United States v. Pedro Pablo Mesa

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

------------------------------------------- U.S. COURT OF APPEALS

Nos. 99-12265 and 99-12672 ELEVENTH CIRCUIT

APR 11, 2001

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THOMAS K. KAHN

CLERK

D. C. Docket Nos. 92-08053-CR-JCP

and 91-06081-CR-JCP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO PABLO MESA,

a.k.a. Tito,

a.k.a. Pablo Mesa,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 11, 2001)

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI*, Judge.

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* Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by

designation.

EDMONDSON, Circuit Judge.

This appeal is about re-sentencings following remand from the appellate

court.

In addition to reviewing the district court’s determination that Defendant-

Appellant was an organizer/leader in the offense conduct under § 3B1.1(a) of the

Federal Sentencing Guidelines, this case presents two other questions. First, must

the district court consider an issue at re-sentencing on remand that is not within the

scope of the mandate and which Defendant failed to raise in his prior sentencing

and appeal therefrom? Second, is a defendant eligible at re-sentencing for a

downward adjustment to his offense level under the Sentencing Guidelines, for his

rehabilitation and good behavior while incarcerated?

We conclude that the district court did not err in finding Defendant held an

organizer/leader role in the offense. We also answer both of the other questions

“No.” So we affirm Defendant’s sentence.

In 1992, Appellant-Defendant, Pedro Pablo Mesa (“Defendant”) pled guilty

to violations of 21 U.S.C. §§ 846 and 841(a)(1) in the United States District Court

for the Southern District of Florida. He received a four-level upward adjustment in

his offense category under § 3B1.1(a) of the Federal Sentencing Guidelines for his

managerial role in the drug trafficking conspiracy. He also received a two-level

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downward adjustment for acceptance of responsibility. The result was a total

offense level of 36 and a sentence of 188 months.

Before his sentencing, a Pre-Sentence Investigative Report (“PSI”) was

prepared, concluding that Defendant was the organizer/leader of the offense

charged in this case. Based on the PSI, the district court determined that Defendant

was an organizer/leader under the Guidelines. Defendant’s attorney failed to file a

timely appeal of the sentence.

Defendant, pursuant to 28 U.S.C. § 2255, filed a Motion to Vacate, Set

Aside or Correct Judgment and Sentence. The district court adopted the

magistrate’s Report and Recommendation and granted Defendant’s motion on the

basis of “ineffective assistance of counsel,” because Defendant’s attorney did not

file a timely notice of appeal. The sentence was vacated to allow the district court

to re-sentence Defendant so he could file a timely notice of appeal.

In April 1997, Defendant appeared before the district court for his first re-

sentencing (the “1997 Sentencing”). At issue at the hearing was whether

Defendant was an organizer/leader in the offenses charged. After hearing

testimony by a government witness and considering the amended PSI, the court

imposed the same sentence as at the 1992 Sentencing. Despite requests from the

government and Defendant, the court made no specific findings of fact on

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Defendant’s role in the offense. Defendant objected to the court’s ultimate

findings that Defendant was an organizer/leader.

On appeal, we vacated the organizer/leader enhancement and remanded to

the district court to make more detailed, specific findings of fact on the question of

whether Defendant was an organizer/leader in the offense. We concluded that the

record amply supported a buyer/seller relationship between Defendant and Ricky

Hill (“Hill”)– the government witness – but that the record was “exceedingly

sparse with respect to any control, influence, or leadership exercised by Mesa over

Hill or Hill’s associates.” United States v. Mesa, No. 98-4513, slip op. at 4 (11th

Cir. Feb. 25, 1999) (“Mesa I”). We “VACATE[D] the sentence enhancement and

REMAND[ED] for further factual findings.”1 Id. at 5.

In the light of our mandate, Defendant , on 25 June 1999, was re-sentenced

again. (the “1999 Sentencing”). In addition to arguing that Defendant was no

organizer/leader under the guidelines, defense counsel also requested the district

court to award a one-level downward adjustment pursuant to §3E1.1(b)(2) for

“timely notifying authorities of his intention to enter a plea of guilty...” See

generally Federal Sentencing Guidelines Manual §3E1.1(b)(2). Furthermore,

1

In remanding the case we noted that the government argued that Defendant could have been

an organizer/leader for purposes of the guidelines due to his control over others who worked

directly for him, but that the district court had given no indication that it relied on this evidence

to conclude that Defendant was an organizer/leader in the offenses charged. Mesa 1 at 5.

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defense counsel requested the district court to grant a downward adjustment for

Defendant’s good conduct during more than eight years of incarceration. The

district court denied both requests.

The district judge made a series of specific findings of fact from which he

determined that Defendant was a leader/organizer under §3B1.1(a) of the

Sentencing Guidelines. Defendant objected and filed a timely notice of appeal. It

is this appeal which is now under review. In this appeal, he advances these

contentions: 1) the district court ignored the law of the case in finding that

Defendant organized or led Hill and other members of Hill’s organization; 2) even

if the district court had the authority to find Defendant was an organizer/leader in

the offense, his findings of fact to support this conclusion were clearly erroneous;

3) the district court improperly failed to award Defendant an additional -level

reduction in his sentencing under § 3E1.1(b)(2); and 4) the district court erred in

denying a one-level downward departure for post-sentence rehabilitation: the

district court said the government did not have proper notice that the defense

would request this adjustment.

Leadership Role

5

Section 3B1.1(a) says that “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive,” his offense level should be increased by four levels. U.S.S.G. §

3B1.1(a). We have determined that section 3B1.1(a) requires both a leadership

role and an extensive operation. See United States v. Yates, 990 F.2d 1179, 1181-

82 (11th Cir. 1993). We review the district court’s determination of a convicted

defendant’s role in the offense as a question of fact subject to a clearly erroneous

standard of review. But, the application of the Guidelines to the facts is a question

of law that we review de novo. See id. at 1182.

Defendant argues that the district court’s findings of fact are not supported

by record evidence and are, therefore, clearly erroneous.2 The district court found

the following facts based on the Revised PSI as well as evidence presented at the

plea hearing and each of the two resentencings; 1) When Defendant fell behind on

paying Hill’s marijuana supplier, James Wooten (“Wooten”), Hill brought Wooten

2

Defendant’s first argument – that our remand to the district court established law of the case

that only a buyer/seller relationship existed between Defendant and Hill – is without merit.

Although we did say that “[t]he record amply supports a buyer/seller relationship,” we did not

preclude the district court from determining, upon further consideration, that Defendant was, in

fact, in a leadership role. Although we wrote that the evidence in the record was exceedingly

sparse for Defendant’s control over Hill or Hill’s associates, we did not make a decision on a

question of law and did not establish the law of the case to be that only a buyer/seller

relationship could exist between the two.

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directly to Defendant to explain the lack of payment; 2) Defendant was an

“officer” and leader of a young woman who stayed in Defendant’s rented house in

Kendall and retrieved cocaine for Defendant to show to Hill; 3) Defendant

organized and led at least one other person to unload marijuana from Hill’s

vehicles and re-load them with cocaine; 4) Defendant organized and led a husband

and wife who delivered cocaine to Hill in Tennessee; 5) Defendant organized at

least one person to act as an interpreter during drug deals, and 6) Defendant

organized and led Hill and Wooten in that he exercised decision making authority

over them, he claimed, as the source of the cocaine, a greater share of the profits,

he conducted his drug distribution business with them for more than four years

throughout three states and directed others working with Hill on how marijuana

deliveries and cocaine pickups were to be completed. The district court determined

that, along with other facts, this record established, by a preponderance of the

evidence, that Defendant was one of at least two organizers and leaders of the

offenses charged.

The district court’s findings of fact are not clearly erroneous. Evidence

presented in both the PSI and in testimony by Hill supports a finding that

Defendant controlled and directed the acts of several people involved in the drug

conspiracy. The district court based its conclusion that Defendant was an

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organizer/leader on two theories: the court found (1) that Defendant occupied a

leadership role in Hill’s organization and (2) that Defendant controlled several

other people in Florida who were part of the trafficking conspiracy taking drugs to

Georgia. If Defendant occupied a leadership role over either one of the two sets of

people, he was correctly subject to the four-level upward adjustment.

When we last saw this case, we said that the record evidence indicating that

Defendant was an organizer/leader over Hill and his organization was “sparse.”

Mesa I at 5. After we remanded the case for further findings of fact, no additional

evidence was presented to the district court. The district court, however, did make

specific findings of fact about Defendant’s role in Hill’s organization. Upon

review of the same evidence that we earlier characterized as “sparse,” we are

unsure that the district court did not clearly err in finding Defendant had a

controlling position in Hill’s organization.

We need not decide that issue, however, because we conclude that the

district court properly determined that Defendant controlled a sufficient number of

other people to qualify as an organizer/leader in the offense. The district court

found that Defendant was the organizer and leader of a young woman who stayed

at his house and retrieved cocaine for him, of a husband and wife team who

delivered cocaine to Hill, of at least one interpreter who would aid in drug

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transactions, and of at least one person who would load and unload Hill’s vehicle

of drugs during transactions. Each of these findings is supported by evidence

presented at the sentencing hearing. So we cannot conclude that the district court

clearly erred.

Defendant makes two arguments about the sentencing adjustment. First, he

attacks Hill’s testimony as unreliable and insufficiently precise; and he says,

therefore, that the testimony is, under the circumstances,3 “highly suspect.” This

argument attacks the credibility of the evidence presented. But the district court,

seemingly, found the evidence credible. See United States v. Parrado, 911 F.2d

1567, 1571 (11th Cir. 1990) (stating that the determinations of witness credibility

are made exclusively by the finder of fact.) We therefore determine Defendant’s

argument to be without merit.

Defendant next argues that his activities and relationships described to the

district judge did not, as a matter of law, rise to an organizer/leader role. He relies

heavily on United States v. Alred, 144 F.3d 1405 (11th Cir. 1998), to establish that

he was not an organizer/leader in this offense. In Alred, we said that evidence of

3

Hill was testifying as a cooperating witness and hoped for more lenient treatment based on

his cooperation.

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the defendant’s extensive buyer/seller and fronting4 relationships was insufficient

to support an enhancement as an organizer/leader. We noted that evidence of

fronting, without more, was insufficient to satisfy the management requirement and

that negotiating deliveries is merely incidental to a buyer/seller relationship. Id. at

1422. There was also evidence in Alred that the defendant was caught traveling

with another person while in possession of a large sum of cash, and that he worked

with another person to unload marijuana from a truck. Id. at 1421. In short, no

evidence existed of “authority in the organization that perpetrates the criminal

conduct, the exertion of control, or leadership.” Id. at 1422.

In contrast, evidence in this case was presented that defendant directed the

activities of several people, including at least three people who stored and

delivered cocaine for him, other people who unloaded and prepacked vehicles, and

at least one interpreter who translated during drug transactions. The cumulative

effect of directing these activities in furtherance of the offense is sufficient for a

sentencing court to find that the Defendant acted as an organizer/leader for the

purposes of U.S.S.G. § 3B1.1(a)

4

Fronting is when a dealer gives other drugs on credit and is reimbursed once they sell the

drugs to others.

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One-Level Adjustment for Timely Plea

Defendant argues that, at the 1999 Re-sentencing, the district court should

have applied a one-level downward adjustment to his sentencing level pursuant to

U.S.S.G § 3E1.1(b)(1) (allowing adjustment for a timely plea). The district court

declined to order the adjustment; the judge said the PSI prepared for the 1999 Re-

sentencing recommended only the two-level reduction for acceptance of

responsibility.

At one time, Defendant might have been eligible for the one-level

adjustment under Section 3E1.1(b)(1). But we conclude that the district court

committed no reversible error given the surrounding circumstances: 1) the

argument for the adjustment was unrelated to the reason for our remand; 2) it was

brought to the district court’s attention for the first time at the 1999 Re-sentencing;

3) it could have been, but was not, introduced to the district court at the 1997 Re-

sentencing;5 4) it could have been raised in Mesa I, although it would have been

subject to a plain error standard of review in Mesa I.

If the appeals court issues a specific mandate, the district court must obey:

5

At oral argument Defendant argued that an objection was not made at the 1997 Re-

sentencing because the judge had limited the scope of the re-sentencing. Defendant did,

however, file a six-page objection to the PSI for the 1997 Re-sentencing; and he did not object to

the PSI’s failure to include the one-level reduction now requested.

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the mandate is not subject to interpretation. See Litman v. Massachussets Mutual

Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc). In Litman we

pointed out that “[p]ost mandate maneuvering in the district courts would

undermine the authority of appellate courts and create a greate deal of uncertainty

in the judicial process... [and] eliminate any hope of finality.” Id. at 1511-12. The

district court must implement both the letter and spirit of the mandate, taking into

consideration our opinion and the circumstances it embraces. See Pelletier v.

Zweifel, 987 F.2d 716, 718 (11th Cir. 1993) (citing Piambino v. Bailey, 757 F.2d

1112, 1119 (11th Cir. 1985)).

In this case, we remanded saying, “we VACATE the sentence enhancement

and REMAND for further factual findings.” Mesa I, at 5 (emphasis added). Also,

the order of our court, issued as the mandate, said, “it is now ordered and adjudged

by this Court that the sentence enhancements imposed by the said District Court in

these causes be and the same are hereby VACATED and that these matters be

REMANDED to the said District Court for further proceedings in accordance with

the opinion of this Court.” United States v. Mesa, Docket # 98-4513, Judgment

Feb. 25, 1999 (issued as Mandate Mar. 31, 1999). Our mandate to the district court

did not vacate Defendant’s sentence in its entirety and was not related to the

argument Defendant later raised with the district court for a one-level reduction for

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a timely plea.

Under these circumstances, the district court was not required to consider an

argument which Defendant should have introduced at the 1997 Re-sentencing and,

moreover, should have raised in his first appeal in Mesa I. Requiring the district

court to consider the argument at the second re-sentencing following our remand

would give defendants incentive to introduce sentencing objections in a piecemeal

fashion and would allow them (by their waiting to advance the argument anew at

re-sentencing) to avoid the difficult burden of “plain error” review in their first

appeal. See United States v. Cover, 199 F.3d 1270, 1277 (11th Cir. 2000)

(sentencing decision not challenged at the district court is subject to plain error

review on appeal).6 No reversible error is presented by the district court’s

declining to grant Defendant’s late argument for a one-level reduction under

Section 3E1.1(b)(2).

Post-Sentencing Rehabilitation

Defendant finally argues that he is entitled to some downward adjustment

6

Had Defendant raised this issue in his first appeal, he might have been entitled to some

measure of relief on “plain error” review. By failing to appeal the question at that time, he,

however, abandoned this argument. And the district court, on remand, was not required to

consider it when our mandate did not require a de novo resentencing.

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for his rehabilitative efforts and good behavior during his years of incarceration.

Although we wonder whether a defendant facing re-sentencing should be eligible

for a downward adjustment for good behavior in prison, we need not address the

question in this case. United States v. Pickering, 178 F.3d 1168 (11th Cir. 1999),

clearly prohibits a downward adjustment to Defendant’s offense level under the

Guidelines.

In Pickering, we held that it was an abuse of discretion for the district court

to adjust a defendant’s offense level, as opposed to his criminal history category,

downward for extraordinary rehabilitative acts while awaiting sentencing. Here,

Defendant correctly points out that Pickering involved a defendant who had not yet

been sentenced at all, while this case deals with a re-sentencing. We view,

however, this distinction to be one without a difference.

In Pickering, we analyzed the organizing principles of the Sentencing

Guidelines and concluded that a prisoner’s efforts at rehabilitation “reflect more

strongly on the offender’s rehabilitative potential and likelihood of recidivism.” Id.

at 1175 (quoting United States v. Mogel, 956 F.2d 1555, 1560 (11th Cir. 1992)).

We concluded, therefore, that any “departure for post-offense rehabilitation must

occur along that (the criminal history) axis.” Id. So we specifically rejected

Offense Level adjustment for post-offense rehabilitation.

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We recognize Defendant’s argument that Pickering was a case where the

offender had not yet been sentenced at all. But Pickering’s reasoning is persuasive

to us. The concepts underlying Pickering seem equally applicable to offender’s

facing re-sentencing. We see no good reason for limiting Pickering’s teaching in

the way Defendant suggests. Because Defendant is already at the lowest possible

criminal history category under the Guidelines (category I), he is eligible for no

adjustment for post-offense rehabilitation.

Conclusion

We conclude that the trial court was not clearly erroneous in its findings of

fact and that these facts support the determination that Defendant was an

organizer/leader in the offenses charged. We also conclude that this court’s

mandate to the district court for the 1999 Re-Sentencing was limited to

determinations of fact for the organizer/leader sentencing level adjustment; thus,

the district court did not err in declining to address Defendant’s claim that he is

entitled to a one-level downward adjustment for the timeliness of his plea. In

addition, we extend the Pickering rule and conclude that Pickering does not allow a

downward adjustment to the offense level for a defendant’s post-offense

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rehabilitation. Although Pickering might allow for a downward departure in the

criminal history level, Defendant’s criminal history category is already at the

lowest possible level. He is, therefore, eligible for no decrease due to his good

behavior or efforts at rehabilitation.

AFFIRMED.

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