     Case: 09-51174 Document: 00511433514 Page: 1 Date Filed: 04/04/2011




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

                                                 FILED
                                                                             April 4, 2011

                                       No. 09-51174                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JOSE CRISTOBAL CARDONA,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:01-CR-251-1


Before JOLLY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Cristobal Cardona (“Cardona”) appeals the district court’s partial
denial of his 28 U.S.C. § 2255 application for post-conviction relief, in which he
challenged his conviction for several drug-related crimes, and the district court’s
decision to resentence him to 480 months in prison. Because we do not have
jurisdiction over the issues raised in his § 2255 application, we address only
those issues related to his resentencing.             Finding no reversible error, we
AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                       No. 09-51174

                   I. FACTS AND PROCEDURAL HISTORY
       A grand jury indicted Cardona and three co-defendants in May 2001. The
indictment charged Cardona with conspiracy to possess with intent to distribute
marijuana, conspiracy to possess with intent to distribute heroin, possession
with intent to distribute marijuana, and possession with intent to distribute
heroin. The court appointed counsel, but Cardona filed a motion seeking to
proceed pro se in January 2002, which the court granted. Cardona proceeded
pro se from January 22, 2002 until March 8, 2002, when the court re-appointed
counsel pursuant to Cardona’s request.             Cardona was then represented by
counsel throughout trial.1 The jury convicted Cardona of all four offenses.
       Cardona desired to proceed pro se during sentencing. The court permitted
him to do so without warning him of the dangers of representing himself. After
considering Cardona’s objections to the presentencing report (“PSR”), the court
sentenced him to 480 months in prison, followed by an eight-year term of
supervised release.
       Cardona and two of his co-defendants filed a direct appeal, and this court
affirmed Cardona’s conviction and sentence. See United States v. Whittington,
269 F. App’x 388 (5th Cir. 2008) (per curiam) (unpublished). Cardona then filed
an application for post-conviction relief pursuant to 28 U.S.C. § 2255,
challenging various aspects of his conviction and sentence as unconstitutional.2


       1
         The six-week period during which Cardona proceeded pro se is relevant because
Cardona claims that any evidence obtained during this period cannot be used in determining
his sentence because he was “invalidly representing himself” at the time.
       2
         Specifically, Cardona alleged that: (1) he was denied the right to self-representation
because he was not permitted to access his personal law books; (2) he was denied the right to
self-representation when the district court failed to conduct an inquiry into the waiver of his
“pro se defense” before trial; (3) his Sixth Amendment rights were violated when the district
court failed to give him a warning of the potential dangers of proceeding pro se, as required
by Faretta v. California, 422 U.S. 806, 835 (1975); (4) he was denied an impartial jury when
he was not allowed to conduct voir dire on gang bias; (5) the district court erred in admitting
testimony about his gang membership and gang violence; (6) the district court abused its

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The district court partially granted his application, concluding that it had erred
in failing to adequately warn Cardona of the perils of proceeding pro se during
sentencing. The district court therefore vacated Cardona’s sentence and ordered
resentencing after a Faretta hearing.3 The court rejected all of his other points
of error.
       At the Faretta hearing, the court warned Cardona of the dangers of
proceeding pro se, and he unequivocally stated that he wished to do so. Cardona
filed written objections to the PSR.               The court declined to consider those
objections except for the objection related to his progress reports from the
Bureau of Prisons, concluding that this was “the only new issue to be considered
in this case . . . .” The district judge also limited the issues presented at the
sentencing hearing to Cardona’s conduct while in prison.                     After allowing
Cardona to speak, the judge reimposed the same sentence. Cardona appealed,
again raising issues related to the validity of his conviction and resentencing.4
                                  II. JURISDICTION
       The district court vacated Cardona’s sentence and imposed a new
sentence; therefore, this court has jurisdiction over Cardona’s sentencing claims
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.




discretion in admitting expert testimony; (7) his right to confront witnesses against him was
violated when audio tapes were allowed into the jury room; (8) the admission of the testimony
of an “infamous person” violated the infamous persons doctrine; (9) the court reporter’s failure
to report recordings of telephone conversations violated his due process rights; (10) it was
error to combine two conspiracy counts; (11) the district court erred in denying Cardona’s
motion for judgment of acquittal; and (12) Cardona was denied a fair trial because the judge
was biased.
       3
         In Faretta, the Supreme Court held that the court should make the defendant “aware
of the dangers and disadvantages of self-representation, so that the record will establish that
‘he knows what he is doing and his choice is made with eyes open.’” 422 U.S. at 835 (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
       4
           Cardona also represents himself on this appeal.

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       Cardona’s attempt to raise issues related to his conviction is an attempt
to appeal the district court’s denial of his application for post-conviction relief.
To appeal the denial of a motion under 28 U.S.C. § 2255, an appellant must first
obtain     a   certificate   of   appealability     (“COA”)     pursuant      to   28   U.S.C.
§ 2253(c)(1)(B). The district court denied Cardona’s request for a COA, and
Cardona has never requested a COA from this court, either actually or
constructively.5      We therefore lack jurisdiction over any issues raised in
Cardona’s post-conviction application. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (“[U]ntil a COA has been issued[,] federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas petitioners.”).
Accordingly, we do not address Cardona’s arguments that his conviction is
invalid.
                                    III. DISCUSSION
       Cardona raises two claims with respect to his resentencing. First, he
contends that the district court erred by failing to consider whether it had
jurisdiction to resentence him because his conviction was obtained in violation
of his Sixth Amendment right to counsel. Second, he claims that the district
court erred by limiting the scope of his resentencing proceeding, limiting his
right of allocution, preventing him from presenting a witness at the sentencing
hearing, and failing to adequately explain the reasons for the sentence. We
address each issue in turn.



       5
          Cardona separately appealed the district court’s denial of a different § 2255
application. We have already denied Cardona’s request for a COA on his second habeas
petition. See United States v. Cardona, No. 10-50167, Order dated January 12, 2011. Cardona
did not appeal the denial of a COA on the § 2255 application considered in this opinion.
Federal Rule of Appellate Procedure 22(b)(2), which provides that “[if] no express request for
a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the
court of appeals[,]” does not apply here, because Cardona’s notice of appeal was limited to the
resentencing proceeding, referencing only the sentencing order of December 11. Accordingly,
we do not construe his notice of appeal as requesting a COA.

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                                    No. 09-51174

      A.        Did the district court have jurisdiction to resentence Cardona?
      Cardona contends that the Supreme Court’s decision in Johnson v. Zerbst,
304 U.S. 458 (1938), deprived the district court of jurisdiction to resentence him.
He argues that Zerbst compels the conclusion that the district court had no
jurisdiction to convict him and, consequently, did not have jurisdiction to impose
a sentence. In Zerbst, the Supreme Court addressed whether a conviction could
be collaterally attacked through a petition for a writ of habeas corpus when the
petitioner, a criminal defendant, had been completely deprived of the assistance
of counsel. Id. at 459-60. The Court held that the petitioner could file a habeas
petition and attack his conviction because it was obtained in violation of the
Sixth Amendment. Id. at 467-69. In so holding, the Court noted that “[s]ince
the Sixth Amendment constitutionally entitles one charged with [a] crime to the
assistance of counsel, compliance with this constitutional mandate is an
essential jurisdictional prerequisite to a federal court’s authority to deprive an
accused of his life or liberty.” Id. at 467. Cardona urges that since he was
allowed to represent himself without proper Faretta warnings for a period of six
weeks before trial, his conviction was invalid because the district court lacked
jurisdiction.
      We reject Cardona’s contention that such a violation of the right to
counsel, even assuming one occurred here, deprives the trial court of jurisdiction
to proceed. The Supreme Court has since held that a showing that counsel was
ineffective, that a guilty plea was not knowing and intelligent, or that a
defendant was not adequately advised in opting for a “stipulated facts” trial will
not result in the kind of jurisdictional defect mentioned in Zerbst. Custis v.
United States, 511 U.S. 485, 496 (1994). In Custis, the Court distinguished
Zerbst, noting that Zerbst involved a complete failure to appoint counsel. Id.
      Assuming arguendo that the district court may have improperly failed to
warn Cardona of the perils of proceeding pro se as required by Faretta, Cardona

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                                   No. 09-51174

only represented himself for a period of six weeks, after which the district court
granted his motion to have counsel re-appointed. The Supreme Court’s holding
in Custis makes clear that this kind of error does not result in the type of
jurisdictional defect described in Zerbst. We therefore conclude that the district
court had jurisdiction to convict Cardona and, consequently, also had jurisdiction
to resentence him.
      B.     Did the district court err in conducting the resentencing
             proceedings?
             1.    Scope of Resentencing
      Cardona contends that the district court erred in limiting the scope of the
resentencing proceedings to evidence about Cardona’s conduct in prison that
might affect his sentence. For purposes of this appeal, we assume arguendo that
when a defendant is granted § 2255 relief and the district court vacates the
sentence, the district court should not limit the consideration of the issues on
resentencing. Cf. Pepper v. United States, 131 S. Ct. 1229, 1251 (2011) (noting
that when a court vacates a sentence and remands for de novo resentencing, this
action “effectively wipe[s] the slate clean”); United States v. Carales-Villalta, 617
F.3d 342, 345 (5th Cir. 2010). When this court vacates and remands a sentence
on direct appeal, we have held that:
      In the absence of a specific mandate and in the interest of truth and
      fair sentencing, the district court may consider any corrections and
      additions relevant to the issues addressed by this Court on appeal.
      Therefore, when the case is remanded for resentencing without
      specific instructions, the district court should consider any new
      evidence from either party relevant to the issues raised on appeal.
Id. at 345. By analogy, we assume that the scope of resentencing would be
similar when a district court grants § 2255 relief and vacates its own imposition
of a sentence.
      Prior to the resentencing proceeding, Cardona raised twelve objections to
the PSR, and the district court refused to consider eleven of the objections

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                                       No. 09-51174

because it considered them outside of the scope of resentencing.6 Cardona claims
that by refusing to expressly grant or deny his objections, the district judge
violated Federal Rule of Criminal Procedure 32(i)(3)(B), which provides that the
district court “must—for any disputed portion of the [PSR] or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing.” F ED. R. C RIM. P. 32(i)(3)(B). Here, the
district judge procedurally complied with the rule because he stated that he
would not “consider the matter in sentencing,” i.e., the objections filed. Whether
his decision not to consider these matters was correct is an issue we now
address.
       Cardona complains that the district judge erred by limiting the scope of
the proceeding. Cardona failed to object on this basis at the hearing, and we
therefore review for plain error. United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir.) (“When a defendant fails to raise a procedural objection
below, appellate review is for plain error only.”), cert. denied, 130 S. Ct. 192
(2009). We address each objection in turn to determine whether the district
court’s failure to grant the objection constituted plain error.
       First, Cardona objected that the probation officer failed to timely deliver
the PSR to Cardona as required by Federal Rule of Criminal Procedure 32(e)(2).
By Cardona’s own admission, he timely received the report. Cardona’s objection
to the PSR states that he received the report on November 2, 2009, and the
record shows that the hearing was not conducted until December 11, 2009.




       6
         The district judge did consider one of the objections at the hearing when Cardona
raised it. He objected to the PSR on the basis that the district court lacked jurisdiction to
consider his sentence. The district court did address his objection at the hearing and, for the
reasons set forth above in Section III.A., did not err in rejecting it.

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Cardona therefore received the report 35 days before the sentencing hearing as
required by Rule 32(e)(2); there was no error.
      Second, Cardona objected to various facts in the PSR. Specifically, he
objected to: (1) the conclusion that he was involved in the offense at issue from
January 1999 to September 2001 because he was incarcerated from January 9,
1999 to October 2000; (2) the PSR’s overview of the case; (3) the quantity of
drugs for which he was being held responsible; (4) the related cases in the PSR;
(5) the allegation that he possessed a firearm during the conspiracy; (6) the
criminal history as represented in the PSR; and (7) the allegation that he
obstructed justice by threatening witnesses. Although Rule 32(i)(3)(B) requires
the district court to rule on any disputed portion of the report or determine that
a ruling is unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing, a district court need
not address claims of factual inaccuracies in the PSR unless the defendant
provides rebuttal evidence. See United States v. Rodriguez, 602 F.3d 346, 363
(5th Cir. 2010); United States v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993). The
defendant bears the burden of demonstrating that the information in the PSR
is untrue, inaccurate, or unreliable. Rodriguez, 602 F.3d at 363; Gracia, 983
F.2d at 630. Because “[p]resentence reports generally bear indicia of reliability
sufficient to permit reliance thereon at sentencing[,]” the defendant is required
to provide evidence that the PSR contains untrue information. Gracia, 983 F.2d
at 629. An objection is “not evidence” and the district court is “free to adopt the
PSR’s findings without further inquiry or explanation” if the only “evidence”
presented is the defendant’s objection. Rodriguez, 602 F.3d at 363. The district
court’s failure to grant Cardona’s objections was not error, much less plain error,
because Cardona failed to meet his burden of demonstrating that the PSR might
contain untrue or inaccurate information.



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                                     No. 09-51174

      Third, Cardona objected to the inclusion of facts concerning his post-
conviction conduct on the basis that the “court may not consider post-conviction
rehabilitation for sentencing purposes.” Cardona’s assertion is incorrect. The
Supreme Court recently held that post-sentencing rehabilitation may be
considered in resentencing proceedings.             Pepper, 131 S. Ct. at 1236.
Additionally, we note that this objection is inapplicable to the facts of this case
because the evidence shows that Cardona’s post-conviction conduct did not
indicate “rehabilitation.” As the Supreme Court explained in Pepper, “Congress
could not have been clearer in directing that ‘[n]o limitation . . . be placed on the
information concerning the background, character, and conduct’ of a defendant
that a district court may ‘receive and consider for the purpose of imposing an
appropriate sentence.’” Id. at 1241 (quoting 18 U.S.C. § 3661); see also United
States v. Davis, 316 F. App’x 328, 332 (5th Cir. 2009) (per curiam) (unpublished)
(permitting an upward departure from the Guidelines on resentencing based on
the defendant’s conduct in prison and his criminal history).7
      Fourth, Cardona claims that burglary of a habitation is not a crime of
violence and, therefore, the court erred in classifying him as a career offender.
Cardona is incorrect; burglary of a habitation is a “crime of violence” for the
purpose of determining whether a defendant is a career offender. See U.S.
S ENTENCING G UIDELINES M ANUAL § 4B1.2(a)(2) (2009) (noting that “burglary of
a dwelling” is a “crime of violence”); United States v. Majors, 328 F.3d 791, 797
(5th Cir. 2003) (noting that the defendant “qualified as a career offender under
§ 4B1.1 based on prior convictions of robbery and burglary of a habitation”).
Cardona was properly classified as a career offender because he was 18 at the
time he committed the instant offenses, the instant offenses are felonies that are
controlled substance offenses, and he had “at least two prior felony convictions

      7
        Although Davis, as an unpublished opinion, does not bind us, we find its reasoning
persuasive.

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                                  No. 09-51174

of either a crime of violence or a controlled substance offense.” U.S. S ENTENCING
G UIDELINES M ANUAL § 4B1.2(c) (2009); see also § 4B1.1(a).
      Finally, Cardona asserts throughout his objections that the evidence
included in the PSR was obtained while he “was invalidly acting as his own
attorney” during pre-trial proceedings, and the district court therefore erred in
considering it. Even if Cardona was invalidly representing himself for six weeks
before trial, the evidence in the PSR would still be admissible for sentencing
purposes. The exclusionary rule, which operates to exclude otherwise relevant
evidence if it was obtained in violation of certain constitutional rights, does not
apply to evidence in the PSR. See United States v. Montoya-Ortiz, 7 F.3d 1171,
1181 (5th Cir. 1993) (noting that evidence suppressed at trial may be considered
when determining a defendant’s base offense under the Sentencing Guidelines).
Although Montoya-Ortiz concerned evidence obtained in violation of the Fourth
Amendment, other circuits have applied the same reasoning to evidence
obtained in violation of the Sixth Amendment.         See, e.g., United States v.
Kreuger, 415 F.3d 766, 779 (7th Cir. 2005); United States v. Jessup, 966 F.2d
1354, 1356-57 (10th Cir. 1992). Therefore, regardless of whether Cardona was
or was not invalidly representing himself when the evidence was obtained, it was
still admissible during sentencing.
      For these reasons, even assuming arguendo that the district court should
have discussed the objections in more detail, Cardona cannot show that his
substantial rights were affected because none of his objections to the PSR were
legally valid.
             2.    Exclusion of a Witness at Resentencing
      Cardona alleges that the district court erred by preventing Cardona from
calling a witness at the resentencing proceeding. He states that Jesse Ramirez
would have testified “that the trial court that sentenced and convicted him and
his family is so tainted by errors and corruption that they cannot be relied upon.”

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                                     No. 09-51174

Cardona provides no analysis of the district court’s alleged error. Merely listing
an issue is inadequate to raise the issue for appeal. United States v. Green, 964
F.2d 365, 371 (5th Cir. 1992). “‘Although we liberally construe the briefs of pro
se appellants, we also require that arguments must be briefed to be preserved.’”
Hernandez v. Thaler, 630 F.3d 420, 426 n.24 (5th Cir. 2011) (per curiam)
(quoting Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)). Cardona thus
waived this issue.
              3.     Allocution
       Cardona also argues that the trial court erred in limiting his right to speak
at the sentencing hearing.        Federal Rule of Criminal Procedure 32(i)(4)(A)
requires the district court to “address the defendant personally in order to
permit the defendant to speak or present any information to mitigate the
sentence . . . .” F ED. R. C RIM. P. 32(i)(4)(A). Although at first the district court
limited the matters about which Cardona could speak, thereafter, the trial judge
told Cardona he could talk for ten minutes, and the judge did not limit the
subject matter Cardona could cover.8             Cardona spoke for five minutes and
stopped, and the district court told him that he “still ha[d] another five minutes
. . . if there’s anything else you’d like to say.” Cardona responded: “That’s it. I
just want a new trial.” The record reveals that the trial court committed no
error, as Cardona was able to say all that he evidently desired to say. Thus, we
need not decide the extent to which a district court can restrict the topics of a
defendant’s allocution.




      8
        The district judge stated: “I’m going to give you ten minutes to ramble on about
whatever you want to and that’ll be plenty of time. Go ahead.” Although the directive could
have been phrased differently, this statement plainly allowed Cardona to speak about
whatever he wished. As he did not use the entire time allotted, we need not decide what, if
any, time limits a district court may place on allocution.

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                                    No. 09-51174

             4.    Reasons for the Sentence
      Cardona failed to object at the resentencing hearing to the lack of reasons
given for the sentence; therefore, we review this issue for plain error. See
Mondragon-Santiago, 564 F.3d at 364. The district court did not explain at the
hearing why it chose the 480-month sentence; however, the sentence was within
the Guidelines range, and nothing in the record suggests that an explanation
would have changed Cardona’s sentence.             Accordingly, Cardona cannot
demonstrate any reversible plain error. Id. at 365 (noting that the defendant’s
“sentence is within the Guidelines, and he fails to show that an explanation
would have changed his sentence. Accordingly, we are bound by our precedent
to hold that the district court’s failure to adequately explain the sentence did not
affect his substantial rights.”).
                               IV. CONCLUSION
      For the reasons set forth above, Cardona’s sentence is AFFIRMED. His
motion to expedite appeal is DENIED as moot.




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