United States v. Espinosa-Jimenez , 159 F. App'x 680 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0980n.06
Filed: December 14, 2005
No. 04-6429
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On Appeal from the United
States District Court for the
EZEQUIEL ESPINOSA-JIMENEZ, Western District of
Kentucky
Defendant-Appellant.
/
Before: GUY and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*
RALPH B. GUY, JR.. Defendant Ezequiel Espinosa-Jimenez appeals from the
sentence he received after pleading guilty to one count of conspiracy to possess with intent
to distribute and to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§
846 and 841(a)(1). Defendant argues first that the government breached the plea agreement
by advocating that the district court determine his sentence based on drug quantities well in
excess of the “cap” to which the parties had stipulated in the plea agreement. Review of the
record convinces us that the district court did not clearly err in finding that it was the
defendant, not the government, who failed to fulfill obligations under the plea agreement.
Further, any error in this regard would be harmless since defendant’s sentence was based on
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-6429 2
quantities that did not exceed the stipulated amount. Defendant also argues that the district
court erred in calculating the quantity of drugs involved and by denying him a reduction in
the offense level for acceptance of responsibility. We find no error and affirm.
I.
Defendant was charged along with his brother-in-law, Antonio Vasquez-Bahena, with
one count of conspiracy to possess with intent to distribute and to distribute more than 500
grams of cocaine. A superceding indictment followed a few months later, charging them
both with conspiracy to possess with intent to distribute and to distribute more than 5
kilograms of cocaine. This led to defendant’s decision to enter a written plea agreement in
March 2004, under which defendant pleaded guilty to the charge in the original indictment
and agreed to cooperate with the government.
The terms of the plea agreement are significant to this appeal. First, the parties
stipulated that “the quantity of drugs involved in this case is less than 5 kilograms of a
mixture or substance containing a detectable amount of cocaine.” Second, if the government
determined that the defendant failed to fulfill any obligation under the agreement, the
government, in its discretion, would have “the option of being relieved of its obligations
under the plea agreement.” The agreement also expressly provided that if defendant were
to breach the agreement, he would not be permitted to withdraw his guilty plea, the
government would be free to make any sentencing recommendation, any evidence or
statements from the defendant would be admissible at trial or sentencing, and the government
No. 04-6429 3
would be free to bring additional charges.1
At the change of plea hearing, the parties’ understanding concerning drug quantity
was explored. Defendant admitted that at least 500 grams of cocaine was involved; the
parties confirmed that the plea agreement “capped” the amount by stipulating that less than
5 kilograms of cocaine was involved; and the government took the position that the offense
of conviction involved between 3½ and 5 kilograms of cocaine. The government represented
that the evidence would establish defendant’s involvement in three controlled buys between
Vasquez-Bahena and an informant—one 2-ounce and two 500-gram purchases of cocaine.
In addition, the government subsequently intercepted and recorded conversations between
defendant and Vasquez-Bahena relating to the purchase of additional quantities of cocaine.
In all, the government estimated that the offense of conviction involved between 3½ and 5
kilograms of cocaine. Defendant’s guilty plea was accepted.
During the proffer interview, however, defendant stated that he was involved in only
one 500-gram cocaine deal with Vasquez-Bahena and claimed to have received only $300
for his expenses. The government took the position that defendant had failed to provide
complete and truthful information as required by the plea agreement, releasing it from the
stipulation as to quantity. As a result, the government sought to include an additional 25 to
30 kilograms of cocaine as relevant conduct in determining defendant’s sentence. The
government had connected defendant to a seemingly unrelated cocaine distribution case.
Specifically, Brian Centeno, a cooperating defendant in another case, identified Espinosa-
1
The plea agreement further stated that: “Whether or not defendant has completely fulfilled all of
the obligations under this Agreement shall be determined by the United States.”
No. 04-6429 4
Jimenez as the individual who had supplied him with between 25 and 30 kilograms of
cocaine.
The presentence report recommended that defendant’s sentence be calculated based
on at least 15 but less than 50 kilograms of cocaine. Defendant objected to this
recommendation as violative of the stipulation in the plea agreement. Sentencing
proceedings were held in June, October, and November 2004. After the proceedings in June,
the hearing was continued and additional briefing was requested concerning the quantity of
drugs attributable to defendant, the government’s obligations under the plea agreement, and
the impact of the recent decision in Blakely v. Washington, 542 U.S. 296 (2004). When the
government did not file a brief, the district court entered an order central to defendant’s
claims on appeal.
That order, dated September 13, 2004, stated that the government had “offered no
authority for its position relative to withdrawal from the stipulation within the plea agreement
or the relevance of any evidence of additional quantities of cocaine” and set a new date for
imposition of sentence “in accordance with the terms of the written plea agreement and in
compliance with Blakely [], based upon 500 grams of cocaine.” (Emphasis added.)
Defendant argues that it was error for the district court not to have imposed sentence in
accordance with that order. However, additional evidence was received on these issues
during subsequent proceedings in October and November 2004. In fact, defense counsel
called the district court’s attention to the September 13 Order and argued that the court had
already resolved these issues in the defendant’s favor.
Before imposing sentence on November 18, 2004, the district court expressly found
No. 04-6429 5
that there was “ample evidence” that defendant had not been fully forthcoming with respect
to his involvement in the charged offense; that his statements and testimony were clearly at
odds with the recordings of the telephone conversations between defendant and his
codefendant Vasquez-Bahena; and that, as a result, defendant would not receive the
adjustment for acceptance of responsibility and would be disqualified from relief under the
safety valve provisions of the guidelines. Crediting the testimony of Vasquez-Bahena, the
district court found the offense of conviction involved between 3½ and 5 kilograms of
cocaine—an amount consistent with the stipulation in the plea agreement. Based on the
defendant’s “lack of candor” about his involvement, the district court further concluded that
the government was released from its contractual obligations under the plea agreement. The
district court nonetheless rejected Centeno’s testimony as not credible and refused to include
the 25 to 30 kilograms of cocaine as relevant conduct. The offense level, based on 3½ to 5
kilograms of cocaine, was 30 and resulted in a sentencing guideline range of 97 to 121
months’ imprisonment. Defendant was sentenced at the bottom of that range to a term of 97
months’ imprisonment, and this appeal followed.
II.
A. Breach of the Plea Agreement
Defendant argues that the government breached the plea agreement by advocating that
his sentence be based on relevant conduct that involved quantities of cocaine well in excess
of the maximum quantity stipulated to in the plea agreement. If the government breaches a
plea agreement, the breach may be remedied by requiring specific performance or permitting
the defendant to withdraw the plea. United States v. Skidmore, 998 F.2d 372, 375 (6th Cir.
No. 04-6429 6
1993). The issue of whether the government breached the agreement is reviewed de novo.
United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000).
In arguing that the government breached the plea agreement, however, defendant
relies on the September 13 Order to establish not only that the government was bound by the
stipulation as to quantity but also that the sentence would be based on no more than 500
grams of cocaine. As is clear from the recitation of the facts, this position misrepresents or
at least misapprehends the record. Rather, free to revisit its own orders, the district court
made a determination based on the evidence presented that defendant failed to fulfill his
obligation under the plea agreement to provide complete and truthful information concerning
the offense of conviction. Defendant does not directly challenge or even acknowledge this
determination, which we find was supported by the record.
Defendant does not dispute that he maintained during the proffer interview that he was
involved in only one 500-gram cocaine transaction with Vasquez-Bahena. Also, although
defense counsel filed a sentencing memorandum conceding that defendant had supplied the
cocaine for all three controlled purchases, that concession was later contradicted by
defendant’s own testimony during the sentencing proceedings that followed. Ultimately, the
district court seemed to accept the defendant’s equivocal admission of involvement in the
three controlled purchases, but found that it was “pretty clear that his involvement [was] in
excess of the two half kilograms plus 2 ounces that he has owned up to so far, and that the
telephone recordings show dealing in more than that.” The district court found the defendant
had not been fully forthcoming or truthful about his conduct and, crediting the testimony of
Vasquez-Bahena, concluded that the defendant’s offense involved between 3½ and 5
No. 04-6429 7
kilograms of cocaine. Referring to the earlier finding “with respect to the [d]efendant’s lack
of complete candor here in his description of his involvement,” the district court concluded
that the government was “released from its contractual obligation under the plea agreement.”
We find the district court did not err in determining that the government was released
from the stipulation as to quantity by defendant’s failure to provide complete and truthful
information concerning the offense of conviction. Therefore, the government did not breach
the plea agreement by arguing that the district court should include the additional 25 to 30
kilograms of cocaine allegedly supplied to Centeno as relevant conduct in calculating the
sentencing guideline range. Moreover, because the district court rejected that evidence,
defendant’s sentence was in fact based on quantities that did not exceed the stipulated
amount.
B. Sentencing Guideline Calculation
First, relying again on the September 13 Order, defendant argues that the district court
erred by failing to impose sentence in accordance with the plea agreement based upon 500
grams of cocaine. It is abundantly clear that the plea agreement stipulated only that the
quantity involved was less than 5 kilograms and that the statement in the September 13 Order
concerning quantity was not the district court’s final determination of the issue. The district
court specifically found that the quantity involved in the offense of conviction was between
3½ and 5 kilograms of cocaine, which does not exceed the stipulated amount in the plea
agreement. Defendant does not otherwise challenge the finding as to quantity.
Second, defendant contends that the district court erred when it denied him a two-level
reduction in the offense level for acceptance of responsibility under USSG § 3E1.1(a)
No. 04-6429 8
(2003).2 The defendant bears the burden of proving by a preponderance of the evidence that
he merits a reduction for acceptance of responsibility. United States v. Benjamin, 138 F.3d
1069, 1075 (6th Cir. 1998). In determining whether to grant a reduction, the appropriate
considerations include:
truthfully admitting the conduct comprising the offense(s) of conviction, and
truthfully admitting or not falsely denying any additional relevant conduct for
which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note
that a defendant is not required to volunteer, or affirmatively admit, relevant
conduct beyond the offense of conviction in order to obtain a reduction under
subsection (a). A defendant may remain silent in respect to relevant conduct
beyond the offense of conviction without affecting his ability to obtain a
reduction under this subsection. However, 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[.]
USSG § 3E1.1, comment. n. 1(a). The district court’s determination on this issue is reviewed
for clear error. United States v. Webb, 335 F.3d 534, 536-38 (6th Cir. 2003).
Defendant argues on appeal that it was error to consider his silence regarding the
alleged relevant conduct in denying him the reduction for acceptance of responsibility. As
alluded to earlier, the district court did not reference the relevant conduct in denying him this
reduction. Instead, the focus was on the defendant’s failure to be truthful concerning the
extent of his involvement in the offense of conviction. That is, the district court found
defendant’s testimony and statements were “at odds” with the recordings of the intercepted
telephone conversations between him and Vasquez-Bahena. The district court explained
2
The presentence report recommended an additional one-level reduction under USSG § 3E1.1(b),
which applies “[i]f the defendant qualifies for a decrease under subsection (a), the offense level determined
prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that
the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court to allocate their resources efficiently[.]”
No. 04-6429 9
that it’s pretty clear that his involvement is in excess of the two half kilograms
plus 2 ounces that he has owned up to so far, and that the telephone recordings
show dealing in more than that.
So, I am going to hold that the [d]efendant has not been fully
forthcoming, and not fully truthful in his rendition of what he said he did, and
his conduct here.
Now that’s going to have the effect of disqualifying him from the safety
valve on the sentence to be imposed here. It is also going to disqualify him for
acceptance points. As to quantity, we have testimony that I think is credible
from the codefendant here, Vasquez-Bahena, that there is involvement here of
this [d]efendant of somewhere between three and a half to five kilograms.
The district court identified the base offense level and guideline range, which the district court
again noted “would not be reduced by any acceptance points and would not be reduced by the
safety valve.” Having made this determination, the district court then turned to the question
of the alleged relevant conduct—the additional 25 to 30 kilograms testified to by Centeno—
and rejected it.
Given the rejection of the evidence concerning relevant conduct and the focus on
defendant’s involvement in the offense of conviction, we are satisfied that the district court
did not penalize defendant for his lack of cooperation by denying him the reduction for
acceptance of responsibility. Rather, the record demonstrates that the district court’s denial
was based on defendant’s failure to truthfully admit the conduct involved in the offense of
conviction. Accordingly, we find that the district court did not clearly err in denying
defendant a reduction in the offense level for acceptance of responsibility.
AFFIRMED.