                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-1996

United States v. Tabares
Precedential or Non-Precedential:

Docket 95-5509




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Recommended Citation
"United States v. Tabares" (1996). 1996 Decisions. Paper 152.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/152


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`      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 95-5509



                    UNITED STATES OF AMERICA

                                  v.

                        TABARES, FRANCIA
                    aka "Titora," "Chickie"

                         Francia Tabares,
                                            Appellant



        On Appeal from the United States District Court
                 for the District of New Jersey
               (District Court No. 94-cr-00406-6)



                      Argued May 23, 1996

            Before: SLOVITER, Chief Judge, SAROKIN
and OAKES, Circuit Judges



(Opinion Filed June 19, 1996)

Michael N. Pedicini (Argued)
Morristown, NJ 07960
         Attorney for Appellant

Faith S. Hochberg
  United States Attorney
Henry Klingeman (Argued)
  Assistant United States Attorney
Kevin McNulty
Office of United States Attorney
Newark, NJ 07102
         Attorneys for Appellee

                         OPINION OF THE COURT

SLOVITER, Chief Judge.


         Francia Tabares was one of the defendants charged in a
three-count Superseding Indictment on August 23, 1994, for their
participation in a drug distribution ring. Tabares was charged
in Count One with conspiracy to distribute and possession with
intent to distribute more than 100 kilograms of cocaine, in
violation of 21 U.S.C.   841(a)(1) and    846, and in Count Two
with conspiracy to distribute and possession with intent to
distribute marijuana in violation of 21 U.S.C.    841(a)(1) and
846. She was not named in Count Three, which charged a
conspiracy to import cocaine.
         Tabares pleaded guilty to Count One of the Superseding
Indictment on March 28, 1995, and thereafter the court dismissed
Count Two on motion of the government. In the plea agreement,
the government and Tabares stipulated that if Tabares continued
to recognize and affirmatively accept personal responsibility for
her criminal conduct, she would be entitled to a two-point
reduction in the overall offense level, pursuant to U.S.S.G.
3E1.1(a); that pursuant to    3E1.1(b)(1), she would be entitled
to an additional decrease of one level for timely notifying the
authorities of her intention to enter a plea of guilty; and that
"the applicable guideline range for [her was] 50 to 150 kilograms
of cocaine," resulting in an offense level of 36, pursuant to
U.S.S.G.   2D1.1(c)(5). PSR     44.
         The Probation Office used    2D1.1(c)(2) of the
Sentencing Guidelines to calculate Tabares' base offense level at
36, from which she received a three-level downward adjustment for
acceptance of responsibility. This yielded a total offense level
of 33. Her criminal history category was I; thus, Tabares'
guideline range was 135 to 168 months' imprisonment. U.S.S.G.
Ch. 5, Pt. A. The district court imposed a sentence of 168
months' imprisonment, to be followed by a term of 5 years of
supervised release.
                                II.
         At the sentencing hearing, the district court stated:
              Ms. Tabares, I've reviewed your record,
         and, frankly, it is not a record that one
         would say confers good standing on someone
         before this Court.

              You know, for someone who allegedly is
         remorseful and respects the law, you said
         that the last time. You had an opportunity
         once before: You were convicted of a drug
         offense, you were sentenced to prison. You
         had an opportunity to learn what it means to
         be restricted of your freedom and to be away
         from your children, your family.

              And you didn't learn from that
         experience.

              And in reading the presentence report,
         it indicates that you were less than candid
         with the Probation Officer who prepared the
         report. Some places, you indicated you had a
         lapse of memory, but the overall view that a
         reader comes away with is that you're less
         than a candid individual.

              And there is really not much mercy that
         this Court feels in your situation.


Supp. App. at 13 (emphasis added). The court also spoke about
the harm wreaked on purchasers of drugs by such criminal
activity.
         The court explained its decision to impose the maximum
sentence as follows:
              I imposed a sentence on the higher end
         of the guideline because you are not a first
         offender before this Court, and because of
         your prior drug offense, and because of your
         lack of candor with the Probation Department.

              I do not think that you are remorseful.
         And this is not the sentence that calls for
         the imposition of mercy.


Supp. App. at 15.
         Neither Tabares' counsel nor the prosecutor corrected
the court's statement that Tabares had previously been convicted
and served time behind bars. Apparently, this first came to
light in this case in the supplemental brief filed by counsel for
Tabares in this court when he sought leave to withdraw the brief
he had filed pursuant to Anders v. California, 386 U.S. 738
(1967). At that time, defense counsel called to our attention
the significant fact that Tabares had two prior arrests, but no
prior convictions. The government does not disagree with these
facts. Thus, we must decide what action is appropriate under
these circumstances.
         Tabares requests this court to remand for resentencing
on the ground that the district court's statement demonstrates
that the court sentenced Tabares in reliance on false or
unreliable information, in violation of her due process rights.
The government responds that although the district court's
statement at sentencing regarding a prior conviction was
technically incorrect, Tabares was not prejudiced by the error
and therefore we should not remand for resentencing. Because
Tabares did not raise this issue in the district court, we review
the district court's sentence for plain error. See United States
v. Olano, 507 U.S. 725, 731-37 (1993).
         To meet the plain error standard, Tabares must
demonstrate an "error" that is not only "plain" but also
"affect[s] substantial rights." Fed. R. Crim. P. 52(b). An
error will usually be considered to have affected substantial
rights when it is prejudicial and affected the outcome of the
district court proceedings. United States v. Turcks, 41 F.3d
893, 897 (3d Cir. 1994) (citing Olano, 507 U.S. at 734), cert.
denied, 115 S. Ct. 1716 (1995). The Supreme Court has instructed
that "Rule 52(b) leaves the decision to correct the forfeited
error within the sound discretion of the court of appeals."
Olano, 507 U.S. at 732. In Turcks, we said we would exercise our
discretion "where the defendant is actually innocent, or where,
regardless of the defendant's innocence or guilt, the error
'seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.'" Turcks, 41 F.3d at 897 (emphasis
added) (quoting Olano, 507 U.S. at 732).
         In Townsend v. Burke, 334 U.S. 736, 741 (1948), the
Supreme Court stated that sentencing a defendant on the basis of
assumptions concerning his criminal record which are materially
untrue, "whether caused by carelessness or design, is
inconsistent with due process of law, and such a conviction
cannot stand." In other cases, the courts have remanded for
resentencing when the district court relied upon erroneous or
unreliable facts or inferences at sentencing. See United States
v. Tucker, 404 U.S. 443, 447-49 (1972) (remand for resentencing
because sentencing court had relied on two convictions later
found unconstitutional as a result of defendant's lack of
representation); United States v. Baylin, 696 F.2d 1030, 1040 (3d
Cir. 1982) ("[A]s a matter of due process, factual matters may be
considered as a basis for sentence only if they have some minimal
indicium of reliability beyond mere allegation."); see also Moore
v. United States, 571 F.2d 179, 183 (3d Cir. 1978) ("[A]
defendant should not be sentenced on the basis of information
about him that is materially incorrect. . . .").
         Tabares contends that her sentence violated due process
because the district court relied upon the erroneous assumption
that she had been convicted of a drug crime, whereas the record
shows only that she has been arrested twice before but shows no
prior convictions. Thus, she argues that she is entitled to
resentencing. The government does not allege that it would
suffer any prejudice should this case be remanded for
resentencing. Instead it argues that the district court
expressed "more than sufficient reasons" to impose the sentence
it did, apart from its misstatement. Brief of Appellee at 26.
It notes that the written judgment entered by the district court
sets forth the following reasons: "Prior drug arrests - not
first offender, lack of candor with the probation office; not
remorseful." App. at 38.
         Although Tabares argues she should be viewed as "a
first offender," the presentence report, which Tabares did not
challenge, referred to two prior arrests for drug offenses. The
report refers to but gives little detail about an arrest in
California in 1986 on a charge of Transport/Sale of Narcotics.
It states that Tabares' husband was convicted and imprisoned for
his involvement but that disposition as to her was unknown. The
report also records a second arrest in 1991 in Arizona on similar
grounds when she was charged in a two-count indictment relating
to narcotics. The Arizona charge was brought after she was found
driving a truck that carried almost 20 kilograms of cocaine.
After Tabares was released on bond, she fled to avoid
prosecution. PSR    71. At the time she pled guilty in this
case, she was still a fugitive from Arizona authorities. PSR
71.
         Although the government expresses confidence that the
district court, looking at Tabares' prior record including her
flight from Arizona and her lack of remorse, would
"unquestionably . . . reimpose precisely the same sentence," we
do not have any basis to cut short the defendant's right to be
sentenced on the basis of accurate facts, particularly because
the district court stressed that Tabares had failed to learn from
her prior time served. See Supp. App. at 13. As the Supreme
Court stated:
              We are not at liberty to assume that items given
              such emphasis by the sentencing court, did not
              influence the sentence which the prisoner is now
              serving.

Townsend v. Burke, 334 U.S. at 740-41.
         We need not decide today whether every situation in
which a district court relied on a mistaken belief about a prior
conviction would require resentencing. We merely hold that under
the circumstances presented here, Tabares is entitled to be
resentenced based on accurate information as to her prior record.
         In remanding for resentencing, we believe it is
important to note that the district court did not get the help
from counsel to which it was entitled. Defense counsel has
conceded that he failed to pick up the misstatement as to
Tabares' prior conviction. The Assistant United States Attorney
explained at oral argument before us that fourteen defendants
were being sentenced within three days, which may explain the
scenario under which these events occurred. We note, however,
that the government counsel, as well as defense counsel, has a
responsibility to assure that the district court is relying on
accurate facts. See Berger v. United States, 295 U.S. 78, 88
(1935).
         In any event, we are satisfied that a remand is not
only in the interest of justice for Tabares but helps to promote
the public's confidence in the judicial system's willingness to
do justice. Of course, we do not make any observations or
suggestions about the resentencing itself, leaving that to the
district court.
                               III.
         For the foregoing reasons, we will vacate the sentence
of the district court and remand for resentencing.
