U.S. v. Docampo

• Decision Date: 15 June 2009
• Docket Number: No. 08-10698.,08-10698.
• Citation: 573 F.3d 1091
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Andrew DOCAMPO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

573 F.3d 1091

UNITED STATES of America, Plaintiff-Appellee, v. John Andrew DOCAMPO, Jr., Defendant-Appellant.

No. 08-10698.

United States Court of Appeals, Eleventh Circuit.

June 15, 2009.

William Mallory Kent, Law Office of William Mallory Kent, Jacksonville, FL, for Docampo.

Susan Hollis Rothstein-Youakim, Tampa, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before BARKETT, PRYOR and FARRIS,^* Circuit Judges.

PRYOR, Circuit Judge:

The main question presented by this appeal involves the reasonableness of the sentence of a young adult who was arrested in a sting operation that involved the armed robbery of a fictional stash house of cocaine and who later threatened a witness who testified against him. The question is whether the district court abused its discretion when it sentenced John Andrew Docampo Jr. to a term of imprisonment of 270 months, instead of the mandatory minimum term of 180 months that he requested, even though some conspirators pleaded guilty and received less severe federal sentences and other conspirators who were juveniles when arrested pleaded guilty as adults in state court and received terms of probation. At trial, Docampo was convicted of charges involving a conspiracy to possess and distribute cocaine and possession of a firearm in furtherance of that conspiracy. The district court sentenced Docampo to a term of 210 months, which was within the guidelines range, for the conspiracy charges and a consecutive mandatory minimum term of 60 months for possession of the firearm. Because the other conspirators either pleaded guilty and agreed to cooperate or were not prosecuted in federal court, we conclude that they are not similarly situated to Docampo and any disparity in sentences is warranted. See 18 U.S.C. § 3553(a)(6). Docampo's sentence is reasonable. Because Docampo's other arguments about the admission of hearsay, sentencing factor manipulation, and his request for a minor role reduction all fail, we affirm his convictions and sentences.

I. BACKGROUND

The sting operation was conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. On September 21, 2005, undercover agent Richard Zayas met Isail Reyes through a confidential informant. During the meeting, Reyes arranged for Agent Zayas to purchase a firearm from Christian Carmona. Agent Zayas again met with Reyes and the confidential informant on September 27 to discuss purchasing additional firearms and narcotics. During that meeting, Reyes stated that he had experience committing robberies that involved cocaine and could find other individuals with similar experience to assist him in a robbery.

On October 17, Agent Zayas met Reyes again, under the guise of purchasing a firearm, and told Reyes about a house used to store large amounts of cocaine. Agent Zayas asked if Reyes was interested in robbing the stash house. Reyes met with Agent Zayas on October 26 and agreed to rob the stash house.

On November 1, Agent Zayas and the confidential informant met with Reyes, Sebastian Luengas, and Louis Alex Gutierrez to discuss the robbery. Agent Zayas provided information about the stash house, including the procedure for delivering cocaine and the number of armed individuals inside the house. According to Agent Zayas's testimony, Reyes, Gutierrez, and Luengas "became animated and engaged in conversation as to their plan as to how they were going to commit the robbery." They discussed being armed and the possibility of killing persons inside the house. Agent Zayas testified, "They stated they had pistols available at that point, but that they wished to obtain a rifle to also assist them in the robbery."

Agent Zayas agreed to meet Reyes and all other participants at Reyes's residence on November 3 to depart for the robbery. On that day, Agent Zayas sent the confidential informant to Reyes's residence to tell Reyes and the other individuals present, including Docampo, to meet Agent Zayas at Albertson's grocery store. Reyes, the confidential informant, Gutierrez, Luengas, Docampo, Carmona, and Davin Powell arrived at the grocery store in two vehicles and parked next to each other. Agent Zayas stood between the two vehicles and, through the open windows, provided information about the stash house to the individuals in the vehicles.

Docampo left one of the vehicles, approached Agent Zayas, and engaged the agent in a conversation about the robbery. Agent Zayas testified that Docampo "took over the conversation and began to express his views of how he saw the robbery." According to Agent Zayas, Docampo "began to say what should occur, based upon his experience. He stated that . . . he had been involved in [robberies] before."

After the conversation with Docampo, Agent Zayas confirmed that all present wanted to participate in the robbery, and Agent Zayas instructed them to follow him to a warehouse where they would later deliver his portion of the proceeds from the robbery. Docampo shook hands with everyone in the vehicle, and Agent Zayas then led the two vehicles to a storage facility. When they arrived at the storage unit, Agent Zayas told Reyes that he had received a page from the individuals at the stash house and went to make a phone call.

The tactical team attempted to surround and arrest the suspects, but the agents were unable to secure one avenue of escape. Reyes, along with Agent Zayas, ran from the area. While Reyes was attempting to elude the agents, Agent Zayas saw him remove a pistol from his pants and throw it over the perimeter wall of the storage facility. Reyes was arrested later by the Sheriff's Office of Hillsborough County. Docampo, Carmona, Luengas, Gutierrez, and Powell were arrested at the scene.

Docampo, Gutierrez, and Reyes were indicted for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), possession of firearms in furtherance of the conspiracy, 18 U.S.C. § 924(c)(1)(A), and conspiracy to possess firearms in furtherance of a drug trafficking crime, id. § 924(o). The charges of drug conspiracy and firearm possession against Docampo were dismissed based on violations of the Speedy Trial Act, but Docampo, Gutierrez, and Reyes were indicted again a month later on identical charges.

Gutierrez and Reyes pleaded guilty and testified against Docampo. Powell, Luengas, and Carmona were juveniles when arrested, but were prosecuted in state court as adults. Luengas and Powell pleaded guilty and were sentenced to terms of probation. Carmona was killed in an unrelated crime.

At trial, Docampo was convicted of all charges. Edwardo Lorenzo testified that Luengas, in the presence of Docampo, invited him to participate in a robbery and, when he declined the invitation, Docampo asked if he could borrow a gun from Lorenzo. Lorenzo identified the gun that Reyes threw behind the wall of the storage facility as the firearm Lorenzo lent Docampo. Lorenzo also testified about a phone call Docampo made to Lorenzo's girlfriend during which Docampo told Lorenzo's girlfriend that "[e]ither bad things would happen to [Lorenzo] or somebody that [he] was close to if [he] was to testify." Docampo objected to the testimony as hearsay, but the district court overruled the objection. Powell testified that Docampo was a willing participant in the planning of the robbery of the stash house. Gutierrez testified that Docampo brought a gun with him on the day of the robbery and volunteered to take a more active role in the robbery. Video and audio evidence of the meetings confirmed the testimonies of Agent Zayas and the other witnesses.

The presentence investigation report stated that, based on the amount of cocaine involved, Docampo had a base offense level of 34, which was increased by two levels for obstruction of justice based on the threat to Lorenzo's girlfriend. The report provided a total offense level of 36, a criminal history of I, a guideline range of 188 to 235 months of imprisonment for the conspiracy charges, and a consecutive mandatory minimum sentence of 60 months of imprisonment for the charge of possession of a firearm. Docampo challenged the enhancements, argued that he was a victim of sentencing factor manipulation, and sought a reduction in his offense level based on his minimal role.

At Docampo's sentencing hearing, Dr. Michael Maher testified that, when the sting operation occurred, Docampo functioned at the level of a 16- or 17-year-old instead of his actual age of 18 and was more inclined to engage in risky and morally questionable behavior than a young adult. Dr. Maher testified that Docampo was easily susceptible to the robbery scenario, but knew the difference between right and wrong and understood the legal consequences of bringing a firearm to a robbery. Reyes testified that Docampo was not supposed to participate in the robbery, but showed up and insisted that he had experience with robberies and wanted to participate.

Before the sentencing hearing, Docampo filed a sentencing memorandum in which he admitted that he had called Lorenzo's girlfriend before trial and was upset about Lorenzo testifying against him. Docampo also admitted that he had called Lorenzo's girlfriend back five or ten minutes later to apologize. At the sentencing hearing, Agent Michael Gistinger testified that he spoke to Lorenzo about the threatening phone call Docampo made to Lorenzo's girlfriend. Agent Gistinger also spoke to Lorenzo's girlfriend, who was reached at a phone number provided by Lorenzo, and she confirmed that she had received two calls from Docampo. Agent Gistinger testified that Docampo threatened Lorenzo and his family if he testified, and both Lorenzo and his girlfriend felt threatened.

The district court sentenced Docampo to 210 months of imprisonment for the conspiracy counts to be followed by the mandatory minimum sentence of 60 months of imprisonment for the firearms conviction. Docampo requested that the...