NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0604n.06 Filed: August 21, 2007
No. 06-6039
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE RICHARD NANEZ, ) MIDDLE DISTRICT OF TENNESSEE ) Defendant-Appellant. ) ) ) )
Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Richard Nanez challenges
the 240-month sentence imposed by the district court following his convictions for conspiring to
distribute a controlled substance and possessing a controlled substance with intent to distribute. On
appeal, Nanez argues that the district court, in imposing sentence following remand, (1) engaged in
improper judicial factfinding, (2) erred in calculating his guidelines range, and (3) failed to consider
his post-offense rehabilitation. After review of the record, we find no error in the district court’s
decision and affirm.
I.
1 In January or February of 2002, Richard Benavides approached Nanez at a bar in Houston,
Texas, and inquired about the possibility of arranging the purchase of cocaine. The two discussed
the possibility of Nanez’s providing Benavides with three to five kilograms of cocaine on a weekly
basis. According to Benavides, Nanez agreed to sell him three to five kilograms of cocaine weekly,
but Nanez informed Benavides that he could only provide a first installment of two to three
kilograms. On February 15, 2002, before Benavides and Nanez reached final agreement on price,
Benavides was arrested by Detective Mike Clark of the Nashville Police Department. Following his
arrest, Benavides agreed to cooperate with the authorities.
On February 17, 2002, Benavides contacted Nanez, and they arranged for the delivery of
three kilograms of cocaine to Benavides in Nashville for a total price of $63,000. Nanez hired Luis
Avila to transport the cocaine from Houston to Nashville. At Nanez’s direction, Avila drove to
Odessa, Texas, where he met an unidentified supplier who provided him with two kilograms of
cocaine. As directed, Avila divided the cocaine into two one-kilogram packages and placed them
in the gas tank of his vehicle. Avila then recruited his girlfriend, Aravia Garcia, to assist him in the
drive to Nashville. Nanez also traveled to Nashville to consummate the first transaction and
recruited an associate, Kevin Neal, to drive him from Houston to Nashville in exchange for $500.
Nanez and Neal arrived in Nashville on February 23, 2002, and met with an undercover law
enforcement officer, Detective Jesse Burchwell, and Benavides. On the following day, Avila and
Garcia arrived in Nashville with the cocaine, and Nanez informed Burchwell and Benavides that he
was one kilogram short of the agreed upon three but assured them he would provide the missing
kilogram. Nanez, Burchwell, Benavides, Neal, Avila, and Garcia then proceeded to an apartment
2 set up by the police to serve as a location for the transfer.1 After arriving at the apartment, Nanez
consummated the two kilogram transaction. Police officers moved in and arrested Nanez, Neal,
Garcia, and Avila.
A grand jury issued a two-count indictment charging Nanez with conspiring to distribute five
kilograms or more of a controlled substance in violation of 21 U.S.C. § 846 and possession with
intent to distribute 500 grams or more of a controlled substance in violation of 21 U.S.C. § 841(a)(1).
A jury convicted Nanez on both counts, and the district court sentenced him to 240 months
imprisonment followed by five years of supervised release. Nanez appealed his sentence, and a
panel of this court vacated his sentence in light of United States v. Booker, 543 U.S. 220 (2005), and
remanded his case for resentencing. United States v. Nanez (Nanez I), 168 F. App’x 72, 79 (6th Cir.
2006). Following remand, the district court reimposed the same sentence imposed initially. Nanez
timely appealed.
II.
As a threshold matter, we must address both parties’ arguments that the scope of this court’s
remand in Nanez I compels the result in this case. According to Nanez, because Nanez I vacated his
sentence in light of Booker and remanded for resentencing, the district court exceeded the scope of
the remand by engaging in improper judicial factfinding in calculating Nanez’s guidelines range.
In response, the government contends that because Nanez I remanded Nanez’s case solely for
resentencing in light of Booker, Nanez is now precluded from raising any objection to the district
court’s guidelines computations. Had the Nanez I court found merit in these objections, argues the
1 While riding with Burchwell and Benavides, Nanez discussed a future transaction whereby Burchwell would come to Houston to purchase ten kilograms of cocaine the following Thursday.
3 government, the panel would have so stated and instructed the district court accordingly. As
discussed below, each of the parties’ arguments on this point is meritless.
Nanez’s position that the Sixth Amendment precluded the district court from finding facts
beyond those facts found by the jury or admitted by Nanez finds no support in the case law. Booker
itself–in addition to numerous post-Booker pronouncements from this court–makes clear that judicial
factfinding does not offend the Sixth Amendment so long as the guidelines occupy a purely advisory
role. Booker, 543 U.S. at 233 (“If the Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than required, the selection of particular sentences in
response to differing sets of facts, their use would not implicate the Sixth Amendment . . . .”); see
also United States v. Gardiner, 463 F.3d 445, 461 (6th Cir. 2006); United States v. Mickens, 453
F.3d 668, 673 (6th Cir. 2006); United States v. Richardson, 437 F.3d 550, 555 (6th Cir. 2006);
United States v. Coffee, 434 F.3d 887, 898 (6th Cir. 2005); United States v. Stone, 432 F.3d 651,
654-55 (6th Cir. 2005).
The government’s position is similarly unsupportable. A panel’s decision to grant relief on
the basis of a single, dispositive issue has no bearing on other issues raised on appeal. The mere fact
that this court remanded for resentencing in light of Booker in Nanez I says nothing about whether
the other objections raised by Nanez in that appeal were meritorious.2 Moreover, the position
advocated by the government would, in effect, insulate the district court’s guidelines computations
from appellate review even though Nanez has properly noted and raised his objections both before
the district court and here on appeal. Finally, United States v. Haynes, 468 F.3d 422, 424-25 (6th
2 The panel could have addressed guidelines computation issues in the prior appeal but did not.
4 Cir. 2006), cited by the government provides no support for its argument. The Haynes court
determined that the defendant’s challenges to the district court’s jury instructions and verdict
form–issues related to the validity of conviction–were not properly before the court on appeal
because the prior remand order was limited to resentencing in light of Booker. Id. at 425. Haynes
offers no support for the proposition that issues related to guidelines determinations–matters that are
inextricably linked to the sentencing process–are not properly before the court following a Booker
remand. Having rejected the parties’ threshold arguments regarding the scope of the Nanez I
remand, we must address the merits of Nanez’s challenge to his sentence.
III.
Nanez presents two principal challenges to his sentence. First, he alleges that the district
court misapplied the guidelines in calculating the sentencing range applicable to his case. Second,
Nanez argues that the district court failed to consider evidence of his post-offense conduct in
deciding to impose the same sentence handed down prior to this court’s Booker remand in Nanez I.
We address each argument in turn.
A.
Post-Booker, the discretion of a district court in handing down a sentence has been enhanced,
and on appeal, we review sentences for reasonableness. United States v. Jackson, 408 F.3d 301, 304
(6th Cir. 2005). Although the guidelines are no longer mandatory, the district court, in imposing
sentence, must consider a properly calculated guidelines range as one of a number of factors outlined
in 18 U.S.C. § 3553(a). See, e.g., Jackson, 408 F.3d at 304 (citing 18 U.S.C. § 3553(a)(4)). We
evaluate the district court’s application of the guidelines using our pre-Booker standards of review.
5 United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005); see also United States v. Tudeme, 457
F.3d 577, 582 (6th Cir. 2006).
1.
Nanez first argues that the district court improperly calculated the drug quantity and, as a
result, his base offense level. Upon resentencing, the district court reaffirmed its original conclusion
as to drug quantity and found Nanez responsible for a total of fifteen kilograms of cocaine. The
original calculation comprised (1) two kilograms of cocaine actually supplied by Nanez to
Benavides, (2) ten kilograms of cocaine that Nanez agreed to supply in a conversation with
Burchwell and Benavides on the day of his arrest, and (3) three kilograms that was to be delivered
the next week pursuant to the underlying agreement under which Nanez was to supply to Benavides
three to five kilograms of cocaine weekly. Nanez contends initially that the district court was
precluded from finding any quantities in excess of 5.5 kilograms–the sum of the drug quantities
contained in the indictment upon which the jury returned its verdict of guilty–relying on the same
judicial factfinding argument rejected above. Nanez’s remaining arguments challenge the district
court’s specific factual findings with respect to the drug quantity determination.
“This court reviews for clear error ‘the district court’s determination of the quantity of drugs
attributable to [a] defendant for sentencing purposes.’” United States v. Vasquez, 352 F.3d 1067,
1070 (6th Cir. 2003) (quoting United States v. Ukomadu, 236 F.3d 333, 341 (6th Cir. 2001)). A
finding is clearly erroneous if, after reviewing the entire record, the reviewing court is left with a
“definite and firm conviction that a mistake has been committed.” Id. (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985)). So long as the district court’s “account of the evidence
is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even
6 though convinced that had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. at 1071.
Nanez first argues that the district court engaged in improper double counting in computing
the drug quantity attributable to him. According to Nanez, the negotiations that resulted in an
agreement by Nanez to supply to Benavides three to five kilograms of cocaine on a weekly basis
were merely preliminary negotiations that culminated in his delivery of two kilograms of cocaine on
the day he was arrested. Thus, while he does not contest the district court’s attribution of two
kilograms of cocaine, he takes issue with the district court’s finding that he was part of an ongoing
agreement to provide three to five kilograms of cocaine on a weekly basis and its consequent
attribution of an additional three kilograms of cocaine. However, the evidence in the record provides
ample support for the district court’s conclusion. Support for the existence of such an agreement can
be found in the testimony of both Benavides and Avila, Nanez’s own testimony, and statements
attributed to Nanez by others. The district court took a conservative approach and attributed a single
future installment of three kilograms of cocaine to Nanez. Nanez’s double counting argument is
unpersuasive, and on this record, it cannot be said that the district court clearly erred.
Nanez next argues that the district court erred by including in the drug quantity attributable
to him the ten kilograms of cocaine he agreed to provide to Burchwell and Benavides on the day of
his arrest. Nanez does not dispute that he assented to the transaction. Instead, he argues that he was
merely engaging in puffery to salvage a deal that he feared might collapse because he found himself
one kilogram short of the agreed upon three on the day of delivery. Furthermore, he contends that
he neither intended to deliver such a large quantity of drugs nor was he reasonably capable of doing
7 so. As a result, Nanez asserts, the district court should have applied U.S.S.G. § 2D1.1 cmt. n.12, and
excluded from its drug quantity calculation these ten kilograms of cocaine.
Application Note 12 of U.S.S.G. § 2D1.1 instructs the sentencing court to “exclude from the
offense level determination the amount of controlled substance that the defendant establishes that
he or she did not intend to provide or was not reasonably capable of providing.” Once the
government has established the existence of an agreed upon quantity, the defendant bears the burden
of demonstrating either (1) the absence of intent to consummate the transaction or (2) the fact that
he or she was not reasonably capable of providing the agreed upon quantity. Vasquez, 352 F.3d at
1072 (citing United States v. Munoz, 233 F.3d 410, 415 (6th Cir. 2000)). The Vasquez court also
identified a number of factors that can be relevant in evaluating the district court’s findings regarding
the defendant’s intent and capability: (1) whether the defendant engaged in serious negotiations or
“idle talk,” (2) whether the defendant has participated in similar transactions, (3) whether the
defendant hesitated before agreeing to the transaction, and (4) whether the drug quantity involved
is comparable to quantities of drugs involved in other transactions occurring during the same time
period. Id. at 1072-73.
With respect to intent, the only evidence in support of Nanez’s claim consists of his statement
at trial that he never intended to provide such a large quantity of cocaine. However, Nanez’s position
is somewhat undercut by his own testimony. After being asked whether he “would have never done
that [ten kilogram] deal,” Nanez responded, “Well, I mean if everything would have worked right,
I mean I could have probably gotten back and maybe done something, but . . . my intentions at that
time were not to . . . get the ten kilograms.” Rather than “idle talk,” Burchwell testified that he and
Nanez negotiated specific details related to the ten kilogram transaction. Nanez explained to
8 Burchwell and Benavides where his narcotics supply connections were located, and after agreement
had been reached, Nanez informed one of his co-conspirators about the planned ten kilogram
purchase. Finally, there is no evidence of any hesitation on Nanez’s part in agreeing to this
transaction. This conduct is inconsistent with Nanez’s portrayal of himself as an individual
interested only in salvaging a deal and is instead consistent with the profile of an individual who saw
the opportunity for a lucrative transaction and seized it.
As to his capability of providing this quantity of cocaine, Nanez argues that he was not
reasonably capable of providing such a quantity of cocaine because he managed to provide only two
kilograms of cocaine prior to his arrest. However, the district court properly found that Nanez had
agreed to provide three to five kilograms of cocaine on a weekly basis, and witnesses testified that
Nanez stated his willingness to lower the price in the event of a purchase of five kilograms of
cocaine or more. Given the quantities at issue in this conspiracy, a single transaction involving ten
kilograms of cocaine falls in line with reasonable expectations. Thus, we find no difficulty in
agreeing with the district court’s conclusion that Nanez was reasonably capable of providing such
a quantity of cocaine. Given the preceding, we conclude that the district court committed no error
in computing the drug quantity attributable to Nanez and therefore find no error in the district court’s
related computation of Nanez’s base offense level under the guidelines.
2.
Nanez also argues that the district court erred in failing to apply U.S.S.G. § 3E1.1 to grant
a three-level reduction in his offense level for acceptance of responsibility. Because “[t]he
sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility[,] the
determination of the sentencing judge is entitled to great deference on review.” United States v.
9 Farrelly, 389 F.3d 649, 656 (6th Cir. 2004), abrogated on other grounds by United States v.
Williams, 411 F.3d 675, 677 n.1 (6th Cir. 2005). Accordingly, this court will only disturb the district
court’s finding regarding acceptance of responsibility if that finding is clearly erroneous. Id.; see
also United States v. Angel, 355 F.3d 462, 476 (6th Cir. 2004). “To qualify for this reduction,
Defendants [are] required to show by a preponderance of the evidence that they ha[ve] accepted
responsibility for the crime committed.” Farrelly, 389 F.3d at 656 (internal quotation marks omitted)
(alteration in original).
Nanez argues that because he has never contested his involvement in a conspiracy to sell
cocaine and has only challenged the amount involved in the conspiracy, the district court should have
given him a reduction under section 3E1.1. In particular, according to Nanez, he accepted
responsibility for the delivery of two kilograms of cocaine related to the charge in count two of the
indictment, and this adequately demonstrated his acceptance of responsibility. Nanez is correct that
a defendant’s decision to go to trial does not render him or her ineligible for an acceptance of
responsibility reduction where, for example, that defendant seeks to preserve a challenge to issues
unrelated to factual guilt such as the constitutionality or applicability of a statute. See U.S.S.G. §
3E1.1 cmt. n.2. However, “[t]his adjustment is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” Id. As the Farrelly court observed,
this court has repeatedly noted that the district court does not clearly err in denying an acceptance
of responsibility reduction to a defendant who chooses to contest the essential elements of guilt and
put the government to its burden of proof. 389 F.3d at 656-57 (citing cases). Nanez chose to go to
trial to contest the amount of cocaine involved in the conspiracy charged in count one of the
10 indictment–an essential element of guilt on which the government bore the burden of proof.
Accordingly, the district court did not clearly err in denying Nanez a reduction for acceptance of
responsibility.3
3.
Nanez next challenges the district court’s enhancement of his offense level pursuant to
U.S.S.G. § 3B1.1(a). Because Nanez does not dispute the district court’s finding that he occupied
an organizational or leadership role–beyond raising his already-rejected judicial factfinding
argument–that finding must stand. Thus, his challenge to the district court’s application of section
3B1.1 is confined to his claim that the district court improperly calculated the number of individuals
involved in the conspiracy.
Nanez takes issue with the district court’s finding of a criminal activity involving five or
more participants. This court reviews for clear error any factual findings made by the district court
for purposes of this provision. United States v. McDaniel, 398 F.3d 540, 551 n.10 (6th Cir. 2005);
see also United States v. Henley, 360 F.3d 509, 516 (6th Cir. 2004). The district court found that
Nanez occupied a leadership role in criminal activity involving six participants: Nanez, Neal, Avila,
Garcia, Benavides, and the unidentified supplier from whom Nanez directed Avila to obtain the
cocaine delivered to Benavides. Nanez argues that the district court (1) improperly included
3 Nanez cites United States v. Fleener, 900 F.2d 914 (6th Cir. 1990), in arguing that a defendant’s claim of entrapment does not preclude his or her receiving a reduction for acceptance of responsibility. He claims that his challenge to the drug quantity attributed to his conduct–his principal reason for going trial–is effectively a claim of sentencing entrapment. There are a number of problems with his position. First, Fleener says nothing about the concept of “sentencing entrapment.” Even assuming Fleener applies in this case, it does not require that a district court give a reduction under section 3E1.1 where the defendant has raised a claim of entrapment. Rather, Fleener merely held that the entrapment defense does not preclude application of section 3E1.1 by the district court.
11 Benavides because he was a government informant, (2) improperly included Garcia because her
involvement in the conspiracy was not foreseeable to Nanez, and (3) improperly included the
unknown supplier because Avila was actually the supplier of the cocaine.
A review of the record demonstrates that there was no error in the district court’s findings.
Although Nanez is correct that Benavides ultimately decided to cooperate with the government
following his arrest, he became involved in the criminal activity that gave rise to the instant charges
prior to his arrest and decision to cooperate. Accordingly, unlike an undercover law enforcement
officer, Benavides was “criminally responsible,” and it was not error for the district court to include
Benavides as a participant. See U.S.S.G. § 3B1.1 cmt. n.1; see also United States v. Dyer, 910 F.2d
530, 533 (8th Cir. 1990) (rejecting the argument that a government informant could not be included
under section 3B1.1 after noting that the informant’s involvement with the defendant’s criminal
activity preceded the decision to cooperate with the government). As to the unknown supplier,
Nanez also claimed at trial that there was no supplier other than Avila. At his first sentencing
hearing, the district court rejected Nanez’s contention and instead credited the testimony of Avila
as to the existence of an unidentified supplier from whom Avila procured the cocaine. The district
court’s credibility determinations are accorded great deference by this court, see United States v.
Esteppe, 483 F.3d 447, 452 (6th Cir. 2007), and Nanez points to nothing in the record–beyond his
own contrary testimony–that would call the district court’s finding into question. With respect to
Garcia, the guidelines make no mention of a foreseeability requirement in order to include an
individual under section 3B1.1. There is no need to address Nanez’s argument on this point,
however, because the district court properly found the existence of criminal activity involving at least
12 five participants, whether or not Garcia was properly included. Therefore, the district court
committed no error in its application of section 3B1.1.
4.
In his final challenge to the district court’s application of the guidelines, Nanez argues that
the district court erred in denying him an offense-level reduction pursuant to U.S.S.G. § 5C1.2.4 The
government argues that Nanez has waived this issue by failing to raise it in his first appeal to this
court. Whether or not Nanez has waived this issue, his failure to raise a successful challenge to the
district court’s finding that he occupied a leadership role in the offense charged precludes application
of section 5C1.2 and provides an independent reason for rejecting his claim of error. See U.S.S.G.
§ 5C1.2(a)(4). Thus, the district court did not err in declining to apply the safety valve.
B.
Nanez’s second overarching challenge to his sentence consists of his claim that the district
court failed to consider his post-offense efforts at rehabilitation when it decided to reimpose the same
sentence it handed down pre-Booker. Nanez’s argument raises a challenge to the procedural
reasonableness of his sentence because it involves a claim that the district court failed to consider
relevant evidence pertaining to the sentencing factors outlined in 18 U.S.C. § 3553(a). See, e.g.,
United States v. Dexta, 470 F.3d 612, 614-15 (6th Cir. 2006). The government, relying on United
States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006), argues that post-offense conduct is not relevant
on remand for resentencing in light of Booker. While Worely does appear to support the
government’s position, Nanez’s argument on appeal fails for another reason. It is clear from a
4 In his brief, Nanez claims the district court erred in denying him an offense level reduction and references U.S.S.G. § 2D1.1(b)(7). It is clear from the record and the parties’ briefs, however, that Nanez’s claim revolves around the safety valve provision contained in section 5C1.2.
13 review of the sentencing transcript that the district court was aware of Nanez’s post-offense conduct,
explicitly considered this conduct in declining to exercise its discretion to go below the guidelines,
and instead imposed the same sentence imposed pre-Booker. Thus, even assuming that Worley does
not preclude a district court’s consideration of this sort of evidence, Nanez’s claim that the district
court in this case failed to do so is not supported by the record.
Nanez has failed to demonstrate any procedural defect in the sentence imposed by the district
court. To the extent that one might construe his argument to encompass a challenge to the
substantive length of the sentence selected by the district court, Nanez offers nothing more than a
conclusory assertion that the district court erred by giving no weight to his mitigating evidence. The
record reflects that the district court considered all of the relevant statutory factors and balanced all
of the mitigating and aggravating evidence in calculating an appropriate sentence. Under such
circumstances, it is not the province of the appellate court to substitute its judgment for that of the
sentencing court. United States v. Collington, 461 F.3d 805, 811 (6th Cir. 2006). Accordingly, we
find the sentence imposed reasonable.
IV.
For the foregoing reasons, we affirm.