Filed: Apr. 10, 2007
Latest Update: Feb. 21, 2020
Summary: United States v. Moran, 393 F.3d 1, 11 (1st Cir.1, Before his original sentencing hearing, defendant was given, two opportunities for a safety-valve debriefing, but, on both, occasions, he refused to provide any information or to clarify the, statements made at his post-arrest interview.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1596
UNITED STATES OF AMERICA,
Appellee,
v.
SIMEÓN PEÑA-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Rodney S. Dowell and Berman & Dowell on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, and Rosa Emilia
Rodriguez-Velez, United States Attorney, on brief for appellee.
April 10, 2007
Per Curiam. This is an appeal from resentencing after
remand from this court on defendant's prior appeal. See United
States v. Peña-Hernandez, No. 04-1489, 146 F. App'x 499 (1st Cir.
Aug. 26, 2005) (per curiam) (unpublished). In his present appeal,
defendant's sole argument is that the government's refusal to give
him another opportunity for a safety-valve debriefing1 before his
resentencing requires that the case be remanded for such a
debriefing.
That argument is barred by the law of the case doctrine,
under which "available claims of error not raised in an initial
appeal may not be raised during subsequent appeals in the same
case." United States v. Moran, 393 F.3d 1, 11 (1st Cir. 2004)
(emphasis omitted). Although that doctrine is subject to
exceptions, see United States v. Bell,
988 F.2d 247, 250-51 (1st
Cir. 1993), none of those exceptions applies here. Having not
argued in the district court or in his first appeal that the
government had a duty to offer him a third debriefing opportunity
before his original sentencing--although he clearly had an
incentive to do so at those times--the law of the case doctrine
precludes him from making this argument in the present appeal.
1
Before his original sentencing hearing, defendant was given
two opportunities for a safety-valve debriefing, but, on both
occasions, he refused to provide any information or to clarify the
statements made at his post-arrest interview. The government made
clear at that time that it did not intend to offer defendant a
third such opportunity.
-2-
Moran, 393 F.3d at 11; see also United States v. Ticchiarelli,
171
F.3d 24, at 28-29 (1st Cir. 1999).
Even on resentencing, while defendant repeatedly stated
his willingness to undergo another debriefing, he never argued that
the government was obligated to accept his offer. Accordingly,
even if that argument was not waived under the law of the case
doctrine, it was forfeited and is therefore reviewable only for
plain error. See generally United States v. Olano, 507 U.S. 725,
734 (1993).
It is hardly "plain" that the government has a duty to
give a defendant multiple opportunities for a safety-valve
debriefing. To the contrary, "the government has a right to expect
that a defendant who seeks the boon of the safety valve will make
a clean breast of things; it has no obligation to interview him
repeatedly in an effort to pry loose additional nuggets of
information." United States v. Matos, 328 F.3d 34, 41-42 (1st Cir.
2003). Even assuming--without deciding--that a defendant may
satisfy his disclosure obligations after his original sentencing
but before his resentencing, but cf. 18 U.S.C. § 3553(f)(5)
(requiring that such disclosures be made "not later than the time
of the sentencing hearing" (emphasis added)), defendant certainly
had no right to a debriefing once the resentencing hearing had
begun,
Matos, 328 F.3d at 39. Nor is this a case where a
defendant's entitlement to a further debriefing opportunity can be
-3-
derived from a plea agreement; there was no such agreement here.
Cf. id. at 42 (stating that this court would not allow the
government to "play cat and mouse with defendants" with respect to
the government's obligations under plea agreements).
Moreover, even if the district court had plainly erred in
failing to require the government to give defendant a further
debriefing opportunity and defendant was prejudiced thereby, its
failure to do so would not satisfy the remaining prong of plain
error review. Under the circumstances of this case, the lack of
such an opportunity did not constitute a miscarriage of justice.
Olano, 507 U.S. at 736.
Accordingly, the sentence is affirmed. See 1st Cir. Loc.
R. 27.0(c).
-4-
