United States of America v. Jorge Breton-Rodriguez

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE BRETON-RODRIGUEZ,
Defendant - Appellant.
Nos. 08-10266 and 08-10400
D.C. No. CR 05-01424-001-RCC
(HCE)
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted September 14, 2009
San Francisco, California
Before: SCHROEDER, REINHARDT and HAWKINS, Circuit Judges.
Jorge Breton-Rodriguez (“Breton-Rodriguez”) appeals his conviction and
sentence for attempted manslaughter and assault, arguing that the district court erred
in: permitting the use of his confession—taken in violation of Miranda—to impeach
the defendant’s insanity expert; finding Breton-Rodriguez was not entitled to a
FILED
NOV 25 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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reduction in his offense level under the Guidelines for acceptance of responsibility;
and considering acquitted conduct in calculating his sentence in violation of his Sixth
Amendment rights. He also appeals the court’s restitution order, arguing the court
was without jurisdiction to issue it after his timely appeal.
A. Conviction and sentence
In challenging his conviction, Breton-Rodriguez first urges us to consider
whether James v. Illinois, 493 U.S. 307 (1990), permits the use of an unMirandized
but voluntary statement to impeach a witness other than the defendant. Because he
opened the door during the direct examination of Dr. Barry Morenz, under Ohler v.
United States, 529 U.S. 753 (2000), Breton-Rodriguez waived the right to challenge
the impeachment on appeal.
In sentencing Breton-Rodriguez, the district court did not clearly err when it
denied him a downward departure for an acceptance of responsibility. While Breton-
Rodriguez did express remorse during his sentencing hearing, the district court
correctly based its determination on Breton-Rodriguez’s pre-trial conduct and
statements, and not on his statements in his sentencing hearing. See U.S.S.G. § 3E1.1
n.2 (the “determination that a defendant has accepted responsibility [is] based
primarily upon pre-trial statements and conduct”) (emphasis added).

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The use of acquitted conduct to support a sentencing enhancement is permitted
if such conduct has been proven by a preponderance of the evidence. United States
v. Watts, 519 U.S. 148, 157 (1997). Here, Breton-Rodriguez’s acquittal for the Use
of a Firearm During a Crime of Violence, 18 U.S.C. § 924(c), does not preclude the
court’s finding by a preponderance of the evidence for purposes of sentencing that he
used and discharged the firearm in question. See United States v. Mercado, 474 F.3d
654, 657 (9th Cir. 2007). Therefore, the district court did not err in using Breton-
Rodriguez’s acquitted conduct for sentencing purposes.
B. Restitution Order
Breton-Rodriguez’s filing of his first notice of appeal did not divest the district
court of jurisdiction over issuing its amended restitution order, because for all
practical purposes, the district court in its first order did not enter a restitution amount.
See United States v. Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993) (an appeal divests
the district court of its jurisdiction over only those aspects of the case included in that
appeal). Although the first written judgment had an entry of “0” under restitution, the
district judge stated unambiguously that the government had 90 days to submit a
restitution figure. The court then issued a second restitution order once it had the
information requested from the government. Cf. United States v. Najjor, 253 F.3d 979

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(9th Cir. 2001) (involving two distinct restitution orders with amounts greater than
$0).
The district court in its second order delegated restitution duties to the probation
officer. While we have approved delegation to a probation officer of “the task of
determining the method of payment for restitution,” United States v. Signori, 844 F.2d
635, 641 (9th Cir. 1988), we have held that “[u]nder the [Mandatory Victims
Restitution Act], the district court is ultimately responsible for setting a schedule for
making restitution.” United States v. Gunning, 339 F.3d 948, 949 (9th Cir. 2003); see
also United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008); United States v.
Betts, 511 F.3d 872, 877 (9th Cir. 2007). Here, the district court’s order provided
that“[r]estitution payments shall be paid at the discretion of the probation officer.”
Given the court’s delegation of the payment schedule, we remand the restitution
order to the district court to establish a payment schedule while taking into
consideration our case law concerning delegation of such matters.
C. Conclusion
Having opened the door during direct examination, Breton-Rodriguez waived
the right to challenge on appeal the impeachment of his expert. Thus, we affirm the
conviction. We also affirm the sentencing determination and use of acquitted conduct

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to sentence Breton-Rodriguez, but remand the restitution order so that the district judge
may establish a payment schedule.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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