Filed: Jun. 02, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-50833 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SALVADOR ESQUEDA-MORENO, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas _ (June 14, 1995) Before JOHNSON, WIENER, and STEWART Circuit Judges. JOHNSON, Circuit Judge: In 1989, Defendant-Appellant Salvador Esqueda-Moreno ("Esqueda") pleaded guilty of importing marijuana into the United States in vio
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-50833 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SALVADOR ESQUEDA-MORENO, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas _ (June 14, 1995) Before JOHNSON, WIENER, and STEWART Circuit Judges. JOHNSON, Circuit Judge: In 1989, Defendant-Appellant Salvador Esqueda-Moreno ("Esqueda") pleaded guilty of importing marijuana into the United States in viol..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-50833
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR ESQUEDA-MORENO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the
Western District of Texas
_________________________________________________________________
(June 14, 1995)
Before JOHNSON, WIENER, and STEWART Circuit Judges.
JOHNSON, Circuit Judge:
In 1989, Defendant-Appellant Salvador Esqueda-Moreno
("Esqueda") pleaded guilty of importing marijuana into the United
States in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). Esqueda
failed to appear for his subsequent sentencing hearing and was a
fugitive from the law until he was apprehended on unrelated charges
in 1994. Esqueda finally underwent his sentencing hearing for the
1989 marijuana charges in 1994 when he was assigned an offense
level of twenty-eight under the United States Sentencing Guidelines
("the Guidelines") and sentenced to ninety months in the federal
penitentiary. Esqueda now appeals his two-point upward adjustment
for obstruction of justice on the grounds that the district court
failed to make a specific finding as to whether Esqueda willfully
failed to appear for sentencing immediately following the 1989
guilty plea. Because we believe that the willfulness of Esqueda's
failure to appear at the sentencing hearing did not constitute a
controverted issue under the terms of FED. R. CRIM. P. 32 and thus
did not require a specific finding, we affirm.
I. Facts and Procedural History
On December 19, 1989, Esqueda pleaded guilty to importing over
100 kilograms of marijuana into the United States from Mexico.
Esqueda posted a $25,000 bail bond and was released until his
sentencing hearing which was scheduled for February 13, 1990. When
Esqueda failed to report for his February sentencing hearing, the
district court revoked the bond and issued a warrant for Esqueda's
arrest. On April 6, 1994, Esqueda was arrested in California on
other drug-related charges. On April 8, 1994, the United States
Marshal Service lodged a detainer and Esqueda was taken into
federal custody on October 28, 1994. Sentencing on the 1989
federal importing of marijuana charges was rescheduled for December
14, 1994.
The probation officer updated Esqueda's presentence report
("PSR") to reflect his failure to appear for the February 13, 1990,
sentencing date. In recalculating Esqueda's offense level, the
probation officer included a two-level adjustment for willful
obstruction of justice. Esqueda lodged only one written objection
to the PSR. He objected to the PSR's failure to include a two-
point downward adjustment for acceptance of responsibility. During
2
the actual sentencing hearing as well, Esqueda's counsel referred
only to the lack of a downward acceptance of responsibility
adjustment in contesting the PSR. The district court overruled the
acceptance of responsibility objection, stating that Esqueda's
situation was not one of those rare instances warranting an offense
level enhancement for obstruction of justice and a downward
adjustment for acceptance of responsibility.
After the district court overruled Esqueda's objection to the
presentence report, the district court allowed Esqueda to make any
unsworn statements he desired to make to the district court before
the court imposed sentence. Esqueda stated that the reason he did
not appear for sentencing in 1990 was that an acquaintance had told
him that if he paid the $25,000 bond, he did not have to appear for
sentencing. Esqueda claimed that he therefore sold his home in
Texas, paid the proceeds to his bail bond company, and then moved
to California.1 In response to Esqueda's statements the district
court stated, "I will agree with you that you succeeded in carrying
on, going your merry way for about four years before it caught up
1
Esqueda also proffered this same excuse for his failure to
appear at the 1990 sentencing hearing during his presentence
interview with the probation officer who prepared the PSR. After
specifically noting that wilfulness is a requirement for an
obstruction enhancement based upon failure to appear in court, the
probation officer found that Esqueda had obstructed justice by
failing to appear for sentencing, changing his residence, and
remaining a fugitive until he was taken into custody. The
probation officer also found that Esqueda had not accepted
responsibility for his conduct and did not deserve a corresponding
downward adjustment. The probation officer based her finding that
Esqueda had not accepted responsibility for his conduct on the fact
that he engaged in similar conduct during his fugitive status as
evidenced by his drug arrest in California.
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with you." (II Record at 18.)
The district court then adopted the factual findings and the
Guidelines application in the PSR. The court found Esqueda's total
offense level to be twenty-eight with a criminal history of II,
which left Esqueda with a sentencing range of 87-108 months. The
district court ordered Esqueda to serve ninety months in prison
followed by four years of supervised release and to pay a fifty
dollar special assessment.
Esqueda now appeals the district court's sentence. He asserts
that the district court failed to comply with FED. R. CRIM. P. 32 and
that, as a result, the district court may have incorrectly applied
the Guidelines. Esqueda contends that the district court violated
Rule 32 by failing to make a specific factual determination as to
whether Esqueda willfully failed to appear for his scheduled
sentencing in 1990. Esqueda claims that such a specific finding
was necessary because of the comments he made at his sentencing
regarding his misunderstanding of the effect of paying the $25,000
bond. Esqueda argues that his comments placed the willfulness
issue in controversy so as to require the district court to make
specific findings under Rule 32.
II. Discussion
A district court's legal application of the Guidelines is
reviewed de novo, while any fact findings made in applying the
Guidelines are reviewed for clear error. United States v. Palmer,
31 F.3d 259, 261 (5th Cir. 1994). While a Rule 32 violation may be
addressed for the first time on appeal, Esqueda cannot meet his
4
burden of establishing that the district failed to comply with the
rule and, thus, there is no reversible error. See United States v.
Manotas-Mejia, 824 F.2d 360, 368 (5th Cir.), cert. denied,
484 U.S.
957 (1987) (allowing a Rule 32 violation to be addressed for the
first time on appeal).2
FED. R. CRIM. P. 32(c)(1) provides that:
At the sentencing hearing,the court must afford
counsel for the defendant and for the Government an
opportunity to comment on the probation officer's
determinations and on other matters relating to the
appropriate sentence, and must rule on any unresolved
objections to the presentence report. The court may, in
its discretion, permit the parties to introduce testimony
or other evidence on the objections. For each matter
controverted, the court must make either a finding on the
allegation or a determination that no finding is
necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing.
As may be seen from the plain language, Rule 32(c)(1) requires only
that sentencing court rule on any "unresolved objections to the
presentence report." FED. R. CRIM. P. 32 (emphasis added). Numerous
decisions of this Court are grounded on the assumption that a
matter becomes "controverted" so as to implicate the requirements
of the third sentence of Rule 32(b)(1) only after there is an
"unresolved objection" pursuant to the first sentence. See, i.e.,
United States v. Ruiz, 43 F.3d 985, 991 (5th Cir. 1995)
(emphasizing the necessity for the filing of written or oral
objections to the PSR in order to contest the information found in
2
Manotas-Mejia addresses the former Rule 32(c)(3)(D), which
became Rule 32(c)(1) after the 1994 amendment. The notes of the
advisory committee make clear that no major change was intended in
regard to practice surrounding Rule 32; therefore, the spectrum of
appellate review remains unchanged. See Rule 32(c) advisory
committee's notes.
5
the PSR so as to require findings under Rule 32(c)(3)(D))3; United
States v. Wiley, 979 F.2d 365, 369 (5th Cir. 1992) (commenting that
Rule 32 requires the district court to make findings with regard to
allegations of factual inaccuracies in the PSR when "objections"
are unresolved); United States v. Rodriguez,
897 F.2d 1324, 1327-28
(5th Cir.), cert. denied,
498 U.S. 857 (1990) (requiring objections
to the PSR to be made "with specificity and clarity" so that the
district court can delineate what is and is not a specifically
disputed issue of fact). The district court cannot be expected to
conduct an independent analysis of the PSR, looking for every
potential dispute or controversy within the facts and conclusions
the PSR has set forth. This is precisely why Rule 32(b)(1)
provides the defendant with the mechanism of objecting to the PSR
in order to turn the district court's attention to any errors of
controversy. Esqueda has failed to show that the district court
was required to address the issue of the willfulness of his failure
to appear at the 1990 sentencing because Esqueda never raised a
general or specific objection to the obstruction of justice
enhancement. Prior to and during sentencing, Esqueda raised the
same solitary objection——that the PSR should have included a
downward adjustment for acceptance of responsibility. He did not
3
Significantly, Ruiz also places a great deal of emphasis on
the fact that the Local Rules of the district court generally
required written objections to place PSR findings in controversy.
See id. at n.13. Like the Southern District of Texas involved in
Ruiz, the Western District of Texas involved in the case at bar
required the delivery of written objections in order to put the PSR
into controversy unless good cause was shown in order to allow such
objections orally at the sentencing hearing.
6
argue——either in his presentence objections to the PSR or during
the sentencing hearing itself——that he should receive a downward
adjustment because his failure to appear at the 1990 sentencing
hearing was not willful. Moreover, Esqueda never raised an
objection at any time concerning the PSR's inclusion of the two-
level upward adjustment in his offense level for obstruction of
justice——the very aspect of Esqueda's sentence that he now contends
raises the issues of willfulness and the district court's failure
to address it. Because Rule 32 contemplates an objection to place
a fact or conclusion in the PSR into controversy, the district
court was not required to make a specific finding as to the
willfulness of Esqueda's failure to appear at his 1990 sentencing
hearing.
III. Conclusion
FED. R. CRIM. P. 32(c)(1) contemplates an objection in order to
place the PSR into controversy so as to require the district court
to make specific findings as to the controversial issue. Because
Esqueda failed to object to the obstruction of justice enhancement,
the district court was not required to make any specific finding as
to whether Esqueda willfully failed to appear at his sentencing
hearing in 1990. Therefore, the district court's sentence is
affirmed.
AFFIRMED.
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