Eighth Circuit rules in criminal proceeding that Doctrine
of Specialty and U.S.‑Mexico Extradition Treaty do not bar consideration of
prior criminal history at Federal Court sentencing
Dino Lomeli, a Mexican citizen (Defendant) ran an auto
repair shop in Corpus Christi, Texas. There, he loaded cars with marijuana for
distribution in Iowa. The U.S. authorities charged Defendant with many crimes,
including murder, but he fled to Mexico before they could arrest him. Mexico
extradited Defendant back to the U.S. in 2004. He pled guilty to murder in a
separate Texas state court proceeding and an Iowa federal court convicted him
of drug‑related offenses.
At the federal sentencing proceeding, Defendant argued that
the court should not consider his history of criminal activities in the U.S.
because it would violate the treaty under which Mexico extradited him.
In disagreeing, the district court stated that if “the
computation of the criminal history under the advisory guidelines is found to
violate the Extradition Treaty between the United States of America and the
United Mexican States (May 4, 1978, 31 U.S.T. 5059) (the Treaty), the Court
would still impose the very same sentence after considering the statutory
factors at 18 U.S.C. 3553(a), and for the same reasons that I have previously
stated: Drug quantity, criminal history, his leadership role ...”
Defendant filed an appeal claiming that the doctrine of
Specialty in the Treaty prohibits an American court from considering his prior
criminal history in the sentencing. The U.S. Court of Appeals for the Eighth
Circuit, however, affirms the conviction and sentence.
The Treaty provides in Article 17 that “[a] person
extradited under the present Treaty shall not be detained, tried or punished in
the territory of the requesting Party for an offense other than that for which
extradition has been granted nor be extradited by that Party to a third State
unless” certain exceptions apply.
“Article 17 is an explicit recitation of a general rule of
extradition known as the Doctrine of Specialty. ... In general, the doctrine of
specialty provides that ‘a defendant may be tried only for the offense for
which he was delivered up by the asylum country.’ ... The doctrine dates back
to the mid‑1800s, but was first adopted by the Supreme Court in 1886. ...
[...]”
“The doctrine is now commonly included in many U.S.
extradition treaties. ... It ‘is based on principles of international comity
and is designed to guarantee the surrendering nation that the extradited
individual will not be subject to indiscriminate prosecution by the receiving
government.’ ...” [500‑501]
Defendant claims that considering his criminal history
violates the Treaty as well as the doctrine of specialty. In his appellate
brief, Defendant also quotes portions of his extradition paperwork filed by the
Mexican government: “Section 10, Subparagraph II of the [Mexican] International
Extradition Law demands the requesting country’s commitments that crimes
committed prior to the extradition, omitted in the complaint as well as crimes
not connected with the one specified in such complaint, shall not be subject to
the process, not even as aggravating circumstances, unless the Defendant
consents freely to be judged for such. ... This commitment is set forth in
Section 17 of the Extradition Treaty between the United States of Mexico and
the United States of America. ...”
The Court disagrees. First, “Defendant’s arguments run
contrary to clearly established law in this circuit and others. We have
previously held that the doctrine of specialty was not violated when a
sentencing court took into account uncharged conduct when increasing a
defendant’s parole guideline. ... [W]e rejected the argument ‘that the rule of
specialty ... was intended to preclude the receiving government from taking any
pre‑extradition conduct into account when making parole decisions.’ ...
Instead, we held that ‘the doctrine is generally understood to prohibit
indiscriminate prosecution of extradited individuals rather than to prohibit
the receiving state’s consideration of pre‑extradition offenses while
prosecuting the individual for crimes for which extradition was granted.’ ...”
“[T]he doctrine of specialty does not operate to bar
consideration of all pre‑extradition conduct when determining a defendant’s
punishment for the extradited offense. These holdings are in line with those of
our sister circuits that have allowed nonextradited conduct to affect a
defendant’s sentence. ...” [501‑502]
Furthermore, the Supreme Court has held that the “use of
evidence of related criminal conduct to enhance a defendant’s sentence for a
separate crime within the authorized statutory limits does not constitute
punishment. Witte v. United States, 515 U.S. 389, 399... (1995).”
Finally, the Court expresses “some doubt whether Mexico
intended the doctrine of specialty to shield Defendant in the manner he
asserts. Although Defendant’s extradition resolution purports to prohibit the
United States from using Defendant’s pre‑extradition conduct ‘even as
aggravating circumstances,’ the resolution grounds this ‘commitment’ in Article
17 of the Treaty. As explained above, Article 17 does not prohibit the district
court’s consideration of Defendant’s criminal history when sentencing him for
the extradited offenses, and we fail to see how Defendant’s extradition
resolution changes that analysis.”
“In sum, we reject Defendant’s argument that the doctrine of
specialty prohibited the district court from correctly calculating Defendant’s
criminal history under the Guidelines and from using that calculation to
determine his advisory Guidelines sentencing range. To hold otherwise would
‘permit foreign intrusion into the evidentiary or procedural rules of the
requisitioning state.’... The plain language of the Treaty prohibits the United
States from punishing Defendant for nonextradited conduct. We hold that the
district court’s consideration of Defendant’s [prior] criminal history did not
constitute punishment for nonextradited conduct, therefore the treaty was not
violated.” [502‑503]
Citation: United States v. Lomeli, 596 F.3d 496 (8th
Cir. 2010).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
