FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 4, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16325

Non-Argument Calendar

________________________

D. C. Docket No. 05-00175-CR-T-27-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CRUZ VALDOVINOS MANCILLA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 4, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Cruz Valdovinos Mancilla appeals his 294-month sentence, which was

imposed after he pled guilty to conspiring to possess with the intent to distribute 50

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A)(viii)
2

and § 846, and reentry of a removed alien whose removal was subsequent to a

conviction for commission of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). On appeal, Mancilla argues that the district court failed to

provide him or his counsel the opportunity to object after imposition of his

sentence, in violation of United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.

1990), overruled in part on other grounds by United States v. Morrill, 984 F.2d

1136, 1137 (11th Cir. 1993). After careful review, we vacate and remand for

further proceedings consistent with this opinion.

The relevant facts are these. On April 27, 2005, Mancilla and his

codefendants, Azucena Baltazar Borja and Irma Valle Ramirez, were charged in a

multi-count indictment. Mancilla was charged with: (1) conspiracy to possess with

the intent to distribute 50 grams or more of methamphetamine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 846 (Count One); (2) possession with

the intent to distribute and willingly aiding and abetting the possession of 50 grams

or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(viii) and 18 U.S.C. § 2 (Count Two); and (3) reentry of a removed alien

whose removal was subsequent to a conviction for commission of an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2) (Count Four). Pursuant to a

written plea agreement, Mancilla pled guilty to Counts One and Four and the
Upon motion by the government, defendants qualify for one additional level reduction 1

for acceptance of responsibility if, inter alia, they assisted authorities by timely providing

information to the government about their own misconduct or by timely notifying authorities of

an intent to plead guilty, thereby permitting the government to avoid preparing for trial and the

court to allocate its resources efficiently. See U.S.S.G. § 3E1.1(b).

3

government agreed to dismiss Count Two. In exchange for Mancilla’s guilty plea,

the government also agreed not to oppose Mancilla’s request for a two-level

reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and to

file a motion for an additional one-level downward adjustment if Mancilla

complied with the provisions of U.S.S.G. § 3E1.1(b). 

1

The plea agreement further stated that the government agreed to 

make known to the Court and other relevant authorities

the nature and extent of defendant’s cooperation and any

other mitigating circumstances indicative of the

defendant’s rehabilitative intent by assuming the

fundamental civic duty of reporting crime. However, the

defendant understands that the government can make no

representation that the Court will impose a lesser

sentence solely on account of, or in consideration of,

such cooperation. 

The plea agreement did not mention any instances of Mancilla’s cooperation. The

government reserved the right to report to the district court and the probation office

all information concerning the background, character,

and conduct of the defendant, to provide relevant factual

information, including the totality of the defendant’s

criminal activities, if any, not limited to the count(s) to

which defendant pleads, to respond to comments made
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by the defendant or defendant’s counsel, and to correct

any misstatements or inaccuracies. 

The government also reserved the right to make any recommendation it deemed

appropriate regarding the disposition of the case, subject to any limitations

contained in the plea agreement. Mancilla acknowledged that the government’s

recommendations incorporated within the plea agreement were not binding on the

court, and that the court’s failure to accept the government’s recommendations

would not constitute grounds for withdrawal of his guilty plea or a claim for breach

of the agreement. Assistant U.S. Attorneys Kelley C. Howard and Joseph K.

Ruddy signed the plea agreement. 

At Mancilla’s change-of-plea hearing, Mancilla testified, through an

interpreter, that the plea agreement had been translated to him, and that he

reviewed it with his attorney. The magistrate judge explained the terms of the plea

agreement and the charges in the indictment, and Mancilla stated that he

understood. Mancilla also indicated that no one had attempted to force him to

plead guilty, and no one promised him anything in exchange for his guilty plea.

He further agreed with the factual basis for his plea as contained in the plea

agreement.

The magistrate judge explained the maximum possible penalties, the

sentencing procedure, and the sentence-appeal waiver, and Mancilla stated that he
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 15 L.Ed.2d 694 (1966). 2

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understood. Finally, the magistrate judge advised Mancilla of the rights he was

waiving by pleading guilty. After finding that Mancilla’s guilty plea was knowing

and voluntary, the magistrate judge recommended that the district court accept his

guilty plea. The district court accepted the plea and Mancilla then proceeded to

sentencing.

The presentence investigation report (“PSI”) stated that Mancilla, a citizen

of Mexico, was convicted in a Minnesota state court of selling cocaine in 1994. In

1996, after Mancilla served his sentence for the Minnesota conviction, he was

deported to Mexico. On April 7, 2005, a confidential informant (“CI”) with the

Polk County Sheriff’s Office (“PCSO”) made arrangements for Mancilla to deliver

five pounds of methamphetamine to the CI in Florida. Mancilla and his two

codefendants were stopped by the PCSO on a highway in Florida on the way to

meet the CI. The officers searched the defendants and found a handgun, separate

ammunition, 7.2 pounds of methamphetamine, and more than $5,000 in cash.

Again, according to the PSI, after being advised of his Miranda rights, on 2

April 9, 2005, Mancilla told law enforcement officers that an individual named

Carlos had contacted him about the drug deal, Carlos’s cousin in Texas arranged

the deal. Mancilla picked up the methamphetamine five days earlier from two
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individuals at a Chili’s restaurant in Dallas. Carlos later told Mancilla to deliver

the drugs to Florida. In a second post-Miranda interview, on April 19, 2005,

Mancilla informed law enforcement officers that he had picked up the package

from an unknown individual in Houston, with instructions to deliver it to Carlos in

Florida. Mancilla was supposed to collect $20,000 for his participation in the

conspiracy, and he had intended to give Ramirez and her husband $10,000.

Mancilla had recently met Ramirez and her husband, who were the owners of a

restaurant in Sulfur, Texas, and they were both aware that they would be providing

transportation to Mancilla for the delivery of drugs.

After applying a three-level reduction for acceptance of responsibility

because Mancilla made the post-Miranda statements acknowledging his criminal

conduct and providing logistical information to agents, the PSI recommended a

total offense level of 38. With a criminal history category II, Mancilla’s

Guidelines range was 262 to 327 months’ imprisonment. 

At the sentencing hearing, Assistant U.S. Attorney Jeffrey Downing

represented the government and stated that he was standing in for Assistant U.S.

Attorney Howard. The district court first adopted the factual statements contained

in the PSI and found that the Guidelines range was 262 to 327 months’

imprisonment. The court then stated, “I’ll consider matters in mitigation, including
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any statements that the defendant may wish to make.” In response, Mancilla’s

attorney argued that the court should impose the 120-month mandatory minimum

sentence for several reasons, including that Mancilla was a married man who

supported two small children, that he had a fifth-grade education and no criminal

history other than the Minnesota conviction, and that he played a minor role in the

charged crimes. Defense counsel highlighted Mancilla’s history and lifetime and

argued “it’s a sad commentary of someone who is in the lowest economic strata in

Mexico, trying to-- from that third world country -- do something better for his

family.” 

Finally, defense counsel highlighted Mancilla’s two postMiranda statements, wherein Mancilla provided information about the charged

offense and the other individuals involved in the scheme. Also at the sentencing

hearing, the district court heard Mancilla’s statement of remorse. The government

requested the court to impose a sentence within the Guidelines range. After

hearing the government’s argument, the district court asked defense counsel if he

had “anything else,” to which counsel responded he did not. 

The court then found that “the circumstances of this offense do not cry out

for sympathy” because (1) Mancilla was found with 7 pounds of 97 percent pure

methamphetamine; (2) he had a gun and his two children in the car when he was
On appeal, Mancilla also argues the government breached the plea agreement by failing 3

to inform the court, at the sentencing hearing, of his cooperation and substantial assistance, as

required by paragraph 9(a) of the plea agreement, which stated the government agreed to “make

known to the Court and other relevant authorities the nature and extent of defendant’s cooperation

. . ..” Given our dispositon of the Jones claim, however, we will not consider this argument at this

juncture.

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arrested; and (3) he had previously served a substantial sentence for cocaine

trafficking in state prison. The court also found that the circumstances of the

offense required a “significantly long sentence” to satisfy the sentencing factors set

forth in 18 U.S.C. § 3553(a), including the need for the sentence to reflect the

seriousness of the offense, to provide adequate deterrence, and to take into account

Mancilla’s background. Accordingly, the district court imposed a 294-month term

of imprisonment on Count One and a concurrent 240-month term on Count Four.

After imposition of the sentence, the court did not elicit objections, or any further

argument, from either party. This appeal followed.

On appeal, it is undisputed that at the sentencing hearing, the government

did not mention Mancilla’s cooperation, consisting primarily of two post-Miranda

statements to law enforcement which were detailed in the PSI and mentioned by

defense counsel during his argument for a below-Guidelines sentence. Mancilla

argues that the district court erred by failing to elicit further objections, including

the government’s alleged breach of the plea agreement due to its failure to mention

Mancilla’s cooperation, after imposition of sentence, in violation of Jones.3
 The government does not contend, and our own research has not revealed any caselaw 4

suggesting, that Jones is inapplicable to claims alleging that the government breached a plea

agreement. 

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In Jones, we held that after imposing sentence, a district court must give the

parties an opportunity to object to the court’s ultimate findings of fact, conclusions

of law, and the manner in which the sentence is pronounced, and must elicit a full

articulation of the grounds upon which any objection is based. See 899 F.2d at

1102. This requirement serves “the dual purpose of permitting the district court to

correct on the spot any error it may have made and of guiding appellate review.”4

Id. Under the Jones rule, when a district court fails to elicit objections after

imposing a sentence, we normally vacate the sentence and remand to the district

court to give the parties an opportunity to present their objections. Id. at 1103. A

remand is unnecessary, however, if the record on appeal is sufficient to enable

review. United States v. Cruz, 946 F.2d 122, 124 n. 1 (11th Cir. 1991).

Here, the district court did not elicit objections after it imposed Mancilla’s

sentence. Although the government urges that the district court’s pre-sentencing

query “anything further” satisfied Jones, we disagree in light of our decision in

United States v. Snyder, in which we held that the district court’s inquiry of

whether there was “anything further,” which took place after the court imposed

Snyder’s sentence, was not sufficient to satisfy Jones. United States v. Snyder, 941
10

F.3d 1427, 1428 (11th Cir. 1991); see also United States v. Campbell, --- F.3d ---,

2007 WL 9324 *2 (11th Cir. Jan. 3, 2007) (holding that district court’s postsentencing question “Is there anything further?” failed to satisfy Jones). If

“anything further” was insufficient post-sentencing in Snyder (and our recent

Campbell decision), we cannot discern how the exact same inquiry in the instant

case, but this time prior to sentencing, would satisfy Jones. 

Moreover, the violation was not a mere “technical” Jones violation since the

record is not sufficient for meaningful appellate review. In th e c a s e a t b a r, th e

district court did not solicit any objections after it imposed Mancilla’s sentence and

thereby violated Jones by not eliciting fully articulated objections to the sentence

or the manner in which it was pronounced. Like in Snyder, after the court inquired

whether there was “anything else,” no objections were made. And the record

before us simply does not allow for meaningful appellate review since the

objection Mancilla asserts -- that the government breach the plea agreement by

failing to inform the court of Mancilla’s cooperation -- was not mentioned during

the sentencing hearing. See United States v. Holloway, 971 F.2d 675, 681 (11th

Cir. 1992) (where defendant did not object to PSI or to his sentence at the

sentencing hearing, holding that district court’s failure to elicit objections was not a

mere “technical” violation of Jones, and sentencing record was not sufficiently
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developed for to review); cf. United States v. Cruz, 946 F.2d 122, 124 (11th Cir.

1991) (reviewing technical Jones claim where record was sufficient for appellate

review because, at the sentencing hearing, Cruz objected to the district court’s

calculation of the amount of drugs used to determine his guideline range, which

was the same claim he raised on appeal).

Accordingly, because the record with respect to the government’s

obligations under the plea agreement was not developed before the district court,

we vacate and remand for imposition of sentence consistent with Jones.

 VACATED AND REMANDED.