United States v. Alfredo Leyva , 916 F.3d 14 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2018 Decided February 26, 2019
No. 17-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
ALFREDO BELTRAN LEYVA, ALSO KNOWN AS MOCHOMO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00184-1)
Stephen C. Leckar, appointed by the court, argued the
cause and filed the briefs for appellant.
William A. Glaser, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Arthur G. Wyatt, Chief. Adrienne L. Rose, Attorney, and
Elizabeth Trosman, Assistant U.S. Attorney, entered
appearances.
Before: ROGERS and SRINIVASAN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: Alfredo Beltran Leyva
pleaded guilty to conspiracy to distribute cocaine and
methamphetamine in the United States. He later sought to
withdraw his guilty plea and proceed to trial, but the district
court did not permit him to do so. On appeal, Leyva claims the
district court erred in denying his motion to withdraw the guilty
plea; he also raises several challenges to his sentence and
forfeiture order. We reject all his challenges and affirm the
judgment of the district court.
I. Background
The offenses to which Leyva pleaded guilty stem from a
large-scale drug trafficking organization and the members’
conspiracy to import various drugs into the United States
through Mexico. Although Leyva admits the existence of and
his participation in the conspiracy, he challenges the reliability
and sufficiency of the evidence to support his sentence and the
amount of the forfeiture ordered by the district court; therefore,
we review the relevant facts in detail.
A. Relevant Facts
Along with his brothers Arturo and Hector, Alfredo
Beltran Leyva operated a drug trafficking organization
(hereinafter a DTO) from at least 2000 to 2012. The DTO’s
cocaine business purchased cocaine from Colombian
manufacturers through brokers and then shipped the drugs via
land, air, or water for sale throughout Mexico; the cartel also
imported some of that cocaine to the United States at the Texas
border. The cartel also produced methamphetamine in
laboratories in Mexico and shipped the finished drugs to the
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United States. In order to maintain control of its territories in
Mexico and to ease the transport of its drug shipments, the
DTO bribed local law enforcement officials and engaged
gunmen to kill members of rival cartels.
Leyva’s primary role in the organization was to control the
receipt, transportation, and sale of cocaine through Culiacán,
Sinaloa in Mexico, its hub for cocaine operations. He was also
responsible for overseeing the production of methamphetamine
in laboratories around the Culiacán area.
B. Procedural History
The Mexican Army arrested Leyva in January 2008. He
has been in continuous custody since then, though he was not
extradited to the United States until November 2014. In
August 2012 a grand jury in the District of Columbia returned
a one-count indictment charging him with conspiracy to
distribute 5 kilograms or more of cocaine, 50 grams or more of
methamphetamine, 1 kilogram or more of heroin, and 1,000
kilograms or more of marijuana for importation into the United
States in violation of 21 U.S.C. §§ 959(a), 960(b)(1)(A),
960(b)(1)(B)(ii), 960(b)(1)(G), 960(b)(1)(H), and 963. The
indictment covered the period from January 2000 through the
date it was filed. The district court later granted the
Government’s motion to dismiss the charges involving heroin
and marijuana, leaving only the cocaine and methamphetamine
charges.
In February 2016, shortly before trial was to begin, Leyva
pleaded guilty. He did so without a plea agreement. At the
plea hearing, the district court engaged the defendant in a
lengthy colloquy before accepting his plea. The judge asked
the defendant whether he had reviewed and discussed the
indictment with his attorneys. Leyva confirmed he had; one of
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his attorneys further confirmed he had gone over the document
with Leyva in Spanish and that Leyva had received a Spanish-
language translation of the indictment at the time of his
extradition. The district court also asked the defendant if he
was satisfied with his attorneys’ representation. Leyva said
that he was.
The judge did not verify that Leyva understood his right to
be represented by counsel and to have the court appoint counsel
if need be. Nor did he mention the possibility of forfeiture or
that, in determining a sentence, the court would apply the
Sentencing Guidelines and the factors under 18 U.S.C.
§ 3553(a). Leyva’s counsel did not object to any of these
omissions.
The court then asked the Government to summarize the
evidence it would have brought at trial. Following that
presentation, the judge asked the defendant whether he was
guilty of the Government’s various allegations; he said he was.
Specifically, Leyva admitted that he “was a member of the
Beltran Leyva organization” and that the organization
“finance[d] shipments” of cocaine “from Colombia to Mexico
for transshipment to the United States.” He further admitted
that the organization “produced methamphetamine in Mexico
for distribution, ultimately, in the United States.” When asked
if he was “one of the leaders of the Beltran Leyva
organization,” however, the defendant denied it. He insisted
that he “would just help [his] brother, Artur[o].”
At the end of the hearing, the district court judge
determined that Leyva’s plea was “knowing, voluntary, and
supported by an independent basis in fact as to each of the
essential elements of the offense.” He therefore accepted the
plea.
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The court scheduled Leyva’s sentencing for October 2016.
In due course, the Probation Office (PO) prepared a
presentence report (PSR) for Leyva describing his role in the
conspiracy. The PO calculated a base offense level of 38, based
upon the quantity of drugs involved. It then applied a four-
level enhancement because Leyva was an organizer or leader
of criminal activity under USSG § 3B1.1(a), and two-level
enhancements each for possession of a dangerous weapon,
under USSG § 2D1.1(b)(1); use of violence, under
USSG § 2D1.1(b)(2); bribing a law enforcement official, under
USSG § 2D1.1(b)(11); and being a leader or organizer directly
involved in the importation of a controlled substance, under
USSG § 2D1.1(b)(15)(C) (2015). In addition, the PO
recommended a three-level reduction for acceptance of
responsibility under USSG § 3E1.1(a) and (b). The PO also
concluded Leyva had a criminal history score of zero, resulting
in a criminal history category I.
A few days before the sentencing hearing, the parties
attempted to stipulate to the applicable adjustments under the
Guidelines. They agreed to a total base offense level of 42,
which yields a sentencing range of 360 months to life. The
district court refused to accept the stipulation, however. It
decided to hear evidence and make its own determination as to
the appropriate sentencing range.
In February 2017, prior to his rescheduled sentencing,
Leyva filed a motion to withdraw his guilty plea. He argued
that his plea was “not knowing or voluntary” because the trial
court “did not fully follow the procedures that [Federal Rule of
Criminal Procedure 11] states must be followed” during the
plea colloquy. He further asserted that “[b]ut for the Court’s
failure to follow the mandate of Rule 11, [he] would not have
pled guilty.” The district court denied the motion on the
grounds that it had substantially complied with Rule 11 and that
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Leyva had “admitted facts under oath in several contexts which
make his claim of innocence utterly improbable.” The district
court therefore proceeded with sentencing.
Leyva did not dispute his base offense level, but he
objected to the enhancements recommended by the PO.
Although the Government had initially concurred with the
recommendations in the PSR, it decided to oppose the
adjustment for acceptance of responsibility because Leyva had
attempted to withdraw his guilty plea.
The district court conducted an evidentiary hearing lasting
three days. The Government presented the testimony of Tom
Hatherley and Paul Peschka, case agents from the Department
of Homeland Security and the Federal Bureau of Investigation,
respectively. They testified about the statements of three
witnesses to the defendant’s activities, whom they had
interviewed: (1) Jesus Zambada Garcia, a member of the
Sinaloa Cartel; (2) Sergio Villarreal Barragan, a member of the
DTO responsible for security; (3) Harold Mauricio Poveda
Ortega, who served as a broker between Colombian cocaine
suppliers and the DTO.
Based upon the evidence introduced at the hearing, the
district court applied all the five enhancements recommended
in the PSR. 1 The court also held the defendant did not qualify
for a downward adjustment for acceptance of responsibility.
Defendant’s final offense level was therefore 50 — which is
treated as the maximum 43 under USSG ch. 5, pt. A, cmt. n.2
1
The PO had based the PSR on the 2015 Guidelines, but by the time
Leyva was sentenced, in April 2017, the 2016 Guidelines were in
effect. For the purposes of this case, there is no material difference
between the 2015 and 2016 versions.
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— producing a Guidelines “range” of life imprisonment. After
considering the factors in 18 U.S.C. § 3553, the court found
“no basis to depart down” and imposed a life sentence. In
addition, the court determined “the defendant obtained
proceeds of at least $529.2 million” as a result of his
involvement in the conspiracy and ordered forfeiture in that
amount. Leyva now appeals the denial of his motion to
withdraw his guilty plea, his sentence, and the forfeiture.
II. Motion to Withdraw Guilty Plea
Leyva argues that the district court erred in refusing to
permit him to withdraw his guilty plea. Generally,
“[w]ithdrawal of a guilty plea before sentencing is liberally
granted.” United States v. Ford, 993 F.2d 249, 251 (D.C. Cir.
1993). On appeal, however, this court “reviews a district
court’s refusal to permit withdrawal only for abuse of
discretion.” United States v. Curry, 494 F.3d 1124, 1128 (D.C.
Cir. 2007) (citations omitted) (cleaned up).
In determining whether the district court abused its
discretion, this court considers three factors: (1) “whether the
defendant has asserted a viable claim of innocence,” (2)
“whether the delay between the guilty plea and the motion to
withdraw has substantially prejudiced the Government’s
ability to prosecute the case,” and (3) “whether the guilty plea
was somehow tainted” by a violation of Rule 11. Ford, 993
F.2d at 251 (cleaned up). We clarified in United States v. Cray
that the third factor is all but dispositive. 47 F.3d 1203, 1207
(D.C. Cir. 1995) (“[N]one of our cases would have been
decided differently if the only inquiry undertaken were whether
the defendant’s guilty plea was taken in compliance with Rule
11”). If the district court did not conduct the plea colloquy in
“substantial compliance” with Rule 11, then the defendant
should “almost always” be permitted to withdraw his plea.
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Ford, 993 F.2d at 251. At the same time, “a defendant who
fails to show some error under Rule 11 has to shoulder an
extremely heavy burden if he is ultimately to prevail.” Cray,
47 F.3d at 1208.
The Government does not argue that the withdrawal of
Leyva’s plea would have prejudiced it at trial. Accordingly,
our review focuses upon the first and third factors.
A. Compliance with Rule 11
With regard to the third and most important factor, Leyva
contends the district court violated Rule 11 because it failed to
inform him (a) of his right to counsel, including his right to
appointed counsel, if necessary (Rule 11(b)(1)(D)); (b) that in
determining a sentence, the court must consider the applicable
Sentencing Guidelines range and the factors in 18 U.S.C.
§ 3553(a) (Rule 11(b)(1)(M)); and (c) that he would be subject
to “any applicable forfeiture” (Rule 11(b)(1)(J)).
Rule 11(b)(1) requires the district court to “inform the
defendant of, and ensure the defendant understands” all the
information listed in that subsection. Rule 11(h), however,
excuses a variance from the requirements of the rule if the error
is harmless. The Congress added this provision in order to “end
the practice … of reversing automatically for any Rule 11
error.” United States v. Vonn, 535 U.S. 55, 66 (2002).
Accordingly, this court has made clear “we will not reverse a
trial court in its application of Rule 11 except when it has failed
to address the Rule’s core inquiries.” Ford, 993 F.2d at 254.
We have also held a district court’s variance from the
requirements of Rule 11 is harmless if “the record reveals either
that the defendant had actual notice of the information that the
district judge failed to convey or that the information would not
9
have been important to the defendant.” United States v.
Dewalt, 92 F.3d 1209, 1213–14 (D.C. Cir. 1996).
We hold that Leyva’s plea proceeding substantially
complied with the requirements of Rule 11 and that any
deviations were harmless. First, as to his right to counsel,
Leyva had actual knowledge of the relevant information. He
was already represented by counsel at the time of the plea
hearing; the district court confirmed he was satisfied with that
representation. For the same reason, information about his
right to appointed counsel would not have been important to
Leyva.
Second, we hold the district court communicated the
essential information required by Rule 11(b)(1)(M): “in
determining a sentence, the court’s obligation to calculate the
applicable sentencing-guideline range and to consider that
range, possible departures under the Sentencing Guidelines,
and other sentencing factors under 18 U.S.C. § 3553(a).”
Although the court did not explicitly reference the Guidelines,
it did inform Leyva of the statutory maximum and mandatory
minimum sentences, and that the court would not be able to
determine his exact sentence “until after a presentence report
has been completed.” The district court also explicitly
instructed the defense attorneys — during the plea hearing, in
Leyva’s presence — to focus on the § 3553 factors in their
sentencing memoranda.
These statements addressed the “core considerations,”
Ford, 993 F.2d at 253, of Rule 11(b), as identified by this court
in United States v. Horne, 987 F.2d 833 (D.C. Cir. 1993).
There we said the trial court “uses the Rule 11 colloquy to
dispel any misconceptions that the defendant may have about
his likely sentence and to ensure that his plea is ‘not the result
… of promises apart from a plea agreement.’” Id. at 838
 10
(quoting what is now Fed. R. Crim. P. 11(b)(2)) (alteration in
original). It is “neither unfair nor unjust,” therefore, to hold the
defendant to his plea when, as here, “he was warned by the
court of his maximum exposure and of the impossibility of
determining the applicable sentencing range prior to the
preparation of the presentence report.” Id. at 837.
Finally, Leyva had already been informed of the
possibility of forfeiture through the indictment, which the
district court confirmed he had read, reviewed with counsel —
including in Spanish — and understood. Our decision in Ford
is not to the contrary. In that case we held the district court had
failed to ensure the defendant understood “the nature of the
charge to which the plea is offered,” as required by Rule 11,
even though the court had asked whether the defendant “had
seen, read, discussed with his attorney, and understood the
indictment.” 993 F.2d at 253 (applying an earlier version of
what is now Rule 11(b)(1)(G)). In other words, that a
defendant has read the indictment does not establish that he
understood “the nature of the charge.” Effective notice of the
nature of the charge means “notice sufficient to give the
defendant ‘an understanding of the law in relation to the facts’
of his case,” so he can assess the Government’s ability to prove
his conduct falls within the charge. Dewalt, 92 F.3d at 1211
(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)).
So defined, the nature of the charge may not be apparent on the
face of the indictment. In Dewalt, for instance, we held the
district court should have explained the mens rea element of
the charge, viz., that the defendant “knowingly received and
possessed a firearm.” 92 F.3d at 1214.
In contrast, the defendant’s objection in the present case
concerns the district court’s obligation to inform him, pursuant
to Rule 11(b)(1)(J), that he will be subject to “any applicable
forfeiture.” Before the court determines the amount of the
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forfeiture, there is nothing to be said except that the defendant
may be subject to a forfeiture, and the indictment did just that.
Indeed, the terms of the indictment were “crystal clear,” United
States v. Lee, 888 F.3d 503, 508 (D.C. Cir. 2018):
The United States hereby gives notice to the defendant that
upon conviction of the Title 21 offense alleged in Count
One of this Indictment, the government will seek forfeiture
in accordance with Title 21, United States Code, Sections
853 and 970, of all property constituting or derived from
any proceeds the defendant obtained directly or indirectly
as a result of the alleged Title 21 violation, and all property
used or intended to be used in any manner or part to
commit and to facilitate the commission of such offense.
For these reasons, we conclude Leyva had actual notice of the
possibility of forfeiture.
Although we find the district court’s plea colloquy with
Leyva was in substantial compliance with Rule 11, we do not
approve of the district court’s omissions. Our ruling today
“should not be read as an invitation to trial judges to take a
more casual approach to Rule 11 proceedings.” Lee, 888 F.3d
at 509 (quoting Fed. R. Crim. P. 11(h), Advisory Committee
Notes to 1983 Amendments). To the contrary, we emphasize
that it is best practice diligently to communicate all the
information listed in Rule 11(b)(1).
B. Viable Claim of Innocence
That the defendant did not assert a viable claim of
innocence lends further support to the district court’s decision
not to allow him to withdraw his guilty plea. Our cases have
not always been precise in describing this factor. We have
sometimes “characterized [it] as requiring a ‘legally cognizable
12
defense’ rather than as requiring a viable claim of innocence.”
Curry, 494 F.3d at 1129.
The distinction makes no difference in this case, however.
Leyva has admitted “the essential elements of the charge: that
he was part of the conspiracy to distribute controlled
substances.” He makes no claim of innocence, let alone a
viable one.
The only “defense” Leyva did assert before the district
court was that “as a legal matter he believed that the Court
lacked jurisdiction over him” because, according to Leyva,
Mexico authorized his extradition solely with respect to
conduct that occurred after January 2008. But even our cases
calling only for a “legally cognizable defense” have required
that the defendant have “effectively denied his culpability,”
United States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975),
which Leyva has not done. In any event, Leyva had raised this
objection, and the district court had rejected it, before Leyva
entered his plea of guilty. Consequently, he had nothing to gain
in this regard by withdrawing his plea and proceeding to trial.
The district court therefore did not abuse its discretion in
denying the defendant’s motion to withdraw his guilty plea.
See Curry, 494 F.3d at 1129 (finding no abuse of discretion
where the defendant’s defense “had a very limited chance of
success”).
III. Sentencing Issues
Leyva challenges two aspects of his sentence. First, he
objects to the 12 points in sentencing enhancements the district
court applied. Second, he contends that the district court erred
in denying him a three-point adjustment for acceptance of
responsibility.
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Leyva asserts various errors with respect to each
enhancement; the one argument common to all five is that the
evidence establishing the relevant conduct was unreliable. “It
is the Government’s burden to demonstrate by a fair
preponderance of the evidence that an enhancement is
warranted.” United States v. Bapack, 129 F.3d 1320, 1324
(D.C. Cir. 1997) (cleaned up). In resolving a factual dispute
related to sentencing, the Guidelines permit a district court to
“consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” USSG § 6A1.3(a).
Accordingly, Leyva’s argument is that the evidence relied upon
by the district court lacked “sufficient indicia of reliability.”
An appellate court generally “reviews the factual findings
supporting a sentence under the Sentencing Guidelines for
clear error.” United States v. Stover, 329 F.3d 859, 871 (D.C.
Cir. 2003). This court has not specified the standard of review,
however, for a district court’s determination that evidence is
“reliable” under USSG § 6A1.3(a). See In re Sealed Case, 246
F.3d 696, 700 (D.C. Cir. 2001) (deeming the evidence reliable
under de novo review without deciding the applicable
standard).
Leyva argues the reliability of evidence is a “legal issue
reviewable de novo.” We disagree. Far from being a pure issue
of law, a district court’s determination of reliability during a
sentencing hearing is akin to an evidentiary ruling at trial,
which we review for abuse of discretion, see United States v.
Mathis, 216 F.3d 18, 27-28 (D.C. Cir. 2000); see also In re
Sealed Case, 350 F.3d 113, 124 (D.C. Cir. 2003) (reviewing
evidentiary rulings at sentencing for abuse of discretion). A
district court’s decision to rely upon hearsay is necessarily a
judgment about the credibility of both the witness and the
14
declarant. See, e.g., United States v. Agyemang, 876 F.2d 1264,
1272 (7th Cir. 1989) (finding no abuse of discretion in relying
upon hearsay evidence of an identification where the defendant
cross-examined the witness and was able to point out
weaknesses in the declarant’s identification). We give
“especially strong deference to credibility determinations
because the district court has a unique opportunity to evaluate
the credibility of witnesses and to weigh the evidence.” United
States v. Jones, 744 F.3d 1362, 1367 (D.C. Cir. 2014). We
therefore join the majority of our sister circuits in holding that
abuse of discretion is the appropriate standard for reviewing a
district court’s evaluation of the reliability of hearsay evidence
at sentencing. See United States v. Rodriguez, 731 F.3d 20, 31
(1st Cir. 2013); United States v. Pineda, 770 F.3d 313, 318 (4th
Cir. 2014); United States v. Moncivais, 492 F.3d 652, 658 (6th
Cir. 2007); United States v. Tapias, 610 F.3d 505, 514 (7th Cir.
2010); United States v. Sheridan, 859 F.3d 579, 583 (8th Cir.
2017); United States v. Hernandez-Guerrero, 633 F.3d 933,
935 (9th Cir. 2011); United States v. Kendrick, 697 F. App’x
622, 623 (11th Cir. 2017) (unpublished); see also United States
v. Ryan, 806 F.3d 691, 693 (2d Cir. 2015) (applying the clear
error standard); United States v. Jones, 514 Fed. App’x 229,
232 (3d Cir. 2013) (unpublished) (same); United States v.
Ortega-Calderon, 814 F.3d 757, 760 (5th Cir. 2016) (same);
United States v. Martinez, 824 F.3d 1256, 1261 (10th Cir.
2016) (same).
A. Leadership Enhancement under § 3B1.1(a)
In order to apply the four-level enhancement for being an
organizer or leader of criminal activity under USSG
§ 3B1.1(a), the district court must find it was “more likely than
not that the defendant led, managed, or supervised the crime.”
Bapack, 129 F.3d at 1324. The district court identified two
pieces of evidence supporting its conclusion that Leyva was a
15
leader of the cartel. First, “[a]ll three cooperating witnesses …
reported that the defendant was the top authority in charge of
controlling various geographic areas in Mexico that were
critical to the Beltran Leyva drug trafficking organization.” As
the district court highlighted, Poveda and Villarreal provided
details about the defendant’s control of one such area,
Culiacán. According to them, the importance of Culiacán as a
hub for the DTO meant that Leyva was the principal person in
“control of the [DTO’s] trafficking of narcotics into the United
States.” Second, Poveda and Villarreal reported the defendant
met with the leaders of the Sinaloa Cartel in order to coordinate
joint ventures, indicating his authority to speak on behalf of the
DTO.
Leyva argues this evidence is unreliable for two reasons.
First, the statements of Poveda and Villarreal are hearsay,
relayed to the court by case agents Hatherly and Peschka; the
cooperators themselves did not testify. The Sentencing
Guidelines, however, expressly permit consideration of
“reliable hearsay.” USSG § 6A1.3 cmt. Even “out-of-court
declarations by an unidentified informant may be considered
where there is good cause for the non-disclosure of the
informant’s identity and there is sufficient corroboration by
other means.” Id. The question before us, then, is whether
there was sufficient corroboration to make the hearsay reliable.
Here, the district court took care to rely only upon facts
substantiated by more than one cooperator. See Jones, 744
F.3d at 1367 (affirming the defendants’ sentences where the
district court “relied only on testimony corroborated by at least
one … other witness[]”). Further, the court explained, “Poveda
had personal knowledge of the ultimate authority that the
defendant exercised over critical pieces of the drug trade
because he was in charge of supplying drugs to the
organization.” Zambada confirmed that “Poveda was a main
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supplier of cocaine to the Beltran Leyva Organization.” The
court also determined “Villarreal had personal knowledge of
the defendant’s position because his job was to work with
defendant’s security employees to secure the defendant.” On
this record, the district court did not abuse its discretion in
holding the hearsay evidence reliable.
Leyva also levies a barrage against the character and
incentives of Poveda and Villarreal, and, for that matter,
Zambada: They may have been hoping to curry favor with the
Government; Zambada may have believed Leyva had
“something to do with the murder of his son”; Poveda was a
“drug kingpin” with a violent criminal history; Zambada and
Villarreal were drug addicts; Villarreal was “a corrupt
policeman” and “a sadistic multiple murderer.” He reiterates
these objections with respect to each of the enhancements; we
reject them here, once and for all.
At the outset, we observe that Leyva’s attorneys cross-
examined the FBI agents at length about the co-conspirators’
cooperation agreements and bad acts. The district court was
therefore “well aware of the cooperators’ credibility issues.”
Jones, 744 F.3d at 1367. More important, Leyva’s attacks are
too general. As we said in Jones, “while such facts may
undercut the cooperators’ credibility generally, they do not
establish that it was implausible for the district court to credit
particular aspects of their testimony, especially where, as here,
the cooperators offered mutually corroborative accounts.” Id.;
accord United States v. Bell, 795 F.3d 88, 106 (D.C. Cir. 2015).
After all, “the testimony of co-conspirators … is often credited
if other indicia of reliability are present,” In re Sealed Case,
246 F.3d 696, 701 (D.C. Cir. 2001).
In short, because the reports were mutually corroborative
and the district court took due care in weighing the evidence,
17
we conclude the court did not abuse its discretion in crediting
the cooperators’ statements.
B. Weapons Enhancement under § 2D1.1(b)(1)
In order to justify imposing a two-level enhancement for
possession of a “dangerous weapon,” the Government must
show that the “weapon (including a firearm) was possessed” in
connection with a drug offense. USSG § 2D1.1(b)(1); see also
Mathis, 216 F.3d at 27. Here, the weapon in question is a pistol
inscribed with “El Aguila” — Spanish for “the Eagle” — that
the defendant carried “as he conducted drug trafficking
business.” In finding that Leyva possessed the pistol, the
district court cited the Mexican evidence report on Leyva’s
arrest, which indicated that he was captured with the pistol.
Additionally, the court credited Zambada’s and Villarreal’s
reports of having witnessed the defendant in possession of a
pistol.
As with the leadership enhancement, the district court did
not abuse its discretion in relying upon this hearsay evidence.
Zambada’s and Villarreal’s statements were corroborated not
only by one another, but also by the Mexican evidence report.
Leyva responds that the district court should not have
considered the Mexican report because police reports generally
do not fall within Federal Rule of Evidence 803(8) — the
public records exception to the hearsay rule — in criminal
cases. See Fed. R. Evid. 803(8)(A)(ii) (excluding “a matter
observed by law-enforcement personnel”); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 321-22 (2009). As he
acknowledges, however, the Federal Rules of Evidence do not
apply at sentencing. Fed. R. Evid. 1101(d)(3). To the extent
he argues the exclusion of police reports from Rule 803(8) casts
doubt upon the reliability of police reports as such, see Fed. R.
18
Evid. 803, Advisory Committee Notes to 1974 Enactment
(“Ostensibly, the reason for this exclusion is that observations
by police officers … are not as reliable as observations by
public officials in other cases because of the adversarial nature
of the confrontation between the police and the defendant in
criminal cases.”), his objection has little force here: The
Government relied upon the report only for its photographs of
the items seized at the time of the defendant’s arrest, and not
for any other aspect of the Mexican investigation. Under these
circumstances, the district court was well within its discretion
to admit those portions of the report for the “limited purpose”
of corroborating the cooperators’ accounts. See Joint
Appendix (J.A.) 375. We therefore hold the district court did
not abuse its discretion in considering the evidence from
Zambada and Villarreal or clearly err in finding the gun
belonged to the defendant.
Leyva also challenges the weapons enhancement by
claiming this particular pistol was an inoperable collector’s
item, but that is of no moment: Since 2000, the Sentencing
Commission has defined “dangerous weapon” to include “an
object that is not an instrument capable of inflicting death or
serious bodily injury but … closely resembles such an
instrument.” USSG § 1B1.1 cmt. n.1(D); see also United
States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989)
(concluding the term “firearm” under USSG 2D1.1(b) includes
inoperable as well as operable firearms). A collector’s model
of a pistol certainly comes within this definition. Leyva does
not suggest the item at issue differed in appearance from an
operable firearm. Accordingly, we hold a firearm is a
“dangerous weapon” within the meaning of § 2D1.1 regardless
whether it is capable of being fired.
19
C. Adjustment for Acceptance of Responsibility under
§ 3E1.1(a)
With respect to the sentencing enhancements for the use of
violence, for bribery, and for being a leader directly involved
in the importation of a controlled substance, Leyva again
argues the evidence was insufficiently reliable and contends,
for the first time on appeal, that the application of those
enhancements violates the Ex Post Facto Clause of the U.S.
Constitution because the enhancements were added to the
Sentencing Guidelines after he engaged in the relevant
conduct.
In order to “avoid the unnecessary resolution of
constitutional questions,” Nw. Austin Mun. Util. Dist. No. One
v. Holder, 557 U.S. 193, 197 (2009), we turn first to Leyva’s
claim that the district court should have granted him an
adjustment for acceptance of responsibility under USSG
§ 3E1.1(a). Having already upheld six points in enhancements,
if we deny Leyva the adjustment for acceptance of
responsibility — as we do — then Leyva will have a final
offense level of at least 44. Because any offense level above
43 is treated as 43, the maximum, any error with respect to the
other three enhancements would not affect his sentence, see
USSG ch. 5, pt. A, cmt. n.2l, and we would have no occasion
to reach his Ex Post Facto argument.
The district court’s conclusion that a defendant has not
“clearly demonstrated acceptance of responsibility” within the
meaning of USSG § 3E1.1(a) is an application of the
Guidelines to the facts, which this court reviews under a due
deference standard. United States v. Rodriguez, 676 F.3d 183,
192 (D.C. Cir. 2012). Due deference review lies “somewhere
between de novo and ‘clearly erroneous’” review. United
States v. Cano-Flores, 796 F.3d 83, 90 (D.C. Cir. 2015).
20
It is the defendant’s burden to convince the district court
that he is entitled to the downward adjustment for acceptance
of responsibility. United States v. McLean, 951 F.2d 1300,
1302 (D.C. Cir. 1991). Even a “defendant who enters a guilty
plea is not entitled to an adjustment … as a matter of right.”
United States v. Saani, 650 F.3d 761, 767 (D.C. Cir. 2011)
(quoting USSG § 3E1.1 cmt. n.3).
The transcript of the sentencing hearing indicates the
district court denied the downward adjustment because the
defendant falsely minimized his role in the conspiracy. The
court explained, “I think he has sought to avoid responsibility,
to the extent that he could, and minimize his involvement and
role here.”
Our case law is clear: It is not error for a district court to
“require an acceptance of responsibility that extended beyond
the narrow elements of the offense” to “all of the
circumstances” surrounding the defendant’s offense. United
States v. Taylor, 937 F.2d 676, 680–81 (D.C. Cir. 1991). The
Application Notes to § 3E1.1 provide, “A defendant who
falsely denies … relevant conduct that the court determines to
be true has acted in a manner inconsistent with acceptance of
responsibility ….” USSG § 3E1.1 cmt. n.1(A). Relevant
conduct includes the defendant’s leadership role. See, e.g.,
United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992) (“[A]
defendant who is found to have had a leadership role in the
offense does not fully accept responsibility for purposes of
§ 3E1.1 if, despite his admission of all elements of the offense
of conviction, he nevertheless attempts to minimize his
leadership role”).
Having upheld the district court’s finding that Leyva was
“one of the leaders” of the DTO, we cannot say it was
21
unreasonable for the district court to conclude Leyva failed to
accept responsibility when he falsely denied being a leader.
Leyva would confess and avoid on the ground that he “merely
sought to require the Government to justify enhancements
through reliable information.” Leyva’s motivation for denying
his leadership role is immaterial, however; he cannot accept
responsibility for his conduct and simultaneously contest the
sufficiency of the evidence that he engaged in that conduct.
D. Enhancements under §§ 2D1.1(b)(2), (11), (15)(C)
Because we affirm the district court’s denial of the
adjustment for acceptance of responsibility, as well as its
application of six points in enhancements, Leyva has a final
offense level of at least 44. Therefore, as explained in Part III.C
above, we do not need to reach his arguments against the
enhancements for using violence, bribing a law enforcement
official, and being a leader directly involved in the importation
of a controlled substance. We pause to note only that applying
these enhancements would present a serious Ex Post Facto
question if we had occasion to reach the merits and if the
objection had been properly preserved.
IV. Forfeiture Issues
Leyva’s final challenges are to the forfeiture element of his
sentence. Pursuant to 21 U.S.C. § 853(a)(1), “Any person
convicted of [certain crimes] punishable by imprisonment for
more than one year shall forfeit to the United States … any
property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation.”
Section 970 makes this provision applicable to the controlled
substances crimes of which Leyva was convicted.
22
The district judge ordered Leyva to forfeit $529.2 million.
To arrive at that figure, the court estimated that Leyva’s
organization transported 25,200 kilograms of cocaine from
Culiacán to the border during a single three-month period. The
court then multiplied that amount by $21,000 per kilogram, the
price of cocaine on the Mexican side of the border according to
the Drug Enforcement Administration (DEA).
A district court uses a preponderance of the evidence
standard in determining the appropriate amount of a forfeiture.
See, e.g., United States v. Capoccia, 503 F.3d 103, 116 (2d Cir.
2007). “In an appeal from a criminal forfeiture proceeding,” as
usual, “we review the district court’s fact finding for clear error
and the district court’s legal interpretations de novo.” United
States v. Emor, 785 F.3d 671, 676 (D.C. Cir. 2015) (citations
omitted).
Leyva does not take issue with the price per kilogram used
by the district court. He likewise concedes that “proceeds” in
§ 853 means gross receipts, not net profits. He objects only to
the amount of cocaine attributed to him.
First, Leyva argues the district court’s calculation of the
quantity of cocaine was based upon unreliable evidence. The
court principally relied upon evidence from Villarreal, who
conducted a security evaluation of Leyva’s outfit in Culiacán
for three to six months in 2005. Villarreal reported seeing
planes being loaded with cocaine in Culiacán to be flown to the
U.S. border. We review for abuse of discretion the district
court’s decision to credit Villarreal’s evidence in determining
the amount to be forfeited. Cf. Libretti v. United States, 516
U.S. 29, 39 (1995) (holding criminal forfeiture is an aspect of
sentencing).
23
We see no abuse of discretion in this case. Leyva reiterates
his attacks on Villarreal’s hearsay evidence and poor character,
rejected above. Leyva also likens his case to United States v.
Nava, 404 F.3d 1119 (9th Cir. 2005), which is wholly
inapposite. Unlike the district court in Nava, the court here did
not rely upon conflicting or ambiguous reports. The court
found Villarreal’s hearsay evidence to be credible because he
was “actually present and witnessed defendant oversee and
direct the air shipments of cocaine.” In addition, the
Government presented evidence from Poveda that Leyva
purchased several hundred thousand kilograms of Colombian
cocaine from 2004 to 2008. The court treated Poveda’s
account of Leyva’s cocaine supply as corroboration for
Villarreal’s testimony.
Second, Leyva argues the amount of the forfeiture exceeds
the “outer bounds of reasonableness” because it is “based on
unreliable assumptions and unsound reasoning.” We realize
that extrapolation can create a significant risk of error,
depending upon the predicate values used. See, e.g., United
States v. Candelaria-Silva, 714 F.3d 651, 658 (1st Cir. 2013)
(“[W]here, as here, a drug quantity determination relies on
multiples of averages or extrapolations, the sentencing court
must be mindful of the potential for error where one conclusory
estimate serves as the multiplier for another”). A district court
should therefore err on the side of caution, using only reliable
or conservative estimates.
To that end, the district court used low-end estimates of
what Villarreal said were (1) the number of planes departing at
a time; (2) the number of trips the planes made per week; (3)
the amount of cocaine per plane; and (4) the amount of time
Villarreal spent with the defendant. Thus, although Villarreal
said he saw “caravans of seven to ten planes,” the court used
seven. Villarreal said the caravans left “one or two times a
24
week”; the court used one. Villarreal said there were
“approximately 300 to 350 kilograms of cocaine per plane”; the
court used 300 kilograms. Villarreal said he was in Culiacán
with the defendant for “approximately three to six months”; the
court used 12 weeks. Moreover, the court’s calculation
covered only the period that Villarreal actually witnessed, not
the full duration of the conspiracy.
In sum, the $529.2 million forfeiture was a conservative
estimate of the revenue obtained by the operation in Culiacán
that Leyva personally oversaw. On this record, we find no clear
error in the court’s calculation of the proceeds of Leyva’s
criminal activities.
Last, Leyva argues the Government failed to show that the
entire $529.2 million allegedly earned by the drug organization
was personally acquired by the defendant, as required by
Honeycutt v. United States, 137 S. Ct. 1626 (2017), and Cano-
Flores, 796 F.3d 83. Because the defendant is raising this
objection for the first time on appeal, we review the record for
plain error. United States v. Wheeler, 753 F.3d 200, 210 (D.C.
Cir. 2014). This means Leyva can prevail only if the district
court committed “(1) an error, (2) that [was] clear or obvious,
(3) that affected the outcome of the district court proceedings,
and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Grey, 891
F.3d 1054, 1058 (D.C. Cir. 2018).
The district court expressly recognized its obligations
under Cano-Flores. The case law, however, was (and is) far
from clear that property acquired by an organization cannot
qualify as property “obtained, directly or indirectly” by a leader
of that organization. In Cano-Flores, we held the district court
erred in attributing to the defendant $15 billion in proceeds
earned by the entire cartel of which the defendant was a mid-
25
level member; the district court had done so on the theory that
those proceeds were “reasonably foreseeable” by him. 796
F.3d at 91. We also stated, however, that property obtained
“indirectly” might include “property received by persons or
entities that are under the defendant’s control,” such as “an
employee or other subordinate of the defendant.” Id. at 92.
Leyva, unlike Cano-Flores, was a leader of his organization,
and the district court attributed to him only proceeds from
activities directly supervised by Leyva in Culiacán. As a result,
this case comes within the exception that we described in
Cano-Flores.
Honeycutt, like Cano-Flores, did not involve the leader of
an organization, and hence did not close this potential
exception. There the manager of a hardware store was found
guilty of conspiring with the owner of the store to sell iodine
with the knowledge it would be used to manufacture
methamphetamine. 137 S. Ct. at 1630. The Supreme Court
held the defendant could not be held liable for forfeiture of the
proceeds because he was merely a salaried employee who “did
not personally benefit” from the sales. Id. at 1631, 1635.
Finally, we note that even now Leyva does not specify
what amount should have been excluded from the court’s
calculation of his gross receipts. For both reasons, we could
not deem any error by the district court “clear or obvious.”
V. Conclusion
The district court, which substantially complied with the
requirements of Rule 11, did not abuse its discretion in denying
Leyva’s motion to withdraw his guilty plea. The appellant’s
various objections to his sentence and the forfeiture imposed
by the court are unavailing for the reasons given above.
26
The judgment of the district court is, therefore,
Affirmed.