U.S. v. Roman-Zarate, ROMAN-ZARAT

• Decision Date: 09 June 1997
• Docket Number: D,ROMAN-ZARAT,No. 96-6067,96-6067
• Citation: 115 F.3d 778
• Parties: 97 CJ C.A.R. 910 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Sanefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 778

115 F.3d 778

97 CJ C.A.R. 910

UNITED STATES of America, Plaintiff-Appellee, v. Carlos San ROMAN-ZARATE, Defendant-Appellant.

No. 96-6067.

United States Court of Appeals, Tenth Circuit.

June 9, 1997.

Jack Fisher, Edmond, OK, for Defendant-Appellant.

M. Jay Farber, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, and Kim Kakish, Assistant U.S. Attorney, on the briefs), Oklahoma City, OK, for Plaintiff-Appellee.

Before PORFILIO, LUCERO and MURPHY, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

Defendant Carlos Roman-Zarate appeals his sixty-month sentence imposed following a plea of guilty to unlawful possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Mr. Zarate challenges the district court's sentencing calculation, arguing the court improperly considered a post-arrest admission in determining his base offense level and erroneously applied the mandatory minimum sentence. We affirm.

In October 1995, Drug Enforcement Administration (DEA) agents in Oklahoma City initiated a drug delivery between Mr. Zarate and a federal informant. When Mr. Zarate arrived at the designated meeting place, he was arrested and nine ounces of cocaine was seized from his vehicle. The three agents overseeing the operation separated following Mr. Zarate's arrest. Two transported Mr. Zarate to DEA headquarters while the third, Agent Michael Bakios, went to the United States Attorney's office.

Upon his arrival at DEA headquarters, Mr. Zarate was escorted to a conference room and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He told agents he wished to speak with an attorney. The agents did not question or speak further with Mr. Zarate except to request administrative information. Approximately thirty minutes later, Agent Bakios arrived and asked the other agents whether Mr. Zarate was cooperating. The agents replied that Mr. Zarate had requested an attorney. After a moment, Mr. Zarate asked what Agent Bakios had meant by cooperating, and the agent explained he wondered if Mr. Zarate "were going to help [himself] out" by assisting in the investigation. Mr. Zarate attempted to clarify the agent's explanation, but Agent Bakios advised that any further communication was conditioned on Mr. Zarate's waiver of his right to counsel. Mr. Zarate was told the agents could not guarantee leniency, but that cooperation could help him. Agent Bakios then reread the Miranda warnings, and Mr. Zarate agreed to speak to agents without an attorney.

Mr. Zarate revealed details of prior drug transactions including his involvement in the purchase and distribution of three kilograms of cocaine during the previous three months and the name of a source in Texas. After Mr. Zarate offered to participate in an undercover buy, the agents transported him to the United States Attorney's office to discuss further cooperation. He confirmed his earlier statements but refused to provide the government with the names of his courier or local contacts. Concluding Mr. Zarate was not cooperating, Agent Bakios and the Assistant United States Attorney terminated the interview.

Mr. Zarate entered a plea of guilty to possession with intent to distribute the nine ounces of cocaine seized at the time of his arrest. Based on Mr. Zarate's prior disclosure that he had distributed three kilograms of cocaine, the district court increased his base offense level five points. ¹ The district court declined to depart from the mandatory minimum sentence as allowed by 18 U.S.C. § 3553(f), concluding Mr. Zarate had not fully cooperated with the government.

I.

Mr. Zarate contends the district court was prohibited from using his admission concerning the three kilograms of cocaine in determining the applicable sentence range because (1) the statements were made in the course of plea discussions pursuant to Fed.R.Crim.P. 11(e)(6), (2) the statements were made with the understanding they would not be used against Mr. Zarate pursuant to U.S.S.G. § 1B1.8, and (3) the statements were obtained in violation of Mr. Zarate's Fifth Amendment right to counsel and were involuntary.

First, Mr. Zarate argues his conversation with DEA agents, in which he disclosed information in exchange for possible leniency, constituted plea discussions within the meaning of Rule 11(e)(6). Fed.R.Crim.P. 11(e)(6) provides:

Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

....

(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Interpretation of the Federal Rules of Criminal Procedure is a legal issue subject to de novo review. United States v. Maher, 919 F.2d 1482, 1485 (10th Cir.1990). In reviewing this issue, however, we find we need not reach the merits of Mr. Zarate's argument. This court has held that Rule 11(e)(6) does not apply to sentencing proceedings. United States v. Medina-Estrada, 81 F.3d 981, 986 (10th Cir.1996); United States v. Ruminer, 786 F.2d 381, 387 (10th Cir.1986). Accordingly, regardless of whether Mr. Zarate's conversation with the agents qualified as plea discussions, his statements were properly considered by the district court at sentencing.

Next, Mr. Zarate maintains the DEA agents' promise that cooperation would be helpful to him amounts to an agreement under U.S.S.G. § 1B1.8 that his statements would not be used against him. We review de novo the interpretation of the sentencing guidelines. United States v. Pinedo-Montoya, 966 F.2d 591, 595 (10th Cir.1992).

Section 1B1.8 of the Guidelines provides:

(a) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.

We are unpersuaded that § 1B1.8 constrained the government's use of Mr. Zarate's statements.

Section 1B1.8 applies only where two separate agreements have been negotiated: (1) the defendant agrees to cooperate with the government by providing the requisite information, and (2) the government agrees not to use that information against the defendant. United States v. Evans, 985 F.2d 497, 499 (10th Cir.1993). In Evans, defendant was advised of his rights under Miranda, then informed that the extent of his cooperation would be relayed to the prosecutor. The court rejected defendant's argument that his subsequent statements were protected by § 1B1.8, concluding that although defendant may have agreed to cooperate, the agent's offer to notify the prosecutor could not be interpreted as an agreement to refrain from using defendant's incriminating statements against him. Id.

Similar facts were presented in United States v. Rutledge, 900 F.2d 1127 (7th Cir.1990), where the arresting officer told defendant "his cooperation would be helpful." The court reasoned the officer's assurance was not an agreement that incriminating statements would not be used against the defendant, particularly since an assurance of that kind would have been inconsistent with the Miranda warnings the defendant had just received. Id. at 1131.

Mr. Zarate's attempt to use § 1B1.8 as a shield fails for the same reasons. The DEA agents may have promised that Mr. Zarate's cooperation would be helpful to him, but they did not promise that incriminating statements he made in the course of cooperation would not be used against him. Furthermore, just after urging him to cooperate and just prior to being provided with the incriminating information, agents readvised Mr. Zarate of his Miranda rights. Mr. Zarate had fair and timely warning that agents planned to use his statements against him.

Finally, Mr. Zarate challenges the district court's use of his statements under the Fifth Amendment on two grounds: first, that he did not knowingly and voluntarily waive his Miranda rights, and second, that his statements were made involuntarily. There is no question that Mr. Zarate was advised of his Miranda rights, understood those rights, and invoked them by requesting the assistance of an attorney. Mr. Zarate argues, however, his waiver was ineffective because agents subjected him to further interrogation after he requested the assistance of counsel.

If a defendant talks to officers after invoking his right to counsel, the government bears the burden of proving by a preponderance of the evidence the waiver of the right was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.1997). A waiver is voluntary if the totality of the circumstances demonstrates (1) the waiver was a product of a free and deliberate choice rather than intimidation, coercion, or deception, and (2) the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Id.; United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir.1996). The determination of whether a valid waiver of Fifth Amendment rights has occurred is a question of law which we review de novo; subsidiary factual determinations are reviewed under the clearly erroneous standard. Toro-Pelaez, 107 F.3d at 826.

The Supreme Court mandates that once a defendant has invoked his right to an attorney, all questioning by law enforcement officers must cease until an attorney is present. Miranda, 384 U.S. at 474, 86 S.Ct. at 1627-28. While a defendant who has exercised his right to be represented by counsel may subsequently waive that right, "a...