Argued: November 14, 2016
Appeal
from a judgment of the United States District Court for the
Southern District of New York, Katherine B. Forrest,
Judge, convicting defendant, following his plea of
guilty, of conspiracy to commit robbery, see 18
U.S.C. § 1951, and sentencing him principally to 63
months' imprisonment. Defendant challenges his sentence,
contending principally that the district court miscalculated
his Guidelines-recommended range of imprisonment by
erroneously denying him credit for acceptance of
responsibility. We conclude that the district court denied
the acceptance-of-responsibility adjustment based on clearly
erroneous factual findings. Vacated and remanded for
resentencing.
NOAH
SOLOWIEJCZYK, Assistant United States Attorney, New York, New
York (Preet Bharara, United States Attorney for the Southern
District of New York, Karl Metzner, Assistant United States
Attorney, New York, New York, on the brief), for Appellee.
LOUIS
R. AIDALA, New York, New York, for Defendant-Appellant.
Before: KEARSE, LOHIER, and DRONEY, Circuit Judges.
KEARSE, Circuit Judge
Defendant
Miguel Delacruz appeals from a judgment of the United States
District Court for the Southern District of New York,
Katherine B. Forrest, Judge, following his plea of
guilty, convicting him of conspiracy to commit robbery, in
violation of 18 U.S.C. § 1951, and sentencing him
principally to 63 months' imprisonment. Delacruz
challenges that aspect of his sentence as procedurally
unreasonable, contending principally that the court erred in
denying him an advisory Sentencing Guidelines
("Guidelines") reduction in offense level in
recognition of his acceptance of responsibility for his
offense. We agree. We vacate the sentence and remand for
resentencing.
I.
BACKGROUND
The
prosecution of Delacruz arose out of a sting operation run by
the Drug Enforcement Administration ("DEA"),
targeting suspected drug dealer Alex Velez. The investigation
culminated in the November 2014 arrests in New York City of
Velez and six others including Delacruz ("Velez's
crew"), as they believed they were about to carry out a
planned robbery of drug dealers. A three-count indictment
charged the seven men with (1) interfering with commerce by
threat or violence in conspiring to commit such a robbery, in
violation of 18 U.S.C. § 1951 (the "robbery
conspiracy" or "Hobbs Act" conspiracy) (count
one), (2) conspiring to distribute and to possess with intent
to distribute the heroin and cocaine they anticipated
obtaining in the robbery, in violation of 21 U.S.C. §
846 (the "drug distribution conspiracy") (count
two), and (3) carrying and using a firearm in furtherance of
those two conspiracies, in violation of 18 U.S.C.
§§ 924(c)(1)(a)(i) and 2 (count three). All seven
eventually pleaded guilty to one or more of the charges
against them.
Velez
pleaded guilty to all four counts of a superseding charging
document that included the three counts described above, and
he entered into a cooperation agreement with the government.
Delacruz pleaded guilty to count one, the robbery conspiracy,
with the understanding that the other counts against him
would be dismissed. His plea agreement with the government
estimated that his Guidelines criminal history category was
I; that his total offense level, assuming that he clearly
demonstrated acceptance of responsibility for his offense,
would be 23; and that his Guidelines-recommended range of
imprisonment would be 46 to 57 months.
The
following description of the relevant events is taken largely
from the presentence report ("PSR") prepared on
Delacruz by the probation department based on information
provided by the government, including DEA surveillance tapes
and postarrest-cooperation statements by Velez.
A.
The Sting
Starting
in mid-2014, a cooperating witness (the "CW") and a
confidential informant (the "CI") (collectively,
the "Cooperators") working with the DEA attempted
to negotiate cocaine and heroin transactions with Velez, who
was reputed to be a large-quantity drug dealer in
Philadelphia. When those efforts failed, the DEA had the
Cooperators ask Velez to help them collect a debt supposedly
owed them by one of their narcotics suppliers. In late
September, they told Velez the supplier was soon to have a
large shipment of narcotics brought to New York City. They
asked Velez to rob the couriers; the Cooperators would take
the amount owed them and Velez and his crew could keep the
rest. Velez immediately agreed and said he knew people who
would help.
Velez
asked Delacruz, a close friend since childhood, to
participate in the robbery because he needed a driver and
knew Delacruz had a car and a valid license. Velez told the
government in a postarrest proffer session that he also
recruited Delacruz because he knew Delacruz had been involved
in selling drugs. Delacruz agreed to be the driver for the
robbery and told Velez he would rent a car for the event.
Velez eventually added the other five members of his crew for
the supposed robbery: Philadelphians Giovanny Falero, Eduardo
Vasquez-Torres ("Vasquez"), and Vasquez's
friend Ismaeal Feliciano, and two New Yorkers, Velez's
nephew Riphy Esquea-Marte ("Esquea"), and
Esquea's friend, Fausto Espinosa.
In
mid-October, Delacruz drove Velez from Philadelphia to a
location in Manhattan (the "Manhattan Location")
near 125th Street and 12th Avenue for a meeting with the
Cooperators to discuss robbery details. Velez introduced
Delacruz as the driver for the robbery, and Delacruz
confirmed his participation. After learning from the
Cooperators that the drugs would be arriving in an SUV driven
by a woman, accompanied by two men who would be armed, Velez
stated that his crew would harm the men.
On
November 5, Delacruz again drove Velez to Manhattan to meet
with the Cooperators. The CI asked whether Delacruz would be
participating in the robbery; both Velez and Delacruz
responded affirmatively. The Cooperators said they expected
the supplier's SUV to be carrying 16 kilograms of cocaine
and five kilograms of heroin and expected that one of the men
in the SUV would be armed. Velez again indicated that his
crew would harm the men in the SUV; he said the crew members
with robbery experience would be bringing guns.
On
November 11, the CW informed Velez by telephone that the SUV
would be arriving in New York City with the drug shipment on
November 13. On the evening of November 13, Delacruz drove
Velez and Falero from Philadelphia to Manhattan in a rented
Buick, with Vasquez following, driving a Dodge, with
Feliciano and two firearms. Velez informed Delacruz and
Falero that the men in the Dodge were armed with guns. When
the Buick arrived at the Manhattan Location (the Dodge driven
by Vasquez had stopped some distance away), Velez got out to
speak with the Cooperators and told them that the other car
was nearby. The Cooperators urged him to get the other car
closer. Velez complied, and soon both the Buick and the Dodge
were parked on 125th Street east of 12th Avenue.
Delacruz
then drove the Buick closer to the Manhattan Location, where
the Cooperators approached the Buick and spoke to Velez,
Delacruz, and Falero. The conversation (as translated from
Spanish, and with "..." representing a pause)
included the following exchange between the Cooperators and
Delacruz:
[Cooperator]: . . . . You're not getting out, right? Or,
why are you going to...? When we arrive there with...with the
thing, how...?
[Delacruz]: No. They're going to fight back and we're
["we[]" subsequently clarified as meaning he and
Velez] going to be on backup.
(Transcript
of Meeting on November 13, 2014 ("T-100"), at 14.)
Delacruz later added:
[Delacruz]: I can assure you that the one in front,
that...that tough guy, as you say...
[Cooperator]: Well, that...
[Delacruz]: That guy...that guy is going to cry like a sissy.
(Id. at 15.)
Minutes
later, the DEA signaled the Cooperators to bring Velez and
his crew to the supposed robbery location. The Cooperators
began to drive, followed by the Buick, but both cars stopped
at 125th Street and 12th Avenue; the CI and Velez exited
their respective vehicles and had a conversation. After Velez
made gestures as if summoning someone, a Toyota livery cab
arrived; Esquea got out and handed Velez a black bag. Falero
then exited the Buick, and he, Velez, and Esquea walked
toward the Dodge. The CI reentered the Cooperators' car,
which resumed driving, followed by the Buick and the Toyota.
After
those three vehicles had gone several blocks, law enforcement
officers stopped the Buick and the Toyota; they arrested
Delacruz, who was alone in the Buick, and Espinosa, who was
driving the Toyota. Meanwhile, the Dodge, in its parking spot
on 125th Street, had gotten blocked in by buses, and other
officers arrested Vasquez and Feliciano in the Dodge and
arrested Falero and Esquea as they were trying to enter the
Dodge. Velez, carrying the bag just given him by Esquea, had
walked past the blocked-in Dodge when he was arrested. Before
his arrest he was observed throwing the bag over a
construction fence.
Officers
recovered the black bag jettisoned by Velez and found inside
a loaded semiautomatic firearm. A search of the Dodge
revealed two guns, a large knife, gloves, and masks. From the
Buick, officers recovered an empty suitcase and an empty
fabric bag.
B.
Delacruz's Guilty Plea and the Parties'
Sentencing Submissions
In
August 2015, Delacruz, pursuant to his plea agreement,
pleaded guilty to only the robbery conspiracy count. In
describing his conduct, Delacruz stated that
[f]rom on or about September 2014 to on or about November 13,
2014, I agreed with others to commit a robbery of
alleged--alleged drug dealer to take place in the Bronx, New
York. In this regard, I was placing a meeting in Manhattan,
New York City, where . . . discussions were had to the
alleged--
MR. AIDALA [Delacruz's attorney]: Alleged.
THE DEFENDANT: --robbery. My role in this matter was to act
as a lookout. I knew it was illegal to do so.
(Plea Hearing Transcript, August 12, 2015, at 11.) Delacruz
stated that what they had been planning to steal were drugs.
His plea, entered before a magistrate judge, was accepted by
the district judge.
The PSR
prepared on Delacruz found that he had no prior convictions
or arrests, and that he thus had a criminal history category
of I. It calculated that his total offense level--including
recommended downward adjustments totaling three steps for
clearly accepting responsibility for his conduct and for
timely agreeing to plead guilty--was 23. His
Guidelines-recommended range of imprisonment was therefore 46
to 57 months; the PSR recommended the imposition of 46
months.
Delacruz's
attorney Louis Aidala submitted to the district court a
sentencing memorandum urging that Delacruz be sentenced to
time served--about 13 months. Without faulting the PSR's
calculation of the Guidelines-recommended range, Aidala
objected to two aspects of the PSR's factual description
of the events: (1) the implication Delacruz had been involved
in selling drugs and would be compensated for participating
in the robbery by receiving drugs to sell, and (2) the
implication that Delacruz had said he himself would harm one
of the drug couriers.
As to Delacruz's role and anticipated compensation,
Aidala stated that
Velez agreed to supply four men to commit the robbery and one
man as the driver. Delacruz was to be the
driver/lookout. On the night of the planned
"robbery", the defendants arrived in two vehicles,
one of which was driven by Delacruz . . . . No contraband
was found in the rented vehicle driven by Delacruz, or on his
person.
(Delacruz
Sentencing Memorandum dated November 2, 2015, at 3 (emphases
added).) Aidala argued that Delacruz's role was not to
accost the couriers or take the drugs from them (see
id. at 6), nor was he to receive drugs as his
compensation:
Delacruz was to have received a fee for driving and being
the lookout. He was not going to sell the purported
narcotics or share in the profits, so the claim by Velez that
he supposedly recruited Delacruz because he knew him to be
engaged in selling narcotics is unconvincing.
(Id. (emphasis added).) Aidala argued that there was
no basis for Velez's statement that Delacruz had
previously dealt drugs.
As to
the PSR's statement that Delacruz had said that
Velez's crew would harm one of the male couriers, Aidala
argued that "the transcripts of the meetings that were
provided to defense counsel by the government contain no such
statement by Mr. Delacruz." (Id. at 3; see
also id. at 6 (such a statement by Delacruz is "not
borne out by the transcripts of said meetings that were
provided to counsel by the government. . . . Delacruz said
nothing about their hurting the drug supplier who was the
intended victim of the robbery").)
The
government, for its part, urged the district court to impose
a term of imprisonment within the 46-to-57 month range
recommended by the PSR. As to Delacruz's objections to
the PSR's statements that Delacruz had previously dealt
drugs and planned ...