     Case: 12-30056         Document: 00512238081          Page: 1    Date Filed: 05/10/2013




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                              May 10, 2013

                                         No. 12-30056                        Lyle W. Cayce
                                                                                  Clerk

GENARO GONZALES,

                                                     Petitioner-Appellant
v.

BURL CAIN, Warden, Louisiana State Penitentiary,

                                                     Respondent-Appellee



                     Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                 USDC No. 11-cv-1846


Before JONES and CLEMENT, Circuit Judges, and KAZEN, District Judge.*
PER CURIAM:**
       Petitioner-Appellant Genaro Gonzales received a 40-year sentence in
Louisiana state court for attempted second-degree murder.                      Following the
denials of his direct appeal and petition for a writ of habeas corpus in the state
courts, Gonzales petitioned for habeas relief in the United States District Court
for the Eastern District of Louisiana. Gonzales sought relief on the basis that,
among other things, the trial judge vindictively imposed an increased sentence

       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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solely on account of Gonzales’s decision to proceed to trial in lieu of accepting the
state’s plea deal. The district court dismissed Gonzales’s petition, and we
AFFIRM.


                            I. FACTUAL BACKGROUND
      Petitioner-Appellant Genaro Gonzales was convicted by a jury of
attempted second-degree murder of Camille Tarver. At trial, Tarver testified
that she and Gonzales dated for a few months in 2004 until she broke off their
relationship. In January 2005, Tarver was waiting for the streetcar in New
Orleans to go to work when Gonzales approached and asked if they could talk.
She became upset and boarded the streetcar, leaving Gonzales behind. Later
that night, after finishing her shift at work, Tarver proceeded to walk home
along her usual route when Gonzales jumped from behind some bushes and
attacked her. Gonzales threw Tarver to the ground, took out a knife, and
stabbed her multiple times. At one point during the struggle, Tarver was able
to push Gonzales away and to run into the street screaming. A car stopped to
help, Tarver jumped in, and the driver immediately took her to the Hospital.
      Upon arriving at the hospital, Tarver was told she needed emergency
surgery. She had suffered three stab wounds, one of which was life threatening.
The life-threatening wound was located just below Tarver’s breast bone, and was
so large and deep that her liver and stomach could be seen at the base of the
wound. Tarver’s surgeon later testified at trial that the knife had severed a
major artery, and that Tarver probably would have died if she had not been
taken to the hospital at that time.
      Just before Tarver went into surgery, she identified Gonzales as her
attacker, gave a police officer Gonzales’s name and address, and informed the
officer that Gonzales had family in New York.           Gonzales was ultimately
apprehended and offered an opportunity to plead guilty in exchange for a

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sentence of 20 years’ imprisonment. Gonzales rejected the offer, and, following
a one-day jury trial, was convicted of attempted second-degree murder.
Gonzales ultimately was sentenced to 40 years’ imprisonment.
      After unsuccessfully seeking direct review of his conviction and sentence
in the Louisiana Court of Appeal and the Louisiana Supreme Court, Gonzales
filed an application for post-conviction relief. In his petition, Gonzales alleged
several grounds for relief that were ultimately denied by the Louisiana district
court and the Louisiana Court of Appeal. Gonzales then filed a 28 U.S.C. § 2254
habeas petition raising the same claims in federal district court. The district
court judge construed Gonzales’s argument as a claim that the 40-year sentence
was disproportionately severe in comparison to the 20-year sentence that he had
been offered prior to trial as part of the plea deal. The court then analyzed the
proportionality of the sentence under the Eighth Amendment and denied
Gonzales relief. This court granted a Certificate of Appealability only as to
whether Gonzales’s 40-year sentence violated the Eighth Amendment due to the
trial judge’s alleged imposition of a more severe sentence after Gonzales
exercised his right to a jury trial.

                             II. STANDARD OF REVIEW
      The standard of review for federal courts in habeas cases is statutorily
defined by 28 U.S.C. § 2254(d), the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). McCamey v. Epps, 658 F.3d 491, 496 (5th Cir. 2011). Under
AEDPA, federal courts cannot grant a habeas petition regarding a claim
adjudicated on the merits in state court unless that adjudication: “(1) resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court


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proceeding.” Woodward v. Epps, 580 F.3d 318, 325 (5th Cir. 2009) (quoting 28
U.S.C. §§ 2254(d)(1)–(2)).
      On appeal from the denial of habeas relief in the context of a claim under
AEDPA, “we review the district court’s findings of fact for clear error and review
its conclusions of law de novo, applying the same standard of review to the state
court’s decision as the district court.” Garcia v. Quarterman, 454 F.3d 441, 444
(5th Cir. 2006) (internal quotation omitted).


                                 III. ANALYSIS
      Gonzales contends that the Louisiana Court of Appeal’s decision denying
him postconviction relief involved an unreasonable application of federal law.
According to Gonzales, the trial court vindictively imposed a 40-year sentence
(rather than the 20-year sentence he had been offered earlier) to punish him for
refusing to plead guilty and proceeding with a jury trial. His support for that
claim relies on the discrepancy between the sentence he was offered as part of
a plea deal and the sentence he ultimately received, and on two statements of
the trial court judge referring to Gonzales’s refusal to plead guilty.
      A. Post-Trial Sentence Enhancement
      A defendant challenging the imposition of an elevated sentence is, in
certain situations, entitled to a presumption of vindictiveness where the trial
court has made no affirmative showing of reasons sufficient to warrant the
increase in his sentence after trial. See Alabama v. Smith, 490 U.S. 784, 798–99
(1989) (“[W]henever a judge imposes a more severe sentence upon a defendant
after a new trial, the reasons for him doing so must affirmatively appear. . . .
Otherwise, a presumption arises that a greater sentence has been imposed for
a vindictive purpose.” (internal quotation marks omitted)); see also North
Carolina v. Pearce, 395 U.S. 711, 723 (1969), overruled on other grounds by
Smith, 490 U.S. 794. This presumption “is a prophylactic rule designed to

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protect a defendant’s due process rights where a danger exists that the
government might retaliate against him for exercising a legal right.” United
States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). It applies “only where
there exists a ‘reasonable likelihood that the increased sentence is the product
of actual vindictiveness’ and ‘where there is no such reasonable likelihood, the
burden remains upon the defendant to prove actual vindictiveness.’” United
States v. Reinhart, 442 F.3d 857, 860 (5th Cir. 2006) (quoting Smith, 490 U.S. at
794).
        Gonzales first alleges that the trial court’s imposition of a harsher
sentence after trial demonstrates that he was being punished for exercising his
right to stand trial.       This claim alone does not create a presumption of
vindictiveness.     The Fifth Circuit, sitting en banc, determined that this
presumption is “completely inapplicable to post-plea bargain proceedings.”
Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir. 1980) (en banc) modified on
other grounds, 646 F.2d 902 (5th Cir. 1981).1 In such situations, a defendant
must demonstrate that there was a reasonable likelihood that the increase in his
sentence was due to actual vindictiveness. See United States v. Rodriguez, 602
F.3d 346, 359 (5th Cir. 2010). Gonzales ultimately rejected the state’s offer to
plead guilty and instead chose to contest his guilt by taking his chances at trial.
Once a plea deal has been rejected:

        [T]he defendant cannot complain that the denial of the rejected offer
        constitutes a punishment or is evidence of judicial vindictiveness.
        To accept such an argument is to ignore completely the underlying
        philosophy and purposes of the plea bargaining system. If a


        1
         Although the Supreme Court has not directly addressed this issue, in Smith, 490 U.S.
794, it declined to apply the presumption of vindictiveness where the defendant appealed his
guilty plea, went to trial, and received a longer sentence than was originally imposed. The
Court concluded that “when a greater penalty is imposed after trial than was imposed after
a prior guilty plea, the increase in sentence is not more likely than not attributable to
vindictiveness on the part of the sentencing judge.” Id. at 801.

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       defendant can successfully demand the same leniency after standing
       trial that was offered to him prior to trial in exchange for a guilty
       plea, all the incentives to plea bargain disappear; the defendant has
       nothing to lose by going to trial.
Frank, 646 F.2d at 883. Thus, the mere imposition of a harsher sentence after
trial than was offered during plea negotiations does not warrant a presumption
that the trial judge sought to punish Gonzales for exercising his right to stand
trial absent some other indicia of actual vindictiveness.
       Additionally, the imposition of an increased sentence after trial is often
warranted by the presentation of evidence at trial that was not previously
available during the plea negotiations. See, e.g., Smith, 490 U.S. at 796–97
(“The trial court explained that it was imposing a harsher sentence than it had
imposed following respondent’s guilty plea because the evidence presented at
trial, of which it had been unaware at the time it imposed sentence on the guilty
plea, convinced it that the original sentence had been too lenient.”).                  At
Gonzales’s sentencing, the trial judge recalled the course of the trial and the
nature of the evidence presented, particularly the testimony of Tarver and the
surgeon.2 The judge also noted that he could not “find anything at all to say in
mitigation about [Gonzales], about his actions” which “clearly evidenced an
intent to kill [Tarver].” Gonzales’s crime, concluded the trial judge, “clearly
[couldn’t] be thought of as a crime of provocation. The idea of premeditation and
a desire to terminate [Tarver’s] life just screams out.” At sentencing, the trial
judge made clear that the evidence presented at trial shed new light on
Gonzales’s character and the heinous nature of his crime. These comments are
more than sufficient to show that the Louisiana Court of Appeal did not
unreasonably apply Supreme Court precedent in determining that Gonzales’s


       2
          The trial court stated that “[t]he testimony of [Tarver] itself was—was extremely
significant; quite compelling. But it was no match for the testimony of the emergency room
surgeon, a young doctor who testified before the Jury in this court.”

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sentence was based on factors other than the trial judge’s alleged vindictiveness.
      B. Comments Made by the Trial Judge at Sentencing
      Gonzales also argues that two statements made by the trial court at
sentencing suggest that the court took his decision to stand trial into account
when fashioning his sentence. One of these statements could perhaps raise a
specter of vindictiveness, but since the trial court proffered alternative
rationales for Gonzales’s sentence, this claim fails.
      In discussing his decision to impose a 40-year sentence on Gonzales, the
trial judge observed that:
      [T]his Court did offer [Gonzales] . . . the opportunity to admit his
      guilt, and to serve a term of 20 years. [Gonzales] chose to turn that
      down, and thus the question is asked: Is a judge allowed to give
      someone a greater sentence after the case has been heard, the trial
      testimony taken, and the verdict rendered by judge or jury? Or is
      a judge prohibited from doing that, because to do so would have a
      chilling effect on the right of a defendant to have trial?
      The law has answered that it is not improper for a Court to consider
      whether or not a plea offer was indeed rejected and trial followed.
      The law as I appreciate it views the initial offer [as] more of a
      reward than it does view a subsequent greater sentence following
      trial as being a punishment.
      Contrary to Gonzales’s contentions, these initial statements do not
indicate that the judge acted vindictively during sentencing. Instead, the trial
judge merely recognized that the imposition of an increased sentence after trial
is often justifiable since the bargained-for leniency inherent in the plea
negotiation process is not available once a trial has been held. See Smith, 490
U.S. at 802–03 (recognizing that “the same mutual interests that support the
practice of plea bargaining to avoid trial may also be pursued directly by
providing for a more lenient sentence if the defendant pleads guilty”). In
refusing to plead guilty, Gonzales assumed the risk of a conviction and
ultimately, a harsher sentence. The trial judge’s statements acknowledge this


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reality without suggesting that Gonzales was being punished solely for his
decision to stand trial.
      Additional comments made by the trial judge at sentencing, however,
might suggest that the judge sought, at least in part, to punish Gonzales for the
exercise of his constitutional right to trial. The trial judge found it “difficult . . .
to sit and watch [Tarver] have to travel all the way back from Korea . . . and give
testimony.” By attending trial, Tarver was forced “to have to repeat and relive
that nightmare [of the attack], literally a nightmare,” a consideration that the
trial judge expressly “weigh[ed] against the defendant in choosing the sentence
[to] be imposed.” These comments—made in the context of the trial judge’s
explanation of the reasons for imposing a 40-year sentence on Gonzales—if
viewed in isolation, might indicate that the court was punishing Gonzales for
choosing to go to trial rather than plead guilty.
      Even if a defendant’s claim presents some indicia of possible
vindictiveness, it can be rebutted by a showing that the trial court based the
defendant’s sentence on “some objective reason or reasons,” occurring some time
after the defendant declined to plead guilty, “to overcome the presumption of
vindictiveness    and      justify   a   lengthier   sentence.”     United    States   v.
Resendez-Mendez, 251 F.3d 514, 518 (5th Cir. 2001). Such objective evidence
includes any “events subsequent to the first trial that may have thrown new
light upon the defendant’s life, health, habits, conduct, and mental and moral
propensities.” Pearce, 395 U.S. at 723 (internal quotation marks omitted). The
trial court satisfied its burden to provide this justification when it listed
numerous reasons for rejecting a 20-year sentence in favor of a longer, 40-year
sentence. As discussed above in Section III(A), supra, the sentencing transcript
reveals that the trial court focused on the lack of mitigating evidence and the
violent nature of Gonzales’s crime in deciding on an appropriate sentence. This



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objective evidence justifies the trial court’s decision and is sufficient to rebut
Gonzales’s claim of actual vindictiveness.


                                 IV. CONCLUSION
      The trial court’s imposition of a harsher sentence after Gonzales’s trial
than was offered during plea negotiations did not raise a presumption of
vindictiveness. Nor did the trial court’s reference to Gonzales’s decision to refuse
the plea deal constitute actual vindictiveness. The trial court’s comment on the
burden imposed on Tarver by virtue of Gonzales’s decision to stand trial raises
a slightly closer question. However, as the trial court proffered several other
justifications for its sentencing decision, we decline to hold that it unreasonably
applied Supreme Court precedent in dismissing Gonzales’s petition.              We
therefore AFFIRM.




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