U.S. v. Rodriguez-Delma

• Decision Date: 09 August 2006
• Docket Number: No. 05-3297.,05-3297.
• Citation: 456 F.3d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo RODRIGUEZ-DELMA, also known as Javier Eduardo Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.3d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo RODRIGUEZ-DELMA, also known as Javier Eduardo Rodriguez, Defendant-Appellant.

No. 05-3297.

United States Court of Appeals, Tenth Circuit.

August 9, 2006.

Submitted on the briefs: James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, KS, for the Plaintiff-Appellee.

Michael M. Jackson, Topeka, KS, for the Defendant-Appellant.

Before MURPHY, HOLLOWAY and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Eduardo Rodriguez-Delma pled guilty to two counts of an information charging conspiracy to possess with intent to distribute 100 kilograms or more of a marijuana mixture, in violation of 21 U.S.C. § 846, and for possession of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The United States District Court for the District of Kansas applied a four level sentencing enhancement for his role as an organizer or leader pursuant to the United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1. Rodriguez-Delma appeals, contending that (1) the Government breached his plea agreement by providing the court with information concerning his activities in the criminal enterprise because the Government agreed, under the plea agreement, "not to oppose" his position that his base offense level not be increased for his role in the offense; and (2) the district court erred in applying the four level enhancement pursuant to U.S.S.G. § 3B1.1.

We have jurisdiction under 28 U.S.C. § 1291. Because we find no errors in the district court's rulings, we AFFIRM.

BACKGROUND

On September 8, 2004, the Topeka, Kansas Grand Jury charged Rodriguez-Delma in an eight-count Superseding Indictment with various immigration, firearms, and drug offenses. On April 8, 2005, he entered guilty pleas to Counts 6 and 8 of the Superseding Indictment. (Vol. I, Doc. 47, at 1-20 (Petition to Enter Plea and Plea Agreement)). Count 6 charged him with conspiracy to possess with intent to distribute 100 kilograms or more of a marijuana mixture, in violation of 21 U.S.C. § 846. Count 8 charged him with possession of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Rodriguez-Delma entered his plea pursuant to a plea agreement with the Government. In that plea agreement, the Government agreed to make certain recommendations and non-recommendations to the district court with respect to sentencing. One such agreement was that the Government would "not oppose [the defendant's contention that his] base offense level not be increased for his role in the offense."

On June 1, 2005, the Probation Office disclosed its initial Presentence Investigation Report (PSR). The PSR recommended that Rodriguez-Delma receive a 4-level enhancement for his role in the offense as an organizer or leader of five or more people, pursuant to § 3B1.1(a)¹ of the U.S.S.G. The PSR recited the following statements about Rodriguez-Delma's role in the offense:

The defendant was an organizer or leader of this offense which involved five or more people. The defendant arranged for others to transport marijuana to the U.S., from Mexico, which they got from the defendant's uncle, in Mexico. The defendant purchased vehicles and registered them in the names of other people. After being used to transport marijuana, the vehicles were registered back to the defendant, or to another person who would then use [them] to transport drugs. The participants in this offense, other than the defendant, include Julie Plummer, Pedro Morales, Billie Joe Pike, and Pedro Mariscal-Regalado (who helped the defendant move and re-package drugs within his residence). All of these defendants were later convicted of various charges. In addition, others . . . involved in this offense include Ignacio Cuevas and Gary Matthews, who both had the 1995 Buick registered in their names that Plummer used in December 2003 to transport marijuana, and both were documented to have crossed the U.S. border at Presidio, Texas, in 2003 and 2004 in that car.

(Vol. III, at 12-13 (PSR ¶ 45)). The PSR noted that the information supporting this enhancement came from Immigration and Customs Enforcement (ICE), the Drug Enforcement Agency (DEA), the Kansas Bureau of Investigation (KBI), the United States Attorney's Office, and through an independent inquiry of the Probation Office. (Id. at 7 (PSR ¶ 19)).

Rodriguez-Delma filed his objections to the PSR on July 11, 2005. He objected to the role enhancement and contended that the facts show a relatively small criminal enterprise that did not require extensive planning or preparation. He also stated that there are no clearly delineated divisions of responsibility and no evidence of the relative relationship between him (the defendant) and co-defendant Morales. (See Vol. I, Doc. 54, at 2(¶ 5)).

The Government filed a response on July 14, 2005. In this response, the Government reiterated its position on the role enhancement but stated, however, that its agreement "not to oppose" the Defendant's contention that his base offense level not be increased for his role in the offense was "purely a function of plea negotiation and had nothing to do with the strength of the evidence relative to the adjustment proposed by the PSR." (Vol. I, Doc. 55, at 8). The Government also summarized ICE Agent Tim Ditter's investigation concerning the scope of the defendant's criminal activities:

Agent Ditter's investigation revealed that the defendant was involved in an operation which brought drugs from his uncle in Mexico, across the border, to the Topeka, Kansas, area. The process involved several steps, which the defendant executed. He purchased cars, put them in the names of `mules' only temporarily, so they could transport the drugs, send them to Mexico to have the car loaded, then met them in Texas to re-load the drugs for further delivery to Kansas. Upon return, he would have the car put in someone else's name, who would then use it to make another trip.

(Id. at 5-6).

The district court sentenced Rodriguez-Delma on July 22, 2005. At this hearing, Rodriguez-Delma's counsel suggested that the Government improperly related facts touching on the defendant's role in its response, Document 55, but he did not accuse the Government of breaching the plea agreement:

If you go back to Mr. Hough's responses to my objection he has a little sentence there that says we take the position of our plea agreement, but if you go back a couple paragraphs before there's detailed statements on the role of the offense of my client. And now we learn that there apparently may have been a truck involved. We're not asking to withdraw this plea, we're just asking for fairness from the federal — from the federal prosecutor.

(Vol. II, at 10).

During that hearing, however, the Government reaffirmed its non-opposition to the defendant not receiving the role enhancement several times. (Vol. II, at 5 ("We don't oppose no enhancement for role in the offense. We would . . . ask the Court to follow the plea agreement."); 17 (restating paragraph 5(f) of the plea agreement and stating "the Government's position has never changed"); 18 ("We ask the Court to follow that plea agreement."); 19 ("Additionally we reiterate reaffirm our position under the plea agreement in all regards."); 21 ("Again, Judge, we don't oppose no enhancement for role.")) (emphasis added).

The Defendant's counsel renewed his objection to the role enhancement at the sentencing hearing. However, the only factual objection he raised was that the interrelationship of the parties was not clear. Based on this, he argued that "there's insufficient evidence to increase for three, even based on a preponderance of the evidence." (Id. at 21).

The district court denied Rodriguez-Delma's objections and after applying the role enhancement and hearing the evidence on drug quantities, sentenced him to 87 months' imprisonment on Count Six and 60 months on Count Eight, to be served consecutively.

DISCUSSION

As noted, Rodriguez-Delma appeals on two grounds. First, he contends that the Government breached the plea agreement by providing the district court with information concerning his activities in the criminal enterprise. Second, he contends that the district court erred by applying a four-level enhancement to his sentence pursuant to U.S.S.G. § 3B1.1(a). We address each of these arguments in turn below.

1. The Alleged Breach of Plea Agreement

Rodriguez-Delma's first argument is that the Government breached the plea agreement by providing the district court with information concerning his activities in the criminal enterprise. He points out that the Government agreed to "not oppose that [the] base offense level not be increased for his role in the offense." Therefore, he contends that the Government breached the plea agreement by including the following statement in its written response to his objections to the sentence enhancement:

Agent Ditter's investigation revealed that the defendant was involved in an operation which brought drugs from his uncle in Mexico, across the border, to the Topeka, Kansas, area. The process involved several steps, which the defendant executed. He purchased cars, put them in the names of `mules' only temporarily, so they could transport the drugs, send them to Mexico to have the car loaded, then met them in Texas to re-load the drugs for further delivery to Kansas. Upon return, he would have the car put in someone else's name, who would then use it to make another trip.

(Vol. I, Doc. 55 at 5-6 (cited in Aplt. Br. at 4, 6, 8-9)). This statement, he argues, "is not fulfilling a promise to not comment on defendant's role in the offense"(Aplt. Br. at 9) and constitutes a "legal characterization" of his activities. He also argues that the Government attempted to "emasculate both its promise and the entire plea...