United States v. Pedro Heredia-Prieto ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0373n.06
Case No. 14-2322
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 24, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
PEDRO HEREDIA-PRIETO, ) MICHIGAN
)
Defendant-Appellant. )
BEFORE: WHITE, DONALD, and LARSEN, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. This delayed appeal raises one issue—
whether the district court erred when it denied Appellant Pedro Heredia-Prieto credit for
acceptance of responsibility at sentencing. The government contends that we must affirm because
Heredia-Prieto waived this argument by withdrawing his challenge to the recommendation in the
presentence report (“PSR”) that he not receive the credit. The district court did not err, and we
AFFIRM.
I.
In July 2013, Heredia-Prieto was indicted in the Western District of Michigan for several
federal crimes, including conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and
1349. Heredia-Prieto was subsequently arrested in Texas and was released on bond with
conditions; he had to surrender his passport, was prohibited from obtaining international-travel
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documents, and could travel only to a few counties in Texas and to Grand Rapids, Michigan, for
his relevant court appearances. On May 16, 2014, Heredia-Prieto signed a plea agreement as to
the conspiracy count, but he failed to appear at his change-of-plea hearing on May 27, 2014. On
May 29, 2014, Heredia-Prieto was arrested in Florida upon reentry from Cuba (in violation of his
bond conditions), and he was transported by the U.S. Marshals Service to Michigan to appear
before the district court.
At his change-of-plea hearing before the magistrate judge, Heredia-Prieto summarized his
role in a scheme to manufacture fake credit cards with scheme-participants’ names but other
peoples’ data; those cards were then used to purchase store gift cards on interstate shopping trips
at Walgreens. Heredia-Prieto said he had delivered fraudulent credit cards with a co-conspirator’s
name on them and that he was involved in the scheme for two months in 2012. He also stated that
he communicated with a co-defendant to pass information on when that co-defendant would travel
between Texas and Michigan to use the cards. The magistrate judge accepted Heredia-Prieto’s
plea. Neither party objected to the magistrate judge’s report recommending that the district court
accept the plea, and the district court adopted the report.
A PSR was prepared for sentencing, which summarized interviews conducted with
Heredia-Prieto’s co-defendants and the mother of a co-defendant. All provided consistent
accounts that Heredia-Prieto was the scheme leader. The PSR recommended enhancements at
sentencing for traveling to evade detection, unlawful production of means of identification, a
leadership role, and obstruction of justice. The PSR also recommended against granting a two-
level reduction for acceptance of responsibility because Heredia-Prieto “drastically underreported
his participation in th[e] offense.” As the PSR explained, Heredia-Prieto “denied he had incurred
any financial benefits as a result of his participation in this case; he denied having any knowledge
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of the criminal intent of this enterprise while he was participating; and stated he simply rode along
with another individual to pick up the fraudulent cards, denying any other participation in the
offense.”
Heredia-Prieto initially objected to the recommendation in the PSR that he not receive
credit for acceptance of responsibility, in addition to objecting to the proposed enhancements. At
the sentencing hearing on October 1, 2014, however, defense counsel expressly withdrew all
previous objections to the PSR. The district court agreed with the PSR’s calculation of an offense
level of 25 and a criminal history category of 1, resulting in an advisory guideline range of 57 to
71 months. The district court sentenced Heredia-Prieto to sixty months’ imprisonment followed
by three years of supervised release and ordered restitution in the amount of $77,425.90.
Heredia-Prieto appealed his sentence on October 13, 2014. This Court dismissed his appeal
for want of prosecution after Heredia-Prieto failed to either pay the appellate filing fee or move to
proceed in forma pauperis. He subsequently filed a motion under 28 U.S.C. § 2255 claiming
ineffective assistance of counsel, and the district court granted Heredia-Prieto’s motion concluding
that “his counsel was ineffective for failing to act after filing the notice of appeal,” and
“recommended that the appeal be reinstated upon a proper motion.” We then issued an order
reinstating Heredia-Prieto’s appeal.
Heredia-Prieto challenges on appeal the district court’s refusal to grant a two-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
II.
U.S.S.G. § 3E1.1(a) allows for a district court to decrease a defendant’s offense level at
sentencing by two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for
his offense.” An additional one-level decrease is available by motion of the government. U.S.S.G.
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§ 3E1.1(b); United States v. Collins, 683 F.3d 697, 704 (6th Cir. 2012). Generally, we review a
district court’s denial of an acceptance-of-responsibility adjustment under U.S.S.G. § 3E1.1 for
clear error. United States v. Brown, 367 F.3d 549, 556 (6th Cir. 2004) (citing United States v.
Webb, 335 F.3d 534, 538 (6th Cir. 2003)). When a defendant does not ask for the credit and does
not object to a PSR recommendation against his receiving it, however, our review is for plain error.
United States v. Manjate, 327 F. App’x 562, 571 (6th Cir. 2009). Heredia-Prieto argues that
because he admitted to the conduct that comprised the elements of his offense, the district court
clearly erred when it denied an adjustment for acceptance of responsibility; moreover, he argues
that the district court’s stated reasons for denying the adjustment were inadequate. The
government contends that because Heredia-Prieto withdrew his objection to his PSR that
recommended he not receive credit for acceptance of responsibility, he waived his present
argument. Alternatively, the government argues that there was no error.
A.
We first address waiver. “When one knowingly waives his charged error, that challenge is
forever foreclosed, and cannot be resurrected on appeal.” United States v. Jackson, 23 F. App’x
254, 255 (6th Cir. 2001) (citing United States v. Saucedo, 226 F.3d 782, 787 (6th Cir. 2000)). The
record reflects that in an addendum to the PSR, Heredia-Prieto objected to the calculations in the
PSR, including the recommendation to not decrease his offense level by two for acceptance of
responsibility. At sentencing, defense counsel then expressly withdrew all objections to the PSR.
Heredia-Prieto posits that despite this initial withdrawal of the objection, his counsel revived the
objection to the denial of the acceptance-of-responsibility reduction after “the Court engaged the
attorney” in a discussion about whether Heredia-Prieto had accepted responsibility.
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Heredia-Prieto’s attorney first indicated that she had no objections to the factual recitation
in the PSR. The district court then questioned Heredia-Prieto, who confirmed that he understood
the PSR and had no questions about it. The district court explained the sentencing calculation and
began to discuss any objections with defense counsel:
The Court: Now, at one point there was an objection or some objections to the
scoring of the report. My understanding is that those objections are being
withdrawn by defense counsel. Is that correct, [counsel]?
[Defense counsel]: It is correct, Your Honor. I didn’t include them in my
sentencing memorandum or provide a report to the Court. I chose to focus on other
arguments.
The Court: Thank you. . . . Now, I’m a little bit unsure . . . but the presentence
writer . . . did not score acceptance of responsibility in this case, which I believe is
proper, but does the government have a motion for a one-level reduction for a
timely plea?
[Government counsel]: No, Your Honor. I can’t make that motion if the Court
didn’t grant the first two levels.
...
And I did inform the defense that while I think that the PSR writer is correct and
the legal recommendation that he should not be given acceptance, I think [defense
counsel] is right on that. If the Court still decided to go ahead and give the two
levels [for acceptance of responsibility], then per the plea agreement, I will move
for the third level. But again I think that [the PSR writer’s] recommendation is
correct as a matter of law.
The Court: Based on what I read throughout the file, I’m not inclined to grant
acceptance in this case. I do not think it is warranted based on what appears to be
significant minimization by the defendant of his role in this offense.
The district court then asked defense counsel if she agreed to the PSR’s calculated range.
In response, she stated “Respectfully, Your Honor, I would like to explain maybe his minimization
of the role.” Counsel described that Heredia-Prieto was not a “leader,” to which the district court
responded that “it really isn’t a question of leadership, it’s a question of whether he accepts
responsibility for the illegality of his actions, and frankly, I don’t think he has.” Defense counsel
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responded, “I understand and I respect the Court’s opinion. I have spent a lot of time with him
and I think that he does accept the responsibility.” The district court concluded by asking whether
defense counsel agreed with the calculations as laid out “based on the rulings that [the court] ha[d]
made.” Defense counsel responded affirmatively.
We agree with Heredia-Prieto that deference to a district court’s ruling is not tantamount
to waiver. While defense counsel did initially, expressly, withdraw her objections, the district
court engaged counsel in a discussion about whether Heredia-Prieto “accept[ed] responsibility for
the illegality of his actions.” Counsel argued that he had. Waiver applies when defense counsel
“agree[s] in open court with a judge’s course of conduct.” United States v. Ward, 506 F.3d 468,
477 (6th Cir. 2007) (quoting United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir.
2002)). At the conclusion of the discussion about acceptance of responsibility, counsel for
Heredia-Prieto agreed only that based on the district court’s rulings, the calculations were correct.
The record does not support waiver where defense counsel continued to engage in argument
challenging the applicability of an adjustment. The cases cited in support by the government
involve express concession of the applicability of an enhancement. See, e.g., United States v. King,
430 F. App’x 514, 517 (6th Cir. 2011). Under these specific facts, Heredia-Prieto did not waive
the issue of whether the district court committed error by rejecting the acceptance of responsibility
credit.
B.
Because we find that Heredia-Prieto did not waive the issue, we turn to the merits of
Heredia-Prieto’s argument. Heredia-Prieto’s position is that the district court “erred in denying an
acceptance of responsibility adjustment, as he clearly admitted the conduct that comprised his
offense,” and that the district court’s stated reasons for denying the adjustment were inadequate.
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The government contends that Heredia-Prieto’s lack of candor in minimizing his role,
accompanied by his obstruction-of-justice enhancement for attempting to keep a co-conspirator
from cooperating by threatening the co-conspirator’s mother, and his violations of his bond
conditions, compelled the district court to decline to apply the acceptance credit.
“[A]s a general matter[,] pre-trial guilty pleas often establish the requisite acceptance” for
a two-level credit, United States v. Keys, 359 F. App’x 585, 587 (6th Cir. 2009) (citing U.S.S.G.
§ 3E1.1 & cmt. n.3), and a defendant is not required to “admit[] relevant conduct beyond the
offense of conviction in order to obtain a reduction,” U.S.S.G. § 3E1.1 & cmt. n.1(A). However,
entry into a plea agreement does not, by itself, guarantee the credit. United States v. Mahaffey,
53 F.3d 128, 134 (6th Cir. 1995). And “the defendant has the burden of demonstrating that a
downward adjustment in his offense level is warranted under § 3E1.1.” Id.
The district court here explained its reasons for declining the credit. The district court
agreed with the PSR that Heredia-Prieto’s description of his crimes “significant[ly] minimize[ed]”
his role in the conspiracy. As the district court explained:
Throughout his allocution at the plea, and his discussion with the probation officer,
he continually made it sound as though he was simply a person who just delivered
these credit cards, while other persons who were involved in this scheme clearly
indicated that he had a much greater participation. He was, if I recall correctly from
what I read, he was involved in creating the credit cards and so forth.
Heredia-Prieto does not contest the district court’s findings. Rather, he argues that he is entitled
to the acceptance-of-responsibility reduction because he “admitted the conduct that comprised his
offense.” But as the Guidelines explain, in applying the acceptance-of-responsibility reduction,
courts may take into account not only whether a defendant “truthfully admit[ed] the conduct
comprising the offense[] of conviction,” but also whether a defendant “truthfully admit[ed] . . .
any additional relevant conduct for which the defendant is accountable.” U.S.S.G. § 3E1.1, cmt.
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n.1(A). Indeed, “relevant precedent . . . consistently affirms denials of acceptance-of-
responsibility reductions when the defendant falsely denies the [relevant] conduct.” Keys, 359 F.
App'x 585, 588 (6th Cir. 2009) (citing United States v. Lay, 583 F.3d 436, 448-49 (6th Cir. 2009);
United States v. Maye, 582 F.3d 622, 625-26 (6th Cir. 2009)).
Further, although the district court did not rely on Heredia-Prieto’s obstruction of justice
in refusing to grant a two-level reduction for acceptance of responsibility, “we may affirm on any
grounds supported by the record, even though different from the grounds relied on by the district
court.” United States v. Davist, 481 F.3d 425, 427 (6th Cir. 2007) (quoting United States v. Allen,
106 F.3d 695, 700 n.4 (6th Cir. 1997)). Conduct resulting in an obstruction-of-justice enhancement
typically resolves the question of whether a defendant is entitled to a reduction for acceptance of
responsibility. United States v. Jeross, 521 F.3d 562, 581 (6th Cir. 2008). Further, it requires
“extraordinary circumstances” for both an obstruction-of-justice enhancement and an acceptance-
of-responsibility credit to apply. Id. (quoting U.S.S.G. § 3E1.1 cmt. n.4). A district court may
also deny the credit for violations of bond conditions. See United States v. Watkins, 86 F. App’x
934, 937-38 (6th Cir. 2004).
We both defer to the sentencing judge’s determination that Heredia-Prieto was not entitled
to the credit and note that Heredia-Prieto fails to show how any exceptional circumstances applied
to entitle him to the credit concurrent with an obstruction-of-justice enhancement. The district
court did not commit an error, clear or plain.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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