United States v. Sosa-Sauceda

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PEDRO SOSA-SAUCEDA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:01-cr-00220-ALL)
Argued: November 2, 2007 Decided: January 7, 2008
Before MOTZ and GREGORY, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part, reversed in part and remanded for resentencing by
unpublished per curiam opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Steven
R. Kaufman, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Steven Slawinski, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Jonathan A. Vogel, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On January 24, 2007, the United States District Court for the
Western District of North Carolina sentenced Appellant Pedro Sosa-
Sauceda to a term of twenty-four months imprisonment after Sosa-
Sauceda admitted guilt to several supervised release violations.
Sosa-Sauceda now appeals to this Court alleging the district court
(1) lacked subject matter jurisdiction over his supervised release
revocation proceeding, (2) committed prejudicial error by failing
to recognize his allocution rights and (3) imposed an unreasonable
sentence. We find the district court had subject matter
jurisdiction over Sosa-Sauceda’s supervised release revocation
proceeding. However, we find the district court’s failure to
recognize Sosa-Sauceda’s allocution rights to be plain error that
affected Sosa-Sauceda’s substantial rights. Since we find
prejudicial error with regards to the allocution issue, we need not
consider whether the sentence imposed by the district court was
unreasonable.
I.
In 1995, Sosa-Sauceda, a Mexican citizen, was deported to
Mexico after completing a prison sentence in Texas for murder. In
1996, Sosa-Sauceda was sentenced by Mexican authorities to a prison
term for the transportation of marijuana. While serving his
Mexican sentence, Sosa-Sauceda falsely claimed to Mexican
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authorities that he was a United States citizen and provided a
fraudulent birth certificate to substantiate his claim. Sosa-
Sauceda sought a transfer of his sentence to the United States,
pursuant to 18 U.S.C. § 4100, et seq., where he would complete the
remaining term of his imprisonment. Though the record is silent on
this point, United States officials apparently conducted a
verification of consent hearing, as required by 18 U.S.C. § 4108,
and found that Sosa-Sauceda knowingly and voluntarily consented to
the transfer and understood the conditions and consequences of the
transfer, including the fact that his consent would be irrevocable.
See id. at § 4108(b)-(d). Sosa-Sauceda’s sentence was thereafter
transferred from Mexico to the United States, though the precise
date is not clear from the record. Upon transfer, the United
States Parole Commission added a term of supervised release to his
sentence. In November 2001, Sosa-Sauceda completed his term of
imprisonment at a federal prison in Texas and began his term of
supervised release in the Western District of North Carolina, the
district in which Sosa-Sauceda resided.
In 2002, while on supervised release, Sosa-Sauceda returned to
Mexico, leading his probation officer to file a petition alleging
Sosa-Sauceda violated the terms of his supervised release. At some
point thereafter, he again returned to the United States. In
December of 2005, he was found by authorities in the Southern
District of Texas and was charged with illegal reentry, pursuant to
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8 U.S.C. § 1326(a) and § 1326(b), based on his previous deportation
in 1995. Sosa-Sauceda pled guilty to illegal reentry and was
sentenced to forty-six months imprisonment in the Southern District
of Texas. He was then transferred to the Western District of North
Carolina for a supervised release revocation proceeding related to
his transferred Mexican marijuana conviction.
Sosa-Sauceda moved to dismiss the revocation proceeding on the
ground that the court lacked personal jurisdiction over him. He
argued that his sentence had been improperly transferred to the
United States because he was not a United States citizen, and
because the transfer was improper, the imposition of supervised
release was invalid and the court lacked personal jurisdiction over
him. The court denied the motion and found that Sosa-Sauceda had
waived personal jurisdiction by lying to Mexican authorities about
his citizenship. He did not argue the court lacked subject matter
jurisdiction. On December 20, 2006, the district court found Sosa-
Sauceda in violation of the terms of his supervised release. The
Guidelines’ range for the offense was eight to fourteen months.
The district court sentenced Sosa-Sauceda to the statutory maximum
twenty-four months imprisonment to run consecutively with the
forty-six month illegal reentry sentence imposed by the district
court in the Southern District of Texas.
Though the district court heard argument from counsel for both
parties, the court never personally addressed Sosa-Sauceda or asked
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whether he wanted to address the court. Sosa-Sauceda did not
object to the court’s failure to permit him to allocute.
II.
Sosa-Sauceda alleges the district court lacked subject matter
jurisdiction over his supervised release revocation proceeding, an
issue he did not raise at the district court. However, “a party
can challenge subject matter jurisdiction for the first time on
appeal even though, in most contexts, issues not raised below are
considered waived.” Am. Canoe Ass’n v. Murphy Farms, 326 F.3d 505,
515 (4th Cir. 2003) (citing Wisconsin Dep’t of Corr. v. Schatt, 524
U.S. 381, 389 (1998)). See also United States v. Beasley, 495 F.3d
142, 147 (4th Cir. 2007) (“the lack of subject matter jurisdiction
can be raised at any time”). Thus, whether the district court had
subject matter jurisdiction is a question of law subject to de novo
review. United States v. Barton, 26 F.3d 490, 491 (4th Cir. 1994).
The Treaty between the United States of America and the United
Mexican States on the Execution of Penal Sentences, Nov. 25, 1976,
U.S.-Mex., 28 U.S.T. 7399,1 as implemented by 18 U.S.C. § 4100, et
seq., allows citizens of the United States convicted in Mexico to
serve their sentences in the United States. In order to be
transferred from Mexico to the United States, the offender must be
1
The Treaty is sometimes referred to as the “United States-
Mexico Prisoner Transfer Treaty.”
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a citizen or national of the United States and knowingly and
voluntarily consent to the transfer. 18 U.S.C. § 4100(b). The
offender’s consent to transfer must be verified by a United States
verifying officer, defined as a United States Magistrate Judge or
a citizen specifically designated by a United States Judge. Id. at
§ 4108. Once the offender’s consent is verified, it is
irrevocable. Id. at § 4100(b).
Upon the offender’s transfer to the United States, the United
States Parole Commission determines the release date and any period
or conditions of supervised release. Id. at § 4106A(b)(1)(A). The
offender then serves the sentence “as though the offender were
convicted in a United States district court of a similar offense.”
Id. During any period of supervised release, the offender is to be
supervised by the United States district court for the district in
which the offender resides. Id. at § 4106A(b)(3). If, at any
point after the transfer to the United States, the offender wishes
to challenge the validity or legality of the transfer, the offender
must comply with 18 U.S.C. § 3244(5), which provides:
[A]ll proceedings instituted by or on behalf of an
offender seeking to challenge the validity or legality of
the offender's transfer to the United States shall be
brought in the United States district court of the
district in which the offender is confined or of the
district in which supervision is exercised and shall name
the Attorney General and the official having immediate
custody or exercising immediate supervision of the
offender as respondents. The Attorney General shall
defend against such proceedings.
Id. at § 3244(5).
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Sosa-Sauceda argues the district court lacked subject matter
jurisdiction over his supervised release revocation proceeding
because he was not, in fact, a citizen of the United States. He
argues that because his initial transfer to the United States was
improper, the subsequent imposition of supervised release was
invalid. Because the imposition of supervised release was invalid,
the district court lacked subject matter jurisdiction over Sosa-
Sauceda’s supervised release revocation proceeding. Sosa-Sauceda
argues the fact that the transfer was a result of his own
fraudulent actions is irrelevant because subject matter
jurisdiction is not waivable.
Sosa-Sauceda’s argument is belied by the statutory scheme
governing prisoner transfers under the Treaty. See id. at §§ 4100,
4106A, 3244(5). When he was transferred to the United States, he
received an amended sentence from the United States Parole
Commission, which included a period of supervised release.
Importantly, this amended sentence was to be served by “as though
[he] were convicted in a United States district court of a similar
offense.” Id. at § 4106A(b)(1)(A). Thus, Sosa-Sauceda was to
serve his sentence as though he were convicted in a United States
district court of transportation of marijuana. United States
district courts have subject matter jurisdiction over drug
prosecutions brought under the federal drug laws. See id. at §
3231 (“district courts of the United States shall have original
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jurisdiction . . . of all offenses against the laws of the United
States”); 21 U.S.C. § 841(a) (“it shall be unlawful for any person
knowingly or intentionally to manufacture, distribute, or dispense
. . . a controlled substance”). Additionally, the district court
in which Sosa-Sauceda resided had jurisdiction to supervise him
during his period of supervised release. See 18 U.S.C.
4106A(b)(3). Therefore, the district court had subject matter
jurisdiction over the supervised release revocation proceeding.
Sosa-Sauceda may not use an appeal of his supervised release
revocation proceeding to challenge the validity or legality of his
transfer to the United States. In order to challenge the validity
or legality of his transfer, Sosa-Sauceda must comply with the
statutory requirements set forth in 18 U.S.C. § 3244(5). Namely,
he must bring a proceeding in the district court in which he is
being confined or supervised and must “name the Attorney General
and the official having immediate custody or exercising immediate
supervision of [him] as respondents.” Id. at § 3244(5). Sosa-
Sauceda has not brought such a proceeding. Instead, he seeks to
challenge the validity and legality of his transfer on the appeal
of his supervised release revocation proceeding. This is not the
proper avenue by which a prisoner can challenge a transfer under
the Treaty. Absent a proceeding which complies with § 3244(5), we
are to treat the sentence, including the imposition of supervised
release, as though it were imposed by a United States district
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court. See id. at § 4106A(b)(1)(A). Treating the sentence as
such, we find the district court had subject matter jurisdiction
over the supervised release revocation proceeding.
III.
Sosa-Sauceda next alleges the district court committed
prejudicial error by failing to recognize his right to allocution.
This Court reviews issues not preserved before the district court
for plain error, which requires “error, that is plain, and that
affects [the] substantial rights” of the defendant. United States
v. Olano, 507 U.S. 725, 732 (1993) (internal quotations omitted).
Even if the error is plain, correction of the error remains within
the discretion of this Court, which we “should not exercise . . .
unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
Federal Rule of Criminal Procedure 32.1(b)(2)(E) specifically
provides defendants at supervised release revocation proceedings
with “an opportunity to make a statement and present any
information in mitigation.” The defendant’s allocution right is
“not satisfied by ‘merely affording the [d]efendant’s counsel the
opportunity to speak,” but must be extended personally to the
defendant by the court. United States v. Cole, 27 F.3d 996, 998
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(4th Cir. 1994) (quoting Green v. United States, 365 U.S. 301, 304
(1961)).
We find the district court’s failure to recognize Sosa-
Sauceda’s right to allocution to be plain error that affected his
substantial rights and we exercise our discretion to notice the
error. In United States v. Muhammad, we held that the mere
possibility that a defendant could receive a lesser sentence had
the defendant been permitted to allocute at resentencing was
sufficient to prejudice the defendant. 478 F.3d 247, 251 (4th Cir.
2007). Here, Sosa-Sauceda was sentenced to the statutory maximum
twenty-four months imprisonment, even though the applicable
Guidelines’ range advised a sentence of eight to fourteen months
imprisonment. Had he been given an opportunity to address the
court, he may have been able to explain the circumstances
surrounding his supervised release revocation or his criminal
history in such a way that would have affected the court’s
sentencing determination. Because this possibility remains, we
find Sosa-Sauceda to have been prejudiced by the court’s failure to
permit him to allocute and we exercise our discretion to notice the
error.2
2
In United States v. O’Hallaren, 505 F.3d 633 (7th Cir. 2007),
the Seventh Circuit recently addressed a district court’s failure
to recognize a defendant’s right to allocution at a revocation of
supervised release proceeding. The Seventh Circuit vacated and
remanded for resentencing upon finding the failure to be
prejudicial error that affected the defendant’s substantial rights.
Id. at 636.
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Because we find the district court’s failure to recognize
Sosa-Sauceda’s right to allocution to be plain error that affected
his substantial rights, we vacate his sentence and remand to the
district court for resentencing. Because we find prejudicial error
with regards to the allocution issue, we need not consider whether
the sentence imposed by the district court was unreasonable.
IV.
For the foregoing reasons, the judgment of the district court
is AFFIRMED in part, REVERSED in part and REMANDED for resentencing
consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART AND
REMANDED FOR RESENTENCING
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