United States v. Roberto Moreno-Gonzalez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11203 ELEVENTH CIRCUIT
JANUARY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 03-00493-CR-14-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MORENO-GONZALEZ,
a.k.a. Beto,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 19, 2010)
Before DUBINA, Chief Judge, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Appellant Roberto Moreno-Gonzalez appeals his 400-month sentence for
conspiracy to possess cocaine, methamphetamine, and marijuana with intent to
distribute. Moreno-Gonzalez was convicted after a jury trial of (1) conspiracy to
possess cocaine, methamphetamine, and marijuana with intent to distribute, (2)
possession of a firearm in furtherance of a drug trafficking crime, and (3)
conspiracy to commit money laundering. At his original sentencing, the district
court imposed, among other things, a four-level sentencing enhancement based on
Moreno-Gonzalez’s leadership role in the offense and sentenced him to a below-
guideline 420-month sentence of imprisonment on his drug conspiracy conviction.
On appeal of his convictions, we described Moreno-Gonzalez as a leader of the
drug conspiracy, and affirmed that conviction but vacated his gun and money
laundering convictions and remanded for a new sentencing hearing solely on the
drug conspiracy conviction. At the re-sentencing, Moreno-Gonzalez renewed his
objection to a four-level enhancement for his leadership role, but the district court
declined to revisit its prior ruling on the enhancement.
I.
In this appeal, Moreno-Gonzalez argues that the district court relied on
unreliable evidence and denied him his confrontation rights when it applied a
four-level enhancement for his leadership role. He asserts that no witness testified
that Moreno-Gonzalez recruited or directed the other members of the conspiracy.
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The government responds that Moreno-Gonzalez’s argument is foreclosed
by the law of the case doctrine because we previously rejected his challenge to the
enhancement for his leadership role.
Moreno-Gonzalez replies that the law of the case doctrine does not apply
because we vacated the money laundering conviction, on which the leadership
enhancement relied. He asserts that the leadership enhancement, as recommended
by the pre-sentence investigation report, relied on evidence of transactions, ledgers,
and paperwork in Moreno-Gonzalez’s possession, evidence which also was used to
support the defunct money laundering conviction. Although reconsideration of the
enhancement would normally be prohibited by the law of the case doctrine,
Moreno-Gonzalez argues that his new sentence relies on conduct underlying his
now-vacated convictions. Moreno-Gonzalez acknowledges that district courts are
normally permitted to consider acquitted conduct, but argues that the evidence was
legally insufficient for those counts, causing punishment based on them to violate
double jeopardy.
The four-level enhancement for a defendant’s role “as a leader or organizer
under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.” United
States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “[W]hen a criminal
sentence is vacated, it becomes void in its entirety; the sentence-including any
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enhancements-has been wholly nullified and the slate wiped clean.” United States
v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (internal quotation marks omitted).
Under the law of the case doctrine, both the district court and the court
of appeals are bound by findings of fact and conclusions of law made
by the court of appeals in a prior appeal of the same case unless (1) a
subsequent trial produces substantially different evidence, (2)
controlling authority has since made a contrary decision of law
applicable to that issue, or (3) the prior decision was clearly erroneous
and would work manifest injustice.
Id.Based on our determination in the first appeal that Moreno-Gonzalez was a
leader in the drug conspiracy, we conclude that the district court did not clearly err
by declining to revisit its prior decision regarding this four-level enhancement for
Moreno-Gonzalez’s leadership role.
II.
Moreno-Gonzalez argues that he received a harsher sentence than previously
imposed because the district court originally departed downward but refused to do
so at the re-sentencing. Because the only new favorable information since his
previous sentencing was his good adjustment to prison life, the district court must
have improperly presumed that the guideline range was reasonable.
Moreno-Gonzalez also argues that his sentence is vindictive under these
circumstances.
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Arguments that were not raised before the district court are reviewed for
plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) that “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citation omitted). Due process
“requires that vindictiveness against a defendant for having successfully attacked
his first conviction must play no part in the sentence he receives after a new trial.”
North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d
656 (1969).
When a defendant successfully challenges a conviction on appeal, the
district court cannot impose a more severe sentence than the defendant previously
received unless the reasons for imposing a more severe sentence appear in the
record. United States v. Monaco, 702 F.2d 860, 883-85 (11th Cir. 1983) (noting
there may be a realistic likelihood of vindictiveness at re-sentencing where a new
sentence was harsher and the district court did not explain why). In determining
whether a sentence is more severe after re-sentencing when a defendant was
convicted of multiple counts, the portion of the original sentence attributable to
overturned convictions is disregarded. Id. at 885. After the appellate court vacates
a prior sentence, the defendant is not automatically entitled to the same downward
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departure that the district court previously awarded. A presumption of
vindictiveness could arise if the district court had sentenced him more harshly, but
the presumption doesn’t arise here because he did not receive a longer sentence
and the district court’s refusal to reapply the departure does not mean that the
sentence is vindictive when the new sentence is lower. See United States v. Grant,
397 F.3d 1330, 1336-37 (11th Cir. 2005).
Furthermore, the district court did not originally depart downward but
instead varied from the advisory guidelines. Thus, the district court did not act
vindictively when it refused to depart downward at the re-sentencing. Moreover,
the district court explained it’s sentencing sufficiently to demonstrate that there
was no vindictiveness in the sentence. Accordingly, we affirm Moreno-Gonzalez’s
sentence.
AFFIRMED.
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