Wednesday, April 3, 2019
Panel Says Jurist Acted at Second Sentencing in Derogation of 2016 Appeals Court Mandate
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday, for a second time, remanded a case for resentencing, declaring that the matter must be heard by a judge of the District Court for the Central District of California other than Percy Anderson who, the three-judge panel said, failed to adhere to the appeals court’s 2016 opinion in the case.
In a Nov. 14, 2016 decision, two members of a three-judge panel—Circuit Judges Dorothy Nelson and Richard Paez—found that Fabel Roque, who was convicted of distributing more than 50 grams of methamphetamine, was entitled to a reversal because Anderson had failed to instruct the jury on sentencing entrapment. (Elaine E. Bucklo, a judge of the District Court for the Northern District of Illinois, sitting by designation, dissented.)
The majority recited that a defendant is entitled to a sentencing entrapment instruction if there is “some foundation in the evidence” for a finding that peace officers induced the commission of a greater crime than intended so that the penalty would be boosted. Evidence at trial showed that a Roque had offered to sell methamphetamine to a man who turned out to an FBI informant, but the offer was turned down because the quantity of the drug that was offered was proclaimed to be insufficient.
The 2016 memorandum opinion declares:
“There is ‘some foundation’ in the evidence from which a jury could find sentencing entrapment because the jury could conclude that the government set the drug quantity at a higher amount to maximize punishment when the informant rejected a quantity that was too small. The district court erred in denying Roque’s request for a jury instruction on sentencing entrapment.”
On remand, the government opted not to retry Roque—rendering inapplicable the 10-year mandatory minimum term to which the defendant had originally been sentenced—and Anderson was left with the task of resentencing. He declined to grant a continuance so that Roque could secure the testimony of the FBI informant, who is currently serving a sentence in state prison for murder, and sentenced Roque to 6½ years in prison.
Anderson rejected the contention that there had been sentencing entrapment, declaring:
“[T]he evidence adduced at trial revealed unequivocally that the defendant was predisposed to provide the quantity charged in the Indictment....”
That finding, Circuit Judge Kim Wardlaw observed at oral argument on Feb. 4 in Pasadena, was “exactly contrary to our prior mandate,” remarking:
“We almost have to reverse on that ground.
Opinion Reversing Sentence
In yesterday’s memorandum opinion, a three-judge panel—comprised of Wardlaw and Circuit Judge Carlos T. Bea, joined by Gershwin A. Drain, a judge of the District Court for the Eastern District of Michigan, sitting by designation—said:
“The district court’s conclusion that the evidence ‘revealed unequivocally’ that there was no sentencing entrapment was directly contrary to the prior panel’s mandate that ‘[t]here is some foundation in the evidence from which a jury could find sentencing entrapment....’…This was error.”
The opinion continues:
“The rule of mandate limited the district court’s authority on remand….When an issue has been finally settled by an appellate court, the district court ‘is bound by the decree as the law of the case, and must carry it into execution according to the mandate.’…The district court may not “vary it, or examine it for any other purpose than execution; or give any other or further relief’ or renew it, even for apparent error, upon any matter decided on appeal…’ ”
Providing relief not sought by Roque, the opinion announces:
“In light of the unusual circumstances of this case, we find that remand to a different district court judge is appropriate….The district court judge currently presiding has twice concluded that there was no evidence of sentencing entrapment and thus, will ‘have substantial difficulty in putting out of his...mind’ ”
The case is United States v. Roque, 17-50236.
Roque was arrested in December 2013 as part of an FBI sting operation which resulted in charges against 20 members of the Mara Salvatrucha gang, or MS-13 gang, described at the time by the U.S. Attorney’s Office as “a notorious violent gang that was born in the immigrant communities just west of downtown L.A.”
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