United States v. Carmina Pando-De Madrid

Case: 10-51006 Document: 00511608865 Page: 1 Date Filed: 09/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2011
No. 10-51006
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARMINA PANDO-DE MADRID,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-191-1
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Carmina Pando-De Madrid pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and was sentenced to 46 months of
imprisonment and three years of supervised release. Relying on United States
v. Rojas-Luna, 522 F.3d 502,504-06 (5th Cir.2008), Pando-De Madrid argues that
the district court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000) by
finding a fact not alleged in the charging instrument which resulted in the
assessment of an illegal 46-month sentence over the statutory maximum of two
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-51006
years. She argues that this issue is subject to de novo review because her
objections to the 16-point increase preserved the error, or alternatively, because
a sentence which exceeds the statutory maximum is an illegal sentence
constituting plain error, citing United States v. Vera, 542 F.3d 457, 459 (5th Cir.
2008).
At sentencing, counsel for Pando-De Madrid objected to the 16-point
offense level increase on the basis that it was cruel and unusual punishment.
Pando-De Madrid did not object on the basis of the argument made now on
appeal that the facts necessary to impose punishment under § 1326(b)(2) were
not charged in the Information. In Vera, we stated that “regardless of whether
Vera properly preserved an objection to his sentence, ‘because a sentence which
exceeds the statutory maximum is an illegal sentence and therefore constitutes
plain error, our review of the issue presented in this appeal will be de novo’”
citing United States v. Sias, 227 F.3d 244, 246 (5th Cir.2000). The line of cases
relied upon for that statement applied de novo review to an issue involving
statutory interpretation. See United States v. Lankford, 196 F.3d 563, 578 (5th
Cir. 1999); United States v. Hebert, 131 F.3d 514, 525 (5th Cir.1997). Pando-De
Madrid’s claim of error does not involve statutory interpretation. Thus, we
review it for plain error. See Rojas-Luna, 522 F.3d at 504 (applying plain error
to claim that Apprendi error resulted in sentence above the statutory maximum);
United States v. Williams, 602 F. 3d 313, 318-19 (5th Cir.), cert denied, 131 S. Ct.
597 (2010) (same). To show plain error, Pando-De Madrid must show a forfeited
error that is clear or obvious and that affects her substantial rights. See Puckett
v. United States, 129 S. Ct. 1423, 1428-29 (2009). A sentence that is greater
than the statutory maximum permitted affects a defendant’s substantial rights.
Rojas-Luna, 522 F.3d at 506-07. If such a showing is made, this court has the
discretion to correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 507.
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The facts in Pando-De Madrid’s case are distinguishable from those in
Rojas-Luna. The Information charged that Pando-De Madrid was previously
removed on August 15, 2003. The Notice of Sentencing Enhancement set forth
the dates of her prior aggravated felony convictions in 1996 and 1997. The
Factual Basis stated that Pando-De Madrid was removed in 2003 following her
aggravated felony convictions in 1996 and 1997. Pando-De Madrid admitted to
the accuracy of these facts at her guilty plea hearing. She acknowledged that
she understood that this subjected her to a punishment range of zero to 20 years.
The facts necessary to enhance Pando-De Madrid’s punishment under
§ 1326(b)(2) were charged by the Government and admitted by Pando-De
Madrid. The district court did not plainly err in sentencing Pando-De Madrid
to 46 months of imprisonment. See Rojas-Luna, 522 F.3d at 504.
Pando-De Madrid argues that her sentence was procedurally unreasonable
because the district court did not indicate that it had considered two of the
proffered mitigating circumstances for requesting a lower sentence and failed to
state reasons for rejecting such request. If a defendant does not object to the
procedural reasonableness of her sentence, including lack of reasons given for
the sentence by the district court, review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192(2009). Pando-De Madrid argues that in Mondgragon-Santiago, we required
more than FED. R. CRIM. PROC. Rule 51(b) requires. She contends that the plain
error standard imposed by Mondragon-Santiago is impossible to meet and
should not be followed because it constitutes a plain error of law in the initial
panel’s decision, citing Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d
603, 607 (7th Cir. 1980).
In rejecting Pando-De Madrid’s request for a below guidelines sentence,
the district court explained that the 16-point enhancement was deserved based
on her two prior drug-trafficking convictions. The district court also noted that
Pando-De Madrid chose to disregard the law when she was aware that she could
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No. 10-51006
not reenter the country illegally and that she continued to violate the law,
apparently a reference to her 2010 convictions for driving without a driver’s
license and issuing a bad check. The district court judge determined that the
guideline range was fair and reasonable and that he was not departing from the
recommended sentence. The record shows that the court listened to Pando-De
Madrid’s statements and counsel’s arguments at the sentencing hearing and
gave reasons for rejecting the request for a below guidelines sentence. The
district court’s failure to give reasons for rejecting each specific basis for the
request does not mean the district court did not consider them. The district
court’s explanation was adequate and did not constitute plain or obvious error.
See Mondragon-Santiago, 564 F.3d at 362-65. Appleton, 635 F.2d at 607, is a
Seventh Circuit case involving law of the case doctrine and is inapplicable.
Pando-De Madrid seeks to file a supplemental brief raising two additional
issues, whether her guilty plea was knowing and voluntary and whether the
magistrate judge complied with Rule 11. The Government opposes the motion.
Pando-De Madrid’s supplemental brief contains new arguments, raises new
issues, does not supplement the initial brief as contemplated by the rules, and
is not a reply brief. See FED. R. APP. P. 28(a), (c), (j); 5TH CIR. R. 28.4.
Accordingly, it does not properly supplement the brief. Moreover, because issues
not raised in an appellant’s initial brief as required by Rule 28 are deemed
waived, Pando-De Madrid has waived the arguments raised in her motion and
supplemental brief. See United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005)
(“Our cases make it clear that an argument not raised in appellant’s original
brief as required by Fed. R. App. P. 28 is waived.”); see also United States. v.
Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005) (“Any issue not raised in an
appellant’s opening brief is deemed waived.”). Pando-De Madrid has not shown
that we should set aside our usual rule against considering issues that were not
raised in an appellant’s original brief. Accordingly, we DENY the motion to file
a supplemental brief.
AFFIRMED; MOTION DENIED.
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