United States v. Santos Canales-Reyes , 454 F. App'x 208 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS CANALES-REYES, a/k/a Chicago,
Defendant - Appellant.
No. 10-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIME SANDOVAL, a/k/a Pelon,
Defendant - Appellant.
No. 10-4897
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HEVERTH ULISES CASTELLON, a/k/a Misterio, a/k/a Sailor,
Defendant - Appellant.
No. 10-4971
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXI RICARDO RAMOS, a/k/a Pajaro,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00134-RJC-20; 3:08-cr-
00134-RJC-19; 3:08-cr-00134-RJC-DSC-3; 3:08-cr-00134-RJC-13)
Submitted: October 31, 2011 Decided: November 18, 2011
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Denzil H. Forrester, Charlotte, North Carolina; R. Deke Falls,
Charlotte, North Carolina; Diana Stavroulakis, Pittsburgh,
Pennsylvania; William R. Heroy, TIN, FULTON, WALKER & OWEN,
PLLC, Charlotte, North Carolina, for Appellants. Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These consolidated appeals arise from a racketeering
prosecution that targeted organized gang activity. Santos
Canales-Reyes received a 144-month sentence following pleas of
guilty to conspiracy to participate in a racketeering enterprise
(RICO conspiracy) in violation of 18 U.S.C. § 1962(d) (2006),
and using and carrying a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c) (2006).
Jaime Sandoval received a 222-month term of imprisonment
following guilty pleas to RICO conspiracy, and using and
carrying a firearm during and in relation to a crime of
violence. A 240-month sentence was imposed on Heverth Castellon
pursuant to pleas of guilty to RICO conspiracy; conspiracy to
distribute and possess with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. §§ 846, 841 (2006);
conspiracy to commit robbery in violation of the Hobbs Act, 18
U.S.C. § 1951(a) (2006); attempted robbery in violation of the
Hobbs Act; conspiracy to commit extortion, in violation of the
Hobbs Act; possessing a firearm during and in relation to a
crime of violence; conspiracy to obstruct justice and tamper
with a witness, in violation of 18 U.S.C. §§ 371, 2 (2006);
obstruction of justice, in violation of 18 U.S.C. §§ 1503, 2
(2006); and witness tampering, in violation of 18 U.S.C.
§§ 1512(b)(1), 2 (West 2000 & Supp. 2011). Alexi Ramos received
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a 108-month sentence following guilty pleas to RICO conspiracy,
two counts of possession of cocaine with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) (2006), and using and
carrying a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (2006).
On appeal, all appellants assert various sentencing
claims and, in addition, Canales-Reyes challenges the validity
of his guilty plea. Initially, the Government asserts that
appellate waiver provisions in the plea agreements entered into
by Canales-Reyes and Sandoval bar consideration of their claims
and require dismissal of their appeals. Canales-Reyes and
Sandoval argue that the appeal waivers in their plea agreements
are invalid because the Government breached the agreements. A
plea agreement is breached when a government promise that
induces the plea goes unfulfilled. Santobello v. New York, 404
U.S. 257, 262 (1971). A criminal defendant asserting that the
government breached a plea agreement bears the burden of proving
such a breach by a preponderance of the evidence. United
States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
Canales-Reyes argues that the Government breached the
plea agreement by failing to seek the dismissal of charges
pending in state court in New York. Canales-Reyes, however,
offers no evidence to show that the Government reneged on the
oral agreement to request – not to secure – the dismissal of
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those pending charges. The Government did not breach the plea
agreement, and Canales-Reyes’ claims are within the scope of the
waiver of appeal contained in that agreement. We therefore
dismiss his appeal.
Sandoval argues that his appeal waiver is not
enforceable because the Government breached the plea agreement
by not recognizing that he initially cooperated before refusing
to testify or provide further information. Sandoval clearly
breached the provision in his plea agreement that required him
to provide full cooperation, thereby releasing the Government
from any obligation to seek a lower sentence for him. The
Government did not breach the plea agreement, and Sandoval’s
appeal waiver is therefore enforceable. Further, the claims he
asserts on appeal are encompassed by the waiver. Accordingly,
we likewise dismiss his appeal.
Castellon first argues that the district court erred
at sentencing by holding him responsible for 400 to 500 grams of
cocaine. This court “review[s] the district court's calculation
of the quantity of drugs attributable to a defendant for
sentencing purposes for clear error.” United States v. Slade,
631 F.3d 185, 188 (4th Cir.), cert. denied, 131 S. Ct. 2943
(2011) (internal quotation marks omitted). The defendant bears
the burden of establishing that information relied upon by the
district court is erroneous. Id. Castellon has failed to
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demonstrate that the district court’s determination was clearly
erroneous. Additionally, no right to cross-examine exists at
sentencing, and failure to afford Castellon an opportunity to
cross-examine the witnesses from related trials whose testimony
was relied upon by the district court at Castellon’s sentencing
did not render the testimony unreliable or inadmissible. United
States v. Powell, 650 F.3d 388, 391-93 (4th Cir.), cert. denied,
__ U.S. __, 2011 WL 4536365 (Oct. 3, 2011) (No. 11-5824).
Castellon further argues that the district court erred
by relying on pre-plea conduct to deny him credit for acceptance
of responsibility. Circuit precedent squarely forecloses this
argument. United States v. Dugger, 485 F.3d 236, 240 (4th Cir.
2007) (affirming denial of acceptance-of-responsibility
adjustment based on continued drug-dealing while incarcerated
before guilty plea). We therefore reject Castellon’s challenge
to his sentence.
Ramos asserts that the district court erred by using
U.S. Sentencing Guidelines Manual (USSG) ch.3 pt. D (2009) to
factor in acts of extortion for which he was not charged or
convicted in determining his offense level, and that the court’s
factual findings were not adequately supported. Contrary to his
argument, the district court was correct to use the Guidelines
to group related conduct and adjust the offense level
accordingly. USSG § 2E1.1 cmt. n.1 (directing courts to apply
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part D to determine “the offense level applicable to the
underlying racketeering activity”); USSG Ch. 3, pt. D,
introductory cmt.; United States v. Nguyen, 255 F.3d 1335, 1344
(11th Cir. 2001); United States v. Ruggiero, 100 F.3d 284, 292-
93 (2d Cir. 1996). As for his second argument, Ramos’s flat
denial of the relevant facts in the presentence report (PSR) did
not satisfy his affirmative duty to demonstrate that the PSR was
unreliable or contained inaccuracies. United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990). In the absence of any more
specific objection at the sentencing hearing, the district court
was “free to adopt the findings in the [PSR] without more
specific inquiry or explanation.” Id. (internal quotation marks
omitted). Additionally, testimony introduced in related trials
in the district court, which was subject to cross-examination by
attorneys for the defendants, was supported by indicia of
reliability far exceeding that necessary for use at sentencing.
Powell, 650 F.3d 388, 391-94 (affirming use of out-of-court
statements that were never subject to cross-examination to
establish Guidelines factors). We accordingly find no infirmity
in the imposition of Ramos’s sentence.
In summary, we affirm the district court’s judgments
as to Castellon and Ramos. We dismiss the appeals sought to be
pursued by Canales-Reyes and Sandoval. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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