US v. Roberto Deleon, No. 10-4064 (4th Cir. 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 15, 2012.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4064 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERTO E. DELEON, Defendant Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 12-6558) Submitted: July 26, 2013 Decided: September 12, 2013 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Paul Michael Cunningham, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Paul E. Budlow, Assistant United States Attorney, Julia Jarrett, Student Intern, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Roberto DeLeon of second-degree murder, in violation of 18 U.S.C. § 1111(a), and assault causing serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). At sentencing, the district court found that the victim, DeLeon s stepson Jordan sentenced Peterson, DeLeon was pursuant under to 18 the age U.S.C. of § eighteen 3559(f), and which establishes mandatory minimum sentences for crimes of violence if the victim is under eighteen. On appeal, we affirmed the district court over DeLeon s objection that the trial judge s use of judicial factfinding to find Jordan s age, a fact that increased the mandatory Sixth Amendment rights. 331-33 (4th Cir. minimum sentences, violated DeLeon s United States v. DeLeon, 678 F.3d 317, 2012). The Supreme Court granted DeLeon s petition for writ of certiorari, vacated this court s judgment, and remanded for further consideration in light of Alleyne v. United States, intervening 133 change S. in Ct. law, 2151 we (2013). vacate Because DeLeon s of sentence this and remand to the district court for resentencing. I. At sentencing, the district court found, over DeLeon s objection, that Jordan was eight-years old, subjecting DeLeon to heightened mandatory minimum prison terms of thirty years for 2 the murder conviction, and ten years for the assault conviction. After reexamining trial evidence, the district court determined that there was clear evidence that Jordan was eight-years old and, regardless, that his age was needed to be presented to the jury. not a factual J.A. 3112. 1 issue that As a result of the district court s finding, the mandatory minimum sentence for DeLeon s second-degree murder conviction increased from zero to thirty years, mandatory from The conviction. and district minimum on zero both to ten court counts years for sentenced with the his assault DeLeon to sentences the running concurrently. On appeal, grounds. DeLeon challenged his sentence on multiple His appeal focused on establishing that the victim s age was an element of the offense, rather than a sentencing factor, and was thus a fact that had to be submitted to the jury and found beyond a reasonable doubt under United States v. O Brien, 130 S. Ct. 2169, 2175 (2010). In addition, he argued that impose any fact that mandates a judge a more severe sentence than the judge would otherwise have the discretion to impose must be submitted to the jury and proven beyond a reasonable doubt. 1 All references to the J.A. are to the Joint Appendix compiled by the parties. 3 The bulk of this O Brien question. court s decision revolved around the We concluded that age is a sentencing factor under 18 U.S.C. § 3559(f) that can be found by a preponderance of the evidence. At the time, DeLeon s judicial factfinding argument was foreclosed by Harris v. United States, 536 U.S. 545, 568 based (2002) on (holding judicial that increasing does factfinding mandatory violate not minimums the Sixth Supreme Court Amendment). After we decided DeLeon s appeal, the overruled Harris in Alleyne and held that facts which increase mandatory minimum sentences must be admitted or submitted to the jury and established beyond a reasonable doubt. 2163. 133 S. Ct. at Thus, the district court s finding that Jordan was eight- years old--a finding that increased the the mandatory minimum sentences--is impermissible. We reconsider DeLeon s sentence in light of this development. II. DeLeon raised the Sixth Amendment factfinding before the district argument for harmless error. unless the thus, we to judicial review his United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006). reverse court; objection government Under this standard, we must can demonstrate beyond a reasonable doubt that the court would have imposed the same 4 sentence in the absence of the constitutional error. Id. at 558 (quoting United States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006)). The government has not met its burden. We recognize that the district court could, at least in theory, arrive at the same sentences in this case via guidelines. 2 the In its brief, however, the government admits that the statutory minimum that DeLeon faced was severe. Appellee s Br. 98. Likewise, the district court expressed its displeasure with the thirty-year mandatory conviction J.A. minimum in 3140-42. prison this case, Although term for noting the the second-degree several judge also mitigating commented murder factors. that he believed anything less than twenty years for DeLeon would be inappropriate, J.A. 3141, we cannot say beyond a reasonable doubt that the error did not affect the sentence imposed. 2 We Calculating the advisory guideline range for DeLeon s second-degree murder conviction without the mandatory minimum, the district court found that DeLeon would be subject to a prison sentence of 292 to 365 months. J.A. 3116. With the mandatory minimum included, the lower end of the guidelines range rose to 360 months. Id. The district court did not calculate the guidelines range for the assault charge without the mandatory minimum. Neither did the presentence investigation report. As to that offense, the ten-year mandatory minimum prison term imposed by the district court is equal to the statutory maximum for the offense. 18 U.S.C. § 113(a)(6). 5 are therefore constrained to remand the case to the district court for resentencing. III. For the foregoing reasons, we vacate the district court s judgment and remand the case for resentencing. VACATED AND REMANDED 6
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