United States v. Sabillon-Umana ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 29, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-1110
(D.C. No. 1:12-CR-00113-WYD-3)
ELDER GEOVANY SABILLON- (D. Colo.)
UMANA, a/k/a Elder Umana, a/k/a
Pablo Casillas,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
Elder Geovany Sabillon-Umana pleaded guilty to money laundering and
conspiracy to distribute heroin and cocaine. He was sentenced to ninety-six
months’ imprisonment, but we reversed and remanded that sentence in an earlier
*
The parties have not requested oral argument, and upon examining
the briefs and appellate record, this panel has decided that oral argument would
not materially assist 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This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
appeal. On remand, the district court resentenced Mr. Sabillon-Umana to eighty-
four months’ imprisonment. He now appeals, arguing that during resentencing
proceedings, the government breached his plea agreement in two respects.
Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of
the district court.
I
In 2011 and 2012, Mr. Sabillon-Umana distributed heroin and cocaine for a
drug distribution organization (“DTO”) run by a man known as “Gordo.” R.,
Vol. I, at 21 (Plea Agreement, filed Oct. 23, 2012). Mr. Sabillon-Umana
eventually entered a plea agreement under which he pleaded guilty to money
laundering and conspiracy to distribute heroin and cocaine.
The plea agreement provided for a potential substantial-assistance
downward departure. More specifically, the agreement provided that Mr.
Sabillon-Umana “underst[ood] and agree[d]” that, if he desired the government’s
consideration of a potential 18 U.S.C. § 3353(e) and U.S.S.G. § 5K1.1 motion for
downward departure, he would be “required to cooperate fully” by “providing
truthful and complete information and testimony,” appearing at required judicial
proceedings, and agreeing to continuances of his sentencing hearing until his
testimony had been provided. Id. at 14–15. The agreement also provided that the
government expressly “reserve[d] the sole right to evaluate the nature and extent
of the defendant’s cooperation and to make the defendant’s cooperation, or lack
thereof, known to the Court at the time of sentencing,” making clear that “in the
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exercise of [the government’s] discretion,” the government “may make a [18
U.S.C. § 3353(e) and U.S.S.G. § 5K1.1] motion . . . reflecting that the defendant
. . . provided substantial assistance.” Id. at 15.
In exchange for Mr. Sabillon-Umana’s substantial assistance, the
agreement stated that the government “anticipate[d]” that a § 5K1.1 motion
would ask the court “to impose a sentence as much as 40% below the bottom of
the otherwise applicable Guidelines sentencing range,” assuming that the judicial
process allowed Mr. Sabillon-Umana to fully demonstrate his assistance to law
enforcement. Id. Furthermore, the agreement reiterated in the “GUIDELINES
PREDICTION” section that “the Government anticipate[d] asking the Court to
reduce the defendant’s sentence by up to 40% (measured from the bottom of the
otherwise applicable Sentencing Guideline range) for substantial assistance.” Id.
at 43–44 (emphasis omitted).
Before Mr. Sabillon-Umana’s initial sentencing hearing, the government
filed a substantial-assistance motion in which it “request[ed] a departure from the
otherwise applicable Sentencing Guidelines range and the ten year statutory
minimum mandatory sentence for [the conspiracy charge], and from the otherwise
applicable Sentencing Guidelines range for [the money laundering charge].” Id.
at 94 (Gov’t’s § 5K1.1 Mot., filed June 27, 2013). In its motion, the government
requested a sentence of 108 months’ imprisonment; however, at the subsequent
initial sentencing hearing, the government changed its recommendation to a range
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of 96 to 120 months’ imprisonment. 1 See Supp. R., Vol. II, at 165 (Tr. of
Sentencing Hr’g, dated Aug. 15, 2013) (court stating that “[i]n the motion, . . .
the Government asked that I grant the downward departure under 5K1.1, and 18
[U.S.C. §] 3553(e), and impose a sentence of 108 months. However, [the
government], within the last 30 minutes, modified the motion to indicate that the
Court had a sentencing range of 96 months, to, . . . 120 months”); see also id. at
159 (government amending the downward-departure request stating that Mr.
Sabillon-Umana’s debriefing testimony was “full of prevarication”). 2
At the initial sentencing hearing, the district court calculated a Guidelines
range of 121 to 151 months’ imprisonment, and observed that the statutory
mandatory minimum sentence was 120 months’ imprisonment. The court granted
the government’s substantial-assistance motion and sentenced Mr. Sabillon-
Umana to ninety-six months’ imprisonment, below the bottom of the Guidelines
range of 121 months’ imprisonment. We reversed and remanded that sentence on
appeal. See United States v. Sabillon-Umana, 772 F.3d 1328, 1335 (10th Cir.
2014).
1
The Presentence Investigation Report (“PSR”) filed six days before
the government’s substantial-assistance motion calculated a Guidelines range of
240 to 262 months’ imprisonment.
2
As grounds for its downward-departure request, the government
stated in its motion that Mr. Sabillon-Umana “ha[d] appeared and met to be
debriefed with staff of the office of the United States Attorney, Special Agents,
and Task Force Officers,” and that he “ha[d] indicated he would testify to the best
of his ability at trial if called upon to do so.” R., Vol. I, at 94.
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During resentencing proceedings on remand, the government did not
request a forty-percent downward departure from the bottom of the Guidelines
range. Instead, in a “Statement Concerning [the] Re-Sentencing of [Mr. Sabillon-
Umana]” filed before the resentencing hearing, R., Vol. I, at 104 (filed Mar. 3,
2015), the government recommended a substantial-assistance departure to a range
of 96 to 120 months (the same recommendation it had made at the initial
sentencing hearing), noting that “[a] 96 month term of imprisonment would
represent a downward departure of 20% from the 120 month statutory minimum
mandatory sentence,” 3 id. at 114. In its pre-hearing Statement, the government
made clear that Mr. Sabillon-Umana’s “5K1.1 debriefing was difficult” because
“he generally limited his remarks and went no further than the information
already disclosed in discovery he had been provided with in the case, and his
utility as a witness would have been hampered by his unwillingness to admit the
extent and nature of his involvement in narcotics trafficking.” Id. at 114–15.
At the subsequent resentencing hearing, the government clarified that it
believed that Mr. Sabillon-Umana’s sentence should be ninety-six months. The
government explained that this determination was “based on the statutory
mandatory, the thought . . . was to give a person a couple of years off, a couple of
3
The Addendum to the PSR filed during resentencing proceedings
calculated a Guidelines range of 97 to 121 months’ imprisonment, and noted that
the statutory mandatory minimum sentence was 120 months’ imprisonment. The
government’s low-end recommendation of ninety-six months did not represent a
forty-percent departure from the bottom of that Guidelines range.
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years benefit for allowing us to basically indicate for the fact that he did sign this
plea agreement.” R., Vol. III, at 30. The government continued that it “did not
think of [the downward departure] as a percentage off of any particular number
necessarily,” and that instead, it “was thinking about one year or two years off of
[the 120-month statutory mandatory minimum] sentence.” Id. at 32. In addition,
the government reiterated that Mr. Sabillon-Umana’s “debriefing was pretty
atrocious. It was very difficult, hard going. The defendant did a lot to minimize
his own involvement in anything. And . . . he was untruthful, incomplete, with
regard to other things.” Id. at 30–31. In fact, based on Mr. Sabillon-Umana’s
debriefing testimony, the government stated that it had “seriously considered not
giving him any 5K at all.” Id. at 31.
At the resentencing hearing, the district court renewed its ruling granting
the § 5K1.1 substantial-assistance motion that the government had filed in the
initial sentencing proceedings. Id. at 28 (Tr. of Sentencing Hr’g, dated Mar. 18,
2015) (“[A]t the prior sentencing hearing I had granted the Government’s 5K
motion . . . . I will reaffirm the granting of that motion for purposes of this
resentencing so that there’s no ambiguity about that.”). Accordingly, the court
stated that it would “depart downward from the guideline range and . . . impose a
sentence below the minimum sentence required by statute [of 120 months].” Id.
at 64. The court calculated a Guidelines range of 97 to 121 months’
imprisonment. Then, it departed downward to a sentence of eighty-four months’
imprisonment.
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Not only did the plea agreement provide for a potential substantial-
assistance downward departure, but it also provided for a potential minor-role
decrease. Specifically, the agreement stated: “the Government submits there
should be a two level decrease for [playing a] minor role in the offense if the
Court takes a broad view of the GORDO DTO conspiracy because the defendant
[wa]s a subordinate in relation to . . . GORDO, the activity of the conspiracy was
extensive, and the activity involved more than 10 persons.” R., Vol. I, at 41.
During the initial sentencing proceedings, however, the PSR did not apply
a minor-role decrease in calculating Mr. Sabillon-Umana’s offense level. The
PSR explained:
the defendant’s role was more than an “average participant” in
the organization. The case agent informed that the defendant
was [Gordo’s] “right hand man.” The factual basis of the plea
agreement notes that defendant lent “managerial assistance to
[Gordo].” Furthermore, he was entrusted with the wire
transfer of $44,000, which he transferred to his Honduran bank
account. On occasion, the defendant sourced the Gordo DTO
with cocaine drug supplies obtained from another DTO. His
contributions to the DTO were integral to the success of the
organization.
R., Vol. II, at 62. Similarly, at the initial sentencing hearing, the government
argued that the minor-role decrease was not appropriate “[i]f you look at what
happened here in Colorado, which is how the probation officers looked at it,”
instead of taking a “very telescopic, very far away view of [the conspiracy].”
Supp. R., Vol. II, at 138. In line with both the government’s recommendation and
the PSR’s calculation, at the initial sentencing hearing, the district court used the
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PSR to calculate the offense level without the minor-role reduction. However, at
resentencing, the minor-role decrease was not discussed at all, and the court did
not apply it in calculating Mr. Sabillon-Umana’s offense level. See R., Vol. III,
at 63 (noting that “there are no adjustments for role in the offense”).
This appeal followed.
II
Mr. Sabillon-Umana argues that during resentencing proceedings, the
government breached the plea agreement by: (1) not recommending a downward
departure from the bottom of the Guidelines range in its substantial-assistance
motion, and (2) not arguing for a minor-role decrease in offense level. We
address each of these claims in turn, and affirm.
A
Mr. Sabillon-Umana first argues that the government breached the plea
agreement by not seeking a substantial-assistance departure calculated from the
bottom of the Guidelines range. Below, we conclude that the government did not
breach the plea agreement with regard to its substantial-assistance departure
recommendation.
1
As a preliminary matter, the parties disagree about the applicable standard
of review. Mr. Sabillon-Umana argues that we should review de novo whether
the government breached the plea agreement. See, e.g., United States v.
Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). The government
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responds that we should review only for plain error because, although Mr.
Sabillon-Umana argued below that “the bottom of the guidelines range was the
proper starting point for the departure . . . he never claimed that the government
breached the plea agreement.” Aplee.’s Br. at 8.
We sidestep this dispute concerning the proper standard of review because
we conclude that even applying de novo review, Mr. Sabillon-Umana cannot
prevail on the merits.
2
Even applying de novo review, Mr. Sabillon-Umana cannot prevail on the
merits. Under the plain language of the plea agreement, the government did not
unequivocally promise to recommend a departure of a certain percentage below
the bottom of the Guidelines. Instead, the government retained discretion to
evaluate Mr. Sabillon-Umana’s cooperation, and that evaluation ultimately
resulted in a less favorable downward-departure recommendation.
Mr. Sabillon-Umana argues that “the government breached its promise to
request a percentage reduction and departure based on the bottom of the
applicable guidelines’ range.” Aplt.’s Opening Br. at 8 (capitalization and
emphasis altered). He points to the plea agreement’s language that “the
Government anticipates asking the Court to reduce the Defendant’s sentence by
up to 40% (measured from the bottom of the otherwise applicable Sentencing
Guideline range) for substantial assistance.” R., Vol. I, at 44. Mr. Sabillon-
Umana argues that despite this language, the government did not argue for a
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downward departure from the bottom of the Guidelines range, but instead asked
for “a couple of years off of the statutory mandatory minimum sentence” of 120
months. Aplt.’s Opening Br. at 10 (citing R., Vol. III, at 30 (stating that the
government’s recommended downward departure was “based on the statutory
mandatory, the thought . . . was to give a person a couple of years off, a couple of
years benefit for allowing us to basically indicate for the fact that he did sign this
plea agreement”)). In Mr. Sabillon-Umana’s view, “[t]he government’s failure to
recommend a sentence where the basis of the substantial assistance departure was
calculated from the bottom of the Guidelines’ range breached the plea
agreement’s plain language” because “pursuant to . . . the plea agreement, the
government was required to recommend” such a departure. Aplt.’s Opening Br.
at 10.
Mr. Sabillon-Umana’s brief, however, cites little in the way of legal
authority to support his position. Besides noting that 18 U.S.C. § 3553(e) allows
a departure below the statutory minimum, he cites only to United States v.
VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007). 4 In VanDam, we stated that:
General principles of contract law define the content and
scope of the government’s obligations under a plea agreement.
4
The only other legal authority cited in this section of Mr. Sabillon-
Umana’s brief is United States v. Mendoza-Haro, 595 F. App’x 829, 833 (10th
Cir. 2014), which Mr. Sabillon-Umana cites for the proposition that “a sentence
reduced under § 3553(e) for substantial assistance cannot be further reduced
based on the § 3553(a) factors.” Aplt.’s Opening Br. at 10. Mr. Sabillon-Umana
relies on Mendoza-Haro to argue that the reduction he seeks “is not prohibited
double-dipping” under § 3553(a) and (e). Id. Prohibited double-dipping,
however, is not at issue.
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We thus look to the express language in the agreement to
identify both the nature of the government’s promise and the
defendant’s reasonable understanding of this promise at the
time of the entry of the guilty plea. We construe all
ambiguities against the government, to the extent it is the
drafting party. We evaluate the record as a whole to ascertain
whether the government complied with its promise.
493 F.3d at 1199 (citations omitted). In that case, we held that the government
had breached a plea agreement because its “unambiguous language” required the
government to recommend a sentence “at the low end of the guideline range
found applicable,” but the government did not do so. Id. at 1199 (quoting the
record). Instead, the government recommended a sentence at the low end of the
range that it believed was applicable, even after the court held otherwise. Thus,
we concluded that the government had “directly contravened” its obligations
under the plea agreement. Id. at 1200.
In the present case, however, Mr. Sabillon-Umana cannot point to any
unambiguous language in the plea agreement that the government directly
contravened. As the government points out, the relevant portions of the plea
agreement state only that the government “anticipate[d]” making a substantial-
assistance motion recommending a forty-percent downward departure from the
bottom of the Guidelines range. R., Vol. I, at 15; id. at 44. Moreover, the
agreement expressly conditioned any substantial-assistance motion on the
government’s assessment of Mr. Sabillon-Umana’s cooperation. See id. at 15
(stating that the defendant “underst[ood] and agree[d]” that, in order to secure a
substantial-assistance departure recommendation, he would be required to
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“cooperate fully” by, inter alia, “providing truthful and complete information
and testimony”); id. (stating that the government “reserve[d] the sole right to
evaluate the nature and extent of the defendant’s cooperation,” and that, “in the
exercise of its discretion,” it “may make a motion . . . reflecting that the
defendant . . . provided substantial assistance”). Critically, the government later
determined that Mr. Sabillon-Umana had provided little assistance to law
enforcement. See, e.g., id. at 114–15 (stating that Mr. Sabillon-Umana’s “5K1.1
debriefing was difficult” because “he generally limited his remarks and went no
further than the information already disclosed in discovery he had been provided
with in the case, and his utility as a witness would have been hampered by his
unwillingness to admit the extent and nature of his involvement in narcotics
trafficking”).
Thus, there is no reason to conclude that the government failed to fulfill
any promise in the plea agreement or contravened the defendant’s reasonable
understanding of any promise. See VanDam, 493 F.3d at 1199–1200. We
therefore reject Mr. Sabillon-Umana’s first argument. 5
5
Mr. Sabillon-Umana also briefly argues that the district court “was
confused” about whether it could “depart downward from the Guideline range,”
and that, for this reason, we should “clarify what happens” when a “plea
agreement . . . requires” a substantial-assistance departure below the bottom of a
Guidelines range. Aplt.’s Opening Br. at 12 (emphasis added). However, we
need not address this issue because the plea agreement contained no such
requirement in this case; it merely described what the government anticipated it
would do, assuming Mr. Sabillon-Umana fully cooperated.
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B
In his second claim, Mr. Sabillon-Umana argues that “the government
breached the plea agreement by not recommending a two-level reduction for Mr.
Sabillon’s minor role in the conspiracy.” Aplt.’s Opening Br. at 13
(capitalization and emphasis altered). Applying plain-error review, we conclude
that the district court did not err, much less plainly, in failing to find a breach
because there was no binding obligation for the government to recommend the
minor-role downward adjustment.
1
The parties again disagree about the applicable standard of review. Mr.
Sabillon-Umana acknowledges that he did not make an objection concerning this
issue at the resentencing hearing, but maintains that de novo review applies
regardless of whether the issue was preserved. See Aplt.’s Opening Br. at 13
(citing VanDam, 493 F.3d at 1199 (“This Court reviews de novo the question of
whether the government has breached a plea agreement, even when the defendant
fails to preserve this objection below.”)). However, as the government points
out, VanDam’s standard-of-review holding is no longer good law; it was
overturned by the Supreme Court’s subsequent decision in Puckett v. United
States, 556 U.S. 129, 133 (2009). And, since Puckett, we have applied a plain-
error standard in the breach-of-plea-agreement context. See United States v.
Mendoza, 698 F.3d 1303, 1309 (10th Cir. 2012); see also United States v. Willis,
607 F. App’x 788, 790–91 (10th Cir. 2015).
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Mr. Sabillon-Umana’s reply brief does not address this point, nor does it
argue that the district court plainly erred. Accordingly, we could determine that
Mr. Sabillon-Umana has waived any argument for plain error, and decline to
reach the merits of this issue at all. See, e.g., United States v. Ibarra-Diaz, 805
F.3d 908, 916 n.3 (10th Cir. 2015); United States v. Zander, 794 F.3d 1220, 1232
n.5 (10th Cir. 2015); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th
Cir. 2011). Nevertheless, we exercise our discretion to reach the merits of Mr.
Sabillon-Umana’s minor-role argument, and review for plain error. See Ibarra-
Diaz, 805 F.3d at 916 n.3.
2
Under plain-error review, Mr. Sabillon-Umana must show “(1) error, (2)
that is plain, which (3) affects substantial rights, and which (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Mendoza,
698 F.3d at 1309 (quoting United States v. Weiss, 620 F.3d 1263, 1274 (10th Cir.
2010)). Mr. Sabillon-Umana has failed, however, to demonstrate any error, much
less one that is plain, and we therefore resolve this issue under the first prong of
the plain-error test.
Mr. Sabillon-Umana argues that the government failed to seek a two-level
reduction for his minor role in the conspiracy, despite having promised to do so
in the plea agreement. See Aplt.’s Opening Br. at 13 (citing R., Vol. I, at 41
(stating that “the Government submits there should be a two level decrease for [a]
minor role in the offense”)). His brief, however, ignores other pertinent language
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in the plea agreement. Read in full, the relevant provision of the plea agreement
states: “the Government submits there should be a two level decrease for [a]
minor role in the offense if the Court takes a broad view of the GORDO DTO
conspiracy because the defendant [wa]s a subordinate in relation to . . . GORDO,
the activity of the conspiracy was extensive, and the activity involved more than
10 persons.” R., Vol. I, at 41 (emphasis added). As this language makes clear,
the government’s promise regarding the minor-role adjustment was conditioned
on the court taking a broad view of the conspiracy.
At both initial sentencing and resentencing, the district court did not take a
broad view of the conspiracy. More specifically, the court held Mr. Sabillon-
Umana accountable for only his direct drug involvement—not the larger
conspiracy. See, e.g., Supp. R., Vol. II, at 131 (at initial sentencing hearing,
court stating that “it would be just wrong . . . to attribute all of the drug quantities
that are associated with the conspiracy with Mr. [Sabillon-]Umana”); R., Vol. III,
at 59–60 (at resentencing, court stating that, “I reject as not supported by the
facts in this case the Government’s assertion that all of the drugs that were a part
of the conspiracy in this case should be attributable to this defendant. I just don’t
believe that there is a factual basis for me to make that finding.”). The
government argues that as a consequence, it was not required to seek a minor-role
reduction under the plain language of the plea agreement. Mr. Sabillon-Umana
offers no explanation as to why that is incorrect. Given the view that the court
took of the conspiracy, we conclude that the government was under no obligation
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to request a minor-role reduction. Thus, we hold that the district court did not
err, much less plainly, in failing to find that the government breached the plea
agreement.
III
For the foregoing reasons, we AFFIRM the district court’s judgment.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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