United States v. Roberto Deleon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4064
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO E. DELEON,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 12-6558)
Submitted: July 26, 2013 Decided: September 12, 2013
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Paul Michael Cunningham,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Paul E. Budlow, Assistant United States
Attorney, Julia Jarrett, Student Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Roberto DeLeon of second-degree murder, in
violation of 18 U.S.C. § 1111(a), and assault causing serious
bodily injury, in violation of 18 U.S.C. § 113(a)(6). At
sentencing, the district court found that the victim, DeLeon’s
stepson Jordan Peterson, was under the age of eighteen and
sentenced DeLeon pursuant to 18 U.S.C. § 3559(f), which
establishes mandatory minimum sentences for crimes of violence
if the victim is under eighteen. On appeal, we affirmed the
district court over DeLeon’s objection that the trial judge’s
use of judicial factfinding to find Jordan’s age, a fact that
increased the mandatory minimum sentences, violated DeLeon’s
Sixth Amendment rights. United States v. DeLeon, 678 F.3d 317,
331-33 (4th Cir. 2012). The Supreme Court granted DeLeon’s
petition for writ of certiorari, vacated this court’s judgment,
and remanded for further consideration in light of Alleyne v.
United States, 133 S. Ct. 2151 (2013). Because of this
intervening change in law, we vacate DeLeon’s sentence and
remand to the district court for resentencing.
I.
At sentencing, the district court found, over DeLeon’s
objection, that Jordan was eight-years old, subjecting DeLeon to
heightened mandatory minimum prison terms of thirty years for
2
the murder conviction, and ten years for the assault conviction.
After reexamining trial evidence, the district court determined
that there was “clear evidence” that Jordan was eight-years old
and, regardless, that his age was not a factual issue that
needed to be presented to the jury. J.A. 3112. 1 As a result of
the district court’s finding, the mandatory minimum sentence for
DeLeon’s second-degree murder conviction increased from zero to
thirty years, and from zero to ten years for his assault
conviction. The district court sentenced DeLeon to the
mandatory minimum on both counts with the sentences running
concurrently.
On appeal, DeLeon challenged his sentence on multiple
grounds. His appeal focused on establishing that the victim’s
age was an element of the offense, rather than a sentencing
factor, and was thus a fact that had to be submitted to the jury
and found beyond a reasonable doubt under United States v.
O’Brien, 130 S. Ct. 2169, 2175 (2010). In addition, he argued
that any fact that mandates a judge impose a more severe
sentence than the judge would otherwise have the discretion to
impose must be submitted to the jury and proven beyond a
reasonable doubt.
1
All references to the “J.A.” are to the Joint Appendix
compiled by the parties.
3
The bulk of this court’s decision revolved around the
O’Brien question. We concluded that age is a sentencing factor
under 18 U.S.C. § 3559(f) that can be found by a preponderance
of the evidence. At the time, DeLeon’s judicial factfinding
argument was foreclosed by Harris v. United States, 536 U.S.
545, 568 (2002) (holding that increasing mandatory minimums
based on judicial factfinding does not violate the Sixth
Amendment).
After we decided DeLeon’s appeal, the Supreme Court
overruled Harris in Alleyne and held that facts which increase
mandatory minimum sentences must be admitted or submitted to the
jury and established beyond a reasonable doubt. 133 S. Ct. at
2163. Thus, the district court’s finding that Jordan was eight-
years old--a finding that increased the the mandatory minimum
sentences--is impermissible. We reconsider DeLeon’s sentence in
light of this development.
II.
DeLeon raised the Sixth Amendment objection to judicial
factfinding before the district court; thus, we review his
argument for harmless error. United States v. Robinson, 460
F.3d 550, 557 (4th Cir. 2006). Under this standard, we must
reverse unless the government can demonstrate beyond a
reasonable doubt that “‘the court would have imposed the same
4
sentence in the absence of the constitutional error.’” Id. at
558 (quoting United States v. Shatley, 448 F.3d 264, 267 (4th
Cir. 2006)).
The government has not met its burden. We recognize that
the district court could, at least in theory, arrive at the same
sentences in this case via the guidelines. 2 In its brief,
however, the government admits that the statutory minimum that
DeLeon faced was severe. Appellee’s Br. 98. Likewise, the
district court expressed its displeasure with the thirty-year
mandatory minimum prison term for the second-degree murder
conviction in this case, noting several mitigating factors.
J.A. 3140-42. Although the judge also commented that he
believed anything less than twenty years for DeLeon would be
inappropriate, J.A. 3141, we cannot say beyond a reasonable
doubt that the error did not affect the sentence imposed. We
2
Calculating the advisory guideline range for DeLeon’s
second-degree murder conviction without the mandatory minimum,
the district court found that DeLeon would be subject to a
prison sentence of 292 to 365 months. J.A. 3116. With the
mandatory minimum included, the lower end of the guidelines
range rose to 360 months. Id. The district court did not
calculate the guidelines range for the assault charge without
the mandatory minimum. Neither did the presentence
investigation report. As to that offense, the ten-year
mandatory minimum prison term imposed by the district court is
equal to the statutory maximum for the offense. 18 U.S.C. §
113(a)(6).
5
are therefore constrained to remand the case to the district
court for resentencing.
III.
For the foregoing reasons, we vacate the district court’s
judgment and remand the case for resentencing.
VACATED AND REMANDED
6