United States v. Jasmin Marrero

USCA11 Case: 22-14305 Document: 29-1 Date Filed: 08/09/2023 Page: 1 of 19

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14305

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASMIN MARRERO,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cr-00449-MLB-1

____________________

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2 Opinion of the Court 22-14305

Before NEWSOM, GRANT, and HULL, Circuit Judges.

PER CURIAM:

Defendant Jasmin Marrero appeals her 24-month sentence

imposed for violating the terms of her supervised release, pursuant

to 18 U.S.C. § 3583(e)(3). Marrero does not dispute that she

violated multiple terms of her supervised release. Rather, she

argues that her sentence is procedurally unreasonable because the

district court demonstrated a personal bias against her. After

review, we affirm Marrero’s revocation sentence.

I. BACKGROUND

A. Marrero’s Conviction and Supervised Release

In 2013, defendant Marrero pled guilty to one count of

possession with intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). The district

court imposed a 78-month sentence, followed by five years of

supervised release.

In 2019, defendant Marrero began her supervised release

term. While residing at a halfway house, Marrero met Michael

Robinson, also on supervised release for federal drug crimes.

Marrero and Robinson married and had a child. The same

probation officer supervised them.

B. 2019 and 2020 Domestic Abuse and Recantations

In July 2019 and in February 2020, the police arrested

Robinson for domestic battery against Marrero at their home after

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she said Robinson attacked her. Twice, the probation officer filed

a petition to revoke Robinson’s supervised release but then

withdrew it because Marrero later changed her story.

C. Marrero’s First Revocation in 2020

In March 2020, defendant Marrero admitted violating her

supervised release by: (1) not complying with her home detention

program; (2) failing to maintain the batteries in her GPS tracker;

(3) failing to produce a urine sample and tampering with the urine

sample; and (4) unlawfully possessing a controlled substance by

taking a coworker’s Adderall and by testing positive for

amphetamines and marijuana. The district court revoked

Marrero’s supervised release and imposed a 12-month sentence,

followed by 36 months of supervised release.

D. 2022 Domestic Abuse and Recantation

In 2021, defendant Marrero was released from prison and

was on supervised release. Later, Marrero’s supervision was

transferred to the Northern District of Georgia. Ultimately, the

same district court judge and prosecutor handled both Marrero’s

and Robinson’s revocation cases.

In January 2022, the police again arrested Robinson for

domestic battery after Marrero said he attacked her at their home.

The probation officer filed a petition to revoke Robinson’s

supervised release. Both the probation officer and prosecutor

spoke with Marrero, who confirmed she was truthful about

Robinson’s attack.

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The probation officer also obtained the police report,

photographs, and body camera footage, which showed that when

police arrived, Marrero had bruises on her face and arms and a cut

on the side of her face. Later, however, Robinson’s defense counsel

informed the probation officer that at Robinson’s state bond

hearing, Marrero recanted and testified that she was the aggressor

during the fight.

E. Robinson’s April 14, 2022 Revocation Hearing

The district court set a hearing on Robinson’s revocation

petition for April 14, 2022. The prosecutor subpoenaed Marrero,

who said she would come but failed to appear. The prosecutor

advised the court that Marrero had again recanted and the

prosecutor might have Jencks material. Ultimately, the district court

agreed to continue Robinson’s revocation hearing.

Before doing so, the district court judge made some

comments that Marrero claims are inconsistent with what the

same judge said in her later revocation hearing when he found

Marrero untruthful. We list them. After reviewing the body

camera footage, the district court observed that: (1) there was

“undisputed evidence . . . that [Robinson] beat her”; (2) “there [was]

sufficient evidence for [the court] to find by a preponderance that

[Robinson] committed battery against Ms. Marrero”; and (3)

Marrero’s recantation “would not change that” because it was “not

uncommon for a battered woman to do that.”

After the probation officer’s testimony, the district court

said: (1) it had “no doubt” that Robinson beat Marrero on July 2,

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2019, February 9, 2020, and January 8, 2022; (2) stated it was “very

obvious” that Robinson controlled Marrero, that he “beat on her”

and then “ha[d] her recant”; and (3) it was “inclined to find that

there’s a violation” and to revoke Robinson’s supervised release.

Nonetheless, the district court continued Robinson’s

revocation hearing. Yet, concerned about their three-year-old

daughter’s exposure to domestic violence, the district court

ordered Robinson to have no contact with Marrero.

F. Marrero’s April 14, 2022 Car Accident and Arrest

As it turned out, on the day of Robinson’s April 14

revocation hearing, Marrero was in a car accident. Marrero was

speeding and driving recklessly when she rear-ended a U-Haul

trailer, left the I-85 highway, and drove into a ravine. In her car, a

state trooper found a “UPass device” that is “used to cheat on

urinalysis tests.” Another state trooper transported Marrero in his

car and later found an aspirin bottle containing methamphetamine

where she was sitting. The state trooper arrested Marrero and

obtained a blood sample. The blood test confirmed

methamphetamine was in Marrero’s system.

G. Petition to Revoke Marrero’s Supervised Release

The probation officer filed a petition for revocation of

Marrero’s supervised release, which was twice amended. The

second amended petition alleged numerous violations.

As to her car accident, the petition charged that Marrero

committed ten state offenses: (1) possessing a Schedule III

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controlled substance; (2) possessing drugs not in their original

container; (3) failing to maintain a lane; (4) did not exercise due

care; (5) following another vehicle too closely; (6) driving on an

expired tag; (7) driving too fast for conditions; (8) speeding;

(9) driving without a license; and (10) driving under the influence

of a drug.

As to Marrero’s false reports of domestic abuse, the petition

charged that Marrero: (11) failed to answer truthfully her probation

officer’s questions about her January 8, 2022 abuse report to police;

and (12) committed the state offenses of falsely reporting a crime

on February 9, 2020 and January 8, 2022.

As to Marrero’s drug use, the petition alleged that Marrero:

(13) failed to submit to drug testing eight times from December

2021 to July 2022; (14) unlawfully used methamphetamine based

on positive drug tests on April 14 and July 6, 2022; (15) failed to

report on June 9, 2022 for an already missed drug test; and

(16) failed to participate in weekly substance abuse counseling on

June 15 and July 8, 2022.

When Marrero did not appear at her July 26, 2022,

revocation hearing, the district court issued a bench warrant.

Marrero was arrested.

H. Marrero’s December 5, 2022 Revocation Hearing

At the revocation hearing, the government withdrew

Violations 11 and 12 about Marrero’s false crime reports to the

probation officer and police. The prosecutor explained that,

although Marrero admitted lying to police, she was not sufficiently

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credible to prove those violations because Marrero had changed

her story several times. The district court questioned the

government’s decision, suggesting it was giving up and “taking the

easier path” rather than trying to prove Marrero’s false statements

using her own admissions. Nonetheless, the district court

permitted the government to withdraw Violations 11 and 12.

Although admitting her four drug-use violations, Marrero

denied the ten car-accident violations because her case was “still

pending in state court.” The district court then accepted evidence,

including police reports, and heard the probation officer’s

testimony about the car accident and Marrero’s arrest.

The probation officer also testified about Marrero’s text

messages admitting various lies. In her text messages to the

probation officer, Marrero stated that: (1) Robinson beat her, but

she understood the probation officer might not believe her because

she lied so much; (2) she hit Robinson first during one domestic

incident; (3) she lied to the police after another incident because

she knew she was going to jail for violating the GPS-monitoring

term of her supervised release; (4) she faked a recorded telephone

call with Robinson (while he was in custody) that was played at his

revocation hearing to help him beat the battery charge; and (5) she

lied about not living with Robinson when his bond condition

prohibited contact with Marrero.

Marrero objected to the government’s questions about her

text messages because it had withdrawn Violations 11 and 12 about

her false crime reports. The government responded that the

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district court could still consider Marrero’s “pattern of

manipulation and dishonesty.” Although overruling Marrero’s

objection, the district court agreed with Marrero that the text

evidence was no longer relevant, and the government was just

trying to make Marrero look bad. The district court said it could

“compartmentalize and decide what I think I can consider.” In this

revocation-sentence appeal, Marrero does not challenge this

evidentiary ruling.

Ultimately, the district court found that the government

proved the ten car-accident violations and the four drug-use

violations. The district court opined that the government probably

could have proven the two withdrawn violations (11 and 12) about

false reports. The district court said it “regret[ted] the fact that the

government ha[d] decided not to do that and to allow somebody

who is, by all accounts, fundamentally untrustworthy to evade

being held accountable for their lies.” The district court

acknowledged that “in the end, we just can’t tell which one is a lie

because [Marrero is] such a big liar . . . that makes a lot of false

statements and we can’t tell which ones are the false statements.”

The district court continued that “it sure undermines the process

when you can just tell so many lies that eventually you become

immune to any prosecution or supervised release violation for

lying.”

As to the revocation sentence, the district court found that

the advisory guidelines range was 18 to 24 months’ imprisonment,

with a 36-month statutory maximum. The parties jointly

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requested that Marrero be released on bond to attend a

methamphetamine treatment program. The government

acknowledged Marrero’s serious violations but argued that drug

treatment afforded the most likely long-term protection for the

public against Marrero’s severe drug addiction.

In mitigation, Marrero stressed her difficult childhood,

during which both parents died from HIV-related complications,

her teenage addiction to methamphetamine, and Robinson’s

domestic abuse. Marrero said she relapsed in January 2022 when

she learned Robinson had “cheated on her on Christmas Eve,” and

“it was a spiral from there.”

Marrero’s defense counsel acknowledged Marrero’s calling

the police, recanting, and failing to appear in court. But defense

counsel pointed out that at Robinson’s April 14, 2022, revocation

hearing, the district court repeatedly said it believed Marrero’s

abuse allegations were true and that abused women often recant

and refuse to proceed with prosecution. While Marrero may not

have been truthful with her probation officer, defense counsel

contended that Robinson threatened and manipulated her and used

their child as leverage over her.

The district court responded that Marrero “put too much”

emphasis on its statements at Robinson’s April 14, 2022, revocation

hearing. The district court explained that, at Robinson’s revocation

hearing, it was dealing with the government’s reluctance to present

evidence of “a clearly toxic domestic relationship, in which there

[was] pretty strong video [evidence] of abuse, maybe going both

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ways, all of which [was] done in the presence of their daughter.”

The district court clarified that at Robinson’s hearing, it had not

“reached a final decision that Ms. Marrero had been truthful when

she reported [Robinson]” because the hearing was postponed. The

district court said it did not know now “where [it] would have gone

that day had [it] made a decision as to whether or not Mr. Robinson

actually abused Ms. Marrero.” The court stressed that the parties

should not “read too much into my strong words to Mr. Robinson

when I felt like I was trying to make sure that everybody

understood the importance of them being away from each other

because of the [parties’] daughter.”

In allocution, Marrero apologized for her and Robinson’s

“madness” and accepted responsibility for using drugs. She had

turned to drugs to deal with her experiences with Robinson and

promised she would not get high again for her daughter’s sake.

Marrero asked the district court to give her another chance and

then give her the maximum sentence if she failed.

The district court asked why the prosecutor believed

Marrero would now comply with a drug-treatment requirement.

The prosecutor responded that she was not sure Marrero would

comply and that “[i]t’s really more of a hope.”

The district court said it was “perplexed” by the

government’s position that Marrero was a good candidate for drug

treatment. The district court asked for the probation officer’s

recommendation. The probation officer recommended a prison

sentence at the high end of the advisory guidelines range. The

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probation officer explained that the government and probation

office had invested heavily in Marrero’s recovery, including the

Bureau of Prisons’ 500-hour drug treatment program; multiple

outpatient drug programs; two six-month drug-screening

programs; location monitoring; a cognitive skills program; and a

12-month sentence after her last revocation, none of which had

changed her conduct.

I. District Court’s Explanation of the Sentence

After considering the relevant factors under 18 U.S.C.

§§ 3582 and 3553(a), the district court imposed a 24-month

sentence. The district court rejected the parties’ request to release

Marrero on bond to obtain drug treatment. The district court said

it did not expect Marrero to do anything other than what she had

done in the past, which included not obtaining the required drug

treatment, not following her probation officer’s instructions, not

meeting other obligations of supervision, and failing to appear for

her revocation hearing, which resulted in a bench warrant. The

district court also recalled that when Marrero failed to appear at

Robinson’s April 14, 2022, revocation hearing, “she was calling her

lawyer and saying she was near the courthouse, when she was

actually racing down the highway somewhere else.”

The district court expressed consternation at the

government’s view that Marrero could be trusted to get treatment,

finding Marrero was “fundamentally untrustworthy,”

“manipulative,” “dangerous,” and “selfish.” The district court

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concluded Marrero had shown she did not want, and was incapable

of receiving, help.

As for the choice of a 24-month prison term, the district

court stressed that Marrero was “stoned on meth when she was

driving” and “there needs to be protection of the public

immediately from Ms. Marrero.” The district court opined that

there was no way to deter Marrero and protect the public merely

by allowing her to get treatment again. The district court

discounted Marrero’s claim that her problems started with

Robinson, noting she had an extensive criminal history before she

met him. Marrero already served a 78-month sentence and a 12-

month revocation sentence, and neither sentence had deterred her.

To the district court, “the question [was] whether or not the

statutory maximum [of 36 months] was appropriate,” but the

district court decided to “follow the guidelines” of 24 months.

Marrero’s only objection was “for reasonableness of the

sentence.”

II. DISCUSSION

A. Plain Error Review

On appeal, Marrero’s argues that her 24-month sentence is

unreasonable because the district court was biased against her and

should have disqualified itself. Marrero did not raise this recusal

issue at the revocation hearing. Instead, Marrero objected only to

the “reasonableness” of her sentence. She did not raise any issue

as to the district court’s impartiality or move to disqualify the

district court judge. Marrero’s general objection to the

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reasonableness of her sentence was not sufficient to preserve a

recusal challenge.

Marrero contends that she adequately raised the recusal

issue when her defense counsel pointed out that the district court

previously found Marrero’s claims of domestic abuse credible

during Robinson’s revocation hearing. We disagree. Defense

counsel’s observation on this point was far from enough to alert

the district court that Marrero was raising a claim of personal bias

requiring recusal. See United States v. Brown, 934 F.3d 1278, 1306

(11th Cir. 2019) (“[T]o preserve an objection to a sentencing

determination, a party must raise that point in such clear and

simple language that the trial court may not misunderstand it.”).

Alternatively, Marrero argues that she was not required to

move for recusal because the district court judge did not reveal his

bias until he pronounced Marrero’s sentence. This ignores that

after the district court pronounced the sentence, Marrero could

have raised bias or recusal but did not do so.

Because Marrero raises this recusal issue for the first time on

appeal, our review is for plain error. See United States v. Vandergrift,

754 F.3d 1303, 1307 (11th Cir. 2014); United States v. Berger, 375 F.3d

1223, 1227 (11th Cir. 2004) (reviewing for plain error, rather than

abuse of discretion, a district court’s failure to recuse sua sponte

based on alleged bias). To show plain error, the defendant must

show (1) that the district court erred; (2) that the error was plain;

and (3) that the error affected her substantial rights. Vandergrift, 754

F.3d at 1307. If these three conditions are met, we decide whether

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the error seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Id.

B. Reasonableness of the Sentence

A district court may revoke a defendant’s supervised release

term and impose a term of imprisonment if it finds by a

preponderance of the evidence that the defendant violated a

condition of supervised release. 18 U.S.C. § 3583(e)(3). Before

imposing a revocation sentence, the district court must consider

certain factors in 18 U.S.C. § 3553(a), as well as the policy

statements in Chapter 7 of the Sentencing Guidelines, including

non-binding ranges of imprisonment. Id. § 3583(e); United States v.

Silva, 443 F.3d 795, 799 (11th Cir. 2006).

Ordinarily, we review such a sentence for reasonableness,

applying the deferential abuse of discretion standard. Vandergrift,

754 F.3d at 1307. Under this standard, we employ a two-step

process, first examining whether the district court committed any

significant procedural error and then whether the sentence is

substantively unreasonable in light of the relevant § 3553(a) factors

and the totality of the circumstances. United States v. Trailer, 827

F.3d 933, 335-36 (11th Cir. 2016). At both steps, the party

challenging the sentence has the burden of showing it is

unreasonable. Id.

Marrero’s sole argument—that the district court should

have recused based on personal bias—is a claim of procedural error

that we review for procedural reasonableness. And in Marrero’s

appeal we review that claim only for plain error.

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C. Marrero’s Recusal Claim

1. 28 U.S.C. § 455

Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a). The question under § 455(a) “is

whether an objective, disinterested, lay observer fully informed of

the facts underlying the grounds on which recusal was sought

would entertain a significant doubt about the judge’s impartiality.”

United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013)

(quotation marks omitted).

In addition, under 28 U.S.C. § 455(b), a judge must recuse

himself where, among other things, “he has a personal bias or

prejudice concerning a party.” 28 U.S.C. § 455(b)(1). “The bias or

prejudice must be personal and extrajudicial; it must derive from

something other than that which the judge learned by participating

in the case.” United States v. Amedeo, 487 F.3d 823, 828 (11th Cir.

2007) (quotation marks omitted). “[O]pinions formed by the judge

on the basis of facts introduced or events occurring in the course

of the current . . . [or] prior proceedings, do not constitute a basis

for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment

impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct.

1147, 1157 (1994); see also Bolin v. Story, 225 F.3d 1234, 1239 (11th

Cir. 2000) (“[E]xcept where pervasive bias is shown, a judge’s

rulings in the same or a related case are not a sufficient basis for

recusal.”). “Thus, judicial remarks during the course of a trial that

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are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality

challenge.” Liteky, 510 U.S. at 555, 114 S. Ct. at 1157.

2. Analysis of Marrero’s Claim

Marrero contends the district court demonstrated personal

bias when it found she was “an aggressor” and “was dishonest and

manipulative about her being the victim of domestic abuse by her

husband.” Marrero claims this finding is inconsistent with and

“fundamentally opposed” to the district court’s earlier finding at

Robinson’s revocation hearing that Marrero “was a victim of

domestic abuse at th[e] hands of her husband.”

There is a threshold flaw with Marrero’s recusal claim.

Marrero mischaracterizes the district court’s findings at her own

revocation hearing. As we read the transcript of her hearing, the

district court did not find that Marrero lied about being a domestic

abuse victim. Nor did it find that Marrero was “an aggressor” in

the domestic abuse incidents with Robinson. At most, the district

court observed that “pretty strong video” evidence of abuse,

“maybe going both ways,” was presented at Robinson’s revocation

hearing, but the court also stated it did not know what it would

have found at Robinson’s revocation hearing had it been necessary

to do so.

To be sure, the district court allowed the government to ask

the probation officer about the texts, domestic abuse incidents, and

Marrero’s changing stories. Yet, the court agreed with Marrero

that whether she had lied to either the police or her probation

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officer about those abuse incidents was not relevant given that the

government had withdrawn Violations 11 and 12. The district

court also stated that it could “compartmentalize” what it could

and could not consider. Although dismayed by the prosecutor’s

decision to withdraw Violations 11 and 12, the district court did not

make any findings about whether Marrero lied about Robinson’s

abuse to police or her probation officer.

Rather, the district court found, based on Marrero’s other

well-proven conduct while on supervision, that she was generally

too dishonest and manipulative to be trusted to comply with a plan

of more drug treatment. The district court noted that: (1)

Marrero’s prior revocation resulted from positive drug tests and

her attempt to manipulate a urine sample; (2) Marrero lied to her

attorney about being near the courthouse on April 14, 2022;

(3) Marrero previously failed to obtain required drug treatment, to

follow her probation officer’s instructions or comply with her other

obligations of supervision; and (4) Marrero did not appear in court

even when under subpoena. The district court described all of this

conduct as “blatant untruthfulness” and “absurd manipulation of

people.”

On the merits, Marrero cannot show the district court

abused its discretion, much less plainly erred, by failing to recuse.

As to § 455(a), a fully informed, objective lay observer would not

have a significant doubt about the district court’s impartiality. At

Marrero’s revocation hearing, ample evidence established that,

apart from her abuse reports, Marrero’s repeated violations of her

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supervised release conditions included dishonest and manipulative

conduct and breaches of trust.

For example, Marrero’s 2020 violations included, among

other things, positive drug tests, tampering with a urine sample,

not complying with her home detention program, and failing to

participate in drug treatment and testing.

Marrero’s deceptive behavior continued with her new

violations in 2022. Although under subpoena, Marrero did not

appear at Robinson’s revocation hearing. Marrero also lied to her

own attorney (who was present at the hearing) that she was driving

to the courthouse. Instead, she was driving under the influence of

methamphetamine on an interstate highway, where she caused a

serious accident. A state trooper even found in Marrero’s car a

UPass device, which is used to avoid positive drug tests. After

transporting Marrero, the state trooper found a bottle of

methamphetamine in his vehicle.

Later, Marrero sent text messages to her probation officer

about how she and Robinson recorded a fake jail call and how she

had lied about not living with Robinson while the court ordered

him to have no contact with her.

It is patently clear here that the district court’s comments—

that Marrero was fundamentally untrustworthy, manipulative,

dangerous, and selfish and could not be trusted to comply with a

drug treatment requirement—were supported by the evidence and

would not cause an objective, fully informed lay observer to

question the district court’s impartiality.

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As to § 455(b), the district court’s opinion of Marrero’s

trustworthiness was properly formed based on information it

learned during Marrero’s and Robinson’s revocation proceedings.

The district court’s opinion did not display any kind of “deep-

seated . . . antagonism that would make fair judgment impossible.”

See Liteky, 510 U.S. at 555, 114 S. Ct. at 1157. And the district court’s

comments were certainly not extrajudicial. See Amedeo, 487 F.3d at

828.

Accordingly, Marrero has not shown that her 24-month

revocation sentence is procedurally unreasonable. 1

AFFIRMED.

1 Marrero’s counseled brief does not argue that her 24-month sentence is

substantively unreasonable. But even if it had, we would have little trouble

concluding that the district court’s choice of a 24-month sentence was

reasonable given the extent and severity of Marrero’s violations.