U.S. v. Preciado, 02-3124.

• Decision Date: 18 July 2003
• Docket Number: No. 02-3533.,No. 02-3124.,No. 02-3431.,02-3124.,02-3431.,02-3533.
• Citation: 336 F.3d 739
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio PRECIADO, also known as Emilio Mendoza-Valencia, Defendant-Appellant. United States of America, Plaintiff-Appellee. v. Pablo Borges-Cano, also known as Jaimie Samorano Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Humberto Sanchez, also known as Humberto Sanchez-Hernandez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

336 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, v. Rogelio PRECIADO, also known as Emilio Mendoza-Valencia, Defendant-Appellant.

United States of America, Plaintiff-Appellee. v. Pablo Borges-Cano, also known as Jaimie Samorano Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Humberto Sanchez, also known as Humberto Sanchez-Hernandez, Defendant-Appellant.

No. 02-3124.

No. 02-3431.

No. 02-3533.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2003.

Filed: July 18, 2003.

Rehearing and Rehearing En Banc Denied: August 21, 2003.

COPYRIGHT MATERIAL OMITTED

Stephen V. Grigsby, Minneapolis, MN, for appellant Preciado.

Andrea George, Minneapolis, MN, for appellant Borges-Cano.

Kurt B. Glaser, Minneapolis, MN, for appellant Sanchez.

Joseph T. Dixon, III, AUSA, Minneapolis, MN, for appellees in all three cases.

Before LOKEN, Chief Judge, BRIGHT and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Rogelio Preciado, Pablo Borges-Cano, and Humberto Sanchez were charged with possession with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and with conspiracy to do the same, in violation of 21 U.S.C. § 846. Preciado and Borges-Cano pled guilty to conspiracy and were sentenced by the district court¹ to 151 and 135 months respectively; their appeals raise sentencing issues. Sanchez was convicted by a jury on both counts and was sentenced to 121 months; he appeals on multiple grounds. We affirm.

In August 2001 Victor Lopez-Reyes, named in the indictment as a coconspirator, made arrangements with a confidential government informant for the sale of five pounds of methamphetamine. On September 7, 2001, Lopez-Reyes went to the liquor store where the informant worked to arrange the sale for later that day. Law enforcement agents established surveillance around the area, but they withdrew after they heard the deal might not take place that day. Preciado and Borges-Cano later showed up at the liquor store to make the sale, however, and the informant passed this news on to the agents. They needed time to set up surveillance again so they told the informant to tell Preciado and Borges-Cano that there would be a delay because he would have to get the money for the deal. The informant described Preciado and Borges-Cano to the agents as well as a red Nissan Sentra he had observed. Surveillance officers then located the Sentra in the parking lot of a nearby bar. They also saw Preciado and Borges-Cano walking around before getting into a black Volkswagen Jetta and driving back to the liquor store. The two waited outside the store for over an hour until the informant, following his instructions, told them he had the money and would do the deal in ten to fifteen minutes at a carwash down the street.

Preciado and Borges-Cano first drove to the carwash and then turned around and went to the bar parking lot where the red Sentra was. Agents saw Borges-Cano get out of the Volkswagen and walk up to the entrance of the bar just as Sanchez came out. The two walked right over to the Sentra and got in. Sanchez started the car, waited for Preciado to drive out of his parking spot, and then followed Preciado to the exit to the street where both cars were stopped. All three were arrested, and approximately five pounds of methamphetamine was found inside an open Coca Cola box in the back seat of the Sentra. Packaging material was found in the trunk. A surveillance officer testified that he had observed the Coca Cola box on the backseat of the Sentra as it sat in the lot. The agents doing surveillance of the lot reported that no one had been seen putting anything into the car while it was parked outside the bar.

Preciado pled guilty on the first day of trial after the jury was empaneled and received a two level downward adjustment under the guidelines for acceptance of responsibility. He contends that he should have received a third level adjustment for timely acceptance because the district court should not have rejected his earlier attempt to plead guilty five days before trial. We review a decision to deny an acceptance of responsibility adjustment for clear error. See United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir.2000).

At the time of Preciado's sentencing, § 3E1.1(b)(2) of the United States Sentencing Guidelines provided a one level downward adjustment for timely notice of an intent to plead guilty, thereby saving the government trial preparation. United States Sentencing Commission, Guidelines Manual, § 3E1.1(b)(2) (2001) [U.S.S.G.].² Although the government had originally agreed to recommend the full three level reduction at the time Preciado first tried to plead guilty, he was not forthcoming about his guilt and the court did not accept his plea.

"There is ... no absolute right to have a guilty plea accepted. A court may reject a plea in exercise of sound judicial discretion." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (citations omitted). Preciado was reticent to admit any wrongdoing when he first attempted to plead guilty. He shifted his version of events incrementally each time the district court indicated that it was not satisfied that there was an adequate factual basis to accept a plea. On this record the district court did not abuse its discretion in rejecting Preciado's plea. See United States v. Severino, 800 F.2d 42, 45-46 (2d Cir.1986) (district court did not abuse discretion by rejecting guilty plea where defendant's account of events minimized role in crime and called credibility into question). Since the government was then forced to prepare for trial, Preciado's later plea did not save it this task. We conclude there was no clear error in denying Preciado a further offense level reduction under U.S.S.G § 3E1.1(b)(2).

Borges-Cano pled guilty in advance of trial and moved at sentencing for a mitigating role adjustment under U.S.S.G. § 3B1.2, claiming he was merely a front man who facilitated deals and transported drugs for Preciado and Lopez-Reyes. The district court denied the adjustment, finding that Borges-Cano was "more than a minor participant," and he now appeals from that denial. Whether an adjustment is warranted under § 3B1.2 is determined by "comparing the acts of each participant in relation to the relevant conduct" and by "measuring each participant's... acts and relative culpability against the elements of the offense." United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir.1998). We review a determination that a defendant is not entitled to a mitigating role adjustment for clear error. See United States v. Lopez-Arce, 267 F.3d 775, 784 (8th Cir.2001).

The record establishes that Borges-Cano was not a minor participant in the criminal activity. After Lopez-Reyes had arranged a sale with an undercover officer on July 16 2001, Borges-Cano delivered a half pound of methamphetamine and collected a cash payment of $3,500. On September 7 Borges-Cano and Preciado met with a confidential informant, waited together for over an hour for the informant to collect the buy money, and were arrested with Sanchez in the process of closing the drug deal. And it was Borges-Cano who got out of the Volkswagen to meet Sanchez at the bar and left with him and the drugs in the Sentra. Borges-Cano was not simply a minor player, but an active participant in the conspiracy who played a significant role. The district court did not clearly err by denying his request for a mitigating role adjustment. See United States v. McGrady, 97 F.3d 1042, 1043 (8th Cir.1996).

Sanchez raises a number of issues on appeal, and several grow out of the trial testimony of Jose Hernandez-Correa. Sanchez's theory of defense was that he bought and sold used cars for a living and that Preciado had called him about a car he had advertised and asked him to meet at the bar. Sanchez testified that while he was waiting there for Preciado, Borges-Cano asked him for a ride to the carwash. Sanchez claimed that he had had no prior association with Preciado or Borges-Cano and that someone else must have put the Coca Cola box with the drugs in his car while he was in the bar. Five days before trial Sanchez learned that the government was going to call Correa who would testify that he had seen Sanchez with Preciado before the day of the drug deal. Although he had previously been interviewed by investigators, the prosecution only learned shortly before trial that Correa had picked Sanchez from a photo lineup as someone he knew in the drug business. The prosecution informed counsel for Sanchez that Correa's testimony would link his client to Preciado. Sanchez moved for a continuance, and the court denied the motion. Correa later testified at trial that he had sold drugs for Preciado and had seen Sanchez with Preciado in a St. Paul bar in the spring of 2001, when Preciado told him that he and Sanchez were partners. Correa understood Preciado to mean that he and Sanchez sold methamphetamine together.

Sanchez argues on appeal that the court abused its discretion by denying his request for a continuance to take Correa's deposition. See United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.1996) (standard of review). A motion for continuance should be granted if the moving party shows a "compelling reason." See id. The reason given by Sanchez for a continuance was to allow time to depose Correa, but Sanchez was not entitled to a deposition. Fed.R.Crim.P. 15 provides that courts may order depositions "to preserve testimony for trial," but the rule is not intended as a mechanism for general discovery. See United States v. Hutchings, 751 F.2d 230, 236 (8th Cir.1984). Sanchez now argues that even without a deposition, a continuance would have helped him because his counsel would have had time to interview Correa. Sanchez did not give this reason when he asked for a continuance, however, and his counsel in fact informed ...