RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Olan-Navarro No. 01-5309 ELECTRONIC CITATION: 2003 FED App. 0412P (6th Cir.) File Name: 03a0412p.06 DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, APPELLATE SECTION, Washington, D.C., Tracy L. Berry, ASSISTANT UNITED STATES ATTORNEY, Memphis, UNITED STATES COURT OF APPEALS Tennessee, for Appellee. FOR THE SIXTH CIRCUIT ROGERS, J., delivered the opinion of the court, in which _________________ SUHRHEINRICH, J., joined. COLE, J. (p. 6), delivered a separate concurring opinion. UNITED STATES OF AMERICA , X Plaintiff-Appellee, - _________________ - - No. 01-5309 OPINION v. - _________________ > , ROGERS, Circuit Judge. On November 27, 2000, Juan JUAN OLAN-NAVARRO , - Olan-Navarro pleaded guilty to illegally reentering the United Defendant-Appellant. - States after having been deported in violation of 8 U.S.C. N § 1326. The district court sentenced Olan-Navarro to Appeal from the United States District Court incarceration for fifty-seven months and two years of for the Western District of Tennessee at Memphis. supervised release, and imposed a special assessment of $100. No. 00-20139—Bernice B. Donald, District Judge. The Assistant Federal Public Defender who had been appointed to represent Olan-Navarro in the district court filed Argued: September 17, 2003 a timely notice of appeal and subsequently, in accordance with Anders v. California, 386 U.S. 738 (1967), filed a Decided and Filed: November 21, 2003 motion to withdraw and a brief explaining his conclusion that there were no non-frivolous issues that Olan-Navarro could Before: SUHRHEINRICH, COLE, and ROGERS, Circuit assert on appeal. This court ordered that Olan-Navarro be Judges. appointed new counsel and directed counsel to brief the question “Should a criminal defendant be represented on _________________ appeal by the same counsel who represented the defendant at his guilty plea hearing or trial when that counsel proposes to COUNSEL file an Anders brief on behalf of the defendant?” Newly appointed counsel for Olan-Navarro has also briefed two ARGUED: Chad A. Readler, JONES DAY, Columbus, other issues: (1) “Does trial counsel’s service of an Anders Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES brief on the Government undermine the adversarial system or DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, violate the criminal defendant’s Sixth Amendment rights?”; APPELLATE SECTION, Washington, D.C., for Appellee. and (2) “Does Olan-Navarro’s fifty-seven month sentence ON BRIEF: Chad A. Readler, JONES DAY, Columbus, violate the Eighth Amendment’s prohibition against cruel and Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES unusual punishment?” We affirm without reaching the
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question of whether to impose new requirements on the rights, Olan-Navarro has already received the relief he court’s Anders procedures. requested to redress the alleged violation — new counsel.1 Olan-Navarro advances two arguments in support of his Finally, there is no merit to Olan-Navarro’s substantive contention that the court should appoint new appellate claim that his fifty-seven month sentence is so counsel whenever court-appointed trial counsel files or disproportionate and excessive that it violates the Eighth proposes to file an Anders brief. First, Olan-Navarro contends Amendment’s prohibition against cruel and unusual that the appointment of new counsel in such circumstances is punishment.2 “The Eighth Amendment, which forbids cruel necessary to ensure that criminal defendants receive a and unusual punishments, contains a ‘narrow proportionality constitutionally-acceptable level of advocacy and principle’ that ‘applies to noncapital sentences.’” Ewing v. representation under the Sixth Amendment of the California, 123 S.Ct. 1179, 1185 (2003) (plurality opinion) Constitution. Second, Olan-Navarro contends that, because (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997 of its practical benefits, the court should establish such a rule (1991) (Kennedy, J., concurring in part and concurring in pursuant to its supervisory powers. judgment)). The Eighth Amendment, however, does not mandate strict proportionality between crime and sentence; The court finds it unnecessary to reach the question of instead, at most, only sentences that are “grossly whether the court is constitutionally required to appoint new disproportionate” to the crime are prohibited. Harmelin, 501 counsel where a criminal defendant’s trial counsel files or U.S. at 1001. proposes to file an Anders brief, as Olan-Navarro has, in fact, been appointed new appellate counsel, rendering the question moot. See, e.g. McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (“The test for mootness is whether the relief sought would, if granted, make 1 W e note, however, that two circuits expressly require such service. a difference to the legal interests of the parties. . . .” (quoting Third Cir. Local App. R. 109.2(a) and Eleventh Cir. R. 27-1(a)(8). Crane v. Ind. Athletic Ass’n, 975 975 F.2d 1315, 1318 (7th W hile the rules of the D.C. C ircuit may preclud e such service, Suggs v. Cir. 1992))). Newly appointed counsel in the case argues United States, 391 F.2d 971 , 974 -75 & n.5 (D .C. Circuit 1968), counsel points to no authority holding that such service is constitutionally that it would be wise to require the appointment of new precluded. appellate counsel whenever trial counsel proposes to file an Anders brief. If so, such a rule should be proposed pursuant 2 This Court generally reviews a constitutional challenge to a criminal to our court rulemaking procedures, where considerations pro defendant’s sentence de novo. United States v. Tarwater, 308 F.3d 494, and con can best be heard and weighed, rather than in an 517 (6th C ir. 2002). The government contends that Olan-Navarro failed appeal in which new counsel has already been appointed. to raise an Eighth Amendment challenge to his sentence in the district court, and, therefore, his should be reviewed under the “plain error” Similarly, the court declines to consider whether trial standard. See, e.g., Johnson v. United States, 520 U.S. 461, 466-67 (1997) (observing that appellate courts can correct errors not raised at trial counsel’s service of an Anders brief on the government if error is plain and affects substantial rights). Olan-Navarro concedes violates a defendant’s Sixth Amendment rights, as that that his counsel did not make an explicit Eighth Amendment challenge, question is also moot in the instant case. Even assuming that but argues that the argum ents ma de to the district court were sufficient to such service does violate a defendant’s Sixth Amendment preserve the erro r. It unnecessary to resolve the question of whether Olan-Navarro in fact raised an Eighth Amendment claim at the time of sentencing, as his claim fails even if he did. No. 01-5309 United States v. Olan-Navarro 5 6 United States v. Olan-Navarro No. 01-5309
Olan-Navarro was indicted on one count of violating ___________________ 8 U.S.C. § 1326
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Olan-Navarro No. 01-5309 ELECTRONIC CITATION: 2003 FED App. 0412P (6th Cir.) File Name: 03a0412p.06 DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, APPELLATE SECTION, Washington, D.C., Tracy L. Berry, ASSISTANT UNITED STATES ATTORNEY, Memphis, UNITED STATES COURT OF APPEALS Tennessee, for Appellee. FOR THE SIXTH CIRCUIT ROGERS, J., delivered the opinion of the court, in which _________________ SUHRHEINRICH, J., joined. COLE, J. (p. 6), delivered a separate concurring opinion. UNITED STATES OF AMERICA , X Plaintiff-Appellee, - _________________ - - No. 01-5309 OPINION v. - _________________ > , ROGERS, Circuit Judge. On November 27, 2000, Juan JUAN OLAN-NAVARRO , - Olan-Navarro pleaded guilty to illegally reentering the United Defendant-Appellant. - States after having been deported in violation of 8 U.S.C. N § 1326. The district court sentenced Olan-Navarro to Appeal from the United States District Court incarceration for fifty-seven months and two years of for the Western District of Tennessee at Memphis. supervised release, and imposed a special assessment of $100. No. 00-20139—Bernice B. Donald, District Judge. The Assistant Federal Public Defender who had been appointed to represent Olan-Navarro in the district court filed Argued: September 17, 2003 a timely notice of appeal and subsequently, in accordance with Anders v. California, 386 U.S. 738 (1967), filed a Decided and Filed: November 21, 2003 motion to withdraw and a brief explaining his conclusion that there were no non-frivolous issues that Olan-Navarro could Before: SUHRHEINRICH, COLE, and ROGERS, Circuit assert on appeal. This court ordered that Olan-Navarro be Judges. appointed new counsel and directed counsel to brief the question “Should a criminal defendant be represented on _________________ appeal by the same counsel who represented the defendant at his guilty plea hearing or trial when that counsel proposes to COUNSEL file an Anders brief on behalf of the defendant?” Newly appointed counsel for Olan-Navarro has also briefed two ARGUED: Chad A. Readler, JONES DAY, Columbus, other issues: (1) “Does trial counsel’s service of an Anders Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES brief on the Government undermine the adversarial system or DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, violate the criminal defendant’s Sixth Amendment rights?”; APPELLATE SECTION, Washington, D.C., for Appellee. and (2) “Does Olan-Navarro’s fifty-seven month sentence ON BRIEF: Chad A. Readler, JONES DAY, Columbus, violate the Eighth Amendment’s prohibition against cruel and Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES unusual punishment?” We affirm without reaching the
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question of whether to impose new requirements on the rights, Olan-Navarro has already received the relief he court’s Anders procedures. requested to redress the alleged violation — new counsel.1 Olan-Navarro advances two arguments in support of his Finally, there is no merit to Olan-Navarro’s substantive contention that the court should appoint new appellate claim that his fifty-seven month sentence is so counsel whenever court-appointed trial counsel files or disproportionate and excessive that it violates the Eighth proposes to file an Anders brief. First, Olan-Navarro contends Amendment’s prohibition against cruel and unusual that the appointment of new counsel in such circumstances is punishment.2 “The Eighth Amendment, which forbids cruel necessary to ensure that criminal defendants receive a and unusual punishments, contains a ‘narrow proportionality constitutionally-acceptable level of advocacy and principle’ that ‘applies to noncapital sentences.’” Ewing v. representation under the Sixth Amendment of the California, 123 S.Ct. 1179, 1185 (2003) (plurality opinion) Constitution. Second, Olan-Navarro contends that, because (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997 of its practical benefits, the court should establish such a rule (1991) (Kennedy, J., concurring in part and concurring in pursuant to its supervisory powers. judgment)). The Eighth Amendment, however, does not mandate strict proportionality between crime and sentence; The court finds it unnecessary to reach the question of instead, at most, only sentences that are “grossly whether the court is constitutionally required to appoint new disproportionate” to the crime are prohibited. Harmelin, 501 counsel where a criminal defendant’s trial counsel files or U.S. at 1001. proposes to file an Anders brief, as Olan-Navarro has, in fact, been appointed new appellate counsel, rendering the question moot. See, e.g. McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (“The test for mootness is whether the relief sought would, if granted, make 1 W e note, however, that two circuits expressly require such service. a difference to the legal interests of the parties. . . .” (quoting Third Cir. Local App. R. 109.2(a) and Eleventh Cir. R. 27-1(a)(8). Crane v. Ind. Athletic Ass’n, 975 975 F.2d 1315, 1318 (7th W hile the rules of the D.C. C ircuit may preclud e such service, Suggs v. Cir. 1992))). Newly appointed counsel in the case argues United States, 391 F.2d 971 , 974 -75 & n.5 (D .C. Circuit 1968), counsel points to no authority holding that such service is constitutionally that it would be wise to require the appointment of new precluded. appellate counsel whenever trial counsel proposes to file an Anders brief. If so, such a rule should be proposed pursuant 2 This Court generally reviews a constitutional challenge to a criminal to our court rulemaking procedures, where considerations pro defendant’s sentence de novo. United States v. Tarwater, 308 F.3d 494, and con can best be heard and weighed, rather than in an 517 (6th C ir. 2002). The government contends that Olan-Navarro failed appeal in which new counsel has already been appointed. to raise an Eighth Amendment challenge to his sentence in the district court, and, therefore, his should be reviewed under the “plain error” Similarly, the court declines to consider whether trial standard. See, e.g., Johnson v. United States, 520 U.S. 461, 466-67 (1997) (observing that appellate courts can correct errors not raised at trial counsel’s service of an Anders brief on the government if error is plain and affects substantial rights). Olan-Navarro concedes violates a defendant’s Sixth Amendment rights, as that that his counsel did not make an explicit Eighth Amendment challenge, question is also moot in the instant case. Even assuming that but argues that the argum ents ma de to the district court were sufficient to such service does violate a defendant’s Sixth Amendment preserve the erro r. It unnecessary to resolve the question of whether Olan-Navarro in fact raised an Eighth Amendment claim at the time of sentencing, as his claim fails even if he did. No. 01-5309 United States v. Olan-Navarro 5 6 United States v. Olan-Navarro No. 01-5309
Olan-Navarro was indicted on one count of violating ___________________ 8 U.S.C. § 1326(a) and (b) for reentering the United States after being deported subsequent to the commission of an CONCURRENCE aggravated felony, 3 and pleaded guilty. Under 8 U.S.C. ___________________ § 1326, Olan-Navarro faced a maximum term of twenty years of imprisonment. 8 U.S.C. § 1236(b)(2). Under the United R. GUY COLE, JR., Circuit Judge, concurring. I States Sentencing Guidelines, however, the guideline respectfully concur in the majority opinion; however, I write imprisonment range was fifty-seven to seventy-one months.4 separately to address the majority’s conclusion that the merits The district court sentenced Olan-Navarro to fifty-seven of rules governing the filing of an Anders brief are better left months, the minimum guideline sentence, as well as two to this court’s rulemaking process. years of supervised release, with the special condition that Olan-Navarro be immediately deported at the termination of Because, as the majority acknowledges, the Sixth his sentence. We simply cannot say that a sentence of fifty- Amendment issues surrounding the trial counsel’s filing of an seven months is grossly disproportionate to the crime of re- Anders brief are moot, the merits of those claims are beyond entering the United States after being deported subsequent to the jurisdiction of this Article III court. Any further comment the commission of an aggravated felony. pertaining to the constitutionality of current procedures governing the filing of an Anders brief is, therefore, The judgment of the district court is AFFIRMED. nonbinding dictum. Cf. Alexander v. Sandoval, 532 U.S. 275, 282 (2001) (“[T]his Court is bound by holdings, not language.”) While I generally agree that new rules should be proposed and adopted in accordance with our established procedures, which include input from the legal bar, there are instances where it would be appropriate for this Court to adopt a new rule outside our established procedures. I would not foreclose the opportunity for a party to propose a new rule in the context of an appeal nor would I limit the ability of this Court to announce a new rule, if the circumstances so warranted.
3 Olan-Navarro had twice before been depo rted after entering the United States without authorization. Prior to the first deportation, he was twice convicted of burglary of a hab itation in Texas.
4 Olan-Na varro ’s total offense level was twenty-one, calculated from a base offense level of eight, with a three-point reduction for acceptance of responsibility and a sixteen-level increase for being deported after a conviction for an aggravated felon y. His criminal histo ry placed him in category IV.