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United States v. Mateo-Medina

United States Court of Appeals, Third Circuit

December 30, 2016

MAXIMO MATEO-MEDINA a/k/a David Contreras a/k/a Luis Nieves a/k/a Joseph Robles, Maximo Mateo-Medina, Appellant

          Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 18, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-15-cr-00055-001 District Judge: The Honorable Gerald J. Pappert

          Tracy Frederick, Esq. Brett G. Sweitzer, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant

          Bernadette A. McKeon, Esq. Clare P. Pozos, Esq. Office of United States Attorney Philadelphia, PA 19106 Counsel for Appellee

          Before: McKEE, Chief Judge, [1] FUENTES, and ROTH, Circuit Judges


          McKEE, Chief Judge

         Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions. The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct. For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

         I. Factual & Procedural Background

         Mateo-Medina, a citizen of the Dominican Republic, was initially deported from the United States in December 2012 after being convicted of unlawfully obtaining a U.S. passport and serving a five-month sentence for that offense. Shortly after he was deported, his common law wife, Milagros Rasuk, a U.S. citizen with whom Mateo-Medina had been residing for fifteen years prior to his deportation, was diagnosed with terminal colon cancer. Rasuk had two adult children from a prior marriage, both of whom had become drug addicts, and one of whom, Miguel, resided with Mateo-Medina and Rasuk. Rasuk's oldest son, Risdael, who suffers from mental health issues, had his own child, Angel. No doubt because of Risdael's drug addiction, he abandoned Angel for all practical purposes, and Angel was raised by Mateo-Medina and Rasuk.

         When Mateo-Medina received word that Rasuk had been diagnosed with terminal cancer, he returned to the United States to care for her during her final months of life. She died in February 2014.[2] Angel was no older than eleven when his grandmother, Rasuk, died. Mateo-Medina continued to care for Angel and became his sole caretaker following Rasuk's death.[3]

         According to Mateo-Medina, Miguel's continued presence in the household became increasingly disruptive and problematic following Rasuk's death because of Miguel's involvement with drugs and alcohol. Mateo-Medina claims that when he (Mateo-Medina) attempted to intercede and confront Miguel about his behavior, Miguel reported Mateo-Medina to the immigration authorities, informed them of his illegal reentry, and kicked Mateo-Medina out of the home.

         Miguel's strategy apparently worked because Mateo-Medina was subsequently arrested and charged with illegal reentry. He thereafter pled guilty to one count of reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2).

         Mateo-Medina's PSR calculated his offense level at ten, and his criminal history category was II. This resulted in a recommended sentence of eight to fourteen months' imprisonment. The PSR noted that Mateo-Medina had two previous convictions, one for driving under the influence in 2000, and one for fraudulently applying for a United States passport in 2012. Mateo-Medina was arrested under a different alias each time. The PSR also noted that Mateo-Medina had "numerous" arrests that did not lead to conviction.[4] Aside from the arrests leading to his two convictions, Mateo-Medina had been arrested six other times. However, each of the charges involved in his arrests had been withdrawn or dismissed, except for one which lacked a recorded disposition. As we noted earlier, the PSR did not describe any of the underlying conduct purportedly leading to those arrests.

         Mateo-Medina argued for a downward departure from the suggested eight to fourteen-month guideline range. The Government also moved for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The District Court did depart downward one level. The court adjusted Mateo-Medina's Guidelines range downward to six to twelve months' imprisonment based on an offense level of nine and a criminal history category of II. At the sentencing hearing, both the prosecutor and the defense argued for a sentence of time served, which would have been equivalent to roughly six months, or the lower end of the Guidelines range. In spite of this, the District Court sentenced Mateo-Medina to twelve months plus one day, followed by two years of supervised release.[5]

         In calculating Mateo-Medina's sentence, the District Court relied on the relevant factors in 18 U.S.C. § 3553(a) and information contained in the PSR. Significantly, the District Court also relied in part on Mateo-Medina's record of arrests that did not lead to conviction. The court explained:

I also cannot overlook the defendant's rather extensive and I think we all have our own barometer of what is extensive versus what is not extensive interaction with the criminal justice system. But there were as I counted, I believe seven arrests, two convictions in three states since 1988. So, the defendant who was in this country initially illegally since at least the 80s has engaged in conduct which to the Court's view belied and made ring hollow a little bit his desire to merely come to America to seek a better life.[6]

         II. Standard of Review[7]

         As a threshold matter, the parties disagree on the applicable standard of review. The Government argues that, because Mateo-Medina's objection to the District Court's statement regarding the defendant's prior arrest record was not preserved at sentencing, it is reviewed for plain error.[8]Under that standard, Mateo-Medina would bear the burden of establishing the District Court committed plain error.[9] This, the Government urges, Mateo-Medina has failed to do because, even if he could show plain error, he cannot show that it affected the outcome of the proceedings.

         Mateo-Medina counters that he did indeed preserve the issue, and review should therefore be plenary.[10] Mateo- Medina points out that counsel objected to the inclusion of the arrest record in the PSR and at the sentencing hearing. He claims that the District Court understood the objection as an attempt to exclude the arrests as a sentencing consideration, and overruled it based on the court's (erroneous) view that arrests are "appropriate for the Court to consider [] under the statutory [sentencing] factors."[11] Thus, in response to a defense objection, the District Court expressly ruled on the exact issue Mateo-Medina raises on appeal. Mateo-Medina argues that this amounts to preservation, not forfeiture. We need not address whether Mateo-Medina preserved his objection at sentencing because our precedent clearly demonstrates that a district court's consideration, even in part, of a bare arrest record is plain error.[12]

         III. Discussion

         A. Error

         Our review of a criminal sentence "proceeds in two stages."[13] First, we review for procedural error, "such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range."[14] Under the plain error standard, a defendant must show: (1) error, (2) that is plain or obvious, and (3) that affects a defendant's substantial rights.[15] "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."[16] If we find procedural error "our preferred course is to remand the case for re-sentencing, without going any further."[17] In the absence of procedural error, we will then determine whether the sentence imposed was substantively reasonable. When reviewing for substantive reasonableness, "we will affirm [the sentence] unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided."[18]

         Mateo-Medina relies on our opinion in United States v. Berry[19] to argue that the District Court plainly erred in considering his bare record of arrests not leading to conviction when imposing his sentence. There, the sentencing judge considered the relevant factors under 18 U.S.C. § 3553(a) but also speculated about the reasons why the defendants' robbery charges had been nol prossed. In the process, the prosecutor misread the PSR regarding Berry's bald arrest record.[20]

         The sentencing judge also inflated the defendant's propensity for crime by speculating that it was "rather obvious that the reason he doesn't have any actual adult convictions is because of the breakdowns in the court-in the state court system-and not because of innocence."[21] The court also considered appropriate factors under Section 3553(a) such as the seriousness of the crimes of conviction. However, in imposing the sentence on Berry and his codefendant, the court explained:

Taking all those factors in to account, given the fact that their criminal points . . . I don't think reflect quite adequately, the seriousness of their criminal exposure in the past. The fact that they were charged with crimes and then, the prosecution was dropped because nobody showed up to prosecute or something like that, means that their criminal history points were probably understated.[22]

         Berry appealed, arguing that the district court should not have considered, even in part, his bald arrest record, when those arrests did not lead to a conviction. He also argued that the sentencing court erred in speculating about why some prior charges were nol prossed and assuming he was guilty of offenses that were dismissed. Because neither Berry nor his codefendant objected during sentencing, we reviewed for plain error.[23] We specifically noted as a threshold matter "that resentencing would be required here even without the district court's speculation about the reasons for prior charges being nol prossed because of the misstatement of the defendant's arrest record and the district court's misreading of the PSRs."[24] Further, we explained:

A defendant cannot be deprived of liberty based upon mere speculation. We therefore follow the reasoning of the majority of our sister appellate courts and hold that a bare arrest record-without more-does not justify an assumption that a defendant has committed other crimes and it therefore cannot support ...

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