencing, providing only a written opinion violates the “open court”
requirement of § 3553(c)). We agree and hold that upon general remand, after a
sentence is vacated on direct appeal, the district court must state the reasons underlying
its sentence “in open court.”

Compliance with § 3553(c) “is important not only for the defendant, but also for
the public to learn why the defendant received a particular sentence.” United States v.
Blackie, 548 F.3d 395, 403 (6th Cir. 2008) (internal quotation marks and citation
omitted). The “open court” requirement “‘ensures that a defendant at the time of
sentencing will know the grounds for an upward departure’ and is not satisfied by a
‘belated attempt . . . to correct [a] failure to provide a specific statement at the sentencing
hearing’ in a subsequently issued opinion.” United States v. Dawe, 362 F. App’x 436,
439 (6th Cir. 2010) (unpublished) (quoting United States v. Kincaid, 959 F.2d 54, 55
(6th Cir. 1992)); see also United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990)
(noting that the “in open court” requirement is essential to a defendant’s “decision on
whether or not to appeal his sentence”).

Logic dictates, if a resentencing hearing is mandatory upon a general remand
following direct appeal, such a hearing must comply with the procedural demands of
§ 3553(c). While this court has not previously addressed whether the “open court”
requirement is compulsory upon resentencing in any context, we have held that it is plain
error not to announce in “open court” the reasoning underlying an initial sentence.
United States v. Grams, 566 F.3d 683, 685-86 (6th Cir. 2009). Accordingly, we hold that
such a statement is required upon resentencing as well.

VI.

This leaves us with the question of the appropriate remedy in this case. Reversal
is not required if the errors at issue are harmless. See United States v. Hasting, 461 U.S.
499, 509 (1983) (“[It is] the duty of a reviewing court to consider the trial record as a
whole and to ignore errors that are harmless[.]”). However, while prejudice is not
presumed, see United States v. Mosley, 635 F.3d 859, 865 (6th Cir. 2011), it is the
No. 09-1980 United States v. Garcia-Robles Page 11

government that bears the burden of proving that the defendant was not prejudiced,
United States v. Gibbs, 182 F.3d 408, 437 (6th Cir. 1999).

Here, the government has failed to meaningfully assess the question of
harmlessness. Indeed, the government addresses this issue with a single sentence in its
brief, stating that “[e]rror is harmless if it is not clear beyond a reasonable doubt that the
outcome would have been different absent the error in question, even where
constitutional rights are in play.” This conclusory statement, which does not analyze the
facts presented in this case, is insufficient to demonstrate a lack of prejudicial error.

Given the government’s failure to adequately address the issue of prejudice, we
cannot hold the district court’s errors to be harmless. Garcia-Robles has yet to have the
opportunity to allocute regarding the district court’s penchant to impose an upward
variance, the very issue which required reversal by this court in 2009. Indeed, Garcia-
Robles expressly requested the opportunity to be present and speak at a resentencing
hearing, but this request was denied. In United States v. Mosley, we held that the failure
to invite a defendant to allocute at resentencing was harmless error. 635 F.3d at 865-66.
However, the defendant in Mosley, unlike Garcia-Robles, did not request an opportunity
to speak. Id. As provided above, the Supreme Court has noted that the affirmative
request to speak is an important distinction in the allocution context. Hill, 368 U.S. at
429.

While it appears that the district court believes an upward variance to be
appropriate in this case, we will not assume that the court could not be persuaded by the
words carefully chosen and presented by Garcia-Robles. See Green, 365 U.S. at 304
(“The most persuasive counsel may not be able to speak for a defendant as the defendant
might, with halting eloquence, speak for himself.”). Accordingly, we hold that a reversal
and remand for resentencing is required.
No. 09-1980 United States v. Garcia-Robles Page 12

VII.

Finally, Garcia-Robles requests that this matter be reassigned to a new district
court judge for resentencing upon remand.

[T]he principal factors considered . . . in determining whether further
proceedings should be conducted before a different judge are 1) whether
the original judge would reasonably be expected . . . to have substantial
difficulty in putting out of his mind previously-expressed views or
findings . . . 2) whether reassignment is advisable to preserve the
appearance of justice, and 3) whether reassignment would entail waste
and duplication out of proportion to any gain in preserving the
appearance of fairness.

Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir. 1980) (internal quotation marks and
citation omitted). Here, such reassignment is unnecessary as there is no evidence in the
record indicating that the district judge will have difficulty conducting de novo
sentencing procedures. Accordingly, “we are satisfied that [the judge] will re-visit the
matter with a completely open mind at the de novo resentencing that must now take
place[.]” Faulks, 201 F.3d at 209.

VIII.

In conclusion, we hold that upon a general remand for resentencing the defendant
has a right to a plenary resentencing hearing at which he may exercise his right to be
present and allocute. When a resentencing hearing is held, § 3553(c) requires the
district court to state its reasons for the sentence “in open court.” Accordingly, we
VACATE Garcia-Robles’s sentence as procedurally unreasonable and REMAND for a
resentencing hearing in accordance with this opinion.6

6
Because the district court’s failure to provide a resentencing hearing requires remand, we do not
address Garcia-Robles’s alternative claims of error.