U n i t e d S t a t e s D i s t r i c t C o u r t

N O R T H E R N D I S T R I C T O F T E X A S

D A L L A S D I V I S I O N

U N I T E D S T A T E S O F A M E R I C A §

§

V . §CRIMINAL ACTION NO. 3:22-CR-300-S

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JOSE CAMILLO PINEDA, JR. (!) §

ORDER

The Court referred the Petition for Person Under Supervision (“Petition”) [ECF No. 3],

Amended Petition for Person Under Supervision (“Amended Petition”) [ECF No. 7], and the

Addendum to Petition for Person Under Supervision (“Addendum”) [ECF No. 22] to the United

States Magistrate Judge for consideration. The Magistrate Judge held heariirgs on the alleged

violations, see ECF Nos. 23, 25, and issued the Findings, Conclusion and Recommendation

(“Recommendation”), see ECF No. 27, to which Defendant Jose Camillo Pineda, Jr., objected, see

Defendant’s Objection to Sentencing Recommendation and Ruling on Defense Objection to Local

Rule 32.1 (“Objections”), ECF No. 30. Having reviewed de novo the Recommendation,

Objections, and applicable law, the Court ACCEPTS the Recomnrendation for the following

reasons.

BACKGROUND

Defendant was sentenced to atei'm of imprisonment of 115 months with four years of

supervised release, subject to certain conditions, in the Eastern District of Texas.) See Addendum

1. In the Petition, Amended Petition, and Addendum, the U.S. Probation Officer notified the Court

that Defendant violated certain conditions of his supervised release. After Defendant pleaded true

to the violations, the Magistrate Judge recommended that the Court revoke Defendant’s supervised

Defendant’s case was transferred to this Court on August 9, 2022. See ECF Nos. 1, 2.

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release and sentence him to an additional tei'm of imprisonment of twelve months and one day

with thr'ee years of supervised release to follow. Recommendation 1. Defendant waived his right

to allocute before this Court, see Objections 1, and objected to the Recommendation on two

grounds. First, Defendant requests that this Court modify the recommended sentence to remove

the term of supervised release. See id. at 3. Second, Defendant asserts the Magistrate Judge erred

in overruling his Local Criminal Rule 32.1 objection. Id. at 3-4.

I I . A N A L Y S I S

Defendant first argues that no term of supervised release should be imposed “because of

the limited resources of supervised release” an,d Defendant’s previous failure to avail himself of

those resources when given the opportunity. Id. at 3. According to Defendant, he will instead “lean

on the resources and support of his family.” Id. Defendant further notes that the Government

recommended aterm of twelve months and one day with no supervised release to follow. Id.

Arevocation seirtence that falls within the range of tire Sentencing Guidelines policy

statement canies apresumption of reasonableness. United States V. Montague, 831 F. Αρρ’χ 676,

677 (5th Cir. 2020) (citing United States V. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008)).

'A sentence is substantively unreasonable if it (1) does not account for afactor that should have

received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3)

represents aclear error of judgment in balancing the sentencing factors.” Id. (citation onritted).

Here, Defendant’s admitted violations produce apolicy statement range of seven to thirteen

months imprisonment, with astatutory cap of three years maximum custody and five years of

supervised release, minus the revocation sentence. See Addendum 3. The recommended sentence

of twelve months aird one day inrprisonment and three years of supervised release falls within that

range, and therefore is presumptively reasonable. The Magistrate Judge provided reasons for

2

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Imposing an additional term of supervised release on the recoi'd twice. See Tr. of Revocation Hr’g,

ECF No. 28 at 25:19-26:5؛ Tr. of Suppl. Revocation Hr’g, ECF No. 29 at 8:7-18. Ehe Magistrate

Judge, after hearing the evidence, stated that Defendant “didn’t give himself achance on

supervised release” in the first instance, specifically addressing Defendant’s previous—and

admitted-failure to use “the support services that come with aterm of supervised release.” Er. of

Suppl. Revocation Hr’g, ECF No. 29 at 8:7-13. Further, any concerns regarding the availability of

resources can be raised with the Court, if necessary, when Defendant continues on supervised

release. Eherefore, the Court finds the Magistrate Judge’s assessment of the proper sentence

reasonable under the circumstances, accepts the conclusion, and overrules the objection.

Next, Defendant challenges the Magistrate Judge’s decision to ovenule his objection to

Local Criminal Rule 32.1, which provides that “fa] probation officer shall not disclose any

I'ecommendation regarding the sentence.” According to Defendant, this “blanket prohibition on

the disclosure of the probation officer’s sentencing recommendation, regardless of its content

violates constitutional rights to due process and effective assistance of counsel, as well as Federal

Rule of Criminal Procedure 32(1)(1)(с), whiclr states the court “must allow the parties’ attorneys

to comment on the probation officer’s determinations and other matters relating to an appropriate

sentence.” Objs. 3-4. Defendant further asserts that “it is unclear whether there were fact-based

assertions and opinions made in the probation officer’s confidential sentencing recommendation

to the Magistrate Judge regardless of whether the Magistrate Judge relied on them.” Id. at 4.

Despite Defendant’s challeirges to Local Rule 32.1, both the Federal Rules of Criminal

Procedure and Fifth Circuit case law support its validity. Federal Rule of Criminal Procedure

32(e)(3) allows tire court “[b]y local rule or by order in acase” to “direct the probation officer not

to disclose to anyone otlier than the court the officer’s recommendation on the sentence.” Further؛

3

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as the Magistrate Judge noted, the Fifth Circuit In United States V. Pendleton declined to address

'whether ablanket prohibition on disclosure” pursuant to Local Rule 32.1 “is unconstitutional or

in conflict with ؛Federal Rule of Criminal Procedure] 32(1)(1)(ο).” 532 F. Αρρ’χ 529, 530 (5th Cir.

2013). During the initial revocation hearing, counsel for Defendant acknowledged there was no

binding precedent to demonstrate the local rule is unconstitutional or otherwise inapplicable. See

Tr. ofRevocation Hr’g, ECF No. 28 at 4:11-16.

In United States V. Johnson, the Fifth Circuit considered whether the district court ened

wlren it relied on infomration contained in Probation’s confidential sentencing recommendation to

impose asentence. 956 F.3d 740, 747 (5th Cir. 2020). Pursuant to alocal rule similar to the one at

issue in this case,2 the recommendation was not disclosed to the defendant and contained

information that was not included in the presentence report, and the record demonstrated that the

court considered the information when justifying an upward variance. Id. at 741-43. The defendant

argued “the presentation of secret facts to the district court in aconfidential sentencing

recommendation” violated Federal Rule of Criminal Procedure 32, the defendant’s constitutional

right to due process, the Confrontation Clause, and the defendant’s right to counsel. Id. at 743

(internal quotation marks omitted). The Fifth Circuit held the use of the undisclosed information

to justify air above-guidelines sentence violated Federal Rule of Criminal Procedure 32(d)(2). Id.

at 746-47.

But the Fifth Circuit declined the defendant’s invitation to go further and hold that

Rule 32(e)(3) “must be strictly limited to maintaining confidentiality of ... anumeric range, or

alternatively, ajustification section that only includes facts disclosed in the [presentence report].'

2The rule at issue was Local Uniform Criminal Rule 32 in the Nortliern District of Mississippi, wliich

states: “As authorized by Federal Rule of Criminal Procedure 32(e)(3), the probation officer’s

recommendation on the initial senteirce sliall not be disclosed unless so ordered by the sentencing judge.”

4

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ld. at 744. The Fifth Circuit reasoned that “fa] numeric range without justification or reasoning

does not aid the district court in determining asentence that satisfies the” requisite factors. Id.

at 745. Instead, the court narrowly held that “Rule 32(e)(3) cannot be used to shield undisclosed

facts or factual allegations upon which aprobation officer substantially relies in recommending ...

the selection of aparticulai' sentence within [the Guidelines senteircing] range." Id. The Fifth

Circuit also declined to reach the constitutional challenges to the local rule. Id. at 747.

Other circuit courts have used similar reasoning to uphold the constitutionality of local

rules that direct Probation not to disclose its sentencing recommendations to anyone other than the

court and to uphold district courts’ use of such recommendations, so long as the court has disclosed

the facts it relied on to inrpose asentence. See, e.g.. United States V. Peterson, 711 F.3d 770, 777

(7th Cir. 2013) (“[W]e have held that if all facts on which the probation officer’s recommendation

is based appear in the [presentence report], the district court’s consideration of the

recommendation at sentencing does not violate due process.” (citing United States V. Heilprin, 910

F.2d 471, 474 (7th Cir. 1990)))؛ UnitedStates V. Kennedy, 651 F. Αρρ’χ 870, 874 (llth Cir. 2016)

(same)؛ United States V. Cole, 296 F. Αρρ’χ 195, 198 (2d Cir. 2008) (same)؛ United States V.

Baldrich, 471 F.3d 1110,1113 (9th Cir. 2006) (same).

Here, the Magistrate Judge stated on the record that she “considered no facts outside of

what is set out in the petitions and the addendum” and “made [her] own indepeirdent determination

based on the facts that were ...presented in the petitions and stipulated to and agreed to by ...

Defendant.” Tr. of Suppl. Revocation Hr’g, ECF No. 29 at 4:20-22, 5:21-6:1. Absent evidence to

the contrary, the Court has no reason to suspect that the Magistrate Judge relied on facts unknown

to the parties in making her sentencing recommendation, and as such, tire Court is unwilling to

find startrtory or constihitional violations stemming fiom the Magistrate Judge’s sentencing

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consideration. See Pendleton, 532 F. Αρρ’χ at 531 (rejecting challenge to recommendation where

'nothing in the court’s statements at sentencing suggestfed] any impropei' reliance” on facts

undisclosed to the defendant)؛ see also Kennedy, 651 F. Αρρ’χ at 874 (holding there was “no denial

of due process or ineffective assistance of counsel arising out of th[e] issue” where the district

court denied the defendant’s “request for disclosure of the probation officer’s confidential

sentencing recommendation” because “[t]he record revealfed] no reason to suspect that the

confidential recommendation contained any facts beyond those in the ؛presentence report]” and

the defendant “failfed] even to suggest any such facts”). Defendant provides no support for the

assertion that the Magistrate Judge’s mere reading of Probation’s recommendation was

inrpermissible under the law. See Johnson, 956 F.3d at 744 (“Rule 32(e) permits adistrict court ..

.to direct the probation officer not to disclose to airyone other than the court the officer’s

recommendation on tire sentence” (intenral quotation marks and citation omitted)).

Fherefore, the Court agrees with the Magistrate Judge’s Recommendation and ovenules

Defendant’s objection.

I I I . C O N C L U S I O N

For the reasons stated above, the Court OVERRULES Defendant’s Objection to

Sentencing Recommendation and Ruling on Defense Objection to Local Rule 32.1 [ECF No. 30]

and ACCEPTS the Findings, Conclusion and Reconrmendation [ECF No. 27]. It is ORDERED

that Defendant’s supervised release is hereby REVOKED and that Defendant is sentenced to a

term of inrprisonment of rtvelve (12) months and one (1) day with aterm of thirty-six (36) months

of supervised release to follow.

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It is further ORDERED that Defendant comply with conditions of supervised release؛

including the additional terms imposed during the hearing on March 10, 2023.

S O O R D E R E D .

Ím GREN SCHOLER /JiÁíMj^hs

U N I T E D S T A T E S D I S T M C T J U D G E

SIGNED April 17, 2023.

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