United States v. Luis Acuna ( 2010 )

  •                            NOT RECOMMENDED FOR PUBLICATION
                                       File Name: 10a0437n.06
                                                      No. 08-3521                                          FILED
                                                                                                       Jul 19, 2010
                                  UNITED STATES COURT OF APPEALS                                LEONARD GREEN, Clerk
                                       FOR THE SIXTH CIRCUIT
    v.                                                            ON APPEAL FROM THE UNITED
                                                                  STATES DISTRICT COURT FOR THE
    LUIS ACUNA,                                                   SOUTHERN DISTRICT OF OHIO
            Defendant-Appellant.                                                    OPINION
    Before:          BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*
            CLAY, Circuit Judge. Defendant Luis Acuna appeals from a judgment entered by the
    district court sentencing Defendant to 140 months’ imprisonment for one count of conspiracy to
    distribute and possess with intent to distribute 1,000 kilograms or more of marijuana, in violation
    of 21 U.S.C. § 846, and one count of conspiracy to commit money laundering, in violation of 18
    U.S.C. § 1956(h). On appeal, Defendant contends that his sentence is substantively unreasonable.
    For the reasons stated below, we AFFIRM the judgment of the district court.
                                                 I. BACKGROUND
            A.       Factual Background
            Prior to this case, Defendant Luis Acuna had been working with the Drug Enforcement
    Agency (“DEA”) in Tucson, Arizona. During that time, a DEA agent from Columbus, Ohio
               The Honorable Thomas A. W iseman, Jr., United States District Judge for the Middle District of Tennessee,
    sitting by designation.
                                                 No. 08-3521
    approached Defendant regarding Damon Thompson, an individual who was supplying drugs to a
    man named Anthony Whittaker. While working with the DEA, Defendant met a person named
    Ramero (“Ram”) who was also working with the DEA. Sometime during his dealings with the
    DEA, Defendant began engaging in the illegal conduct that formed the basis for this case. Through
    his contact with Ram, Defendant met Whittaker and the other individuals involved in the instant
           This case arises from Defendant’s involvement in supplying large quantities of marijuana to
    various individuals in Ohio, including Whittaker. Whittaker’s average transaction with Defendant
    was between 200 and 300 pounds of marijuana and deliveries occurred as often as twice per month.
    On several occasions, Whittaker also made arrangements to pick up marijuana from Defendant in
    Atlanta, Georgia for distribution in Ohio.
           From June to August of 2005, Defendant used Meredith Baggott as a drug courier. Baggott
    made six trips to transport loads of marijuana, about 300 to 400 pounds each time, from Tucson to
    Columbus and Atlanta. Defendant also conspired with Whittaker and other individuals to launder
    the proceeds.
           B.       Procedural History
           On March 28, 2007, Defendant was indicted for various counts of narcotics trafficking,
    conspiracy, unlawful use of a communication facility, and money laundering. On November 16,
    2007, a superseding information was filed against Defendant charging him with one count of
    conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana,
    in violation of 21 U.S.C. § 846, and one count of conspiracy to commit money laundering, in
                                              No. 08-3521
    violation of 18 U.S.C. § 1956(h).1 Defendant pled guilty to both counts and, as part of his plea,
    agreed to cooperate with authorities.
           A presentence report was prepared that determined that Defendant’s conduct resulted in a
    base offense level of 32. Defendant received a two-level enhancement because he had a supervisory
    role in the offense and a two-level enhancement because of his money laundering offense, pursuant
    to USSG § 2S1.1(b)(2)(B). In addition, Defendant received a three-level reduction for acceptance
    of responsibility, which resulted in a total offense level of 33. Defendant’s total offense level,
    combined with his ten criminal history points that established a criminal history category of V,
    resulted in a guidelines range of 210-262 months’ imprisonment.
           Defendant filed one objection to the presentence report, arguing that his criminal history
    category overrepresented the seriousness of his criminal history and his likelihood to reoffend.
    Specifically, Defendant pointed to one of his prior offenses—re-entry into the United States after
    deportation—and argued that he would not have been permitted to re-enter the country without
    government intervention, i.e., his cooperation with the DEA. The government did not oppose
    Defendant’s objection and also filed a USSG § 5K1.1 motion for a downward departure due to
    substantial assistance, recommending a three-level downward departure for a total offense level of
             The indictment originally charged Defendant under the name “Jose Quintana Aponte,” but
    after his arrest, authorities confirmed that Defendant’s name is Luis Acuna and that Aponte was an
    alias. The parties subsequently filed a joint motion to amend the indictment and add the name Luis
    Acuna to the case caption.
                                               No. 08-3521
           At the sentencing hearing, the district court sustained Defendant’s objection to the
    presentence report, which resulted in a total offense level of 33 and a criminal history category of
    IV for a guidelines range of 188 to 235 months’ imprisonment. The district court also granted the
    government’s USSG § 5K1.1 motion, reducing Defendant’s offense level to 30, which resulted in
    a guidelines range of 135 to 168 months. The district court sentenced Defendant to 140 months’
    imprisonment on each count, to be served concurrently. Defendant appeals.
                                            II. DISCUSSION
           A.      Standard of Review
           We review Defendant’s sentence “under a deferential abuse-of-discretion standard” for
    reasonableness. United States v. Alexander, 
    543 F.3d 819
    , 821 (6th Cir. 2008) (quoting Gall v.
    United States, 
    552 U.S. 38
    , 41 (2007)) (internal quotation marks omitted). The reasonableness
    determination has both procedural and substantive components. United States v. Sedore, 
    512 F.3d 819
    , 822 (6th Cir. 2008). The Court reviews the district court’s belief regarding its authority to
    depart downward de novo. United States v. Williams, 
    355 F.3d 893
    , 901 (6th Cir. 2003).
           B.      Analysis
           In this case, Defendant does not allege that his sentence is procedurally unreasonable nor
    does the record indicate a procedural error by the district court. Instead, Defendant frames this
    appeal as one regarding the substantive reasonableness of his sentence.
           A sentence may be substantively unreasonable where the district court “select[s] the sentence
    arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent [18 U.S.C.]
    § 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.” United
                                               No. 08-3521
    States v. Webb, 
    403 F.3d 373
    , 385 (6th Cir. 2005). Defendant argues that the district court “stated
    ten years was appropriate and gave [Defendant] twelve.” (Appellant’s Br. 13.) This argument seems
    to refer to the following statement during sentencing:
                   I need to provide a sentence that avoids unwarranted sentencing disparities
           among defendants with similar records who have been found guilty of similar
           conduct. And, Mr. Acuna, you fall at the upper level of people who appear before
           me on these types of drug dealing or marijuana dealing cases with the amount of
           relevant conduct that is involved here.
                   I would have had some problems with the government had they filed some
           type of motion that would get you beyond, below, the ten-year minimum mandatory,
           to be honest with you. I might as well just be as frank as I can. I don’t believe that
           your conduct is such that would warrant something less than the ten-year minimum
           mandatory. And I guess, as a credit to the government, they didn’t try to do that even
           with regard to the assistance you’ve provided.
                   And don’t get me wrong. I know that you have a lot of information that can
           be helpful to not only the authorities here in Central Ohio, in the Southern District
           of Ohio, but also, more importantly, probably in Arizona, and you got credit for that.
           I’m going to give you credit for that, and you deserve it, but I don’t believe that you
           deserve a sentence that would be below the minimum mandatory, and any sentence
           below the minimum mandatory would, I believe, be an unwarranted sentencing
           disparity in this case.
    (Sentencing Tr. 19-20.)
           However, this statement by the district court does not suggest that a ten-year sentence would
    be more appropriate than the sentence imposed on Defendant, and defense counsel even
    acknowledged that it was clear the district court thought “that a ten-year mandatory minimum
    sentence, or anything less, would be inappropriate.” (Sentencing Tr. 21.) Moreover, as the record
    makes clear, the district court properly considered the pertinent 18 U.S.C. § 3553(a) factors. Thus,
    Defendant’s sentence is not substantively unreasonable.
           Defendant’s actual argument on appeal seems to be that the district court did not depart
    downward far enough during sentencing. A district court can depart downward from the guidelines,
                                                 No. 08-3521
    but we will not review a district court decision concerning the extent of a downward departure
    “unless the record reflects that the district court was not aware of or did not understand its discretion
    to make such a departure.” United States v. Puckett, 
    422 F.3d 340
    , 345 (6th Cir. 2005) (quoting
    United States v. Stewart, 
    306 F.3d 295
    , 329 (6th Cir. 2002)) (internal quotation marks omitted).
            In this case, the district court clearly recognized its discretion to depart downward as
    evidenced by the fact that the court granted Defendant a three-level downward departure. Therefore,
    the district court not only acknowledged its discretion to depart downward but exercised its authority
    to do so. Moreover, the district court recognized its discretion to depart downward further but opted
    to deny Defendant’s request for an additional one-level downward departure.
            Having recognized its discretion, the district court’s decision is only reviewable if: “(1) the
    sentence was imposed in violation of the law; (2) it was imposed as a result of an incorrect
    application of the guidelines; (3) the sentence represented an upward departure; or (4) the sentence
    was imposed for ‘an offense for which there is no [S]entencing [G]uideline and is plainly
    unreasonable.’” Puckett, 422 F.3d at 346 (quoting 18 U.S.C. § 3742(a)) (alterations in original).
            None of the § 3742(a) exceptions apply here. Acuna does not challenge the application of
    the sentencing guidelines to his sentence or allege that his sentence “was imposed in violation of the
    law.” The district court did not sentence Acuna to a length of time above his applicable guidelines
    range and the criminal activity charged in the indictment falls within the sentencing guidelines. The
    district court’s decision regarding departure is therefore not reviewable on appeal. Accordingly,
    because the district court’s decision regarding further downward departure is not reviewable on
                                             No. 08-3521
    appeal and because Defendant’s sentence is not substantively unreasonable, we affirm the district
    court’s decision.
                                         III. CONCLUSION
           For the reasons stated above, we AFFIRM the district court’s decision.