United States v. Gonzalez-Avalos ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 19, 2018
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 18-2003
(D.C. No. 15-CR-3254-MV-4)
PAUL GONZALEZ-AVALOS, (D.N.M.)
Defendant-Appellant.
__________________________
ORDER AND JUDGMENT *
__________________________
Before EID, BALDOCK, and EBEL, Circuit Judges.
Defendant Paul Gonzalez-Avalos pleaded guilty to conspiring to possess
with intent to distribute more than 500 grams of methamphetamine and more than
100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court sentenced Defendant to the statutory minimum of 120 months (10 years) in
prison, 15 months below the low end of the advisory guideline range. See 21 U.S.C.
§ 841(b)(1)(A). Defendant now appeals his sentence. Our jurisdiction arises under
18 U.S.C. § 3742(a)(1). On appeal, Defendant claims the district court improperly
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
decided he was ineligible for safety-valve relief from his mandatory minimum
sentence. See U.S.S.G. § 5C1.2(a). Specifically, Defendant challenges the district
court’s finding that he had not truthfully provided the Government with all the
information he had about the nature and extent of the criminal conspiracy to which
he pleaded guilty. 1 See id. § 5C1.2(a)(5). We reject Defendant’s challenge, uphold
the district court’s finding, and affirm its judgment.
I.
U.S.S.G. § 5C1.2(a) directs that where a defendant has committed an offense
in violation of 18 U.S.C. §§ 841 and 846, “the court shall impose a sentence in
accordance with the applicable guidelines without regard to any statutory minimum
sentence,” provided the court determines five criteria are met. Among other things,
the district court must find that—
not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan, . . . .
U.S.S.G. § 5C1.2(a)(5). “[T]he purpose of the safety-valve provisions is to benefit
only those defendants who truly cooperate” with the Government. United States v.
Galvon-Manzo, 642 F.3d 1260, 1268 (10th Cir. 2011) (emphasis added) (internal
1
If Defendant satisfied the criteria for safety-valve relief, his total offense
level would drop by two levels from 33 to 31 pursuant to U.S.S.G. § 2D1.1(b)(17).
This would result in an advisory guideline range of 108–135 months and eliminate
mandatory application of the statutory minimum sentence.
2
quotation marks omitted). Thus, § 5C1.2(a)’s fifth criterion for relief “is very broad,
requiring disclosure of everything the defendant knows about his own actions and
those who participated in the crime with him.” Id. at 1266 (quoting United States v.
Myers, 106 F.3d 936, 941 (10th Cir. 1997)).
A defendant has the burden of proving by a preponderance of the evidence that
he qualifies for safety-valve relief. Id. In turn, “[w]e review a district court’s
factual determination on safety-valve eligibility for clear error, including whether a
defendant has provided the Government with complete and truthful information.”
United States v. De La Torre, 599 F.3d 1198, 1205 (10th Cir. 2010) (quoting United
States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 2008)). In conducting our
review, “we are cognizant that the district court’s application of the safety valve is
fact specific and dependent on credibility determinations that cannot be replicated
with the same accuracy on appeal.” Galvon-Manzo, 642 F.3d at 1266 (quoting
United States v. Altamirano-Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007)).
II.
With this legal background in mind, here is the story. Defendant pleaded
guilty to Count I of a criminal indictment which alleged in relevant part:
On or about August 19, 2015, in Bernalillo County, in the District of
New Mexico, the defendants, Nayhomy Guadalupe Levya-Valencia,
Noel Armenta-Melendrez, Adan Gallardo-Cota, and Paul Gonzalez-
Avalos, unlawfully, knowingly and intentionally . . . conspired . . . to
commit [the following] offenses against the United States, to wit:
distribution of 500 grams and more . . . of methamphetamine, . . . and
distribution of 100 grams and more . . . of heroin, . . . .
3
(internal capitalization and bolding omitted). At Defendant’s change of plea hearing,
the district court asked the Government what it could prove at trial. The Government
proffered that on or about August 19, 2015, one co-defendant, Leyva-Valencia, drove
a car which contained a significant quantity of methamphetamine and heroin. After
police detained the car and uncovered the drugs, they obtained information from
Leyva-Valencia regarding two other co-defendant’s involvement in the conspiracy.
Armenta-Melendrez and Gallardo-Cota had hired Leyva-Valencia to drive the car and
deliver it to them. After following Leyva-Valencia to the delivery point, police
observed a vehicle at a gas station across the street. Although the vehicle remained
at a gas pump for around ten minutes, no one got out to pump gas. When the vehicle
departed, the police initiated a traffic stop. Inside the vehicle, officers located
Defendant as well as Armenta-Melendrez and Gallardo-Cota. Evidence obtained as
a result of the stop indicated that Armenta-Melendrez and Gallardo-Cota planned to
deliver the drugs to Defendant for distribution.
Defendant agreed with all the facts as recited by the Government “except for
the portion as to who was going to receive the drugs.” According to defense counsel,
this was a question Defendant planned to address at sentencing in a motion for
safety-valve relief. The district court then asked Defendant “what you did that
makes you guilty of this crime”:
[Defense Counsel]: Your Honor, we will stipulate to the facts alleged
in the indictment.
4
The Court: I understand, but did you . . . agree with others, those folks
who are your co-defendants . . . to distribute the methamphetamine and
heroin?
[Defense Counsel]: Your Honor, . . . if I may?
The Court: Yes.
[Defense Counsel]: My client was asked by one of the co-defendants
to assist. He knew there were drugs in the vehicle. He wasn’t aware of
the specifics with regard to the drugs, but he knew there were drugs in
the vehicle . . . .
The Court: Is that the case, Mr. Gonzalez?
The Defendant: That’s right.
[Defense Counsel]: And . . . obviously, knew that they were for
distribution.
The Court: When you say “assist,” in what way did he assist?
[Defense Counsel]: There . . . were phone calls; there was tracking . . .
the drugs as they were driven in from Arizona, and he did, in his
vehicle, take the two individuals to the site . . . where the load car was.
Following this exchange, the district court found a sufficient factual basis for
Defendant’s guilty plea and accepted it.
The facts as recited in the presentence investigation report (PSR) provided
further details of the criminal conspiracy in which Defendant participated.
Following her arrest, Leyva-Valencia told agents that Armenta-Melendrez and his
wife asked her to drive a vehicle, a Nissan Altima, from Phoenix to Albuquerque.
They told her she would be paid $2,000. When she left Phoenix, Armenta-Melendrez
and Gallardo-Cota left Phoenix in a separate vehicle, a black Chevrolet Impala.
5
Leyva-Valencia informed agents that she was to deliver her vehicle to the two men
once she arrived in Albuquerque. Agents set up a controlled delivery of the Altima
at an Albuquerque hotel. Soon agents noticed the Impala driving back and forth past
the hotel before it departed the area. A short time later, agents noticed a Dodge
Avenger parked across the street from the hotel at a gas station. The Avenger sat at
a gas pump for an extended period, but no one got out to pump gas. When the
Avenger departed, agents conducted a traffic stop and located Defendant and his two
male co-defendants.
Following their arrests, agents conducted interviews with all three men.
Armenta-Melendrez stated that he witnessed Gallardo-Cota receive the drugs and
conceal them inside the Altima. Armenta-Melendrez further stated the drugs were
to be delivered to Defendant in Albuquerque. Gallardo-Cota confirmed what
Armenta-Melendrez had said, adding critical detail:
Gallardo-Cota stated he met [Defendant] Gonzalez-Avalos through
Gallardo-Cota’s uncle who lives in Sinaloa, Mexico. Gallardo-Cota
indicated [Defendant] typically drives to Arizona himself to pick up
narcotics and this was the first time Gallardo-Cota had transported
narcotics for [Defendant]. Gallardo-Cota stated [Defendant] offered to
pay Gallardo-Cota $5,000 to transport narcotics, and Gallardo-Cota and
Armenta-Melendrez planned to split the $5,000. Gallardo-Cota advised
when he and Armenta-Melendrez arrived at the hotel to pick up the
Altima they had a feeling “something was not right.” As a result,
Gallardo-Cota stated he and Armenta-Melendrez met [Defendant] to tell
him what was going on. According to Gallardo-Cota, [Defendant]
decided to drive to the hotel and park at the gas station to see what was
going on. Gallardo-Cota admitted he destroyed the cell phone he had
used to contact [Defendant] because he was afraid of what would
happen if law enforcement officers obtained the cell phone.
6
During his post-arrest interview, [Defendant] said Gallardo-Cota was the
nephew of an individual that had worked on [Defendant’s] car. According to
Defendant, Gallardo-Cota and Armenta-Melendrez arrived at Defendant’s place of
work and asked him for a ride. Defendant agreed. The two men left their Impala at
Defendant’s workplace. At this point the agent conducting the interview told
Defendant that others had informed law enforcement that the drugs were to be
delivered to Defendant. In response, Defendant claimed someone was trying to “set
him up” and wanted him to “take the fall.” Defendant then denied knowing either
Armenta-Melendrez or Gallardo-Cota. The agent asked him why he agreed to give
the two men a ride if he did not know them. Defendant continued to deny he knew
the two men and the interview terminated.
In his sentencing memorandum, Defendant did not specifically object to the
PSR’s factual recitation but only its conclusion that Defendant had not adequately
debriefed the Government. Defendant pointed out that Armenta-Melendrez stated
during his interview that the drugs were to be delivered to Defendant “but in the
same statement stated he did not know [Defendant] and that August 19, 2015 [the
day of the men’s arrest] was the first time he had met [Defendant].” Defendant also
submitted a notarized statement Gallardo-Cota sent to Defendant’s family, without
the knowledge of Gallardo-Cota’s defense counsel, prior to sentencing. This
statement read:
I hereby explain that the [prior] statement I gave about [Defendant] was
7
due to fear and I felt pressured that day, August 19, 2015. I clarify that
he was not the person in charge of the drugs that were found that day,
August 19. I also said that he would pay me $5,000 for the favor, that
is also false. I am writing this letter of my own volition and not under
any threat. I also stress that if the person [i.e., Defendant] was with us
on the day this occurred, it is because I asked him to take me. If my
presence is required for any statement, I accept.
At the sentencing hearing, Gallardo-Cota testified his prior statement that
Defendant would pay him $5,000 to deliver the drugs was false and that Defendant
had nothing to do with transporting the drugs. He further stated he did not know
who was going to receive the drugs. Gallardo-Cota said he went to Defendant for
help when he suspected Leyva-Valencia’s vehicle had been compromised. He said
Defendant did not come up with the plan to watch the parking lot of the hotel from
the gas station. Gallardo-Cota claimed he did not know who came up with the plan
but confirmed Defendant was driving the Avenger. Regarding his recantation,
Gallardo-Cota said someone at the jail gave him the family address to which he sent
the letter, but he did not remember who. He also testified he did not know what he
was communicating about with Defendant before destroying his cell phone.
Based on Gallardo-Cota’s recantation testimony as well as his own denials,
Defendant asserted he was a minor participant in the conspiracy and eligible for
safety-valve relief. Defendant testified at the hearing that his only role was to assist
Gallardo-Cota after the drugs arrived in Albuquerque. Defendant was not to receive
delivery of the drugs. Defendant’s role was limited to helping Gallardo-Cota.
Defendant further testified that his only involvement in the conspiracy was to drive
8
someone to a hotel. He said he had no arrangement to be paid, he was not to retrieve
the drugs, and he had no part in planning transport of the drugs. He further stated
he did not communicate with Gallardo-Cota about the drug delivery prior to the
latter’s arrival in Albuquerque. 2
Following the testimony of Gallardo-Cota and Defendant, the Government
informed the court that if it were prepared to deny Defendant safety-valve relief, the
hearing could conclude. Otherwise the Government was prepared to fully cross-
examine both men as well as call its own case agent to the stand. Defendant through
his defense counsel did “not object to the court stopping, at this point, and making
a ruling based on what has gone on so far.” Consequently, the court concluded the
hearing, adopted the PSR’s factual findings absent any particularized objection from
Defendant, and denied Defendant’s motion for safety-valve relief.
2
We understand the district court’s frustration with the Government’s failure
to provide it a written summary of Defendant’s debriefing. Nonetheless, the
Government proffered a verbal summary of the debriefing at the hearing which was
largely consistent with the testimony of Gallardo-Cota and Defendant.
9
III.
Defendant tells us he carried his burden and established his right to safety-
valve relief because Gallardo-Cota’s recantation “affirmatively demonstrated” the
“completeness and truthfulness” of Defendant’s proffer to the Government. And the
Government, by declining to present its own version of events at the sentencing
hearing, failed to negate this showing. According to Defendant, “[t]he only
statements that were inconsistent with [his] statements [of denial] came from co-
defendant, Gallardo-Cota, who later recanted his statements by letter and under oath
at [Defendant’s] sentencing.” In this Circuit, however, “[a] district court’s factual
finding is clearly erroneous only ‘if it is without factual support in the record or if
this court, after reviewing all the evidence, is left with a definite and firm conviction
that a mistake has been made.’” United States v. Patron-Montano, 223 F.3d 1184,
1188 (10th Cir. 2000) (internal brackets omitted) (quoting Manning v. United States,
146 F.3d 808, 812 (10th Cir. 1998)). As our telling of the story well illustrates, the
district court’s finding that Defendant had not truthfully provided the Government
with all the information he possessed regarding the drug conspiracy has ample
support in the record. 3
3
Defendant’s argument that the district court misunderstood the burden of
proof is meritless. At the sentencing hearing, the district court identified the issue
as whether Defendant was telling the truth when he told the Government “he doesn’t
know anything about anything and doesn’t know anything about drugs and was not
really involved in this drug transaction.” The court also correctly observed that the
(continued...)
10
Let us begin with Gallardo-Cota’s recantation. Of course, he either lied to
agents during his post-arrest interview, to the district court when he recanted his
post-arrest statements, or on both occasions. And the question of whether and when
a witness is lying or telling the truth is most assuredly within the district court’s
province to decide. See Patron-Montano, 223 F.3d at 1189. Moreover, we have
observed that a court should view witness recantations with “great suspicion”
because they are notoriously unreliable and often given for suspect motives. Bonney
v. Wilson, 754 F.3d 872, 886 (10th Cir. 2014). For our purposes, we note here that
witnesses with personal motives in criminal prosecutions may and not infrequently
do change their stories. See id. By accepting the PSR’s factual findings—findings
that set forth in detail the information Gallardo-Cota provided the police immediately
following his arrest—the district court necessarily found Gallardo-Cota’s recantation
not credible. In other words, the court found Gallardo-Cota’s recantation was more
likely than not untruthful. The district court’s factual determination that Defendant
was less than forthcoming in his debriefing depended in large part on an assessment
of whether the testimony of Gallardo-Cota at the sentencing hearing was credible.
“Assessing the credibility of witnesses, determining who is telling the truth and who
is lying, is the job of the district court.” United States v. Robinson, 14 F.3d 1200,
3
(...continued)
question as to whether Defendant testified truthfully in essentially reiterating what
he had told the Government was for the court to determine.
11
1204 (7th Cir. 1994). The district court’s adoption of the PSR’s factual findings
regarding Gallardo-Cota’s post-arrest statements certainly undermines Defendant’s
assertion that he truthfully provided agents with all the information he possessed
concerning the criminal conspiracy to which he pleaded guilty. See Patron-Montano.
223 F.3d at 1189 (“By overruling [defendant’s] objections to the PSR, the district
court necessarily found that [defendant] had [previously] lied.”).
But the court’s adoption of those findings (and Defendant’s conspicuous
failure to object to them) is not all that undermines Defendant’s claimed lack of
knowledge about the conspiracy. At the hearing, Defendant essentially testified he
knew nothing other than the fact that Gallardo-Cota had a vehicle in Albuquerque
stashed with drugs and needed Defendant’s assistance. But the representations of
Defendant’s counsel at the change of plea hearing certainly suggest Defendant knew
more. Counsel informed the court that his “client was asked by one of the co-
defendants to assist” and “[h]e knew there were drugs inside the vehicle” for
distribution. When the court asked in what way did Defendant “assist” the criminal
conspiracy, counsel acknowledged among other things that “there were phone calls;
there was tracking . . . the drugs as they were driven in from Arizona.” Undoubtedly
these representations are in tension with Defendant’s testimony at the sentencing
hearing in which he claimed he played no part in moving the drugs from Arizona and
had no communication with Gallardo-Cota about the drugs prior to the latter’s arrival
12
in Albuquerque. 4 According to the PSR, Defendant at one point even denied
knowing Gallardo-Cota or Armenta-Melendrez.
Defendant asks us to focus on the Government’s failure to present live witness
testimony at the hearing rebutting both his testimony and Gallardo-Cota’s
recantation. But the Government needed to present evidence beyond what was
already in the record only if Defendant first satisfied his burden of establishing he
had disclosed all the knowledge he possessed about the conspiracy. See Cervantes,
519 F.3d at 1256 (rejecting the argument that to prevent application of the safety
valve the Government must present some evidence to show a defendant has not been
forthcoming in his debriefing). The short response to Defendant is that the
Government did not have the burden; he did and he failed to meet it. See id. at 1257.
On this record, the district court did not clearly err in concluding Defendant had not
truthfully provided to the Government all information and evidence he had
4
Defendant’s signed statement of acceptance or responsibility is also in
tension with his testimony at the sentencing hearing. The statement reads in relevant
part:
The day before the date of the incident that was the basis for the arrest
in this case, I was contacted by Adan Gallardo-Cota to assist in the
recovery of a vehicle which would be driven from Phoenix, Arizona to
Albuquerque, New Mexico with a load of drugs. On August 19, 2015,
I had been informed that the vehicle was in transit from Phoenix to
Albuquerque and I contacted Adan Gallardo-Cota to find out when and
where the vehicle would be left. . . . Adan and I exchanged a number
of phone calls. He relayed to me that one of his concerns was that he
had lost contact with the person driving the load car.
13
concerning the conspiracy to which he pleaded guilty.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge.
14