United States v. Palomares

12 F. App'x 213
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 10, 2001
DocketNo. 99-1299
StatusPublished
Cited by1 cases

This text of 12 F. App'x 213 (United States v. Palomares) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Palomares, 12 F. App'x 213 (6th Cir. 2001).

Opinion

PER CURIAM.

Defendant Jose Luis Palomares was indicted on one count of conspiracy to possess with intent to distribute and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846, and one count of conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). Defendant appeals his conviction on a plea of guilty to conspiracy to possess with intent to distribute marijuana and conspiracy to launder money. Defendant raises seven issues. We AFFIRM the judgment and sentence for the reasons stated below.

A. Acceptance of Responsibility

Defendant claims that the district court was clearly erroneous when it denied an additional one-level downward departure under U.S.S.G. § 3El.l(b) after it granted a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3el.l(a).

A district court’s determination of acceptance of responsibility is entitled to great deference and is reviewed for clear error. See United States v. Bradshaw, 102 F.3d 204, 214 (6th Cir.1996); U.S.S.G. § 3E1.1, Application Note 5.

U.S.S.G. § 3E1.1 provides that:

(a) If the defendant clearly demonstrates acceptance of responsibility for [216]*216his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:
(1) timely providing complete information to the government concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1. Further, disclosure under (b)(1) or (2) “must occur particularly early in the case.” U.S.S.G. § 3E1.1, Application Note 6.

Defendant was ineligible for an additional one-level downward departure because he failed to meet either requirement of U.S.S.G. § 3El.l(b). Defendant did not provide complete and timely information about his involvement in the offense. Rather, as the district court found, Defendant did not admit the extent of his involvement until after he pleaded. Further, Defendant pled guilty only after the scheduled trial date of August 31, 1999, and only after the Government had obtained writs to bring three incarcerated witnesses to the trial. Although Defendant assisted the Government and even admitted using more marijuana than the district court assessed, he was not timely in disclosing the extent of his criminal conduct and intent to plead guilty. Thus, the district court did not err in denying the additional one-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3El.l(b).

B. Upward Adjustment for Managerial Role in the Offense

Defendant contends that the district court clearly erred when it adjusted his offense score upward three levels under U.S.S.G. § 3Bl.l(b) for his role in the offense without conducting an evidentiary hearing.

Defendant’s claim lacks merit because he waived this issue for appeal. Where a party has the opportunity to object to a sentence but does not object or does not state the grounds for the objection, the party generally waives those objections for appeal. See United States v. French, 974 F.2d 687, 697 (6th Cir.1992); United States v. Cullens, 67 F.3d 123, 124 (6th Cir.1995). In this case, Defendant did not object to the three-level upward adjustment for his role in the offense under U.S.S.G. § 3Bl.l(b).

However, where a defendant does not object, this Court reviews for plain error, Fed.R.Crim.P. 52, and determines whether manifest injustice would result without review. See United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings. See Koeberlein, 161 F.3d at 949.

Further, Defendant has not shown manifest injustice. Section 3Bl.l(b) provides: “If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, [217]*217increase by 3 levels.” Defendant merely asserts but does not show from the record that the district court erred when it accepted the three-level upward adjustment for his role in the offense based on the presentence report, without an evidentiary hearing, that he managed five or more participants.

C. Enhancement without Proper Notice

Defendant now claims for the first time on appeal that the district court enhanced his sentence under 21 U.S.C. § 841(b)(1)(B) without proper notice as required under 21 U.S.C. § 851(a)(1). As stated more fully above, a defendant may not raise a sentencing issue for the first time on appeal, unless he can show plain error and manifest injustice. Defendant did not raise this issue below and has not shown plain error. Therefore, he waived it. Furthermore, Defendant’s sentence was not enhanced under § 841(b)(1)(B). Section 841(b)(1)(B) requires a previous felony drug conviction, which Defendant did not have. Moreover, neither the sentencing transcript nor the presentence report reflects an enhancement under § 841(b)(1)(B) based on a prior felony drug conviction.

D. Alleged Breach of Plea Agreement

Defendant contends that the Government breached its plea agreement with him, which it induced by allegedly promising to recommend a five-year sentence if Defendant pleaded guilty. Again, as stated more fully above, a defendant may not raise a sentencing issue for the first time on appeal, unless he can show plain error and manifest injustice. Defendant did not raise this issue below and has not shown plain error. Therefore, he waived it. Moreover, while the record reflects a written agreement and stipulations for his co-defendants, it does not contain a similar plea agreement for Defendant.

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12 F. App'x 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-palomares-ca6-2001.