United States v. Joseph Pacheco, III , 466 F. App'x 517 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0300n.06
FILED
No. 10-1067
Mar 16, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) EASTERN DISTRICT OF MICHIGAN
)
JOSEPH COSTA PACHECO, III, )
)
Defendant-Appellant. )
Before: CLAY, GIBBONS, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Joseph Costa Pacheco, III was convicted of
five counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Pacheco appeals his
conviction, arguing that the district court erred in denying his request for additional investigative
funds and his request for a thirty-day continuance to allow his investigator to interview
additional witnesses. Pacheco further argues that the government presented insufficient
evidence that the deposits of the banks he robbed were FDIC-insured.
Pacheco also appeals his sentence. He argues that the district court erred when it
declined to grant a two-level downward adjustment of his offense level for acceptance of
responsibility. He further claims that his sentence was procedurally unreasonable because the
district court failed to consider his argument that his criminal history was overrepresented.
For the reasons that follow, we affirm Pacheco’s conviction and sentence.
I.
Between October 15, 2007 and October 29, 2007, Pacheco robbed five banks in eastern
Michigan. His modus operandi was similar for each robbery: Near closing time, Pacheco
entered the front door of the bank branch, waited in line, and when called to the teller window,
placed a brown paper bag on the counter in front of the teller. The bag had writing on it that
informed the teller “this is a robbery.” The writing on the bag also directed the teller to put all of
his or her money in the bag. Each teller complied with the demand, and Pacheco then left the
bank, through the front door, with the money. He did not brandish a weapon during any of the
robberies.
Pacheco was arrested on October 30, 2007 and admitted to the police that he had robbed
each of the five banks. A grand jury returned an indictment charging Pacheco with five counts
of bank robbery in violation of 18 U.S.C. § 2113(a).
Pacheco represented himself pro se in district court proceedings, with the assistance of
stand-by counsel. On February 9, 2009, Pacheco moved to obtain an investigator and for a
ninety-day continuance of his trial, which was then scheduled to begin on February 24, 2009.
The district court continued the trial, authorized the appointment of an investigator, and
authorized the payment $1,000 for investigative services. On July 16, 2009, the court authorized
an additional $600 in funds for investigative services.
Pacheco’s jury trial began on September 14, 2009. That morning, Pacheco requested a
thirty-day continuance of the trial to allow his private investigator to attempt to contact twenty
additional prospective witnesses. He also requested an additional $200 for investigative
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services. Pacheco argued that the government had delayed in providing his investigator with the
home phone numbers of certain witnesses, causing her to unnecessarily expend 1 1/2 hours
obtaining this information. Pacheco also argued that a continuance was necessary because he
had not yet been able to review the videos of his police interrogation and the surveillance videos
of the robberies.
The government objected to the continuance, arguing that the investigator had been
provided with the names and home phone numbers of witnesses at least one month prior to the
first day of trial, affording her ample time to conduct her investigation. The government further
argued that Pacheco could have subpoenaed witnesses with the assistance of the United States
Marshall Service but had not done so.
The district court ruled that there was no impediment to proceeding with voir dire and
told Pacheco that he would be given an opportunity to review the surveillance and interrogation
videos after voir dire was completed. The court conducted voir dire, empaneled a jury, and sent
the jury home for the day. Pacheco was then given an opportunity to review the surveillance and
interrogation videos. Trial proceeded the next morning as scheduled.
At trial, the government called the five bank tellers from whom Pacheco had demanded
money and played the surveillance video from each robbery. Each teller identified Pacheco as
the robber in still photos or videos of the robberies and also identified Pacheco when testifying
during trial. All of the tellers also testified that they had been trained by the bank to comply with
notes that demanded money. However, four of the five tellers testified that they gave Pacheco
money because he demanded it, not because bank policy directed them to do so.
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The government also elicited testimony from Joseph Herrera, a bank examiner with the
Federal Deposit Insurance Corporation (“FDIC”). Herrera testified that the FDIC insured the
deposits of member banks and deposits made at each of their domestic branches. He testified
that he had reviewed the FDIC’s insurance records and had confirmed that the deposits of each
of the five banks that had been robbed were presently insured by the FDIC, and had been insured
in October 2007, when the banks were robbed.
Pacheco testified in his own defense. He acknowledged that he had robbed each of the
five branches but claimed that he did not intend to intimidate anyone during the course of the
robberies. He testified that he never threatened the tellers involved in the robberies with harm if
they failed to comply with his demands for money.
Pacheco also sought to elicit the testimony of Harsha Shah, a witness to one of the bank
robberies. Shah was unavailable to testify, and Pacheco agreed that the following stipulation
would be read to the jury in lieu of her testimony:
One, that the dates listed in the indictment are true and correct dates for each
incident; and two, an employee of the Charter One bank in Farmington Harsha
Shah was present on October 23, 2007. She told investigators that after the
suspect left the bank, she went out the door to see if a vehicle was involved, and
saw the suspect walk east on the north sidewalk of Slocomb to the east lot of the
Orchard condominiums and north toward Orchard where the site [sic] line was
lost.
Pacheco specifically advised the district court that this stipulation would allay his concern about
the inability of Shah to testify in his defense.
The jury returned a verdict of guilty as to each count of the indictment. Prior to
sentencing, the district court reviewed sentencing memoranda submitted by Pacheco and the
government, a Pre-Sentence Investigation Report, multiple victim impact statements, and two
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letters submitted in support of Pacheco. In his memorandum and again at the sentencing
hearing, Pacheco argued that he was entitled to a two-level downward adjustment on the basis of
his acceptance of responsibility for his criminal conduct. He also argued that a criminal history
category of VI overrepresented his past criminal conduct.
The district court concluded that the combined adjusted offense level for the five robbery
convictions was 26 and Pacheco’s criminal history category was VI. Accordingly, the court
determined the advisory Guidelines range was 120 to 150 months of imprisonment.
The court considered but rejected Pacheco’s argument that he was entitled to a two-level
adjustment based on his acceptance of responsibility. During the sentencing hearing, the court
also acknowledged that Pacheco sought a departure based upon the overrepresentation of his
criminal history, but did not grant a departure. After assessing the relevant factors under 18
U.S.C. § 3553, the court imposed a sentence of 120 months of imprisonment.
II.
Pacheco raises three arguments in support of his claim that his conviction must be
reversed. He first argues that the district court erred in denying his request to authorize additional
funds for investigative services, a request he made on the morning his trial began. Second,
Pacheco contends that the district court erred in declining to grant his request for a thirty-day
continuance of his trial to allow his investigator to interview twenty additional witnesses to the
bank robberies. Finally, Pacheco argues that the government presented insufficient evidence that
the deposits of the banks he robbed were FDIC-insured. We address each argument in turn.
A.
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We review the district court’s denial of an indigent defendant’s request for authorization
for investigative services under 18 U.S.C. § 3006A for an abuse of discretion. United States v.
Gilmore, 282 F.3d 398, 406 (6th Cir. 2002).
Pursuant to 18 U.S.C. § 3006A(e)(1),1 a district court has the authority to authorize
payment for investigative services for an indigent defendant. An indigent defendant may obtain
authorization for investigative services “upon a demonstration that (1) such services are necessary
to mount a plausible defense, and (2) without such authorization, the defendant’s case would be
prejudiced.” Gilmore, 282 F.3d at 406. However, “[a] district court need not grant an indigent’s
motion under § 3006A on the off chance that the requested services might turn up something.”
Id.
The district court did not abuse its discretion in denying Pacheco’s motion for additional
investigative funds because Pacheco was able to mount a plausible defense without additional
investigative services. Pacheco’s defense theory was that he could not be convicted of bank
robbery under 18 U.S.C. § 2113(a), which prohibits bank robbery through use of “force and
violence, or by intimidation,” because he did not use intimidation to facilitate the robberies. See
18 U.S.C. § 2113(a). Pacheco testified at trial that his actions were not intended to intimidate the
tellers, that the robberies were nonviolent, that he never brandished a weapon, and that he never
threatened the tellers involved in the robberies with harm if they failed to comply with his
1
This section provides: “Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for adequate representation may request them in
an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the
services are necessary and that the person is financially unable to obtain them, the court, or the
United States magistrate judge if the services are required in connection with a matter over which
he has jurisdiction, shall authorize counsel to obtain the services.” 18 U.S.C. § 3006A(e)(1).
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demands for money. The jurors were shown surveillance video of each robbery and thus were
presented with an objective representation of Pacheco’s actions during the robberies. Finally,
Pacheco requested that the jury be informed, through a stipulation, that Harsha Shah, a bank
employee, followed him as he left one of the banks to watch where he was going. Pacheco sought
the introduction of this evidence to show that his actions could not have been intimidating if, after
he completed one of the robberies, an employee felt safe following him out of the building.
Pacheco was able to—and did—mount a vigorous defense absent the authorization of additional
investigative services.
There is also no evidence that Pacheco’s defense was prejudiced by the district court’s
failure to authorize an additional $200 in investigative funds. In March of 2009, six months
before trial, the court authorized $1,000 for investigative services. In July, the court authorized
$600 of additional funds. Yet after a six-month investigation and the expenditure of $1,600,
Pacheco’s investigator had not identified a single witness to subpoena in support of Pacheco’s
defense that his actions did not constitute intimidation. There is simply no indication that any of
the additional twenty witnesses his investigator wished to interview would have buttressed his
defense, particularly because the jury heard the most probative testimony, the testimony of the
tellers themselves. Pacheco’s speculation that one of the additional witnesses might have seen his
actions as non-threatening is insufficient to demonstrate that he was prejudiced by the court’s
refusal to authorize additional investigative services.
B.
Pacheco next contends that the trial court erred in denying his request for a thirty-day
continuance of his trial. We review the district court’s denial of a motion for continuance for an
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abuse of discretion. United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010). “Denial
amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay. To demonstrate reversible error, the
defendant must show that the denial resulted in actual prejudice to his defense.” Id. (citation and
internal quotation marks omitted). “The defendant demonstrates actual prejudice by showing that
a continuance would have made relevant witnesses available or added something to the defense.”
Id. (citation and internal quotation marks omitted).
Pacheco argues that the trial court’s failure to grant his request for a thirty-day
continuance pursuant to his oral motion, made on the morning his trial was scheduled to begin,
impaired his ability to present a defense. Pacheco sought the continuance to allow his
investigator to interview additional witnesses to the robberies. He speculated that these additional
witnesses would support his defense that he did not use intimidation during the robberies by
testifying that they did not notice that robberies were in progress or that the tellers reacted calmly
during the robberies.
Pacheco cannot demonstrate that he was actually prejudiced by the district court’s failure
to grant him a thirty-day continuance. Pacheco could not articulate what evidence the additional
potential witnesses would offer—he merely speculated that some would corroborate his theory
that he did not act in an intimidating manner by testifying that they had not noticed that a robbery
was taking place and that the tellers reacted calmly during the robberies. Even if certain
witnesses testified that they had not noticed the robberies occurring, or that the tellers reacted
calmly, this would hardly have shown that Pacheco’s actions would not have caused “an ordinary
person in the teller’s position [to] reasonably infer a threat of bodily harm from the defendant’s
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acts.” See Gilmore, 282 F.3d at 402. “A demand note itself, being a tool of the trade of bank
robbers, is a form of intimidation.” United States v. Smith, 1 F.3d 1243, 1993 WL 303359, at *1
(6th Cir. 1993) (table) (per curiam). Because such testimony would not have aided Pacheco’s
defense, he was not prejudiced by the district court’s denial of his requested continuance.
Accordingly, we conclude that the district court did not abuse its discretion in denying Pacheco’s
motion for a thirty-day continuance of his trial.
C.
Pacheco next contends that the evidence presented at trial was insufficient to support his
convictions because the government failed to prove that the deposits of the banks he robbed were
FDIC-insured. In reviewing the sufficiency of the evidence in support of a criminal conviction,
we must determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Davis v. Lafler, 658 F.3d 525, 543 (6th Cir. 2011) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original) (internal quotation marks
omitted). Where, as here, the defendant did not move for a judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29, this court reviews the sufficiency of the evidence only for
plain error resulting in a “manifest miscarriage of justice.” United States v. Frazier, 595 F.3d
304, 306 (6th Cir. 2010). “A miscarriage of justice exists only if the record is devoid of evidence
pointing to guilt.” United States v. Roberge, 565 F.3d 1005, 1008 (6th Cir. 2009) (internal
quotation marks omitted).
Pacheco argues that the government introduced insufficient evidence to prove that the
deposits of the banks he robbed were FDIC-insured at the time of the robberies. Pacheco claims
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that the FDIC insurance certificate from each bank was improperly introduced under Federal Rule
of Evidence 803(6), because Joseph Herrera, a bank examiner with the FDIC, was not a “qualified
witness” through which to introduce the FDIC certificates. Pacheco’s argument is meritless.
In a bank robbery prosecution under 18 U.S.C. § 2113(a), the government must prove that
the victim bank’s deposits were insured by the FDIC at the time of the robbery in order to
establish the jurisdictional element of the offense. See United States v. Sandles, 469 F.3d 508,
513 (6th Cir. 2006); United States v. Wood, 780 F.2d 555, 556 (6th Cir. 1986) (per curiam);
United States v. Rowan, 518 F.2d 685, 692 (6th Cir. 1975).2 Herrera, a bank examiner and ten-
year veteran of the FDIC, testified that he had reviewed the FDIC’s insurance records and
confirmed that the deposits of each of the five banks that had been robbed were insured by the
FDIC at the time of trial. Herrera also testified that the deposits of each bank had been insured in
October 2007. Further, the government introduced into evidence the insurance certificates of
each of the banks that was robbed.
Business records, such as FDIC insurance certificates, must be “presented through ‘the
testimony of a custodian or other qualified witness.’” United States v. Jenkins, 345 F.3d 928, 935
(6th Cir. 2003) (quoting Fed. R. Evid. 803(6)). “The phrase ‘other qualified witness’ is given a
very broad interpretation.” United States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006) (internal
quotation marks omitted). For an “other qualified witness” to lay the foundation for the
2
Pursuant to 18 U.S.C. § 2113(a), a person may not “by force and violence, or by
intimidation, take[], or attempt[] to take, from the person or presence of another, or obtain[] or
attempt[] to obtain by extortion any property or money or any thing of value belonging to, or in the
care, custody, control, management, or possession of, any bank . . . .” Section 2113(f) defines the
term “bank,” in pertinent part, as “any institution the deposits of which are insured by the Federal
Deposit Insurance Corporation.” 18 U.S.C. § 2113(f).
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introduction of business records, he need not have personal knowledge of their preparation. Id.“All that is required of the witness is that he or she be familiar with the record-keeping
procedures of the organization.” Id. (internal quotation marks omitted.)
The introduction of FDIC certificates through Herrera was proper. It is apparent from the
record that Herrera was familiar with the FDIC’s record-keeping procedures. At the time of trial,
Herrera had been employed by the FDIC for ten years and eight months. As part of his job duties
as a bank examiner, he regularly accessed and examined FDIC business records. Herrera testified
that the FDIC regularly kept records of bank insurance and that those records were made at or
near the time the insurance became effective by a person with knowledge of the insurance
maintained by the banks. Herrera also testified that a notation was made in the FDIC’s electronic
database if a member bank thereafter ceased to be insured by the FDIC. Herrera reviewed the
FDIC records of each of the banks robbed prior to testifying and confirmed that each bank’s
deposits were insured at the time of the robberies in October 2007. Herrera also accessed the
FDIC’s electronic database on the morning before trial and confirmed that each bank’s deposits
were still FDIC-insured. Herrera was clearly a qualified witness through which to introduce
FDIC insurance records. Accordingly, the government introduced sufficient evidence the banks
robbed were FDIC-insured.3
3
Pacheco also claims that even if the FDIC insurance certificates were properly introduced,
the certificates did not prove that the deposits of the banks he robbed were insured at the time of the
robberies, because the certificates pre-dated the October 2007 robberies. We have previously held
that testimony that a bank was insured by the FDIC at the time of trial, coupled with an FDIC
certificate of insurance that pre-dated the robbery, was sufficient to prove a bank’s insured status
at the time of the robbery. See Rowan, 518 F.2d at 693. Herrera’s testimony that the banks were
insured at the time of Pacheco’s trial, coupled with the introduction of FDIC certificates that pre-
dated the robberies, was sufficient under Rowan to prove the banks’ deposits were FDIC-insured
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III.
Having concluded that Pacheco’s conviction must be affirmed, we now turn to Pacheco’s
challenges to his sentence.
A.
Pacheco first argues that the district court erred when it refused to grant him a two-level
downward adjustment of his offense level for acceptance of responsibility. Pacheco’s argument
has two prongs. First, he claims that the district court improperly interpreted U.S.S.G. § 3E1.1 as
prohibiting it from awarding acceptance of responsibility credit to a defendant who proceeded to
trial instead of accepting a plea offer. Second, Pacheco claims that he was entitled to acceptance
of responsibility credit because he never contested his factual guilt, but only challenged whether
his actions constituted bank robbery through the use of intimidation.
Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility[,] . . . the determination of the sentencing judge is entitled to great
deference on review.” U.S.S.G § 3E1.1, cmt. n.5. “The defendant has the burden of
demonstrating by a preponderance of the evidence that a reduction for acceptance of
responsibility is warranted.” United States v. Banks, 252 F.3d 801, 806 (6th Cir. 2001).
“Because it [is] generally a question of fact, the trial court’s determination of whether a defendant
has accepted responsibility normally enjoys the protection of the clearly erroneous standard, and
will not be overturned unless it is without foundation.” Id. (citation and internal quotation marks
at the time of the robberies.
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omitted). “Questions of law, however, such as the appropriate application of a guideline to a
particular set of facts, are subject to de novo review.” Id.Contrary to Pacheco’s assertion, the district court did not improperly interpret Section
3E1.1 of the Sentencing Guidelines as preventing it from awarding Pacheco acceptance of
responsibility credit solely because he proceeded to trial. Section 3E1.1 provides for an offense
level reduction of up to three points for a defendant’s acceptance of responsibility as follows:
(a) If the defendant clearly demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level
determined prior to the operation of subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the government and the court to allocate
their resources efficiently, decrease the offense level by 1 additional level.
Application note 2 explains:
This adjustment is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse. Conviction by trial,
however, does not automatically preclude a defendant from consideration for such
a reduction. In rare situations a defendant may clearly demonstrate an acceptance
of responsibility for his criminal conduct even though he exercises his
constitutional right to trial. This may occur, for example, where a defendant goes
to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make
a constitutional challenge to a statute or a challenge to the applicability of a statute
to his conduct). In each such instance, however, a determination that a defendant
has accepted responsibility will be based primarily upon pre-trial statements and
conduct.
In denying Pacheco’s request for a reduction of his offense level based on acceptance of
responsibility, the district court explained:
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The critical, the gist and perhaps the most important aspect of accepting
responsibility is sparing the victims and the government, the task and ordeal of a
trial process itself . . . [G]iven the choices that you made, [I] cannot find such
acceptance of responsibility to give the reduction.
(R. 89, at 12) (emphasis added.)
By noting that the most important aspect of acceptance of responsibility is demonstrated
by a defendant’s decision to plead guilty, the district court acknowledged that it had the authority
to grant acceptance of responsibility credit even if a defendant chose to proceed to trial instead of
pleading guilty. The court referred to multiple choices Pacheco made, not merely his choice to
proceed to trial, as its basis for declining to adjust Pacheco’s offense level. The record thus
reveals that the district court did not automatically deny Pacheco’s requested reduction based on
his failure to plead guilty.
Moreover, Pacheco was not entitled to a two-level adjustment for acceptance of
responsibility because he contested his factual guilt at trial. Though Pacheco admitted that he
was the perpetrator of the robberies, he claimed that he could not be convicted because he did not
perpetrate the robberies through the use of intimidation. We have squarely rejected the argument
that a bank robber is entitled to an acceptance of responsibility adjustment even though he claims
he cannot be convicted under 18 U.S.C. § 2113(a) because he did not use intimidation to
perpetrate the robbery. See United States v. Morrison, 10 F. App’x 275, 284–85 (6th Cir. 2001),
Smith, 1993 WL 303359, at *1; accord United States v. Mitchell, 113 F.3d 1528, 1534 (10th Cir.
1997) (affirming denial of adjustment for acceptance of responsibility for bank robber who
confessed to robbery but challenged intimidation element at trial), abrogated on other grounds by
United States v. Chambers, 555 U.S. 122 (2009). He also contested that the banks were FDIC-
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insured at the time they were robbed. Because Pacheco challenged his factual guilt, the district
court did not err in declining to apply an acceptance of responsibility adjustment under U.S.S.G. §
3E1.1.
B.
Pacheco also challenges the procedural reasonableness of his sentence, arguing that the
district court failed to consider his argument that his criminal history was overrepresented before
sentencing him to 120 months of imprisonment. We review the reasonableness of a sentence
imposed by the district court under an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007).
A sentence is procedurally unreasonable if the district court improperly calculates the
advisory Guidelines range, treats the Guidelines as mandatory, fails to consider the 18 U.S.C. §
3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain
the chosen sentence—including an explanation for any deviation from the Guidelines range.
United States v. Houston, 529 F.3d 743, 753 (6th Cir. 2008). While a district court must state in
open court the reasons for imposing a particular sentence, United States v. Grams, 566 F.3d 683,
686 (6th Cir. 2009) (per curiam), it need not “give the reasons for rejecting any and all arguments
by the parties for alternative sentences.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir.
2008) (en banc).
Pacheco’s argument fails because the record reveals that the district court considered and
rejected Pacheco’s argument that a criminal history category of VI overrepresented the severity of
his past criminal conduct. During the sentencing hearing, the court noted on three separate
occasions that Pacheco sought a downward departure based on the overrepresentation of his
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criminal history. The court asked Pacheco to explain why he sought a departure based on
overrepresentation of his criminal history, and Pacheco responded that certain past convictions
should not be counted because they were uncounseled or had been assigned too many points.
After the court concluded that the appropriate amount of points had been assigned to each of
Pacheco’s prior convictions, Pacheco stated that he still wished to argue “overrepresentation of
criminal history and 3553(a) factors.” Pacheco then made an argument as to why the § 3553(a)
factors justified a sentence of fewer than ten years imprisonment but made no oral argument
regarding overrepresentation of his criminal history.
The court stated on the record that it had reviewed Pacheco’s sentencing memorandum, in
which he argued that his criminal history was overrepresented, and afforded Pacheco an
opportunity to argue the issue at the sentencing hearing. The court stated its reasons for imposing
a sentence of 120 months—including the need to provide deterrence and to provide Pacheco with
necessary education and treatment in an institutional setting. The court clearly considered the
extent of Pacheco’s criminal history in reaching a proper sentence, as evidenced by the court
stating that Pacheco “ma[de] one mistake after another.” Thus, while the district court did not
expressly state its rejection of Pacheco’s overrepresentation argument, it is apparent, reading the
sentencing transcript as a whole, that the court considered Pacheco’s overrepresentation argument
and concluded that a downward departure on that ground was inappropriate.
IV.
For the reasons stated above, we affirm Pacheco’s conviction and sentence.
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