Filed: Jan. 13, 2012
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JANUARY 13, 2012 No. 11-10036 Non-Argument Calendar JOHN LEY CLERK _ D.C. Docket No. 8:10-cr-00098-EAK-TBM-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus REYNALDO PEREZ, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ No. 11-10037 Non-Argument Calendar _ D.C. Docket No. 8:10-cr-00098-EAK-TBM-2 UNITED STATES
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JANUARY 13, 2012 No. 11-10036 Non-Argument Calendar JOHN LEY CLERK _ D.C. Docket No. 8:10-cr-00098-EAK-TBM-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus REYNALDO PEREZ, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ No. 11-10037 Non-Argument Calendar _ D.C. Docket No. 8:10-cr-00098-EAK-TBM-2 UNITED STATES ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 13, 2012
No. 11-10036
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 8:10-cr-00098-EAK-TBM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
REYNALDO PEREZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
No. 11-10037
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cr-00098-EAK-TBM-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JESUS CARREON, III,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(January 13, 2012)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Reynaldo Perez and Jesus Carreon, III, appeal their 235-month sentences for
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii), and possession with intent
to distribute 5 kilograms or more of cocaine, in violation of § 841(a)(1),
(b)(1)(A)(ii), and 18 U.S.C. § 2. On appeal, both defendants argue that the district
court erred by (1) incorrectly determining the drug quantities attributable to them,
and (2) failing to apply a two-level reduction for acceptance of responsibility to
each of their sentences. Perez also challenges the district court’s imposition of the
2
obstruction of justice enhancement to his sentence.1 Upon review of the record
and consideration of the parties’ briefs, we affirm.
I. Drug Quantities
“We review de novo the application of the sentencing guidelines and
findings of fact for clear error.” United States v. Louis, 559 F.3d 1220, 1224 (11th
Cir. 2009). We also review a district court’s finding of drug quantity for clear
error. United States v. Smith,
240 F.3d 927, 930-31 (11th Cir. 2001). The
government bears the burden of establishing drug quantity by a preponderance of
the evidence. United States v. Rodriguez,
398 F.3d 1291, 1296 (11th Cir. 2005).
When the drug amount that is seized does not reflect the scale of the
offense, the court must approximate the drug quantity. United States v. Frazier, 89
F.3d 1501, 1506 (11th Cir. 1996) (citing U.S.S.G. § 2D1.1, comment (n.12)). In
making this determination, the court may rely on “the price generally obtained for
the controlled substance . . . [and] similar transactions in controlled substances by
the defendant,” U.S.S.G. § 2D1.1, comment (n.12), and “evidence showing the
average frequency and amount of a defendant’s drug sales over a given period of
1
Carreon adopted to the extent applicable Perez’s brief on appeal, but Perez’s brief
regarding the obstruction of enhancement only applied to Perez, so Carreon’s adoption of that
portion of the brief did not suffice to raise an argument regarding the district court’s imposition
of the enhancement to his sentence.
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time.” Frazier, 89 F.3d at 1506. This determination “may be based on fair,
accurate, and conservative estimates of the quantity of drugs attributable to a
defendant . . . [but it] cannot be based on calculations of drug quantities that are
merely speculative.” United States v. Zapata,
139 F.3d 1355, 1359 (11th Cir.
1998). We accord substantial deference to a sentencing court’s credibility
determinations in assessing drug quantity. See United States v. Clay,
483 F.3d
739, 744 (11th Cir. 2007).
Here, in determining that Carreon was responsible for greater than 50
kilograms of cocaine, the district court considered the three previous transactions
Carreon admitted to participating in. Carreon admitted that payment from his
previous deliveries ranged from $300,000 to $1 million, and, without objection,
the probation officer stated at the sentencing hearing that $300,000 converts to 15
kilograms of cocaine. Thus, even considering only one of Carreon’s previous
admitted deliveries of cocaine and using a calculation based on the lowest
payment range that Carreon provided, this amount (15 kilograms), along with the
40 kilograms that were seized during Carreon’s arrest, is above the 50 kilogram
drug quantity necessary to establish a base offense level of 36. As to Perez, he
previously admitted to making another cocaine delivery for which he was paid
$3,000, the same amount he was paid for the trip during which the 40 kilograms of
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cocaine was seized, and that since he was paid the same amount, he believed that
the same amount of cocaine was being delivered during the previous trip. Adding
the 40 kilograms from the previous delivery to the 40 kilograms seized during
Perez’s arrest yields an attributable amount over the 50 kilogram quantity
necessary to establish a base offense level of 36. Because the evidence supports
the finding that both defendants were responsible for at least 50 kilograms of
cocaine, the district court did not clearly err in determining drug quantity.
II. Obstruction of Justice Enhancement
We review a district court’s factual findings for an obstruction of justice
enhancement based on perjury for clear error, and we accord great deference to the
credibility determinations made by the court. United States v. Singh, 291 F.3d
756, 763 (11th Cir. 2002). Pursuant to U.S.S.G. § 3C1.1, a defendant’s sentence
may be enhanced by two levels if he (1) “willfully obstructed or impeded ‘the
course of the investigation, prosecution, or sentencing of the instant offense of
conviction,’ and (2) the obstructive conduct related to either the offense of
conviction or any relevant conduct.” United States v. Frasier,
381 F.3d 1097,
1099 (11th Cir. 2004) (quoting U.S.S.G. § 3C1.1). Committing perjury and
“providing materially false information to a judge or magistrate judge” constitute
an obstruction of justice under § 3C1.1. U.S.S.G. § 3C1.1, comment (n.4(b), (f)).
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When applying an obstruction of justice enhancement, the district should
make specific findings as to each allegation of obstruction by identifying each
materially false statement. Singh, 291 F.3d at 763. However, “we may affirm a
district court’s enhancement even absent particularized findings regarding the
defendant’s perjury so long as the district court found in general that the
defendant’s testimony was perjurious as to material matters and the record
supports that finding.” United States v. Hatney,
80 F.3d 458, 463 (11th Cir.
1996).
Perez’s sole argument with respect to the obstruction of justice enhancement
is that the district court erred in failing to make an independent factual finding that
he gave perjured testimony on a material matter.2 Perez, however, never requested
any particularized findings regarding the perjurious statements at the sentencing
hearing. “Having failed to do so, [Perez] cannot now complain to this court.”
United States v. Hubert, 138 F.3d 912, 915 (11th Cir. 1998). Moreover, the
district court made an express finding that Perez intentionally obstructed justice
and committed perjury in front of the magistrate judge, and this finding was
2
In his reply brief, Perez also argues that any inconsistencies between his statements at
the plea colloquy and his post-arrest statements are immaterial. But because Perez failed to raise
this argument in his initial brief, it is deemed waived. In re Egidi, 571 F.3d 1156, 1163 (11th
Cir. 2009) (“Arguments not properly presented in a party's initial brief or raised for the first time
in the reply brief are deemed waived.”).
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supported by the record, as Perez’s testimony at the change of plea hearing
conflicts with his post-arrest statements regarding his knowledge about the
involvement of another individual in the drug trafficking scheme. The district
court, therefore, did not clearly err in enhancing Perez’s sentence based on a
finding that he obstructed justice.
III. Acceptance of Responsibility
The district court’s determination of acceptance of responsibility is
reviewed for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th
Cir. 2005). Section 3E1.1 allows for a defendant’s offense level to be decreased
by two levels if he “clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. § 3E1.1. “[A] defendant who falsely denies . . . relevant
conduct that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility.”
Id., comment (n.1(A)). Additionally, when a
defendant’s sentence has been enhanced under § 3C1.1 for obstruction of justice,
this ordinarily indicates that he has not accepted responsibility for his criminal
conduct, although there may be extraordinary cases in which both § 3C1.1 and
§ 3E1.1 may apply. U.S.S.G. § 3E1.1, comment. (n.4).
Here, the district court found that the defendants falsely denied relevant
conduct when they both denied delivering at least 50 kilograms of cocaine.
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Further, that the defendants’ sentences were properly enhanced under § 3C1.1 for
obstruction of justice indicates that they had not accepted responsibility, despite
pleading guilty, and the defendants failed to offer any evidence demonstrating that
this was an extraordinary case in which both § 3C1.1 and § 3E1.1 should apply.
The district court, therefore, did not clearly err in refusing to impose a 2-level
downward adjustment for acceptance of responsibility.
AFFIRMED.
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