United States v. Samir D. Herrera , 510 F. App'x 796 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12503
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80168-KLR-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
SAMIR D. HERRERA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 21, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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Samir D. Herrera appeals his convictions and sentences for: (i) assault on a
federal officer with a firearm, in violation of 18 U.S.C. § 111(a)(1); (ii) using and
carrying a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii); and (iii) possessing a firearm as a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(e). On appeal, Herrera argues that the government
breached his plea agreement when, because of Herrera’s involvement in a jail fight
on the morning of his plea hearing, the government argued against a three-level
sentencing reduction for acceptance of responsibility. Upon careful review of the
record and the parties’ briefs, we affirm.
I.
We review de novo a district court’s jurisdiction to re-sentence a defendant.
United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). A district
court may not modify a term of imprisonment once it has been imposed, except
where expressly permitted by Federal Rule of Criminal Procedure Rule 35 or 18
U.S.C. § 3582, and a district court otherwise lacks inherent power to re-sentence a
defendant. See id. at 1315-16; 18 U.S.C. § 3582(c). The filing of a direct appeal
divests the trial court of jurisdiction to grant a Rule 35(a) motion seeking a
sentence reduction. See United States v. Prows, 888 F.2d 100, 101 (11th Cir.
1989); see also Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986)
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(explaining that, because the filing of a timely notice of appeal divests the trial
court of jurisdiction over the matters at issue in the appeal, the trial court is
without authority to modify a sentence after final judgment during the pendency of
an appeal). Moreover, when a criminal litigant files a notice of appeal after final
judgment, but before the denial of a Rule 35(a) motion to correct a sentence, the
litigant must file a new notice of appeal or amend the prior notice of appeal for
this Court to have jurisdiction to review the denial of the Rule 35(a) motion. See
United States v. Cartwright, 413 F.3d 1295, 1300 (11th Cir. 2005).
We generally review de novo whether the government breached a plea
agreement. See United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.
2008). However, where a defendant raises an objection for the first time in a Rule
35(a) motion, and does not appeal the denial of that motion, our review is limited
to plain error. Cartwright, 413 F.3d at 1300. To establish plain error, a defendant
must demonstrate: (i) error; (ii) that is plain; (iii) that affects substantial rights; and
(iv) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id. An error is plain if it is “obvious and clear under current
law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). Credibility
determinations are within the province of the fact-finder, and we will defer to the
district court’s determinations unless its understanding of the facts is contrary to
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the laws of nature or is so inconsistent or improbable on its face that no reasonable
fact-finder could accept it. United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002).
II.
Herrera argues that the government breached a plea agreement it entered
with him by not recommending that the district court reduce the guideline range by
three points for Herrara’s acceptance of responsibility. The plea agreement
provided that the government would recommend a reduction for acceptance of
responsibility, but this recommendation was conditional:
The United States, however, will not be required to make this motion
and theses [sic] recommendations if the defendant: (1) fails or refuses
to make a full, accurate and complete disclosure to the probation
office of the circumstances surrounding the relevant offense conduct;
(2) is found to have misrepresented facts to the government prior to
entering into this plea agreement; or (3) commits any misconduct
after entering into this plea agreement, including but not limited to
committing a state of [sic] federal offense, violating any term of
release, or making false statements or misrepresentations to any
governmental entity or official. Dkt. 25, ¶ 6.
On the morning of his guilty plea, January 25, 2012, Herrera was involved
in an incident with another inmate at the Palm Beach County Jail. Herrera struck
the inmate twice, leaving a gash on the left side of the inmate’s head and severely
injuring the inmate’s ear. An investigator for the Federal Public Defender testified
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that he had interviewed two other inmates who stated that the injured inmate (and
not Herrera) was the initial aggressor. The government, however, offered the
testimony of Deputy Sheriff Guy Mondesir, who observed the event and testified
that this was an unprovoked attack by Herrera and that Herrera was the initial
aggressor.
After hearing testimony from both sides, the district court accepted the
testimony of Deputy Sheriff Mondesir. Accordingly, the district court did not
award a three level acceptance-of-responsibility reduction.
III.
We do not have jurisdiction to consider the district court’s denial of
Herrera’s post-sentencing motions. Although Herrera objected to the lack of an
acceptance-of-responsibility reduction in his presentence investigation report
(“PSI”), both before and during his sentencing, he did not argue that the
government breached his plea agreement until after the district court had imposed
judgment. Because his notice of appeal only sought to appeal the court’s
judgment, and he did not file a new notice of appeal or amend his prior notice of
appeal after the district court denied his post-sentencing motions, we do not have
jurisdiction over the district court’s denial of those motions. See Cartwright, 413
F.3d at 1300. Similarly, because Herrera neither raised the government’s alleged
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breach before the district court entered judgment nor appealed the denial of his
post-sentencing motions, the question of whether the government breached his
plea agreement will be reviewed on appeal for plain error. See id.Herrera cannot establish error, let alone plain error, with respect to the
government’s alleged breach. The district court concluded that Herrera’s
representations that he had not been the aggressor in the jail fight, both in his PSI
objections and through counsel at his plea and sentencing hearings, were
inconsistent with the sentencing testimony of Deputy Sheriff Mondesir, and
therefore these representations were not credible. The district court found that
Deputy Sheriff Mondesir, who had given sworn testimony subject to cross-
examination, had no reason to be partial and no reason not to testify as to exactly
what he observed. Alternatively, Herrera only offered hearsay testimony of what
other inmates apparently told an investigator.1 Herrera has pointed to nothing in
the record suggesting that the district court’s credibility determination was so
inconsistent or improbable that no reasonable fact-finder could accept it. See
Ramirez-Chilel, 289 F.3d at 749.
1
Neither Herrera nor the injured inmate testified about this incident before the
district court.
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Herrera does not dispute that his attorney’s representations with respect to
the jail fight reflected his position on what occurred, and he has not submitted any
authority suggesting that his attorney’s representations should not be attributed to
him. Herrera also does not dispute the government’s contention that Herrera’s
attorney told government attorneys prior to the plea hearing that Herrera was not
the initial aggressor in the jail fight. See Dkt. 44 at 5. The plea agreement
specifically indicates that the government was not required to recommend an
acceptance-of-responsibility reduction if Herrera was “found to have
misrepresented facts to the government prior to entering into this plea agreement.”
In light of the district court’s credibility determination, the government was
released from its obligation to recommend an acceptance-of-responsibility
reduction because Herrera in fact misrepresented facts to the government prior to
entering into the plea agreement.
IV.
After thorough review of the record and the parties’ briefs, we affirm.
AFFIRMED.
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