United States v. Orozco-Torres

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0718n.06
Filed: November 20, 2008
Nos. 06-6070/07-5335
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
AMBROCIA OROZCO-TORRES, ) THE MIDDLE DISTRICT OF
) TENNESSEE
Defendant-Appellant, )
)
and )
)
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
)
PETE ARCIBAR ROCHA, )
)
Defendant-Appellant. )
Before: GILMAN, SUTTON, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Ambrocia Orozco-Torres appeals his sentence following his
guilty plea to a drug-conspiracy charge. Pete Arcibar Rocha appeals both his conviction and
sentence arising out of the same conspiracy. We affirm.
I.
A.
Nos. 06-6070/07-5335
United States v. Orozco-Torres; United States v. Rocha
Orozco-Torres and Rocha each played a role in a cocaine-distribution conspiracy that started
in the border town of Brownsville, Texas, and ended in Nashville, Tennessee. The conspiracy began
in March 2005, when the Nashville police and the United States Immigration and Customs
Enforcement Agency (ICE) used a confidential informant to arrange a purchase of cocaine from two
men in Nashville. Those two men then contacted three other persons in Texas—Mark Anthony
Garcia, Rita Martinez, and Maria Villareal—to arrange a delivery of three kilograms of cocaine from
Brownsville to Nashville.
Rocha’s role was to transport the cocaine. He worked as a bus driver for Adame Bus Lines,
a passenger-bus company with regular routes from Mexico to various cities in the United States.
Garcia met Rocha at the Brownsville bus station, and gave him a backpack containing three
kilograms of cocaine. Rocha placed the bag in the driver’s luggage area on the front seat of the bus.
Rocha then drove the bus to Houston, with Garcia onboard as a passenger.
In Houston, Rocha and Garcia met Martinez and Villareal, and the four of them boarded an
Adame bus for Nashville. Rocha did not drive on this trip, but again stored the backpack in the
driver’s luggage area. Upon reaching Nashville, they checked into a motel. There, Rocha learned
that the final sale of the cocaine would not be completed until several days later, so he left Nashville.
Rocha was supposed to be paid $2,000 for his role in transporting the cocaine, but Garcia paid him
only $500 at that time because the deal had not yet been completed.
Orozco-Torres entered the picture a few days later. He had arrived in Nashville from Mexico
one day before the cocaine sale was to be completed. He learned of the deal from one of the
Nashville purchasers—his brother-in-law—at whose apartment he was staying. Orozco-Torres also
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met the other Nashville purchaser that same day, and told him that he would like to participate in the
sale because his brother-in-law “had never done this kind of deal[] and he didn’t know
about . . . these things.”
The next day, the confidential informant went to the apartment to complete the sale. The
informant was wearing a transmitting device, which was monitored by ICE agents. In a conversation
overheard by the agents, Orozco-Torres negotiated with the informant about how the transfer of
cocaine for cash would occur. Orozco-Torres then ordered two other men to retrieve the cocaine
from the motel at which Garcia, Martinez, and Villareal were staying. Surveillance agents observed
the men go to the motel and pick up Garcia, who was carrying a black backpack. The men returned
to the apartment, and showed the informant three kilograms of cocaine in the bag.
Police then entered the apartment and arrested all of the conspirators present, including
Orozco-Torres. Martinez and Villareal were arrested at the motel, and their room was searched. In
their purses, agents found a business card with Rocha’s name on it, and two pictures of Rocha, one
of him in front of an Adame bus.
ICE agents learned that Rocha would be driving a bus to Nashville a few weeks later. Two
agents met him at the bus station and told him that his name had come up in an investigation of a
cocaine-trafficking investigation. Rocha agreed to go with the agents to their office for an interview.
There, he made inculpatory statements—telling the agents that he helped transport the cocaine, and
that he was paid for his role in doing so.
Rocha was not arrested immediately following his interview, but was driven back to the bus
station by the agents. Rocha was arrested several days later and charged with conspiracy to distribute
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and possession with intent to distribute cocaine, and aiding and abetting the possession with intent
to distribute cocaine.
B.
1.
Prior to his trial, Rocha moved to suppress the inculpatory statements that he made to the ICE
agents. At a hearing on his suppression motion, Rocha testified that the agents had told him at the
bus station that “if I was willing to cooperate with them . . . I won’t be arrested.” He testified that
he later signed a Miranda waiver of rights form, but that it was his understanding that he was signing
that form as a “trade” for not getting arrested. He further testified that he asked the agents at the
station if he needed an attorney, and they told him that if he was willing to cooperate, “[n]o, you
don’t need one.”
The agents disputed both assertions. Each testified that they had not made any promises to
Rocha that he would not be arrested or prosecuted. They also testified that Rocha had never asked
for an attorney, and, indeed, had read and signed a Miranda waiver of rights form, indicating that
he understood his rights and was willing to talk to the agents without an attorney present. It is also
undisputed that Rocha was never handcuffed, that the agents told Rocha he was not under arrest at
that time, and that Rocha rode in the front seat of the agents’ car to and from the police station.
The district court denied Rocha’s motion to suppress the inculpatory statements, finding his
testimony not credible. Specifically, with respect to Rocha’s testimony regarding the agents’ alleged
promise not to arrest him if he cooperated and signed the waiver of rights form, the court found:
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I am finding that to not be credible and not supported by the facts for the following
reasons. First of all, the form doesn’t say that. The agents didn’t testify accordingly,
so there is a conflict in the testimony there, and I am finding that Mr. Rocha’s
testimony in that regard is not credible. It is just not an objective basis for a promise
of not being arrested for signing a form.
The court also found that another aspect of Rocha’s testimony—that he had asked for a
lawyer but was told he did not need one—was “particularly not credible in light of his signing and
initialing the waiver of rights form.” It was undisputed, the court observed, that Rocha had signed
a waiver of rights form and understood that he could have had a lawyer if he had wanted one. The
court found that Rocha’s testimony contradicted the testimony of both of the agents, and was not
credible.
Rocha’s case proceeded to a jury trial, following which he was convicted of both charges.
Rocha’s presentence report calculated his Sentencing Guidelines range to be 78 to 97 months’
incarceration. Rocha objected to the report’s failure to include a four-level offense reduction for
being a “minimal participant” in the drug conspiracy under U.S.S.G. § 3B1.2. The government
objected to the report’s failure to include a two-level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1.
The district court overruled Rocha’s objection to the report’s failure to include a four-level
minimal-participant reduction, but granted him a two-level reduction as a “minor participant” in the
conspiracy. The court granted the government’s request for a two-level enhancement for obstruction
of justice. Noting that it had “previously found that Mr. Rocha was not credible[,]” the court found
that his testimony “was intentionally false, and that rises to the level of obstruction of justice.” The
district court then sentenced Rocha to 78 months’ incarceration.
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2.
For his part in negotiating the drug transaction, Orozco-Torres pleaded guilty to conspiracy
to distribute and possess with intent to distribute cocaine. His presentence report calculated his
Guidelines range as 100 to 125 months’ incarceration. Orozco-Torres objected to the report on
several grounds, including its failure to include a minimal-role reduction, its failure to reduce his
criminal history category on the grounds that it allegedly overstated his propensity to commit crimes,
and its failure to grant a downward departure on the grounds that his incarceration would have an
“extraordinary effect on innocent family members.” The district court overruled all of these
objections, and sentenced Orozco-Torres to 100 months’ incarceration.
These appeals followed.
II.
A.
Rocha appeals both his conviction and his sentence. Rocha first argues that his conviction
should be vacated because the district court refused to suppress his inculpatory statements. He
contends the statements were not voluntary because his “will was . . . overborne by illusory
promises” by the agents, to the effect that he would not be arrested if he cooperated with them. We
review the district court’s factual findings for clear error, and its determination of voluntariness de
novo. United States v. Marks, 209 F.3d 577, 581 (6th Cir. 2000).
“In determining whether a confession has been elicited by means that are unconstitutional,
this court looks to the totality of the circumstances concerning whether a defendant’s will has been
overborne.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). “Police promises of
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leniency . . . can be objectively coercive,” rendering a confession involuntary. United States v.
Johnson, 351 F.3d 254, 261 (6th Cir. 2003). But “[a]ny statement given freely and voluntarily
without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, 384
U.S. 436, 478 (1966).
Rocha’s inculpatory statements were freely and voluntarily given. As an initial matter, Rocha
does not argue that he was in custody when he gave the statements. To the contrary, he admits that
he agreed to go with the ICE agents to the bureau station, that they told him he was not under arrest,
that he was never handcuffed, and that he rode in the front seat of the agent’s car to and from the
station. The “compulsion inherent in custodial surroundings” was absent, therefore, and the pre-
interrogation warnings mandated by Miranda were not required. Miranda, 384 U.S. at 458.
Moreover, Rocha concedes that the agents read him his Miranda rights, and that he signed a waiver-
of-rights form, indicating that he was willing to answer questions without a lawyer present.
Rocha’s argument, instead, is that his “will was overborne” by the agents’ alleged promise
that he would not be arrested if he agreed to cooperate. But the district court specifically found the
predicate for this argument—that the agents made such a promise—to be incredible. We have no
basis to hold that finding to be clear error. Under the totality of the circumstances, therefore,
Rocha’s statements were “given freely and voluntarily without any compelling influences,” and
properly admissible against him at trial. Miranda, 384 U.S. at 478.
B.
1.
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Rocha also appeals his sentence. He argues that the district court erred in imposing a two-
level obstruction-of-justice enhancement, and in failing to grant a four-level “minimal participant”
reduction. In reviewing an enhancement under U.S.S.G. § 3C1.1, we review the district court’s
factual determinations for clear error, its “determination that certain conduct constitutes obstruction
of justice” de novo, and its application of the enhancement de novo. United States v. Baggett, 342
F.3d 536, 540-41 (6th Cir. 2003).
Section § 3C1.1 provides for a two-level enhancement where a defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of justice.” U.S.S.G.
§ 3C1.1. The notes to § 3C1.1 recite “committing, suborning, or attempting to suborn perjury” as
examples of obstructing justice. U.S.S.G. § 3C1.1 cmt. n. 4(b). A defendant commits perjury when,
testifying under oath, he “gives false testimony concerning a material matter with the willful intent
to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1992).
In Dunnigan, the Supreme Court acknowledged the “concern that courts will enhance
sentences as a matter of course whenever the accused takes the stand and is found guilty.” Id. at 97.
To protect against this risk, the Court held that “if a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court must review the evidence and make independent
findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do
the same, under the perjury definition.” Id. at 95. The Court recognized that “[w]hen doing so, it
is preferable . . . to address each element of the alleged perjury in a separate and clear finding,” but
“[t]he district court’s determination that enhancement is required is sufficient . . . if . . . the court
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makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.” Id.
We have added additional requirements. For a district court to enhance a defendant’s
sentence under § 3C1.1, the court must: “1) identify those particular portions of defendant’s
testimony that it considers to be perjurious; and 2) either make a specific finding for each element
of perjury or, at least, make a finding that encompasses all of the factual predicates for a finding of
perjury.” United States v. Lawrence, 308 F.3d 623, 632 (6th Cir. 2002). With respect to the first
requirement, however, we “have never insisted on a rigid adherence to its terms,” and “a district
court’s findings will be adequate if: 1) the record is sufficiently clear to indicate which statements
the district court considered perjurious; and 2) the district court found that the statements satisfied
each element of perjury.” Id.
Here, Rocha testified under oath at a suppression hearing that ICE agents told him that “if
I was willing to cooperate with them . . . I won’t be arrested.” He further testified that he asked the
agents if he needed a lawyer, and they told him, “[n]o, you don’t need one.” The district court found
at the hearing that “those pieces of testimony by Mr. Rocha aren’t credible, particularly not credible
in light of his signing and initialing the waiver of rights form.” At sentencing, the district court
referenced these findings, saying that “[o]n the obstruction of justice enhancement, the Court
previously found that Mr. Rocha was not credible. In the opinion of the Court his testimony was
intentionally false, and that rises to the level of obstruction of justice, so I’m granting that objection.”
Rocha argues that these findings were not specific enough under Dunnigan and Lawrence.
He cites our decision in United States v. Spears, 49 F.3d 1136 (6th Cir. 1995), where we held that
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a sentencing judge’s general finding that a defendant’s entire testimony was not credible was not
specific enough to warrant an obstruction of justice enhancement.
In Rocha’s case, however, the “record is sufficiently clear to indicate which statements the
district court found perjurious.” Lawrence, 308 F.3d at 632. The district court specifically found
“not credible” two material aspects of Rocha’s testimony—that he asked for a lawyer and that the
agents promised him he would not be arrested—and then referenced that finding at sentencing.
Thus, unlike Spears, there is no ambiguity in the record here regarding the statements that the district
court found perjurious.
Those statements also “satisfied each element of perjury.” Id. The district court expressly
found that the cited testimony was “intentionally false”—thus satisfying the “willful” element of
perjury. Although the court did not address the “materiality” of the testimony, that element generally
is a question of law in this setting. See United States v. Seymour, 38 F.3d 261, 264 (6th Cir. 1994)
(where a district court’s findings “encompass all elements of perjury except materiality, Dunnigan
does not require a remand because materiality is a question of law”). Any error, at any rate, was
harmless because the element is plainly met here; Rocha’s perjury formed the basis for his
suppression motion.
The district court’s findings therefore “encompass[ed] all of the factual predicates for a
finding of perjury,” and thus satisfy the rules set forth in Dunnigan and Lawrence. The district court
did not err in imposing a two-level obstruction of justice enhancement.
2.
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Rocha further argues that the district court erred in denying him a four-level reduction to his
offense level as a “minimal participant” in the conspiracy under U.S.S.G. § 3B1.2(a). The district
court did, however, grant Rocha a two-level reduction as a “minor participant” under § 3B1.2(b).
Section 3B1.2 provides:
Based on the defendant’s role in the offense, decrease the offense
level as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.
The reduction for a minimal participant “is intended to cover defendants who are plainly
among the least culpable of those involved in the conduct of a group.” Id. cmt. n. 4. A reduction
for a minor participant “applies to a defendant . . . who is less culpable than most other participants,
but whose role could not be described as minimal.” Id. cmt. n. 5.
The commentary to the Sentencing Guidelines cautions that “[i]t is intended that the
downward adjustment for a minimal participant will be used infrequently.” Id. cmt. n. 4. “[T]he
defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of
the activities of others is indicative of a role as minimal participant.” Id.
“This court will not disturb the district court’s determination of a defendant’s role in the
criminal activity unless it is clearly erroneous.” United States v. Williams, 940 F.2d 176, 180 (6th
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Cir. 1991). The defendant bears the burden of proving by a preponderance of the evidence that he
was a minimal participant in the offense. United States v. Salas, 455 F.3d 637, 643 (6th Cir. 2006).
The issue, therefore, is whether the district court clearly erred in determining that Rocha failed to
prove that he was a minimal—rather than a minor—participant in the offense.
The district court made no such error. Rocha’s role in the cocaine-trafficking conspiracy was
to transport the cocaine from Brownsville to Nashville. That was an essential role. He used his
position as a commercial bus driver to store the cocaine during its transport in the driver’s luggage
area, where it was less likely to be searched by customs agents. He traveled with three other
members of the conspiracy—knowing their roles—and successfully delivered the cocaine to
Nashville. He was paid $500 for his services. Rocha thus played a significant role in the conspiracy
and knew the role of others in it. That takes him beyond the scope of a minimal participant. The
district court’s determination that Rocha had not met his burden of proving that he was a minimal
participant, therefore, was not clearly erroneous.
C.
Orozco-Torres appeals only his sentence. Like Rocha, he first argues that the district court
erred in failing to grant him a mitigating-role reduction. His argument fails as well.
In his plea agreement, Orozco-Torres stipulated to the fact that he “negotiated with the
informant over how the transfer of cocaine for cash would occur,” and the fact that he “ordered” two
other co-conspirators “to get the cocaine and bring it to the apartment.” The district court rightly
relied on these facts in finding that Orozco-Torres was not a minimal or minor participant. Orozco-
Torres was not “plainly among the least culpable of those involved” in the conspiracy, U.S.S.G.
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§ 3B1.2 cmt. n. 4, thus precluding a reduction as a minimal participant. And he was not “less
culpable than most other participants,” U.S.S.G. § 3B1.2 cmt. n. 5—given that he gave orders to at
least two of them—thus precluding a reduction as a minor one. The district court did not err in
denying the requested reduction.
Orozco-Torres next argues that the district court erred in failing to grant a downward
departure under U.S.S.G. § 4A1.3(b)(1). That section provides that a downward departure may be
granted “[i]f reliable information indicates that the defendant’s criminal history category
substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that
the defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1). In making this determination,
the district court can consider the types of prior convictions, the age of the convictions, and signs of
rehabilitation. United States v. Fletcher, 15 F.3d 553, 557 (6th Cir. 1994). We review the district
court’s determination only for clear error. Id. at 556.
This argument is meritless. Orozco-Torres has seven prior convictions, including ones for
drug possession, possession of a handgun while under the influence, and possession with intent to
distribute cocaine. He committed all these offenses between 1999 and 2002—and indeed in the 26
months during that period when he was not in prison. It understates matters to say that the district
court’s determination on this issue was not clearly erroneous.
Orozco-Torres also argues that his family circumstances “warranted a downward departure.”
He asserts that his incarceration will have a negative effect on his wife and child, who rely on him
for support. We have held that “[e]xtraordinary and special family circumstances may justify a
downward departure in exceptional cases.” United States v. Tocco, 200 F.3d 401, 435 (6th Cir.
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2000). But this case is not exceptional; the conduct of criminals often has severe, harmful effects
upon their families. The district court did not err on this issue.
Finally, Orozco-Torres challenges the reasonableness of his sentence. We review his
sentence for both procedural and substantive reasonableness, “under a deferential abuse-of-discretion
standard.” Gall v. United States, __U.S.__, 128 S. Ct. 586, 591 (2007). A sentence is procedurally
unreasonable if the district court:
commit[s][a] significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence–including an
explanation for any deviation from the Guidelines range.
Id. at 597.
In reviewing the substantive reasonableness of the sentence, we “take into account the totality
of the circumstances, including the extent of any variance from the Guidelines range.” Id. If the
sentence fell within the Guidelines, we apply a “rebuttable presumption of substantive
reasonableness.” United States v. Wilms, 495 F.3d 277, 280-81 (6th Cir. 2007).
Orozco-Torres’ sentence was procedurally and substantively reasonable. The district court
acknowledged the advisory nature of the Guidelines, considered the § 3553(a) factors, and properly
calculated a Guidelines range of 100 to 125 months’ incarceration. The court then sentenced
Orozco-Torres at the bottom of the Guidelines range, 100 months, which it determined in its
discretion to be reasonable under the totality of the circumstances. We agree.
III.
For the foregoing reasons, we affirm the district court’s judgments in both cases.
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