UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4095
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE MANUEL-CALIXT MENDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:09-cr-00052-BO)
Argued: May 15, 2012 Decided: July 5, 2012
Before WILKINSON and AGEE, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Vacated and remanded by unpublished opinion. Judge Agee wrote
the opinion, in which Judge Wilkinson and Judge Hudson
concurred.
ARGUED: Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES
ROSE, Raleigh, North Carolina, for Appellant. Jennifer E. Wells,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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AGEE, Circuit Judge:
Jose Manuel-Calixt Mendez challenges the procedural
and substantive reasonableness of his sentence, but not his
underlying convictions. Because the district court plainly
erred in failing to consider the factors listed in 18 U.S.C.
§ 3553(a) or to state on the record a basis for the sentence it
imposed, we vacate Mendez’ sentence and remand this case for
resentencing.
I.
Mendez pleaded guilty, without the benefit of a
written agreement, to several drug-related charges arising from
his participation in a multi-party, multi-year (2001-2009),
multi-state conspiracy to distribute cocaine powder and cocaine
base (“crack”). Based on those transactions, a pre-sentence
report (“PSR”) provided Mendez should be accountable for 551.6
grams of cocaine base, 52 kilograms of cocaine, and 5,000 pounds
of marijuana, which totaled a marijuana equivalency of 23,700
kilograms under the 2009 United States Sentencing Guidelines
Manual (U.S.S.G.). The PSR also described Mendez as a manager
of criminal activity involving five or more participants because
he oversaw co-conspirators who would broker deals and convert
cocaine to cocaine base under Mendez’ direction. After a three-
level increase due to his managerial or supervisory role
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(U.S.S.G. § 3B1.1(b)), and a three-level downward adjustment
based on acceptance of responsibility (id. § 3E1.1(b)), the PSR
stated a total offense level of 36, which, when combined with
his criminal history category of I, resulted in a recommended
Sentencing Guidelines range of 188 to 235 months’ imprisonment.
After considering Mendez’ objections to the drug
weight calculation and the managerial/supervisory role
enhancement, the district court “le[ft] the report as written,”
which made Mendez’ advisory Guidelines range 188 to 235 months’
imprisonment as to each of the grouped offenses. After hearing
respective arguments from counsel, the district court stated its
entire sentencing decision as follows:
All right. I’ll impose a sentence of 210
months on counts one, four, five, two, three
and six concurrent in the custody of the
United States Bureau of Prisons. A term of
supervised release of five years on those
six counts, concurrent. Restitution is not
appropriate. Six hundred dollars in special
assessment. He’s given credit for time
served. That’s all.
J.A. 73. Mendez noted a timely appeal, and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
Mendez challenges the procedural and substantive
reasonableness of his sentence, both of which we review under a
deferential abuse of discretion standard. United States v. Bell,
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667 F.3d 431, 440 (4th Cir. 2011). “We review factual findings
for clear error, and legal conclusions de novo.” United States
v. Davis, 679 F.3d 177, 2012 WL 1608607, *4 (4th Cir. May 9,
2012) (slip copy).
III.
We first consider Mendez’ allegations of procedural
error. Then we consider the question whether the district court
committed reversible plain error in failing to evaluate the
§ 3553(a) factors at all during sentencing proceedings. Because
we answer that question in the affirmative, we decline to reach
Mendez’ substantive reasonableness claim.
A.
Mendez argues that the district court erred in
adopting the PSR calculation of drug weight over Mendez’
challenge. Reviewing the district court’s factual findings as
to the application of the Guidelines——including the
determination of the relevant quantity of drugs——for clear
error, United States v. Fletcher, 74 F.3d 49, 55 (4th Cir.
1996), we are not “left with the definite and firm conviction
that a mistake has been committed.” United States v. Stevenson,
396 F.3d 538, 542 (4th Cir. 2005).
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For sentencing purposes, the Government must establish
the amount of drugs involved by a preponderance of the evidence.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).
“[W]here there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance.” United States v.
D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994); see also § 2D1.1,
cmt. n.12 (stating that a district court is not required to
precisely calculate attributable drug weights, but may instead
approximate drug quantity).
Put simply, that is precisely what the district court
did in setting the drug weight based on the PSR calculations.
Mendez bore the burden of establishing that the PSR’s
calculation was incorrect, but offered nothing——other than
broadly crafted objections——to the reliability of the testimony
presented at trial. Mendez did not cite any specific evidence
that might suggest the witnesses lacked credibility or were
providing duplicative evidence as to drug weight.1 Given Mendez’
1
In addition, Mendez’ objection to the drug amount set
forth in paragraph 23 did not assert the information was
unreliable for any specific reason, only that it was hearsay
from a co-defendant. However, not only can “hearsay alone . . .
provide sufficiently reliable evidence of quantity[,]” United
States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992), but a
“trial court may properly consider uncorroborated hearsay
evidence that the defendant has had an opportunity to rebut or
explain.” United States v. Terry, 916 F.2d 157, 161 (4th Cir.
(Continued)
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oblique, nonspecific objections to the higher drug weight, we
are not left with the definite and firm conviction that the
district court erred in adopting the PSR’s drug weight
calculation.2
1990) (citation omitted). See also United States v. Burns, 990
F.2d 1426, 1439 (4th Cir. 1993) (“The settled law of this
circuit recognizes that the testimony of a defendant’s
accomplices, standing alone and uncorroborated, can provide an
adequate basis for conviction.”). The district court thus
properly exercised its discretion in finding Mendez’ objection
insufficient to upset that transaction in the drug weight
calculation.
2
We briefly address two other points raised by Mendez.
First, without citing to any authority, Mendez claims that the
Government should have been required to call the lead
investigator as a witness rather than proffer to the district
court what his testimony would be. As we observed in United
States v. Bell, the Guidelines do not require that drug weight
be proven by a particular method so long as the district court
has the opportunity to consider objections and assess the
reliability of evidence supporting the fact at issue. 667 F.3d
440, 441 (4th Cir. 2011). See also Terry, 916 F.2d at 162
(“Without an affirmative showing the information is inaccurate,
the court is free to adopt the findings of the [PSR] without
more specific inquiry or explanation. The burden is on the
defendant to show the inaccuracy or unreliability of the
[PSR].”)(internal quotation marks and citation omitted).
Mendez also argues that the PSR improperly relied on the
drug quantity base offense level under the 2009 cocaine base to
cocaine ratio rather than applying the 2010 amendments to the
ratio. Because Mendez did not raise that claim below, we review
it for plain error. United States v. Lynn, 592 F.3d 572, 577-78
(4th Cir. 2010).
The Government admits the 2010 Guidelines should have been
used, but contends that the offense level would have been the
same under the 2010 Guidelines as it was under the 2009
Guidelines. We agree. Under the 2010 amendments, Mendez’ base
offense level would not be different. To be sure, the 2010
amendments did alter the drug equivalency tables for cocaine
(Continued)
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B.
U.S.S.G. § 3B1.1 provides that an offense level may be
increased by three levels “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” In the district court, Mendez challenged the full
three-level enhancement by contending that he was a “mule” on
one side of the conspiracy and a leader on the other. On
appeal, Mendez’ argument has evolved——he now appears to
challenge the application of any enhancement pursuant to
§ 3B1.1. We need not consider whether this argument has been
properly preserved, however, because even assuming it was, the
district court did not clearly err in applying the enhancement.
The § 3B1.1(b) supervisory-role enhancement is
appropriate based on finding the presence of some or all of the
following seven factors: “the exercise of decision making
authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a
base. Under the new equivalencies, however, Mendez would be
responsible for 14,637.76 kilograms of marijuana, which would
still place his base offense level at 36. See § 2D1.1(c)(2)
(setting an offense level of 36 for offenses involving “[a]t
least 10,000 KG but less than 30,000 KG mari[j]uana”).
Accordingly, Mendez cannot show that this error affected his
substantial rights such that it constitutes reversible plain
error.
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larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and
authority exercised over others.” Cmt. n.4 (emphasis added). The
emphasized factors are present in Mendez’ case, as the record
shows that Mendez exercised great control over a middleman in
the conspiracy, directing the middleman’s dealing and actively
negotiating between participants in the conspiracy and
distributing large levels of cocaine and crack over a lengthy
period of time. Mendez does not challenge any of the PSR’s
statements regarding his leadership role over the middleman with
regard to the Robeson County side of the operation.3 Instead, he
attempts to claim the PSR is inconsistent because it also
describes him as acting as a “mule” early in the conspiracy with
regard to another component of the conspiracy. Reviewing the
PSR’s description of the offense conduct, however, provides
3
To the extent that Mendez argues that the enhancement is
not applicable because he supervised only one individual, that
argument has been expressly rejected by the commentary, U.S.S.G.
§ 3B1.1 cmt. n.2 (2010) (“to qualify for an adjustment under
this section, the defendant must have been the organizer,
leader, or supervisor of one or more other participants.”)
(emphasis added), a fact which we have previously recognized,
see United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009)
(“The Sentencing Commission has clarified in an Application Note
to § 3B1.1 that in order to qualify for an enhancement, the
defendant must have been the organizer or leader of ‘one or more
other participants’ . . . .”).
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sufficient information on which the district court could apply
this enhancement; Mendez is manufacturing inconsistencies that
simply do not exist. On this record, we hold that the district
court did not clearly err in finding that the three-level
enhancement was appropriate based on a preponderance of the
evidence.
C.
Mendez’ final challenge is to the substantive
reasonableness of his sentence. Before we can evaluate his
substantive reasonableness claim, however, we must find the
sentence procedurally reasonable. See United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (noting that we may consider
the substantive reasonableness of the sentence “[i]f, and only
if, we find the sentence procedurally reasonable.”); see also
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (“If
the appellate court finds a sentence procedurally reasonable, it
then moves to the second step, in which it consider[s] the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.”) (internal quotation marks
omitted).
Although we have rejected above the arguments
articulated on appeal by Mendez, an obvious procedural error is
reflected in the record: the complete absence of explanation by
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the district court for the sentence imposed. We review the
issue for plain error, see United States v. Delgado, 672 F.3d
320, 328-29 (5th Cir. 2012) (“the plain-error test has long been
applied to unpreserved and unpresented errors”), and therefore
consider whether the district court committed error; that was
plain; and affected Mendez’ substantial rights. See United
States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
This court has specified in unmistakable terms that a
sentencing court “must state in open court the particular
reasons supporting its chosen sentence.” Carter, 564 F.3d at 328
(internal quotation marks omitted); see also Lynn, 592 F.3d at
576. In so doing, the sentencing judge “must place on the
record an ‘individualized assessment’ based on the particular
facts of the case before it[,]” which “set[s] forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority. . . .” Carter, 564 F.3d at 328, 330.
This is not an onerous burden. A sentencing court
need not “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). “Nor need the district court articulate in a vacuum
how each § 3553(a) factor influences its determination of an
appropriate sentence.” United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008). Nevertheless, “the district judge, not an
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appellate court, must make an individualized assessment based on
the facts presented to him.” Carter, 564 F.3d at 329 (internal
quotation marks omitted). Where, as here, a defendant asks for
a sentence lower than that which the district court finds
appropriate, the district court has to say something on the
record to establish a basis for its conclusion in imposing the
criminal sentence.
Despite the previous guidance this Court has provided
on this precise issue, see id. at 330 (vacating the judgment and
remanding for sentencing where this very district court failed
to provide an individualized rationale for a sentence), the
district court here committed plain error by failing to provide
even a single word of commentary regarding the § 3553(a)
factors.4 We again repeat: Appellate courts are not in the
4
The fact that Mendez failed to raise such an important and
apparent error is of no moment: it is plainly obvious, and “the
trial judge and prosecutor were derelict in countenancing it,
even absent the defendant’s timely assistance in detecting it.”
United States v. Frady, 456 U.S. 152, 163 (1982) (stating when
plain error exists). The district court sentenced Mendez,
without any comment, to 210 months’ imprisonment——roughly the
average of the polar recommendations of the parties, but
definitely a higher sentence than he requested. While the
sentence thus happened to land within the Guidelines range, it
was also clearly higher than the specific sentence Mendez sought
and left Mendez’ nonfrivolous arguments for a lower Guidelines-
range sentence unaddressed. Although there would appear to be
sufficient bases in the record upon which the district court
could reach the sentencing decision it decreed, under these
circumstances, we conclude the district court’s error seriously
(Continued)
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business of “guess[ing] at the district court’s rationale,” or
sleuthing for “clues that might explain a sentence.” Id. at 329-
30. Moreover, contrary to the Government’s contention, we
simply cannot rely on the Government’s arguments as support for
the district court’s unknown ultimate sentencing decision. See
id. (rejecting Carter’s argument to “presume” that the district
court adopted his arguments or “silently adopted arguments
presented by a party”). Rather, the sentencing judge “must
place on the record an ‘individualized assessment’ based on the
particular facts of the case before it[,]” which “set[s] forth
enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority. . . .” Id. at 328, 330
(emphasis added).
For these reasons, the district court plainly erred in
a manner affecting Mendez’ substantial rights in wholly failing
to evaluate the § 3553(a) factors during sentencing proceedings.
IV.
We note that this procedural derailment might have
been corrected at any number of junctures. The Government might
affected the fairness of the sentencing proceeding by the total
absence of any explanation.
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have directed the district court to the error immediately after
the district court pronounced Mendez’ sentence. Appellant’s
counsel, had she only presented the issue on appeal, could have
cabined our review to the (more-easily-satisfied) abuse of
discretion standard. To be sure, someone other than this Court
should have flagged such a fundamental error. That said, the
error here is so plain and deleterious to the defendant’s
substantial rights that we must vacate and remand this case for
resentencing so that the district court can conduct a proper
§ 3553(a) analysis and provide a basis for the sentence imposed.
VACATED AND REMANDED
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