IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2009
No. 08-20846
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBINSON JIMENEZ-LAINES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:08-CR-598-1
Before DAVIS, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Robinson Jimenez-Laines appeals the revocation of his supervised release
and the order that he serve an additional term of imprisonment. Finding no re-
versible error, we affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-20846
I.
Over the past few years, Jimenez-Laines has maintained a steady pres-
ence in federal court. In February 2007, he, a Honduran national, was charged
in the Western District of Texas with illegal reentry into the United States. He
pleaded guilty and was sentenced to six months’ incarceration and a one-year
term of supervised release. Among the conditions of supervised release were
that he not (again) reenter the United States illegally and that he not commit
another federal, state, or local crime. In August 2007, shortly after he began su-
pervised release, he was deported.
Jimenez-Laines did not abide by the conditions of supervised release. In
February 2008, he was arrested in Houston for the unauthorized use of a motor
vehicle and was determined to have again entered the United States illegally.
That incident prompted actions in two federal courts.1 In Houston, in the South-
ern District of Texas, where Jimenez-Laines had been arrested, he was charged
with a new count of illegal reentry. Meanwhile, in Austin, in the Western Dis-
trict of Texas, where Jimenez-Laines had previously been convicted of illegal re-
entry, the probation office filed a petition to revoke supervised release asserting
that Jimenez-Laines had violated conditions of release by committing a state
crime (unauthorized use of a vehicle) and by illegally reentering the United
States.
Jimenez-Laines made an initial appearance in the Southern District,
where the court reviewed the revocation petition with him and confirmed that
he understood the allegations and his rights. The court then transferred the
revocation proceedings back to the Western District; the prosecution for the new
illegal reentry offense continued in the Southern District. Sometime later, how-
ever, the revocation proceedings were sent back to the Southern District to be
1
Jimenez-Laines was also prosecuted and convicted in Texas state court for the unau-
thorized use of a motor vehicle.
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No. 08-20846
consolidated with the new illegal reentry prosecution.
In September 2008, Jimenez-Laines entered a plea of “true” on the revo-
cation petition and a plea of “guilty” on the illegal reentry charge. In November
2008, the probation office for the Southern District filed a superseding petition
for revocation that was substantially the same as the original petition from the
Western District except that it contained updated information about Jimenez-
Laines’s guilty plea to the new illegal reentry offense and about his conviction
in state court for the motor vehicle offense. It is uncertain from the record
whether Jimenez-Laines ever received a copy of the superseding petition.
In December 2008, the district court held a joint sentencing hearing on the
illegal reentry charge and the supervised release revocation. At the beginning
of the hearing, the following exchange took place between defense counsel and
the court:
THE COURT: Case Number 8-5998?
MR. SANCHEZ: Yes. Just to remind the Court, I believe we pled
true back when we did the rearraignment initially [in September
2008], and you went over that part of it. I thought today we were
just doing the punishment portion of it.
THE COURT: All right. This did look vaguely family as I was
going through it, but I wasn’t sure.
All right. So we have done everything except de-
termine the sentence on the revocation?
MR. SANCHEZ: Correct.
THE COURT: All right. Do you have anything you wish to say
with respect to the sentence on the revocation case?
MR. SANCHEZ: Your Honor, really what I would say deals more
with the second case, and it is kind of hard to separate them out to-
gether. It is all the same conduct, similar conduct anyway, given
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No. 08-20846
the same sentence, so as far as the revocation, there is not too much
to say to that.
THE COURT: All right. Well, the Court is going to revoke the
defendant’s supervised release in this case and sentence him to 12
months in prison, and that would run consecutively to any sentence
imposed in the criminal Case Number 8-462, which we are going to
take up next.
The court then proceeded to address the new illegal reentry offense.
On appeal, Jimenez-Laines asks us to vacate his revocation sentence and
remand for resentencing. He offers four grounds. First, he claims the court
failed to provide him with the constitutional minimum of due process. Second,
he contends that the court denied him the opportunity to allocute before it im-
posed the revocation sentence. Third, he argues that the court did not properly
take into account the sentencing factors set out in 18 U.S.C. § 3553(a). Lastly,
he reasons that the cumulative effect of these alleged errors is an independent
ground for vacating the sentence.
II.
Before we address Jimenez-Laines’s complaints, we consider a threshold
question raised by the government: whether Jimenez-Laines waived, as distin-
guished from merely forfeited, his right to appeal the alleged errors at his revo-
cation sentencing. The government contends that defense counsel’s statement
that he “thought today we were just doing the punishment portion of [the revo-
cation proceeding]” is a waiver of the kinds of claims Jimenez-Laines raises in
this appeal. Jimenez-Laines admits that he did not raise his current objections
at the revocation sentencing but contends that this constituted forfeiture rather
than waiver.
“Waiver and forfeiture are two different means by which a defendant may
react to an error by the government in the proceedings in a case. The doctrines
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No. 08-20846
are similar, although distinct. Forfeiture is the failure to make the timely as-
sertion of a right; waiver is the intentional relinquishment of a known right.
Forfeited errors are reviewed under the plain error standard; waived errors are
entirely unreviewable.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th
Cir. 2006) (citations omitted).
To distinguish between waiver and mere forfeiture, we ask whether the
defendant has made an “intentional relinquishment or abandonment of a known
right.” Id. That is not the case here. Defense counsel’s statement proves only
what it means: that Jimenez-Laines’s lawyer thought that the imposition of a
sentence was the only remaining order of business in the revocation proceeding
and not that Jimenez-Laines intended to abandon the sorts of claims he now
brings on appeal.2
III.
We turn to Jimenez-Laines’s complaints regarding his revocation sentenc-
ing. Because he did not preserve any of these issues in the district court, they
are forfeited and subject to plain error review. Id. “To establish plain error, the
appellant must demonstrate that: (1) there was an error; (2) the error was plain;
and (3) the error affected his or her substantial rights. Even [where] the three
plain error criteria have been met, we retain the discretion to correct only those
errors that seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Wheeler, 322 F.3d 823, 827 (5th Cir. 2003) (cita-
tions and quotations omitted).
2
Cf. Arviso-Mata, 442 F.3d at 384 (holding that defense counsel’s statement at sentenc-
ing that “we have no objections to the PSR” was insufficient to establish that defendant had
waived his right later to challenge the calculation of his offense level in the presentence report
(“PSR”)). The lawyer there did note that he objected to a particular 16-level enhancement in
the PSR, but other than that had no objections. What is relevant by analogy to this case, how-
ever, is that we allowed defendant later to challenge an entirely different part of the PSR
guidelines calculation, a part to which defense counsel expressly stated he had no objection.
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No. 08-20846
A. Due Process
Jimenez-Laines claims the district court denied him the minimal require-
ments of due process for a revocation proceeding as set out in Morrissey v. Brew-
er, 408 U.S. 471, 488-89 (1972), and codified in Federal Rule of Criminal Proce-
dure 32.1, which requirements “include (a) written notice of the claimed viola-
tions . . . (b) disclosure to the [defendant] of evidence against him; (c) opportunity
to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hear-
ing officer specifically finds good cause for not allowing confrontation); (e) a ‘neu-
tral and detached’ hearing body . . . and (f) a written statement by the factfinders
as to the evidence relied on and reasons for revoking [supervised release].” Mor-
rissey, 408 U.S. at 488-89. If the court determines that a defendant has admit-
ted the alleged violations of supervised release, “the procedural safeguards an-
nounced in Morrissey are unnecessary,” except that the defendant “must still be
given an opportunity to offer mitigating evidence suggesting that the violation
does not warrant revocation.” United States v. Holland, 850 F.2d 1048, 1050-51
(5th Cir. 1988).
Jimenez-Laines claims the district court failed to ensure due process in his
revocation proceedings because the record is silent about whether he received a
copy of the superseding revocation petition and because it is not plain from the
record that he understood the nature of the alleged violations or evidence
against him. That is a mischaracterization of the revocation proceedings. Dur-
ing his initial appearance in the Southern District following his arrest in Febru-
ary 2008, Jimenez-Laines was informed of the revocation charges, and he con-
firmed that he understood them. Later, at the September 2008 hearing, during
which he pleaded “true” to the revocation charges, he also pleaded guilty to the
new illegal reentry offense and admitted to his conviction in Texas state court
of unauthorized use of a motor vehicle, the two crimes that formed the basis of
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No. 08-20846
the original and superseding petitions for revocation. During that hearing, Ji-
menez-Laines heard a lengthy recitation of the evidence the government intend-
ed to bring at trial if he did not plead guilty. He admitted the truth of the factu-
al allegations.
Jimenez-Laines thus had actual notice of the revocation allegations
against him and the evidence supporting them. There was no error, never mind
plain error, for failure to disclose the allegations or evidence.
As for written notice of the superseding petition, Jimenez-Laines has not
contended that he never received a copy of the petitionSShe only alleges that the
record is silent as to whether he received it. Whether the court erred at all, how-
ever, makes no difference. Even if Jimenez-Laines never received a written copy
of the superseding petition, its contents were substantially identical to those of
the original petition to which he entered a valid plea of true. Under the third
prong of plain-error review, Jimenez-Laines could not claim his substantial
rights were affected. Moreover, because he admitted the violations charged in
the revocation petition, he waived his right to challenge the adequacy of the re-
vocation proceedings under Morrissey, other than the denial of allocution. Id.
B. Allocution
Jimenez-Laines claims the district court denied him the right to allocute
before imposing the revocation sentence. Federal Rule of Criminal Procedure
32.1(b)(2)(E) requires that a person subject to a revocation hearing have “an op-
portunity to make a statement and present any information in mitigation.” The
district court is required to “address the defendant personally and determine
whether the defendant wishe[s] to make a statement . . . before imposing sen-
tence.” United States v. Reyna, 358 F.3d 344, 347 (5th Cir. 2004).
The court did not inform Jimenez-Laines about his right to allocute before
it imposed the revocation sentence. Under the first two prongs of plain-error
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No. 08-20846
review, that constituted error that was plain. Cf. id. at 351.
We next consider whether Jimenez-Laines’s substantial rights were affect-
ed by the error. “Ordinarily, in order to establish that an error ‘affects substan-
tial rights’ . . . a defendant must establish that the error was ‘prejudicial,’ i.e.
that it affected the outcome of the district court proceedings.” Id. at 350. In Rey-
na, however, we held that where a defendant is not given the opportunity to allo-
cute, “and the record reveals that the district court did not sentence at the bot-
tom of the guideline range or if the court rejected arguments by the defendant
that would have resulted in a lower sentence, we will presume that the defen-
dant suffered prejudice from the error, i.e. that the error affected the defendant’s
substantial rights.” Id. at 353.
Jimenez-Laines’s guideline range for revocation imprisonment was 12-18
months.3 He was sentenced to 12 months. At no time did he argue that the
court should have departed downward from the range or that the range should
have been calculated differently. Thus, under Reyna, Jimenez-Laines is not enti-
tled to a presumption of prejudice.
Jimenez-Laines contends that he is entitled to a presumption of prejudice,
because his twelve-month revocation sentence, though at the bottom of the
guideline range, is also the statutory maximum.4 He calls our attention to Unit-
ed States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006), in which we recognized
3
See 8 U.S.C. § 1326(b)(2) (stating that illegal reentry after deportation following an
aggravated felony conviction is punishable by up to 20 years’ imprisonment); U.S.S.G. § 7B1.1-
(a), (b) (providing that conduct violating supervised release that is punishable by greater than
one but less than 20 years is a Grade B violation; where there are multiple charged violations,
the grade is determined by the violation with the most serious grade); Judge’s Sentencing Op-
tions Worksheet, Appellee’s Br., Attachment B (listing Jimenez-Laines’s criminal history cate-
gory as IV); U.S.S.G. § 7B1.4(a) (explaining that Grade B with Criminal History IV yields a
guideline range of 12-18 months for revocation imprisonment).
4
Jimenez-Laines’s original underlying offense was illegal reentry by a deported alien.
8 U.S.C. § 1326(a). That offense is a Class E felony. 18 U.S.C. § 3559(a)(5). The maximum
revocation sentence permitted for a Class E felony is one year. 18 U.S.C. § 3583(e)(3).
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No. 08-20846
a presumption of prejudice under Reyna for a defendant denied allocution be-
cause he “was not sentenced either at the bottom of the guideline range . . . or
at the statutory minimum.” According to Jimenez-Laines, Magwood extended
Reyna by requiring a presumption of prejudice in revocation sentences where
allocution was denied unless the sentence is both at the bottom of the guideline
range and at the statutory minimum.
We disagree. First of all, Magwood involved a revocation sentence that ex-
ceeded the guideline range, which distinguishes it from this case. Id. Second,
and most importantly, Magwood’s discussion about statutory minima must be
read as dictum, which was as inapplicable in that case as it is here, for the rea-
son that there is no such thing as a statutory minimum for a supervised-release
revocation sentence.5
To read Magwood as Jimenez-Laines suggests, then, would require us to
presume prejudice every time a defendant who was denied allocution at revoca-
tion received any sentence above zero months. Reyna never went so far. It
contemplated that at least someSSand perhaps allSSdefendants who were denied
allocution at revocation sentencing, but who nevertheless received a sentence at
the bottom of the guideline range, and who never even advanced arguments that
might have resulted in a lower sentence, would not be owed a presumption of
prejudice on plain-error review. Jimenez-Laines falls squarely within this cate-
gory, and so we afford him no presumption of prejudice under Reyna. Having
made no affirmative case that his substantial rights were affected by his inabili-
ty to allocute, Jimenez-Laines has not met his burden of showing that the dis-
trict court committed reversible plain error.
5
See 18 U.S.C. § 3583(e)(3) (establishing statutory maxima, but not minima, for revoca-
tion sentences).
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No. 08-20846
C. Sentencing Factors
Jimenez-Laines contends that the district court failed to consider the sen-
tencing factors in § 3553(a) before imposing the revocation sentence. The record
shows that Jimenez-Laines is correct. Further, the error is plain. See 18 U.S.C.
§ 3583(e).
Jimenez-Laines has not shown, however, that the error affected his sub-
stantial rights. He offers no argument for why consideration of the § 3553(a) fac-
tors might have persuaded the court to depart downward from the guideline
range.6 Therefore, he has not met his burden of showing his substantial rights
were affected by the error.
D. Cumulative Effect
Jimenez-Laines argues that even if the aforementioned errors do not indi-
vidually meet the standard of plain error review, their cumulative effect should
compel us to vacate and remand. He points us to United States v. Riddle, 103
F.3d 423, 434 (5th Cir. 1997), in which we concluded that the cumulative effect
of four evidentiary errors was “so harmful that [it] mandate[d] reversing [the]
conviction,” because “[t]urning these rulings in a different direction would have
produced a very different trial.” We noted, for instance, that the jury had been
exposed to hours of prejudicial testimony and that a key defense witness had
been denied the opportunity to explain how suspect-sounding behavior was actu-
ally normal banking procedure. Id. at 434-35.
It appears that in Riddle, unlike here, the defendant properly preserved
6
In his reply brief, Jimenez-Laines draws an apples-to-oranges comparison between
his revocation sentence and the criminal sentence for illegal reentry imposed at the same hear-
ing. Jimenez notes that before imposing the criminal sentence, the court considered the
§ 3553(a) factors and imposed a sentence of twenty-five monthsSSone month above the bottom
of the guideline range. In the revocation case, however, the court sentenced him to the statu-
tory maximum of one year. What Jimenez-Laines fails to mention is that for his revocation
sentence, the statutory maximum was still was at the very bottom of the range.
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No. 08-20846
the alleged errors. But even if we leave aside the differing standards of review,
Jimenez-Laines still has not explained how an opportunity to allocute, combined
with the court’s consideration of the § 3553(a) factors, would have produced a
“very different” revocation sentencing. Nor do we see how Jimenez-Laines could
make such an argument. We therefore decline to vacate the sentence because
of cumulative error.
AFFIRMED.
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