U.S. v. Beltran

• Decision Date: 12 June 2009
• Docket Number: No. 08-2191.,08-2191.
• Citation: 571 F.3d 1013
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro BELTRAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

571 F.3d 1013

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro BELTRAN, Defendant-Appellant.

No. 08-2191.

United States Court of Appeals, Tenth Circuit.

June 12, 2009.

Erlinda O. Johnson, Law Office of Erlinda Ocampo Johnson, LLC, Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney, (Gregory J. Fouratt, United States Attorney for the District of New Mexico, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before KELLY and LUCERO, Circuit Judges, and EAGAN,^* District Judge.

EAGAN, District Judge.

Defendant-Appellant Alejandro Beltran pled guilty to conspiracy to distribute 100 grams of more of heroin in violation of 21 U.S.C. § 846 and was sentenced to 151 months in prison. On appeal, Defendant contends that the district court erred when it denied his motion for a variance based on alleged sentencing factor manipulation. He argues that the district court was not bound by the more rigid standard for a downward departure for claims of outrageous governmental conduct, and the district court should have exercised its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the 18 U.S.C. § 3553(a) factors to vary downward from the applicable guideline range. He also contends that the district court erred by enhancing his sentence for his role in the offense and for possession of a firearm.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that Defendant's request for a variance was not governed by the pre-Booker standard for a departure for outrageous governmental conduct, but the district court did not abuse its discretion by imposing a sentence within the applicable guideline range. We further hold that the district court did not err in its application of the sentencing guidelines.

I. BACKGROUND

On October 23, 2007, a grand jury returned a twenty-two count indictment against Defendant and five others. The indictment resulted from a joint investigation of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) known as Operation Brown Sugar. Count One of the indictment alleged that Defendant conspired with others to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846. Specifically, the defendants were charged with conspiring to import heroin from Mexico with the use of altered shoes to conceal the heroin during transport, and distributing the heroin in Albuquerque, New Mexico. On November 21, 2007, pursuant to a plea agreement, Defendant pled guilty to an information charging him with conspiracy to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846. Under 21 U.S.C. § 841(b)(1)(B), Defendant faced a mandatory minimum sentence of five years and a statutory maximum sentence of 40 years.

Before the sentencing hearing, a presentence investigation report (PSI) was prepared. The PSI stated that Defendant's base offense level was 32 due to the stipulated drug quantity in the plea agreement. The probation officer recommended a two level enhancement under § 2D 1.1(b)(1) of the United States Sentencing Guidelines (USSG) for possession of a firearm during a drug trafficking offense, but the PSI did not contain an enhancement for Defendant's role in the offense under USSG § 3B1.1. Defendant received a three level decrease for acceptance of responsibility. Based on these findings and Defendant's criminal history category of I, the PSI recommended a total offense level of 31 and a sentencing range of 108 to 135 months. Defendant requested a downward variance, and objected to the two-level enhancement for possession of a firearm on the ground that he was the victim of outrageous governmental conduct because government agents allegedly engaged in conduct for the specific purpose of enhancing Defendant's sentence. The government objected to the PSI because it did not include an enhancement for Defendant's role in the offense, and requested a four-level enhancement under USSG § 3B1.1.

At the sentencing hearing on July 28, 2008, the government offered the testimony of three witnesses who participated in the investigation. Officer Mizel E. Garcia of the Albuquerque Police Department testified that he participated in undercover operations in coordination with the DEA. He participated in a controlled buy of heroin from Defendant and a co-conspirator, Rueben Mendez-Zavala, on August 31, 2007, and another officer reported to Officer Garcia that he observed that Defendant was armed with a small caliber handgun during the transaction. FBI Special Agent James Kraus testified that investigators intercepted telephone calls, by means of a wiretap, between Defendant and persons identified as "mom" and "dad" to arrange shipments of heroin to the United States. Special Agent Kraus testified that, when Defendant was arrested on October 23, 2007 following a controlled buy, agents recovered a .40 caliber Smith & Wesson automatic handgun from Defendant's jacket pocket. Defendant concealed the handgun during the controlled buy and agents were not aware of the handgun until they searched Defendant following his arrest. New Mexico State Police Officer Miguel Mendez testified that he made undercover buys from Defendant and specifically set up a controlled buy for October 23, 2007. He arranged the controlled buy for that date with the intention that Defendant would be arrested following the transaction, but he did not ask Defendant to bring a firearm to the sale.

The district judge reviewed the evidence presented at the sentencing hearing and the parties' objections to the PSI. He determined that Defendant should receive an enhancement under USSG § 2D1.1 for possession of firearm based on evidence showing that Defendant had the .40 caliber handgun in his jacket pocket at the time of his arrest. He sustained in part the government's objection to the PSI concerning the lack of an enhancement for Defendant's role in the offense, but found that a three level enhancement under USSG § 3B1.1 (rather than four) was appropriate. Although the evidence did not show that Defendant supervised five or more people, the district judge found that Defendant had a leadership role in an extensive drug trafficking organization, the organization used a sophisticated delivery method and transported a large amount of heroin, and Defendant supervised at least one other person. Based on these findings, Defendant's total offense level was 34 and his sentencing range was 151 to 188 months. The district judge denied Defendant's request for a variance based on alleged sentencing entrapment or sentencing factor manipulation. Finding that a sentence at the low end of the advisory guideline range would be reasonable, the district judge sentenced Defendant to 151 months imprisonment.

II. DISCUSSION

Defendant challenges the sentence imposed by the district court on three grounds. First, Defendant claims that the district court erred when it denied his motion for variance requesting a non-guideline sentence due to sentencing factor manipulation, sentencing entrapment, and consideration of the § 3553(a) factors. Second, Defendant asserts that the district court did not make specific findings supporting a three-level enhancement for his role in the offense and, considering the factual findings made by the district court, this enhancement was improper. Third, Defendant claims that the district court erred by imposing a two-level enhancement for his possession of a firearm during the charged offense, because the conduct of undercover agents constituted sentencing entrapment or sentencing factor manipulation.

A. Defendant's Request for a Variance

Defendant asserts that the district court erred by refusing to grant his request for a variance based on alleged sentencing entrapment or manipulation by government agents. At the sentencing hearing, Defendant requested a "variance" but relied on case law discussing the availability of a downward departure for sentencing entrapment or sentencing factor manipulation. While Defendant may have relied on law applicable to sentencing departures, his request for sentencing relief was phrased as a request for a variance. Appellant's App. at 220 ("And I would ask that the Court ... consider that factor of sentencing factor manipulation in granting a variance in this case"). The district court treated Defendant's argument as a request for a variance and did not address the possibility of a downward departure for sentencing factor manipulation. Id. at 245. Therefore, we will treat Defendant's argument concerning sentencing entrapment or manipulation as a request for a variance under the factors set forth in 18 U.S.C. § 3553(a), and consider how the law applicable to departures on the ground raised by Defendant informs the district court's decision to grant or deny a variance.

This court reviews a district court's decision to grant or deny a request for variance under a deferential abuse of discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.2008). "A district court abuses its discretion `when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.'" Id. (quoting United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.2008)). When the district court's sentence falls within the properly calculated guideline range, this Court must apply a rebuttable presumption that the sentence is reasonable. United States v. Sells, 541 F.3d 1227, 1237 (10th Cir.2008). "The presumption of reasonableness is, however, `a deferential standard [the defendant] may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a).'" Id. (quoting United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006)).

Defendant sought a variance based on alleged sentencing factor manipulation by government agents and application of the § 3553(a) factors. He claims that...