United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1366
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Dino Lomeli, *
*
Appellant. *
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Submitted: November 18, 2009
Filed: February 25, 2010
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Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
In 2004, Dino Lomeli, a citizen of Mexico, was arrested in Mexico and
extradited to the United States to stand trial for murder in Texas state court and
conspiracy in the Northern District of Iowa. After pleading guilty to the Texas murder
charge, Lomeli pled guilty to conspiracy to launder money and conspiracy to
distribute 100 kilograms or more of marijuana and 500 grams or more of cocaine. The
district court1 sentenced Lomeli to 235 months imprisonment, to run consecutively to
his Texas sentence. We affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I.
Lomeli was charged with the 1997 murder of Amy McKeever in Texas state
court. Additionally, Lomeli was charged in federal court with conspiring to transport
marijuana and cocaine from Corpus Christi, Texas, to Cedar Rapids, Iowa, from 1994
to 1996. Lomeli used his auto repair shop in Corpus Christi, Texas, to load
automobiles with marijuana, which would then be driven to Cedar Rapids, Iowa, for
distribution. Drug proceeds would then be sent back to Lomeli via Western Union,
couriers, and U.S. Postal Service money orders.
Before he could be arrested for the murder of McKeever or for the instant
conspiracy charges, Lomeli fled to Mexico. He remained in Mexico until 2004, when
he was arrested and extradited to the United States pursuant to the extradition treaty
between the United States and Mexico. See Extradition Treaty between the United
States of America and the United Mexican States, May 4, 1978, 31 U.S.T. 5059 (“the
U.S.-Mexico Extradition Treaty” or “the treaty”).
Lomeli pled guilty to the Texas murder charge and was sentenced to 30 years
imprisonment. While serving this sentence, Lomeli was arrested and transported to
the Northern District of Iowa for trial on the instant conspiracy offenses. In April
2008, Lomeli pled guilty to conspiracy to commit money laundering in violation of
18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h), and conspiracy to distribute more
than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii),
and 846.
Lomeli’s Presentence Investigation Report (PSR) found him to have a base
offense level of 30, coupled with a four-level increase for role in the offense and a
three-level reduction for acceptance of responsibility. This left Lomeli with an
adjusted offense level of 31. Lomeli had a Category VI criminal history due to his
Texas murder conviction as well as previous convictions for possession with intent
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to distribute marijuana, possession of drug proceeds, driving while intoxicated,
criminal mischief, causing bodily injury, and reckless driving.
Lomeli’s advisory Guidelines sentencing range was 188-235 months
imprisonment. At the sentencing hearing, the district court sentenced Lomeli to 235
months imprisonment on each count, to run concurrently with each other but
consecutively to the undischarged portion of his 30-year Texas murder sentence. In
sentencing Lomeli, the district court rejected the argument that it was violating the
U.S.-Mexico Extradition Treaty by considering Lomeli’s criminal history in
determining his sentence. The district court also provided an alternative sentence:
If the computation of the criminal history under the advisory guidelines
is found to violate the Treaty of Extradition with Mexico, the Court
would still impose the very same sentence after considering the statutory
factors at 18 USC 3553(a), and for the same reasons that I have
previously stated: Drug quantity, criminal history, his leadership role, the
fact that this is his second conviction involving drug distribution, and the
fact that I find that he is a dangerous and threatening person. So that’s
my alternate sentence. Both sentences, the one I’m going to impose
today and the alternate sentence, are going to be at the top of the range.
(Sent. Hr’g Tr. 21:24-22:12.)
II.
Lomeli appeals his sentence, arguing (1) that the doctrine of specialty contained
in the U.S.-Mexico Extradition Treaty prohibits the court from taking into account his
prior criminal history when sentencing him for the instant offenses, and (2) that the
court erred in sentencing him to 235 months imprisonment on each count, and in
ordering that these sentences be served consecutively to the undischarged portion of
his 30-year Texas murder sentence. We address these issues in turn.
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A.
We review questions of treaty interpretation and application de novo. See
Smythe v. U.S. Parole Comm’n, 312 F.3d 383, 385 (8th Cir. 2002) (per curiam); see
also Silverman v. Silverman, 338 F.3d 886, 904 (8th Cir. 2003) (en banc) (Heaney,
J., dissenting) (“[T]he interpretation and application of treaty language is reviewed de
novo . . . .”). When interpreting a treaty, “[t]he clear import of treaty language
controls unless ‘application of the words of the treaty according to their obvious
meaning effects a result inconsistent with the intent or expectations of its
signatories.’” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982)
(quoting Maximov v. United States, 373 U.S. 49, 54 (1963)). This circuit has held
that extradited individuals such as Lomeli have standing to raise any objection that the
surrendering country might have raised to their prosecution. See Leighnor v. Turner,
884 F.2d 385, 388 (8th Cir. 1989) (citing United States v. Thirion, 813 F.2d 146, 151
(8th Cir. 1987).
Article 17 of the U.S.-Mexico Extradition Treaty states, in relevant part:
1.- A person extradited under the present Treaty shall not be detained,
tried or punished in the territory of the requesting Party for an offense
other than that for which extradition has been granted nor be extradited
by that Party to a third State unless:
a) He has left the territory of the requesting Party after his
extradition and has voluntarily returned to it;
b) He has not left the territory of the requesting Party within 60
days after being free to do so; or
c) The requested Party has given its consent to his detention, trial,
punishment or extradition to a third State for an offense other than
that for which the extradition was granted.
U.S.-Mexico Extradition Treaty, supra, 31 U.S.T. at 5071 (emphasis added). Article
17 is an explicit recitation of a general rule of extradition known as the doctrine of
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specialty.2 In general, the doctrine of specialty provides that “a defendant may be
tried only for the offense for which he was delivered up by the asylum country.”
Thirion, 813 F.2d at 151. The doctrine dates back to the mid-1800s, but was first
adopted by the Supreme Court in 1886. See Jacques Semmelman, The Doctrine of
Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 34 Va.
J. Int’l L. 71, 75, 80-85 (1993). In United States v. Rauscher, the Court held:
the weight of authority and of sound principle are in favor of the
proposition that a person who has been brought within the jurisdiction
of the court, by virtue of proceedings under an extradition treaty, can
only be tried for one of the offenses described in that treaty, and for the
offense with which he is charged in the proceedings for his extradition,
until a reasonable time and opportunity have been given him, after his
release or trial upon such charge, to return to the country from whose
asylum he had been forcibly taken under those proceedings.
119 U.S. 407, 430 (1886). The doctrine is now commonly included in many U.S.
extradition treaties. See Semmelman, supra, at 76 (“All extradition treaties entered
into by the United States since Rauscher have contained a specialty clause.”); see also
Restatement (Third) of the Foreign Relations Law of the United States § 477 (1987)
(stating that the doctrine is included “[u]nder most international agreements, state
laws, and state practice”). It “is based on principles of international comity and is
designed to guarantee the surrendering nation that the extradited individual will not
be subject to indiscriminate prosecution by the receiving government.” Turner, 884
F.2d at 389 (citing Thirion, 813 F.2d at 151, 153); see also United States v.
2
The phrases “doctrine of specialty” and “doctrine of speciality” are used
interchangeably, see Jacques Semmelman, The Doctrine of Specialty in the Federal
Courts: Making Sense of United States v. Rauscher, 34 Va. J. Int’l L. 71, 71 n.1
(1993), although “doctrine of specialty” is much more common. See, e.g.,
Restatement (Third) of the Foreign Relations Law of the United States § 477 (1987).
Although Article 17 of the U.S.-Mexico Extradition Treaty is entitled the “Rule of
Speciality,” for consistency we shall refer to the “doctrine of specialty.”
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Lazarevich, 147 F.3d 1061, 1063 (9th Cir. 1998) (“The doctrine of specialty embodies
the principle of international comity: to protect its own citizens in prosecutions
abroad, the United States guarantees that it will honor limitations placed on
prosecutions in the United States.” (quotation omitted)).
Lomeli argues that the district court’s use of his past criminal history in
determining his sentence constitutes a “punish[ment] . . . for an offense other than that
for which extradition has been granted,” U.S.-Mexico Extradition Treaty, supra, 31
U.S.T. at 5071, and is thus a violation of the doctrine of specialty. Lomeli also cites
portions of his extradition paperwork filed by the Mexican government, which
provide:
Section 10, Subparagraph II of the International Extradition Law
demands the requesting country’s commitments that crimes committed
prior to the extradition, omitted in the complaint as well as crimes not
connected with the one specified in such complaint, shall not be subject
to the process, not even as aggravating circumstances, unless the
Defendant consents freely to be judged for such . . . . This commitment
is set forth in Section 17 of the Extradition Treaty between the United
States of Mexico and the United States of America . . . .
(Appellant’s Br. Add. 31 (emphasis added).) According to Lomeli, “[t]here could be
no clearer example of the use of a prior criminal record as an aggravating
circumstance then computing a sentence on the United States Sentencing Guidelines.”
(Appellant’s Br. 9.)
However, Lomeli’s arguments run contrary to clearly established law in this
circuit and others. We have previously held that the doctrine of specialty was not
violated when a sentencing court took into account uncharged conduct when
increasing a defendant’s parole guideline. See Turner, 884 F.2d at 388, 390. There,
we rejected the argument “that the rule of specialty . . . was intended to preclude the
receiving government from taking any pre-extradition conduct into account when
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making parole decisions.” Id. Instead, we held that “the doctrine is generally
understood to prohibit indiscriminate prosecution of extradited individuals rather than
to prohibit the receiving state’s consideration of pre-extradition offenses while
prosecuting the individual for crimes for which extradition was granted.” Id.
We faced an analogous situation in Thirion, 813 F.2d 146. There, a defendant
was extradited from Monaco to face various criminal charges, not including
conspiracy. Id. at 150 & n.4. The jury was instructed that it could find the defendant
guilty of the substantive offenses based on a theory of coconspirator vicarious
liability. Id. at 151. We upheld the conviction and rejected the defendant’s argument
that the rule of specialty barred the instruction regarding coconspirator vicarious
liability, noting that because the defendant was not charged with conspiracy he “was
tried only for those crimes for which he was extradited.” Id. at 153. We also agreed
with the Second Circuit that:
It is clear . . . that even as the speciality doctrine has been defined and
broadened in this century, it has never been construed to permit foreign
intrusion into the evidentiary or procedural rules of the requisitioning
state, as distinguished from limiting the jurisdiction of domestic courts
to try or punish the fugitive for any crimes committed before the
extradition, except the crimes for which he was extradited.
Id. (quoting United States v. Flores, 538 F.2d 939, 944 (2d Cir. 1976)) (additional
quotation omitted); see also United States v. Garcia, 208 F.3d 1258, 1261 (11th Cir.
2000), vacated on other grounds, 531 U.S. 1062 (2001) (“In the same vein, the
doctrine of speciality does not control the evidentiary procedural rules of American
Courts.”).
As Turner and Thirion make clear, the doctrine of specialty does not operate to
bar consideration of all pre-extradition conduct when determining a defendant’s
punishment for the extradited offense. These holdings are in line with those of our
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sister circuits that have allowed nonextradited conduct to affect a defendant’s
sentence. See, e.g., United States v. Garrido-Santana, 360 F.3d 565, 578 (6th Cir.
2004) (doctrine of specialty not violated where sentencing court used defendant’s
failure to appear to enhance his sentence under USSG §3C1.1); Garcia, 208 F.3d at
1261 (“[D]efendant was not punished for crimes other than those for which he was
extradited because under our law, the consideration of other conduct in the sentencing
process is legally and conceptually a part of the punishment for the inducted [sic]
crimes and within the limits set for those crimes.”); Lazarevich, 147 F.3d at 1063-65
(doctrine of specialty not violated where the sentencing court used a foreign
conviction as basis for upward departure due to understated criminal history under
USSG §4A1.3(a)); United States v. Puentes, 50 F.3d 1567, 1575-76 (11th Cir. 1995)
(doctrine of specialty not violated where defendant was extradited for conspiracy and
government “extended the conspiratorial period for three years”).
Decisions by the Supreme Court also undermine Lomeli’s argument. The Court
has held that the “use of evidence of related criminal conduct to enhance a defendant’s
sentence for a separate crime within the authorized statutory limits does not constitute
punishment.” Witte v. United States, 515 U.S. 389, 399 (1995); see also Nichols v.
United States, 511 U.S. 738, 747 (1994) (“Enhancement statutes, whether in the nature
of criminal history provisions such as those contained in the Sentencing Guidelines,
or recidivist statutes that are commonplace in state criminal laws, do not change the
penalty imposed for the earlier conviction.”). Lomeli’s argument—that he was
punished for his prior, unextradited crimes when the district court took them into
account in determining his criminal history—directly conflicts with Witte and is,
therefore, unavailing.
Additionally, we doubt whether Mexico intended that the district court not
consider Lomeli’s criminal history when it extradited him. Lomeli’s standing to assert
his doctrine of specialty argument is based on Mexico’s ability to object to his
prosecution. Turner, 884 F.2d at 389. “In determining whether the [doctrine of
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specialty] has been abrogated in a given instance, the circuit courts have inquired
whether the surrendering state would regard the prosecution at issue as a breach.”
United States v. Jetter, 722 F.2d 371, 373 (8th Cir. 1983) (per curiam) (quotation
omitted); see also United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (per
curiam) (“[T]he protection [of the doctrine] exists only to the extent that the
surrendering country wishes.”). Given “the long-standing practice of United States
courts of considering relevant, uncharged evidence at sentencing,” Lazarevich, 147
F.3d at 1064, we have some doubt whether Mexico intended the doctrine of specialty
to shield Lomeli in the manner he asserts. Although Lomeli’s extradition resolution
purports to prohibit the United States from using Lomeli’s pre-extradition conduct
“even as aggravating circumstances,” the resolution grounds this “commitment” in
Article 17 of the U.S.-Mexico Extradition Treaty. As explained above, Article 17
does not prohibit the district court’s consideration of Lomeli’s criminal history when
sentencing him for the extradited offenses, and we fail to see how Lomeli’s extradition
resolution changes that analysis.
In sum, we reject Lomeli’s argument that the doctrine of specialty prohibited
the district court from correctly calculating Lomeli’s criminal history under the
Guidelines and from using that calculation to determine his advisory Guidelines
sentencing range. To hold otherwise would “permit foreign intrusion into the
evidentiary or procedural rules of the requisitioning state.” Thirion, 813 F.2d at 153
(quoting Flores, 538 F.2d at 944). The plain language of the treaty prohibits the
United States from punishing Lomeli for nonextradited conduct. We hold that the
district court’s consideration of Lomeli’s criminal history did not constitute
punishment for nonextradited conduct, therefore the treaty was not violated. Thus, we
affirm Lomeli’s 235-month sentence.
B.
Lomeli also appeals the 235-month sentence imposed by the district court.
First, Lomeli argues that the district court abused its discretion by considering his
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criminal history at sentencing, which Lomeli argues was an improper or irrelevant
factor. Second, Lomeli argues that the district court abused its discretion in ordering
that his 235-month sentence run consecutively to the undischarged portion of his 30-
year Texas murder sentence.
“On appeal, we will review a sentence for an abuse of discretion, giving due
deference to the district court’s decision.” United States v. Braggs, 511 F.3d 808, 812
(8th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007); Rita v. United
States, 551 U.S. 338, 351 (2007)). First, we must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S.
at 51. If the sentence is procedurally sound, we “then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard,” and
we “may . . . apply a presumption of reasonableness” to a sentence within the advisory
Guidelines range. Id. A district court’s decision to impose a consecutive sentence is
similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225,
1227 (8th Cir. 2006).
After reviewing the record, we can discern no procedural error in the court’s
imposition of a 235-month sentence. The district court properly calculated Lomeli’s
offense level and criminal history and correctly determined Lomeli’s advisory
Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a)
factors in arriving at the sentence it deemed appropriate, and adequately explained its
reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the
seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-
related conviction, and the fact that he is a violent and threatening person. As we
explained above, it was not error for the court to consider Lomeli’s criminal history
as this did not violate the U.S.-Mexico Extradition Treaty.
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We next turn to the question of whether the district court committed procedural
error in ordering Lomeli’s sentence to run consecutively to the undischarged portion
of his Texas murder sentence. In his brief, Lomeli makes passing reference to an
abuse of discretion by the district court. We interpret this statement as an argument
that the district court failed to consider the § 3553(a) factors and to be cognizant of
the elements listed in section 5G1.3 of the Guidelines. Because this argument was
raised for the first time on appeal, we review for plain error. See, e.g., United States
v. Starfield, 563 F.3d 673, 674 (8th Cir. 2009); United States v. Phelps, 536 F.3d 862,
865 (8th Cir. 2008), cert. denied, 129 S. Ct. 1390 (2009). “Under plain error review,
the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial
rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate
court may exercise its discretion to correct a forfeited error only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting
Johnson v. United States, 520 U.S. 461, 467 (1997)).
Consecutive sentences are specifically contemplated by the Sentencing
Guidelines, which provide that, in cases where the defendant is subject to an
undischarged term of imprisonment, “the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable punishment for the instant
offense.” United States Sentencing Commission, Guidelines Manual, §5G1.3(c)
(Nov. 1995)3; see also 18 U.S.C. § 3584(a) (authorizing a court to impose concurrent
or consecutive sentences absent exceptions that do not apply here and stating that
“[m]ultiple terms of imprisonment imposed at different times run consecutively unless
the court orders that the terms are to run concurrently”). In determining whether to
3
The parties agreed that the 1995 edition of the United States Sentencing
Guidelines Manual would apply to Lomeli’s sentencing—unless using the current
version of the Guidelines Manual would result in a reduced sentence—and Lomeli’s
PSR used the 1995 Guidelines Manual to calculate Lomeli’s Guidelines sentencing
range. Thus, we will also use the 1995 Guidelines Manual in determining the
reasonableness of Lomeli’s sentence.
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impose a concurrent or consecutive sentence, the Guidelines direct the sentencing
court to:
consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. §
3553(a)) and be cognizant of:
(a) the type (e.g., determinate, indeterminate/parolable) and length of
the prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely
to be served before release;
(c) the fact that the prior undischarged sentence may have been
imposed in state court rather than federal court, or at a different
time before the same or different federal court; and
(d) any other circumstance relevant to the determination of an
appropriate sentence for the instant offense.
USSG §5G1.3, comment. (n.3).
Here, we are satisfied that the district court’s discussion of the § 3553(a) factors
was sufficient to comply with 18 U.S.C. § 3584 and USSG §5G1.3. Additionally, it
is clear that the district court was cognizant of the details of Lomeli’s Texas murder
sentence, which is all that the Guidelines require. Thus, we find no plain error in the
district court’s decision to order a consecutive sentence and, therefore, no procedural
error in Lomeli’s sentence. Absent any procedural error, we “consider the substantive
reasonableness of [Lomeli’s] sentence . . . under an abuse-of-discretion standard,”
Gall, 552 U.S. at 51, and we hold that Lomeli’s sentence, which was within the
advisory Guidelines range, was reasonable. See United States v. Robinson, 516 F.3d
716, 717 (8th Cir. 2008) (“A sentence within the Guidelines range is accorded a
presumption of substantive reasonableness on appeal.”).
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III.
For the reasons stated above, we affirm.
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