UNITED STATES of America, Plaintiff-Appellee, v. Luis ALTAMIRANO-QUINTERO, Defendant-Appellant.
No. 06-1254.
United States Court of Appeals, Tenth Circuit.
Dec. 28, 2007.
511 F.3d 1087
Martha A. Paluch, Assistant United States Attorney (Troy A. Eid, United States Attorney, with her on the brief) for Plaintiff-Appellee United States of America.
Before TYMKOVICH, EBEL and HOLMES, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Luis Altamirano-Quintero appeals the district court‘s imposition of a statutory mandatory minimum ten-year sentence for his drug conspiracy conviction. Altamirano-Quintero asserts
I. BACKGROUND
Law enforcement officials found over 670 grams of a substance containing methamphetamine in Altamirano-Quintero‘s car. As a result, he and a companion, his co-defendant, were arrested for drug trafficking. Altamirano-Quintero pled guilty to one count of conspiring to possess, with the intent to distribute, 500 grams or more of methamphetamine, in violation of
Altamirano-Quintero had two means available to him to avoid that mandatory minimum ten-year sentence. First, his plea agreement anticipated that he would be debriefed by, and would cooperate with, the Government. If, as a result, he provided the Government with “substantial assistance,” then the Government agreed to move, under
Second, Altamirano-Quintero could qualify for the statutory safety valve that
After he pled guilty, Altamirano-Quintero
If a defendant provides “substantial assistance,”
Further, in order to obtain the benefit of
To satisfy the safety valve, on the other hand, a defendant has to meet the other four statutory criteria (no more than one criminal history point, no use or credible threat of use of violence or a firearm or other dangerous weapon in committing the relevant offense, the offense did not result in death or serious bodily injury to any person, and the defendant was not a leader or organizer of the criminal endeavor), in addition to giving the Government all of the information he has concerning his “offense or offenses that were part of the same course of conduct or of a common scheme or plan,”
The district court, however, found that Altamirano-Quintero was not eligible for the safety valve:
Paragraph 5 of subsection F of Section 3553 provides in relevant part as follows, and I quote, “Not later than the time of the sentencing hearing, the defendant has truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.”
On this record, that fifth requirement has not been satisfied by the defendant,
and therefore, the defendant is not entitled to safety valve relief under 18 U.S.C. Section 3553(f) , and therefore the defendant‘s request for downward departure for a sentence below the statutory minimum should be denied.
The court then sentenced Altamirano-Quintero to the statutory mandatory minimum 120 months’ imprisonment.
II. DISCUSSION
On appeal, Altamirano-Quintero challenges only the district court‘s imposition of the mandatory minimum ten-year sentence, arguing that the district court erred in finding him ineligible for the safety valve. In support of that contention, he asserts three arguments, which are addressed below.
A. Whether the district court erred as a matter of law in concluding Altamirano-Quintero was not eligible for the safety valve solely because he was not debriefed by the Government.
Altamirano-Quintero first argues that the district court incorrectly held, as a matter of law, that the safety valve provision required that he submit to a Government debriefing. This court reviews de novo the district court‘s statutory interpretation of the safety-valve provision. See United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir.2006).
Both Altamirano-Quintero and the Government agree that
At sentencing, the district court first addressed whether the Government would file a motion under
[i]n the Plea Agreement and Stipulation of Facts Relevant to Sentencing, ... the parties acknowledged that the defendant had expressed the intent to cooperate with the office of the United States Attorney for the District of Colorado by providing testimony, documents, and other information known to the defendant about the criminal wrongdoing of other persons.
The defendant in his plea agreement agreed that he shall cooperate fully with the government in the ways described in that plea agreement....
In that same plea agreement, the government reserved the sole right to evaluate the nature and extent of the cooperation if any of the defendant, and to
make the cooperation of the defendant, if any, known to the court at the time of sentencing. At the time of the plea agreement, the defendant had not been debriefed. At that time, the parties stipulated that the defendant would submit to a proffer or interview by agents of the federal government between the date of the entry of the plea in June 2005, and the first [scheduled] sentencing hearing in September of 2005.
Due to actions of the defendant, that debriefing and that proffer did not occur. Had the defendant cooperated completely, had the defendant submitted to the debriefing and proffer included in the plea agreement, the government anticipated filing a motion under guideline Section 5K1.1, and the provisions of
18 U.S.C. § 3553(e) , requesting a downward departure for substantial assistance.Because the defendant breached that portion of his plea agreement, the government has not filed any such motion. And there is no request to depart downward from the guideline range based on substantial assistance.
The district court then immediately, but separately, turned to the question of whether Altamirano-Quintero was eligible for the
Paragraph 5 of subsection F of Section 3553 provides in relevant part as follows, and I quote, “Not later than the time of the sentencing hearing, the defendant has truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.”
On this record, that fifth requirement has not been satisfied by the defendant, and therefore, the defendant is not entitled to safety valve relief under
18 U.S.C. Section 3553(f) , and therefore the defendant‘s request for downward departure for a sentence below the statutory minimum should be denied.
Contrary to Altamirano-Quintero‘s argument on appeal, the district court did not specifically hold that
B. Whether the Government conceded in the plea agreement that Altamirano-Quintero had already complied with § 3553(f)(5) based upon the facts he admitted in the plea agreement.
Altamirano-Quintero next argues that the Government stipulated, in the plea agreement, that he had, at the time he pled guilty, already complied with
This court reviews the terms of the plea agreement de novo.8 See United States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir.2006), cert. denied, U.S., 127 S.Ct. 1338, 167 L.Ed.2d 134 (2007). In interpreting a plea agreement, we apply “[g]eneral principles of contract law ..., looking to the [agreement‘s] express language and construing any ambiguities against the government as the drafter of the agreement.” Id. at 1250-51 (quotation omitted); see also United States v. Bunner, 134 F.3d 1000, 1003 (10th Cir. 1998). “The plea agreement must be construed according to what [the] defendant reasonably understood at the time he made the agreement.” United States v. Prince, 204 F.3d 1021, 1023 (10th Cir. 2000).
The plea agreement Altamirano-Quintero had with the Government contained five sections.9 The first section stated the “Plea Agreement“; the second set forth the statutory penalties that Altamirano-Quintero faced by pleading guilty to the drug conspiracy count; the third set forth the parties’ “Stipulation to Relevant Facts” underlying Altamirano-Quintero‘s guilty plea; and the fourth section estimated how the guidelines might apply, predicting Altamirano-Quintero would be subject to an advisory sentencing range of between 87 and 108 months, were he not subject to the statutory mandatory minimum ten-year sentence. The plea agreement‘s fifth and final section was entitled “Why the Proposed Plea Disposition is Appropriate.” In the first paragraph of that two-paragraph section,10 the plea agreement stated:
The parties believe that the sentencing range resulting from the plea agreement is appropriate because all relevant conduct is disclosed; that the stipulated facts by the parties take into account all pertinent sentencing factors with respect to this defendant; and that the charge to which the defendant has agreed to plead guilty adequately reflects the seriousness of the actual offense behavior.
(Emphasis added.)
Based upon this language in the last section, Altamirano-Quintero argues on appeal that the Government conceded in the plea agreement that he had already satisfied
The paragraph in the plea agreement on which Altamirano-Quintero relies does not address
Moreover, the particular phrases in the agreement to which Altamirano-Quintero cites in support of his interpretation—“[t]he parties believe that the sentencing range resulting from the proposed plea agreement is appropriate because all relevant conduct is disclosed” and “the stipulated facts by the parties take into account all pertinent sentencing factors with respect to this defendant“—directly concern the “relevant conduct” on which the sentencing guidelines calculate an advisory sentencing range. See
Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for the offense;
....
(3) all harm that resulted from the acts and omissions specified in subsection (a)(1) ... above, and all harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable guideline.
Relevant conduct for sentencing purposes, therefore, “comprises more, often much more, than the offense of conviction itself, and may include uncharged and even acquitted conduct.” United States v. Allen, 488 F.3d 1244, 1254-55 (10th Cir. 2007). This relevant conduct, however, still “must relate to the offense of conviction.” Id. at 1255. And where, as here, the offense of conviction involves criminal activity undertaken jointly with others, the relevant conduct includes “all reasonably foreseeable acts and omissions of others in
Courts addressing the requirements for a defendant to meet the safety valve under
The plea agreement‘s indication in this case that “all relevant conduct” has been disclosed sets the parameters for the criminal activity about which the safety valve required Altamirano-Quintero to give the Government all the information he had. But this language in the plea agreement did not further indicate that Altamirano-Quintero had already provided the Government with that information. Cf. Stephenson, 452 F.3d at 1180-81 (noting the relevant conduct about which the defendant was required to inform the Government, in order to qualify for the safety valve, included the drug trafficking the defendant undertook jointly with co-conspirators, but upholding the district court‘s factual finding that the defendant had failed to give the Government all of the information he had about that jointly undertaken conduct).
Our conclusion here is bolstered by two facts. First, and most telling, this paragraph in the plea agreement makes no reference at all to
Second, the language in the plea agreement on which Altamirano-Quintero relies is standard language prescribed by the local rule. See D.C.COLO.LCrR 11.1(C) and App. J. Of course, including this language in the plea agreement binds the parties to that agreement. But relying on the express language of the agreement, see Rodriguez-Delma, 456 F.3d at 1250-51, we cannot conclude that the Government, by using this standard language, meant to concede in every case that the defendant has satisfied the safety valve‘s
Nor can we conclude that Altamirano-Quintero could have “reasonably understood” the plea agreement to include such a government concession. Instead, the plea agreement clearly contemplates that there would be additional information that the court would consider at sentencing:
With the exception of the stipulated facts set forth above, this statement of facts does not preclude either party from presenting and arguing, for sentencing purposes, additional facts or evidence which a party believes is relevant to sentencing. Further, the Court is not bound by the factual stipulations of the parties. In determining the factual basis for the sentence, the Court may consider not only the stipulations of the parties, but also the results of any presentencing investigation that may be conducted by the U.S. Probation Department, together with any other relevant information that may be brought to the Court‘s attention.
This language, then, in no way establishes that the parties believed that Altamirano-Quintero had already fully disclosed all of the information he had for
For these reasons, we conclude that the language contained in the plea agreement‘s fifth section does not amount to a Government concession that Altamirano-Quintero had already complied with
C. Whether the district court clearly erred in finding that Altamirano-Quintero was not eligible for safety-valve relief because he had not disclosed to the Government all of the information he had concerning his offense.
Lastly, Altamirano-Quintero asserts that the district court‘s finding that
This court reviews the district court‘s determination of a defendant‘s eligibility for the safety valve for clear error. See Stephenson, 452 F.3d at 1180; see also United States v. Payton, 405 F.3d 1168, 1170-71 (10th Cir.2005) (noting this remains the standard even after Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621). The specific question posed by
At sentencing, the district court had before it the facts to which the parties stipulated in the plea agreement. Altamirano-Quintero argues that, because there is no indication that those facts are untruthful, they are sufficient to satisfy his burden under
Here, there are obvious informational gaps in the facts Altamirano-Quintero admitted when he pled guilty. Altamirano-Quintero admitted that he had “670.2 grams of a mixture” containing methamphetamine in his car, which he had driven from California to Denver with a co-defendant. But Altamirano-Quintero does not indicate how or where he got the methamphetamine, or what he intended to do with it. See Montanez, 82 F.3d at 523 (affirming district court‘s finding that the defendant was not eligible for safety-valve relief on the basis of a similar gap in information).
More to the point, this court, on several previous occasions, has held that where, as here, a defendant pleads guilty to conspiring with his co-defendant “and with other persons, known and unknown to the Grand Jury,” the defendant does not comply with
In this case, Altamirano-Quintero has never identified any of the other participants in the charged drug conspiracy. Nor does he explain why he could not do so. See Stephenson, 452 F.3d at 1180-81 (upholding denial of safety-valve relief where it appeared “highly unlikely” that the defendant “did not know the identities of those individuals who were involved in
In addition, in this case, Altamirano-Quintero indicated in the plea agreement that he intended to cooperate with the Government and to provide “substantial assistance.” This further suggests that Altamirano-Quintero had additional information to disclose and bolsters the record‘s already sufficient suggestion that he has failed to disclose all the information he had. For these reasons, the record before the district court was sufficient to support the district court‘s finding that Altamirano-Quintero had failed to prove by a preponderance of the evidence that he had made a complete and truthful disclosure to the Government of all the information he had concerning his offense.13 That factual finding, therefore, was not clearly erroneous. See Virgen-Chavarin, 350 F.3d at 1130.
III. CONCLUSION
For the foregoing reasons, this court AFFIRMS Altamirano-Quintero‘s statutory mandatory minimum ten-year sentence.
HOLMES, Circuit Judge, concurring.
I agree with the majority that the district court did not clearly err in finding Mr. Altamirano-Quintero ineligible for safety valve relief. More specifically, I agree with the majority‘s reasoning in Sections II(A) and II(C) and concur in the judgment. I am, however, troubled by Section II(B) of the majority opinion. There, the majority addresses whether Mr. Altamirano-Quintero could reasonably have understood, from the Plea Agreement‘s express terms, that the government conceded that he had “already complied with
In particular, I write separately for two reasons. First, to properly resolve this case, I find it unnecessary to reach the issue addressed in Section II(B). Second, the majority‘s tortuous efforts to overcome Mr. Altamirano-Quintero‘s reasonable arguments in favor of a government concession are not only unpersuasive, but also impose an unacceptable cost. Specifically, they run counter to, and undermine, our settled precedent concerning the interpretation of both the Sentencing Guidelines and plea agreements. Regarding the latter, the majority repeatedly employs a rigid, formalistic approach and declines to construe any ambiguities in the instant Plea Agreement against the drafter—the government.1
The safety valve provision (
The district court was free to disregard the government‘s concession in favor of other evidence bearing on the subject. And, as the majority cogently demonstrates in Section II(C), the district court understood its independent role and did not clearly err in finding on the record that Mr. Altamirano-Quintero failed to satisfy the safety valve disclosure provision. Accordingly, as an initial matter, I find the majority‘s discussion in Section II(B) to be completely unnecessary to properly resolve this case. Even assuming arguendo the government‘s concession, I would reach the same conclusion regarding the unavailability of safety valve relief.
In addition, although I need not definitively opine on whether the government conceded through its relevant conduct stipulation that Mr. Altamirano-Quintero satisfied the safety valve‘s disclosure requirement, a strong argument can be made that the government did so—more specifically, that Mr. Altamirano-Quintero reasonably could have understood the government to have made such a concession in the Plea Agreement. The majority‘s analysis to the contrary is unpersuasive and legally flawed. It fails to consistently adhere to the Guideline-defined meaning of “relevant conduct” and subjects the Plea Agreement to an impermissibly strained interpretation.
First, the majority observes that the government‘s relevant conduct stipulation “directly concern[ed] the ‘relevant’ conduct on which the sentencing guidelines calculate an advisory sentencing range” and did nothing more than “set[] the parameters for the criminal activity” about which Mr. Altamirano-Quintero was later required to provide information if he hoped to obtain safety valve relief. Maj. Op. at 1095, 1096. Accordingly, the majority reasons that Mr. Altamirano-Quintero could not have reasonably understood the government to have conceded that he had already provided the requisite information. Id. at 1096. This analysis rests on the faulty assumption that the term “relevant conduct” means something different when calculating an advisory Guideline sentence than it does when determining whether a defendant is entitled to safety valve relief. The plain language of the Guidelines undercuts the majority‘s tacit assumption, and, therefore, weakens its rationale.
“Relevant conduct” is a term of art in criminal sentencing. As the majority recognizes, “relevant conduct” embraces the “Factors that Determine the Guideline Range.”
“We interpret the Sentencing Guidelines according to accepted rules of statutory construction.” United States v. Reaves, 253 F.3d 1201, 1203 (10th Cir.2001). “In interpreting a guideline, we look at the language of the guideline itself, as well as at the ‘interpretive and explanatory commentary to the guideline’ provided by the Sentencing Commission.” United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir.2003) (quoting United States v. Frazier, 53 F.3d 1105, 1112 (10th Cir.1995)). The term “relevant conduct” is expressly defined by the Guidelines. Therefore, we typically apply the same meaning to the term each time it appears in the statute. Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167, 1175 (10th Cir.2004) (when a technical term is used in a statute, “it is presumed that the term [has] the same meaning in each of the sections or subsections“); see also United States v. Perez, 366 F.3d 1178, 1182 (11th Cir.2004) (“Where the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both.“). Cf. Watson v. United States, U.S. —, 128 S.Ct. 579, 583-85, 169 L.Ed.2d 472 (2007) (rejecting a uniform application of the term “use,” which was undefined by the statute and not a term of art).
Because “relevant conduct” means the same throughout the Guidelines, the majority‘s attempt to limit the scope of the government‘s chosen language solely to the calculation of the advisory sentencing range is unpersuasive. “Relevant conduct” means the same for calculation of the advisory sentencing range as it does for application of the safety valve. Consequently, we could reasonably construe the government‘s express acknowledgment that Mr. Altamirano-Quintero disclosed all “relevant conduct” for one Guidelines purpose as an acknowledgment that he disclosed it for all Guidelines purposes.
In addition, I question the majority‘s reading of the Plea Agreement itself. The majority concludes for two principal reasons that Mr. Altamirano-Quintero could not reasonably interpret the Plea Agreement as stipulating that he had already provided the government with all of the information necessary to obtain safety valve relief: first, because the Plea Agreement refers only fleetingly to
Relying on United States v. Reyes Pena, 216 F.3d 1204, 1212 (10th Cir.2000), United States v. Rockwell Int‘l Corp., 124 F.3d 1194, 1199 (10th Cir.1997), and Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996), the majority concludes that because the Plea Agreement language at issue does not expressly state that Mr. Altamirano-Quintero complied with
In each of them, the defendant was attempting to introduce a new term into a plea agreement. Here, the Plea Agreement already includes the term in question—the relevant conduct stipulation. The inquiry relates to what that term means. That the “relevant conduct” language does not explicitly refer to
Furthermore, simply because the Plea Agreement allows the parties to present additional facts or evidence at sentencing5 would not necessarily prevent Mr. Altamirano-Quintero from reasonably believing that the government had conceded that he had already disclosed all “relevant conduct” for safety valve purposes. Relevant conduct does not constitute the entire universe of information that courts properly may consider in imposing sentence. The Plea Agreement merely recognizes that truth.
Absent some restriction in the Guidelines or other law, the sentencing court is
In sum, I disagree with the majority‘s decision to reach the issue discussed in Section II(B), relating to the government‘s alleged plea agreement concession. It is a step unnecessary to the proper resolution of this case. Moreover, the majority‘s decision to take this step will be costly; its strained analysis contravenes our circuit‘s settled principles for interpreting both the Guidelines and plea agreements. Accordingly, although concurring in the result, I cannot fully join the majority‘s opinion.
Notes
In sentencing Altamirano-Quintero, the district court used the 2004 sentencing guidelines. At the time of sentencing, however, in June 2006, the 2005 guidelines were in effect. See[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court‘s evaluation of the significance and usefulness of the defendant‘s assistance, taking into consideration the government‘s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant‘s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant‘s assistance.
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (
21 U.S.C. 841 ,844 ,846 ) ... the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
R., Vol. I, Doc. No. 139 at 6.With the exception of the stipulated facts set forth above, this statement of facts does not preclude either party from presenting and arguing, for sentencing purposes, additional facts or evidence which a party believes is relevant to sentencing. Further, the Court is not bound by the factual stipulations of the parties. In determining the factual basis for the sentence, the Court may consider not only the stipulations of the parties, but also the results of any presentencing investigation that may be conducted by the U.S. Probation Department, together with any other relevant information that may be brought to the Court‘s attention.
In the case of a plea agreement that includes the dismissal of any charges or an agreement not to pursue potential charges ([Fed.R.Crim.P.] 11(c)(1)(A)), the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines. However, a plea agreement that includes the dismissal of a charge or a plea agreement not to pursue a potential charge shall not preclude the conduct underlying such charge from being considered under the provisions of
§ 1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted.