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United States v. Leyva

United States Court of Appeals, District of Columbia Circuit

February 26, 2019

United States of America, Appellee
Alfredo Beltran Leyva, also known as Mochomo, Appellant

          Argued October 9, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:12-cr-00184-1)

          Stephen C. Leckar argued the cause and filed the briefs for appellant.

          William A. Glaser, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Arthur G. Wyatt, Chief. Adrienne L. Rose, Attorney, and Elizabeth Trosman, Assistant U.S. Attorney, entered appearances.

          Before: ROGERS and SRINIVASAN, Circuit Judges, and GINSBURG, Senior Circuit Judge.



         Ginsburg, Senior Circuit Judge: Alfredo Beltran Leyva pleaded guilty to conspiracy to distribute cocaine and methamphetamine in the United States. He later sought to withdraw his guilty plea and proceed to trial, but the district court did not permit him to do so. On appeal, Leyva claims the district court erred in denying his motion to withdraw the guilty plea; he also raises several challenges to his sentence and forfeiture order. We reject all his challenges and affirm the judgment of the district court.

         I. Background

         The offenses to which Leyva pleaded guilty stem from a large-scale drug trafficking organization and the members' conspiracy to import various drugs into the United States through Mexico. Although Leyva admits the existence of and his participation in the conspiracy, he challenges the reliability and sufficiency of the evidence to support his sentence and the amount of the forfeiture ordered by the district court; therefore, we review the relevant facts in detail.

         A. Relevant Facts

         Along with his brothers Arturo and Hector, Alfredo Beltran Leyva operated a drug trafficking organization (hereinafter a DTO) from at least 2000 to 2012. The DTO's cocaine business purchased cocaine from Colombian manufacturers through brokers and then shipped the drugs via land, air, or water for sale throughout Mexico; the cartel also imported some of that cocaine to the United States at the Texas border. The cartel also produced methamphetamine in laboratories in Mexico and shipped the finished drugs to the United States. In order to maintain control of its territories in Mexico and to ease the transport of its drug shipments, the DTO bribed local law enforcement officials and engaged gunmen to kill members of rival cartels.

         Leyva's primary role in the organization was to control the receipt, transportation, and sale of cocaine through Culiacán, Sinaloa in Mexico, its hub for cocaine operations. He was also responsible for overseeing the production of methamphetamine in laboratories around the Culiacán area.

         B. Procedural History

         The Mexican Army arrested Leyva in January 2008. He has been in continuous custody since then, though he was not extradited to the United States until November 2014. In August 2012 a grand jury in the District of Columbia returned a one-count indictment charging him with conspiracy to distribute 5 kilograms or more of cocaine, 50 grams or more of methamphetamine, 1 kilogram or more of heroin, and 1, 000 kilograms or more of marijuana for importation into the United States in violation of 21 U.S.C. §§ 959(a), 960(b)(1)(A), 960(b)(1)(B)(ii), 960(b)(1)(G), 960(b)(1)(H), and 963. The indictment covered the period from January 2000 through the date it was filed. The district court later granted the Government's motion to dismiss the charges involving heroin and marijuana, leaving only the cocaine and methamphetamine charges.

         In February 2016, shortly before trial was to begin, Leyva pleaded guilty. He did so without a plea agreement. At the plea hearing, the district court engaged the defendant in a lengthy colloquy before accepting his plea. The judge asked the defendant whether he had reviewed and discussed the indictment with his attorneys. Leyva confirmed he had; one of his attorneys further confirmed he had gone over the document with Leyva in Spanish and that Leyva had received a Spanish-language translation of the indictment at the time of his extradition. The district court also asked the defendant if he was satisfied with his attorneys' representation. Leyva said that he was.

         The judge did not verify that Leyva understood his right to be represented by counsel and to have the court appoint counsel if need be. Nor did he mention the possibility of forfeiture or that, in determining a sentence, the court would apply the Sentencing Guidelines and the factors under 18 U.S.C. § 3553(a). Leyva's counsel did not object to any of these omissions.

         The court then asked the Government to summarize the evidence it would have brought at trial. Following that presentation, the judge asked the defendant whether he was guilty of the Government's various allegations; he said he was. Specifically, Leyva admitted that he "was a member of the Beltran Leyva organization" and that the organization "finance[d] shipments" of cocaine "from Colombia to Mexico for transshipment to the United States." He further admitted that the organization "produced methamphetamine in Mexico for distribution, ultimately, in the United States." When asked if he was "one of the leaders of the Beltran Leyva organization," however, the defendant denied it. He insisted that he "would just help [his] brother, Artur[o]."

         At the end of the hearing, the district court judge determined that Leyva's plea was "knowing, voluntary, and supported by an independent basis in fact as to each of the essential elements of the offense." He therefore accepted the plea.

         The court scheduled Leyva's sentencing for October 2016. In due course, the Probation Office (PO) prepared a presentence report (PSR) for Leyva describing his role in the conspiracy. The PO calculated a base offense level of 38, based upon the quantity of drugs involved. It then applied a four-level enhancement because Leyva was an organizer or leader of criminal activity under USSG § 3B1.1(a), and two-level enhancements each for possession of a dangerous weapon, under USSG § 2D1.1(b)(1); use of violence, under USSG § 2D1.1(b)(2); bribing a law enforcement official, under USSG § 2D1.1(b)(11); and being a leader or organizer directly involved in the importation of a controlled substance, under USSG § 2D1.1(b)(15)(C) (2015). In addition, the PO recommended a three-level reduction for acceptance of responsibility under USSG § 3E1.1(a) and (b). The PO also concluded Leyva had a criminal history score of zero, resulting in a criminal history category I.

         A few days before the sentencing hearing, the parties attempted to stipulate to the applicable adjustments under the Guidelines. They agreed to a total base offense level of 42, which yields a sentencing range of 360 months to life. The district court refused to accept the stipulation, however. It decided to hear evidence and make its own determination as to the appropriate sentencing range.

         In February 2017, prior to his rescheduled sentencing, Leyva filed a motion to withdraw his guilty plea. He argued that his plea was "not knowing or voluntary" because the trial court "did not fully follow the procedures that [Federal Rule of Criminal Procedure 11] states must be followed" during the plea colloquy. He further asserted that "[b]ut for the Court's failure to follow the mandate of Rule 11, [he] would not have pled guilty." The district court denied the motion on the grounds that it had substantially complied with Rule 11 and that

          Leyva had "admitted facts under oath in several contexts which make his claim of innocence utterly improbable." The district court therefore proceeded with sentencing. Leyva did not dispute his base offense level, but he objected to the enhancements recommended by the PO. Although the Government had initially concurred with the recommendations in the PSR, it decided to oppose the adjustment for acceptance of responsibility because Leyva had attempted to withdraw his guilty plea.

         The district court conducted an evidentiary hearing lasting three days. The Government presented the testimony of Tom Hatherley and Paul Peschka, case agents from the Department of Homeland Security and the Federal Bureau of Investigation, respectively. They testified about the statements of three witnesses to the defendant's activities, whom they had interviewed: (1) Jesus Zambada Garcia, a member of the Sinaloa Cartel; (2) Sergio Villarreal Barragan, a member of the DTO responsible for security; (3) Harold Mauricio Poveda Ortega, who served as a broker between Colombian cocaine suppliers and the DTO.

         Based upon the evidence introduced at the hearing, the district court applied all the five enhancements recommended in the PSR.[1] The court also held the defendant did not qualify for a downward adjustment for acceptance of responsibility. Defendant's final offense level was therefore 50 - which is treated as the maximum 43 under USSG ch. 5, pt. A, cmt. n.2- producing a Guidelines "range" of life imprisonment. After considering the factors in 18 U.S.C. § 3553, the court found "no basis to depart down" and imposed a life sentence. In addition, the court determined "the defendant obtained proceeds of at least $529.2 million" as a result of his involvement in the conspiracy and ordered forfeiture in that amount. Leyva now appeals the denial of his motion to withdraw his guilty plea, his sentence, and the forfeiture.

         II. Motion to Withdraw Guilty Plea

         Leyva argues that the district court erred in refusing to permit him to withdraw his guilty plea. Generally, "[w]ithdrawal of a guilty plea before sentencing is liberally granted." United States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993). On appeal, however, this court "reviews a district court's refusal to permit withdrawal only for abuse of discretion." United States v. Curry, 494 F.3d 1124, 1128 (D.C. Cir. 2007) (citations omitted) (cleaned up).

         In determining whether the district court abused its discretion, this court considers three factors: (1) "whether the defendant has asserted a viable claim of innocence," (2) "whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the Government's ability to prosecute the case," and (3) "whether the guilty plea was somehow tainted" by a violation of Rule 11. Ford, 993 F.2d at 251 (cleaned up). We clarified in United States v. Cray that the third factor is all but dispositive. 47 F.3d 1203, 1207 (D.C. Cir. 1995) ("[N]one of our cases would have been decided differently if the only inquiry undertaken were whether the defendant's guilty plea was taken in compliance with Rule 11"). If the district court did ...

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