United States v. Bustamante-Conchas ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 24, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2100
(D.C. No. 1:13-CR-02028-JAP-2)
MIGUEL BUSTAMANTE-CONCHAS, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Miguel Bustamante-Conchas appeals his 216-month concurrent sentences,
imposed on remand, for conspiring to distribute and possessing with intent to distribute
one kilogram or more of heroin. He argues that the district court plainly erred by
considering at sentencing the presentence reports (PSRs) of co-defendants and
co-conspirators without giving him prior notice and an opportunity to respond.
Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
The factual background for this case is thoroughly recounted in this court’s prior
opinions. See United States v. Bustamante-Conchas, 832 F.3d 1179 (10th Cir. 2016)
(Bustamante-Conchas I), rev’d on reh’g en banc, 850 F.3d 1130 (10th Cir. 2017)
(Bustamante-Conchas II). We repeat only those facts necessary for an understanding of
the limited issues before us.
Bustamante-Conchas and Baltazar Granados ran a heroin trafficking operation in
the Albuquerque, New Mexico, area. The heroin was supplied by Joel Nunez-Haros and
Pablo Felix Sicairos, among others. Bustamante-Conchas allowed those two men to use
homes he owned and rented in Albuquerque to store heroin, cash, and drug-related items.
When the group was arrested in 2013, police found over two hundred grams of
heroin in Bustamante-Conchas’s homes and almost ten kilograms of heroin in Granados’s
home and a residence rented by Granados’s wife at Bustamante-Conchas’s direction.
Additionally, inside Granados’s home, the police found a Glock pistol. According to an
investigator, Granados’s wife said that Granados told her that Bustamante-Conchas
supplied the gun for protection against a former trafficking partner.
A jury found Bustamante-Conchas guilty of conspiring to distribute and
possessing with intent to distribute one kilogram or more of heroin. At sentencing, the
district court attributed 12.84 kilograms of heroin to Bustamante-Conchas, and it imposed
a two-level enhancement for the Glock’s possession in connection with the conspiracy.
Despite a resulting Guidelines sentencing range of 292 to 365 months’ imprisonment, the
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district court cited Bustamante-Conchas’ childhood circumstances and varied downward
to a 240-month sentence.
On appeal, Bustamante-Conchas challenged the drug quantity attributed to him,
the dangerous-weapon enhancement, and the absence of an opportunity to allocute before
sentencing. A divided panel of this court affirmed, with Judge Lucero concurring in part,
but dissenting on the allocution issue. Bustamante-Conchas I, 832 F.3d at 1186-87. On
en banc review limited to the allocution issue, a majority of this court’s judges vacated
Bustamante-Conchas’s sentence and remanded for resentencing. Bustamante-Conchas II,
850 F.3d at 1144.
At resentencing, the district judge began by recounting the documents he had
reviewed since the initial sentencing, which included the PSRs of four co-defendants
(Granados, Angel Miramontes-Cruz, Ramon Cabrales-Guerra, and Ruben Garcia-
Miranda) and two separately charged co-conspirators (Sicairos and Nunez-Haros), all of
whom the judge had previously sentenced. After hearing Bustamante-Conchas’s
allocution, the judge adopted his earlier findings in support of the gun enhancement and
drug quantity, and he determined after recounting the scope of Bustamante-Conchas’s
criminal activity that the Guideline range would remain 292 to 365 months. After
reiterating his consideration of the co-defendants’ and co-conspirators’ PSRs, and finding
that Bustamante-Conchas’s allocution was sincere and contrite, the judge selected a
sentence of 216 months’ imprisonment. At no point did Bustamante-Conchas object to
the judge’s consideration of the third-party PSRs.
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Bustamante-Conchas now appeals, arguing that the district court plainly erred by
considering those PSRs without giving him advance notice and an opportunity to
respond.
DISCUSSION
Where, as here, an appellant raises an argument that he forfeited below by not
objecting, see, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011),
the argument must be reviewed under the “rigorous plain-error standard,” United States v.
McGehee, 672 F.3d 860, 876 (10th Cir. 2012).1 Under that standard, the appellant “must
persuade us that there is (1) error, (2) that is plain, which (3) affects [his] substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Rios-Morales, 878 F.3d 978, 987 (10th Cir. 2017)
(internal quotation marks omitted), cert. denied, 2018 WL 1610267 (U.S. Apr. 30, 2018).
1
Bustamante-Conchas invokes the exception to plain-error review for a
sentencing court “error that the defendant cannot be expected to anticipate,” United
States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008). He argues that
“[n]othing in the record suggests that Mr. Bustamante should have been prepared for
the district court’s sua sponte reliance at resentencing on confidential, third-party
PSRs - sources of information presumed to be inaccessible to the defendant and that
he would have no opportunity to rebut.” Aplt. Opening Br. at 28. Even assuming the
continued viability of the unforeseeable-error doctrine, see Martinez-Barragan, 545
F.3d at 899 n.1, Bustamante-Conchas has not shown it applies here. In particular, the
district judge announced at the outset of the sentencing hearing and before
pronouncing sentence that he had considered the third-party PSRs. Despite this
notice and opportunities to address the consideration of those PSRs, Bustamante-
Conchas neither mentioned them nor requested a continuance to rebut them. Under
these circumstances, any error in the district judge sentencing Bustamante-Conchas
after considering third-party PSRs was not unforeseeable.
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I. Error
Bustamante-Conchas contends that the district court’s “reliance on the
co-defendant and co-conspirator PSRs without allowing [him] to challenge them”
violated two provisions in the Rules of Criminal Procedure. Aplt. Opening Br. at 33.
First, he points to Rule 32(i)(1)(B), which requires a sentencing court to give “the
defendant and an attorney for the government a written summary of--or summarize in
camera--any information excluded from the presentence report under Rule 32(d)(3)[2] on
which the court will rely in sentencing, and give them a reasonable opportunity to
comment on that information.” Fed. R. Crim. P. 32(i)(1)(B). This provision “obligates
the district court to provide the parties advance access to information on which it will rely
in sentencing” in order to “safeguard against . . . sentencing based on evidence that the
parties have not had reasonable notice of and opportunity to address.” United States v.
Rakes, 510 F.3d 1280, 1286 (10th Cir. 2007) (internal quotation marks omitted).
Next, Bustamante-Conchas cites Rule 32(i)(1)(C), which requires a sentencing
court to “allow the parties’ attorneys to comment on the probation officer’s
determinations and other matters relating to an appropriate sentence.” Fed. R. Crim. P.
32(i)(1)(C). This provision ensures that a defendant’s sentence is subjected to “thorough
adversarial testing.” United States v. Angel-Guzman, 506 F.3d 1007, 1016 (10th Cir.
2007) (internal quotation marks omitted).
2
PSRs may not reveal: “any diagnoses that, if disclosed, might seriously
disrupt a rehabilitation program”; “any sources of information obtained upon a
promise of confidentiality”; and “any other information that, if disclosed, might
result in physical or other harm to the defendant or others.” Fed. R. Crim. P.
32(d)(3).
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Despite these Rule 32 directives, the government maintains there was no error
because “the district court never stated that it went a step beyond reviewing and actually
relied on the third-party [PSRs] to reach different conclusions about the contested issues
than the court would have reached without reviewing those reports.” Aplee. Br. at 14.
True, the district judge did not say he “relied” on the third-party PSRs. Rather, at the
hearing’s outset, after listing the documents he had reviewed for sentencing, which
included Bustamante-Conchas’s own PSR as well as the third-party PSRs, the district
judge asked the parties whether there were “any other written materials that [he] should
consider.” R., Vol. III at 40 (emphasis added). And before announcing sentence, the
district judge said that “in reviewing the[ ] [third-party] plea agreements and [PSRs],” he
became convinced that “[i]f those defendants had chosen to go to trial, likely they would
have ended up with sentences much closer to what is being imposed on . . .
Bustamante-Conchas.” Id. at 91. Thus, the record clearly indicates that the district judge
relied on the third-party PSRs in sentencing Bustamante-Conchas.
Mere reliance, however, is not Bustamante-Conchas’s complaint. His claimed
error is reliance without prior notice and a reasonable opportunity to respond. The
problem with this claim, however, is, as we mentioned earlier, that the district judge
announced his consideration of the third-party PSRs at the beginning of the sentencing
hearing. And throughout the hearing, Bustamante-Conchas had opportunities to address
the consideration of those PSRs. Granted, without knowing the content of those PSRs,
Bustamante-Conchas might have been at a disadvantage in fashioning a response. See
United States v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991) (“[N]otwithstanding the wide
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scope of the sentencing court’s discretion, a defendant may not be placed in a position
where, because of his ignorance of the information being used against him, he is
effectively denied an opportunity to comment on or otherwise challenge material
information considered by the district court.”). But given that the district judge had
already sentenced Bustamante-Conchas’s co-defendants and co-conspirators, it should
have come as no surprise to Bustamante-Conchas that the judge had, at one time or
another, reviewed the third-party PSRs. Moreover, regardless of when that review took
place, the district judge rendered the same findings of fact from the original sentencing
proceeding regarding drug quantity and firearm possession (which this court had affirmed
in Bustamante-Conchas I), with the same resulting sentencing range. And then, the
district judge gave Bustamante-Conchas one more opportunity to argue for an
“appropriate sentence.” R., Vol. III at 82. Under these circumstances, we fail to see how
Bustamante-Conchas was denied an opportunity “to rebut or explain allegations made in
a sentencing proceeding,” United States v. Alvarado, 909 F.2d 1443, 1446 (10th Cir.
1990) (internal quotation marks omitted).
II. Plain Error
Assuming for the sake of argument that the district court failed to give
Bustamante-Conchas sufficient notice of, and opportunity to address, its consideration of
third-party PSRs, we now turn to whether that error was plain. An error is plain if it “is
contrary to well-settled law.” United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016)
(internal quotation marks omitted). In order “to characterize a proposition of law as
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well-settled, we normally require precedent directly [o]n point from the Supreme Court
or our circuit or a consensus in the other circuits.” Id.Bustamante-Conchas does not identify a case where, as here, the district court
resentenced a defendant after (1) announcing it had reviewed the PSRs of co-defendants
and co-conspirators who the court had already sentenced, and (2) adopting the same
findings of fact made at the original sentencing. Instead, Bustamante-Conchas cites
Alvarado, where the district court sentenced a defendant based on materials reviewed in
camera that “confirm[ed] the accuracy of the summary of [a] confidential informant’s
report included in the [defendant’s PSR]” and supplied “additional inculpatory
information about [the defendant’s] role in the [drug-trafficking].” 909 F.2d at 1445-46.
Because the district court relied on the materials without giving the defendant at least a
summary of them, it violated “the law of this circuit requiring that a defendant be
permitted to rebut or explain allegations made in a sentencing proceeding.” Id. at 1446(internal quotation marks omitted).
We do not find Alvarado sufficiently on point to render the assumed error in
Bustamante-Conchas’s sentencing plain. Here, the judge’s consideration of information
in previously sentenced co-defendants’ and co-conspirators’ PSRs—which did not alter
relevant sentencing findings—makes this case unique. And while the absence of
precedent directly on point is not determinative if the error is clear and obvious from
another source, such as a statute or procedural rule, see United States v. Powell, 767 F.3d
1026, 1035 (10th Cir. 2014), we cannot so characterize the assumed error based on
Rule 32’s language. Specifically, Rule 32(i)(1)(B) does not appear to cover a sentencing
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court’s consideration of third-party PSRs, given that the rule applies to material, which if
revealed, might disrupt a rehabilitation program, result in physical harm, or identify an
information source that was obtained upon a promise of confidentiality. And while
Rule 32(i)(1)(C) affords a general opportunity to “comment on . . . matters relating to an
appropriate sentence,” Fed. R. Crim. P. 32(i)(1)(C), the circumstances in this case do not
indicate that this prescription was clearly and obviously violated.
CONCLUSION
We affirm Bustamante-Conchas’s sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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