United States v. Esteves

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Docket NumberCriminal Action 17-201
Decision Date20 April 2022



Criminal Action No. 17-201

United States District Court, E.D. Louisiana

April 20, 2022




On November 13, 2019, defendant Jeremy Esteves was found guilty of three counts of a second superseding indictment. Specifically, Esteves was found guilty as to count one, conspiracy to obstruct commerce by robbery; count two, obstruction of commerce by robbery; and count three, using, carrying, brandishing, and discharging firearms during a crime of violence, and in the course thereof the defendants caused the death of Hector Trochez, which was murder. Subsequently, Esteves filed 8 objections to his presentence investigation report.[1] The government opposes the objections.[2] For the following reasons, the Court overrules Esteves' objections.

(A) Objections Nos. 1 & 5: Downward Adjustment of Offense Level

The Court addresses Objections Numbers 1 and 5 together as they both concern the same issue. In essence, Esteves objects to the PSR's failure to grant a mitigating role adjustment. Esteves contends that such an adjustment is warranted because the government did not seek the death penalty against him, and because he was unarmed and remained inside the getaway vehicle during the commission of the armored truck


robbery.[3] Esteves also objects to the statement that “Esteves, Brumfield, Ofomata, George, and Johnson appear to be of equal culpability in the instant offense.”[4]

The probation officer rejected Esteves' objection, applying United States Sentencing Guideline § 3B1.2. In relevant part, the guidelines provide for a downward adjustment of four levels for a minimal participant and a downward adjustment of two levels for a minor participant. See U.S.S.G. § 3B1.2(a), (b). “A ‘minimal participant' is someone who lacks knowledge or understanding about the scope or structure of the enterprise; a ‘minor participant' is someone who is less culpable than most participants but more culpable than a minimal participant.” United States v. Broussard, 882 F.3d 104, 111 (5th Cir. 2018). “Whether [a defendant] was a minor or minimal participant is a factual determination[.]” United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (alteration in original) (internal quotation marks omitted) (quoting United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005)). “This fact-based determination is based on the totality of the circumstances surrounding the commission of the crime.” United States v. McCain-Sims, 695 Fed.Appx. 762, 765 (5th Cir. 2017).[5] The defendant bears the burden of


proving by a preponderance of the evidence that he is entitled to a mitigating role adjustment. United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016).[6]

At trial, Jamell Hurst testified that Esteves conducted surveillance of the bank for a period of months in order to plan the robbery.[7] Hurst also testified that Esteves told him that although Brumfield was originally supposed to participate in the robbery, the other participants concluded that Brumfield would “freeze up, ” and they therefore replaced him with George.[8]

Cedric Wade testified that on the morning of the robbery, Ofomata arrived at his residence to retrieve firearms that would be used during the robbery.[9] George, Esteves, and Johnson were waiting in a nearby vehicle.[10] Hurst stated that when Hurst, joined by Ofomata, went outside Hurst's apartment and observed the silver Tahoe that was the initial getaway vehicle, Hurst saw Esteves in the driver's seat of


the vehicle, and George in the front passenger seat.[11] Ofomata was sitting in the back seat behind Esteves, and Johnson was sitting in the back seat behind George.[12]

Special Agent Elmer testified that Thierry King, an employee of Chase Bank and a person of interest in the case, allowed the FBI to search her cell phone address book.[13] The FBI found both Esteves' and Brumfield's telephone numbers in her phone.[14] The FBI subsequently obtained a warrant to seize King's phone.[15] Special Agent Rayes testified that a telephone number associated with Esteves[16] was one of the top ten most frequent numbers with which King had contact.[17]

In addition to the PSR and testimony at trial, the Court considers the factual basis statements[18] signed by co-defendants Georege and Ofomata.[19] In these


statements, George and Ofomata agreed that Esteves agreed to participate in the robbery and that an “individual” observed Esteves driving the Chevy Tahoe that transported the co-defendants to the Chase Bank on the morning of the robbery.[20]Additionally, at George's rearraignment hearing, George stated, in response to a question by the Court, that it was correct that George, “Esteves, Johnson, and Ofomata, all occupied the vehicle” on the date of the robbery.[21]

In light of the totality of the circumstances surrounding the robbery, and after considering the factors listed in U.S.S.G. § 3B1.2, Application Note 3(C)(i)-(iv), the Court finds that Esteves has not demonstrated by a preponderance of the evidence that he is entitled to a mitigating role adjustment. Accordingly, the probation officer did not err in denying such an adjustment, and the Court overrules Objections Numbers 1 and 5.

(B) Objections Nos. 2 & 6: Reduction for Acceptance of Responsibility

The Court addresses Objections Numbers 2 and 6 together as they both concern the same issue. Notwithstanding his decision to proceed to trial, Esteves argues that he is entitled to an offense level reduction for his acceptance of responsibility


pursuant to U.S.S.G. § 3E1.1. Esteves argues that such a reduction is warranted based on his efforts to encourage his co-defendants to enter pleas of guilty.[22]

The Sentencing Guidelines provide that a defendant who “clearly demonstrates acceptance of responsibility, ” may obtain a 2-level decrease in his offense level. U.S.S.G. § 3E1.1(a). The Guidelines further explain that “[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, Application Note 2. However, as Esteves correctly notes, “[c]onviction by trial [...] does not automatically preclude a defendant from consideration for such a reduction.” Id.

Section 3E1.1, Application Note 1 lists eight illustrative ways that a defendant may demonstrate acceptance of responsibility, including voluntary surrender to authorities promptly after the commission of the offense, and voluntary assistance to authorities in the recovery of the fruits of the offense.[23] Further, a defendant may demonstrate genuine acceptance of responsibility, but he may proceed to trial to challenge the constitutionality of a statute. U.S.S.G. § 3E1.1, Application Note 2.

This prosecution began in 2017, almost four years after the offenses at issue. In that four-year period, Esteves did not demonstrate his acceptance of responsibility by surrendering to authorities or returning the money stolen during the robbery.


Further, Esteves contested the facts underlying his guilt at trial, rather than challenging the constitutionality or application of a statute to his conduct. Esteves likewise chose not to cooperate prior or subsequent to his convictions.[24]Notwithstanding any efforts that Esteves may have made to encourage his codefendants to enter pleas of guilty, Esteves did not clearly demonstrate acceptance of responsibility for his offenses, and a reduction pursuant to § 3E1.1 is not warranted. See, e.g., United States v. Gaspar-Felipe, 4 F.4th 330, 342-343 (5th Cir. 2021) (rejecting defendant's argument that he was entitled to a downward adjustment for acceptance of responsibility when the defendant proceeded to trial).

(C) Objections Nos. 3, 4 & 7: Base Offense Level

The Court addresses Objections Numbers 3, 4, and 7 together as they all concern the same issue. Esteves' sentencing objections note that his base offense level is calculated in accordance with U.S.S.G. § 2A1.1(a). Esteves does not dispute that § 2A1.1(a) applies to his convictions, but he argues that Application Note 2(B) “allows for a downward departure when the conviction is for felony murder.”[25] Esteves contends that based on “the facts and circumstances of this case, ”[26] his base offense level should be “no greater than a level 38 in accordance with U.S.S.G. § 2A1.2, second degree murder.”[27] Esteves argues that the killing of Hector Trochez was not a


premeditated murder and that Esteves did not believe that anyone would be harmed during the robbery. Further, Esteves contends that he did not possess a firearm and that he did not exit the vehicle during the robbery.[28]

The Sentencing Guidelines offense conduct provision for robbery includes a cross-reference to the first-degree murder section: “If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder).” U.S.S.G. § 2B3.1(c)(1). The Sentencing Guidelines assign a base offense level of 43 to first degree murder....

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