United States v. Bolanos

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0223n.06
Filed: March 30, 2006
Case No. 05-1452
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
NICANOR BOLANOS, ) DISTRICT OF MICHIGAN,
) SOUTHERN DIVISION
Defendant-Appellant. )
___________________________________ )
BEFORE: SUTTON and GRIFFIN, Circuit Judges; OBERDORFER,* District Judge.
OBERDORFER, District Judge. Nicanor Bolanos appeals his eighty-four
month sentence for conspiracy to distribute marijuana. He concedes that his sentence falls
within the applicable Sentencing Guidelines range. He challenges it as procedurally and
substantively unreasonable, citing United States v. Booker, 543 U.S. 220, 261 (2005), and United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). We conclude that Bolanos has not overcome
the presumption that a sentence selected from within the applicable Guidelines range is
reasonable; accordingly, we affirm.
I. BACKGROUND
A. Factual Background.
Bolanos is an illegal immigrant with limited English skills. After some hesitation,
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
he admits that, between 1995 and 2002, he supplied Roberto and Artemio Serna (the “Serna
brothers”) with at least four hundred kilograms of marijuana. He further admits that he supplied
the marijuana knowing that the Serna brothers would re-sell that marijuana.
B. Procedural Background.
1. Indictment.
On February 26, 2004, the United States indicted Bolanos for conspiracy to
distribute at least one hundred kilograms of marijuana, along with a related forfeiture count. On
July 22, 2004, it filed a superceding indictment charging him with conspiracy to distribute at
least one thousand kilograms of marijuana, along with a related forfeiture count.
2. Initial Guilty Plea and Withdrawal of That Plea.
On August 23, 2004, Bolanos pled guilty to conspiracy to distribute at least one
hundred kilograms of marijuana (i.e., he pled guilty to Count I of the original indictment).
Bolanos did so pursuant to a letter agreement in which the prosecution agreed not to oppose a
Sentencing Guidelines offense level reduction for acceptance of responsibility and to dismiss
both the superceding indictment and the forfeiture count of the original indictment.
In October 2004, the United States Probation Office filed its Pre-Sentence
Investigation Report, superceded on December 10, 2004 by a revised report. In the revised
report, the Probation Office recommended holding Bolanos accountable, for sentencing
purposes, for conspiring to distribute one thousand to three thousand kilograms of marijuana.
Both the government and Bolanos objected to this aspect of the revised report; they agreed that
he should be held accountable for conspiring to distribute only four hundred to seven hundred
kilograms of marijuana.
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Soon after the Probation Office filed its revised report, Bolanos moved to
withdraw his guilty plea. At a December 21, 2004 hearing, the district court heard from both
Bolanos’s counsel and Bolanos himself. Bolanos raised a statute of limitations argument,
objected to not having timely received certain documents, and engaged in the following critical
colloquy with the court:
“THE COURT: Okay. You’re contending you’re innocent; is that it?
THE DEFENDANT: Yes.”
Dec. 21, 2004 Motion to Withdraw Plea Hr’g Tr. at 17 (JA 125). The district court concluded
that Bolanos was asserting his innocence of the conspiracy to distribute marijuana charge to
which he had pled guilty. Accordingly, the district court permitted him to withdraw his guilty
plea.
3. Second Guilty Plea.
Subsequently, the prosecutor offered Bolanos the same terms originally offered,
plus an agreement not to prosecute Bolanos for any perjury he may have committed in
withdrawing his initial guilty plea. Whereupon, Bolanos again pled guilty. The district judge
wondered aloud, somewhat impatiently: “Well, it strikes me that either Mr. Bolanos wants to
admit he was lying in all the pleadings that he has filed or he wants to lie today.” Feb. 23, 2005
[Second] Plea Hr’g Tr. at 3 (JA 143). Ultimately, however, the district judge accepted the
second guilty plea.
4. Sentencing.
At sentencing, the district judge acknowledged not having reviewed the transcript
of the hearing in which Bolanos withdrew his guilty plea. The prosecutor offered that the
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transcript recorded Bolanos’s professions of innocence. The judge responded: “Let me assume,
for purposes of our discussion, that [the transcript] says what you say it does. What is it you
want me to do with that information?” Apr. 4, 2005 Sentence Hr’g Tr. at 6 (JA 177).
Thereafter, Bolanos’s attorney confirmed:
[I]t’s true, as Mr. Bruha [the Assistant United States Attorney]
represents, that Mr. Bolanos, as part of a series of questions and
answers of the Court, did say that he was innocent, and that’s why he
wanted to – part of the reason why he wanted to have his plea
withdrawn.
. . . . [M]y take on that, on behalf of Mr. Bolanos, is that he saw the
presentence report, which had a much larger drug quantity than what
he had advised that he felt he was responsible for, and that the
government had also agreed with, and that was why he wanted to
withdraw his plea.
Id. at 7-8 (JA 178-79) (emphasis added).
In considering the appropriate sentence, the district court first determined the
applicable Sentencing Guidelines range. As the parties agreed, and over the advice of the
Probation Office, the court selected a base offense level of twenty-eight (based on responsibility
for conspiracy to distribute four hundred to seven hundred kilograms of marijuana). As the
parties further agreed, the court then subtracted three offense levels for acceptance of
responsibility. While the prosecutor initially moved for an offense level increase for obstruction
of justice, he ultimately abandoned that position. This development left the parties in agreement
for an offense level of twenty-five, a criminal history category of III, and a resultant Guidelines
imprisonment range of seventy to eighty-seven months.
The district court next considered Bolanos’s suggestion that it select, pursuant to
its authority under United States v. Booker, 543 U.S. 220, 245-46 (2005), a sentence below the
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applicable Guidelines range. Bolanos pointed to his likelihood of facing deportation, family
connections and responsibilities, misunderstandings about the United States judicial system, and
somewhat advanced age (fifty years old). The court, after consideration, rejected each of these
factors as a reason to impose a below-Guidelines sentence.
Instead, the district judge selected a sentence from within the applicable
Guidelines range, which he explained as follows:
With respect to where to sentence Mr. Bolanos within the guideline
range, the thing that troubles me the most . . . was his insistence that
either using a cell phone to facilitate a drug transaction either wasn’t
a crime or shouldn’t be a crime, or that he was innocent of the
charges in this case.
Technically, the guideline range should have been increased for an
obstruction of justice, because that’s what happened in this case. The
better approach here is to simply take it into account in connection
with where to sentence the defendant within the guideline range.
Accordingly, after considering these matters and all of the factors in
18 USC Section 3553, it is the judgment of this Court that the
defendant is committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 84 months.
Apr. 4, 2005 Sentence Hr’g Tr. at 22-23 (JA 193-94).
Bolanos now appeals his sentence.
II. DISCUSSION
We conclude that Bolanos has not overcome the presumption that his within-the-
applicable-Guidelines-range sentence is reasonable.
A. Standard of Review and Applicable Law.
Post-United States v. Booker, 543 U.S. 220 (2005), we review a criminal sentence
“to determine ‘whether the sentence is unreasonable.’” United States v. Webb, 403 F.3d 373,
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383 (6th Cir. 2005) (quoting Booker, 543 U.S. at 261). There is a “rebuttable presumption” that
a sentence that falls within the applicable Sentencing Guidelines range is reasonable. United
States v. Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006) (quotation marks omitted). The
reasonableness review requires consideration of both “the length of the sentence” and “the
factors evaluated and the procedures employed by the district court in reaching its sentencing
determination.” Webb, 403 F.3d at 383. We “may conclude that a sentence is unreasonable
when the district judge [has] fail[ed] to consider the applicable Guidelines range or [has]
neglect[ed] to consider the other factors listed in 18 U.S.C. § 3553(a).” Id. (quotation marks
omitted); accord United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005).
In evaluating the reasonableness of a criminal sentence, we accept any district
court findings of fact, unless those findings are “clearly erroneous.” United States v. Gibson,
409 F.3d 325, 341 (6th Cir. 2005); United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005).
“A finding of fact will only be clearly erroneous when, although there may be some evidence to
support the finding, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Regalado v. United States, 334 F.3d 520, 524
(6th Cir. 2003) (quotation marks omitted). “As long as the district court has interpreted the
evidence in a manner consistent with the record, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. (quotation marks omitted). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. (quotation
marks omitted).
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B. Whether Bolanos’s Sentence is Procedurally Unreasonable.
Bolanos first attacks his sentence as “procedurally unreasonable.” Aplt’s Br. at
17-23; see Webb, 403 F.3d at 383 (reasonableness inquiry requires consideration of “not only the
length of the sentence but also the factors evaluated and the procedures employed by the district
court in reaching its sentencing determination”) (emphasis added). Bolanos’s procedural attack
focuses on the district court’s (1) failure to review the transcript of its hearing on his request to
withdraw his initial guilty plea and (2) statement that it would “assume, for purposes of our
discussion, that [the transcript] says what [the prosecutor] say[s] it does.” Apr. 4, 2005 Sentence
Hr’g Tr. at 6 (JA 177). Bolanos argues that the court’s failure to review the transcript led it to
misunderstand his apparent professions of innocence as an obstruction of justice. According to
Bolanos, he did not mean to profess his innocence of the underlying charge (to which he
subsequently re-pled guilty) but meant only to assert that he should not be held responsible, as
the Probation Office had recommended, for certain additional quantities of marijuana. Bolanos
argues that any confusion regarding the meaning of his statements arose from his
misunderstandings of the United States judicial system and the use of a translator.
We conclude that the district court sentencing procedure was reasonable. First,
the district court’s failure to review the transcript of Bolanos’s withdrawal of his plea, while
perhaps disappointing, does not render the sentence unreasonable. The district court, after-all,
participated in the relevant dialogue only three and a half months earlier and thus had heard first-
hand Bolanos’s statements and their context. Cf. United States v. Taylor, 956 F.2d 572, 578 (6th
Cir. 1992) (en banc) (approving findings based on district court’s personal observations).
Second, the district court’s statement that it would assume the truth of the prosecutor’s
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representation that Bolanos professed his innocence also does not render the sentencing
procedure unreasonable. Bolanos’s counsel confirmed that Bolanos “did say that he was
innocent.” Apr. 4, 2005 Sentence Hr’g Tr. at 7-8 (JA 178-79).
As to Bolanos’s underlying argument that the district court mistakenly treated his
comments as professions of his innocence of the charge to which he had previously pled guilty,
the district court’s conclusion was not clearly erroneous. That court found as fact that Bolanos
stated his innocence of the underlying charge and thereby lied to the court. At the sentencing
hearing, the court stated: “Technically, the guideline range should have been increased for an
obstruction of justice, because that’s what happened in this case.” Apr. 4, 2005 Sentence Hr’g
Tr. at 23 (JA 194) (emphasis added); see also U.S.S.G. § 3C1.1, cmt. n. 4(f) (obstruction of
justice occurs where defendant “provid[es] materially false information to a judge”).
Additionally, in accepting Bolanos’s second guilty plea, the court observed: “Well it strikes me
that either Mr. Bolanos wants to admit he was lying in all the pleadings that he has filed or he
wants to lie today.” Feb. 23, 2005 [Second] Plea Hr’g Tr. at 3 (JA 143).
We recognize that Bolanos advances an alternative interpretation of his
statements. That alternative, however, does not render the district court’s interpretation clearly
erroneous. Rather, “[a]s long as the district court has interpreted the evidence in a manner
consistent with the record, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence differently.”
Regalado, 334 F.3d at 524 (quotation marks omitted). “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.
(quotation marks omitted); see also id. at 526.
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Here the district court consulted the Sentencing Guidelines, recited its
consultation of the balance of the 18 U.S.C. § 3553(a) sentencing factors, explained its decision
not to select a sentence outside of the applicable Guidelines range, and explained its decision to
select a particular sentence within that range. The court’s explanation of its decision to select a
particular sentence within the applicable Guidelines range was made with reference to a finding
of fact – that Bolanos lied to the court – that is not clearly erroneous. Accordingly, the district
court did not impose a procedurally unreasonable sentence.
C. Whether Bolanos’s Sentence is Substantively Unreasonable.
Bolanos also attacks his sentence as “substantively unreasonable.” Aplt’s Br. at
23-25; see Webb, 403 F.3d at 383 (criminal sentence may be unreasonable on account of its
length). In support of this attack, Bolanos reiterates the same arguments that he advanced
regarding the procedural aspect of his sentence. Those arguments, for the same reasons, are
unpersuasive with regard to the substance of Bolanos’s sentence. As this circuit ruled in
Richardson: “We credit a sentence . . . that falls within the advisory Guidelines range with a
rebuttable presumption of reasonableness.” 437 F.3d at 553-54 (quotation marks omitted).
Bolanos has not overcome that presumption.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence of Bolanos to
imprisonment for eighty-four months.
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