United States v. Orestes Desoto ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 19, 2005
No. 04-12307
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 01-00981-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORESTES DESOTO,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(April 19, 2005)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Orestes DeSoto, a 20-year police veteran, appeals for the second time his
235-month and 84-month consecutive sentences imposed after his guilty plea to
several drug and firearms offenses. In his first appeal, we vacated DeSoto’s
sentences and remanded for resentencing. United States v. DeSoto, Case No. 02-
15238, at *3 (11th Cir. Dec. 12, 2003) (hereinafter “DeSoto I”). DeSoto now
appeals his new sentences.
In this appeal, DeSoto challenges the district court’s fact findings as to drug
quantity. He also challenges, for the first time, his sentences based on Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Blakely v. Washington, 542
U.S. , 124 S.Ct. 2531 (2004). Because the Supreme Court recently extended
Blakely to the United States Sentencing Guidelines in United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005), we consider DeSoto’s appeal under Booker as
well. After review, we affirm.
I. BACKGROUND
A. DeSoto’s Plea Colloquy
DeSoto’s drug and firearms convictions stemmed from three robberies that
DeSoto planned and committed with Cecilio Nunez, Juan Castillo, and Alberto
Garcia.1 During the plea colloquy, the government set forth the following facts
1
Without a written plea agreement, DeSoto pled guilty to these eight crimes: (1) one count
of conspiracy “to possess with intent to distribute a Schedule II controlled substance, that is five (5)
kilograms or more of a mixture or substance containing a detectable amount of cocaine,” in violation
of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii); (2) one count of conspiracy to obstruct, delay, and affect
commerce by robbery using means of actual and threatened force, violence and fear of injury, in
violation of 18 U.S.C. § 1951 (Hobbs Act); (3) one count of conspiracy to use, carry, brandish, and
2
about the robberies. The first robbery occurred on January 13, 2000, and involved
a 7-11 store manager. DeSoto went inside the 7-11 store to verify that the
manager was present. After DeSoto confirmed the manager’s presence, Castillo
and Garcia waited for the manager to leave, followed him, sprayed him with
pepper spray or mace provided by DeSoto, and stole $10,000.
The second robbery occurred on February 5, 2000, and involved a restaurant
owner that DeSoto and his co-conspirators believed was a drug dealer. Nunez,
posing as a police officer, conducted a traffic stop of the restaurant owner. Garcia
and Castillo, also acting as police officers, drove up and Garcia flashed a police
badge provided by DeSoto. Garcia and Castillo then took the restaurant owner to
a warehouse where DeSoto pointed a gun at his head, beat him, and threatened to
harm him further if he did not disclose where the drugs could be found. As it
turned out, the victim had no drugs, so DeSoto and his co-conspirators stole the
victim’s money and jewelry.
possess a firearm during and in relation to a crime of violence or drug trafficking crime, in violation
of 18 U.S.C. § 924(o); (4) three counts of unlawfully obstructing, delaying, and affecting commerce
by robbery using means of actual and threatened force, violence, and fear of injury on or about
January 13, 2000, February 5, 2000, and February 15, 2000, respectively, in violation of 18 U.S.C.
§ 1951(a); (5) attempting to possess with intent to distribute five kilograms or more of cocaine on
or about February 5, 2000, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii); and (6) using, carrying,
and brandishing a firearm during and in relation to a crime of violence or a drug trafficking crime
on or about February 5, 2000, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (A)(ii) and 2.
3
According to the government, DeSoto had told his co-conspirators (Garcia
and Castillo) that the restaurant owner would have 5 kilograms of cocaine.
However, the government acknowledged that DeSoto disputed that drug quantity
in that DeSoto “has repeatedly been interviewed and eventually he admitted his
involvement in this crime, [but] he has stated it was only ounces that they were
after, not five kilos.”
The third robbery occurred on February 15, 2000, and involved a female
bakery owner. DeSoto recruited Castillo and Garcia to rob the victim, whom
DeSoto told his co-conspirators would make a good target. The three watched the
bakery owner, followed her home, and robbed her of her bakery proceeds. To
ensure the robbery’s success, one of the conspirators waited in a police car down
the street from the victim’s home so that he could pretend to be chasing the
robbers.
During the plea colloquy, the government also proffered facts about a failed
attempted robbery that took place on February 19, 2000. DeSoto and his cohorts
planned to rob persons whom they believed had won the lottery. This robbery
plan was foiled, however, when real police officers found Garcia and Castillo in
the vicinity with burglary tools, a walkie talkie, and gloves. Although the police
stopped DeSoto as he was driving by, they released him because he identified
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himself as a police officer. The police later discovered a matching walkie-talkie in
the path DeSoto took to leave the scene.
At the end of the government’s recitation of the facts, the district court
asked DeSoto if the government’s evidence was correct, to which DeSoto replied
“Yes, sir.” The district court then asked if there was “[a]nything you want to add
or anything I left out?” DeSoto replied, “No, sir.” DeSoto then pled guilty to all
eight counts in the indictment, including count 1, which charged conspiracy “to
possess with intent to distribute a Schedule II controlled substance, that is five (5)
kilograms or more of a mixture and substance containing a detectable amount of
cocaine . . . .”
After DeSoto pled guilty, the government asked for “an additional question
to avoid sentencing issues.” Specifically, the government asked the district court
to confirm that the conspiracy was for 5 or more kilograms of cocaine. DeSoto’s
counsel responded that “[t]he Court already asked him specifically those
questions. . . . [and] [y]ou have done a sufficient job to make sure he is pleading
guilt[y] to the charges.” The district court then acknowledged that there may be
some factual disputes that DeSoto would “take up at sentencing,” including the
drug quantity issue. The district court adjudged DeSoto guilty of all counts in the
indictment.
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B. Presentence Investigation Report (“PSI”) and Sentencing
The PSI recommended a base offense level of 32 because DeSoto’s drug
offense involved at least 5, but less than 15, kilograms of cocaine.2 The offense
level of 32 was increased: (1) two levels, pursuant to U.S.S.G. § 3A1.3, because
the restaurant owner was physically restrained during the robbery; (2) four levels,
pursuant to U.S.S.G. § 3B1.1(a), because of DeSoto’s role as a leader or organizer;
and (3) two levels under U.S.S.G. § 3B1.3, because as a police officer DeSoto
abused a position of trust. After a two-level reduction for acceptance of
responsibility, DeSoto’s total offense level was 38. His criminal history category
of I and offense level of 38 produced a Guidelines range of 235 to 293 months’
imprisonment.
DeSoto objected to the PSI and again at sentencing to the role and abuse-of-
trust enhancements. The district court overruled these objections. DeSoto also
objected to the PSI’s recommended drug quantity but he did not raise the drug
quantity issue at sentencing.
2
The PSI recommended that DeSoto’s eight offenses be grouped into three separate groups
based on the January 13, February 5, and February 15 robberies. Group 2, relating to the February
5, 2000 robbery of the restaurant owner, produced the highest adjusted offense level. Group 2 was
thus used to compute DeSoto’s Guidelines range.
6
The district court adopted the PSI calculations and sentenced DeSoto to 235
months’ imprisonment (the low end of the Guidelines range), to run consecutively
to an 84-month sentence on the firearm conviction. The district court also ordered
DeSoto to pay $22,169.93 in restitution.
C. DeSoto’s First Appeal
DeSoto appealed his convictions and sentences. As to his sentences,
DeSoto argued that the district court erred in ordering restitution and in
determining the enhancements for his role as a leader, his abuse of trust as a police
officer, and for a drug quantity of 5 or more kilograms of cocaine.
In the first appeal, this Court concluded “there is no merit to any of the
challenges DeSoto makes concerning his convictions and sentences, with the
exception of the issue involving drug quantity.” DeSoto I, at *3. After affirming
DeSoto’s convictions, this Court then said, “because the district court failed to
make findings regarding the five or more kilograms of cocaine for which it held
DeSoto responsible at sentencing, we vacate DeSoto’s sentences and remand this
case for resentencing. Id.
D. DeSoto’s Resentencing
On remand, the district court restricted all arguments and evidence at
resentencing to the drug-quantity issue, finding that we had issued a limited
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remand. At the resentencing hearing, the government presented a transcript of the
sworn testimony of robbery-participant Garcia who testified at Nunez’s trial that
DeSoto told them that the February 5, 2000 robbery victim would have 5
kilograms of cocaine. Specifically, during Nunez’s trial, Garcia testified regarding
what the co-conspirators planned to take from the restaurant owner. Garcia stated:
“It was a large amount of money, what’s supposed to be five kilos, some money. I
eventually gave in.” Garcia was also asked: “Mr. Desoto told you it would be five
kilos of cocaine?” Garcia responded “yes.” Later in the trial, on cross-
examination, Garcia reiterated that the goal was to get 5 kilograms of cocaine from
the restaurant owner.
At the resentencing hearing, DeSoto disputed the drug quantity by pointing
to his own testimony from Nunez’s trial in which he (1) denied having any
detailed information about the amount of drugs and (2) denied telling Garcia that
the restaurant owner would have 5 kilograms.
The district court found that DeSoto was responsible for 5 kilograms of
cocaine because he had pled guilty to that amount. The district court also found
that Garcia’s trial testimony was reliable and credible, that DeSoto’s testimony
was “ambivalent” and “self-serving,” and thus, that the government successfully
proved by a preponderance of the evidence that DeSoto was responsible for 5
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kilograms of cocaine. The district court then reimposed the same sentences it had
entered at the original sentencing. DeSoto timely appealed.
II. DISCUSSION
In this second appeal, DeSoto argues (1) that the district court erred in
limiting resentencing to the drug-quantity issue; and (2) that the district court erred
in its fact-finding as to the amount of cocaine. DeSoto also raises for the first time
Apprendi/Blakely arguments as to his sentencing enhancements. We discuss each
issue in turn.
A. Limited Resentencing
Although DeSoto’s original sentence was vacated, the DeSoto I panel
clearly stated that none of the sentencing issues DeSoto raised in the first appeal
had any merit, except the drug-quantity issue. Because, for judicial economy
purposes it is better for the district court not to redo that which was done properly
at the first sentencing, this Court has held that there is “nothing improper” in the
district court limiting the scope of the resentencing proceeding. United States v.
Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (internal quotation marks and
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citation omitted). Consequently, the district court did not err in limiting its
resentencing consideration to the drug-quantity issue.3
B. Cocaine Fact-Finding
Given co-conspirator Garcia’s testimony, we also find no reversible error in
the district court’s fact-finding that the drug quantity was more than 5 kilograms
but less than 15 kilograms. We recognize that DeSoto emphasized that no drugs
were actually stolen during the February 5, 2000 robbery. However, DeSoto was
punished for conspiring to possess with intent to distribute 5 kilograms or more of
cocaine, and not for actually completing the crime. The fact that no drugs were
actually stolen does not preclude the enhancement. See United States v.
Ramsdale, 179 F.3d 1320, 1325 (11th Cir. 1999) (concluding there was no error in
attributing 15 kilograms of methamphetamine to defendants convicted of
conspiring to manufacture methamphetamine when defendants had not actually
manufactured that amount, but “would probably” buy 15 kilograms of the
necessary ingredient “every three weeks” in order to do so).
3
In limiting the resentencing to the drug quantity issue, the district court explained that: “the
way I would interpret the letter and spirit of the remand is that they don’t want me revisiting the
issues that were previously raised before the district court in the first sentencing and have been
reviewed on appeal and anything more than that would undermine their prior appellate
determinations.”
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We also reject DeSoto’s claim that the district court used the wrong legal
standard. Although the district court did state that DeSoto was responsible for 5
kilograms of cocaine because this amount was reasonably foreseeable, it also
stated that it was basing its drug-quantity finding on the preponderance of the
evidence, namely, Garcia’s testimony. In doing so, the district court stated: “I
think the record clearly establishes by a preponderance of the evidence based on
the credible and reliable and the specific testimony of Mr. Garcia that the deal was
supposed to involve five kilos or more of cocaine.”
C. Booker Error
For the first time on appeal, DeSoto argues that his sentences violate
Apprendi/Blakely because the district court applied several sentencing
enhancements based on facts neither admitted by him nor found by a jury beyond a
reasonable doubt. Because Booker extended Blakely to the Sentencing
Guidelines, we review DeSoto’s claims under Booker. We conclude that there is
no Sixth Amendment violation as to any of DeSoto’s sentencing enhancements.
In Blakely, the Supreme Court held that the imposition of a sentencing
enhancement under the state of Washington’s mandatory guidelines system based
upon facts neither admitted by the defendant nor found by the jury violated the
defendant’s Sixth Amendment right to a jury trial. 124 S. Ct. at 2534-38. In
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Booker, the Supreme Court extended this holding to the Sentencing Guidelines.
Booker, 125 S. Ct. at 746. Determining that it was the binding nature of the
Guidelines that offended the Sixth Amendment, the Supreme Court in Booker
excised the provisions of the Sentencing Reform Act making the Guidelines
mandatory and providing for de novo review of sentences on appeal. Id. at 756-
57. Thus, the Supreme Court effectively made the Guidelines advisory.
Booker issues raised for the first time on appeal are reviewed for plain error.
United States v. Rodriguez, – F.3d – , 2005 WL 272952, at *6 (11th Cir. Feb. 4,
2005).4
DeSoto does not meet the first prong of the plain-error test because during
the plea colloquy he admitted the facts that supported the district court’s following
sentencing enhancements. See Booker, 125 S. Ct. at 756.
As to the § 3A1.3 enhancement for physically restraining the victim, the
facts at the plea colloquy established that during the February 5, 2000 robbery,
DeSoto and his co-conspirators beat the restaurant owner and threatened him
while holding a gun to his head.
4
To establish plain error, the defendant must show “‘(1) error, (2) that is plain, and (3) that
affects substantial rights.” Rodriguez, 2005 WL 272952, at *6 (quoting United States v. Cotton, 535
U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). “‘If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Cotton, 535 U.S.
at 631, 122 S. Ct. at 1785).
12
As to the § 3B1.1 enhancement, the facts at the plea colloquy established
that DeSoto: (1) recruited his co-conspirators to rob various persons during four
different robberies; (2) provided some of the tools necessary, such as pepper spray
and a police badge; and (3) studied the victims.
As to the § 3B1.3 abuse-of-position-of-trust enhancement, the facts at the
plea colloquy established that in the February 5, 2000 robbery, DeSoto and his co-
conspirators posed as police officers, conducted a traffic stop of the restaurant
owner, took him to a warehouse, and beat him in an effort to learn where the drugs
could be found.
As to drug quantity, DeSoto pled guilty to the indictment, which set forth a
specific drug quantity of 5 or more kilograms of cocaine, and thus DeSoto
admitted to this drug quantity as well. Our earlier remand for a drug-quantity
finding in DeSoto I was because the district court technically failed to make the
requisite fact finding, not because of insufficient evidence of the 5 kilograms.
Thus, given DeSoto’s guilty plea admitting to a drug quantity of 5 or more
kilograms of cocaine and the fact that he was sentenced only for 5 kilograms of
cocaine, there is no Sixth Amendment violation in his sentence.
Alternatively, if the initial remand implicitly found DeSoto’s guilty-plea
admissions insufficient to establish drug quantity, a Sixth Amendment violation
13
under Booker exists as to the judicial fact finding of drug quantity. In such a
situation, the Sixth Amendment violation under Booker would be because the
district court applied the drug quantity enhancement under a mandatory Guidelines
system. See Rodriguez, 2005 WL 272952, at 9; see also United States v. Shelton,
2005 WL 435120, at *5 (11th Cir. Feb. 25, 2005). If a Sixth Amendment violation
exists, DeSoto has established the first two prongs of plain-error review. Shelton,
2005 WL 435120, at *5 (stating that “it is enough that the error be plain at the time
of appellate consideration” (internal quotation marks and citation omitted)).
However, as to the third prong, DeSoto has not established that the Booker
error affected his substantial rights. The third prong of the plain-error test “almost
always requires that the error must have affected the outcome of the district court
proceedings.” Rodriguez, 2005 WL 272952, at *7 (quotation marks and citations
omitted). “The standard for showing that is the familiar reasonable probability of
a different result formulation, which means a probability sufficient to undermine
confidence in the outcome.” Id. (quotation marks and citations omitted).
In this particular case, the sentencing record provides no basis for a
conclusion that DeSoto has shown a reasonable probability of a more lenient
sentence under an advisory Guidelines regime. Given the seriousness of these
violent crimes, his convictions for eight different crimes, including three separate
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robberies, the physical restraint of the victims, and DeSoto’s abuse of his position
of trust as a police officer, we conclude that DeSoto has not satisfied the third
prong.
D. Restitution Order
DeSoto argues that the restitution order is unconstitutional under Blakely
(now Booker) because it is based on a judicial finding of loss neither admitted by
him nor found by a jury. Because DeSoto failed to object on this basis in the
district court, we review this claim also for plain error. See Rodriguez, 2005 WL
272952, at *6.
Because neither the Supreme Court nor this Court has addressed whether
Booker applies to restitution, any error cannot be plain. See United States v.
Gerrow, 232 F.3d 831, 835 (11th Cir. 2000) (holding that “where neither the
Supreme Court nor this Court has ever resolved an issue, and other circuits are
split on it, there can be no plain error in regard to that issue.” (internal quotation
marks and citation omitted)). Moreover, at least one circuit has held that Blakely
does not apply to restitution. United States v. Swanson, 394 F.3d 520, 526 (7th
Cir. 2005) (“The decisions in Blakely, Booker, and Fanfan, . . . do not affect the
manner in which findings of restitution or forfeiture amounts must be made.”).
Accordingly, no plain error has been shown as to the restitution.
15
Upon careful review of the record and the parties’ briefs, we find no
reversible error and affirm DeSoto’s sentences.
AFFIRMED.
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