United States v. Rodriguez-Munoz , 179 F. App'x 229 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2006
Charles R. Fulbruge III
Clerk
No. 04-11321
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GREGORY RODRIGUEZ-MUNOZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:04-CR-29-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Gregory Rodriguez-Munoz appeals his conviction and
sentence for aiding and abetting the transportation of
undocumented aliens within the United States by means of a motor
vehicle, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18
U.S.C. § 2.
Mootness
As an initial matter, this court must raise the issue of
mootness sua sponte because it is a threshold issue and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11321
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implicates Article III jurisdiction. See Bailey v. Southerland,
821 F.2d 277, 278 (5th Cir. 1987). According to the records of
the Federal Bureau of Prisons, Rodriguez-Munoz was released from
prison on April 13, 2006. He is serving a three-year term of
supervised release.
To the extent that Rodriguez-Munoz appeals his conviction,
his appeal is not moot simply because his term of imprisonment
has expired. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). His
appeal of his sentence is not moot, either, because the district
court has the authority to modify the conditions of supervised
release pursuant to 18 U.S.C. § 3583(e)(2) or, after the
expiration of one year of supervised release, the authority to
terminate Rodriguez-Munoz’s supervised release obligations
pursuant to 18 U.S.C. § 3583(e)(1). See United States v.
Johnson, 529 U.S. 53, 59 (2000); see also Johnson v. Pettiford,
___ F.3d ___, 2006 WL 620782, at *1 (5th Cir. Mar. 14, 2006);
United States v. Hernandez, 2006 WL 690882 (5th Cir. Mar. 20,
2006) (unpublished); United States v. Benavides, 145 F. App’x 971
(5th Cir. Aug. 26, 2005) (unpublished).
Rodriguez-Munoz’s Conviction
Rodriguez-Munoz asserts that his Fed. R. Crim. P. 43 and
Sixth Amendment rights to a fair trial and an impartial jury were
violated because the Government conducted the majority of its
voir dire without his or his counsel’s presence. He bases these
claims on the fact that, before his trial, the Government
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conducted voir dire on most of his venire in an unrelated trial.
When reviewing a district court’s denial of a motion to strike
the venire, this court reviews determinations of fact for clear
error and determinations of law de novo. See United States v.
Alix, 86 F.3d 429, 434 (5th Cir. 1996).
Rodriguez-Munoz was “guaranteed the right to be present at
any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the
procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
However, “prior jury service during the same term of court in
another criminal case is not, standing alone, a sufficient basis
to support a challenge for cause.” United States v. Jefferson,
569 F.2d 260, 261 (5th Cir. 1978). To sustain a challenge for
cause, there must be “specific evidence that the prior service
biased a particular juror[.]” Id. Because Rodriguez-Munoz has
not asserted a specific bias against any juror, he has failed to
establish that he suffered any prejudice or that his trial was
unfair because he was not present at the voir dire in the
unrelated trial. See Jefferson, 569 F.2d at 261. Therefore, his
argument that he had a right to be present at the voir dire in an
unrelated trial is unavailing. See Stincer, 482 U.S. at 745.
Rodriguez-Munoz also had the right to counsel “during a
critical stage of the proceeding.” United States v. Cronic, 466
U.S. 648, 659 & n.25 (1984). Based on this right, Rodriguez-
Munoz alleges that his attorney had the right to be present at
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the voir dire in the unrelated trial. To prevail on his right to
counsel claim, Rodriguez-Munoz has to establish that the voir
dire in the unrelated trial was a critical stage of the
proceeding against him and affected his substantial rights. See
Cronic, 466 U.S. at 659 & n.25. Fed. R. Crim. P. 43 sets out the
specifics of Rodriguez-Munoz’s right to be present. Under Fed.
R. Crim. P. 43, Rodriguez-Munoz’s presence in the courtroom was
required at every stage of his trial, see Illinois v. Allen, 397
U.S. 337, 338 (1970), which began when jury selection began in
his case. United States v. Krout, 56 F.3d 643, 646 (1995).
Rodriguez-Munoz was in court and represented by counsel when jury
selection began in his case. His right to counsel claim is
unavailing.
Accordingly, Rodriguez-Munoz’s conviction is affirmed.
Rodriguez-Munoz’s Sentence
Rodriguez-Munoz renews his argument, preserved in the
district court, that in light of the Supreme Court’s decision in
Blakely v. Washington, 542 U.S. 296 (2004), his Sixth Amendment
rights were violated when the district court assessed a three-
level enhancement under § 2L1.1(b)(2)(A), because Rodriguez-Munoz
had smuggled a total of ten illegal aliens.
Where, as here, an error under United States v. Booker, 543
U.S. 220 (2005), has been preserved in the district court, we
“will ordinarily vacate the sentence and remand,” unless the
error is harmless.” United States v. Pineiro, 410 F.3d 282, 284
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(5th Cir. 2005) (internal quotation marks and citation omitted).
The Government bears the burden of demonstrating that the error
was harmless beyond a reasonable doubt. Id. at 285. In order to
carry this burden, the Government must show that the Booker error
did not affect the sentence, i.e., it must show “that the
district court would have imposed the same sentence absent the
error.” Id. at 286.
The Government concedes Booker error. However, it contends
that the error was harmless “because it is clear beyond a
reasonable doubt that the district court would not have imposed a
lesser sentence if the guidelines had been advisory rather than
mandatory at the time of Rodriguez-Munoz’s sentencing.” It notes,
inter alia, that the district court imposed a sentence at the top
of the guideline range and that the district court found the
“sentence adequately addressed the sentencing objectives of
punishment and deterrence.”
The imposition of the maximum sentence within the guideline
range alone is insufficient to establish that the Booker error was
harmless beyond a reasonable doubt. See United States v. Woods,
440 F.3d 255, 258-59 (5th Cir. 2006). In light of Woods, there is
nothing in the record which demonstrates beyond a reasonable doubt
that the district court would have imposed the same sentence under
the post-Booker advisory sentencing regime.
Accordingly, the Government cannot meet its burden, and
Rodriguez-Munoz’s sentence is vacated and the case is remanded for
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resentencing in accordance with Booker. This remedy does indeed
present an unusual situation: the district court must impose a
new sentence, which includes a term of imprisonment, but
Rodriguez-Munoz has completed that part of his sentence; thus,
even if the district court decides to impose a lesser sentence,
which it is authorized to do, it will have no effect on prison
time to be served. Thus, the only practical relief available on
remand is that provided in 18 U.S.C. § 3583(e), a decision
committed to the discretion and good judgment of the district
court.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.