United States v. Vasquez

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0110p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 07-1248

v.

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Defendant-Appellant. -

ALFREDO DELAPAZ VASQUEZ,

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Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 01-20052—Thomas L. Ludington, District Judge.

Submitted: March 12, 2009

Decided and Filed: March 23, 2009

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Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.

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COUNSEL

ON BRIEF: Martin J. Beres, LAW OFFICES OF MARTIN J. BERES, Clinton

Township, Michigan, for Appellant. Jennifer J. Sinclair, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Alfredo DeLaPaz Vasquez appeals his

convictions and sentencing in the district court. After Vasquez was arrested in 2001 in

an undercover narcotics investigation, he fled the jurisdiction. He was apprehended

again in 2006. A jury then convicted Vasquez of (1) conspiracy to possess with intent

*

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,

sitting by designation.

1

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to distribute more than five kilograms of cocaine, and (2) aiding and abetting in the

distribution of 500 grams or more of cocaine. He was sentenced to 240 months of

imprisonment on each count, to be served concurrently, and to four years of supervised

release. Vasquez contends on appeal that the district court committed reversible errors

during his trial and sentencing. For the reasons set forth below, we AFFIRM the

judgment of the district court.

I. BACKGROUND

Vasquez was arrested in December 2001 in an undercover drug-bust operation

in Saginaw, Michigan. He had arranged, together with Jose Ove Montes, Jr. and

Vasquez’s brother Juan Delgado Vasquez (Juan), to deliver seven kilograms of cocaine

to Detective Michael Winters, who was then serving as an undercover narcotics officer,

and to Robert Mason, a government informant. Montes, Vasquez, and Juan had traveled

from Texas to Michigan to deliver the cocaine. The record shows that Vasquez actively

participated in negotiations over the price of the drug and in arranging other details of

the delivery. Shortly after the delivery of one kilogram of cocaine to Winters at a gas

station, Vasquez and his confederates were arrested.

Vasquez was released the day following his arrest when he agreed to cooperate

with the government in investigating and prosecuting other drug offenders. But after

making a controlled delivery to another buyer, Vasquez fled from Michigan to Texas and

then to Mexico. Later in December 2001, indictments were issued against Vasquez for

(1) conspiracy to possess with intent to distribute and to distribute five kilograms or

more of cocaine (Count 1), and (2) aiding and abetting the distribution of 500 grams or

more of cocaine (Count 2). An arrest warrant was also issued for him at the time.

Vasquez remained a fugitive for almost five years. He was apprehended in May 2006

in Texas.

The district court appointed attorney Eric Proschek to represent Vasquez at trial

pursuant to the Criminal Justice Act. Vasquez and the government subsequently entered

into a written plea agreement. During the first plea hearing on August 3, 2006, Vasquez

No. 07-1248 United States v. Vasquez Page 3

told the district court that he did not understand English very well and requested an

interpreter. The court continued the hearing so that an interpreter could be provided.

An interpreter was present at the second plea hearing on August 8, 2006, but Vasquez

indicated that he was not ready to plead guilty because he had not reviewed an audio

recording of his phone calls in the drug transaction.

At the hearing, Vasquez also requested a new attorney, telling the court: “Every

time [Proschek and I] meet we don’t understand each other. I don’t feel that he trusts

what I do with the way we talk.” The court denied the request, informing Vasquez that

“you can have an attorney of your own choice if you can afford to hire one. . . . If you

cannot afford a lawyer, I will appoint one for you and the one that has been appointed

by the court is Mr. Proscheck. So those are your options.” Thereafter, the court once

again continued Vasquez’s plea hearing, directed Proschek to use an interpreter when

communicating with Vasquez, and instructed Proschek to inform the court within one

week whether Vasquez wanted to enter a guilty plea or proceed to trial.

Vasquez did not reach a plea agreement with the government. After another

continuance and reassignment to another judge, his trial commenced in October 2006.

During voir dire, the district court addressed the parties regarding correspondence that

the court had received from Vasquez requesting the substitution of counsel. Vasquez

claimed that Proschek had told him “to lie to the judge and lie to the court,” declined to

file motions of his behalf, would not bring evidence to him, showed up without an

interpreter, and refused to provide him with all the discovery obtained from the

government. Proschek denied the accusations and stated that he had attempted to meet

with Vasquez, but that Vasquez had refused to speak to him even when he was

accompanied by an interpreter, that Vasquez and Proschek had no difficulty

communicating in English when Vasquez wished to do so, that Vasquez wanted

Proschek to present arguments and motions unsupported by the law or the evidence, and

that the only discovery he had not discussed with Vasquez was the information he

received during the time that Vasquez had refused to speak with him. After hearing

from Vasquez and Proschek, the district court denied Vasquez’s request.

No. 07-1248 United States v. Vasquez Page 4

A jury subsequently found Vasquez guilty on both counts of the indictment.

Based upon Vasquez’s possession of at least three and a half, but less than five,

kilograms of cocaine, the Presentence Report (PSR) set Vasquez’s base offense level at

30. With a base offense level of 30 and a criminal history category of III, Vasquez’s

initial Sentencing Guidelines range was 121 to 151 months of imprisonment. Vasquez

did not lodge any objections to the PSR. But the government filed five objections,

contending that (1) Vasquez’s base offense level should be 32 because his offense

involved seven kilograms of cocaine; (2) Vasquez should receive a two-level adjustment

for obstruction of justice; (3) Vasquez should receive a two-level adjustment for his

leadership role in the offense; (4) Vasquez’s total offense level should be 36 based upon

objections (1) through (3); and (5) Vasquez’s Guidelines range should be 235 to 293

months of imprisonment based upon a total offense level of 36 and a criminal history

category of III. All of these objections were sustained by the district court, which

sentenced Vasquez to 240 months of imprisonment. This timely appeal followed.

II. ANALYSIS

A. Motion for new counsel

1. Standard of review

We review a district court’s decision regarding an indigent defendant’s motion

for substitute counsel under the abuse-of-discretion standard. United States v.

Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007). An abuse of discretion occurs where

the district court “relies on clearly erroneous findings of fact, improperly applies the law,

or uses an erroneous legal standard.” United States v. Chambers, 441 F.3d 438, 446 (6th

Cir. 2006). A defendant seeking the substitution of counsel must “bring any serious

dissatisfaction with counsel to the attention of the district court.” Benitez v. United

States, 521 F.3d 625, 632 (6th Cir. 2008) (citation and internal quotation marks omitted).

Once a defendant expresses his dissatisfaction with counsel, the district court is obliged

to conduct an inquiry into the defendant’s complaint to determine whether there is good

cause for substitution of counsel. Id. This court in United States v. Mack, 258 F.3d 548

(6th Cir. 2001), set forth the factors to be considered:

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When reviewing a district court’s denial of a motion to withdraw or

substitute counsel, we generally must consider: (1) the timeliness of the

motion, (2) the adequacy of the court’s inquiry into the matter, (3) the

extent of the conflict between the attorney and client and whether it was

so great that it resulted in a total lack of communication preventing an

adequate defense, and (4) the balancing of these factors with the public’s

interest in the prompt and efficient administration of justice.

Id. at 556 (citation omitted).

The Supreme Court has held that “[t]rial judges necessarily require a great deal

of latitude in scheduling trials. . . . Consequently, broad discretion must be granted trial

courts on matters of continuances; only an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay violates the right to the

assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (citation and internal

quotations marks omitted). “[W]hen the granting of the defendant’s request would

almost certainly necessitate a last-minute continuance, the trial judge’s actions are

entitled to extraordinary deference.” United States v. Whitefield, 259 F. App’x 830, 834

(6th Cir. 2008) (citation and internal quotation marks omitted).

2. Analysis

Vasquez argues that the district court abused its discretion by denying his motion

for new appointed counsel. After Vasquez was indicted in December 2001, he fled the

jurisdiction before his trial could be scheduled. When he was apprehended more than

four years later (in May 2006), his trial was set for August 15, 2006. Vasquez requested

a Spanish-speaking interpreter at his first plea hearing on August 3, 2006, causing his

hearing to be continued until August 8, 2006. At the August 8 hearing, one week before

the trial was scheduled to begin, Vasquez first requested another attorney. The court

denied Vasquez’s request, but granted Vasquez additional time to meet with Proschek

and to decide whether to enter a guilty plea. Vasquez’s trial was subsequently

rescheduled for August 29, 2006. After Vasquez decided not to enter a guilty plea, the

court granted his motion to reschedule his trial for a second time. The trial was reset for

October 17, 2006.

No. 07-1248 United States v. Vasquez Page 6

Less than two weeks before his rescheduled trial was due to begin, Vasquez

again requested substitute counsel in correspondence addressed to the district court.

Vasquez reiterated his desire to have new counsel on the morning that his trial was

scheduled to commence. He articulated a variety of complaints against Proschek.

Proschek denied these allegations and offered an alternative account of their relationship,

which the district court accepted. During his trial, Vasquez again asked the court for

substitute counsel. He stated that Proschek had refused to argue any of the defenses or

to lodge necessary objections that Vasquez thought were applicable.

Proschek responded by pointing out that Vasquez wished to raise issues that

lacked merit. He then read the objections written by Vasquez in English into the record.

Finally, during allocution, the interpreter read into the record Vasquez’s three-page,

double-sided, written English statement alleging various deficiencies in Proschek’s

representation of Vasquez.

We will now apply the Mack factors to the foregoing facts. The first Mack

factor—the timeliness of the motion—weighs against Vasquez. His requests for

substitution of counsel, initially made a week prior to the original trial date and again

made two weeks before the rescheduled trial date, were untimely. See Chambers, 441

F.3d at 447 (finding that the request for substitution of counsel made one and a half

months prior to trial was untimely). The application of this factor thus weighs in favor

of the district court’s decision.

We find that the second Mack factor—the adequacy of the district court’s

inquiry—similarly weighs against a finding of reversible error. The record demonstrates

that the district court engaged in multiple lengthy discussions with both Vasquez and

Proschek that span many transcript pages regarding their alleged conflicts. During these

exchanges, Vasquez had ample opportunity to discuss in detail his complaints regarding

Proschek and to respond to Proschek’s representations regarding their relationship.

Similarly, the third Mack factor weighs against the finding of any error because

the extent of the conflict between Vasquez and Proschek was not so great as to “result

in a total lack of communication preventing an adequate defense.” See Mooneyham, 473

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F.3d at 292 (citation and internal quotation marks omitted). Vasquez’s initial complaint

about Proschek was that the latter did not speak Spanish, making communication

difficult. Proschek disputed Vasquez’s account. We note that, although Vasquez

contended that he needed an interpreter, his written statements to the district court

demonstrate that he could ably and effectively communicate in English.

Later, Vasquez offered the following grounds for the substitution of counsel:

(1) Proschek told him to lie, (2) Proschek refused to file motions that Vasquez felt were

necessary to his defense, (3) Proschek refused to bring an interpreter when meeting with

Vasquez, and (4) Proschek did not provide him with all of the discovery materials.

Proschek disputed each of these allegations. Given these conflicting accounts, the

district court did not “rel[y] on clearly erroneous findings of fact, improperly appl[y] the

law, or use[] an erroneous legal standard,” and therefore did not abuse its discretion. See

Chambers, 441 F.3d at 446. Although communication between Vasquez and Proschek

may have been strained, the district court was well within its discretion to determine that

the conflict was not total or irreconcilable.

Furthermore, the record reflects that any lack of communication between

Vasquez and Proschek was likely due to Vasquez’s refusal to cooperate with Proschek.

See Jones v. Tennessee Eastman Co., 805 F.2d 1036, 1036 (6th Cir. 1986) (unpublished)

(holding that the defendant’s refusal to cooperate with counsel did not constitute good

cause for substitution of counsel and that the trial court was within its sound discretion

to deny such a motion); see also Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008)

(holding that the Sixth Amendment is not violated where “a defendant is represented by

a lawyer free of actual conflicts of interest, but with whom the defendant refuses to

cooperate because of dislike or distrust”).

The strained relationship between Vasquez and Proschek was not a “complete

breakdown in communication” that prevented Vasquez from receiving an adequate

defense. Reviewing the record, we find that Proschek vigorously cross-examined

witnesses and read Vasquez’s written objection into the record. See, e.g., United States

v. Gibbs, 190 F.3d 188, 207 (3d Cir. 1999) (finding that vigorous cross-examination by

No. 07-1248 United States v. Vasquez Page 8

counsel constituted an adequate defense despite the defendant’s refusal to cooperate with

counsel). Thus the third factor also weighs in favor of the district court’s decision.

Turning finally to the fourth Mack factor, we find that “the public’s interest in

the prompt and efficient administration of justice” weighs heavily in favor of the district

court’s decision. Vasquez’s trial had already been substantially delayed due to his flight

and previous requests for continuances. Substitution of counsel would “almost certainly

necessitate a last-minute continuance.” See Whitefield, 259 F. App’x at 834. The district

court’s actions are therefore entitled to “extraordinary deference” from us. See id.

Because each of the four relevant factors weighed in favor of Vasquez’s continued

representation by Proschek, we find no abuse of discretion by the district court in

denying Vasquez’s motion for substitution of counsel.

B. Sufficiency of the evidence

1. Standard of review

Vasquez next challenged the sufficiency of the evidence against him. When

deciding if a conviction is supported by sufficient evidence, we determine “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007) (emphasis in

original) (citation and internal quotation marks omitted). This standard applies even if

the evidence is circumstantial. United States v. Kone, 307 F.3d 430, 434 (6th Cir. 2002).

All conflicts in the testimony are resolved in favor of the government, and every

reasonable inference is drawn in its favor. United States v. Bashaw, 982 F.2d 168, 171

(6th Cir. 1992). Because Vasquez failed to move for a judgment of acquittal at either

the close of the government’s case or the close of his case, we will reverse his conviction

only if the record is “devoid of evidence pointing to guilt,” such that a manifest

miscarriage of justice occurred. See United States v. Carnes, 309 F.3d 950, 956 (6th Cir.

2002).

No. 07-1248 United States v. Vasquez Page 9

2. Analysis

An individual who aids and abets another in committing an offense is punishable

to the same extent as the principal offender. 18 U.S.C. § 2(a). In order to establish

aiding and abetting, the government must show (1) an act by the defendant that

contributes to the commission of the offense, and (2) the intent to aid in the commission

of the offense. United States v. Hunt, 521 F.3d 636, 645 (6th Cir. 2008). To establish

a violation of 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable

doubt that the defendant “(1) knowingly and intentionally distribute[d] cocaine, and[]

(2) at the time of such distribution the defendant knew that that the substance was

cocaine.” United States v. Colon, 268 F.3d 367, 376 (6th Cir. 2001).

Vasquez argues that the evidence presented at trial was insufficient to prove

beyond a reasonable doubt that he was a knowing and willing participant in the charged

drug offenses. He argues that “[o]ther than the fact that Mr. Vasquez traveled as a

passenger in the van with Mr. Ove [Montes] to the location where Ove delivered the

cocaine, there was no evidence that Mr. Vasquez’s association with the venture was

‘such that his participation was intended to bring about the crime or make it succeed.’”

Vasquez points to the fact that during the drug delivery to Detective Winters, only

Montes got into Winters’s vehicle to give him the cocaine.

We disagree with Vasquez’s characterization of the evidence. At trial, numerous

witnesses testified as to his involvement in the sale of the cocaine. Mason, the informant

and cooperating witness for the government, testified that he spoke with Vasquez about

payment for the cocaine, and that Vasquez quoted him the price. He further testified that

Montes informed him that he could speak to either Montes or Vasquez about the

transaction.

Detective Winters also testified. He related that he had met with both Montes

and Vasquez to discuss the transaction, that Vasquez quoted him the price for the

cocaine, that Vasquez provided him with a two-ounce sample, that Vasquez told him that

Vasquez’s brother Juan would be transporting the cocaine to Michigan, and that Vasquez

No. 07-1248 United States v. Vasquez Page 10

said that the delivery of the cocaine would be delayed because Juan was having car

trouble.

Based on this evidence and reviewing the record in the light most favorable to

the government, we conclude that sufficient evidence supported Vasquez’s conviction

for aiding and abetting the distribution of 500 grams or more of cocaine. Vasquez

contributed to the distribution of the cocaine by meeting with Winters to discuss the

transaction, quoting the price of the cocaine, keeping in touch with Winters about the

transportation and expected arrival time for the cocaine that was delivered, and being

present during other discussions involving the transaction and the actual exchange of the

cocaine. The substance actually exchanged during the transaction was cocaine that

weighed more than 500 grams. Accordingly, there was more than sufficient evidence

to support Vasquez’s conviction for aiding and abetting the distribution of cocaine.

C. Cautionary instructions regarding Detective Winters’s testimony

1. Standard of review

Because Vasquez failed to object to the jury instructions during trial, we will

review these instructions under the plain-error standard of review. See United States v.

Martin, 520 F.3d 656, 658 (6th Cir. 2008). A defendant can demonstrate plain error by

showing (1) an error, (2) that is plain, and (3) that affects his fundamental rights. Id.

If the defendant satisfies these three conditions, we may exercise our discretion to

correct the error only if the error seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. Id. We will not reverse a conviction if an error

is harmless, meaning that “it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” United States v. Baldwin, 418

F.3d 575, 582 (6th Cir. 2005) (citation and quotation marks omitted).

No. 07-1248 United States v. Vasquez Page 11

2. Analysis

A law-enforcement officer may offer dual testimony as a fact witness and as an

expert witness where a cautionary instruction is provided to the jury. United States v.

Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006). In Lopez-Medina, we concluded that

plain error occurred because no instruction on expert testimony or on the dual role of the

officer was given, and there was no clear demarcation between the officer’s expert

testimony and his factual testimony. Id. at 744. We further found that the defendant’s

substantial rights and the fairness, integrity, and public reputation of the judicial

proceeding were seriously impacted by this error “in conjunction with the other

evidentiary errors we find occurred” in the defendant’s trial. Id. at 745.

In the instant case, Detective Winters testified at trial as both a fact and an expert

witness, but the judge failed to give a cautionary instruction regarding Winters’s dual

role. Vasquez argues that this constitutes reversible error. The government does not

dispute that a cautionary instruction was required and that an error occurred. Instead,

the government argues that the error was harmless because the district judge gave

general instructions regarding the two expert witnesses who testified at trial and that

there were no other evidentiary errors.

We agree with the government’s argument. Although the failure to give a

cautionary instruction was erroneous, the error was a harmless one because Vasquez

failed to establish “an effect on his substantial rights[] and a serious impact to the

fairness, integrity or public reputation of the judicial proceeding.” See Lopez-Medina,

461 F.3d at 745. “An effect on substantial rights is typically established through a

showing of an actual effect on the outcome of the case.” Id. (citation omitted). In

Lopez-Medina, we determined that the defendant made such a showing because the error

in the jury instructions, in conjunction with other evidentiary errors, likely affected the

outcome of the trial. But we have declined to extend the holding in Lopez-Medina to

circumstances in which there were no other evidentiary errors. See Martin, 520 F.3d at

659-60 (holding that the lack of a cautionary instruction for an officer’s dual testimony,

although erroneous, did not “seriously affect[] the fairness, integrity, or public reputation

No. 07-1248 United States v. Vasquez Page 12

of the proceedings” in the absence of other evidentiary errors). We also declined to

extend Lopez-Medina in United States v. Cobbs, 233 F. App’x 524, 541-42 (6th Cir.

2007), where the prosecution effectively distinguished between the officer’s expert and

factual testimony and there were no other evidentiary errors.

No other evidentiary errors were alleged in Vasquez’s trial. Moreover, during

the preliminary instructions, the district judge informed the jurors that “[y]ou must

consider and weigh the testimony of all witnesses who appear before you, and you alone

are to determine whether to believe any witnesses and the extent to which any witness

should be believed.” Detective Winters testified in his capacity as an expert on October

18, 2006. When he stepped down, the government stated in the presence of the jury that

it planned on “recalling him relating to some of the factual circumstances in this case.”

Detective Winters was recalled the following day to testify regarding the facts

of the case, after six other government witnesses had testified. After the close of

testimony, the district judge generally instructed the jury on how to weigh expert

testimony. Furthermore, there was ample evidence to support Vasquez’s convictions.

We therefore conclude that, although an error occurred, Vasquez’s substantial rights

were not affected and his convictions should not be reversed on this basis.

D. Substantive issues in sentencing

We now turn to the three substantive issues raised by Vasquez with respect to his

sentencing. He argues that the district court erred in (1) determining that his offenses

involved seven kilograms of cocaine, (2) increasing his offense level for his leadership

role, and (3) increasing his offense level for obstruction of justice. In the following

sections, we will address each of these issues in turn.

No. 07-1248 United States v. Vasquez Page 13

1. Drug quantity

We will not set aside a district court’s determination of drug quantity attributable

to the defendant for sentencing purposes unless the determination was clearly erroneous.

United States v. Swanberg, 370 F.3d 622, 624-25 (6th Cir. 2004). In this case, the

determination of the quantity of drugs attributable to Vasquez turns upon the proper

application of Sentencing Guidelines § 2D1.1 Application Note 12. Note 12 states in

relevant part:

If the offense involved both a substantive drug offense and an attempt or

conspiracy, . . . the total quantity involved shall be aggregated to

determine the scale of the offense.

In an offense involving an agreement to sell a controlled substance, the

agreed-upon quantity of the controlled substance shall be used to

determine the offense level unless the sale is completed and the amount

delivered more accurately reflects the scale of the offense . . . . If,

however, the defendant establishes that the defendant did not intend to

provide or purchase, or was not reasonably capable of providing or

purchasing, the agreed-upon quantity of the controlled substance, the

court shall exclude from the offense level determination the amount of

controlled substance that the defendant establishes that the defendant did

not intend to provide or purchase or was not reasonably capable of

providing or purchasing.

U.S.S.G. § 2D1.1, cmt. n.12 (2001).

We have previously held that “[t]he government must prove the amount to be

attributed to a defendant by a preponderance of the evidence.” Swanberg, 370 F.3d at

625. Once the government has established the negotiated amount of cocaine to be

transferred, “the defendant[] ha[s] the burden of proving that [he was] not capable of

producing that amount.” United States v. Vasquez, 352 F.3d 1067, 1071 (6th Cir. 2003)

(citation and internal quotation marks omitted). A district court’s finding is clearly

erroneous where, although there is evidence to support it, we are “left with the definite

and firm conviction that a mistake has been committed.” Id. at 1070.

Based solely on the fact of conviction for the distribution of cocaine, Vasquez

was exposed to a maximum sentence of 20 years in prison. See 21 U.S.C.

No. 07-1248 United States v. Vasquez Page 14

§ 841(b)(1)(C). By finding Vasquez responsible for “more than 500 grams but less than

5 kilograms of a mixture or substance containing a detectable amount of cocaine” (Count

1), the jury’s verdict exposed him to an enhanced statutory maximum of 40 years of

imprisonment. See 21 U.S.C. § 841(b)(1)(B)(ii)(II). But the fact that the jury found the

quantity to be less than five kilograms is not dispositive for sentencing purposes because

the district court retains an independent obligation to find sentencing facts by a

preponderance of the evidence. See United States v. Flores, 477 F.3d 431, 439 (6th Cir.

2007).

Vasquez does not dispute that the agreed-upon amount for the December 2001

transaction was seven kilograms of cocaine. He instead contends that he was not

reasonably capable of providing that quantity. Vasquez points to the fact that Montes

required a “down payment” of only $2,000 for a transaction that would have involved

“upwards of $140,000” to suggest that his “actual intent and ability” was to provide no

more than the one kilogram of cocaine actually delivered. He also argues that although

there was a lot of “big talk” and that the final quantity of the cocaine negotiated by

Detective Winters was seven kilograms, the quantity discussed by Montes, Vasquez, and

Winters was “all over the map.” The district court, however, disagreed with Vasquez’s

contention that the actual amount of cocaine at issue was only the one kilogram, and

found instead that “[t]he only impediment that the evidence supported for the delivery

of the seven kilograms was the fact of coordinating product, money and transportation.”

We conclude that the district court did not err in determining that Vasquez’s

offense involved seven kilograms of cocaine. Neither Montes nor Vasquez ever

suggested during the negotiations that they would be unable to provide Mason and

Winters with that amount. During the discussions between Montes, Vasquez, and

Winters, both Montes and Vasquez participated in the offer to sell seven kilograms for

$13,000 per kilogram if Mason and Winters traveled to Texas for a personal pick-up, but

that the price would be $23,500 per kilogram if Montes and Vasquez had to take the time

and risk of driving the cocaine to Detroit. Montes told Winters that he and Vasquez

could not get the full amount of the cocaine until they paid off an outstanding balance

No. 07-1248 United States v. Vasquez Page 15

to their supplier in Texas, and Montes asked Winters to front the money for the exchange

so that he and Vasquez could obtain the cocaine. Finally, Mason testified that he had

witnessed a friend purchase two kilograms from Montes, Vasquez, and Juan on an earlier

occasion, and that he had observed that they had a total of ten kilograms to sell during

the transaction. All of this evidence establishes that Vasquez was reasonably capable

of providing seven kilograms of cocaine to Winters.

2. Leadership role

The standard that governs the review of a sentencing enhancement for a

leadership role under U.S.S.G. § 3B1.1 is not altogether clear. A district court’s legal

conclusions are generally reviewed de novo, and its factual findings will not be set aside

unless clearly erroneous. United States v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007).

In Buford v. United States, 532 U.S. 59 (2001), however, the Supreme Court held that

a district court’s application of the Guidelines should be reviewed deferentially rather

than de novo “in light of the fact-bound nature of the legal decision.” Id. at 66. We need

not resolve this uncertainty in the present case because we conclude that the leadership

adjustment was appropriate under either standard of review.

A district court may increase a defendant’s offense level by two levels if the

defendant was “an organizer, leader, manager, or supervisor in any criminal activity of

one or more participants.” U.S.S.G. § 3B1.1(c), cmt. n.2. More than one person

involved in an offense may be a leader or organizer. U.S.S.G. § 3B1.1, cmt. n.4. A

defendant qualifies for a leadership enhancement if the district court concludes that he

has exercised decisionmaking authority, recruited accomplices, received a larger share

of the profits, was instrumental in the planning phase of the criminal venture, or

exercised control or authority over at least one accomplice. United States v. Lalonde,

509 F.3d 750, 765-66 (6th Cir. 2007).

Vasquez argues that Montes was the sole leader involved in the offense. At trial,

however, Detective Winters testified that he had negotiated the price of the cocaine with

Vasquez, that Vasquez had informed Winters that the cocaine would be of higher than

average quality, and that Vasquez had offered to have his brother Juan transport the

No. 07-1248 United States v. Vasquez Page 16

cocaine to Michigan for Winters. Mason added that he viewed Montes and Vasquez as

equals. Juan Trujillo, another witness for the government, testified that he had bought

cocaine from someone nicknamed “Junior,” that “Junior” obtained the cocaine from

Vasquez, and that “Junior” paid Vasquez for the cocaine. Based on Vasquez’s

representations to Winters and Mason, his knowledge and involvement in the details of

the transaction, his position as a supplier to others, and his authority over his brother

Juan, we conclude that the district court did not err in determining that Vasquez was a

leader in this offense.

3. Obstruction of justice

“In reviewing a district court’s application of obstruction of justice enhancements

under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.1 (1998), we employ a

three-step process of review.” United States v. Roberts, 243 F.3d 235, 237 (6th Cir.

2001) (citation omitted). These steps are as follows:

First, this Court applies a clearly erroneous standard to the district court’s

findings of fact with respect to the enhancement. Second, a district

court’s determination of whether facts constitute obstruction of justice is

a mixed question of law and fact that requires de novo review. Third,

once there has been a finding that the defendant obstructed justice,

application of the enhancement is mandatory, so review of the

enhancement at that point is de novo.

Id. (citations omitted). In light of Buford, 532 U.S. at 66, we will also “give due

deference to the district court’s application of the guideline to the facts.” See United

States v. Cline, 362 F.3d 343, 350 (6th Cir. 2004).

A two-level enhancement for obstruction of justice is appropriate where “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or

sentencing of the instant offense of conviction . . . .” U.S.S.G. § 3C1.1. Application

Note 4 of § 3C1.1 contains a “non-exhaustive list” of examples of the types of conduct

to which the obstruction-of-justice enhancement applies, and instructs that the

enhancement is appropriate where the defendant has engaged in “escaping or attempting

No. 07-1248 United States v. Vasquez Page 17

to escape from custody before trial or sentencing . . . .” U.S.S.G. § 3C1.1, cmt. n.4(e).

This section of the Guidelines also provides examples of conduct ordinarily not covered,

which includes “avoiding or fleeing from arrest.” The district court found that a two-

level enhancement was appropriate.

In this case, Vasquez absconded before he was indicted but after he agreed to

cooperate in order to obtain his release. Vasquez argues on appeal that his conduct was

more akin to “avoiding or fleeing from arrest” rather than “escaping or attempting to

escape from custody.” He particularly points out that his flight “did not involve any

deception, false names, use of an alias, or any other fraudulent misrepresentation to

avoid arrest—here he simply absented himself from the jurisdiction to avoid arrest.” We

are not persuaded. In a case virtually identical to the instant case, this court concluded

that a defendant obstructed justice where he delayed his prosecution by agreeing to

cooperate in order to obtain his release and then fleeing the jurisdiction upon his release.

United States v. Lopez, 102 F. App’x 985, 989 (6th Cir. 2004). Exactly as in Lopez,

Vasquez obtained his release after his initial arrest by agreeing to cooperate with the

government. He then fled the jurisdiction. Vasquez never disputed that he fled in order

to evade prosecution for a federal offense; nor did he proffer any other reason for his

flight. We therefore conclude that the district court did not err in increasing Vasquez’s

offense level for obstruction of justice.

E. Procedural reasonableness of sentencing

Vasquez’s final challenge is to the reasonableness of his sentence. We review

sentences imposed by the district court for reasonableness. United States v. Vowell, 516

F.3d 503, 509 (6th Cir. 2008). Reasonableness review has both a substantive and a

procedural component. Gall v. United States, 128 S. Ct. 586, 597 (2007); Vowell, 516

F.3d at 509. When reviewing a district court’s sentencing determination, we “first

ensure that the district court committed no significant procedural error, such as failing

to calculate (or improperly calculating) the Guidelines range . . . .” Gall, 128 S. Ct. at

597. “Assuming that the district court’s sentencing decision is procedurally sound, the

No. 07-1248 United States v. Vasquez Page 18

appellate court should then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Id.

Vasquez argues that his sentence was procedurally unreasonable. He does not

argue, however, that the district court inadequately explained the sentence or considered

impermissible factors under 18 U.S.C. § 3553(a). Instead, Vasquez contends that the

district court erred in calculating his applicable Guidelines range. His argument is

primarily based on the sentencing enhancements imposed by the district court because

of its determination of the drug quantity, Vasquez’s leadership role, and his obstruction

of justice. Because we find no merit in Vasquez’s assertions regarding his sentencing

enhancements and conclude that the district court did not err, we also reject Vasquez’s

argument that his sentence was procedurally unreasonable.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.