United States v. Jasmin Marrero

USCA11 Case: 22-14305 Document: 29-1 Date Filed: 08/09/2023 Page: 1 of 19
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14305
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASMIN MARRERO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00449-MLB-1
____________________
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2 Opinion of the Court 22-14305
Before NEWSOM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Defendant Jasmin Marrero appeals her 24-month sentence
imposed for violating the terms of her supervised release, pursuant
to 18 U.S.C. § 3583(e)(3). Marrero does not dispute that she
violated multiple terms of her supervised release. Rather, she
argues that her sentence is procedurally unreasonable because the
district court demonstrated a personal bias against her. After
review, we affirm Marrero’s revocation sentence.
I. BACKGROUND
A. Marrero’s Conviction and Supervised Release
In 2013, defendant Marrero pled guilty to one count of
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). The district
court imposed a 78-month sentence, followed by five years of
supervised release.
In 2019, defendant Marrero began her supervised release
term. While residing at a halfway house, Marrero met Michael
Robinson, also on supervised release for federal drug crimes.
Marrero and Robinson married and had a child. The same
probation officer supervised them.
B. 2019 and 2020 Domestic Abuse and Recantations
In July 2019 and in February 2020, the police arrested
Robinson for domestic battery against Marrero at their home after
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she said Robinson attacked her. Twice, the probation officer filed
a petition to revoke Robinson’s supervised release but then
withdrew it because Marrero later changed her story.
C. Marrero’s First Revocation in 2020
In March 2020, defendant Marrero admitted violating her
supervised release by: (1) not complying with her home detention
program; (2) failing to maintain the batteries in her GPS tracker;
(3) failing to produce a urine sample and tampering with the urine
sample; and (4) unlawfully possessing a controlled substance by
taking a coworker’s Adderall and by testing positive for
amphetamines and marijuana. The district court revoked
Marrero’s supervised release and imposed a 12-month sentence,
followed by 36 months of supervised release.
D. 2022 Domestic Abuse and Recantation
In 2021, defendant Marrero was released from prison and
was on supervised release. Later, Marrero’s supervision was
transferred to the Northern District of Georgia. Ultimately, the
same district court judge and prosecutor handled both Marrero’s
and Robinson’s revocation cases.
In January 2022, the police again arrested Robinson for
domestic battery after Marrero said he attacked her at their home.
The probation officer filed a petition to revoke Robinson’s
supervised release. Both the probation officer and prosecutor
spoke with Marrero, who confirmed she was truthful about
Robinson’s attack.
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The probation officer also obtained the police report,
photographs, and body camera footage, which showed that when
police arrived, Marrero had bruises on her face and arms and a cut
on the side of her face. Later, however, Robinson’s defense counsel
informed the probation officer that at Robinson’s state bond
hearing, Marrero recanted and testified that she was the aggressor
during the fight.
E. Robinson’s April 14, 2022 Revocation Hearing
The district court set a hearing on Robinson’s revocation
petition for April 14, 2022. The prosecutor subpoenaed Marrero,
who said she would come but failed to appear. The prosecutor
advised the court that Marrero had again recanted and the
prosecutor might have Jencks material. Ultimately, the district court
agreed to continue Robinson’s revocation hearing.
Before doing so, the district court judge made some
comments that Marrero claims are inconsistent with what the
same judge said in her later revocation hearing when he found
Marrero untruthful. We list them. After reviewing the body
camera footage, the district court observed that: (1) there was
“undisputed evidence . . . that [Robinson] beat her”; (2) “there [was]
sufficient evidence for [the court] to find by a preponderance that
[Robinson] committed battery against Ms. Marrero”; and (3)
Marrero’s recantation “would not change that” because it was “not
uncommon for a battered woman to do that.”
After the probation officer’s testimony, the district court
said: (1) it had “no doubt” that Robinson beat Marrero on July 2,
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2019, February 9, 2020, and January 8, 2022; (2) stated it was “very
obvious” that Robinson controlled Marrero, that he “beat on her”
and then “ha[d] her recant”; and (3) it was “inclined to find that
there’s a violation” and to revoke Robinson’s supervised release.
Nonetheless, the district court continued Robinson’s
revocation hearing. Yet, concerned about their three-year-old
daughter’s exposure to domestic violence, the district court
ordered Robinson to have no contact with Marrero.
F. Marrero’s April 14, 2022 Car Accident and Arrest
As it turned out, on the day of Robinson’s April 14
revocation hearing, Marrero was in a car accident. Marrero was
speeding and driving recklessly when she rear-ended a U-Haul
trailer, left the I-85 highway, and drove into a ravine. In her car, a
state trooper found a “UPass device” that is “used to cheat on
urinalysis tests.” Another state trooper transported Marrero in his
car and later found an aspirin bottle containing methamphetamine
where she was sitting. The state trooper arrested Marrero and
obtained a blood sample. The blood test confirmed
methamphetamine was in Marrero’s system.
G. Petition to Revoke Marrero’s Supervised Release
The probation officer filed a petition for revocation of
Marrero’s supervised release, which was twice amended. The
second amended petition alleged numerous violations.
As to her car accident, the petition charged that Marrero
committed ten state offenses: (1) possessing a Schedule III
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controlled substance; (2) possessing drugs not in their original
container; (3) failing to maintain a lane; (4) did not exercise due
care; (5) following another vehicle too closely; (6) driving on an
expired tag; (7) driving too fast for conditions; (8) speeding;
(9) driving without a license; and (10) driving under the influence
of a drug.
As to Marrero’s false reports of domestic abuse, the petition
charged that Marrero: (11) failed to answer truthfully her probation
officer’s questions about her January 8, 2022 abuse report to police;
and (12) committed the state offenses of falsely reporting a crime
on February 9, 2020 and January 8, 2022.
As to Marrero’s drug use, the petition alleged that Marrero:
(13) failed to submit to drug testing eight times from December
2021 to July 2022; (14) unlawfully used methamphetamine based
on positive drug tests on April 14 and July 6, 2022; (15) failed to
report on June 9, 2022 for an already missed drug test; and
(16) failed to participate in weekly substance abuse counseling on
June 15 and July 8, 2022.
When Marrero did not appear at her July 26, 2022,
revocation hearing, the district court issued a bench warrant.
Marrero was arrested.
H. Marrero’s December 5, 2022 Revocation Hearing
At the revocation hearing, the government withdrew
Violations 11 and 12 about Marrero’s false crime reports to the
probation officer and police. The prosecutor explained that,
although Marrero admitted lying to police, she was not sufficiently
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credible to prove those violations because Marrero had changed
her story several times. The district court questioned the
government’s decision, suggesting it was giving up and “taking the
easier path” rather than trying to prove Marrero’s false statements
using her own admissions. Nonetheless, the district court
permitted the government to withdraw Violations 11 and 12.
Although admitting her four drug-use violations, Marrero
denied the ten car-accident violations because her case was “still
pending in state court.” The district court then accepted evidence,
including police reports, and heard the probation officer’s
testimony about the car accident and Marrero’s arrest.
The probation officer also testified about Marrero’s text
messages admitting various lies. In her text messages to the
probation officer, Marrero stated that: (1) Robinson beat her, but
she understood the probation officer might not believe her because
she lied so much; (2) she hit Robinson first during one domestic
incident; (3) she lied to the police after another incident because
she knew she was going to jail for violating the GPS-monitoring
term of her supervised release; (4) she faked a recorded telephone
call with Robinson (while he was in custody) that was played at his
revocation hearing to help him beat the battery charge; and (5) she
lied about not living with Robinson when his bond condition
prohibited contact with Marrero.
Marrero objected to the government’s questions about her
text messages because it had withdrawn Violations 11 and 12 about
her false crime reports. The government responded that the
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district court could still consider Marrero’s “pattern of
manipulation and dishonesty.” Although overruling Marrero’s
objection, the district court agreed with Marrero that the text
evidence was no longer relevant, and the government was just
trying to make Marrero look bad. The district court said it could
“compartmentalize and decide what I think I can consider.” In this
revocation-sentence appeal, Marrero does not challenge this
evidentiary ruling.
Ultimately, the district court found that the government
proved the ten car-accident violations and the four drug-use
violations. The district court opined that the government probably
could have proven the two withdrawn violations (11 and 12) about
false reports. The district court said it “regret[ted] the fact that the
government ha[d] decided not to do that and to allow somebody
who is, by all accounts, fundamentally untrustworthy to evade
being held accountable for their lies.” The district court
acknowledged that “in the end, we just can’t tell which one is a lie
because [Marrero is] such a big liar . . . that makes a lot of false
statements and we can’t tell which ones are the false statements.”
The district court continued that “it sure undermines the process
when you can just tell so many lies that eventually you become
immune to any prosecution or supervised release violation for
lying.”
As to the revocation sentence, the district court found that
the advisory guidelines range was 18 to 24 months’ imprisonment,
with a 36-month statutory maximum. The parties jointly
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requested that Marrero be released on bond to attend a
methamphetamine treatment program. The government
acknowledged Marrero’s serious violations but argued that drug
treatment afforded the most likely long-term protection for the
public against Marrero’s severe drug addiction.
In mitigation, Marrero stressed her difficult childhood,
during which both parents died from HIV-related complications,
her teenage addiction to methamphetamine, and Robinson’s
domestic abuse. Marrero said she relapsed in January 2022 when
she learned Robinson had “cheated on her on Christmas Eve,” and
“it was a spiral from there.”
Marrero’s defense counsel acknowledged Marrero’s calling
the police, recanting, and failing to appear in court. But defense
counsel pointed out that at Robinson’s April 14, 2022, revocation
hearing, the district court repeatedly said it believed Marrero’s
abuse allegations were true and that abused women often recant
and refuse to proceed with prosecution. While Marrero may not
have been truthful with her probation officer, defense counsel
contended that Robinson threatened and manipulated her and used
their child as leverage over her.
The district court responded that Marrero “put too much”
emphasis on its statements at Robinson’s April 14, 2022, revocation
hearing. The district court explained that, at Robinson’s revocation
hearing, it was dealing with the government’s reluctance to present
evidence of “a clearly toxic domestic relationship, in which there
[was] pretty strong video [evidence] of abuse, maybe going both
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ways, all of which [was] done in the presence of their daughter.”
The district court clarified that at Robinson’s hearing, it had not
“reached a final decision that Ms. Marrero had been truthful when
she reported [Robinson]” because the hearing was postponed. The
district court said it did not know now “where [it] would have gone
that day had [it] made a decision as to whether or not Mr. Robinson
actually abused Ms. Marrero.” The court stressed that the parties
should not “read too much into my strong words to Mr. Robinson
when I felt like I was trying to make sure that everybody
understood the importance of them being away from each other
because of the [parties’] daughter.”
In allocution, Marrero apologized for her and Robinson’s
“madness” and accepted responsibility for using drugs. She had
turned to drugs to deal with her experiences with Robinson and
promised she would not get high again for her daughter’s sake.
Marrero asked the district court to give her another chance and
then give her the maximum sentence if she failed.
The district court asked why the prosecutor believed
Marrero would now comply with a drug-treatment requirement.
The prosecutor responded that she was not sure Marrero would
comply and that “[i]t’s really more of a hope.”
The district court said it was “perplexed” by the
government’s position that Marrero was a good candidate for drug
treatment. The district court asked for the probation officer’s
recommendation. The probation officer recommended a prison
sentence at the high end of the advisory guidelines range. The
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probation officer explained that the government and probation
office had invested heavily in Marrero’s recovery, including the
Bureau of Prisons’ 500-hour drug treatment program; multiple
outpatient drug programs; two six-month drug-screening
programs; location monitoring; a cognitive skills program; and a
12-month sentence after her last revocation, none of which had
changed her conduct.
I. District Court’s Explanation of the Sentence
After considering the relevant factors under 18 U.S.C.
§§ 3582 and 3553(a), the district court imposed a 24-month
sentence. The district court rejected the parties’ request to release
Marrero on bond to obtain drug treatment. The district court said
it did not expect Marrero to do anything other than what she had
done in the past, which included not obtaining the required drug
treatment, not following her probation officer’s instructions, not
meeting other obligations of supervision, and failing to appear for
her revocation hearing, which resulted in a bench warrant. The
district court also recalled that when Marrero failed to appear at
Robinson’s April 14, 2022, revocation hearing, “she was calling her
lawyer and saying she was near the courthouse, when she was
actually racing down the highway somewhere else.”
The district court expressed consternation at the
government’s view that Marrero could be trusted to get treatment,
finding Marrero was “fundamentally untrustworthy,”
“manipulative,” “dangerous,” and “selfish.” The district court
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concluded Marrero had shown she did not want, and was incapable
of receiving, help.
As for the choice of a 24-month prison term, the district
court stressed that Marrero was “stoned on meth when she was
driving” and “there needs to be protection of the public
immediately from Ms. Marrero.” The district court opined that
there was no way to deter Marrero and protect the public merely
by allowing her to get treatment again. The district court
discounted Marrero’s claim that her problems started with
Robinson, noting she had an extensive criminal history before she
met him. Marrero already served a 78-month sentence and a 12-
month revocation sentence, and neither sentence had deterred her.
To the district court, “the question [was] whether or not the
statutory maximum [of 36 months] was appropriate,” but the
district court decided to “follow the guidelines” of 24 months.
Marrero’s only objection was “for reasonableness of the
sentence.”
II. DISCUSSION
A. Plain Error Review
On appeal, Marrero’s argues that her 24-month sentence is
unreasonable because the district court was biased against her and
should have disqualified itself. Marrero did not raise this recusal
issue at the revocation hearing. Instead, Marrero objected only to
the “reasonableness” of her sentence. She did not raise any issue
as to the district court’s impartiality or move to disqualify the
district court judge. Marrero’s general objection to the
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reasonableness of her sentence was not sufficient to preserve a
recusal challenge.
Marrero contends that she adequately raised the recusal
issue when her defense counsel pointed out that the district court
previously found Marrero’s claims of domestic abuse credible
during Robinson’s revocation hearing. We disagree. Defense
counsel’s observation on this point was far from enough to alert
the district court that Marrero was raising a claim of personal bias
requiring recusal. See United States v. Brown, 934 F.3d 1278, 1306
(11th Cir. 2019) (“[T]o preserve an objection to a sentencing
determination, a party must raise that point in such clear and
simple language that the trial court may not misunderstand it.”).
Alternatively, Marrero argues that she was not required to
move for recusal because the district court judge did not reveal his
bias until he pronounced Marrero’s sentence. This ignores that
after the district court pronounced the sentence, Marrero could
have raised bias or recusal but did not do so.
Because Marrero raises this recusal issue for the first time on
appeal, our review is for plain error. See United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014); United States v. Berger, 375 F.3d
1223, 1227 (11th Cir. 2004) (reviewing for plain error, rather than
abuse of discretion, a district court’s failure to recuse sua sponte
based on alleged bias). To show plain error, the defendant must
show (1) that the district court erred; (2) that the error was plain;
and (3) that the error affected her substantial rights. Vandergrift, 754
F.3d at 1307. If these three conditions are met, we decide whether
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the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id.B. Reasonableness of the Sentence
A district court may revoke a defendant’s supervised release
term and impose a term of imprisonment if it finds by a
preponderance of the evidence that the defendant violated a
condition of supervised release. 18 U.S.C. § 3583(e)(3). Before
imposing a revocation sentence, the district court must consider
certain factors in 18 U.S.C. § 3553(a), as well as the policy
statements in Chapter 7 of the Sentencing Guidelines, including
non-binding ranges of imprisonment. Id. § 3583(e); United States v.
Silva, 443 F.3d 795, 799 (11th Cir. 2006).
Ordinarily, we review such a sentence for reasonableness,
applying the deferential abuse of discretion standard. Vandergrift,
754 F.3d at 1307. Under this standard, we employ a two-step
process, first examining whether the district court committed any
significant procedural error and then whether the sentence is
substantively unreasonable in light of the relevant § 3553(a) factors
and the totality of the circumstances. United States v. Trailer, 827
F.3d 933, 335-36 (11th Cir. 2016). At both steps, the party
challenging the sentence has the burden of showing it is
unreasonable. Id.Marrero’s sole argument—that the district court should
have recused based on personal bias—is a claim of procedural error
that we review for procedural reasonableness. And in Marrero’s
appeal we review that claim only for plain error.
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C. Marrero’s Recusal Claim
1. 28 U.S.C. § 455Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). The question under § 455(a) “is
whether an objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality.”
United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013)
(quotation marks omitted).
In addition, under 28 U.S.C. § 455(b), a judge must recuse
himself where, among other things, “he has a personal bias or
prejudice concerning a party.” 28 U.S.C. § 455(b)(1). “The bias or
prejudice must be personal and extrajudicial; it must derive from
something other than that which the judge learned by participating
in the case.” United States v. Amedeo, 487 F.3d 823, 828 (11th Cir.
2007) (quotation marks omitted). “[O]pinions formed by the judge
on the basis of facts introduced or events occurring in the course
of the current . . . [or] prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct.
1147, 1157 (1994); see also Bolin v. Story, 225 F.3d 1234, 1239 (11th
Cir. 2000) (“[E]xcept where pervasive bias is shown, a judge’s
rulings in the same or a related case are not a sufficient basis for
recusal.”). “Thus, judicial remarks during the course of a trial that
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are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality
challenge.” Liteky, 510 U.S. at 555, 114 S. Ct. at 1157.
2. Analysis of Marrero’s Claim
Marrero contends the district court demonstrated personal
bias when it found she was “an aggressor” and “was dishonest and
manipulative about her being the victim of domestic abuse by her
husband.” Marrero claims this finding is inconsistent with and
“fundamentally opposed” to the district court’s earlier finding at
Robinson’s revocation hearing that Marrero “was a victim of
domestic abuse at th[e] hands of her husband.”
There is a threshold flaw with Marrero’s recusal claim.
Marrero mischaracterizes the district court’s findings at her own
revocation hearing. As we read the transcript of her hearing, the
district court did not find that Marrero lied about being a domestic
abuse victim. Nor did it find that Marrero was “an aggressor” in
the domestic abuse incidents with Robinson. At most, the district
court observed that “pretty strong video” evidence of abuse,
“maybe going both ways,” was presented at Robinson’s revocation
hearing, but the court also stated it did not know what it would
have found at Robinson’s revocation hearing had it been necessary
to do so.
To be sure, the district court allowed the government to ask
the probation officer about the texts, domestic abuse incidents, and
Marrero’s changing stories. Yet, the court agreed with Marrero
that whether she had lied to either the police or her probation
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officer about those abuse incidents was not relevant given that the
government had withdrawn Violations 11 and 12. The district
court also stated that it could “compartmentalize” what it could
and could not consider. Although dismayed by the prosecutor’s
decision to withdraw Violations 11 and 12, the district court did not
make any findings about whether Marrero lied about Robinson’s
abuse to police or her probation officer.
Rather, the district court found, based on Marrero’s other
well-proven conduct while on supervision, that she was generally
too dishonest and manipulative to be trusted to comply with a plan
of more drug treatment. The district court noted that: (1)
Marrero’s prior revocation resulted from positive drug tests and
her attempt to manipulate a urine sample; (2) Marrero lied to her
attorney about being near the courthouse on April 14, 2022;
(3) Marrero previously failed to obtain required drug treatment, to
follow her probation officer’s instructions or comply with her other
obligations of supervision; and (4) Marrero did not appear in court
even when under subpoena. The district court described all of this
conduct as “blatant untruthfulness” and “absurd manipulation of
people.”
On the merits, Marrero cannot show the district court
abused its discretion, much less plainly erred, by failing to recuse.
As to § 455(a), a fully informed, objective lay observer would not
have a significant doubt about the district court’s impartiality. At
Marrero’s revocation hearing, ample evidence established that,
apart from her abuse reports, Marrero’s repeated violations of her
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supervised release conditions included dishonest and manipulative
conduct and breaches of trust.
For example, Marrero’s 2020 violations included, among
other things, positive drug tests, tampering with a urine sample,
not complying with her home detention program, and failing to
participate in drug treatment and testing.
Marrero’s deceptive behavior continued with her new
violations in 2022. Although under subpoena, Marrero did not
appear at Robinson’s revocation hearing. Marrero also lied to her
own attorney (who was present at the hearing) that she was driving
to the courthouse. Instead, she was driving under the influence of
methamphetamine on an interstate highway, where she caused a
serious accident. A state trooper even found in Marrero’s car a
UPass device, which is used to avoid positive drug tests. After
transporting Marrero, the state trooper found a bottle of
methamphetamine in his vehicle.
Later, Marrero sent text messages to her probation officer
about how she and Robinson recorded a fake jail call and how she
had lied about not living with Robinson while the court ordered
him to have no contact with her.
It is patently clear here that the district court’s comments—
that Marrero was fundamentally untrustworthy, manipulative,
dangerous, and selfish and could not be trusted to comply with a
drug treatment requirement—were supported by the evidence and
would not cause an objective, fully informed lay observer to
question the district court’s impartiality.
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As to § 455(b), the district court’s opinion of Marrero’s
trustworthiness was properly formed based on information it
learned during Marrero’s and Robinson’s revocation proceedings.
The district court’s opinion did not display any kind of “deep-
seated . . . antagonism that would make fair judgment impossible.”
See Liteky, 510 U.S. at 555, 114 S. Ct. at 1157. And the district court’s
comments were certainly not extrajudicial. See Amedeo, 487 F.3d at
828.
Accordingly, Marrero has not shown that her 24-month
revocation sentence is procedurally unreasonable. 1
AFFIRMED.
1 Marrero’s counseled brief does not argue that her 24-month sentence is
substantively unreasonable. But even if it had, we would have little trouble
concluding that the district court’s choice of a 24-month sentence was
reasonable given the extent and severity of Marrero’s violations.