U.S. v. Moncivais

• Decision Date: 10 July 2007
• Docket Number: No. 05-6689.,05-6689.
• Citation: 492 F.3d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONCIVAIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

492 F.3d 652

UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONCIVAIS, Defendant-Appellant.

No. 05-6689.

United States Court of Appeals, Sixth Circuit.

Submitted: June 7, 2007.

Decided and Filed: July 10, 2007.

ON BRIEF: James A. Simmons, Nashville, Tennessee, for Appellant. Stuart J. Canale, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Alberto Moncivais appeals his sentence of 336 months imprisonment imposed following a guilty plea. Defendant pled guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Defendant contends that: (1) the district court erred by sentencing him based on evidence that was inadmissible as a matter of law due to its unreliability; (2) the district court erred by concluding that Defendant was an "organizer or leader" and enhancing his advisory United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") range by four points pursuant to U.S.S.G. § 3B1.1(a); (3) the government breached the plea agreement; (4) the district court violated Defendant's right to due process by finding facts at sentencing by a preponderance of the evidence; and (5) the district court violated Defendant's rights under the Confrontation Clause by admitting testimonial hearsay at sentencing, notwithstanding the fact that the declarant did not testify, and Defendant had not had an opportunity to cross-examine the declarant.

For the reasons stated below, we AFFIRM Defendant's conviction and sentence.

BACKGROUND

Jerome and Anthony Davis were arrested on April 6, 2001, after providing undercover law enforcement officers with ten kilograms of cocaine. The Davis brothers agreed to cooperate, and their efforts led law enforcement officials to their supplier, Ruben Laurel, and ultimately to Defendant, a co-conspirator. Defendant was arrested at the Memphis airport on April 9, 2001, and subsequently indicted on several counts of conspiracy to distribute cocaine.

After Defendant filed a motion to suppress, which was denied, Defendant entered into a plea agreement (the "Agreement"). He agreed to plead guilty to conspiracy to possess with intent to distribute approximately 68 kilograms of cocaine as charged in count one of a superseding indictment. The government agreed to move for dismissal of count two of the superseding indictment at sentencing. Consistent with the quantity of 68 kilograms of cocaine charged in the superseding indictment, paragraph 5 of the Agreement stated that "[f]or the purpose of calculating the base offense level pursuant to [U.S.S.G. § 2D1.1], the United States agrees to recommend that the relevant conduct which is readily provable as to the defendant would result in a base offense level of 36." J.A. at 123. Paragraph seven of the Agreement provided that:

7. The government agrees that it will not recommend or request a sentencing enhancement for the defendant's role in the offense (§ 3B1.1) during the preparation of the Presentence Investigation Report (PSR). In this regard, Mr. MONCIVAIS understands that the government's position is not binding on the court or the probation office and that if the court does apply an enhancement for leadership role, he will not be allowed to withdraw his plea of guilty. This is not intended to limit either party in responding to issues raised at the sentencing hearing.

J.A. at 123-24. As a result of the Agreement, the district court issued an order changing Defendant's plea to guilty on June 10, 2002.

Instead of recommending a Guidelines base offense level of 36, as called for in the Agreement, the presentence investigation report ("PSR") prepared by the probation office recommended that the district court determine Defendant's Guidelines base offense level to be 38. The probation office made this recommendation after the government provided the probation office with information the government had obtained from Ruben Laurel, a co-conspirator.¹ The information provided by Laurel suggested that Defendant had been involved in the conspiracy since it began in September of 2001 (as opposed to coming in after the initial period as Defendant claimed), and, consequently, he was responsible for a substantially higher quantity of drugs. Instead of the 68 kilograms of cocaine stated in the plea agreement, the PSR calculated Defendant's recommended Guidelines range based on 299 kilograms of cocaine and over 1,000 kilograms of marijuana. The PSR also recommended a four-level enhancement for Defendant's role in the offense as an "organizer or leader of criminal activity that involved five or more participants or was otherwise extensive." J.A. at 550; see U.S.S.G. § 3B1.1(a). The probation office relied heavily on information that the government obtained from Laurel in making these recommendations. Defendant filed timely objections to the PSR.

Defendant's first sentencing hearing took place on November 4, 2002. The government, through the testimony of Thomas Boock of the Drug Enforcement Agency Task Force, offered into evidence a "DEA 6," which was a report entitled "Proffer Statement of Ruben Laurel." J.A. at 355. Defendant objected to this statement on the ground that it constituted unreliable hearsay. One of the government's witnesses, Seanda Reed of the probation office, stated that this statement was used by the probation department to determine the relevant offense conduct when calculating Defendant's recommended base offense level in the PSR.

At sentencing, the government supported the Guidelines enhancement for Defendant's role in the offense, and it did not strenuously contest the probation office's recommendation as to the drug quantities. Although "the government [ ] reiterated its recommendation concerning quantity," (i.e., that the quantity of cocaine should be determined to be 68 kilograms), it also stated that "[t]he court has heard proof now, and we will submit that to the court" (which tended to show that the actual quantity was higher). J.A. at 385. The government also argued that the evidence demonstrated that Defendant was an organizer or leader, and that the applicable Guidelines range should be enhanced by four levels on account of this conduct on the part of Defendant.

The district court discussed Laurel's proffer in detail:

[T]he statement of Laurel as summarized in the report is richly detailed and is within itself entirely consistent. It is consistent also with the facts, though it contains a great deal more detail than the facts known by the court at the time of the change of plea. . . .

The statement of Laurel, though, goes on for 10 or 11 pages, . . . and provides an extraordinary amount of detail with respect to the way in which he met Mr. Moncivais, the dealings the two of them had, the loyalty Mr. Moncivais displayed or purported at least to Mr. Laurel when he learned that Mr. Laurel had not turned his name over as the marijuana supplier when Mr. Laurel was first arrested and went to prison and the dealings that emanated from that earlier relationship and went on for a period of years culminating here in Memphis.

The statement is not only internally consistent and full of detail, but I find that it is essentially a credible statement, and it is a statement which certainly has the kinds of indicia of reliability that make it appropriate for receipt and for consideration as evidence in a sentencing calculation. It exceeds, in other words, the minimum indicia of reliability that the Sixth Circuit has instructed sentencing judges to identify when considering otherwise nonadmissible evidence, that is evidence that would not be admissible under the rules of evidence. This is hearsay. Even so, it has attributes of being admissible hearsay in that it is a statement against penal interest and substantially against penal interest, and it exposes or would tend to expose Mr. Laurel to very high levels of sentencing enhancement for his own activities which include organizing activities with respect to the delivery of cocaine and marijuana here in Memphis.

J.A. at 406-08. The district court found that, based primarily on Laurel's proffer statement, the correct Guidelines base offense level was 38.

The district court next concluded that Defendant was an organizer or leader for the purpose of U.S.S.G. § 3B1.1(a). The district court identified at least five participants. This included "four individuals that were nothing other than drivers," Laurel, the four sub-distributors (the Davis brothers, "Pettis," and a man nicknamed "Dookie"), and other participants. J.A. at 413. The district court concluded that "from the presentence report and from Laurel's statement, I would estimate the number of participants to be probably ten or 12 minimal." J.A. at 413. The district court also found that Defendant's behavior demonstrated that he was an organizer or leader. This finding was based on Laurel's proffer and a surreptitiously recorded telephone call between Laurel, Anthony Davis, and Defendant.² The district court considered the telephone call particularly significant because Laurel was "begging [Defendant] to listen to what [Anthony Davis] had to say" and Defendant "figuratively turned his back" on Davis and "figuratively looked Laurel in the eye and said, you know what you have to do. To me, that's a pretty powerful indicat[or] of a supervisory relationship. He was giving orders." J.A. at 415. The district court noted that, in order for the enhancement to be proper, it need not find that Defendant supervised five other individuals; instead, the enhancement was proper if Defendant supervised at least one individual, the criminal activity involved five individuals, and there was some evidence of Defendant's organizational or leadership role. Defendant's conduct, the district court concluded, satisfied this standard.

Finally, the district...