United States v. Bosque, Pedro J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1504
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PEDRO J. BOSQUE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 CR 93—David F. Hamilton, Judge.
____________
ARGUED SEPTEMBER 26, 2002—DECIDED DECEMBER 3, 2002
____________
Before COFFEY, ROVNER and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. After the government put on its
case at trial, Pedro Bosque pled guilty to an indictment
charging him with one count of conspiracy to possess
with intent to distribute methamphetamine, four counts
of distribution of methamphetamine, and one count of
possession with intent to distribute marijuana. Bosque
raises two challenges to his sentence, claiming the dis-
trict court erred when it failed to grant him a reduction
in his sentence for acceptance of responsibility, and that
the court erred when it refused to sentence him accord-
ing to the terms of an agreement he believed he had
2 No. 02-1504
with the government. We affirm in part and dismiss for
lack of jurisdiction in part.
I.
Pedro Bosque (“Bosque”) became a drug dealer under
somewhat unusual circumstances. One day, several men
came to his home and told him that his son, Pedro Bosque,
II (“Pedro”), had stolen drugs and money from them at
gunpoint. They told Bosque that they would kill Pedro if
he did not repay them. Bosque agreed to repay the money
for his son by selling drugs for the men in exchange for
a promise that they would spare Pedro’s life. Bosque then
began selling methamphetamine for the men, turning over
the proceeds of the sales to them. Pedro became even
more indebted to the men, and Bosque returned home
with his wife one day to find two men holding Pedro at
gunpoint and again threatening to kill him. Bosque
again agreed to sell drugs in exchange for his son’s life,
this time in greater quantities.
Local law enforcement officers became aware that
Bosque was selling drugs and set up an undercover oper-
ation in order to catch him in the act. Detective Jerry
Cannon of the Indianapolis Metropolitan Task Force
managed the Bosque operation. He enlisted the aid of
FBI Special Agent Jo Ann Burkhart, in part because fed-
eral law was implicated. On four occasions, an under-
cover agent for the Task Force purchased methamphet-
amine from Bosque in increasingly larger amounts, culmi-
nating in Bosque’s arrest in early July 2000, when he
sold three pounds of methamphetamine and one ounce of
cocaine to the undercover officer. Bosque confessed and
consented to a search of a storage shed where he kept
his supply of drugs. Additional drugs and weapons were
seized and Bosque was charged in a six-count indictment.
No. 02-1504 3
Because Bosque’s wife had been with him shortly be-
fore the final controlled buy, Agent Burkhart questioned
her on the day of Bosque’s arrest and subsequently had
additional conversations with her about her husband’s case.
Bosque’s wife later testified that Agent Burkhart prom-
ised leniency for Bosque if he cooperated with law en-
forcement. Ms. Bosque also testified that Detective Can-
non promised a sentence of one to three years in a state
facility in exchange for Bosque’s cooperation. When federal
prosecutors later offered Bosque a plea agreement, his
wife advised him to reject it because it did not meet the
terms of the agreement she alleged she reached with Agent
Burkhart and Detective Cannon.
Bosque went to trial, the government presented its case,
and Bosque put on one witness in his defense case be-
fore changing course and pleading guilty. At the time he
pled guilty, Bosque explained that his son had “a bad, bad,
bad record” that led to Bosque’s crimes:
I’m saying this: I didn’t have the opportunity or I didn’t
have the chance to call the police because I felt, not
only fear for my wife, my kids, my grand kids, my
whole family and the situation that I was put into—
I did the best to my ability and if I had to—and I will
go to jail for what I did. I take full responsibility for
my actions and I will do it again for my son.
Tr. at 453. The court then explained that a guilty plea
would result in Bosque losing the right to appeal his de-
fense of duress or coercion. Bosque replied:
Well, Your Honor, I know I did all these things, you
know. I know I’m guilty. But, too, I had a reason to
do—for what I do, you know. I’m not saying I’m not
guilty.
Tr. at 454. The court accepted the plea. During the pre-
sentence investigation period, Bosque submitted an affi-
davit purporting to accept “total, full responsibility for
4 No. 02-1504
all of the charges that the U.S. Government filed against
me and to which I plead guilty in open court.” R. 81,
Sentencing Tr. at 8.
The district court subsequently sentenced Bosque to
188 months imprisonment, five years of supervised release
and a $600 special assessment. The court declined to re-
duce Bosque’s sentence for acceptance of responsibility,
in part because Bosque waited to see how the trial would
go before pleading guilty. The court noted that Bosque’s
decision to go to trial
is not consistent nor has his other conduct been con-
sistent with what this Court views as an acceptance
of moral responsibility for drug dealing on a wide
and destructive scale by Mr. Bosque. In addition, frank-
ly, it seems to me that Mr. Bosque is continuing to
try to shift responsibility away from himself, to his
son, to his son’s associates, to law enforcement offi-
cials, and that is additional evidence that seems to
me to be inconsistent with the acceptance of respon-
sibility adjustment in this case. . . . I simply am not
convinced that Mr. Bosque has accepted moral respon-
sibility or expressed genuine remorse for his drug
dealing. I do believe he’s sorry he got caught, but
that’s not what we’re talking about with acceptance
of responsibility.
R. 82, Sentencing Tr. at 2-3. The court stated it would
nonetheless consider Bosque’s guilty plea in deciding on
a point in the Guidelines range that is an appropriate sen-
tence. The court then granted a two-level downward
departure under U.S.S.G. § 5K2.12 for coercion and duress.
R. 82, Sentencing Tr. at 24-25. The court found that
although the coercion fell short of a complete defense
to criminal conduct, it was sufficient to take the case
outside the heartland of the Guidelines, especially given
Bosque’s lack of a criminal record before these inci-
No. 02-1504 5
dents. The court also rejected any claim by Bosque for
a reduction for substantial government assistance. The
court noted that nothing in the record demonstrated
that Bosque had provided the level of assistance required
for the court to make such an adjustment. Moreover, the
court found that there was no contract or agreement
between Bosque and the government for Bosque to receive
a lenient sentence. Specifically, the court found that,
although the law enforcement officers acted aggressively
and properly in their efforts to obtain cooperation from
Bosque, they never made promises they could not keep.
R. 82, Sentencing Tr. at 25. Rather the court found there
was simply a misunderstanding between Bosque, his wife
and the law enforcement officers involved. Id. Bosque
appeals.
II.
The United States Sentencing Guidelines provide that
“[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level
by 2 levels.” U.S.S.G. § 3E1.1(a). We review a district
court’s acceptance of responsibility determination for clear
error. United States v. Booker, 248 F.3d 683, 690 (7th Cir.
2001); United States v. Wetwattana, 94 F.3d 280, 285 (7th
Cir. 1996). The acceptance of responsibility determina-
tion is a factual finding, based in part on whether the
defendant has accepted responsibility for his conduct
in a moral sense. Wetwattana, 94 F.3d at 285; Booker,
248 F.3d at 690. See also United States v. Cunningham,
103 F.3d 596, 598 (7th Cir. 1996) (sentencing judge must
look beyond formalistic expressions of culpability to de-
termine whether the defendant has manifested accep-
tance of personal responsibility in a moral sense). We
defer to the district court because it is in a much better
position to assess the defendant’s statements and de-
6 No. 02-1504
meanor. Booker, 248 F.3d at 690. Although the provision
is designed in part to save the government the expense
of going to trial, a timely guilty plea alone does not en-
title a defendant to a reduction for acceptance of respon-
sibility. U.S.S.G. §3E 1.1, Application Note 3; United States
v. Ewing, 129 F.3d 430, 435 (7th Cir. 1997). At the same
time, going to trial to preserve issues that do not relate
to factual guilt does not automatically preclude applica-
tion of the acceptance of responsibility reduction. Cun-
ningham, 103 F.3d at 599.
Bosque argues that he was entitled to the reduction
because he confessed immediately upon his arrest, re-
sponded positively to the government’s solicitation for
assistance, pled guilty in open court against the advice
of counsel, filed a written acknowledgment during the
pre-sentence process taking full responsibility for his
crimes, and apologized to the court for his crimes even
after the court denied the reduction. He believes the
court misconstrued his desire to explain his actions as
an attempt to shift guilt away from himself and onto
other persons. Moreover, he maintains he went to trial
only because the government refused to make good on
its agreement for leniency, and therefore he should not
be faulted for putting the government to the expense of
trial.
We will address this last point first. Bosque could have
gone to trial to preserve his defense of coercion, a purely
legal issue, and not lost his opportunity to receive an
acceptance of responsibility reduction. Cunningham, 103
F.3d at 599. He also could have challenged the govern-
ment’s refusal to hold to an agreement to recommend
leniency without necessarily losing an opportunity for the
reduction. But he did much more than that; he put the
government to its burden of proof on his factual guilt, and
did not plead guilty until he saw how the trial was going.
Moreover, the court was aware of each and every factor
No. 02-1504 7
he now raises as a basis for his entitlement to the reduc-
tion, and it appears the district court simply did not be-
lieve that Bosque accepted moral responsibility for his
actions. The district court specifically found that Bosque
tried to shift responsibility for his crimes onto his son,
his son’s associates and law enforcement. The court was
not convinced that Bosque’s expression of remorse was
genuine, but rather found that Bosque merely regretted
getting caught. The court’s findings reflect no error of
either law or fact, and Bosque has not pointed out any
reason to believe the court was confused about the na-
ture of Bosque’s explanation for his crimes. We therefore
affirm the district court’s determination that Bosque
was not entitled to a reduction for acceptance of responsi-
bility. See Ewing, 129 F.3d at 436 (a district court is
entitled to find that a guilty plea is not evidence of ac-
ceptance of responsibility when a defendant contests the
government’s case until the last possible moment); United
States v. Wallace, 280 F.3d 781, 786 (7th Cir. 2002), cert.
denied, 122 S. Ct. 2641 (2002) (a district court is entitled
to find that eleventh-hour tactic of pleading guilty after
the court has denied a motion to suppress and has as-
sembled a jury does not warrant acceptance of responsibil-
ity reduction); United States v. Gibson, 155 F.3d 844, 848
(7th Cir. 1998) (a district court is entitled to find that de-
fendant failed to accept responsibility when she sought
to shift blame to another).
Bosque also maintains that the court erred when it
refused to honor the government’s promise for leniency
in exchange for cooperation. Bosque argues that Detec-
tive Cannon and Agent Burkhart acted as agents of the
government and that their promises are therefore bind-
ing on the United States Attorney. He contends that he
cooperated in the manner requested and was thus en-
titled to the reduced sentence he claims the law enforce-
ment officers promised his wife. Although Bosque does not
8 No. 02-1504
specify what provision of the Guidelines apply to his ar-
gument, presumably he relies on Section 5K1.1. That pro-
vision allows the court to depart from the Guidelines
upon motion of the government stating that the defen-
dant has provided substantial assistance in the investiga-
tion or prosecution of another person who has committed
a crime. Bosque argues, in essence, that he provided sub-
stantial assistance and the government breached its
agreement to move for a departure on the basis of that
assistance. The district court found as a factual matter
that there was no such agreement and that Bosque had
not assisted the government in any significant way. The
court thus declined to depart downward.
A district court lacks the authority to depart downward
on the basis of substantial assistance absent a motion
from the government. United States v. Santoyo, 146 F.3d
519, 523 (7th Cir. 1998), cert. denied, 525 U.S. 1167 (1999).
Moreover, we may review the government’s refusal to move
for a departure based on substantial assistance only for
unconstitutional motive. Santoyo, 146 F.3d at 523. Bosque
concedes the government filed no such motion here, but
does not argue that the government’s refusal to file the
motion was based on an unconstitutional motive. He ar-
gues simply that the court was obliged to honor the al-
leged oral agreement between his wife and Detective
Cannon and Agent Burkhart. The court, however, rejected
Bosque’s contract claim after hearing Agent Burkhart
testify at trial and after hearing Ms. Bosque and others
testify at Bosque’s sentencing hearing. In short, the court
simply did not believe that Detective Cannon and Agent
Burkhart had made the promises claimed by Bosque. This
finding is supported by the plea colloquy, where Bosque
replied in the negative when the court asked, “Has anybody
made any promises to you about how you’ll be treated
if you do plead guilty, or about how anybody else will
be treated?” Tr. at 455-56. Bosque pled guilty only after
No. 02-1504 9
the court then explained to him in painstaking detail the
maximum potential sentence he faced because of his plea.
The court also noted that Bosque had not provided
substantial assistance. The court was thus clearly aware
of its ability to depart downward for substantial assis-
tance but chose not to do so based on the facts of the case.
If there is no legal error in the sentence, then we have
no jurisdiction over the district court’s decision not to de-
part downward. United States v. Crucean, 241 F.3d 895,
898 (7th Cir. 2001). See also United States v. Johnson,
227 F.3d 807, 816 (7th Cir. 2000), cert. denied, 532 U.S.
1024 (2001) (district court’s decision to deny a down-
ward departure is discretionary and not subject to the
review of this court); United States v. Brumley, 217 F.3d
905, 913-14 (7th Cir. 2000) (this court lacks jurisdiction
to review a district court’s discretionary refusal to de-
part downward unless the sentence was imposed in vio-
lation of the law or as a result of an incorrect application
of the guidelines). When the court is aware of its discre-
tion to depart and refuses to do so based on the particu-
lar factual circumstances of the case, we may not re-
view that discretionary ruling. Brumley, 217 F.3d at
914. Such was the case here and we therefore dismiss that
part of Bosque’s appeal that seeks review of the district
court’s refusal to depart downward for substantial assis-
tance.
AFFIRMED IN PART, DISMISSED IN PART.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-3-02