United States v. Jorge Breton-Rodriguez
Opinion
Opinion
MEMORANDUM
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 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 , 110 S.Ct. 648 , 107 L.Ed.2d 676 (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 , 120 S.Ct. 1851 , 146 L.Ed.2d 826 (2000), Breton-Rodriguez waived the right to challenge the impeachment on appeal.