United States v. Carlos Tejeda

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 9, 2010
No. 09-14458 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00277-CR-ORL-22-GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS TEJEDA,
a.k.a. Ferdinand Machado-Morales,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 9, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Carlos Tejeda, through counsel, appeals his 100-month sentence imposed
after his guilty plea to importing 100 grams or more of heroin, in violation of 21
U.S.C. §§ 952 and 960(b)(2)(A), and possession with intent to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(i).
On appeal, Tejeda argues that the district court abused its discretion by
failing to grant a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
Furthermore, Tejeda contends that because neither he nor the government objected
to the presentence investigation report (“PSI”), the district court erred by ignoring
the factual findings in the PSI that supported a reduction and by deviating from the
PSI’s recommendation that he receive a three-level reduction for acceptance of
responsibility. Upon review of the presentence investigation report and sentencing
transcript and consideration of the briefs of the parties, we affirm.
As an initial matter, at the conclusion of his brief Tejeda states in conclusory
fashion that the district court’s decision to deny the reduction for acceptance of
responsibility violated the notice requirement of Fed. R. Crim. P. 32(h) and that his
100-month sentence is unreasonable because it is greater than necessary to achieve
the purposes of sentencing under 18 U.S.C. § 3553(a). Tejeda’s references to Rule
32(h) and § 3553(a) occur in passing. He does not offer any discussion on the
merits of either matter through reasoned analysis or citation to legal authority.
When a party merely makes a passing reference to an issue with no argument on its
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merits, the issue is deemed abandoned. See United States v. Jernigan, 341 F.3d
1273, 1284 n.8 (11th Cir. 2003) (holding issue abandoned where the defendant
made passing references to issue in brief). Accordingly, Tejeda has abandoned
these arguments, and we do not address them.1
We review a district court’s determination as to an acceptance of
responsibility reduction for clear error. United States v. Amedeo, 370 F.3d 1305,
1320 (11th Cir. 2004). The defendant bears the burden of demonstrating
acceptance of responsibility. United States v. Sawyer, 180 F.3d 1319, 1323 (11th
Cir. 1999) (affirming the district court’s denial of an acceptance of responsibility
reduction even though the PSI recommended the reduction and the government did
not object). “The district court’s factual findings for purposes of sentencing may
be based on, among other things, evidence heard during trial, undisputed
statements in the PSI, or evidence presented during the sentencing hearing.”
United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). Section 3E1.1(a)
of the Sentencing Guidelines provides for a two-level reduction “[i]f the defendant
clearly demonstrates acceptance of responsibility.” U.S.S.G. § 3E1.1(a). Although
a guilty plea will constitute significant evidence of acceptance of responsibility, it
1
We note that if Tejeda had clearly challenged the substantive reasonableness of his sentence
in light of the factors found in 18 U.S.C. § 3553(a), we would readily conclude that his sentence is
substantively reasonable.
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may be outweighed by conduct that is inconsistent with acceptance of
responsibility. See United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997);
U.S.S.G. § 3E1.1, comment. (n.3). The Guideline commentary also states that
“[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding
the Administration of Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, comment.
(n.4). If a defendant is assessed an enhancement for obstruction of justice under §
3C1.1, a reduction pursuant to § 3E1.1 should be granted only in “extraordinary”
circumstances. Id.; see United States v. Arguedas, 86 F.3d 1054, 1059-60 (11th
Cir. 1996) (holding the adjustment for acceptance of responsibility not appropriate
where the defendant repeatedly made materially false statements to authorities and
the district court, resulting in an enhancement for obstruction of justice).
We note that Tejeda offers scant argument on this issue as well; however, we
will address it. The district court did not clearly err in denying Tejeda a reduction
for acceptance of responsibility. Tejeda argues that the district court abused its
discretion by ignoring the PSI and denying the reduction when neither party
objected to it. The district court did not abuse its discretion in deciding that based
on the facts of the case, it disagreed with the recommendation in the PSI that
Tejeda be granted an acceptance of responsibility reduction. See Sawyer, 180 F.3d
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at 1323. Furthermore, Tejeda has not appealed the district court’s decision to
impose an obstruction of justice enhancement under U.S.S.G. § 3C1.1 based on
Tejeda’s failure to reveal his true identity until his sentencing hearing. As noted,
an acceptance of responsibility reduction is normally not appropriate when an
obstruction of justice enhanced has been imposed. Tejeda has failed to
demonstrate that this is an extraordinary case where both should apply.
Accordingly, the district court did not clearly err in denying Tejeda an acceptance
of responsibility reduction.
AFFIRMED.
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