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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12322
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-20081-ASG-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL BERNAL PALACIOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 8, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
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Juan Manuel Bernal Palacios appeals following his conviction and
sentencing on multiple felony counts. Palacios was originally convicted and
sentenced in 2008. He subsequently filed a 28 U.S.C. § 2255 motion for
ineffective assistance of counsel, as his appointed attorney did not file a timely
appeal as he requested. The district court denied relief, and Palacios appealed. In
2011, this court vacated and directed the district court to follow the procedure set
forth in United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000) for out-of-
time appeals, and enter a new judgment with the same total sentence, advising
Palacios of his appellate rights and deadlines. In 2012, and without a hearing, the
district court entered a new judgment, identical to the first judgment save for the
date of entry, and reimposed the same total sentence. Palacios now appeals,
arguing that his guilty plea was involuntary, and that the total 135-month sentence
reimposed by the district court in 2012 was procedurally infirm, since neither he
nor his attorney were present. Upon review of the record and consideration of the
parties’ briefs, we affirm.
I. Acceptance of Guilty Plea
Palacios argues that the district court should not have accepted his guilty
plea in 2007, as his denial of the knowledge required for money laundering and
refusal to accept the government’s proffer at the plea colloquy undermined the
factual basis for the plea. He contends that the district court also failed to make
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factual findings as to whether or not his admitted conduct was sufficient to satisfy
the statutory elements for money laundering under 18 U.S.C. § 1956, and the
government did not object to the court’s acceptance of the plea even in light of
Palacios’s denial of knowledge. He maintains that his admissions did not include
the knowledge statutorily required for the indicted offenses. Therefore, he
concludes that had he known prior to sentencing that knowledge was a required
element of money laundering, he would not have pleaded guilty, and therefore the
district court’s error affected his substantial rights.
When a defendant fails to make an objection, and raises an issue for the first
time on appeal, we will only review it for plain error. United States v. Thayer, 204
F.3d 1352, 1356 (11th Cir. 2000) (per curiam). There must be an error that is plain
and that affects substantial rights, and it is within our discretion to correct a
forfeited error when it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings. Id. (alteration in original) (internal quotation
marks omitted). The defendant bears the burden of persuasion. United States v.
Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).
“A district court accepting a plea must determine whether the conduct which
the defendant admits constitutes the offense . . . to which the defendant has pleaded
guilty.” United States v. DePace, 120 F.3d 233, 238 (11th Cir. 1997) (internal
quotation marks omitted). The court must have been presented with sufficient
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evidence from which it could reasonably find that the defendant was guilty. Id.
There is a strong presumption that a defendant’s statements during a plea colloquy
are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). When
seeking reversal on plain error review under Rule 11, the defendant must
demonstrate that, but for the error, he would not have entered the plea, and “that
the probability of a different result is sufficient to undermine confidence in the
outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 83,
124 S. Ct. 2333, 2340 (2004) (internal quotation marks omitted).
Here, Palacios failed to object before the district court on the grounds stated
in his appeal, namely that his plea failed to establish the required knowledge for
money laundering. As such, we review the issue for plain error. Thayer, 204 F.3d
at 1356. Contrary to Palacios’s contention, not only did he fail to object to the
contents of the government’s proffer, but he also explicitly stated that the conduct
and knowledge ascribed to him in the proffer were accurate. Further, the district
court made specific findings of fact as to the adequacy of the evidence presented,
the satisfaction of the government’s burden in demonstrating each element of the
charged offenses, and the correspondence of the conduct and knowledge admitted
by Palacios in his plea to the offenses charged. The district court thus satisfied its
duties to safeguard the defendant from entering into a plea unknowingly or
involuntarily. DePace, 120 F.3d at 238.
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The record does not support an argument that Palacios was lying, misled,
confused, or ambiguous in making this statement, and the court operates under the
presumption that the sworn defendant is telling the truth during a plea colloquy.
Medlock, 12 F.3d at 187. Palacios’s claim that he explicitly denied having the
statutorily required knowledge during the plea colloquy is refuted by the record.
Thus, the district court had no reason to question the sufficiency of the evidence
presented on Palacios’s conduct or knowledge, as he did not dispute the
government’s element-by-element rundown in the proffer. See DePace, 120 F.3d
at 238. As such, there is no error evident in the sentencing court’s acceptance of
Palacios’s plea. See Thayer, 204 F.3d at 1356. Without an error, there can be no
plain error affecting Palacios’s substantial right and no resultant degradation of the
integrity or reputation of the judicial system. Id. Consequently, Palacios has not
demonstrated any Rule 11 error but for which he would not have entered his plea,
and accordingly his argument fails. Dominguez Benitez, 542 U.S. at 83, 124 S. Ct.
at 2340.
II. Palacios’s Fifth and Sixth Amendment Claims
Palacios next argues that the district court’s failure to appoint counsel for his
resentencing hearing violated his Sixth Amendment and statutory rights to counsel,
and denied him the opportunity to present new evidence for consideration under
18 U.S.C. § 3553(a). He also contends that he was denied his Fifth and Sixth
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Amendments rights to be present at his resentencing hearing, as he was
resentenced in absentia. He further argues that the resentencing procedure also
contravened a recent Supreme Court decision, Pepper v. United States, 131 S. Ct.
1229 (2011), as it denied him the ability to present evidence of his post-sentencing
rehabilitation for consideration.
When an out-of-time appeal is granted in a § 2255 proceeding, the criminal
judgment must be vacated, the same sentence reimposed, and, upon reimposition
of the sentence, the defendant must be notified of both the rights associated with
making an appeal and the timing required to file an appeal. Phillips, 225 F.3d at
1201. The purpose of the Phillips out-of-time appeal remedy is to restore the
defendant to the same position that he would have been in had his lawyer filed a
timely appeal on his behalf. McIver v. United States, 307 F.3d 1327, 1331 (11th
Cir. 2002).
A defendant has the right to be present for sentencing, under both the
Federal Rules of Criminal Procedure and the Due Process Clause, but that right
does not extend to every instance of judicial action modifying a sentence. See
United States v. Parrish, 427 F.3d 1345, 1347–48 (11th Cir. 2005) (per curiam).
The Federal Rules establish the right to be present at sentencing in order to afford
the defendant an opportunity to challenge the accuracy and reliability of
information used by the judge in imposing a sentence and to present mitigating
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evidence, while the due process right is triggered when the defendant’s presence
would contribute to the fairness of a proceeding critical to the outcome of the
overall case. Id. Failure to hold a resentencing hearing, when under a Phillips
mandate to impose the same sentence originally imposed, is not an automatic
violation of the right to be present for sentencing. Id.
When a resentencing is purely a ministerial act, with no discretion given to
the sentencing judge, the absence of counsel is not prejudicial. Hall v. Moore, 253
F.3d 624, 627 (11th Cir. 2001). When the sentencing act is more than ministerial,
meaning the sentencing judge has discretion to impose a different sentence than
that previously imposed, the absence of counsel is presumptively prejudicial. Id. at
627–28.
When a defendant’s sentence has been set aside on appeal and the case
remanded to the district court for resentencing, the sentencing court may consider
evidence of the defendant’s post-sentencing rehabilitation that may, in certain
circumstances, warrant a downward variance. Pepper, 131 S. Ct. at 1241. District
courts may still be subject to a more limited remand following an appeal, such that
evidence of post-sentencing rehabilitation is not relevant for resentencing. Id. at
1249 n.17 (“Nor do we mean to preclude courts of appeals from issuing limited
remand orders, in appropriate cases, that may render evidence of postsentencing
rehabilitation irrelevant in light of the narrow purposes of the remand
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proceeding.”). When acting under an appellate court’s mandate, the district court
is bound to act in strict accordance with that mandate, unless the presentation of
new evidence or an intervening change in the controlling law dictates a different
result, or the appellate decision is clearly erroneous and acting upon it would result
in manifest injustice. Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510
(11th Cir. 1987).
In this case, even if we assume arguendo that Palacios’s sentencing
challenge is properly before us,1 we conclude that the district court did not
contravene Supreme Court precedent when it resentenced Palacios without a
hearing. Palacios’s 2008 total sentence was vacated and the case remanded
following his § 2255 motion, based on ineffective assistance of counsel in making
an appeal. Contrary to Palacios’s claim, however, there was no hearing held from
which he or his attorney was absent. The sentencing court was given no discretion
by the remand order, as it was required to reimpose the same exact total sentence
in accord with the Phillips out-of-time appeal procedure, and therefore the
amended judgment was a ministerial act rather than a proceeding where the
absence of counsel is presumptively prejudicial. Hall, 253 F.3d at 627–28.
1
We note that Palacios’s plea agreement contained a sentence appeal waiver, which the
district court explained during the plea colloquy, and none of the exceptions set forth therein
apply. United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006).
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Moreover, Palacios’s total sentence was not subject to modification, as the
district court was bound to comply with strict orders upon remand to impose the
same sentence of 135 months. Litman, 825 F.2d at 1510. Without any discretion
in sentencing, the district court would not have been able to consider reducing or
increasing his sentence. See Parrish, 427 F.3d at 1349. Additionally, as the
resentencing was not ordered to fix or correct an unlawful sentence but was rather
to reset the clock for filing an appeal by entering a new judgment identical to the
first but for the effective date, there were no new questions of fairness for the
district court to consider on due process grounds. Id. at 1347–48; see also McIver,
307 F.3d at 1331. The record does not show that Palacios’s rights to be present for
sentencing or for counsel to be present at such a proceeding were violated when
the district court, without a hearing, abided by this court’s mandate and entered a
new judgment reimposing Palacios’s original sentence.
Finally, the district court did not contravene Pepper when it resentenced
Palacios without a hearing. As the Supreme Court stated in Pepper, appellate
courts can still issue limited remand orders that render consideration of
postsentencing rehabilitation moot. 131 S. Ct. at 1249 n.17. Pepper did not create
an absolute right to have a hearing upon resentencing in order to consider evidence
on postsentencing rehabilitation, but rather struck down a prohibitive bar on
district courts from considering such evidence when a resentencing hearing is held.
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Id. at 1241. Notably, Palacios’s remanded case is distinguishable from Pepper by
the fact that the repeated de novo resentencing hearings for the defendant in
Pepper were ordered to fix errors and that the judges had considerable discretion in
imposing a new sentence. By contrast, the appellate mandate remanding Palacios’s
criminal judgment left no discretion for the district court to change anything other
than the date of entry for the judgment. In accordance with Phillips and in
obedience to the appellate mandate, the district court operated under a limited
remand because the only permissible change to the sentence was the date of entry.
Phillips, 225 F.3d at 1201; Pepper, 131 S. Ct. at 1249 n.17.
In sum, even if Palacios’s sentencing challenge is not barred by his sentence
appeal waiver, it is still meritless. As such, we conclude that the district court did
not violate Palacios’s constitutional and statutory rights to be present for
sentencing and have counsel at sentencing hearings. We therefore affirm.
AFFIRMED.
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