United States v. Gerardo Loreto ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30280
Plaintiff-Appellee, D.C. No.
1:16-CR-02047-SMJ
v.
GERARDO MADEROS LORETO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted December 11, 2020
Seattle, Washington
Before: BERZON and MILLER, Circuit Judges, and GLEASON,** District Judge.
Gerardo Loreto appeals from the district court’s imposition, at resentencing
after remand in United States v. Loreto, 765 F. App’x 407 (9th Cir. 2019), of a 396-
month sentence. As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
Loreto first contends that the remand was limited to resentencing him on the
two methamphetamine counts, so he could not also be resentenced on the three
murder-for-hire counts. This Circuit’s “general practice in a remand for
resentencing [is] to vacate the entire sentence.” United States v. Washington, 172
F.3d 1116, 1118 (9th Cir. 1999). Although the scope of remand is reviewed de novo,
“[s]ubsequent appellate panels presume that this general practice was followed
unless there is clear evidence to the contrary.” United States v. Ponce, 51 F.3d 820,
826 (9th Cir. 1995) (internal quotation omitted).
Here, there is no “clear evidence” that the sentence was only partially vacated
or that the remand was limited. The instruction that the government “must seek
resentencing based solely on the basic possession conviction” is most rationally read
in the context of the memorandum disposition and in light of the applicable
presumption to mean that the government could not seek a sentence calculated with
reference to any specific drug quantity but instead solely “on the basic possession
conviction.” This conclusion is bolstered by the reference to the basic possession
statute, 21 U.S.C. § 841(b)(1)(C). Similarly, the language “[w]e therefore vacate the
50-gram finding and the sentence, and remand for resentencing under 21 U.S.C. §
841(b)(1)(C),” is most rationally read in context not to limit the remand but to vacate
the entire sentence, and to instruct that resentencing on the methamphetamine counts
must be pursuant to the statutory provision related to a conviction for basic
2
possession. Moreover, the final clause states that the case was “affirmed in part,
vacated in part, and remanded.” The mandate did not limit the counts to be
resentenced nor did it limit the overall sentence. See Washington, 172 F.3d at 1119.
The district court did not err in resentencing Loreto on all five counts.
Loreto next contends that the district court improperly relied on uncharged
postconviction conduct—specifically an escape attempt—to resentence him to 36
months longer than his original sentence. Generally, “if a district court errs in
sentencing, we will remand for resentencing on an open record—that is, without
limitation on the evidence that the district court may consider.” United States v.
Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc). On remand, a district court
is “free to consider any matters relevant to sentencing, even those that may not have
been raised at the first sentencing hearing, as if it were sentencing de novo.” Id. at
885–86. At resentencing, Loreto argued that it was “inappropriate” to consider his
postconviction conduct on resentencing, but he did not challenge the evidence of the
alleged escape attempt other than to note that the district court would have to
“infer[]” from the evidence “his attempt to escape the jail.” The district court did
not err in relying on Loreto’s postconviction conduct to impose a longer sentence,
see Pepper v. United States, 562 U.S. 476, 503–04 (2011), and the record does not
support Loreto’s claim of retaliatory sentencing. Moreover, the government did not
have to prove Loreto’s postconviction conduct by clear and convincing evidence
3
because the enhancement for obstruction of justice did not have “an extremely
disproportionate effect on the sentence relative to the offense of conviction.” United
States v. Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015) (quoting United States v.
Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000)).
Loreto’s other two claims of procedural error fail. First, the district court did
not err in grouping all five counts when calculating the Guidelines range because
both U.S.S.G. § 3D1.2(b) and § 3D1.2(c) authorize such grouping. Second, although
the district court imposed some sentences consecutively to others, it did not impose
a sentence that was longer than the statutory maximum.
Loreto also maintains that his 396-month sentence was substantively
unreasonable. “Although we do not automatically presume reasonableness for a
within-Guidelines sentence, ‘in the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of sentences that would be
reasonable in the particular circumstances.’” United States v. Treadwell, 593 F.3d
990, 1015 (9th Cir. 2010), overruled on other grounds by United States v. Miller,
953 F.3d 1095 (9th Cir. 2020) (quoting United States v. Carty, 520 F.3d 984, 994
(9th Cir. 2008)). Loreto’s sentence falls within the Guidelines range of 360 months
to life; the district court sufficiently explained its consideration of the 18 U.S.C.
§ 3553(a) factors; and the district court justified the sentence by highlighting the
seriousness of Loreto’s conduct. Considering the totality of the circumstances and
4
giving due deference to the district court, United States v. Jenkins, 633 F.3d 788,
809 (9th Cir. 2011), Loreto’s 396-month sentence was substantively reasonable.
Finally, Loreto asserts that it was unreasonable for the district court to impose
a longer sentence for a lesser quantity of methamphetamine. However, the district
court reduced the methamphetamine sentences from 360 months to 156 months
each; it reached a longer aggregate sentence by adjusting which counts would run
consecutively.
AFFIRMED.
5