United States v. Cabrera

• Decision Date: 22 January 2016
• Docket Number: No. 14–5572.,14–5572.
• Citation: 811 F.3d 801
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Arnaldo CABRERA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

811 F.3d 801

UNITED STATES of America, Plaintiff–Appellee,

v.Arnaldo CABRERA, Defendant–Appellant.

No. 14–5572.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 4, 2015.

Decided and Filed: Jan. 22, 2016.

ARGUED:Steven P. Tramontin, Pear Sperling Eggan & Daniels, P.C., Ann Arbor, Michigan, for Appellant. Michael D. Porter, United States Attorney's Office, Chattanooga, Tennessee, for Appellee. ON BRIEF:Steven P. Tramontin, Joseph M. West, Pear Sperling Eggan & Daniels, P.C., Ann Arbor, Michigan, for Appellant. Michael D. Porter, United States Attorney's Office, Chattanooga, Tennessee, for Appellee.

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

OPINION

KAREN NELSON MOORE, Circuit Judge.

A grand jury indicted Arnaldo Cabrera for being a felon in possession of a firearm after he procured a handgun for a confidential informant ("CI"). Cabrera claimed that law-enforcement agents had doctored an audio-tape recording of that transaction. He advanced that theory in pretrial motions and in post-trial submissions to the district judge. Cabrera did not, however, testify in support of that theory. A jury found him guilty. At sentencing, the district judge announced that he was sentencing Cabrera to sixty-three months' imprisonment—the top of his guidelines range—for two reasons: first, because Cabrera advanced a "fantastic" claim (that the tape was altered); second, because Cabrera did not testify in support of that claim. Cabrera's counsel raised no objection to his sentence.

Cabrera appeals, arguing that both of these factors were impermissible, and that his sentence is thus procedurally unreasonable. For the reasons set forth below, we VACATE Cabrera's sentence and REMAND his case for resentencing consistent with this opinion.

I. FACTS AND PROCEDURE

A. Facts

On May 8, 2013, a CI bought a firearm from Cabrera in a controlled buy. R. 63 (Trial Tr. (Cavanaugh) at 39) (Page ID # 385). Earlier that day, the CI—who at the time was facing charges for selling cocaine—met Warren County, Tennessee Sheriff's Department Investigator Jody Cavanaugh "at a secure location." Id. at 40 (Page ID # 386). The two had worked together before. Id. at 39 (Page ID # 385). Cavanaugh searched the CI to make sure he had no firearms or drugs on his person. Id. at 40 (Page ID # 385). Then Cavanaugh put a wire on him. Id. at 40–41 (Page ID # 386–87). The CI called Cabrera to arrange a meeting to purchase a firearm. Id. at 41 (Page ID # 387). They agreed to meet at the parking lot of an auto-part manufacturing company. Id. The CI drove there in his car; Cavanaugh followed. Id.

At the parking lot, the CI and Cabrera spoke about meeting a third, unnamed individual who had a firearm for sale. Id. at 41–42 (Page ID # 387–88). Cabrera got into the CI's car and the two drove to a different parking lot, where two men were waiting. Id. (Trial Tr. (CI) at 91–92) (Page ID # 437–38). Cabrera exited the CI's car and gave $300 to one of the men, who gave Cabrera a firearm in exchange. Id. Cabrera stuck the firearm in his waistband and re-entered the CI's car. Id. at 93 (Page ID # 439). The CI drove to a different factory where Cabrera—while still in the car—fired six or seven rounds out the window. Id. at 97–98, 120 (Page ID # 443–44, 466).

The CI drove Cabrera back to his car, and then drove to meet Cavanaugh. Id. (Trial Tr. (Cavanaugh) at 44) (Page ID # 390). The CI gave Cavanaugh the firearm Cabrera had procured for him: a Kel–Tec nine-millimeter semi-automatic handgun. Id. Its clip was empty. Id. at 46 (Page ID # 392). Cavanaugh and other law-enforcement officers then drove to where Cabrera had shot the firearm out of the CI's car window and found six nine-millimeter shells. Id.

B. Procedural History

1. Indictment and Trial

On July 23, 2013, a grand jury indicted Cabrera for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). R. 1 (Indictment) (Page ID # 1). Because Cabrera was indigent, a magistrate judge appointed counsel to represent him. R. 2 (7/26/13 Order) (Page ID # 3).

On September 10, 2013, Cabrera filed two pretrial motions related to the audio-tape recording of his transaction with the CI. First, Cabrera moved to suppress the tape. R. 11 (Mot. to Suppress at 1) (Page ID # 17). In a two-page affidavit attached to that motion, Cabrera's then attorney Aubrey Harper averred that the tape was unintelligible, that Cabrera believed it had been altered, and that there was information suggesting that Cabrera was actively assisting law enforcement. R. 11–1 (Aff. In Support of Mot. to Suppress and Mot. Requesting Expert Analysis of an Audio Tape ("Harper Aff.") at 1–2) (Page ID # 19–20). The district judge construed this motion as a motion in limine, and reserved a ruling for trial. R. 61 (Final Pretrial Conference Tr. at 8–9) (Page ID # 297–98).

Second, Cabrera filed a motion requesting an "expert, to analyze whether the tape in question ha[d] been altered, edited, or otherwise ... tampered with." R. 12 (Mot. Requesting Expert Analysis of Audio Tape at 1) (Page ID # 22). Harper attached the same affidavit to that motion. R. 12–1 (Harper Aff.) (Page ID # 24). On September 24, 2013, the magistrate judge issued an order denying this motion. R. 15 (9/24/13 Order at 4–5) (Page ID # 38–39). The magistrate judge construed the motion as one brought under 18 U.S.C. § 3006A(e) of the Criminal Justice Act. Id. at 2 (Page ID # 36). Cabrera's motion, however, failed to satisfy § 3006A(e) : it did not address why an expert was necessary, and did not specify what work (nor at what cost) Cabrera hoped an expert would perform. Id. at 3–4 (Page ID # 37–38).

Cabrera's two-day jury trial began on October 10, 2013. R. 63 (Trial Tr. at 1) (Page ID # 347). The government called two witnesses: Cavanaugh and the CI. Id. at 2 (Page ID # 348). Without objection from Cabrera's counsel, the government introduced a CD with the audio recording of Cabrera's transaction with the CI. Id. (Trial Tr. (Cavanaugh) at 52–53) (Page ID # 398–99).

Cabrera did not testify. He put on two witnesses of his own: Marty McGuinness, an agent with the Tennessee Bureau of Investigation, and Danny Haimelin, Cabrera's probation officer. Id. (Trial Tr. (McGuinness) at 134) (Page ID # 480); id. (Trial Tr. (Haimelin) at 144) (Page ID # 490). Through both witnesses, Cabrera's counsel attempted to demonstrate that Cabrera had been working as a confidential informant when he procured the firearm for the CI. Id. (Trial Tr. (McGuinness) at 134–37) (Page ID # 480–83); id. (Trial Tr. (Haimelin) at 144–46) (Page ID # 490–92). The district judge evidently felt that that defense strained credulity: just before Cabrera's counsel called Haimelin to the stand, the judge excused the jury and expressed his doubts about the defense's theory, but ultimately let Haimelin testify. Id. (Trial Tr. at 139–44) (Page ID # 485–90).

On October 11, 2013, Cabrera's jury found him guilty. R. 26 (Verdict Form) (Page ID# 58).

2. Post–Trial Motions and Sentencing

On November 15, 2013, Cabrera filed a hand-written motion alleging that his trial counsel had been ineffective and requesting new counsel. R. 28 (Request for Reappointment of Att./Counsel) (Page ID # 60). On November 26, 2013, the magistrate judge held a hearing on Cabrera's motion, at which Cabrera alleged that his attorney had promised him that he would prevail at trial. R. 67 (11/26/13 Hr'g Tr. at 10) (Page ID # 674). Cabrera's counsel denied ever saying this. Id. at 12 (Page ID # 676). The magistrate judge told Cabrera that she believed he had perjured himself, but still appointed new counsel because Cabrera's relationship with his attorney had deteriorated so severely. Id. at 16 (Page ID # 680).

On March 16, 2014—just before his sentencing hearing—Cabrera wrote two letters to the district judge. In the first, he again requested new counsel. R. 43 (First Letter from Arnaldo Cabrera to Judge Harry S. Mattice, dated 3/16/14) (Page ID # 199). He wrote that his replacement counsel had been "very disrespectful and ha[d] even called [him] stupid." Id. at 1 (Page ID # 199). In the second letter, Cabrera alleged that there was "something really wrong about the tape," that he had been "accused of a crime that [he] was forced to do at gunpoint," and that the CI, Cavanaugh, and the Assistant United States Attorney who prosecuted him were all corrupt. R. 43 (Second Letter from Arnaldo Cabrera to Judge Harry S. Mattice, dated 3/16/14) (Page ID # 201–02). On March 25, 2014, the magistrate judge held a hearing and denied Cabrera's request for new counsel as moot after Cabrera agreed to work with his replacement counsel. R. 65 (3/25/14 Hr'g Tr. at 18–19) (Page ID # 643–44).

Cabrera was sentenced on May 2, 2014. R. 57 (Sentencing Hr'g Tr.) (Page ID # 265). With a criminal history category of IV and a total offense level of twenty, Cabrera faced a guidelines range of fifty-one to sixty-three months' imprisonment.¹ Id. at 5, 9 (Page ID # 269, 273). Cabrera's attorney requested a sentence at the bottom of that range; the government, the top. Id. at 10 (Page ID # 274). Cabrera maintained his innocence at the hearing. Id. at 12 (Page ID # 276).

The district judge sentenced Cabrera to sixty-three months in prison, the top of the guidelines range. Id. at 12 (Page ID # 276). He explained his reasons for selecting that sentence as follows:

I'll impose sentence now. Mr. Cabrera, I am, as the government recommends, going to sentence you at the top of your guideline range. The reason I'm going to do that, Mr. Cabrera, is because throughout these proceedings, I have to tell you, you know, your behavior to me at least has evinced a pretty complete disrespect for the law and for these proceedings generally.

I'll give you some examples. While everybody has the constitutional right to go to trial, you have at least as far as I'm aware through your attorney and through letters to me persisted in what I, what I view as some fantastic story regarding the altering of these tapes, but only

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