United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 27, 2020
No. 19-40901 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Andres Medel-Guadalupe,
Defendant—Appellant,
consolidated with
_____________
No. 19-40902
_____________
United States of America,
Plaintiff—Appellee,
versus
Luis Medel,
Defendant—Appellant.
No. 19-40901
c/w No. 19-40902
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:19-CR-428-1
USDC No. 1:14-CR-109-9
Before Jones, Haynes, and Ho, Circuit Judges.
Per Curiam:
Luis Andres Medel-Guadalupe appeals his sentence on five grounds.
Finding no error of fact or law, we AFFIRM.
I. BACKGROUND
Medel-Guadalupe was arrested and charged in a five-count
indictment with harboring illegal aliens. The first count charged conspiracy
to harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II) and
(B)(i) while the remaining four charged substantive violations of
§ 1324(a)(1)(A)(iii) and (B)(i) relating to specific aliens. The accompanying
allegations assert the principal offense of harboring an illegal alien for
commercial advantage or private financial gain, but the indictment also lists
the statutory aiding and abetting provision, § 1324(a)(1)(A)(v)(II).
Ultimately, Medel-Guadalupe pled guilty only to Count Two pursuant to a
plea agreement.
The presentence report (PSR) included two enhancements that are
relevant to this appeal. First, the PSR recommended a two-level increase for
“reckless endangerment” under U.S.S.G. § 2L1.1(b)(6) for harboring aliens
in “crowded, dangerous, or inhumane” conditions. Second, a two-level
“bodily injury” increase was recommended under U.S.S.G.
§ 2L1.1(b)(7)(A) for injuries sustained by one of the female aliens after she
was beaten by Medel-Guadalupe’s girlfriend, Amanda Miguel Ramirez.
Medel-Guadalupe filed written objections to both enhancements. At
sentencing, defense counsel argued that Medel-Guadalupe could not be held
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accountable for Ramirez’s assault because it was provoked by jealousy—
Ramirez thought the female alien “was either flirting with [Medel-
Guadalupe] or that they had something going on.” The district court
overruled the objection, finding that the assault was reasonably foreseeable.
As for the reckless endangerment enhancement, defense counsel
argued that the stash house had electricity, running water, and ventilation,
thus the Government could not show risk of “serious bodily injury.” In
response, the Government argued that packing twenty-six aliens into a two-
bedroom, one-bathroom apartment with a lone exit warranted the
enhancement. The district court overruled the objection, finding that
harboring twenty-six aliens “in a relatively small area” created a dangerous
situation as evacuation in case of emergency would be “extremely difficult.”
The Government proceeded to recommend a low-end guidelines
sentence of 110 months, consistent with the plea agreement. The
Government, however, requested the court to consider that Medel-
Guadalupe was a member of the Paisas prison gang and had offered $5,000
for the federal agents on his case to “go down.” Defense counsel argued that
these comments requested an upward departure, inconsistent with the plea
agreement, and so Medel-Guadalupe should be released from the agreement
and have his appellate rights returned. The district court apprised Medel-
Guadalupe that granting the request would allow the Government to pursue
a higher sentence and, after receiving his acknowledgement, granted
withdrawal. The Government requested the statutory maximum of 120
months and Medel-Guadalupe asked for 110 months.
The district court issued a sentence of 120 months, stating that it
“would have made that decision even if the Government had not made that
recommendation and [had] continued to recommend at the low end of the
advisory guidelines.” Additionally, the district court imposed a three-year
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supervised release term and ordered participation “in an inpatient or
outpatient substance abuse treatment program, as well as an inpatient or
outpatient alcohol abuse treatment program” to be supervised by the
probation officer and paid for by Medel-Guadalupe if able. Finally, Medel-
Guadalupe had been on supervised release at the time of this offense and
admitted to violating various conditions of that release. The Government
recommended a revocation sentence of eighteen months, consecutive to the
120-month sentence, because of the “credible threats” made against federal
agents. Defense counsel did not request a specific sentence, but argued for
the sentence to run concurrently. The district court sentenced Medel-
Guadalupe to twelve months, the low end of the policy range, to run
consecutive with the 120-month sentence. Medel-Guadalupe timely
appealed both judgments and this court consolidated the appeals on the
Government’s motion.1
II. DISCUSSION
Medel-Guadalupe raises five challenges on appeal. First, he alleges
that Count Two of the indictment, which he pled guilty to, is duplicitous
because it contains two distinct offenses. This duplicity stems from the
unique statutory structure of 8 U.S.C. § 1324 which includes a separate
prohibition on aiding and abetting.2 § 1324(a)(1)(A)(v)(II). Next, he
1
Both appeals involve the same Defendant, Medel-Guadalupe. In No. 19-40901,
he appeals the judgment and sentence stemming from the 2019 harboring an illegal alien
conviction while in No. 19-40902, he appeals the revocation judgement and sentence for
violating the supervised released from his 2014 federal drug-trafficking conviction.
2
We have previously interpreted this provision as “expressly provid[ing] that
aiding and abetting the commission of § 1324(a)(1)(A)(ii) [transporting illegal aliens] is a
separate, free-standing offense.” United States v. Nolasco-Rosas, 286 F.3d 762, 767 (5th Cir.
2002) (per curiam). Thus, it differs from the general aiding and abetting statute, 18 U.S.C.
§ 2, which provides an alternative theory of liability, not a separate crime. United States v.
Rabhan, 540 F.3d 344, 348 (5th Cir. 2008).
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c/w No. 19-40902
challenges both the “reckless endangerment” and “bodily injury”
sentencing enhancements. Medel-Guadalupe also contends that the district
court impermissibly delegated judicial authority to the probation officer
regarding the special conditions of his supervised release. Finally, he argues
that the district court erred in failing to state its reasons for ordering the
revocation sentence to run consecutively. We address each in turn.
A. Duplicity
This court reviews a duplicity argument raised in the first instance on
appeal for plain error. United States v. Blevins, 755 F.3d 312, 319 (5th Cir.
2014). To prevail, Medel-Guadalupe must demonstrate that the error is clear
or obvious and affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135, 129 S. Ct. 1423, 1429 (2009). If he does, this court has discretion to
correct that error only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
736, 113 S. Ct. 1770, 1779 (1993). But as a threshold matter, the Government
contends that Medel-Guadalupe waived this argument by pleading guilty.
We agree.3
3
Notwithstanding, Medel-Guadalupe’s argument also fails under plain error
review because he cannot demonstrate his substantial rights were affected. Primarily, he
contends that a duplicitous indictment requires that the court sentence him to a maximum
of sixty months, the least severe punishment between the offenses. Yet, “[t]he proper
remedy is to require the Government to elect upon which charge contained in the count it
will rely.” United States v. McDermont, No. 93-3603, 1995 WL 371036, *4 n.6 (5th Cir.
June 5, 1995) (unpublished) (“Unpublished opinions issued before January 1, 1996 are
precedent.” 5TH CIR. R. 47.5.3). The allegations in Count Two, and factual basis
supporting the guilty plea, charge Medel-Guadalupe solely as a principal, which carries the
120-month maximum to which he was sentenced. Medel-Guadalupe agreed to the factual
basis of the plea and was consistently advised that he faced a ten-year maximum sentence.
Finally, Medel-Guadalupe makes no argument as to why the court should exercise its
discretion to correct this error and we decline to do so when the record indicates that he
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“It is well-settled that when a defendant enters a voluntary and
unconditional guilty plea, the plea has the effect of waiving all
nonjurisdictional defects in the prior proceedings.” United States v.
Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008). A defective indictment
is nonjurisdictional. United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct.
1781, 1785 (2002). Thus, a defendant’s voluntary and unconditional guilty
plea waives any future claim that the indictment was defective by charging a
duplicitous count. United States v. Lampazianie, 251 F.3d 519, 525–26 (5th
Cir. 2001).
Medel-Guadalupe makes no argument that his plea was not knowing
or voluntary, and the record makes clear that he understood “the nature of
each charge to which [he was] pleading.” Fed. R. Crim. P. 11(b)(1)(G);
Moreover, the district court advised, and he acknowledged, that this plea
waived “all defenses to those charges and any defects in the proceedings.”
Instead, Medel-Guadalupe argues that under the 2014 amendments to
Rule 12 of the Federal Rules of Criminal Procedure, failure to raise a duplicity
claim in a pretrial motion results in plain-error review but does not waive it.
United States v. Vasquez, 899 F.3d 363, 380 (5th Cir. 2018). This argument
misses the mark.
Before 2014, Rule 12(e) deemed a motion waived if not timely filed.
Id. at 372. That language was deleted, and the Rule now states that a motion
is “untimely.” Fed. R. Crim. P. 12(c)(3). The Advisory Committee
Notes explain that the term “waiver” ordinarily refers to the intentional
relinquishment of a known right, but the rule never required any
determination that the party intended to relinquish a defense or objection;
was fully aware of the maximum sentence he was facing and that he pled guilty to his actions
as principal, not an aider and abettor.
6
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c/w No. 19-40902
thus the term was abandoned “to avoid possible confusion.”4 Fed. R.
Crim. P. 12(c) advisory committee’s note to 2014 amendment. An
“untimely” Rule 12 motion is not waived and is reviewable for plain error.
Vasquez, 899 F.3d at 373. Guilty pleas, however, are governed by Rule 11, not
Rule 12, and there is no corresponding 2014 amendment to Rule 11. Further,
the Advisory Committee Notes state that this change was driven by the
intentional relinquishment connotation of “waiver,” something not required
by Rule 12. Here, Medel-Guadalupe intentionally and unequivocally
relinquished this right.5 Accordingly, this claim is waived.
B. Sentencing Enhancements
Medel-Guadalupe argues that the district court erred in applying the
“reckless endangerment” and “bodily injury” enhancements. We need not
consider the merits of these arguments because even if the enhancements
were applied in error, any errors were harmless. See United States v. Guzman-
Rendon, 864 F.3d 409, 411–12 (5th Cir. 2017). This court recognizes one way
to demonstrate harmless error “is to show that the district court considered
both ranges (the one now found incorrect and the one now deemed correct)
and explained that it would give the same sentence either way.” Id. at 411.
Here, the district court was aware of the guidelines range absent the
enhancements because Medel-Guadalupe advised the court of this range in
4
“The Advisory Committee Notes are instructive on the drafters’ intent in
promulgating the federal rules.” United States v. Navarro, 169 F.3d 228, 237 (5th Cir.
1999).
5
We recognize that during the sentencing hearing Medel-Guadalupe withdrew
from the plea agreement in order to regain his appellate rights. He did not, however,
withdraw his actual guilty plea. So, while he has the ability to challenge the sentence on
appeal, he has waived any argument as to the merits of Count Two.
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c/w No. 19-40902
his written PSR objections. The district court sentenced him to the statutory
maximum, stating that it “would have made that decision even if the
Government had not made that recommendation and continued to
recommend at the low end of the advisory guideline level.” The court noted
Medel-Guadalupe’s extensive criminal history, prior prison sentences and
revocations, and his continued criminal activity from prison, leading to a
separate obstruction-of-justice enhancement. It concluded by stating that the
§ 3553(a) sentencing factors “justified and supported” the statutory
maximum sentence. The sentencing choice was reached irrespective of the
guideline recommendation.
C. Judicial Delegation
Medel-Guadalupe also contends that the district court impermissibly
delegated judicial authority through the wording of two special conditions of
supervised release, the required alcohol and drug treatment. Specifically, he
takes issue with two determinations to be made by the probation officer: first,
whether the treatment will be “inpatient or outpatient”; and second, the
“modality, duration, intensity” of that treatment. Since Medel-Guadalupe
did not raise this objection at sentencing, review is typically for plain error.
United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010). But Medel-
Guadalupe claims lack of notice because “modality, duration, intensity” was
included only in the written judgment. 6 “When a defendant has not been
6
Our recent decision in United States v. Diggles may foreclose Medel-Guadalupe’s
notice argument. 957 F.3d 551, 560 (5th Cir. 2020) (en banc), petition for cert. filed, No. 20-
5836 (U.S. Sept. 29, 2020). There, this court held that adopting, in-court, a presentence
report’s proposed conditions or a courtwide standing order when either lists the special
conditions is sufficient to create the opportunity to object. Id. at 560–61. Here, the special
conditions were listed in the PSR appendix and in Southern District of Texas General
Order No. 2017-01, both of which were reviewed by Medel-Guadalupe. Further, the
8
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provided a meaningful opportunity to object,” this Court reviews as a
preserved error.7 United States v. Dean, 940 F.3d 888, 890 (5th Cir. 2019).
This argument fails under either plain error or de novo review.
“The imposition of a sentence, including the terms and conditions of
supervised release, is a core judicial function that cannot be delegated.”
Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 400 (5th Cir. 2019) (quoting
United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016)). It is not
permissible for a district court to delegate the decision of “whether a
defendant will participate in a treatment program,” but “a district court may
properly delegate to a probation officer decisions as to the details of a
condition of supervised release.” Id. (internal quotation marks and citations
omitted). Thus, the key inquiry is whether the condition is mandatory or left
to the discretion of the probation officer.
Here, the district court expressly mandated that Medel-Guadalupe
participate in the treatment program, leaving no decision for the probation
officer to make regarding the core feature of the special condition. 8 Instead,
“inpatient or outpatient” and “modality, intensity, duration” are all details
of the conditions, decisions which can be properly delegated. Franklin,
838 F.3d at 568. Medel-Guadalupe notes that some circuits require the
district court expressly adopted the factual findings and guideline applications of the PSR
which contained the appendix. This notice was sufficient under Diggles.
7
If Medel-Guadalupe is correct, however, the impermissible delegation of judicial
authority is a question of law, so a preserved objection is reviewed de novo. United States v.
Morin, 832 F.3d 513, 516 (5th Cir. 2016).
8
“You must participate in an inpatient or outpatient substance abuse treatment
program, as well as an inpatient or outpatient alcohol abuse treatment program . . . .”
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district court to make the inpatient or outpatient determination, 9 but others
do not.10 Our precedent only forbids delegating the decision of whether
participation is required or not. The district court unequivocally made that
decision here.
D. Revocation Sentence
Finally, Medel-Guadalupe challenges the district court’s failure to
state its reasons for ordering the revocation sentence to run consecutively
with the alien-harboring sentence. Medel-Guadalupe concedes that he did
not object to the sentence, so our review is for plain error only. United States
v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018). A district court has “discretion
to order that a sentence imposed upon the revocation of supervised release
run concurrently with or consecutively to other sentences.” United States v.
Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009). The Guidelines, however,
recommend revocation sentences to run consecutively. United States v.
Flores, 862 F.3d 486, 489 (5th Cir. 2017) (citing U.S.S.G. Ch. 7, Pt. B, Intro.
Comment; U.S.S.G. § 7B1.3 cmt. (n.4)).
While a district court must state its reasons for imposing a sentence in
open court,11 simply applying the Guidelines “will not necessarily require
lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct.
2456, 2468 (2007). Here, the parties made competing arguments whether
the sentence should run consecutively or concurrently, and the district court,
9
See, e.g., United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States
v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088,
1091 (9th Cir. 2009) (per curiam).
10
See, e.g., United States v. Cutler, 259 F. App’x 883, 887 (7th Cir. 2008) (per
curiam); United States v. Calnan, 194 F. App’x 868, 870–71 (11th Cir. 2006) (per curiam).
11
See 18 U.S.C. § 3553(c).
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after considering “the evidence and the arguments,” simply chose to follow
the Guidelines’ recommendation.12 Id. at 359, 127 S. Ct. at 2469. Moreover,
Medel-Guadalupe cannot show error, plain or otherwise. His sentence was
within the Guidelines and he fails to demonstrate that an explanation would
have changed his sentence. United States v. Mondragon-Santiago, 564 F.3d
357, 365 (5th Cir. 2009).
III. CONCLUSION
The judgment of the district court is AFFIRMED.
12
“Circumstances may well make clear that the judge rests his decision upon the
Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms
of § 3553(a) and other congressional mandates) in the typical case, and that the judge has
found that the case before him is typical.” Rita, 551 U.S. at 357, 127 S. Ct. at 2468.
11