U.S. v. Bueno, 04-2289.
| Decision Date | 17 April 2006 |
| Docket Number | No. 04-2289.,No. 04-2338.,04-2289.,04-2338. |
| Citation | 443 F.3d 1017 |
| Parties | UNITED STATES of America, Appellant, v. Mario Alberto BUENO, Appellee. United States of America, Appellee, v. Mario Alberto Bueno, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Assistant U.S. Atty., Jim Lynn, Jefferson City, MO, for appellant/cross-appellee.
Theodore R. Naimy, Jr., Valley Village, CA, for appellee/cross-appellant.
Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
Mario Alberto Bueno pleaded guilty to possessing with intent to distribute five kilograms or more of powder cocaine. The district court reduced Bueno's U.S. Sentencing Guidelines offense level and granted a downward departure from the guidelines, resulting in a sentence of eighteen months in prison and three years of supervised release. The government appeals this sentence. Bueno cross-appeals, arguing that the district court erred in denying his motion to suppress and in quashing his subpoena duces tecum. We affirm on Bueno's cross-appeal, and we vacate the sentence and remand to the district court for resentencing.1
On January 9, 2001, Corporal Rex Scism and Trooper Kirk Davis (collectively, officers) of the Missouri State Highway Patrol stopped Bueno for a traffic violation. The officers had been traveling westbound on Interstate 70 in their patrol car and met Bueno's vehicle traveling eastbound on the same highway. Scism testified that he observed that the vehicle did not have a front license plate and proceeded to stop the vehicle. Scism approached the vehicle and advised Bueno that he had been stopped because his vehicle was lacking license plates and because the officers could not observe a temporary vehicle registration affixed to the vehicle. Scism asked Bueno for his license and registration. Bueno handed over his license and pointed to the temporary registration that was affixed to the vehicle's windshield. The temporary registration stated that the vehicle belonged to someone other than Bueno.
After examining the temporary registration, Scism ordered Bueno to exit his vehicle and wait in the patrol car while the officers checked on the license and temporary registration and until they had completed the traffic stop. While Bueno was waiting in the patrol car, Scism inquired about the owner of the vehicle and Bueno's destination. Bueno responded that the vehicle belonged to his brother and that he was traveling from California to St. Louis, Missouri, where he would meet his brother and they would purchase some cars to transport back to California.
After the officers completed checking Bueno's license and registration, they documented the warning that they gave to Bueno, returned his license and registration, and told Bueno to have a safe trip. At that point, Bueno began to exit the patrol car. Scism testified that he then asked Bueno for consent to search his vehicle and that Bueno said "Sure, go ahead." Davis's testimony corroborates Scism's account. Bueno testified that Scism did not ask for consent to search, but instead grabbed Bueno's arm, put him on the hood of the vehicle, told him that he was going to have to search the vehicle, and that Bueno raised his hand and said "Fine." Upon searching the vehicle, Scism found a false floor and an access door leading to a compartment that was not standard for such a vehicle. Because this caused him to suspect that Bueno was trafficking contraband, he placed Bueno in handcuffs. Scism then returned to the vehicle and found 76.9 kilograms of cocaine inside the compartment. He then read Bueno his rights and arrested him for drug trafficking.
Bueno pleaded guilty to possessing with intent to distribute five kilograms or more of powder cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Sentencing took place on April 28, 2004. In accordance with the Presentence Investigation Report (PSR), the district court applied the 2002 version of the sentencing guidelines2 and determined that Bueno's base offense level was thirty-six and that § 841(b)(1)(A) required a mandatory minimum sentence of ten years in prison. The district court further determined, however, that Bueno qualified for the safety valve reduction pursuant to § 5C1.2 of the guidelines. The district court also concluded that Bueno was entitled to a two-level reduction under § 2D1.1(b)(6) and a three-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility. This brought Bueno's adjusted offense level to thirty-one, which provided for a sentencing range of 108 to 135 months.
Bueno then argued that he was entitled to a minimal participant reduction under § 3B1.2. To buttress his claim that other participants were also involved in the offense, Bueno offered evidence that the vehicle's temporary registration was in another's name, that personal papers of another were found in the vehicle, and that Bueno possessed driving directions to Chicago that were in another's handwriting. Bueno also explained that Carlos, a man whom he had asked for a loan, gave him the job of driving the vehicle and that another participant met him at the airport to provide him with the vehicle. Bueno further explained that he did not fully cooperate with the police in identifying Carlos because he was afraid that Carlos would retaliate against him.
Over the government's objections, the district court granted Bueno's request for a minimal participant reduction. This lowered Bueno's offense level to thirty under § 2D1.1. Taking into account the two-level reduction under § 2D1.1(b)(6), the three-level reduction for acceptance of responsibility, and the four-level reduction for minimal participation, the district court determined Bueno's total offense level to be twenty-one. This corresponded to a sentencing range of thirty-seven to forty-six months.
Finally, Bueno argued that he was entitled to a downward departure for aberrant behavior under § 5K2.20 and family ties and responsibilities under § 5H1.6, as well as a general departure under § 5K2.0. Bueno argued that a departure was warranted because this was his first offense, he was under great financial pressure when he committed the offense, his wife was suffering from lupus and rheumatoid arthritis, and because, in his view, this was a case of exceptional circumstances. The district court granted a downward departure for the reasons stated by Bueno and, as set forth above, sentenced Bueno to eighteen months in prison and three years of supervised release. This constituted a fifty-one percent departure from the bottom of the guidelines range for an offense level of twenty-one and an eighty-three percent departure from the bottom of the guidelines range for an offense level of thirty-one.
In United States v. Booker, the Supreme Court struck the statutory provisions that made sentencing within the U.S. Sentencing Guidelines mandatory. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After Booker, a sentencing judge must still determine the proper guidelines range and determine whether a traditional departure is appropriate under the guidelines. United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005). These considerations result in a guidelines sentence. Id. at 1003. Once this guidelines sentence is determined, the district court must then consider all of the factors enumerated in 18 U.S.C. § 3553(a) to determine whether to impose the sentence under the guidelines or a non-guidelines sentence. Id.
The government argues that the district court erred in determining that Bueno was entitled to a downward adjustment as a minimal participant under § 3B1.2 of the guidelines. We review the district court's determination for clear error. See United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006). We will affirm a district court's determination unless it is not supported by substantial evidence, it resulted from an erroneous conception of the applicable law, or we firmly believe, after reviewing the record, that a mistake has been made. United States v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999).
Section 3B1.2 provides that a defendant's role in an offense may be reduced by four levels if the offense involved multiple participants and the defendant was substantially less culpable than the average participant. U.S.S.G. § 3B1.2, cmt. nn. 2 & 3. "The propriety of a downward adjustment is determined by comparing the acts of each participant in relation to the relevant conduct for which the participant is held accountable and by measuring each participant's individual acts and relative culpability against the elements of the offense." Ramos-Torres, 187 F.3d at 915. Congress intended the downward adjustment for a minimal participant to be used infrequently, U.S.S.G. § 3B1.2, cmt. n. 4, and the defendant has the burden of proving his eligibility for the decrease in the offense level, United States v. Carrazco, 91 F.3d 65, 67 (8th Cir.1996).
Bueno offered no evidence of the relative culpabilities of other participants in the offense and therefore did not carry his burden of proving that he was eligible for the reduction. Accordingly, the district court's determination that Bueno was entitled to a downward adjustment because of his minimal participation in the offense is not supported by substantial evidence and was clearly erroneous.
We review for abuse of discretion a district court's decision to grant a downward departure from the appropriate guidelines range. United States v. Porter, 439 F.3d 845, 848 (8th Cir.2006); United States v. Hawkman, 438 F.3d 879, 882 (8th Cir.2006). A district court may impose a sentence outside the range if it determines that the circumstances of the case are so unusual that the case falls outside the heartland of cases covered by the guidelines. U.S.S.G. § 5K2.0, cmt.; United States v. Rodriguez, 414 F.3d 837, 847-48 (8th Cir.2005)....
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