United States v. Cano-Bahena

713 F. App'x 753
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 2, 2017
Docket16-3298
StatusUnpublished

This text of 713 F. App'x 753 (United States v. Cano-Bahena) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cano-Bahena, 713 F. App'x 753 (10th Cir. 2017).

Opinion

ORDER AND JUDGMENT *

Mary Beck Briscoe, Circuit Judge

Defendant Gilberto Cano-Bahena pleaded guilty to one count of aiding and abetting a codefendant in knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine,' in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(b), and 18 U.S.C. § 2. Cano-Bahena then unsuccessfully moved to withdraw his plea. Thereafter, he was sentenced to a term of imprisonment of 108 months, to be followed by a four-year term of supervised release. Cano-Bahena now appeals, challenging the district court’s denial of his motion to withdraw his plea, as well as two aspects of his sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Factual background

In June and July 2014, law enforcement agents from the Kansas Bureau of Investigation and the United States Department of Homeland Security, Immigration and Customs Enforcement, Homeland Security Investigations (DHS) used a confidential informant (Cl) to make two controlled purchases of methamphetamine from an individual named Emanuel Godinez-Perez in Kansas City, Kansas. Law enforcement agents subsequently arrested Godinez-Per-ez, along with Cano-Bahena and Jose Men-era-Alvarez, both of whom were involved with Godinez-Perez in the distribution of the methamphetamine. During the course of the investigation, law enforcement agents seized ten different quantities of methamphetamine, totaling approximately 1,505.26 grams. Laboratory testing revealed that these quantities of methamphetamine ranged in purity from 96.1% to 100% pure. Based upon these purity figures, the net weight of the methamphetamine was estimated to be 1,479.8 grams.

Procedural background

On July 25, 2014, a criminal complaint was filed against the three men. Of relevance here, Count One of the complaint charged all three with conspiring to distribute and possess with the intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(viii), and 18 U.S.C. § 2, and Count Four charged all three with possession with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(viii), and 18 U.S.C. § 2.

On August 6, 2014, a federal grand jury returned an indictment that essentially mirrored the criminal complaint.

On May 27, 2015, Cano-Bahena entered a plea of guilty, pursuant to a two-page written plea agreement, to one count of aiding and abetting Menera-Alvarez in knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(b), and 18 U.S.C. § 2 1

A presentence investigation report (PSR) was prepared and submitted to the district court and the parties on July 1, 2015. The PSR imposed a base offense level of 36 because the “offense involv[ed] at least 1.5 kilograms but less than 4.5 kilograms of ‘Ice.’ ” ROA, Vol. Ill at 12. The PSR in turn applied a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.2 due to Cano-Bahe-na having eluded the police prior to his arrest, as well as a total three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, resulting in a total offense level of 35. That total offense level, combined with Cano-Bahena’s criminal history score of one and criminal history category of I, resulted in an advisory Guidelines imprisonment range of 168 to 210 months.

Cano-Bahena objected to the PSR’s proposed obstruction-of-justice enhancement pursuant to § 3C1.2. He also objected to the PSR “attribut[ing] the full 1505.39 grams of methamphetamine to him.” Id. at 23. In support, Cano-Bahena argued that it was not him, but rather Godinez-Perez, who was involved in the controlled buys. Cano-Bahena further argued that only 453 grams of methamphetamine were actually connected to him as a result of the searches of his apartment and vehicle. The probation officer responded to this latter objection by noting that Cano-Bahena and “Godinez-Perez were working together to sell methamphetamine” and that “[t]he trafficking of all the methamphetamine involved in this case was (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity for” Cano-Bahena. Id. at 26.

On March 22, 2016, Cano-Bahena filed a motion to withdraw his guilty plea. In his motion, Cano-Bahena asserted that his plea was not knowing and voluntary because “none of the [relevant] documents were fully translated and explained to [him] before he signed the same and entered into his plea.” ROA, Vol. I at 90. Cano-Bahena further asserted that he had “[o]riginally ... agreed with the government o[n] a 100 month sentence,” and that under the final agreement “his understanding [was] that his new sentence would be less than that which led to his accepting the same.” Id.

On April .13, 2016, the district court held a hearing on Cano-Bahena’s motion to withdraw his guilty plea. The government presented testimony from James Campbell, who was originally appointed to represent Cano-Bahena and who represented him at the time of his plea agreement. 2 Campbell testified that Cano-Bahena was originally offered a 100-month Rule 11(c)(1)(C) plea offer, but that Cano-Bahe-na rejected that offer on multiple occasions. ROA, Vol. II at 10-11. Campbell further testified that Cano-Bahena, “after extended discussions, indicated he would just like to enter a plea to [the proposed amended charge] without th[e] (c)(1)(C) constraint.” Id at 12. Campbell indicated that Cano-Bahena did so because the “lesser charge” contained in the “amended information ..'. would include a penalty-range from five to 40 years, as opposed to the 10 to life that he was looking at under the original conspiracy charge.” Id. Campbell testified that he relayed this information to the prosecutor, who then offered a Rule 11(c)(1)(C) plea deal of 85 months. According to Campbell, Cano-Bahena “declined that offer and wanted to go forward with the open plea.” Id. at 13. Campbell testified that the prosecutor agreed to the open plea and the parties subsequently entered into that agreement.

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Bluebook (online)
713 F. App'x 753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cano-bahena-ca10-2017.