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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0110p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-1248 v. , > - Defendant-Appellant. - ALFREDO DELAPAZ VASQUEZ, - N Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 01-20052—Thomas L. Ludington, District Judge. Submitted: March 12, 2009 Decided and Filed: March 23, 2009 * Before: MARTI
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0110p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-1248 v. , > - Defendant-Appellant. - ALFREDO DELAPAZ VASQUEZ, - N Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 01-20052—Thomas L. Ludington, District Judge. Submitted: March 12, 2009 Decided and Filed: March 23, 2009 * Before: MARTIN..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0110p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-1248
v.
,
>
-
Defendant-Appellant. -
ALFREDO DELAPAZ VASQUEZ,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 01-20052—Thomas L. Ludington, District Judge.
Submitted: March 12, 2009
Decided and Filed: March 23, 2009
*
Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.
_________________
COUNSEL
ON BRIEF: Martin J. Beres, LAW OFFICES OF MARTIN J. BERES, Clinton
Township, Michigan, for Appellant. Jennifer J. Sinclair, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Alfredo DeLaPaz Vasquez appeals his
convictions and sentencing in the district court. After Vasquez was arrested in 2001 in
an undercover narcotics investigation, he fled the jurisdiction. He was apprehended
again in 2006. A jury then convicted Vasquez of (1) conspiracy to possess with intent
*
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 07-1248 United States v. Vasquez Page 2
to distribute more than five kilograms of cocaine, and (2) aiding and abetting in the
distribution of 500 grams or more of cocaine. He was sentenced to 240 months of
imprisonment on each count, to be served concurrently, and to four years of supervised
release. Vasquez contends on appeal that the district court committed reversible errors
during his trial and sentencing. For the reasons set forth below, we AFFIRM the
judgment of the district court.
I. BACKGROUND
Vasquez was arrested in December 2001 in an undercover drug-bust operation
in Saginaw, Michigan. He had arranged, together with Jose Ove Montes, Jr. and
Vasquez’s brother Juan Delgado Vasquez (Juan), to deliver seven kilograms of cocaine
to Detective Michael Winters, who was then serving as an undercover narcotics officer,
and to Robert Mason, a government informant. Montes, Vasquez, and Juan had traveled
from Texas to Michigan to deliver the cocaine. The record shows that Vasquez actively
participated in negotiations over the price of the drug and in arranging other details of
the delivery. Shortly after the delivery of one kilogram of cocaine to Winters at a gas
station, Vasquez and his confederates were arrested.
Vasquez was released the day following his arrest when he agreed to cooperate
with the government in investigating and prosecuting other drug offenders. But after
making a controlled delivery to another buyer, Vasquez fled from Michigan to Texas and
then to Mexico. Later in December 2001, indictments were issued against Vasquez for
(1) conspiracy to possess with intent to distribute and to distribute five kilograms or
more of cocaine (Count 1), and (2) aiding and abetting the distribution of 500 grams or
more of cocaine (Count 2). An arrest warrant was also issued for him at the time.
Vasquez remained a fugitive for almost five years. He was apprehended in May 2006
in Texas.
The district court appointed attorney Eric Proschek to represent Vasquez at trial
pursuant to the Criminal Justice Act. Vasquez and the government subsequently entered
into a written plea agreement. During the first plea hearing on August 3, 2006, Vasquez
No. 07-1248 United States v. Vasquez Page 3
told the district court that he did not understand English very well and requested an
interpreter. The court continued the hearing so that an interpreter could be provided.
An interpreter was present at the second plea hearing on August 8, 2006, but Vasquez
indicated that he was not ready to plead guilty because he had not reviewed an audio
recording of his phone calls in the drug transaction.
At the hearing, Vasquez also requested a new attorney, telling the court: “Every
time [Proschek and I] meet we don’t understand each other. I don’t feel that he trusts
what I do with the way we talk.” The court denied the request, informing Vasquez that
“you can have an attorney of your own choice if you can afford to hire one. . . . If you
cannot afford a lawyer, I will appoint one for you and the one that has been appointed
by the court is Mr. Proscheck. So those are your options.” Thereafter, the court once
again continued Vasquez’s plea hearing, directed Proschek to use an interpreter when
communicating with Vasquez, and instructed Proschek to inform the court within one
week whether Vasquez wanted to enter a guilty plea or proceed to trial.
Vasquez did not reach a plea agreement with the government. After another
continuance and reassignment to another judge, his trial commenced in October 2006.
During voir dire, the district court addressed the parties regarding correspondence that
the court had received from Vasquez requesting the substitution of counsel. Vasquez
claimed that Proschek had told him “to lie to the judge and lie to the court,” declined to
file motions of his behalf, would not bring evidence to him, showed up without an
interpreter, and refused to provide him with all the discovery obtained from the
government. Proschek denied the accusations and stated that he had attempted to meet
with Vasquez, but that Vasquez had refused to speak to him even when he was
accompanied by an interpreter, that Vasquez and Proschek had no difficulty
communicating in English when Vasquez wished to do so, that Vasquez wanted
Proschek to present arguments and motions unsupported by the law or the evidence, and
that the only discovery he had not discussed with Vasquez was the information he
received during the time that Vasquez had refused to speak with him. After hearing
from Vasquez and Proschek, the district court denied Vasquez’s request.
No. 07-1248 United States v. Vasquez Page 4
A jury subsequently found Vasquez guilty on both counts of the indictment.
Based upon Vasquez’s possession of at least three and a half, but less than five,
kilograms of cocaine, the Presentence Report (PSR) set Vasquez’s base offense level at
30. With a base offense level of 30 and a criminal history category of III, Vasquez’s
initial Sentencing Guidelines range was 121 to 151 months of imprisonment. Vasquez
did not lodge any objections to the PSR. But the government filed five objections,
contending that (1) Vasquez’s base offense level should be 32 because his offense
involved seven kilograms of cocaine; (2) Vasquez should receive a two-level adjustment
for obstruction of justice; (3) Vasquez should receive a two-level adjustment for his
leadership role in the offense; (4) Vasquez’s total offense level should be 36 based upon
objections (1) through (3); and (5) Vasquez’s Guidelines range should be 235 to 293
months of imprisonment based upon a total offense level of 36 and a criminal history
category of III. All of these objections were sustained by the district court, which
sentenced Vasquez to 240 months of imprisonment. This timely appeal followed.
II. ANALYSIS
A. Motion for new counsel
1. Standard of review
We review a district court’s decision regarding an indigent defendant’s motion
for substitute counsel under the abuse-of-discretion standard. United States v.
Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007). An abuse of discretion occurs where
the district court “relies on clearly erroneous findings of fact, improperly applies the law,
or uses an erroneous legal standard.” United States v. Chambers,
441 F.3d 438, 446 (6th
Cir. 2006). A defendant seeking the substitution of counsel must “bring any serious
dissatisfaction with counsel to the attention of the district court.” Benitez v. United
States,
521 F.3d 625, 632 (6th Cir. 2008) (citation and internal quotation marks omitted).
Once a defendant expresses his dissatisfaction with counsel, the district court is obliged
to conduct an inquiry into the defendant’s complaint to determine whether there is good
cause for substitution of counsel.
Id. This court in United States v. Mack,
258 F.3d 548
(6th Cir. 2001), set forth the factors to be considered:
No. 07-1248 United States v. Vasquez Page 5
When reviewing a district court’s denial of a motion to withdraw or
substitute counsel, we generally must consider: (1) the timeliness of the
motion, (2) the adequacy of the court’s inquiry into the matter, (3) the
extent of the conflict between the attorney and client and whether it was
so great that it resulted in a total lack of communication preventing an
adequate defense, and (4) the balancing of these factors with the public’s
interest in the prompt and efficient administration of justice.
Id. at 556 (citation omitted).
The Supreme Court has held that “[t]rial judges necessarily require a great deal
of latitude in scheduling trials. . . . Consequently, broad discretion must be granted trial
courts on matters of continuances; only an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay violates the right to the
assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (citation and internal
quotations marks omitted). “[W]hen the granting of the defendant’s request would
almost certainly necessitate a last-minute continuance, the trial judge’s actions are
entitled to extraordinary deference.” United States v. Whitefield, 259 F. App’x 830, 834
(6th Cir. 2008) (citation and internal quotation marks omitted).
2. Analysis
Vasquez argues that the district court abused its discretion by denying his motion
for new appointed counsel. After Vasquez was indicted in December 2001, he fled the
jurisdiction before his trial could be scheduled. When he was apprehended more than
four years later (in May 2006), his trial was set for August 15, 2006. Vasquez requested
a Spanish-speaking interpreter at his first plea hearing on August 3, 2006, causing his
hearing to be continued until August 8, 2006. At the August 8 hearing, one week before
the trial was scheduled to begin, Vasquez first requested another attorney. The court
denied Vasquez’s request, but granted Vasquez additional time to meet with Proschek
and to decide whether to enter a guilty plea. Vasquez’s trial was subsequently
rescheduled for August 29, 2006. After Vasquez decided not to enter a guilty plea, the
court granted his motion to reschedule his trial for a second time. The trial was reset for
October 17, 2006.
No. 07-1248 United States v. Vasquez Page 6
Less than two weeks before his rescheduled trial was due to begin, Vasquez
again requested substitute counsel in correspondence addressed to the district court.
Vasquez reiterated his desire to have new counsel on the morning that his trial was
scheduled to commence. He articulated a variety of complaints against Proschek.
Proschek denied these allegations and offered an alternative account of their relationship,
which the district court accepted. During his trial, Vasquez again asked the court for
substitute counsel. He stated that Proschek had refused to argue any of the defenses or
to lodge necessary objections that Vasquez thought were applicable.
Proschek responded by pointing out that Vasquez wished to raise issues that
lacked merit. He then read the objections written by Vasquez in English into the record.
Finally, during allocution, the interpreter read into the record Vasquez’s three-page,
double-sided, written English statement alleging various deficiencies in Proschek’s
representation of Vasquez.
We will now apply the Mack factors to the foregoing facts. The first Mack
factor—the timeliness of the motion—weighs against Vasquez. His requests for
substitution of counsel, initially made a week prior to the original trial date and again
made two weeks before the rescheduled trial date, were untimely. See Chambers, 441
F.3d at 447 (finding that the request for substitution of counsel made one and a half
months prior to trial was untimely). The application of this factor thus weighs in favor
of the district court’s decision.
We find that the second Mack factor—the adequacy of the district court’s
inquiry—similarly weighs against a finding of reversible error. The record demonstrates
that the district court engaged in multiple lengthy discussions with both Vasquez and
Proschek that span many transcript pages regarding their alleged conflicts. During these
exchanges, Vasquez had ample opportunity to discuss in detail his complaints regarding
Proschek and to respond to Proschek’s representations regarding their relationship.
Similarly, the third Mack factor weighs against the finding of any error because
the extent of the conflict between Vasquez and Proschek was not so great as to “result
in a total lack of communication preventing an adequate defense.” See Mooneyham, 473
No. 07-1248 United States v. Vasquez Page 7
F.3d at 292 (citation and internal quotation marks omitted). Vasquez’s initial complaint
about Proschek was that the latter did not speak Spanish, making communication
difficult. Proschek disputed Vasquez’s account. We note that, although Vasquez
contended that he needed an interpreter, his written statements to the district court
demonstrate that he could ably and effectively communicate in English.
Later, Vasquez offered the following grounds for the substitution of counsel:
(1) Proschek told him to lie, (2) Proschek refused to file motions that Vasquez felt were
necessary to his defense, (3) Proschek refused to bring an interpreter when meeting with
Vasquez, and (4) Proschek did not provide him with all of the discovery materials.
Proschek disputed each of these allegations. Given these conflicting accounts, the
district court did not “rel[y] on clearly erroneous findings of fact, improperly appl[y] the
law, or use[] an erroneous legal standard,” and therefore did not abuse its discretion. See
Chambers, 441 F.3d at 446. Although communication between Vasquez and Proschek
may have been strained, the district court was well within its discretion to determine that
the conflict was not total or irreconcilable.
Furthermore, the record reflects that any lack of communication between
Vasquez and Proschek was likely due to Vasquez’s refusal to cooperate with Proschek.
See Jones v. Tennessee Eastman Co., 805 F.2d 1036, 1036 (6th Cir. 1986) (unpublished)
(holding that the defendant’s refusal to cooperate with counsel did not constitute good
cause for substitution of counsel and that the trial court was within its sound discretion
to deny such a motion); see also Plumlee v. Masto,
512 F.3d 1204, 1211 (9th Cir. 2008)
(holding that the Sixth Amendment is not violated where “a defendant is represented by
a lawyer free of actual conflicts of interest, but with whom the defendant refuses to
cooperate because of dislike or distrust”).
The strained relationship between Vasquez and Proschek was not a “complete
breakdown in communication” that prevented Vasquez from receiving an adequate
defense. Reviewing the record, we find that Proschek vigorously cross-examined
witnesses and read Vasquez’s written objection into the record. See, e.g., United States
v. Gibbs, 190 F.3d 188, 207 (3d Cir. 1999) (finding that vigorous cross-examination by
No. 07-1248 United States v. Vasquez Page 8
counsel constituted an adequate defense despite the defendant’s refusal to cooperate with
counsel). Thus the third factor also weighs in favor of the district court’s decision.
Turning finally to the fourth Mack factor, we find that “the public’s interest in
the prompt and efficient administration of justice” weighs heavily in favor of the district
court’s decision. Vasquez’s trial had already been substantially delayed due to his flight
and previous requests for continuances. Substitution of counsel would “almost certainly
necessitate a last-minute continuance.” See Whitefield, 259 F. App’x at 834. The district
court’s actions are therefore entitled to “extraordinary deference” from us. See id.
Because each of the four relevant factors weighed in favor of Vasquez’s continued
representation by Proschek, we find no abuse of discretion by the district court in
denying Vasquez’s motion for substitution of counsel.
B. Sufficiency of the evidence
1. Standard of review
Vasquez next challenged the sufficiency of the evidence against him. When
deciding if a conviction is supported by sufficient evidence, we determine “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007) (emphasis in
original) (citation and internal quotation marks omitted). This standard applies even if
the evidence is circumstantial. United States v. Kone,
307 F.3d 430, 434 (6th Cir. 2002).
All conflicts in the testimony are resolved in favor of the government, and every
reasonable inference is drawn in its favor. United States v. Bashaw,
982 F.2d 168, 171
(6th Cir. 1992). Because Vasquez failed to move for a judgment of acquittal at either
the close of the government’s case or the close of his case, we will reverse his conviction
only if the record is “devoid of evidence pointing to guilt,” such that a manifest
miscarriage of justice occurred. See United States v. Carnes,
309 F.3d 950, 956 (6th Cir.
2002).
No. 07-1248 United States v. Vasquez Page 9
2. Analysis
An individual who aids and abets another in committing an offense is punishable
to the same extent as the principal offender. 18 U.S.C. § 2(a). In order to establish
aiding and abetting, the government must show (1) an act by the defendant that
contributes to the commission of the offense, and (2) the intent to aid in the commission
of the offense. United States v. Hunt, 521 F.3d 636, 645 (6th Cir. 2008). To establish
a violation of 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable
doubt that the defendant “(1) knowingly and intentionally distribute[d] cocaine, and[]
(2) at the time of such distribution the defendant knew that that the substance was
cocaine.” United States v. Colon,
268 F.3d 367, 376 (6th Cir. 2001).
Vasquez argues that the evidence presented at trial was insufficient to prove
beyond a reasonable doubt that he was a knowing and willing participant in the charged
drug offenses. He argues that “[o]ther than the fact that Mr. Vasquez traveled as a
passenger in the van with Mr. Ove [Montes] to the location where Ove delivered the
cocaine, there was no evidence that Mr. Vasquez’s association with the venture was
‘such that his participation was intended to bring about the crime or make it succeed.’”
Vasquez points to the fact that during the drug delivery to Detective Winters, only
Montes got into Winters’s vehicle to give him the cocaine.
We disagree with Vasquez’s characterization of the evidence. At trial, numerous
witnesses testified as to his involvement in the sale of the cocaine. Mason, the informant
and cooperating witness for the government, testified that he spoke with Vasquez about
payment for the cocaine, and that Vasquez quoted him the price. He further testified that
Montes informed him that he could speak to either Montes or Vasquez about the
transaction.
Detective Winters also testified. He related that he had met with both Montes
and Vasquez to discuss the transaction, that Vasquez quoted him the price for the
cocaine, that Vasquez provided him with a two-ounce sample, that Vasquez told him that
Vasquez’s brother Juan would be transporting the cocaine to Michigan, and that Vasquez
No. 07-1248 United States v. Vasquez Page 10
said that the delivery of the cocaine would be delayed because Juan was having car
trouble.
Based on this evidence and reviewing the record in the light most favorable to
the government, we conclude that sufficient evidence supported Vasquez’s conviction
for aiding and abetting the distribution of 500 grams or more of cocaine. Vasquez
contributed to the distribution of the cocaine by meeting with Winters to discuss the
transaction, quoting the price of the cocaine, keeping in touch with Winters about the
transportation and expected arrival time for the cocaine that was delivered, and being
present during other discussions involving the transaction and the actual exchange of the
cocaine. The substance actually exchanged during the transaction was cocaine that
weighed more than 500 grams. Accordingly, there was more than sufficient evidence
to support Vasquez’s conviction for aiding and abetting the distribution of cocaine.
C. Cautionary instructions regarding Detective Winters’s testimony
1. Standard of review
Because Vasquez failed to object to the jury instructions during trial, we will
review these instructions under the plain-error standard of review. See United States v.
Martin, 520 F.3d 656, 658 (6th Cir. 2008). A defendant can demonstrate plain error by
showing (1) an error, (2) that is plain, and (3) that affects his fundamental rights.
Id.
If the defendant satisfies these three conditions, we may exercise our discretion to
correct the error only if the error seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.
Id. We will not reverse a conviction if an error
is harmless, meaning that “it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” United States v. Baldwin,
418
F.3d 575, 582 (6th Cir. 2005) (citation and quotation marks omitted).
No. 07-1248 United States v. Vasquez Page 11
2. Analysis
A law-enforcement officer may offer dual testimony as a fact witness and as an
expert witness where a cautionary instruction is provided to the jury. United States v.
Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006). In Lopez-Medina, we concluded that
plain error occurred because no instruction on expert testimony or on the dual role of the
officer was given, and there was no clear demarcation between the officer’s expert
testimony and his factual testimony.
Id. at 744. We further found that the defendant’s
substantial rights and the fairness, integrity, and public reputation of the judicial
proceeding were seriously impacted by this error “in conjunction with the other
evidentiary errors we find occurred” in the defendant’s trial.
Id. at 745.
In the instant case, Detective Winters testified at trial as both a fact and an expert
witness, but the judge failed to give a cautionary instruction regarding Winters’s dual
role. Vasquez argues that this constitutes reversible error. The government does not
dispute that a cautionary instruction was required and that an error occurred. Instead,
the government argues that the error was harmless because the district judge gave
general instructions regarding the two expert witnesses who testified at trial and that
there were no other evidentiary errors.
We agree with the government’s argument. Although the failure to give a
cautionary instruction was erroneous, the error was a harmless one because Vasquez
failed to establish “an effect on his substantial rights[] and a serious impact to the
fairness, integrity or public reputation of the judicial proceeding.” See Lopez-Medina,
461 F.3d at 745. “An effect on substantial rights is typically established through a
showing of an actual effect on the outcome of the case.”
Id. (citation omitted). In
Lopez-Medina, we determined that the defendant made such a showing because the error
in the jury instructions, in conjunction with other evidentiary errors, likely affected the
outcome of the trial. But we have declined to extend the holding in Lopez-Medina to
circumstances in which there were no other evidentiary errors. See
Martin, 520 F.3d at
659-60 (holding that the lack of a cautionary instruction for an officer’s dual testimony,
although erroneous, did not “seriously affect[] the fairness, integrity, or public reputation
No. 07-1248 United States v. Vasquez Page 12
of the proceedings” in the absence of other evidentiary errors). We also declined to
extend Lopez-Medina in United States v. Cobbs, 233 F. App’x 524, 541-42 (6th Cir.
2007), where the prosecution effectively distinguished between the officer’s expert and
factual testimony and there were no other evidentiary errors.
No other evidentiary errors were alleged in Vasquez’s trial. Moreover, during
the preliminary instructions, the district judge informed the jurors that “[y]ou must
consider and weigh the testimony of all witnesses who appear before you, and you alone
are to determine whether to believe any witnesses and the extent to which any witness
should be believed.” Detective Winters testified in his capacity as an expert on October
18, 2006. When he stepped down, the government stated in the presence of the jury that
it planned on “recalling him relating to some of the factual circumstances in this case.”
Detective Winters was recalled the following day to testify regarding the facts
of the case, after six other government witnesses had testified. After the close of
testimony, the district judge generally instructed the jury on how to weigh expert
testimony. Furthermore, there was ample evidence to support Vasquez’s convictions.
We therefore conclude that, although an error occurred, Vasquez’s substantial rights
were not affected and his convictions should not be reversed on this basis.
D. Substantive issues in sentencing
We now turn to the three substantive issues raised by Vasquez with respect to his
sentencing. He argues that the district court erred in (1) determining that his offenses
involved seven kilograms of cocaine, (2) increasing his offense level for his leadership
role, and (3) increasing his offense level for obstruction of justice. In the following
sections, we will address each of these issues in turn.
No. 07-1248 United States v. Vasquez Page 13
1. Drug quantity
We will not set aside a district court’s determination of drug quantity attributable
to the defendant for sentencing purposes unless the determination was clearly erroneous.
United States v. Swanberg, 370 F.3d 622, 624-25 (6th Cir. 2004). In this case, the
determination of the quantity of drugs attributable to Vasquez turns upon the proper
application of Sentencing Guidelines § 2D1.1 Application Note 12. Note 12 states in
relevant part:
If the offense involved both a substantive drug offense and an attempt or
conspiracy, . . . the total quantity involved shall be aggregated to
determine the scale of the offense.
In an offense involving an agreement to sell a controlled substance, the
agreed-upon quantity of the controlled substance shall be used to
determine the offense level unless the sale is completed and the amount
delivered more accurately reflects the scale of the offense . . . . If,
however, the defendant establishes that the defendant did not intend to
provide or purchase, or was not reasonably capable of providing or
purchasing, the agreed-upon quantity of the controlled substance, the
court shall exclude from the offense level determination the amount of
controlled substance that the defendant establishes that the defendant did
not intend to provide or purchase or was not reasonably capable of
providing or purchasing.
U.S.S.G. § 2D1.1, cmt. n.12 (2001).
We have previously held that “[t]he government must prove the amount to be
attributed to a defendant by a preponderance of the evidence.” Swanberg, 370 F.3d at
625. Once the government has established the negotiated amount of cocaine to be
transferred, “the defendant[] ha[s] the burden of proving that [he was] not capable of
producing that amount.” United States v. Vasquez,
352 F.3d 1067, 1071 (6th Cir. 2003)
(citation and internal quotation marks omitted). A district court’s finding is clearly
erroneous where, although there is evidence to support it, we are “left with the definite
and firm conviction that a mistake has been committed.”
Id. at 1070.
Based solely on the fact of conviction for the distribution of cocaine, Vasquez
was exposed to a maximum sentence of 20 years in prison. See 21 U.S.C.
No. 07-1248 United States v. Vasquez Page 14
§ 841(b)(1)(C). By finding Vasquez responsible for “more than 500 grams but less than
5 kilograms of a mixture or substance containing a detectable amount of cocaine” (Count
1), the jury’s verdict exposed him to an enhanced statutory maximum of 40 years of
imprisonment. See 21 U.S.C. § 841(b)(1)(B)(ii)(II). But the fact that the jury found the
quantity to be less than five kilograms is not dispositive for sentencing purposes because
the district court retains an independent obligation to find sentencing facts by a
preponderance of the evidence. See United States v. Flores, 477 F.3d 431, 439 (6th Cir.
2007).
Vasquez does not dispute that the agreed-upon amount for the December 2001
transaction was seven kilograms of cocaine. He instead contends that he was not
reasonably capable of providing that quantity. Vasquez points to the fact that Montes
required a “down payment” of only $2,000 for a transaction that would have involved
“upwards of $140,000” to suggest that his “actual intent and ability” was to provide no
more than the one kilogram of cocaine actually delivered. He also argues that although
there was a lot of “big talk” and that the final quantity of the cocaine negotiated by
Detective Winters was seven kilograms, the quantity discussed by Montes, Vasquez, and
Winters was “all over the map.” The district court, however, disagreed with Vasquez’s
contention that the actual amount of cocaine at issue was only the one kilogram, and
found instead that “[t]he only impediment that the evidence supported for the delivery
of the seven kilograms was the fact of coordinating product, money and transportation.”
We conclude that the district court did not err in determining that Vasquez’s
offense involved seven kilograms of cocaine. Neither Montes nor Vasquez ever
suggested during the negotiations that they would be unable to provide Mason and
Winters with that amount. During the discussions between Montes, Vasquez, and
Winters, both Montes and Vasquez participated in the offer to sell seven kilograms for
$13,000 per kilogram if Mason and Winters traveled to Texas for a personal pick-up, but
that the price would be $23,500 per kilogram if Montes and Vasquez had to take the time
and risk of driving the cocaine to Detroit. Montes told Winters that he and Vasquez
could not get the full amount of the cocaine until they paid off an outstanding balance
No. 07-1248 United States v. Vasquez Page 15
to their supplier in Texas, and Montes asked Winters to front the money for the exchange
so that he and Vasquez could obtain the cocaine. Finally, Mason testified that he had
witnessed a friend purchase two kilograms from Montes, Vasquez, and Juan on an earlier
occasion, and that he had observed that they had a total of ten kilograms to sell during
the transaction. All of this evidence establishes that Vasquez was reasonably capable
of providing seven kilograms of cocaine to Winters.
2. Leadership role
The standard that governs the review of a sentencing enhancement for a
leadership role under U.S.S.G. § 3B1.1 is not altogether clear. A district court’s legal
conclusions are generally reviewed de novo, and its factual findings will not be set aside
unless clearly erroneous. United States v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007).
In Buford v. United States,
532 U.S. 59 (2001), however, the Supreme Court held that
a district court’s application of the Guidelines should be reviewed deferentially rather
than de novo “in light of the fact-bound nature of the legal decision.”
Id. at 66. We need
not resolve this uncertainty in the present case because we conclude that the leadership
adjustment was appropriate under either standard of review.
A district court may increase a defendant’s offense level by two levels if the
defendant was “an organizer, leader, manager, or supervisor in any criminal activity of
one or more participants.” U.S.S.G. § 3B1.1(c), cmt. n.2. More than one person
involved in an offense may be a leader or organizer. U.S.S.G. § 3B1.1, cmt. n.4. A
defendant qualifies for a leadership enhancement if the district court concludes that he
has exercised decisionmaking authority, recruited accomplices, received a larger share
of the profits, was instrumental in the planning phase of the criminal venture, or
exercised control or authority over at least one accomplice. United States v. Lalonde,
509 F.3d 750, 765-66 (6th Cir. 2007).
Vasquez argues that Montes was the sole leader involved in the offense. At trial,
however, Detective Winters testified that he had negotiated the price of the cocaine with
Vasquez, that Vasquez had informed Winters that the cocaine would be of higher than
average quality, and that Vasquez had offered to have his brother Juan transport the
No. 07-1248 United States v. Vasquez Page 16
cocaine to Michigan for Winters. Mason added that he viewed Montes and Vasquez as
equals. Juan Trujillo, another witness for the government, testified that he had bought
cocaine from someone nicknamed “Junior,” that “Junior” obtained the cocaine from
Vasquez, and that “Junior” paid Vasquez for the cocaine. Based on Vasquez’s
representations to Winters and Mason, his knowledge and involvement in the details of
the transaction, his position as a supplier to others, and his authority over his brother
Juan, we conclude that the district court did not err in determining that Vasquez was a
leader in this offense.
3. Obstruction of justice
“In reviewing a district court’s application of obstruction of justice enhancements
under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.1 (1998), we employ a
three-step process of review.” United States v. Roberts, 243 F.3d 235, 237 (6th Cir.
2001) (citation omitted). These steps are as follows:
First, this Court applies a clearly erroneous standard to the district court’s
findings of fact with respect to the enhancement. Second, a district
court’s determination of whether facts constitute obstruction of justice is
a mixed question of law and fact that requires de novo review. Third,
once there has been a finding that the defendant obstructed justice,
application of the enhancement is mandatory, so review of the
enhancement at that point is de novo.
Id. (citations omitted). In light of
Buford, 532 U.S. at 66, we will also “give due
deference to the district court’s application of the guideline to the facts.” See United
States v. Cline,
362 F.3d 343, 350 (6th Cir. 2004).
A two-level enhancement for obstruction of justice is appropriate where “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” U.S.S.G. § 3C1.1. Application
Note 4 of § 3C1.1 contains a “non-exhaustive list” of examples of the types of conduct
to which the obstruction-of-justice enhancement applies, and instructs that the
enhancement is appropriate where the defendant has engaged in “escaping or attempting
No. 07-1248 United States v. Vasquez Page 17
to escape from custody before trial or sentencing . . . .” U.S.S.G. § 3C1.1, cmt. n.4(e).
This section of the Guidelines also provides examples of conduct ordinarily not covered,
which includes “avoiding or fleeing from arrest.” The district court found that a two-
level enhancement was appropriate.
In this case, Vasquez absconded before he was indicted but after he agreed to
cooperate in order to obtain his release. Vasquez argues on appeal that his conduct was
more akin to “avoiding or fleeing from arrest” rather than “escaping or attempting to
escape from custody.” He particularly points out that his flight “did not involve any
deception, false names, use of an alias, or any other fraudulent misrepresentation to
avoid arrest—here he simply absented himself from the jurisdiction to avoid arrest.” We
are not persuaded. In a case virtually identical to the instant case, this court concluded
that a defendant obstructed justice where he delayed his prosecution by agreeing to
cooperate in order to obtain his release and then fleeing the jurisdiction upon his release.
United States v. Lopez, 102 F. App’x 985, 989 (6th Cir. 2004). Exactly as in Lopez,
Vasquez obtained his release after his initial arrest by agreeing to cooperate with the
government. He then fled the jurisdiction. Vasquez never disputed that he fled in order
to evade prosecution for a federal offense; nor did he proffer any other reason for his
flight. We therefore conclude that the district court did not err in increasing Vasquez’s
offense level for obstruction of justice.
E. Procedural reasonableness of sentencing
Vasquez’s final challenge is to the reasonableness of his sentence. We review
sentences imposed by the district court for reasonableness. United States v. Vowell, 516
F.3d 503, 509 (6th Cir. 2008). Reasonableness review has both a substantive and a
procedural component. Gall v. United States,
128 S. Ct. 586, 597 (2007);
Vowell, 516
F.3d at 509. When reviewing a district court’s sentencing determination, we “first
ensure that the district court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range . . . .”
Gall, 128 S. Ct. at
597. “Assuming that the district court’s sentencing decision is procedurally sound, the
No. 07-1248 United States v. Vasquez Page 18
appellate court should then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.”
Id.
Vasquez argues that his sentence was procedurally unreasonable. He does not
argue, however, that the district court inadequately explained the sentence or considered
impermissible factors under 18 U.S.C. § 3553(a). Instead, Vasquez contends that the
district court erred in calculating his applicable Guidelines range. His argument is
primarily based on the sentencing enhancements imposed by the district court because
of its determination of the drug quantity, Vasquez’s leadership role, and his obstruction
of justice. Because we find no merit in Vasquez’s assertions regarding his sentencing
enhancements and conclude that the district court did not err, we also reject Vasquez’s
argument that his sentence was procedurally unreasonable.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
