United States v. Osmay Oduardo , 164 F. App'x 945 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 1, 2006
No. 05-10921 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20546-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSMAY ODUARDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 1, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Osmay Oduardo appeals his 210-month concurrent sentences, which the
district court imposed after he pleaded guilty to conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and conspiracy to use and
carry a firearm during and in relation to a drug trafficking offense in violation of
18 U.S.C. § 924(c)(1)(A). Oduardo claims that the use of prior convictions in
calculating his criminal history category under the advisory sentencing guidelines
scheme established by United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), violates the Due Process and Ex Post Facto Clauses of the
United States Constitution. Oduardo further argues that the district court imposed
an unreasonable sentence on him because one of his codefendants, with the same
offense level and criminal history category as him, received a lesser sentences than
he did. Finally, Oduardo argues that the government breached its plea agreement
with him by not recommending a sentence at the low end of the guideline range.
I.
Because Oduardo raised his sentencing arguments under the Due Process
and Ex Post Facto Clauses for the first time on appeal, we review them for plain
error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We will,
in our discretion, correct plain error where there is (1) error, (2) that is plain, and
(3) that affects substantial rights, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
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Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005)
(internal citations and quotations omitted).
We have held there are no due process or ex post facto violations based on
the retroactive application of Booker’s remedial opinion making the guidelines
advisory. United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert.
denied, 126 S.Ct. 432 (2005). In Duncan, we determined that because
Booker made the guidelines advisory, not mandatory, “the various top ranges of
the Guidelines are no longer binding, and therefore, no longer constitute ‘little
relevant maximums.’ This leaves as the only maximum sentence the one set out in
the United States Code.” Id. at 1303. We further noted in Duncan that, even
under mandatory guidelines, “the law of this Circuit recognized the U.S. Code as
the source of the maximum sentence.” Id. at 1308.
To the extent that Oduardo is arguing that the district court improperly used
his prior convictions to calculate his criminal history category based on Booker,
this is meritless because we have ruled that Booker did not disturb the conclusion
in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d
350 (1998), that the government does not need to allege in its indictment and does
not need to prove beyond a reasonable doubt that a defendant had prior convictions
in order for the district court to use those convictions for sentence enhancements.
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United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005). Furthermore, while
the decision in Shepard v. United States, __ U.S. __, 125 S.Ct. 1254, 161 L.Ed.2d
205 (2005),1 may have cast doubt on the Almendarez-Torres holding, the United
States Supreme Court has not explicitly overruled it yet, so we are still bound by it.
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert.
denied, 126 S.Ct. 457 (2005).
Oduardo’s arguments under the Due Process and Ex Post Facto clauses are
meritless. At the time Oduardo committed the offense, the guidelines were deemed
mandatory and prior convictions were used in calculating a defendant’s criminal
history category. He had ample warning, based on the maximum statutory
sentences set out in the U.S. Code, that a life sentence was a possible consequence
of his actions. He also knew that his prior convictions would be used in
calculating his applicable guideline range. Therefore, no due process or ex post
facto violations are implicated in this case. See Duncan, 400 F.3d at 1307; see also
21 U.S.C. § 841(b)(1)(A)(ii).
Even assuming arguendo that there was error, Oduardo could not prove that
1
The Court in Shepard held that, under the Armed Career Criminal Act, when
determining whether a plea of guilty to burglary defined by a nongeneric statute admitted
elements of the generic offense, a sentencing court is limited to consideration of the charging
document, the terms of the plea agreement, or transcript of the colloquy between the judge and
defendant in which the factual basis for the plea was confirmed by the defendant. Shepard, 125
S.Ct. at 1263. Consideration of these things did not violate the Sixth Amendment. Id. at 1262-
63.
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his substantial rights were affected because he was sentenced within the applicable
guideline range to 210 months’ imprisonment. This same range would have
applied under the mandatory guidelines scheme in effect prior to Booker.
Accordingly, we affirm the district court in this respect.
II.
After the district court has accurately calculated the guideline range, it “may
impose a more severe or more lenient sentence” that we review for reasonableness.
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). When
fashioning a reasonable sentence, a district court should be guided by the factors in
18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005). District courts do not need to establish the reasonableness of the sentences
they impose by explicitly considering every factor from §3553(a) on the record;
some indication in the record that the court adequately and properly considered
appropriate factors in conjunction with the sentence will be sufficient when the
district court imposes a sentence within the guidelines range. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
In sentencing Oduardo at the top of the advisory guideline range, the district
court found that his criminal history category significantly understated that
seriousness of his criminal history. The district court also considered the history
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and characteristics of Oduardo when it noted his lenient sentences for similar past
convictions. See § 3553(a)(1). It further found that a severe sentence was
necessary to promote respect for the law, protect the public, and afford adequate
deterrence. See § 3553(a)(2)(A)-(C). It also found, based on Oduardo’s numerous
other convictions, that he was beyond need of any correctional treatment. See
§ 3553(a)(2)(D). Thus, the district court adequately and properly considered
relevant § 3553(a) factors in sentencing Oduardo.
Oduardo’s argument that the district court violated the § 3553(a) factor of
avoiding unwarranted sentencing disparities is without merit. First, at sentencing,
the district court noted that Oduardo’s criminal history was more serious than that
of his codefendants. Thus, the district court considered the factor of avoiding
unwarranted sentencing disparities, and implicitly rejected it, finding that
Oduardo’s offense warranted a higher sentence than his codefendants. That the
district court did not mention unwarranted sentencing disparities in imposing
sentence is irrelevant because the district court is not required to mention every
§ 3553(a) factor. Scott, 426 F.3d at 1329. Finally, disparity between sentences
imposed on codefendants is generally not an appropriate basis for relief on appeal.
See United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001) (dealing
with § 5K2.7 departure).
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Furthermore, the district court could have imposed a life sentence on
Oduardo. See Winingear, 422 F.3d at 1246 (comparing, as one indication of
reasonableness, the actual prison term imposed against the statutory maximum).
The district court also noted that it thought a reasonable sentence would be one
above the guideline range, but refrained from imposing a higher sentence because
Oduardo pled guilty. Based on all these considerations, the sentence is reasonable,
and we affirm the district court in this respect.
III.
Whether or not the government has breached a plea agreement is a question
of law that we review de novo. United States v. Mahique, 150 F.3d 1330, 1332
(11th Cir. 1998). “If, however, the district court affords a defendant an opportunity
to object after the imposition of sentence, and he fails to do so, any objections to
the sentence are barred absent manifest injustice.” Id. We equate manifest
injustice with plain error. Id. In the instant case, after the district court imposed
sentence, Oduardo did not specifically object based on the plea agreement or move
to withdraw his guilty plea, but he did note that the government had agreed to
recommend a sentence at the low end of the guideline range, and objected to the
government recommending an upward departure and not recommending sentence
at the low end of the range. However, we need not decide what the appropriate
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standard of review is because Oduardo cannot prevail under either standard.
We view a plea agreement as a contract between the government and the
criminal defendant. United States v. Howle, 166 F.3d 1166, 1168 (11th Cir. 1999).
A material promise by the government, which induces the defendant to plead
guilty, binds the government to that promise. Santobello v. New York, 404 U.S.
257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). When a plea rests in any
significant portion on the government’s promise or agreement, so that it becomes
part of the inducement or consideration, such promise must be fulfilled. Id.Whether the government violated the plea agreement is judged according to the
defendant’s reasonable understanding at the time that he entered his plea. United
States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). On the other hand, whether
the district court considered or was influenced by the government’s position on the
sentencing issue is not relevant. United States v. Johnson, 132 F.3d 628, 630 (11th
Cir. 1998). When a breach of an agreement by the government has been
established, we may remand the case to the district court, which may order specific
performance of the agreement or allow withdrawal of the plea. Santobello, 404
U.S. at 262-63, 92 S.Ct. at 499.
The government did not breach its plea agreement with Oduardo. By
viewing a plea agreement as a contract, we imply that both the government and the
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defendant have obligations that they must perform to fulfill the agreement. See
Howle, 166 F.3d at 1168. The language of the plea agreement indicates that
Oduardo’s duty to make full disclosures to the government and probation office
was a condition precedent to the government’s agreement to recommend a sentence
at the low end of the guideline range. Based on the resolved facts in the PSI and the
plea colloquy, Oduardo did not make full and accurate disclosures to the probation
office and misrepresented facts to the government prior to entering into the plea
agreement.
Oduardo also committed misconduct after entering into the plea agreement
by breaching the plea agreement. Oduardo made constitutional objections to the
sentencing guidelines when he challenged the drug quantity and gun enhancement
under Booker, even though he waived his ability to do this. He also objected to the
lack of a minor-role reduction when both parties agreed not to seek a role
adjustment. Thus, Oduardo did not fulfill his condition precedent to the
government recommending sentence at the low end of the guideline range.
Therefore, the government’s subsequent action of recommending a sentence above
the guideline range cannot be viewed as a breach and we affirm the district court in
this respect.
AFFIRMED.2
2
Oduardo’s request for oral argument is denied.
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