UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

MI NA MALCOLM,

Defendant.

)

)

)

) CRIMINAL ACTION NO.

)

) 3:05-CR-229-G

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)

)

MEMORANDUM OPINION AND ORDER

Before the court is the defendant’s motion for a new trial and an evidentiary

hearing. For the reasons stated below, the motion is denied.

I. BACKGROUND

On July 18, 2006, the defendant Mi Na Malcolm (“Malcolm”) appeared before

the court for sentencing pursuant to her plea of guilty to Counts One (conspiracy to

hold/harbor aliens for purposes of prostitution with a statutory maximum punishment

of five years), Four (harboring illegal aliens for commercial advantage/private financial

gain with a statutory maximum punishment of ten years), and Six (bulk cash

 

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smuggling with a statutory maximum of five years) of the superseding indictment

filed on February 1, 2006. Government’s Response to Defendant’s Motion for New

Trial (“Response”) at 1. The Presentence Report (“PSR”) calculated a United States

Sentencing Guidelines range of 78 to 97 months, based upon a criminal history

category of I and an offense level of 28. Id.

During Malcolm’s sentencing hearing, the court inquired as to whether she

wished to assert objections beyond those already submitted to the court. Id. at 2. 

Malcolm’s counsel declined, and the court overruled the objections and adopted the

factual findings of the PSR. Id. Malcolm’s counsel chose not to offer additional

argument or submit any factual support for mitigation of her sentence. Id. Based

upon the PSR’s explanation of factors warranting an upward departure -- clearly set

out in the PSR and available to both Malcolm and the government -- the court

imposed a sentence of imprisonment of 120 months on Count Four and 60 months

on each of Counts One and Six, to run concurrently with Count Four’s sentence. Id. 

The court made clear that the sentence imposed took “the Guidelines as advisory

pursuant to United States v. Booker, and considering the factors set forth in 18 U.S.C.

Section 3553(a) . . ..” Id.

On July 25, 2006, Malcolm filed the instant motion, requesting a new trial

pursuant to FED. R. CRIM. PROC. 33 and a hearing in order to introduce into evidence

deposition testimony not previously submitted to the court. Motion for New Trial

 

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and Brief (“Motion”) at 1, 4. In this motion, Malcolm makes the argument that

deposition testimony of two witnesses taken on December 22, 2005, relate “facts

different from those which apparently were relied upon by the court in upwardly

departing from the guideline range set forth in the presentence report.” Id. at 1-2. 

Because this testimony was “not made available to the court prior to its decision,”

Malcolm wishes to submit this testimony via an evidentiary hearing. Id. at 2, 4. 

Malcolm argues that because the court did not have this deposition testimony before

it when upwardly departing from the guidelines range, the court did not adequately

take all relevant facts into consideration. Id. at 3.

II. ANALYSIS

A court may grant a new trial if it is required in the interests of justice. FED. R.

CRIM. P. 33(a). Logic dictates, however, that a motion for new trial is proper only

when a trial was had. See United States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995)

(Rule 33 “is confined to those situations in which a trial has been had.”); Williams v.

United States, 290 F.2d 217, 218 (5th Cir. 1961) (per curiam). Here, Malcolm pled

guilty to four counts of the superseding indictment -- she admitted her guilt and

therefore had no trial.

Moreover, even if the court were to reach the substantive arguments asserted in

Malcolm’s motion, the motion must be denied. The court made it patently clear in

Malcolm’s sentencing hearing and judgment that it was exercising its discretion by

 

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departing upwardly from the advisory guidelines scheme. Based on a preponderance

of the evidence contained in the PSR, the court found facts for the purpose of

imposing an appropriate sentence. United States v. Thompson, F.3d , No. 05-

20123, 2006 WL 1740966, at *6 (5th Cir. June 27, 2006) (“After Booker, ‘[t]he

sentencing judge is entitled to find by a preponderance of the evidence all the facts

relevant to the determination of a Guideline sentencing range.’” (quoting United

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)); United States v. Magallanez, 408

F.3d 672, 684-85 (10th Cir.) (noting that Booker does not change the traditional

analysis of finding facts relevant to sentencing by a preponderance of the evidence),

cert. denied, U.S. , 126 S. Ct. 468 (2005); United States v. Duncan, 400 F.3d

1297, 1304-05 (11th Cir.) (noting that previously binding precedent allowing judge

to impose a sentence within that authorized by a jury verdict is not changed by

Booker), cert. denied, U.S. , 126 S. Ct. 432 (2005). Malcolm was aware of the

possibility of the sentence ultimately imposed: the PSR recommended an upward

departure and her statutory maximum was ten years for one of the counts.

Regarding Malcolm’s request to introduce testimony of two witnesses, the

court must deny this as well. Malcolm argues that these two women were discovered

working as prostitutes at Malcolm’s sexually-oriented businesses. Response at 5. 

Malcolm, however, does not offer any additional information regarding the substance

of this testimony -- she merely requests a hearing to introduce such evidence. See

 

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generally Motion at 1-2. Without knowing the content of the testimony, the court

notes that the PSR was very comprehensive in its recitation of facts. See PSR ¶ 10

(noting that several of the victims knew they would be working as prostitutes in

Malcolm’s sexually-oriented businesses). Such information was taken into

consideration when upwardly departing from Malcolm’s advisory guideline range. In

addition, these depositions were taken December 22, 2005. Despite arguing now

that this testimony is so important that it warrants a new trial, Malcolm never

presented it to the probation officer who prepared the PSR, the court prior to her

sentencing, or the court during Malcolm’s sentencing hearing. Considering the

multiple opportunities to present this testimony, the court must deny the motion.

III. CONCLUSION

For the reasons stated above, the motion is DENIED.

SO ORDERED.

August 14, 2006.

 

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