United States v. Eduardo Tamayo Oliveros , 183 F. App'x 902 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 9, 2006
No. 05-15717 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00111-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO TAMAYO OLIVEROS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 9, 2006)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Eduardo Tamayo Oliveros appeals his 120-month sentence, which was
imposed following his guilty plea to conspiring to possess with intent to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), 846. For the first time on appeal, Oliveros argues that the district
court erred by giving him notice that his continued objection to the amount of
drugs attributable to him, an amount to which he had already agreed in his written
plea agreement,1 would result in the court’s denial of an offense-level adjustment
for acceptance of responsibility under U.S.S.G. § 3E1.1. Oliveros suggests that
the district court’s notice impaired his Fifth and Sixth Amendment rights. After
careful review, we affirm.
We review objections to sentencing issues raised for the first time on appeal
for plain error. See United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.
1999). To prevail under this standard, Oliveros must show “(1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir.) (internal quotations and citations omitted), cert. denied, 125
S. Ct. 2935 (2005). “If all three conditions are met, an appellate court may then
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Oliveros’s plea agreement contained an appeal waiver in which he waived his right to
appeal the sentence, including on the ground that the district court had erred in calculating the
Guidelines range, except on certain specified grounds. The government states that it has not filed
a motion to dismiss this appeal because it is arguable that Oliveros’s claim is not a challenge to his
sentence, but rather a challenge to the district court’s procedures at the sentencing hearing, and
because it is unclear whether Oliveros seeks a new sentencing hearing, a revocation of his plea
agreement, or some other form of relief. We give appellant the benefit of the doubt and address the
merits of his claim, rather than dismissing the appeal based on the waiver, because: (1) there is an
argument to be made that the appeal does not fall within the express terms of the waiver, as
conceded by the government; (2) the government does not seek application of the waiver and has
already expended the resources to brief the case on the merits; and (3) application of the waiver
would not be outcome-determinative.
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exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.(quotation and citation omitted).
Prior to sentencing, Oliveros signed a plea agreement in which he admitted
that an element of the offense was “[t]hat the object of the unlawful plan was to
possess with intent to distribute more than 5 kilograms of cocaine as charged.”
Moreover, at the plea colloquy, Oliveros described his participation in the
underlying conspiracy, as follows: “I’m guilty. I talked to the CS [confidential
source]. . . . And I was the one who talked to the CS to get them together and carry
out the transaction. That’s why I am guilty.” He further explained, “The quantity
was . . . what they actually had were three kilos. But I am guilty because it goes
back to the fact that I talked first about ten, and then, later, five. But what we had
was those three kilos.”
According to the presentence investigation report (“PSI”), Oliveros offered
to sell five kilograms of cocaine to a CS. During a recorded telephone
conversation, when the CS indicated that he was interested in purchasing ten
kilograms, Oliveros told the CS to “get ready” for the ten, in anticipation that it
would be acquired. In another recorded telephone conversation, Oliveros told the
CS that he was ready to deliver the first five kilograms, and that the other five
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kilograms would be ready for delivery in the upcoming week. After meeting with
the CS, Oliveros canceled the transaction, refusing to finalize delivery and
attempting to leave the area. Oliveros subsequently was arrested and three
kilograms of cocaine were found in a hidden storage area in the “engine block”
area (under the hood) of the vehicle he was driving.
The PSI recommended a base offense level of 32 based on Oliveros’s
responsibility for ten kilograms of cocaine, U.S.S.G. § 2D1.1(c)(4), and a three-
level reduction for acceptance of responsibility, U.S.S.G. §§ 3E1.1(a), 3E1.1(b).
With an adjusted offense level of 29 and a criminal history category II, and taking
into consideration the 120-month mandatory minimum of 21 U.S.C. §
841(b)(1)(A)(ii), Oliveros faced a Guidelines sentencing range of 120 to 121
months’ imprisonment.
Oliveros objected to the assignment of responsibility for ten kilograms of
cocaine, rather than three. Prior to the sentencing hearing, the district court issued
a Notice to Counsel Regarding Sentencing (“Notice”), which informed Oliveros
that he “should be prepared to discuss at the sentencing hearing why [he] should
not lose the acceptance of responsibility deductions for his false or frivolous
objection[] to the quantity of cocaine being at least the quantity to which he pled
guilty.” The Notice cited U.S.S.G. § 3E1.1, comment 1(a), which provides the
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following: “a defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” At the sentencing hearing, Oliveros withdrew the
objection. The district court imposed a 120-month term of imprisonment. This
appeal followed.
Oliveros now argues that the district court’s issuance of the Notice infringed
on his right to argue at the sentencing hearing that he was responsible for an
amount (three kilograms) that was below the amount to which he agreed in his plea
agreement and at the plea colloquy. This argument has no merit since it is well-
settled that a district court may “deny a defendant a reduction under § 3E1.1 based
on conduct inconsistent with acceptance of responsibility, even when that conduct
includes the assertion of a constitutional right.” United States v. Smith, 127 F.3d
987, 989 (11th Cir. 1997) (en banc) (emphasis added) (upholding the denial of an
acceptance of responsibility reduction based on the defendant’s objections to the
PSI). This is so because a defendant’s false denial of relevant conduct is
“inconsistent with the acceptance of responsibility.” United States v. Hernandez,
160 F.3d 661, 667-68 (11th Cir. 1998). Thus, based on Oliveros’s objection as to
drug quantity, even if the objection was based on a constitutional right, the district
court was free to deny an acceptance-of-responsibility reduction. If the district
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court would not have erred by denying the acceptance of responsibility reduction
altogether, we fail to see how the court committed plain error by warning Oliveros
that he could lose the reduction, thereby giving Oliveros the opportunity to
withdraw the objection and retain the benefit of the reduction. Accordingly, we
affirm.
AFFIRMED.
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