United States v. Jose Jesus Castrejon

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10306 ELEVENTH CIRCUIT
MARCH 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00094-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JESUS CASTREJON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 9, 2010)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Jose Jesus Castrejon (“Castrejon”) appeals his conviction for conspiracy to
possess with intent to distribute more than 500 grams of methamphetamine in
violation of 21 U.S.C. § 841(a)(1). Although he argues that the district court failed
to comply with Rule 11 when it acquiesced to the parties’ agreement to defer
determination of the applicable drug quantity until sentencing but later failed to
make the required determination, he invited any alleged error by adopting the Pre-
sentence Investigation Report (“PSI”). Therefore, we AFFIRM.
I. BACKGROUND
Castrejon was indicted by a grand jury for one count of conspiracy to
possess with intent to distribute more than 500 grams of methamphetamine in
violation of 21 U.S.C. § 841(a)(1), two substantive counts under the same statute,
and one forfeiture count. R1-11. The indictment alleged that the conspiracy
covered the period from early 2005 to 17 March 2008. Id. at 1. He pled guilty to
the conspiracy count pursuant to a written plea agreement, and the remainder of the
counts were dismissed. R1-34 at 1. The plea agreement stated that the maximum
penalty that could be imposed was 10 years to life imprisonment. R1-26 at 3. In
the plea agreement, Castrejon agreed that the factual resume filed with the plea
agreement was true and correct. Id. at 2.
The factual resume detailed transactions with confidential informants in
2008 involving a total of approximately 198 grams. R1-27 at 1-5. It also indicated
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that, in 2005, Castrejon had provided another informant with methamphetamine,
beginning with three to four ounces at a time and including two occasions on
which he delivered one pound. Id. at 7. Finally, it noted that the “parties do not
agree on the drug amount for which the defendant is accountable, and have agreed
to allow the Court to make that determination at the time of the sentencing.” Id.At the guilty plea hearing, Castrejon indicated that he understood the terms
of his plea agreement. R1-57 at 8. The district court informed him that the
“maximum penalty the Court could impose is a minimum 10 years up to life
imprisonment,” and he indicated that he understood. Id. at 10. In explaining the
charges to Castrejon, the court stated that the “government has alleged more than
500 grams of methamphetamine were involved in the conspiracy, but I understand
that you and the government do not agree on the amount and that that will be left
for sentencing.” Id. at 14. Finally, the court confirmed that Castrejon understood
and agreed that by signing the factual resume, he was agreeing that the government
could prove the facts set forth in it. Id. at 15.
Following this hearing, the probation officer prepared a PSI, which noted
that the parties did not agree on the drug amount. PSI ¶ 16. However, the
probation officer also stated that the government’s records reflect that Castrejon
was involved with 4.508 kilograms, and, therefore, the probation officer stated he
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would use that amount in calculating the guidelines range. Id. The probation
officer determined that Castrejon’s base offense level was 38 because the offense
involved 1.5 kilograms or more of “Ice” methamphetamine. Id. at ¶ 21. After a
three-level reduction for acceptance of responsibility, his total offense level was
35. Id. at ¶¶ 27, 28, 31. Because he had no criminal history – a criminal history
category of I – his guidelines range was 168 to 210 months. Id. at ¶¶ 35, 63. The
PSI also indicated that the statutory minimum was 10 years and the maximum was
life imprisonment. Id. at ¶ 62. In his written response to the PSI, Castrejon stated
that he had no objections and that he adopted “the application and determination of
sentencing factors and the guidelines calculations contained therein.” R1-32.
At the sentencing hearing, the court noted that it had not received any
objections from the defense then stated that the “PSI indicated perhaps there was a
dispute over the amounts. But I never received any objections over the amount of
drugs involved.” R1-50 at 3. The government responded, “That’s correct, your
Honor. I spoke with [the defendant’s attorney] to confirm that he had no
objections. And he confirmed for me that there were no objections and indicated
that [another attorney] would be standing in for him today.” Id. When imposing
Castrejon’s sentence, the court commented, “Quite frankly I did not see in the
[PSI] enough evidence to support the four kilograms or the 1.5 kilograms to hold
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this defendant responsible. But since there is an agreement to that I would find that
amount.” Id. at 8. In light of the fact that this was his first offense and he had a
consistent work history, the court sentenced him to the mandatory minimum
sentence of 10 years’ imprisonment, which was below the guidelines range. Id.When asked for objections, Castrejon responded that he had no objections. Id. at 9.
II. DISCUSSION
On appeal, Castrejon argues that because the district court that accepted his
guilty plea acquiesced in the parties’ agreement to defer the determination of
statutory drug quantity until sentencing, the court could not comply with the
requirement of Rule 11 that he be informed of both the maximum possible penalty
and the mandatory minimum penalty. He does not, however, suggest that the court
committed Rule 11 error during the guilty plea hearing. Instead, he argues that the
Rule 11 error occurred when the district court failed to make the statutory drug
quantity determination at sentencing. He asserts that the court reluctantly adopted
the PSI’s guideline calculation of drug quantity because there were no objections
to the amount, not because there was sufficient evidence to support that amount,
but maintains that his failure to object to the drug quantity calculation for purposes
of calculating his guidelines range should not be interpreted as his acquiescence to
that amount in the context of establishing the drug quantity for purposes of
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§ 841(b). Therefore, he asserts that he is entitled to plain error relief because (1)
his substantial rights were affected because the imposition of a mandatory
minimum sentence without a finding that it should have applied limited the court’s
sentencing discretion, (2) a conviction based on evidence that the court found
“frankly” insufficient seriously affects the fairness, integrity, or public reputation
of judicial proceedings, and (3) he would not have bargained for a deferred
determination of the statutory drug amount and associated minimum and maximum
penalties if he had intended to plead guilty to a ten-year mandatory minimum
sentence.
We review a Rule 11 error raised for the first time on appeal for plain error.
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under plain error
review, the defendant has the burden to show that: (1) there is an error, (2) that is
plain or obvious, (3) affecting the defendant’s substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id. We may consider the whole record when considering whether
Rule 11 error occurred or prejudiced the defendant. See United States v. Vonn, 535
U.S. 55, 74-75, 122 S.Ct. 1043, 1054-55 (2002).
In order to show that his substantial rights were affected, a “defendant who
seeks reversal of his conviction after a guilty plea, on the ground that the district
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court committed plain error under Rule 11, must show a reasonable probability
that, but for the error, he would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340 (2004). The fact that a
defendant did not move to withdraw his guilty plea upon learning of a mistake
suggests that he cannot make this required showing. See United States v.
Bejarano, 249 F.3d 1304, 1306-07 (11th Cir. 2001) (per curiam).
However, we are precluded “from reviewing an issue raised on appeal if it
has been waived through the doctrine of invited error.” United States v. Brannan,
562 F.3d 1300, 1306 (11th Cir. 2009) (emphasis in original). The “doctrine of
invited error is implicated when a party induces or invites the district court into
making an error.” Id. (citation omitted). We have applied the doctrine to alleged
errors in the plea process that were not corrected at sentencing, as well as to
alleged errors that originated at sentencing. See United States v. Love, 449 F.3d
1154, 1157 (11th Cir. 2006) (per curiam); United States v. Harris, 443 F.3d 822,
824 (11th Cir. 2006).
In this case, the doctrine of invited error applies. Castrejon was aware that
the determination of the applicable drug amount was being deferred until the
sentencing hearing; however, rather than filing objections to the PSI’s use of more
than 1.5 kilograms in its calculations, he filed a response with the court stating that
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he “adopt[ed] the application and determination of sentencing factors and the
guidelines calculations contained therein.” R1-32. As a result of his adoption of
the PSI’s calculations, the district court, at sentencing, acquiesced in the use of that
drug amount even though it questioned whether there was sufficient evidence to
support finding him responsible for it. See R1-50 at 8. Thus, Castrejon invited any
error that he alleges occurred, and we will not review his claim.
III. CONCLUSION
Castrejon’s appeal based upon the district court’s alleged failure to comply
with Rule 11 is predicated upon invited error. Accordingly, we reject Castrejon’s
appeal and AFFIRM his conviction and sentence.
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