UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40861
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE JESUS ECHEGOLLÉN-BARRUETA,
a/k/a Chucho, a/k/a Ricardo Gonzalez-Giron, a/k/a Jesus Arriaga,
a/k/a Jose Castellanos-Mujica, a/k/a Ricardo Gonzalez, a/k/a Jose
Luis Martinez-Sanchez, a/k/a Jose Luis Martinez, a/k/a Jose Enrique
Castellanos,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
November 10, 1999
Before EMILIO M. GARZA and PARKER, Circuit Judges and COBB,
District Judge.*
ROBERT M. PARKER, Circuit Judge:
Appellant, Jose Jesus Echegollén-Barrueta (“Echegollén”)
appeals the sentence arising from his guilty plea to conspiracy to
launder money in violation of 8 U.S.C. § 1956(a)(b)(B)(I) and
*
Federal Judge of the Eastern District of Texas, sitting by
designation.
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conspiracy to possess with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. § 846. We vacate
Appellant’s sentence and remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
Echegollén’s third superseding indictment charged five counts
of drug, conspiracy and related money-laundering offenses, as well
as one count of criminal forfeiture. Two co-defendants were named
in the two conspiracy counts and in the forfeiture count.
Echegollén pleaded guilty to the two conspiracy counts and
acquiesced in the forfeitures pursuant to a written plea agreement.
In exchange for Echegollén’s guilty plea, the Government agreed to
dismiss the remaining counts, and to recommend a three-level
reduction in guideline level for acceptance of responsibility, a
three-level increase for his supervisory role in the offense and a
sentence at the lower end of the guideline range. The parties
stipulated to a statement of facts, which set out Echegollén’s
involvement in extensive international money-laundering on behalf
of large-scale Mexican cocaine dealers. Echegollén agreed to
cooperate with law enforcement in exchange for a possible later
sentence reduction under Federal Rule of Criminal Procedure 35(b).
After the Pre-Sentence Investigation Report (PSI) and
objections were filed, the probation office filed an addendum to
the PSI alleging that Echegollén had attempted to escape from jail
by bribing a guard. In the addendum, the probation office
recomputed the guideline range, withdrawing its recommendation of
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the three-level downward adjustment for acceptance of
responsibility, and recommending an upward adjustment of two levels
for obstruction of justice. As a result, Echegollén’s guideline
range changed from offense level 38, with a sentencing range of
235-293 months, to offense level 43, with a sentence of life in
prison.
On June 30, 1997, the case was called for sentencing. The
district court conducted an evidentiary hearing on the obstruction
allegation, rejected Echegollén’s version of the facts (that he was
trying to ensnare a corrupt guard to fulfill his agreement to
cooperate with the government), and sentenced Echegollén to life in
prison without parole.
ACCEPTANCE OF RESPONSIBILITY
Echegollén argues that the prosecutor breached the plea
agreement by failing to recommend a three-level downward adjustment
in the guideline range for acceptance of responsibility and a
sentence of 235 months in prison. In fact, the Government
recommended the agreed-on acceptance of responsibility adjustment.
The prosecutor’s silence on the question after the court ruled that
Echegollén had obstructed justice is not a breach of the agreement.
Echegollén also contends that the district court erred in
denying the three-level acceptance of responsibility adjustment.
“The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility. For this reason, the
determination of the sentencing judge is entitled to great
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deference on review.” U.S.SENTENCING GUIDELINES MANUAL § 3E1.1,
comment. (n.5)(1995). At the sentencing hearing, in response to
Echegollén urging his entitlement to an acceptance of
responsibility adjustment, the district court stated that “once you
find obstruction of justice, you cannot give that three points [for
acceptance of responsibility].” Echegollén then cited the district
court to an exception to that general rule found in § 3E1.1,
comment. (n.4), which allows adjustments under both § 3C1.1,
obstruction of justice and § 3E1.1, acceptance of responsibility in
“extraordinary cases.” The district court’s rejection of
Echegollén’s position that his was such a case was not error.
DEPARTURE
Echegollén contends that the district court erred in denying
his motion for downward departure because he did not appreciate the
scope of his authority to depart downward. Echegollén’s argument
assumes that the district court’s comments made in the context of
ruling on a co-defendant’s request for departure formed the basis
for the denial of departure in Echegollén’s case. That assumption
is not supported by the record. We therefore find no error in the
district court’s denial of Echegollén’s motion for departure.
DENIAL OF ALLOCUTION
Echegollén contends that he was denied his right of allocution
at sentencing as provided in Federal Rule of Criminal Procedure 32,
and his right to the assistance of counsel, when the district court
imposed a life sentence without having first afforded either him or
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his counsel the opportunity to speak in mitigation of punishment.
“Before imposing sentence, the court must . . . address the
defendant personally and determine whether the defendant wishes to
make a statement and to present any information in mitigation of
sentence[.]” FED. R. CRIM. P. 32 (c)(3)(C). This court reviews de
novo whether a district court complied with Rule 32(c)(3)(C). See
United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998). The
rule envisions a personal colloquy between the sentencing judge and
the defendant. See id. The sentencing court “should leave no room
for doubt that the defendant has been issued a personal invitation
to speak prior to sentencing.” United States v. Washington, 44
F.3d 1271, 1276 (5th Cir. 1995)(citing Green v. United States, 365
U.S. 301, 305 (1961)). In this circuit, the district court’s
failure to comply with Rule 32(c)(3)(C) is not subject to Federal
Rule of Criminal Procedure 52's harmless or plain error provision.
See Myers, 150 F.3d at 462-64. Consequently, we do not concern
ourselves with the parties’ arguments concerning Echegollén’s
failure to object to the Rule 32 violations at trial and the
potential for a different outcome on remand after the district
court hears allocution.
The Government contends that the district court afforded
Echegollén the right of allocution in compliance with Rule
32(c)(3)(C). After the evidentiary hearing on Echegollén’s alleged
escape attempt, the district court found that Echegollén “did in
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fact, from the evidence before me, engage[] in obstruction of
justice.” Then, personally addressing Echegollén, the district
court asked, “Do you have anything to say to me before I decide
what to do in your case?” Echegollén, who had not testified at the
hearing on the obstruction issue, responded by arguing that he had
not attempted to escape. The district court replied, “You see, I
have not found that to be a fact, sir. I have no evidence to that
effect, you understand. Do you have anything else to say to me?”
Echegollén spoke once again about his role in the alleged escape.
The court then advised Echegollén that his “problem” was not the
alleged escape, but “that to which you admitted and pled guilty
earlier.” The court went on to discuss the forfeiture, then to
impose sentence. Echegollén did not speak again.
The question presented by this case is whether Rule 32 is
violated when the district court personally addresses a defendant,
arguably in compliance with Rule 32's requirements, asking twice
whether he has “anything to say,” but the defendant’s answers
demonstrate that he may have misunderstood the question, believing
that he was being asked to address a factual issue before the court
instead of being given an opportunity for allocution. “Even where
the judge satisfies the specifics of Rule 32, we must still assure
ourselves that the compliance was not merely in form.” United
States v. Sparrow, 673 F.2d 862, 865 (5th Cir. 1982). “To comply
with Rule 32, it is not enough that the sentencing court addresses
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a defendant on a particular issue, affords counsel the right to
speak, or hears the defendant’s specific objections to the
presentence report.” Myers, 150 F.3d at 462 n.3 (citing United
States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)). “[T]he
court, the prosecutor, and the defendant must at the very least
interact in a manner that shows clearly and convincingly that the
defendant knew he had a right to speak on any subject of his
choosing prior to the imposition of sentence.” Id. at 462 (quoting
De Alba Pagan, 33 F.3d at 129). We find, based on this chiaroscuro
record,1 that the trial judge did not communicate unequivocally to
Echegollén his right to allocution. We must therefore vacate the
sentence and remand for re-sentencing.
Echegollén argues that, compounding this error, defense
counsel was not invited to speak on his behalf prior to sentencing.
Federal Rule of Criminal Procedure 32(c)(3)(B) provides that before
imposing sentence, the court must “afford defendant’s counsel an
opportunity to speak on behalf of the defendant[.]” The government
suggests that the district court satisfied its obligation under
Rule 32(c)(3)(B) when its asked, “Anything else before the court
that would touch upon the sentencing matter?” The Government also
urges that the argument concerning acceptance of responsibility
1
An extraordinarily apt descriptive term, used by Judge Selya in
De Alba Pagan, 33 F.3d at 127, to highlight the recurring problem
encountered by appellate courts in determining from a cold record
what actually happened in the courtroom.
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made by Echegollén’s counsel after sentence was pronounced
satisfies Rule 32(c)(3)(B). Echegollén answers that the referenced
query came in the middle of the court’s disposition of the hearing
on whether there was obstruction of justice and can only be
understood as inquiring whether or not there were other guideline
objections or similar issues remaining to be resolved and that the
post-sentencing discussion did not cure the error.
Our consideration of this issue is somewhat complicated by the
fact that no objection based on denial of counsel’s opportunity to
speak in mitigation of sentence was made in the district court by
either the Government2 or the defendant. This Circuit has not
addressed whether Federal Rule of Criminal Procedure 52's plain
error standard applies to Rule 32(c)(3)(B) errors. Because
reversal is mandated on the basis of the Rule 32(c)(3)(C) error, we
decline to reach the closer question of whether Echegollén is
entitled to reversal on an Rule 32(c)(3)(B) error to which he
failed to object.
CONCLUSION
Based on the foregoing, we vacate Echegollén’s sentence and
2
The Government has both an obligation and an interest in
insuring that a guilty plea proceeding complies with all
constitutional and statutory requirements. See generally, United
States v. Shanahan, 574 F.2d 1228, 1231 (“The United States
Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty . . . whose interest, therefore,
in a criminal prosecution is not that it shall win a case, but that
justice shall be done.”)(quoting Berger v. United States, 295 U.S.
78, 88 (1935).
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remand for re-sentencing.
VACATED and REMANDED.
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