U.S. v. Patron-Montano, PLAINTIFF-APPELLEE

Citation223 F.3d 1184
Decision Date21 August 2000
Docket NumberDEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,PATRON-MONTAN,No. 99-6002,99-6002
Parties(10th Cir. 2000) UNITED STATES OF AMERICA,, v. JOSE
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Appeal from the United States District Court for the W. District of Oklahoma (D.C. No. 98-CR-112-002) Richard E. Stout, Edmond, Oklahoma, for Appellant.

Frank Michael Ringer, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, with him on the brief), for Appellee.

Before Ebel, Anderson, and Murphy, Circuit Judges.

Murphy, Circuit Judge.

Appellant, Jose Patron-Montano, appeals the sentence he received for his role in a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patron-Montano pleaded guilty and sought a three-level decrease to his base offense level under the acceptance of responsibility provision found in § 3E1.1(b) of the United States Sentencing Guidelines ("U.S.S.G." or the "sentencing guidelines") and a two-level decrease under the "safety-valve" provisions of U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. The government opposed both adjustments, contending that Patron-Montano was ineligible for either because he intentionally misidentified a co-conspirator. The district court concluded that Patron-Montano had lied about the involvement of a co-conspirator and thus could not demonstrate that he was entitled to the acceptance of responsibility or safety valve decreases. The district court overruled Patron-Montano's objections and sentenced him to ninety-seven months' incarceration. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms.

I. Factual Background

Patron-Montano was the object of a drug investigation conducted by the Oklahoma City Police Department and the Drug Enforcement Agency. As part of this investigation, an undercover officer met with Patron-Montano and Norman Aguirre1 on May 28, 1998. At this meeting, the undercover officer showed Patron-Montano and Aguirre $185,000 in cash and expressed an interest in purchasing ten kilograms of cocaine. Patron-Montano told the officer he was uncertain he could obtain ten kilos but believed he could obtain five kilos. Surveillance officers observed Patron-Montano and Aguirre leave the meeting, travel to a residence at 1413 Southwest 35th Street, use pay telephones at two businesses, travel to 2108 Southwest 66th Street, go to a restaurant, drive to a residence at 1549 Southwest 46th Street, use a pay telephone at a retail establishment, and finally arrive at the residence the two shared.

Later that day, Patron-Montano contacted a confidential source assisting the undercover officer and informed the source that he had obtained the five kilos of cocaine. Patron-Montano also expressed his desire that the transaction be conducted at his residence. The confidential source communicated this information to the undercover officer. The undercover officer, however, refused to meet at Patron-Montano's residence. A series of telephone calls ensued while the parties attempted to reach an agreement as to the location of the meeting. During one of these calls, Patron-Montano informed the undercover officer that the suppliers of the cocaine had arrived at his residence. Ultimately, however, the parties were unable to agree on a location to complete the sale of the cocaine. Patron-Montano eventually telephoned the undercover agent and informed him that the suppliers were angry and were leaving his residence.

During the course of the telephone conversations, surveillance officers observed a vehicle arrive at Patron-Montano's residence. When the vehicle left, a marked police car followed it. A traffic stop was initiated and officers conducted a search of the vehicle. During the search, officers found a semi-automatic pistol, two cellular telephones, a pager, an address book, and 3993 grams of cocaine. The driver of the vehicle was identified as Modesto Sicairos and the passenger as Ramon Aguilar. After surveillance officers observed Patron-Montano and Aguirre leave their residence, officers also stopped their vehicle. The officers obtained consent to search the residence and found marijuana, cocaine residue, and a sawed-off shotgun.

A four-count indictment was returned against Patron-Montano, Sicairos, Aguilar, and Aguirre. Patron-Montano was charged in Count 1 of the indictment with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patron-Montano was not named in any of the remaining three counts. Patron-Montano pleaded guilty to the offense charged and a Presentence Investigative Report ("PSR") was prepared prior to his sentencing. In the original PSR, Patron-Montano's total offense level was calculated at twenty-seven and his criminal history category at I. The calculation of the total offense level included a three-level decrease to Patron-Montano's base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). The government objected to the three-level decrease and an amended PSR was prepared. As amended, the PSR did not recommend a decrease in Patron-Montano's base offense level for acceptance of responsibility. Patron-Montano filed an objection to the PSR, contesting the lack of a decrease for acceptance of responsibility and also contesting the lack of a two-level decrease to the base offense level under the safety value provisions of U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2.2

Three witnesses were called at Patron-Montano's sentencing hearing. The probation officer who prepared the PSR testified that the sole basis for not recommending the acceptance of responsibility decrease in the amended PSR was the government's contention that Patron-Montano had been untruthful in his statements about the extent of his co-conspirators' involvement in the conspiracy. The probation officer further testified that he determined Patron-Montano was not eligible for the safety valve decrease based on the government's statement that Patron-Montano had not disclosed all information he knew relating to the conspiracy.

The second witness, the undercover officer, testified that Sicairos, Aguilar, Aguirre, and Patron-Montano had given conflicting statements to investigators after their arrest. The officer testified that in his statement, Patron-Montano claimed he had obtained the cocaine from an individual named Ernesto. Specifically, Patron-Montano maintained that he went to Aguilar's residence to ask Aguilar if he knew anyone from whom he could obtain the cocaine and Aguilar reminded him of a potential supplier named Ernesto Garbonio. Patron-Montano then stated he contacted Garbonio who arranged to have Aguilar deliver the drugs to Patron-Montano. The officer testified that he checked computerized police records but was unable to locate the individual implicated by Patron-Montano. The officer also checked Patron-Montano's wallet but was unable to locate the telephone number for Garbonio that Patron-Montano claimed was in the wallet. The officer also testified that although Aguilar also implicated Garbonio in the conspiracy, no co-conspirator mentioned Garbonio's name until months after they were arrested. The officer testified that after considering all the statements given by Patron-Montano and his co-conspirators, he believed that Sicairos was the source of the cocaine and that Patron-Montano lied when he claimed to have contacted someone named Ernesto Garbonio.

Aguirre also testified at Patron-Montano's sentencing hearing. Aguirre testified that after he and Patron-Montano met with the undercover officer on the morning of May 28th, he drove Patron-Montano to Aguilar's residence. Aguirre stated that Patron-Montano told Aguilar he needed some drugs and Aguilar told Patron-Montano he would call him later. Aguirre testified that Patron-Montano gave Aguilar his pager number and then he and Patron-Montano left. Aguirre further testified that Aguilar and Sicairos later arrived at the residence he shared with Patron-Montano and that they brought the cocaine with them. The undercover officer had earlier testified that he believed Aguirre's statement over those made by Patron-Montano, Sicairos, and Aguilar because Aguirre's statement was most consistent with the activity observed by the surveillance officers.

After listening to all the testimony including an audiotape of the interview Patron-Montano gave to investigators, the district court concluded that Patron-Montano lied when he claimed he had contacted Garbonio to supply the drugs. Based solely on Patron-Montano's lie about the source of the drugs, the district court overruled both of Patron-Montano's objections to the amended PSR and sentenced Patron-Montano to ninety-seven months' imprisonment and four years supervised release. Patron-Montano filed this appeal.

II. DISCUSSION
A. Standard of Review

In this appeal, Patron-Montano contends the district court erred when it concluded he lied about the source of the cocaine. Patron-Montano further contends that because he truthfully provided investigators with all information he had concerning the offense of conviction, the district court erred when it denied him the two-level safety valve decrease. Patron-Montano also argues that the district court erroneously believed it was legally prohibited from granting him the three-level decrease for acceptance of responsibility because of the lie. This court reviews "the district court's legal interpretation of the [sentencing] guidelines de novo and review[s] its findings of fact for clear error, giving due deference to the district court's application of the guidelines to the facts." United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998) (citation omitted). A district court's factual finding is clearly erroneous only "if it is without factual support in the record or if [this] court, after reviewing all the evidence, is...

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