United States v. Julio Camacho

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2006
No. 04-15421 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20032-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CAMACHO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 23, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Julio Camacho appeals his 120-month sentence for
conspiracy to possess with intent to distribute one kilogram or more of heroin, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846. On appeal, Camacho argues that the
district court clearly erred in denying him safety-valve relief.1 After review, we
affirm.
I. BACKGROUND
A. Offense
A confidential informant (“CI”) for the Drug Enforcement Agency (“DEA”)
began negotiating by telephone with two Colombian individuals to sell them
multiple kilograms of heroin. One of the Colombian individuals, known as Baretto
or El Gordo, agreed to send his brother, Julio, and his brother-in-law, Lee Grant, to
meet with the CI to complete the transaction. Thereafter, Camacho called the CI
several times to arrange for the meeting.
On January 6, 2004, Camacho and Grant traveled from Orlando and met
with the CI and an undercover DEA agent at a Miami restaurant to complete the
transaction. During the meeting, Camacho, speaking in Spanish, handled the
negotiations. When a disagreement arose about the terms of the deal, Camacho
1
Camacho also raises for the first time in this Court a claim of ineffective assistance of
counsel at sentencing. Because the record has not been adequately developed with regard to this
claim, we decline to address it on direct appeal. See Massaro v. United States, 538 U.S. 500,
504-05, 123 S. Ct. 1690, 1694 (2003); United States v. Griffin, 699 F.2d 1102, 1107-09 (11th Cir.
1983).
2
insisted that his brother had told him that he was to pay $30,000 for 5 kilograms.
Camacho explained that, because another individual who owed his brother money
had not paid his debt, his brother had no more money at that time. Camacho also
told them that his brother had a client waiting to purchase 5 kilograms. Camacho
then assured them that “we’re going to pay you next week” and that either he or his
brother would bring the money. When the DEA agent suggested that Camacho
should get only 3 kilograms, Camacho refused explaining “we’re not going to
come back” for more drugs. Grant, who did not speak Spanish, did not participate
in these discussions except when the DEA agent and the CI gave him some
directions in English.
Later that day, Camacho and Grant met again with the CI and the DEA agent
and followed them to an undercover location. There, Grant handed the CI a bag
containing $30,000 in exchange for five packages of sham heroin. Once Camacho
and Grant began to pick up the packages, they were arrested. All of the telephone
conversations and meetings were secretly recorded by the DEA.
B. PSI
The presentence investigation report (“PSI”) recommended a total offense
level of 31 and a criminal history category I, which yielded a guidelines
imprisonment range of 108 to 135 months. The PSI also indicated that the
3
statutory minimum sentence was 120 months and thus this caused the low end of
the guidelines range to increase so that the range was 120 to 135 months’
imprisonment. Camacho objected, arguing that he was entitled to safety-valve
relief so that the sentence could be imposed without regard to the statutory
minimum.
Camacho filed a safety-valve statement outlining his role in the drug deal.
The main thrust of Camacho’s statement was that he had never been involved in a
drug deal before, that he was afraid and agreed only reluctantly to participate, that
his job was merely to accompany Grant because he did not speak Spanish, and that
he had said only what El Gordo, whom he also referred to as Cesar, had told him to
say during the meetings. The government filed an objection to the safety-valve
statement, claiming that Camacho had not fully disclosed all of the information
concerning the drug deal. They also filed a videotape of the negotiations with
Camacho and a transcript.
C. Sentencing
At the sentencing hearing, the district court heard extensive arguments for
Camacho’s safety-valve request, even continuing the hearing to review the
evidence further. Upon reconvening, the district court concluded that Camacho’s
conduct during the negotiations was inconsistent with his claim that he was a first-
4
time drug dealer, as follows:
Having gone through the review of the audiotape and reviewed the
transcript again, I can see why the government finds that the statement
is not truthful . . . . It is inconsistencies both in what is said on the
tape when Mr. Camacho does not think that he is being recorded, and
the inconsistencies with the . . . safety valve statement.
It is also corroborated for me by the body language that I saw
on the tape that just underscored for me either Mr. Camacho is the
world’s best actor that is worthy of an Academy Award, or else . . .
this wasn’t his first time, []he knew what he was involved in, and he
was negotiating on behalf of an entity that he was familiar with.
The particular things that jumped out at me were the changes in
the discussion between the $30,000 and the desiring to take five
kilograms away from the deal. He says in his safety that he was
concerned, he was afraid, he had never done anything like this before.
But both the contents of the transcript as well as seeing the videotape,
shows a man who is very much in charge as between himself and Mr.,
is it Grant, Lee Grant, Shondale Lee Grant? – that the understanding
was that Mr. Grant did not speak Spanish, and in fact neither the
undercover nor the CI had – the CI, had spoken to Mr. Grant in
English to give him directions. So the rest of the conversation was
governed and led by Mr. Camacho. And it does not show any timidity
or reluctance or pause in Mr. Camacho’s negotiations there.
The court then asked Camacho under oath for clarification regarding the
identity of Boretto, El Gordo and Cesar. Camacho explained that all these names
referred to the same person. Camacho also stated that, while he referred to this
person as his brother and his cousin, he was not a blood relative, but a younger
friend, with whom he had grown up and who now lived in Colombia. Camacho
explained that Cesar, whom he had suspected of being in the drug trade, phoned
him in January from Colombia to set up the drug deal. The court then questioned,
5
“Can you explain how you took the phone call of someone that was three years
younger than you calling from Colombia to tell you to drive down from Orlando to
Miami to accompany drugs? It just doesn’t make common sense . . . if in fact you
had never done this before and were afraid.” Camacho replied that Cesar knew
that Camacho had legal problems and offered to help him.
Then the government elicited from Camacho, that he: (1) knew that Boretto
had someone who was going to buy the five kilograms of heroin; (2) negotiated
when the money would be paid; and (3) never consulted Lee, who was present at
the meeting and the “experienced” drug dealer. Camacho reiterated that he only
said what he was told to say, he was nervous and did not know what to answer, and
he was only responding to the agents. Finally, Camacho stated that he only
became involved in the drug operation because of Cesar, as a one-time way to
make $5,000.
The district court replied:
Mr. Camacho, the difficulty that I have is that you say that your total
involvement in this was a phone call from somebody that you knew in
Colombia . . . . you suspected that he was in the drug trade, he calls
you up on January 5th and tells you, according to you, that he wants
you to go with Mr. Grant, whom you say you have met only one time
before, and to go with Mr. Grant who has the $30,000 to take them
down to Miami to pick up the drugs; that Mr. Grant can’t speak
Spanish, and so you are there to provide Spanish interpretation, and
then when I see the tape and read the transcript of the tape you are the
one that is taking the lead in all of the discussions . . . . [M]y common
6
sense is telling me that I am not hearing a full and truthful disclosure .
...
The district court specifically found that it could not grant safety-valve relief
because: (1) Camacho had “not been as forthcoming as he should be”; and (2) he
had not satisfied his burden to “truthfully convey[] the facts of his knowledge
about this offense.” The court then sentenced Camacho to 120 months’
imprisonment, the statutory minimum for Camacho’s drug offense.
II. DISCUSSION
Camacho claims that the district court clearly erred in denying him safety-
valve relief because his statement was internally consistent and comported with the
record. We disagree.
Under the safety-valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. §
5C1.2, a sentencing court may depart downward from the statutory minimum
sentence if the defendant, among other things, gives the government prior to the
sentencing hearing truthful and complete information concerning the offense or
offenses that were part of the same course of conduct. United States v. Simpson,
228 F.3d 1294, 1304-1305 (11th Cir. 2000); 18 U.S.C. § 3553(f)(5); U.S.S.G. §
5C1.2(a)(5). “The question of whether the information [that the defendant]
supplied to the government . . . was truthful and complete . . . is a factual finding
for the district court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir.
7
2000). “The burden of proof on the truthfulness issue lies, of course, with the
defendant.” United States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999). We
review a district court’s factual determinations in deciding whether to grant safety-
valve relief for clear error. United States v. Cruz, 106 F.3d 1553, 1556-57 (11th
Cir. 1997).
We find no clear error here. The district court went to great lengths to
evaluate Camacho’s credibility, questioning Camacho under oath about the details
of his safety-valve statement and continuing the hearing to give the court time to
review the tapes and transcripts more carefully. After doing so, the district court
found that Camacho was not truthful, noting particularly the inconsistency between
Camacho’s claim that he was an inexperienced, one-time drug dealer and the
confident way in which Camacho conducted himself during the actual transactions.
The record supports the district court’s credibility finding, showing that Camacho
took the lead during the negotiations rather than merely acting as an interpreter for
Grant, insisted on the amount and price, and gave guarantees for payment and an
explanation for why the entire amount of cash was not available. Because the
district court made specific, detailed findings, supported by the record, that
Camacho was not credible in his safety-valve proffer, it was not clear error for the
district court to deny safety-valve relief.
8
Accordingly, we affirm Camacho’s 120-month sentence.
AFFIRMED.
9