United States v. Noel Bango , 386 F. App'x 50 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3863
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UNITED STATES OF AMERICA
v.
NOEL K. BANGO,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-08-cr-00153-001)
District Judge: Honorable Gregory M. Sleet
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 24, 2010
Before: SMITH, FISHER and GREENBERG, Circuit Judges.
(Filed: July 2, 2010 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Noel Bango appeals his judgment of conviction and sentence for failure to register
as a sex offender, in violation of 18 U.S.C. § 2250(a). For the reasons set forth below, we
will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we recite only those facts necessary to our analysis.
On June 5, 1996, Bango was convicted of sexual battery with force or injury, in
violation of Fla. Stat. § 794.011(3), in the Circuit Court for Palm Beach County, Florida.
As a result, he served a term of imprisonment and was required to register as a sex
offender under 42 U.S.C. § 16913.
Shortly after his release from prison in May 2007, Bango registered as a sex
offender in Florida and Pennsylvania, providing a Philadelphia address as his residence.
In September 2007, he purchased a home in Delaware, but did not immediately reside
there. In January 2008, Bango registered as a sex offender in North Carolina, providing
the address of a hotel as his residence. In February 2008, Bango began residing in his
Delaware home, but never registered with the Delaware Sex Offender Central Registry.
He was arrested on September 23, 2008, and charged with one count of violating
§ 2250(a), under which individuals who travel interstate and fail to register in accordance
with 42 U.S.C. § 16913 may be charged criminally.
On April 29, 2009, Bango entered a guilty plea in the United States District Court
for the District of Delaware. However, on May 22, 2009, he filed a pro se motion to
withdraw his guilty plea, arguing that the Federal Public Defender’s Office (“FPDO”) had
coerced him into accepting the agreement. Despite these allegations, on May 26, 2009,
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Bango filed an “addendum” in which he requested that the FPDO continue representing
him. The FPDO subsequently filed a motion to withdraw from representing Bango and
denied the allegations of coercion.
On May 28, 2009, at Bango’s post-plea detention hearing, the District Court
considered both motions. The Court concluded that the FPDO had provided “fine
representation,” but that, given Bango’s allegations, there had been an “irretrievable
breakdown” in the attorney-client relationship. (Supp. App. 89, 93.) The Court then
granted the FPDO’s motion to withdraw as counsel and denied Bango’s motion to
withdraw his guilty plea. After continuing the detention hearing with Bango proceeding
pro se, the Court granted the government’s motion for detention pending sentencing,
noting that Bango had not met his burden of showing that he did not pose a danger to the
community.
The District Court appointed new counsel eight days later, on June 5, 2009. On
September 24, 2009, Bango was sentenced to 21 months of incarceration followed by a
three-year period of supervised release. This timely appeal followed.
II.
On appeal, Bango argues that (1) his Sixth Amendment right to counsel was
violated when the District Court required him to proceed pro se for the remainder of the
May 28, 2009 post-plea detention hearing, after the FPDO’s motion to withdraw was
granted, (2) the government breached his plea agreement by failing to request a
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downward departure, and (3) his sentence was procedurally and substantively
unreasonable. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We exercise plenary review over constitutional challenges to a defendant’s
conviction. See United States v. Walker, 473 F.3d 71, 75 (3d Cir. 2007). We also
conduct plenary review of an alleged breach of a plea agreement. See United States v.
Hodge, 412 F.3d 479, 485 (3d Cir. 2005). We review a sentence for reasonableness,
under an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
A.
We first consider Bango’s claim that his conviction was obtained in violation of
his Sixth Amendment right to counsel because he was temporarily denied counsel at the
May 28, 2009 post-plea detention hearing. The Sixth Amendment guarantees “an
accused the assistance of counsel at all critical stages of a proceeding.” Henderson v.
Frank, 155 F.3d 159, 166 (3d Cir. 1998). Notwithstanding this guarantee, reversal is only
warranted where the “deprivation of the right to counsel affected – and contaminated –
the entire criminal proceeding.” Satterwhite v. Texas, 486 U.S. 249, 257 (1988). Thus,
we apply a harmless error standard to denials of counsel, even at allegedly critical stages
of criminal proceedings. See, e.g., Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007)
(applying harmless error standard to deprivation of counsel at preliminary hearing). Any
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alleged error based on a deprivation of counsel is harmless where it does not “undermine
the reliability of the entire criminal proceeding.” Ditch, 479 F.3d at 255.
We reject Bango’s argument that his brief lack of counsel at his post-plea
detention hearing constitutes reversible error because it clearly did not “undermine the
reliability of the entire criminal proceeding.” Id. As to the reliability of his conviction,
Bango was represented by counsel at every other stage of his criminal proceeding,
including the change of plea hearing on April 29, 2009. Bango then filed his motion to
withdraw his guilty plea pro se on May 22, 2009, despite the fact that he was represented
by counsel at the time. The District Court denied Bango’s motion immediately after
granting the FPDO motion to withdraw, noting, “I have prepared an order denying that
motion, which we will file right now,” and without hearing argument from either party.
(Supp. App. 96.) Bango’s pro se appearance at the remainder of the hearing thus cannot
have “contaminated” the District Court’s denial of his motion to withdraw his guilty plea,
as the District Court resolved the merits of his motion in advance of that hearing, when
Bango was still represented by counsel.
Nor are we persuaded that Bango’s later sentencing, at which he was represented
by counsel, was “contaminated” by his earlier lack of representation. The District Court
did not rely on any information from the May 28, 2009 hearing when it imposed Bango’s
sentence of 21 months in prison. Additionally, his 4-month detention between the post-
plea hearing and sentencing did not prejudice him because it was counted against his 21-
5
month sentence. Thus, even if we were to hold that the District Court’s decision to deny
Bango counsel was error, it would be harmless error for which no remedy is afforded.
We therefore reject Bango’s Sixth Amendment challenge to his conviction and
sentence.
B.
Next, we will address Bango’s argument that the government breached the plea
agreement by failing to move for an additional one-point reduction in his offense level
under U.S.S.G. § 3E1.1(b). The plea agreement explicitly states that “[t]he Government
will not . . . move for an additional one-point reduction under United States Sentencing
Guideline Section 3E1.1(b).” Bango’s only arguments to the contrary pertain to alleged
oral representations which do not support his contentions and, in any event, cannot
modify the terms of a written agreement. (Bango Br. 16-18.) Accordingly, we reject
Bango’s claim that the government breached the terms of his plea agreement.
C.
Finally, we address the procedural and substantive reasonableness of Bango’s
sentence.
Bango argues that the District Court incorrectly calculated his Sentencing
Guidelines range by assigning a Base Offense Level of 16, rather than 12. Guidelines
§ 2A3.5 assigns a Base Offense Level of 16 for violations of 18 U.S.C. § 2250(a) by
defendants who were required to register as Tier III sex offenders. Thus, the only issue is
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whether Bango was a “Tier III” sex offender as defined in 42 U.S.C. § 16911(4). Section
16911(4) defines a Tier III sex offender as one “whose offense is punishable by
imprisonment for more than 1 year and . . . is comparable to or more severe than . . .
aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title
18).” Bango was convicted under Fla. Stat. § 794.011(3) which states, “A person who
commits sexual battery upon a person 12 years of age or older, without that person’s
consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual
physical force likely to cause serious personal injury commits a life felony.” This statute
is certainly “comparable to or more severe than” the criminal conduct described in
§§ 2241 and 2242. See 18 U.S.C. § 2241 (defining “aggravated sexual abuse” as
“knowingly caus[ing] another person to engage in a sexual act . . . by using force against
that other person; or . . . by threatening or placing that other person in fear that any person
will be subjected to death, serious bodily injury, or kidnaping.”); id. § 2242 (defining
“sexual abuse” as “knowingly caus[ing] another person to engage in a sexual act by
threatening or placing that other person in fear (other than by threatening or placing that
other person in fear that any person will be subjected to death, serious bodily injury, or
kidnapping)”). The District Court therefore properly concluded that Bango was a Tier III
sex offender with a Base Offense Level of 16 under the Sentencing Guidelines.
Bango also challenges the District Court’s imposition of a special condition of
supervised release requiring him to disclose to current and prospective female tenants his
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convictions for sexual battery with force or injury and failing to register as a sex offender.
We review special conditions of supervised release under a deferential abuse of discretion
standard. See United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007). A district
court may impose a special condition of supervised release so long as it is “reasonably
related” to the sentencing factors in § 3553(a) and “involves no greater deprivation of
liberty than is reasonably necessary for the purposes set forth” in that statute. 18 U.S.C.
§ 3583(d). Among the § 3553(a) factors that a special condition must be “reasonably
related” to is the need for the sentence “to protect the public from further crimes of the
defendant.” Id. § 3553(a)(2)(C).
In imposing this special condition, the District Court reasoned that
[a]s a landlord, Mr. Bango would likely have a key to [his] houses and at
the very least would know where the properties were and who lived in
them. Given the nature of Mr. Bango’s underlying offense and his failure
to register in this case, requiring Mr. Bango to notify actual and prospective
female tenants of his past . . . is a reasonable condition for supervision.
(Supp. App. 135-36.) We agree. The existence of a registration requirement for certain
sexual offenders evidences Congress’ judgment that the public has a right to be
forewarned of the location of such individuals. As a landlord, Bango is entrusted to some
degree with the safety of his tenants’ homes and persons. His prior failure to register as a
sex offender deprives his tenants, who may be uniquely vulnerable to any future criminal
conduct, of that information. Thus, the District Court’s imposition of a notification
requirement for female tenants is “reasonably related” to the need for Bango’s sentence
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“to protect the public from further crimes of the defendant.” 18 U.S.C. §§ 3553(a)(2)(C),
3583(d).
Bango next challenges the denial of his two motions for downward departures, as
well as his additional motion for a downward departure that the District Court did not
consider because it was untimely made. “We do not have jurisdiction to review
discretionary decisions by district courts to not depart downward . . . [unless] the district
court’s refusal to depart downward is based on the mistaken belief that it lacks discretion
to do otherwise.” United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009) (quoting
United States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007)). The transcript from Bango’s
sentencing hearing demonstrates that the District Court considered his first two motions
and was well aware of its authority to grant them. Accordingly, we lack jurisdiction to
consider these claims. With regard to the untimely motion, a district court retains the
discretion to consider an untimely motion for a downward departure but is not obligated
to do so. See United States v. Rashid, 274 F.3d 407, 416 (6th Cir. 2001). Bango’s third
motion was plainly untimely,1 and the District Court was within its discretion in declining
to consider it.
1
Rule 32 of the Federal Rules of Criminal Procedure and the District of Delaware
Local Rule 8 require that objections to the presentence report be made 14 days prior to the
sentencing hearing. Bango raised his third motion for a downward departure at the
sentencing hearing.
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Finally, Bango alleges that his sentence of 21 months of incarceration is
procedurally and substantively unreasonable because the District Court failed to
adequately consider and apply the sentencing factors in § 3553(a), and failed to credit
mitigating factors such as evidence of rehabilitation. We first note that the District Court
properly began by correctly calculating the Sentencing Guidelines and ruling on any
motions for departure. See United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008) (“[A]
district court must begin the process by correctly calculating the applicable Guidelines
range . . . [and then] ‘formally rul[ing] on the motions of both parties.’”) (quoting United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)). The District Court then carefully
considered each § 3553(a) factor in light of Bango’s individual situation. (See Supp.
App. 163-70.) The sentence is therefore procedurally reasonable.
Substantively, a district court is required to give the § 3553(a) factors “meaningful
consideration” as they relate to the defendant’s individual case, including consideration of
relevant mitigating factors. United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). A
sentence is not, however, rendered unreasonable simply because the district court
“fail[ed] to give mitigating factors the weight a defendant contends they deserve.” United
States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). The record here is clear that the
District Court gave “meaningful consideration” to the relevant sentencing factors and
weighed those factors against any allegedly mitigating considerations. The Court
addressed Bango’s background and characteristics, record evidence of his medical
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evaluations, and the seriousness of his offense. (Supp. App. 164-69.) The District Court
then imposed the minimum sentence recommended by the Guidelines – 21 months –
which we may afford a “presumption of reasonableness.” See Rita v. United States, 551
U.S. 338, 347 (2007).
Because Bango’s sentence is both procedurally and substantively reasonable, we
will affirm the District Court.
IV.
For the foregoing reasons, we affirm the District Court’s judgment of conviction
and sentence.
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