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United States v. Delacruz

United States Court of Appeals, Second Circuit

July 5, 2017

MIGUEL DELACRUZ, Defendant-Appellant. [*]

          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 ...

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