United States v. Jiamez-Dolores, et al., No. 14-1840(L), 14-1842 (CON) (Circuit Judges: Hall, Lynch, Chin).
In addition to today’s decision in Elvin Hill, the Circuit also issued this Opinion in United States v. Jiamez-Dolores, et al.
Incomplete transcript of the guilty plea. Here, only a partial transcript of the Rule 11 colloquy was produced by the court reporter. “Both the government and the defendant agree[d] that a considerable portion of the transcript of the Rule 11 proceedings is unavailable despite their diligent efforts to locate it.” Op. at 3. Missing from the transcript were the parts of the Rule 11 proceeding that would have concerned inquiries about the defendant’s competence, his knowing waiver of various trial and constitutional rights, and his understanding of the nature of the charges.
The defendant argued that “the absence of a complete transcript makes it impossible for this Court to determine whether he knowingly and voluntarily pleaded guilty.” Op. at 4. The Circuit gave three reasons for rejecting this argument.
First, the defendant did not use Rule 10(c) of the Rules of Appellate Procedure to accommodate the fact that a complete transcript was unavailable. When a transcript of a hearing or trial is unavailable, Rule 10(c) allows the appellant to “prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.” Fed.R.App. P.10(c). The appellee can object, and the district court eventually settles the record. Id. The defendant-appellant’s failure to use Rule 10(c) to propose a reconstruction of the record was counted against him by the Circuit.
Second, he did not make a “specific showing of prejudice to his ability to perfect an appeal.” Op. at 5. Thus his “general claim of prejudice, much of which is of his own making by failing to use the processes available to him under Rule 10(c), is insufficient.” Op. at 5.
And third, he also failed to assert that, during the guilty plea allocution, the district court committed any particular error. He did not allege “any specific errors during the plea colloquy, much less any error that would have had an effect on his decision to plead guilty.” Op at 4 (citation and internal quotation marks omitted.).
Procedural and Substantive Unreasonableness
The district court relied on a fact that the defendant denied at the guilty plea, but that was later asserted in the Presentence Report (“PSR”). And he did not challenge the fact when it was asserted in the PSR. At sentencing, the court adopted the PSR’s factual findings, and there was no objection. As a consequence, “[i]t was not [procedural] error, much less plain error, for the district court to base its sentence in part on a unchallenged factual finding adopted from the PSR.” Op at 7.
Finally, the imposition of above-range sentences of 60 months in prison on two co-defendants, from ranges of 33-41 and 41-51 months, was found not to be substantively unreasonable, under the circumstances.