United States v. Andy Tovar ( 2023 )

USCA4 Appeal: 22-4584 Doc: 28 Filed: 12/19/2023 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDY TOVAR, a/k/a Fearless,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cr-00018-AJT-1)
Submitted: November 30, 2023 Decided: December 19, 2023
Before GREGORY and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
ON BRIEF: Joseph D. King, KING CAMPBELL PORETZ & THOMAS, PLLC,
Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Amanda
Lowe, Assistant United States Attorney, Nicholas J. Patterson, Jacqueline R. Bechara,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andy Tovar entered a plea of nolo contendere to conspiracy to participate in a
racketeering enterprise, in violation of 18 U.S.C. § 1962(d); and conspiracy to commit
murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5); and pleaded
guilty to a second count of conspiracy to commit murder in aid of racketeering activity, in
violation of § 1959(a)(5); conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846; attempted murder in aid of racketeering activity and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 1959(a)(5); assault with a dangerous weapon in aid of
racketeering activity and aiding and abetting, in violation of 18 U.S.C. §§ 2, 1959(a)(3);
and using and discharging a firearm during a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii). The district court sentenced Tovar to life in
prison, followed by a consecutive term of 120 months’ imprisonment for the § 924(c)
count. Tovar appeals his sentence, arguing that the district court erred in denying him a
two-level reduction in his offense level for acceptance of responsibility because the court
erroneously believed that it lacked discretion to award the reduction on some counts and
not others. For the following reasons, we affirm his sentence, but we remand for correction
of a clerical error in the judgment.
Under the Sentencing Guidelines, a district court may reduce a defendant’s offense
level by two levels only “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines Manual § 3E1.1 (2021).
However, “[p]leading guilty is not enough, by itself,” to support an offense level reduction
for acceptance of responsibility. United States v. Carver, 916 F.3d 398, 404 (4th Cir.
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2019). As is relevant here, the sentencing court may consider whether the defendant
“truthfully admitt[ed] the conduct comprising the offense(s) of conviction,” which includes
“all relevant conduct.” USSG §§ 1B1.1 cmt. n.1(I); 3E1.1 cmt. n.1(A). “Relevant
conduct” includes “all acts committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant . . . that occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” USSG § 1B1.3(a)(1). Thus, “[a]
defendant who falsely denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with acceptance of responsibility.”
USSG § 3E1.1 cmt. n.1(A). Further, except in “extraordinary cases,” conduct resulting in
an enhancement for obstruction of justice is also inconsistent with acceptance of
responsibility. USSG § 3E1.1 cmt. n.4.
Although a nolo contendere plea does not disqualify a defendant from receiving a
reduction for acceptance of responsibility, a sentencing court may still consider the nature
of the defendant’s plea when deciding whether to grant the reduction. See United States v.
Miller, 782 F.3d 793, 802-03 (7th Cir. 2015) (collecting cases). Ultimately, “[t]he
defendant bears the burden of showing he has clearly recognized and affirmatively
accepted personal responsibility for his criminal conduct.” Carver, 916 F.3d at 404(internal quotation marks omitted). “We must give great deference to the district court’s
decision because the sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility.” United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007)
(cleaned up).
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Before considering the merits of Tovar’s claim, we must first determine which
standard of review applies. A district court’s denial of a reduction in offense level for
acceptance of responsibility is reviewed for clear error. United States v. Jeffery, 631 F.3d
669, 678 (4th Cir. 2011). However, a court’s determination that it “had no legal authority
to grant” a reduction for acceptance of responsibility is a legal issue that we review
de novo. United States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007) (citation omitted). *
We conclude that the district court did not err as the record reflects that the district
court denied the acceptance of responsibility reduction based on permissible factors and
that it properly viewed its decision as discretionary. Here, the court denied the reduction
based on the nature of Tovar’s plea, his denial of relevant conduct, and his actions that
resulted in a sentencing enhancement for obstruction of justice. Further, the court
illustrated that it understood its legal authority to grant the reduction and “simply
concluded, after considering all of the facts, that [Tovar] was not entitled to an
acceptance-of-responsibility reduction.” United States v. Knight, 606 F.3d 171, 177 (4th
Cir. 2010).
Accordingly, we affirm Tovar’s sentence. We also remand for the limited purpose
of correcting a clerical error in the statement of reasons, which incorrectly indicates that
Tovar received a below-Guidelines-range variant sentence due to acceptance of
responsibility. See Fed. R. Crim. P. 36 (governing clerical errors). We dispense with oral
*
The Government argues that plain error review applies. We conclude that Tovar’s
arguments in the district court preserved his claim of procedural error on appeal. See
United States v. Hope, 28 F.4th 487, 493-95 & n.4 (4th Cir. 2022).
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argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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