Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2005

USA v. Jaimes-Lopez
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3289




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Jaimes-Lopez" (2005). 2005 Decisions. Paper 225.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/225


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-3289


                           UNITED STATES OF AMERICA

                                           v.

                              MARTIN JAIMES-LOPEZ,
                                              Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 04-cr-00164
                          (Honorable Mary A. McLaughlin)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 17, 2005

  Before: SCIRICA, Chief Judge, VAN ANTWERPEN and COWEN, Circuit Judges

                             (Filed:   November 16, 2005)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      In this criminal appeal invoking the Fifth Amendment’s Due Process clause,

Appellant Martin Jaimes-Lopez seeks remand for the purposes of re-sentencing. The

District Court held there was no due process violation, and the government did not bind
itself to recommending a downward departure from the applicable sentence under the

Federal Sentencing Guidelines. We will affirm.

                                              I.

         The facts are undisputed. Because we write only for the parties, an abbreviated

recitation will suffice. After being arrested in Norristown, Pennsylvania on February 3,

2004 in connection with an alien smuggling operation, Jaimes-Lopez waived his Miranda

rights and agreed to be interviewed by immigration agents. He detailed to those agents

the events leading up to his arrest, including his conversation with his primary contact,

“Nero,” in coordinating the smuggling operation. After Jaimes-Lopez admittedly gave

false information, one immigration agent asked him, “do you want to go home or do you

want to go to jail?” Jaimes-Lopez responded, “I want to go home.” The agent responded,

“well, then, tell me the whole truth,” after which Jaimes-Lopez said he told them the

truth.

         Agents then asked him if he was willing to make a call to “Nero,” and, after

Jaimes-Lopez hestitated, told him “come on, let’s go, this is going to help you a lot.”

Jaimes-Lopez placed a call to “Nero,” who subsequently made inculpatory statements.

         Jaimes-Lopez then met with an Assistant United States Attorney, and offered some

information about “Nero” and the smuggling operation. When asked by the prosecutor to

obtain additional information about “Nero,” Jaimes-Lopez declined.




                                              2
       On April 15, 2004, Jaimes-Lopez entered an open guilty plea to his indictment on

two counts of alien smuggling in violation of 8 U.S.C. § 1324(a)(1). During the guilty

plea colloquy, the District Court informed Jaimes-Lopez that the government would not

file a motion for a downward departure on his behalf. When asked by the District Court

whether it was “correct” that “the Government has not made any agreement whatsoever,”

Jaimes-Lopez responded, “Yes, your honor.” When the government, in response to a

disagreement between the parties, stated “I’ve informed [defense counsel] prior to today

that this is an open plea and his client will not receive a 5(k), and that he should make his

decision whether to plead guilty or not based on that information,” defense counsel

responded “That’s correct, your Honor. It’s in no way conditional upon anything the

Government is going to do.”

       Prior to sentencing, Jaimes-Lopez filed a motion seeking to compel the

government to file a motion for a downward departure (§ 5k1.1 under the United States

Sentencing Guidelines), claiming the agents who arrested him promised a reduced

sentence for his cooperation.

       The District Court held the immigration agent lacked authority to bind the

government and, because the conversation was part of “the normal give and take that

happens to agents as they’re talking to people” prior to the AUSA’s involvement, no

actual promise had been made. The District Court sentenced Jaimes-Lopez to 15 months




                                              3
of imprisonment, followed by a three-year period of supervised release, and waived a

special assessment of $200. This appeal followed.

                                             II.

       Jaimes-Lopez appeals contending (1) the immigration agents’ representations to

Jaimes-Lopez bind the government’s sentencing recommendations, (2) the immigration

agents promised him a downward departure recommendation in return for his

cooperation, and (3) the government’s decision not to file a motion for downward

departure violated due process.1

                                            A.

       The government contends any claimed actual or apparent authority must fail in

light of what transpired at the time of his guilty plea. The responses by Jaimes-Lopez and

his lawyer, the government argues, are evidence of Jaimes-Lopez’s lack of reliance on the




   1
    Whether the immigration agents had authority to bind the government is a question of
law, and our review is plenary. See United States v. Igbonwa, 

, 442 (3d Cir.
1997).
        Whether the immigration agents made a promise to Jaimes-Lopez is a question of
fact. We review for clear error. Fed. R. Civ. P. 52(a); 

.
Under this standard, a finding is “clearly erroneous when the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” 

(citing United States v. Bogusz, 

, 85
(3d Cir. 1994)) (citations omitted). We “consider whether there is enough evidence in the
record to support the factual findings of the district court.” 

(quoting Cooper v.
Tard, 

, 126 (3d Cir. 1988)).
        Whether the government’s decision not to file a downward departure motion did
not violate due process is a question of law, and our review is plenary. United States v.
Isaac, 

, 481 (3d Cir. 1998).

                                             4
agents’ statements. We agree that Jaimes-Lopez’s response of “Yes, your honor” to the

District Court’s question whether it was “correct” that “the Government has not made any

agreement whatsoever” strongly demonstrates his lack of reliance on any of the agents’

statements. This lack of reliance is supported by his attorney’s statement to the District

Court that Jaimes-Lopez’s guilty plea is “in no way conditional upon anything the

Government is going to do.” 2

        Even assuming the immigration agent had authority to bind the government,

defendant’s arguments would still fail.3 For Jaimes-Lopez to prevail, the immigration

agents’ attempts to induce his cooperation must constitute a promise that the government

would file a motion for downward departure. Under the clear error standard, we give

deference to the District Court’s factual findings so long as there is sufficient evidence in

the record to support those findings. At Jaimes-Lopez’s sentencing hearing, the District

Court found the immigration agents’ colloquy with Jaimes-Lopez was part of “the normal

give and take” that occurs prior to formal discussions with the AUSA. We see no error

here.



   2
    The government does not contend the defendant waived the issue at the time of his
guilty plea. See, e.g., United States v. Ptomey, 

, 760 (3d Cir. 1966) (“A plea
of guilty is a waiver of all nonjurisdictional defects and defenses and constitutes an
admission of guilt.”). Because this matter was not briefed, we will not address it.
   3
    If there were authority here, it could only be apparent authority, not actual authority.
Nonetheless, we doubt that apparent authority could bind the government’s sentencing
recommendations. However, because this is not essential to our decision, we do not
decide the question.

                                              5
       Jaimes-Lopez relies on two of the immigration agents’ statements: first, “do you

want to go home or do you want to go to jail?”, asked in response to the false information

he admittedly supplied to the agents, and second, “c’mon, let’s go, this is going to help

you a lot.” But at no point did any agent make a promise on his sentence or promise to

recommend a downward departure. Nor was there even a passing reference to

“downward departure,” “recommendation,” “plea agreement,” or “5k1.1.” At best, the

agents’ remarks were ambiguous. We see no error here. On review, we are not “left with

a definite and firm conviction that a mistake has been committed,” Igbonwa, 

, 440 (3d Cir. 1997).4

       Because no promise had been made, the District Court did not err in not finding a

due process violation. “A prosecutor’s discretion to file [a § 5k1.1 motion] [is] almost

unfettered.” United States v. Isaac, 

, 481 (3d Cir. 1998) (citing Wade v.

United States, 

, 185-86 (1992)). Although this discretion “is subject to

constitutional limitations that district courts can enforce,” 

, those

limitations do not encompass the full range of bad-faith conduct. Rather, a District Court

must grant a remedy only if the government’s refusal “was based on an unconstitutional

motive,” such as “the defendant’s race or religion.” 

accord 

    We also agree with the government that, even if it had made a binding promise to
Jaimes-Lopez, his refusal to give additional information at the prosecutor’s request
nullified the government’s obligations under that promise.

                                             6
481.5 Because no unconstitutional motive is apparent in this case, and because none has

been argued by Jaimes-Lopez,6 the District Court did not err in not finding a due process

violation.

                                           III.

       We will affirm judgment of sentence.




   5
    Jaimes-Lopez contends that we developed a “bad faith or rationality” test in 

81-83, “if a prosecutor reneged on a cooperation after a plea agreement had
been negotiated.” But Isaac and the cases on which it relied focused on written plea
agreements, absent here, which lent themselves to interpretation under the basic contract
principles informing “bad faith.” Regardless, no promise was made here.
   6
   In claiming the government’s conduct violated due process, Jaimes-Lopez argues
concepts of “fundamental fairness” are at play. But this applies only to conduct
implicating unconstitutional discrimination, absent here.

                                              7