                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0063n.06

                                           No. 08-6189
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Feb 01, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    MIDDLE DISTRICT OF TENNESSEE
RONALD FUENTES-MAJANO,                           )
                                                 )
       Defendant-Appellant.                      )



       Before: KEITH, KENNEDY, and COOK, Circuit Judges.


       COOK, Circuit Judge. In a fifteen-count indictment, the government charged Ronald

Fuentes-Majano with RICO violations, including racketeering conspiracy and murder-in-aid of

racketeering. Fuentes, a high-ranking member of the Nashville branch of the La Mara Salvatrucha

gang, pleaded guilty to the racketeering conspiracy charge.


       Fuentes’s plea agreement estimated an advisory sentencing range of 360 months to life

“based on the facts . . . known to the government” at the time of the agreement. But if the district

court “refuse[d] to accept that range, thereby rejecting the Plea Agreement,” the terms permitted

either party to withdraw. The agreement also guaranteed that the government would “fully apprise”

the probation office and the district court of “all matters” relevant to sentencing; and it waived

Fuentes’s right to appeal “any sentence within or below the statutory maximum penalty of life
No. 08-6189
United States v. Fuentes-Majano


imprisonment,” except as “to a claim of involuntariness, prosecutorial misconduct, or ineffective

assistance of counsel.”


       At the two-day sentencing hearing, the district court acknowledged Fuentes could withdraw

his plea if the court rejected the advisory range of 360 months to life, accepted the suggested range,

and invited the parties to introduce evidence relevant to the discretionary factors under 18 U.S.C.

§ 3553(a). Omar Gomez and Francisco Dago Mendez (two members of Fuentes’s gang who told

their stories to the prosecutors before Fuentes agreed to his plea) then testified that Fuentes had

threatened to kill cooperating witnesses. Despite being surprised by the introduction of this

evidence—because the government had not previously disclosed to Fuentes either these witnesses’

names or the substance of their testimony—Fuentes cross-examined both witnesses without

objecting or requesting a continuance.


       After receiving this testimony and other evidence, some of which favored leniency for

Fuentes, the district court reiterated the applicable guidelines range—360 months to life—and

discussed each of the § 3553(a) factors. Regarding Fuentes’s threats to kill witnesses, the district

court explained that the threats demonstrated “a lack of true remorse, future dangerousness, and need

to protect the public.” The court then sentenced Fuentes to life imprisonment. Though the district

court looked to balance all the § 3553(a) factors, it admitted that Gomez’s and Mendez’s testimony

was “outcome determinative.”




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        On appeal, Fuentes contends that because the government withheld Gomez’s and Mendez’s

testimony until sentencing (1) the government breached his plea agreement; (2) his life sentence

violates due process; (3) his plea, because it was involuntary, violates due process; and (4) his

sentence is procedurally unreasonable. We disagree.


                                                   I.


        Because Fuentes failed to object to Gomez’s and Mendez’s testimony at the sentencing

hearing, we review his first claim—breach of his plea agreement—for plain error. See Puckett v.

United States, 129 S. Ct. 1423, 1428 (2009); United States v. Barnes, 278 F.3d 644, 646 (6th Cir.

2002). Under the plain-error standard, we may reverse only if we find “that (1) there is an error; (2)

that is plain; (3) which affected the defendant’s substantial rights; and (4) that seriously affected the

fairness, integrity or public reputation of the judicial proceedings.” Barnes, 278 F.3d at 646.


        The government’s strategy here—withholding Gomez’s and Mendez’s “outcome

determinative” testimony until sentencing—may be questioned. But assuming the withholding to

be a breach of the plea agreement (and thus an error), Fuentes must show prejudice—i.e., an effect

on his substantial rights. Id. This ordinarily means a defendant “must demonstrate that [the error]

‘affected the outcome of the district court proceedings.’” Puckett, 129 S. Ct. at 1429 (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)). And because Fuentes complains of a breached plea

agreement, “the outcome he must show to have been affected is his sentence.” Id. at 1433 n.4

(internal quotation marks omitted). Though Fuentes claims that the breach prejudiced him in four

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United States v. Fuentes-Majano


ways, he establishes no adverse impact on his sentence—the requisite showing under the plain-error

standard.


       Fuentes first asserts that without Gomez’s and Mendez’s “outcome determinative” testimony,

the district court would have sentenced him to less than life imprisonment. But this alleged

prejudice (the district court’s reliance on Gomez’s and Mendez’s testimony) is unrelated to the

complained-of breach: Fuentes complains of the lack of notice—that the plea agreement required

the government to disclose Gomez’s and Mendez’s testimony sooner, not that the agreement

prohibited the government from introducing this damning testimony at all.


       Second, Fuentes contends that he would have rejected the plea agreement if the government

had revealed the substance of Gomez’s and Mendez’s testimony before the plea hearing. But this

supposed prejudice involves Fuentes’s plea—not his sentence. And it is his sentence—not his

plea—that Fuentes must show to have been affected. See id. (noting that when the government

breaches a plea agreement “the question with regard to prejudice is not whether [the defendant]

would have entered the plea had he known about the future violation”).


       Third, Fuentes maintains that earlier disclosure of the testimony—before either the plea

hearing or the sentencing hearing—would have caused the district court to recognize its significance

to his guidelines range and reject the plea agreement. This alleged prejudice rests on Fuentes’s

erroneous assumption that the district court, “[b]y making the factual finding that Fuentes had taken

post-arrest steps to have cooperating witnesses killed,” triggered an obstruction-of-justice

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United States v. Fuentes-Majano


enhancement, thereby elevating Fuentes’s guidelines range to strictly life. Yet, the district court did

no such thing. Instead, the court (1) repeatedly stated that it was accepting Fuentes’s plea agreement

with its advisory guidelines range of 360 months to life; (2) repeatedly noted that its only remaining

task was to consider evidence relevant to the discretionary § 3553(a) factors; (3) evaluated all the

evidence, including Gomez’s and Mendez’s testimony, under those factors; and (4) sentenced

Fuentes to life—the high end of his guidelines range—because Fuentes’s threats evidenced a lack

of remorse, future dangerousness, and a need to protect the public. In short, the district court neither

found that Fuentes obstructed justice nor enhanced his guidelines range.


       Fourth, and finally, Fuentes contends that the breach hamstrung his defense at sentencing:

it deprived him of “a fair opportunity to prepare to cross-examine Mendez and Gomez,” and, given

such an opportunity, he “may have been able to effectively counter their . . . testimony.” Fuentes

specifies nothing further, however, such as the witnesses he would have called, the substance of their

testimony, or how he would have attacked Gomez’s and Mendez’s credibility. See Olano, 507 U.S.

at 735 (noting that the plain-error standard normally requires “a specific showing of prejudice”). His

imprecise assertions of prejudice thus fail to hurdle the plain-error bar. See, e.g., United States v.

Miller, 531 F.3d 340, 347 (6th Cir. 2008) (finding no prejudice where defendant made “little effort

on appeal to explain how he was prejudiced”). And rather than move for a continuance at any point

during the two-day sentencing hearing, Fuentes chose to cross-examine the government’s witnesses.

See United States v. Matos, 328 F.3d 34, 43 (1st Cir. 2003) (finding no prejudice where defendant

failed to seek a continuance and vigorously cross-examined the witnesses).

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       Because Fuentes has failed to establish an effect on his substantial rights, the plain-error

standard precludes reversal.


                                                  II.


       Since Fuentes did not object to Gomez’s and Mendez’s testimony, we also review for plain

error his second claim: that his “life sentence violates the Due Process Clause because it is based

on evidence withheld until the middle of the sentencing hearing.” See Barnes, 278 F.3d at 646. In

articulating this claim, Fuentes simply recharacterizes one of his arguments above (that lack of notice

hamstrung his defense) as a due process violation. Under the plain-error standard, however, his due

process claim fares no better.


       We again assume error, however dubious. See Stewart v. Erwin, 503 F.3d 488, 498 (6th Cir.

2007) (observing that “no Supreme Court ruling—and, indeed, no federal appellate decision—has

recognized a ‘clearly established’ due process right to” disclosure of all evidence a court relies on

at sentencing); United States v. Barrett, 890 F.2d 855, 865 (6th Cir. 1989) (“A defendant . . . has no

due process right [at sentencing] to be informed in advance of the identity of witnesses or of the

expected substance of their testimony.”), superseded by statute on other grounds, 18 U.S.C. §

3742(e), as recognized in United States v. Williams, 940 F.2d 176, 181 n.3 (6th Cir. 1991). But even

assuming a due process violation, Fuentes fails to satisfy the third prong of the plain-error

standard—an effect on his substantial rights—because he offers no concrete explanation how earlier



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notice of Gomez’s and Mendez’s testimony would have strengthened his defense. See Olano, 507

U.S. at 735. The plain-error standard again prohibits reversal.


                                                  III.


        Fuentes challenges the voluntariness of his plea on the following theory: the agreement

allowed him to withdraw his plea if the district court rejected the agreement; the court implicitly did

just that when it used Gomez’s and Mendez’s testimony to “de facto” enhance his guidelines range;

and, despite rejecting the agreement, the court never informed him that he could withdraw his plea.

But as discussed, rather than increase Fuentes’s guidelines range, the district court accepted the

advisory range and then exercised its discretion under § 3553(a) in sentencing Fuentes to the high

end of that range. His plea thus withstands his due process challenge premised on his lack of

volition.


                                                  IV.


        Fuentes objects to the procedural reasonableness of his sentence on two grounds: (1) the

district court erred in calculating his guidelines range because it found that he obstructed justice, and

(2) the district court materially relied on erroneous facts. In his plea agreement, however, Fuentes

waived his right to appeal “any sentence within or below the statutory maximum penalty of life

imprisonment,” except as “to a claim of involuntariness, prosecutorial misconduct, or ineffective




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United States v. Fuentes-Majano


assistance of counsel.” Having received a sentence within the statutory maximum, Fuentes may not

now object to the procedural reasonableness of his sentence.


                                               V.


       For these reasons, we affirm the district court’s judgment.




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