           Case: 12-12322   Date Filed: 04/08/2013   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12322
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:06-cr-20081-ASG-2



UNITED STATES OF AMERICA,


                      Plaintiff-Appellee,


versus

JUAN MANUEL BERNAL PALACIOS,


                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 8, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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      Juan Manuel Bernal Palacios appeals following his conviction and

sentencing on multiple felony counts. Palacios was originally convicted and

sentenced in 2008. He subsequently filed a 28 U.S.C. § 2255 motion for

ineffective assistance of counsel, as his appointed attorney did not file a timely

appeal as he requested. The district court denied relief, and Palacios appealed. In

2011, this court vacated and directed the district court to follow the procedure set

forth in United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000) for out-of-

time appeals, and enter a new judgment with the same total sentence, advising

Palacios of his appellate rights and deadlines. In 2012, and without a hearing, the

district court entered a new judgment, identical to the first judgment save for the

date of entry, and reimposed the same total sentence. Palacios now appeals,

arguing that his guilty plea was involuntary, and that the total 135-month sentence

reimposed by the district court in 2012 was procedurally infirm, since neither he

nor his attorney were present. Upon review of the record and consideration of the

parties’ briefs, we affirm.

                              I. Acceptance of Guilty Plea

      Palacios argues that the district court should not have accepted his guilty

plea in 2007, as his denial of the knowledge required for money laundering and

refusal to accept the government’s proffer at the plea colloquy undermined the

factual basis for the plea. He contends that the district court also failed to make


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factual findings as to whether or not his admitted conduct was sufficient to satisfy

the statutory elements for money laundering under 18 U.S.C. § 1956, and the

government did not object to the court’s acceptance of the plea even in light of

Palacios’s denial of knowledge. He maintains that his admissions did not include

the knowledge statutorily required for the indicted offenses. Therefore, he

concludes that had he known prior to sentencing that knowledge was a required

element of money laundering, he would not have pleaded guilty, and therefore the

district court’s error affected his substantial rights.

       When a defendant fails to make an objection, and raises an issue for the first

time on appeal, we will only review it for plain error. United States v. Thayer, 204

F.3d 1352, 1356 (11th Cir. 2000) (per curiam). There must be an error that is plain

and that affects substantial rights, and it is within our discretion to correct a

forfeited error when it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings. Id. (alteration in original) (internal quotation

marks omitted). The defendant bears the burden of persuasion. United States v.

Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).

       “A district court accepting a plea must determine whether the conduct which

the defendant admits constitutes the offense . . . to which the defendant has pleaded

guilty.” United States v. DePace, 120 F.3d 233, 238 (11th Cir. 1997) (internal

quotation marks omitted). The court must have been presented with sufficient


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evidence from which it could reasonably find that the defendant was guilty. Id.

There is a strong presumption that a defendant’s statements during a plea colloquy

are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). When

seeking reversal on plain error review under Rule 11, the defendant must

demonstrate that, but for the error, he would not have entered the plea, and “that

the probability of a different result is sufficient to undermine confidence in the

outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 83,

124 S. Ct. 2333, 2340 (2004) (internal quotation marks omitted).

      Here, Palacios failed to object before the district court on the grounds stated

in his appeal, namely that his plea failed to establish the required knowledge for

money laundering. As such, we review the issue for plain error. Thayer, 204 F.3d

at 1356. Contrary to Palacios’s contention, not only did he fail to object to the

contents of the government’s proffer, but he also explicitly stated that the conduct

and knowledge ascribed to him in the proffer were accurate. Further, the district

court made specific findings of fact as to the adequacy of the evidence presented,

the satisfaction of the government’s burden in demonstrating each element of the

charged offenses, and the correspondence of the conduct and knowledge admitted

by Palacios in his plea to the offenses charged. The district court thus satisfied its

duties to safeguard the defendant from entering into a plea unknowingly or

involuntarily. DePace, 120 F.3d at 238.


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      The record does not support an argument that Palacios was lying, misled,

confused, or ambiguous in making this statement, and the court operates under the

presumption that the sworn defendant is telling the truth during a plea colloquy.

Medlock, 12 F.3d at 187. Palacios’s claim that he explicitly denied having the

statutorily required knowledge during the plea colloquy is refuted by the record.

Thus, the district court had no reason to question the sufficiency of the evidence

presented on Palacios’s conduct or knowledge, as he did not dispute the

government’s element-by-element rundown in the proffer. See DePace, 120 F.3d

at 238. As such, there is no error evident in the sentencing court’s acceptance of

Palacios’s plea. See Thayer, 204 F.3d at 1356. Without an error, there can be no

plain error affecting Palacios’s substantial right and no resultant degradation of the

integrity or reputation of the judicial system. Id. Consequently, Palacios has not

demonstrated any Rule 11 error but for which he would not have entered his plea,

and accordingly his argument fails. Dominguez Benitez, 542 U.S. at 83, 124 S. Ct.

at 2340.

                    II. Palacios’s Fifth and Sixth Amendment Claims

      Palacios next argues that the district court’s failure to appoint counsel for his

resentencing hearing violated his Sixth Amendment and statutory rights to counsel,

and denied him the opportunity to present new evidence for consideration under

18 U.S.C. § 3553(a). He also contends that he was denied his Fifth and Sixth


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Amendments rights to be present at his resentencing hearing, as he was

resentenced in absentia. He further argues that the resentencing procedure also

contravened a recent Supreme Court decision, Pepper v. United States, 131 S. Ct.

1229 (2011), as it denied him the ability to present evidence of his post-sentencing

rehabilitation for consideration.

      When an out-of-time appeal is granted in a § 2255 proceeding, the criminal

judgment must be vacated, the same sentence reimposed, and, upon reimposition

of the sentence, the defendant must be notified of both the rights associated with

making an appeal and the timing required to file an appeal. Phillips, 225 F.3d at

1201. The purpose of the Phillips out-of-time appeal remedy is to restore the

defendant to the same position that he would have been in had his lawyer filed a

timely appeal on his behalf. McIver v. United States, 307 F.3d 1327, 1331 (11th

Cir. 2002).

      A defendant has the right to be present for sentencing, under both the

Federal Rules of Criminal Procedure and the Due Process Clause, but that right

does not extend to every instance of judicial action modifying a sentence. See

United States v. Parrish, 427 F.3d 1345, 1347–48 (11th Cir. 2005) (per curiam).

The Federal Rules establish the right to be present at sentencing in order to afford

the defendant an opportunity to challenge the accuracy and reliability of

information used by the judge in imposing a sentence and to present mitigating


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evidence, while the due process right is triggered when the defendant’s presence

would contribute to the fairness of a proceeding critical to the outcome of the

overall case. Id. Failure to hold a resentencing hearing, when under a Phillips

mandate to impose the same sentence originally imposed, is not an automatic

violation of the right to be present for sentencing. Id.

      When a resentencing is purely a ministerial act, with no discretion given to

the sentencing judge, the absence of counsel is not prejudicial. Hall v. Moore, 253

F.3d 624, 627 (11th Cir. 2001). When the sentencing act is more than ministerial,

meaning the sentencing judge has discretion to impose a different sentence than

that previously imposed, the absence of counsel is presumptively prejudicial. Id. at

627–28.

      When a defendant’s sentence has been set aside on appeal and the case

remanded to the district court for resentencing, the sentencing court may consider

evidence of the defendant’s post-sentencing rehabilitation that may, in certain

circumstances, warrant a downward variance. Pepper, 131 S. Ct. at 1241. District

courts may still be subject to a more limited remand following an appeal, such that

evidence of post-sentencing rehabilitation is not relevant for resentencing. Id. at

1249 n.17 (“Nor do we mean to preclude courts of appeals from issuing limited

remand orders, in appropriate cases, that may render evidence of postsentencing

rehabilitation irrelevant in light of the narrow purposes of the remand


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proceeding.”). When acting under an appellate court’s mandate, the district court

is bound to act in strict accordance with that mandate, unless the presentation of

new evidence or an intervening change in the controlling law dictates a different

result, or the appellate decision is clearly erroneous and acting upon it would result

in manifest injustice. Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510

(11th Cir. 1987).

       In this case, even if we assume arguendo that Palacios’s sentencing

challenge is properly before us,1 we conclude that the district court did not

contravene Supreme Court precedent when it resentenced Palacios without a

hearing. Palacios’s 2008 total sentence was vacated and the case remanded

following his § 2255 motion, based on ineffective assistance of counsel in making

an appeal. Contrary to Palacios’s claim, however, there was no hearing held from

which he or his attorney was absent. The sentencing court was given no discretion

by the remand order, as it was required to reimpose the same exact total sentence

in accord with the Phillips out-of-time appeal procedure, and therefore the

amended judgment was a ministerial act rather than a proceeding where the

absence of counsel is presumptively prejudicial. Hall, 253 F.3d at 627–28.




       1
          We note that Palacios’s plea agreement contained a sentence appeal waiver, which the
district court explained during the plea colloquy, and none of the exceptions set forth therein
apply. United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006).
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      Moreover, Palacios’s total sentence was not subject to modification, as the

district court was bound to comply with strict orders upon remand to impose the

same sentence of 135 months. Litman, 825 F.2d at 1510. Without any discretion

in sentencing, the district court would not have been able to consider reducing or

increasing his sentence. See Parrish, 427 F.3d at 1349. Additionally, as the

resentencing was not ordered to fix or correct an unlawful sentence but was rather

to reset the clock for filing an appeal by entering a new judgment identical to the

first but for the effective date, there were no new questions of fairness for the

district court to consider on due process grounds. Id. at 1347–48; see also McIver,

307 F.3d at 1331. The record does not show that Palacios’s rights to be present for

sentencing or for counsel to be present at such a proceeding were violated when

the district court, without a hearing, abided by this court’s mandate and entered a

new judgment reimposing Palacios’s original sentence.

      Finally, the district court did not contravene Pepper when it resentenced

Palacios without a hearing. As the Supreme Court stated in Pepper, appellate

courts can still issue limited remand orders that render consideration of

postsentencing rehabilitation moot. 131 S. Ct. at 1249 n.17. Pepper did not create

an absolute right to have a hearing upon resentencing in order to consider evidence

on postsentencing rehabilitation, but rather struck down a prohibitive bar on

district courts from considering such evidence when a resentencing hearing is held.


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Id. at 1241. Notably, Palacios’s remanded case is distinguishable from Pepper by

the fact that the repeated de novo resentencing hearings for the defendant in

Pepper were ordered to fix errors and that the judges had considerable discretion in

imposing a new sentence. By contrast, the appellate mandate remanding Palacios’s

criminal judgment left no discretion for the district court to change anything other

than the date of entry for the judgment. In accordance with Phillips and in

obedience to the appellate mandate, the district court operated under a limited

remand because the only permissible change to the sentence was the date of entry.

Phillips, 225 F.3d at 1201; Pepper, 131 S. Ct. at 1249 n.17.

      In sum, even if Palacios’s sentencing challenge is not barred by his sentence

appeal waiver, it is still meritless. As such, we conclude that the district court did

not violate Palacios’s constitutional and statutory rights to be present for

sentencing and have counsel at sentencing hearings. We therefore affirm.

      AFFIRMED.




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