U.S. v. Avila, 89-10390

• Decision Date: 08 June 1990
• Docket Number: No. 89-10390,89-10390
• Citation: 905 F.2d 295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Silverio Alvarado AVILA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 295

905 F.2d 295

UNITED STATES of America, Plaintiff-Appellee, v. Silverio Alvarado AVILA, Defendant-Appellant.

No. 89-10390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 1990.

Decided June 8, 1990.

Martin R. Boyers, Las Vegas, Nev., for defendant-appellant.

Richard J. Pocker, U.S. Atty. D. Nev. by Joseph M. Angelo, Jr. (on brief) and Anne Kristina Perry (argued), Asst. U.S. Attys., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TANG, NORRIS and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Silverio Alvarado Avila ("Avila") appeals his sentence following a consolidated guilty plea, for conspiracy to distribute and distribution of a mixture containing heroin, distribution of cocaine, and conspiracy to distribute cocaine. We affirm the district court's sentence.

BACKGROUND FACTS

On September 22, 1988, Avila was indicted for three separate drug trafficking conspiracies. Avila's involvement in the conspiracies varied from that of the supplier to that of the salesman and distributor. During the course of the conspiracies, Avila indicated that he could obtain any amount of drugs that the undercover policeman, "Bobby," requested. Avila had a reputation for being a "heavy drug dealer" involved in trafficking on the multi-kilo level.

Avila was granted pretrial release as to all of the indictments. From September 21, 1988 through February 24, 1989, Avila violated his pretrial release by absconding from supervision. Three of his four co-conspirators were convicted and sentenced in January. The fourth absconded from pretrial release and remains a fugitive.

On May 1, 1989, pursuant to a plea agreement with the government, Avila pled guilty to conspiracy to distribute cocaine, distribution of cocaine, and conspiracy to distribute heroin. The plea agreement indicated that 2,736.15 grams of cocaine were distributed as a result of the conduct alleged in the three indictments, and that Avila's base offense level was 28. The court then ordered that a presentence report be prepared.

The presentence report indicated that the total weight of all drugs involved in the conspiracy was 3,128.00 grams of cocaine, that the base level offense was 28 and that Avila had a criminal history category of I. The report also recommended a two point enhancement for obstruction of justice and a four point enhancement for Avila's role as a "leader or organizer." The total offense level was computed as 34, which carries an applicable guideline range of 151-188 months.

Avila filed a joint sentencing statement objecting to the presentence report's failure to grant a two point reduction for acceptance of responsibility and its conclusion that Avila had obstructed justice. Avila also challenged the standard of proof applied in determining whether a person was a participant and whether U.S.S.G. Sec. 3B1.1(a) applied to Avila.

Avila was sentenced on August 2, 1989. The court incorporated by reference the presentence report and sentenced Avila to 160 months with a five year term of supervised release.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742.

We review the district court's findings of fact for clear error, United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989), and its conclusions of law de novo. United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir.1989). The standard of proof to be employed in resolving factual disputes during the sentencing process is the "preponderance of the evidence" standard. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). Where the government seeks to raise the offense level, it bears the burden, where the defendant seeks to lower the offense level, he bears the burden. Id.

DISCUSSION

Obstruction of Justice

The presentence report recommended an upward adjustment for obstruction of justice because Avila absconded from supervised release and remained a fugitive for five months. Avila does not claim that he did not obstruct justice, but he contends that the court failed to make sufficient findings of fact as to whether Avila's obstruction of justice could be mitigated by his voluntary surrender of himself to the authorities at the end of five months.

The government claims that Avila never raised this objection below and is therefore precluded from raising it on appeal. We disagree. The record reveals that Avila raised the question of mitigation in his Joint Sentencing Statement. He therefore gave the government sufficient notice that he intended to challenge that aspect of the presentence report.

Avila relies upon United States v. Roberson, 872 F.2d 597, 609 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989), in asserting that a finding of obstruction is not mandatory, even if the facts support that finding, since subsequent cooperative efforts may mitigate the earlier obstruction. Avila's reliance upon Roberson is misplaced. Roberson, 872 F.2d at 609, expressly states that once the court finds that the defendant obstructed justice, then the two-point enhancement for obstructing justice is mandatory.

The language in section 3C1.1 also indicates that an addition of two points upon finding an obstruction of justice is mandatory. It, like other guideline provisions, simply says that if a certain thing has occurred, a certain number of points are to be added. We decline to make its application unclear by glossing it as Avila requests. Thus, we hold that once the court finds facts sufficient to constitute an obstruction of justice, the point addition for the obstruction is mandatory. The court can account for a subsequent mitigating act when determining where in the applicable guideline range to assign the defendant's sentence, or by making other allowed adjustments.

Acceptance of Responsibility

The probation officer concluded that since Avila obstructed justice by skipping bail, Avila was not entitled to a two-point reduction for acceptance of responsibility. Avila contends that the court erred in so finding.

Section 3553(a)(5) provides that the court, in determining the particular sentence to be imposed, shall consider any pertinent policy statement issued by the Sentencing Commission that is in effect on the date the defendant is sentenced. Avila was sentenced on August 2, 1989. At the time Avila was sentenced, U.S.S.G. Sec. 3E1.1, Application Note 4 provided that: "An adjustment under this section is not warranted where a defendant perjures himself, suborns perjury, or otherwise obstructs the trial or the administration of justice ..., regardless of other factors."

Avila contends that a finding of obstruction does not preclude a finding of acceptance of responsibility, despite the seemingly mandatory language of Application Note 4. The only courts that have expressly addressed the question have reached the opposite conclusion. See United States v. Mayard, 891 F.2d 530, 532 (5th Cir.1989); United States v. McDowell, 888 F.2d 285, 292-93 (3d Cir.1989); United States v. Holland, 884 F.2d 354, 359-60 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); United States v. Roberson, 872 F.2d 597, 610 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); United States v. Rafferty, 710 F.Supp. 1293, 1296 (D.Hawaii 1989). Cf. United States v. Soliman, 889 F.2d 441, 442 (2d Cir.1989)(enhancing sentence for obstruction of justice and reducing for acceptance of responsibility without explanation.) We join these courts in finding that the 1987 version of Application Note 4 expressly precludes a finding of acceptance of responsibility.

Avila contends that even if we find that the 1987 version of Application Note 4 prevents him from receiving a two-point reduction for acceptance of responsibility, he is nevertheless entitled to the two-point reduction under the 1989 amended version of Application Note 4. Avila argues that the 1989 version is merely a clarifying amendment, and as such, under United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990), it should be applied in this case. ¹

Avila's reliance upon Scroggins is misplaced. The court in Scroggins found that an amendment intended only to clarify constitutes "strongly persuasive evidence of how the Sentencing Commission originally envisioned that the courts would apply the affected guideline." Id. The amendment at issue in this case, however, had the dual purpose of clarifying and adding the "extraordinary cases" provision. ² Avila attempts to conflate the two purposes. Since the amendment effected a substantive change by adding the "extraordinary cases" provision, it is not instructive on how to apply the 1987 version of the Application Note, which contained no such exception. ³

"Organizer or Leader"

Avila contends that the court erred in finding that he was an "organizer or leader" without making specific findings. Avila claims that the sentencing court was so "preoccupied" with the question of the proper burden of proof and the number of participants that it never made the required findings as to how Avila should be classified. The government contends that the court never reached the issue because Avila never raised the question.

The record reveals that Avila's arguments at sentencing focused on the number of participants involved in the three conspiracies. However, the record also shows that Avila contested the court's characterization of his role as an "organizer or leader" in his Joint Sentencing...