United States v. Leonardo Rosquete

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-15862 ELEVENTH CIRCUIT
Non-Argument Calendar June 28, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-20980-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO ROSQUETE,
a.k.a. Leonardo Firmo Rosquete-Trusillo,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 28, 2005)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Leonardo Rosquete, a federal prisoner, appeals his sentence for conspiracy
to possess with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846. On appeal, Rosquete argues that: (1) in light of
Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), the district court erred in applying career offender enhancement, U.S.S.G.
§ 4B1.1(a), and sentencing him under a mandatory guideline system; and (2) the
district court erred by considering two of his prior convictions as unrelated for
purposes of imposing the career offended enhancement. We address these issues
in turn.
1. Blakely/Booker Issue
“[A] constitutional objection that is timely, . . . receives the benefit of
preserved error review.” United States v. Candelario, 240 F.3d 1300, 1305 (11th
Cir. 2001). Where, as in this case, an error was preserved below, we review the
case de novo and, “if error is found, it is generally subject to the harmless error
analysis of Fed.R.Crim.P. 52(a).” Candelario, 240 F.3d at 1303 n.3. Rule 52(a)
provides that “[a]ny error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” Fed.R.Crim.P. 52(a).
In Booker, the Supreme Court held that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
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admitted by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 543 U.S. at ___, 125 S.Ct. at 756.
We have since clarified that there are two types of Booker error: (1) Sixth
Amendment, or constitutional, error based upon sentencing enhancements neither
admitted by the defendant nor submitted to a jury and proven beyond a reasonable
doubt; and (2) statutory error based upon sentencing under a mandatory guidelines
system. United States v. Shelton, 400 F.3d 1325, 1329-34 (11th Cir. 2005).
Where the district court sentenced the defendant under a mandatory guideline
system, there is statutory error, even in the absence of a Sixth Amendment
enhancement violation. Id. at 1330-31.
Booker constitutional error is harmless when the government can show,
beyond a reasonable doubt, that error did not contribute to the ultimate sentence.
Booker statutory error, however, is subject to a less demanding test. United States
v. Mathenia, No. 04-15250, slip op. at 2328 (11th Cir. May 23, 2005). A non-
constitutional error is harmless if, viewing the proceedings in their entirety, the
error did not affect the sentence or had only a “very slight effect.” Id. at 2328-29.
If the sentence was not “substantially swayed” by the error, then the sentence is
due to be affirmed in spite of the error. Id. at 2329. The non-constitutional
harmless error standard is not easy for the government to meet, and is as difficult
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for the government to meet as the third-prong prejudice standard that a defendant
must meet under plain error review. Id. The third prong of the plain error
standard requires the defendant to show that the error “affected substantial rights”
in that the error was prejudicial and not harmless. United States v. Olano, 507
U.S. 725, 730-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). In the preserved
non-constitutional context, the standard is the same, except that the government
has the burden to show that the error did not affect the defendant’s substantial
rights. Mathenia, slip op. at 2329.
In this case, there was no constitutional Booker error in applying the career
offender enhancement, which was based upon Rosquete’s prior convictions. In
Almendarez-Torres v. United States, 523 U.S. 224 118 S.Ct. 1219, 140 L.Ed.2d
350 (1997), the Supreme Court held recidivism is not a separate element of an
offense that the government is required to prove beyond a reasonable doubt. 523
U.S. at 247, 118 S.Ct. at 1232-33. Booker did not overrule Almendarez-Torres,
but rather specifically excepted prior convictions from its holding. See Booker,
543 U.S. at ___, 125 S.Ct. at 756. Recently, we held that the Supreme Court has
left its holding in Almendarez–Torres undisturbed, and that Almendarez-Torres
remains good law and binding precedent until the Supreme Court holds otherwise.
United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005).
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Even if there was no Sixth Amendment violation, however, the district court
erred in sentencing Rosquete under a mandatory guidelines system. See Shelton,
400 F.3d at 1330-31. Accordingly, we must determine whether the government
has met its burden to show that the error did not affect the sentence or had only a
“very slight effect.” Mathenia, slip op. at 2328-29. We conclude that the
government has not met that heavy burden in the instant case. There is nothing in
the record to indicate that, had it known the guidelines were advisory only and
exercised its discretion in sentencing Rosquete, the district court would have
imposed the same sentence. Therefore, we vacate and remand for resentencing
consistent with Booker.
2. Collateral Estoppel
Rosquete also argues that the district court was required, under the doctrine
of collateral estoppel, to find that his prior convictions were related for the
purposes of determining whether a career offender enhancement was warranted.
He asserts that the determination that his convictions were related was an essential
element of a prior federal proceeding and should not have been relitigated in the
instant sentencing proceedings.
A district court’s ruling concerning whether collateral estoppel applies to an
issue is a question of law that we review de novo. United States v. Shenberg, 89
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F.3d 1461, 1478 (11th Cir. 1996). We review for clear error a district court’s
determination that prior convictions are unrelated for criminal history purposes.
United States v. Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).
Pursuant to U.S.S.G. § 4B1.1(a), a defendant is a career offender if (1) he
was at least 18 years old at the time he committed the instant offense of
conviction, (2) the instant offense of conviction is a felony that is, inter alia, a
controlled substance offense, and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense. Prior
sentences imposed in unrelated cases are counted separately, while prior sentences
imposed in related cases are treated as one sentence for the purpose of determining
career offender status. U.S.S.G. §§ 4A1.2(a)(2), 4B1.2(c). Prior sentences are
considered related if they resulted from offenses that (1) occurred on the same
occasion, (2) were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing. However, prior sentences are not considered
related if they were for offenses that were separated by an intervening arrest; for
example, if the defendant is arrested for the first offense prior to committing the
second offense. U.S.S.G. § 4A1.2, comment. (n.3).
Collateral estoppel requires that an issue of ultimate fact has been
determined by a valid and final judgment. If it has, it generally cannot be
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relitigated between the same parties in a future lawsuit. Ashe v. Swenson, 397
U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).
Rosquete never showed that the issue of whether his two prior convictions
were related had been determined by a valid and final judgment. In his sentencing
memorandum and at the sentencing hearing, the only evidence Rosquete presented
in support of his argument that the issue had previously been litigated and decided
was a portion of a PSI from the prior federal proceeding. However, the PSI
contains only the recommendation of the probation officer, which the district court
is not bound to follow. See Fed.R.Crim.P. 32(f), (i) (noting that the defendant has
the opportunity to object the probation officer’s recommendations in the PSI and
the district court will then rule on the dispute). Rosquete provided no proof that
the district court actually accepted the probation officer’s recommendation, held
that the prior convictions were related, and sentenced him on that basis.
Therefore, he did not show below that this issue was determined by a valid final
judgment, and the doctrine of collateral estoppel did not preclude the district court
from considering whether the cases were related. Ashe, 390 U.S. at 443, 90 S.Ct.
at 1194. We note, however, that as this case is being remanded for resentencing,
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Rosquete would not be precluded from providing such proof, it it exists. 1
VACATED AND REMANDED.
1
If, however, consideration of these offenses are not barred by collateral estoppel, there
would be no error in concluding that Rosquete’s convictions were unrelated as the offenses were
separated by an intervening arrest.
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