Petition for Writ of Certiorari — Alfredo Beltran Leyva, Petitioner v. United States

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 1 of 26

�niten �±ates Qlourt of J\ppeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2018

Decided February 26, 20 I 9

No. 17-3027

UNITED STATES OF AMERICA,

APPELLEE

V.

ALFREDO BELTRAN LEYVA, ALSO KNOWN AS M0CH0MO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. I : l 2-cr-00 I 84-1)

Stephen C. Leckar, appointed by the court, 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.

App 1a

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 2 of 26

2

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

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 OTO) 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

App 1b

USCA Case #17-3027

Document #177 4859

Filed: 02/26/2019

Page 3 of 26

3

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 Culiacan,

Sinaloa in Mexico, its hub for cocaine operations. He was also

responsible for overseeing the production of methamphetamine

in laboratories around the Culiacan 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)(l)(A),

960(b)(l)(B)(ii), 960(b)(l)(G), 960(b)(l)(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

App 1c

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 4 of 26

4

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.

App 1d

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 5 of 26

5

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 of38, 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 § 3B I.I(a), and two-level

enhancements each for possession of a dangerous weapon,

under USSG § 2D I.I(b)(I); use of violence, under

USSG § 2D 1.1(b)(2); bribing a law enforcement official, under

USSG § 2D l.l (b)( l l ); and being a leader or organizer directly

involved in the importation of a controlled substance, under

USSG § 2D l. l(b )(I5)(C) (2015). In addition, the PO

recommended a three-level reduction for acceptance of

responsibility under USSG § 3El .l (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 II, [he] would not have

pied guilty." The district court denied the motion on the

grounds that it had substantially complied with Rule 11 and that

App 1e

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 6 of 26

6

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: (I) Jesus Zambada Garcia, a member of the

Sinaloa Cartel; (2) Sergio Villarreal Barragan, a member of the

OTO responsible for security; (3) Harold Mauricio Poveda

Ortega, who served as a broker between Colombian cocaine

suppliers and the OTO.

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

The PO had based the PSR on the 2015 Guidelines, but by the time

Leyva was sentenced, in April 2017, the 2016 Guidelines were in

effect. For the purposes of this case, there is no material difference

between the 2015 and 2016 versions.

1

App 1f

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 7 of 26

7

-producing a Guidelines "range" of life imprisonment. After

considering the factors in I 8 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.

I 993). 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 I I 24, 1128 (D.C.

Cir. 2007) (citations omitted) (cleaned up).

In determining whether the district court abused its

discretion, this court considers three factors: ( l ) "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 not conduct the plea colloquy in

"substantial compliance" with Rule 11, then the defendant

should "almost always" be permitted to withdraw his plea.

App 1g

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 8 of 26

8

Ford, 993 F.2d at 251. At the same time, "a defendant who

fails to show some error under Rule 11 has to shoulder an

extremely heavy burden if he is ultimately to prevail." Cray,

47 F.3d at 1208.

The Government does not argue that the withdrawal of

Leyva's plea would have prejudiced it at trial. Accordingly,

our review focuses upon the first and third factors.

A. Compliance with Rule 11

With regard to the third and most important factor, Leyva

contends the district court violated Rule 11 because it failed to

inform him (a) of his right to counsel, including his right to

appointed counsel, if necessary (Rule l l (b)(l)(D)); (b) that in

determining a sentence, the court must consider the applicable

Sentencing Guidelines range and the factors in 18 U.S.C.

§ 3553(a) (Rule 1 l (b)(l)(M)); and (c) that he would be subject

to "any applicable forfeiture" (Rule 11(b)(I )(J)).

Rule 11(b)(I) requires the district court to "inform the

defendant of, and ensure the defendant understands " all the

information listed in that subsection. Rule l l (h), however,

excuses a variance from the requirements ofthe rule if the error

is harmless. The Congress added this provision in order to "end

the practice ... of reversing automatically for any Rule l l

error." United States v. Vonn, 535 U.S. 55, 66 (2002).

Accordingly, this court has made clear "we will not reverse a

trial court in its application ofRule l l except when it has failed

to address the Rule's core inquiries." Ford, 993 F.2d at 254.

We have also held a district court's variance from the

requirements of Rule 11 is harmless if"the record reveals either

that the defendant had actual notice of the information that the

district judge failed to convey or that the information would not

App 1h

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 9 of 26

9

have been important to the defendant." United States v.

Dewalt, 92 F.3d 1209, 1213-14 (D.C. Cir. 1996).

We hold that Leyva's plea proceeding substantially

complied with the requirements of Rule 11 and that any

deviations were harmless. First, as to his right to counsel,

Leyva had actual knowledge of the relevant information. He

was already represented by counsel at the time of the plea

hearing; the district court confirmed he was satisfied with that

representation. For the same reason, information about his

right to appointed counsel would not have been important to

Leyva.

Second, we hold the district court communicated the

essential information required by Rule I I (b)( I )(M): "in

determining a sentence, the court's obligation to calculate the

applicable sentencing-guideline range and to consider that

range, possible departures under the Sentencing Guidelines,

and other sentencing factors under 18 U.S.C. § 3553(a)."

Although the court did not explicitly reference the Guidelines,

it did inform Leyva of the statutory maximum and mandatory

minimum sentences, and that the court would not be able to

determine his exact sentence "until after a presentence report

has been completed." The district court also explicitly

instructed the defense attorneys - during the plea hearing, in

Leyva's presence - to focus on the § 3553 factors in their

sentencing memoranda.

These statements addressed the "core considerations,"

Ford, 993 F.2d at 253, of Rule 11(b), as identified by this court

in United States v. Horne, 987 F.2d 833 (D.C. Cir. 1993).

There we said the trial court "uses the Rule 11 colloquy to

dispel any misconceptions that the defendant may have about

his likely sentence and to ensure that his plea is 'not the result

... of promises apart from a plea agreement.'" Id. at 838

App 1i

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 10 of 26

10

(quoting what is now Fed. R. Crim. P. I l (b)(2)) (alteration in

original). It is "neither unfair nor unjust," therefore, to hold the

defendant to his plea when, as here, "he was warned by the

court of his maximum exposure and of the impossibility of

determining the applicable sentencing range prior to the

preparation of the presentence report." Id. at 837.

Finally, Leyva had already been informed of the

possibility of forfeiture through the indictment, which the

district court confirmed he had read, reviewed with counsel including in Spanish - and understood. Our decision in Furd

is not to the contrary. In that case we held the district court had

failed to ensure the defendant understood "the nature of the

charge to which the plea is offered," as required by Rule I I,

even though the court had asked whether the defendant "had

seen, read, discussed with his attorney, and understood the

indictment." 993 F.2d at 253 (applying an earlier version of

what is now Rule 11(b)( I )(G)). In other words, that a

defendant has read the indictment does not establish that he

understood "the nature of the charge." Effective notice of the

nature of the charge means "notice sufficient to give the

defendant 'an understanding of the law in relation to the facts'

of his case," so he can assess the Government's ability to prove

his conduct falls within the charge. Dewalt, 92 F.3d at 1211

(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)).

So defined, the nature of the charge may not be apparent on the

face of the indictment. In Dewalt, for instance, we held the

district court should have explained the mens rea element of

the charge, viz., that the defendant "knowingly received and

possessed a firearm." 92 F.3d at 1214.

In contrast, the defendant's objection in the present case

concerns the district court's obligation to inform him, pursuant

to Rule l l (b)( l )(J), that he will be subject to "any applicable

forfeiture." Before the court determines the amount of the

App 1 j

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 11 of 26

II

forfeiture, there is nothing to be said except that the defendant

may be subject to a forfeiture, and the indictment did just that.

Indeed, the terms of the indictment were "crystal clear," United

States v. Lee, 888 F.3d 503, 508 (D.C. Cir. 2018):

The United States hereby gives notice to the defendant that

upon conviction of the Title 21 offense alleged in Count

One of this Indictment, the government will seek forfeiture

in accordance with Title 21, United States Code, Sections

853 and 970, of all property constituting or derived from

any proceeds the defendant obtained directly or indirectly

as a result of the alleged Title 21 violation, and all property

used or intended to be used in any manner or part to

commit and to facilitate the commission of such offense.

For these reasons, we conclude Leyva had actual notice of the

possibility of forfeiture.

Although we find the district court's plea colloquy with

Leyva was in substantial compliance with Rule 11, we do not

approve of the district court's omissions. Our ruling today

"should not be read as an invitation to trial judges to take a

more casual approach to Rule 11 proceedings." Lee, 888 F.3d

at 509 (quoting Fed. R. Crim. P. l l(h), Advisory Committee

Notes to 1983 Amendments). To the contrary, we emphasize

that it is best practice diligently to communicate all the

information listed in Rule l l(b)(l).

B. Viable Claim of Innocence

That the defendant did not assert a viable claim of

innocence lends further support to the district court's decision

not to allow him to withdraw his guilty plea. Our cases have

not always been precise in describing this factor. We have

sometimes "characterized [it] as requiring a 'legally cognizable

App 1k

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 12 of 26

12

defense' rather than as requiring a viable claim of innocence."

Curry, 494 F.3d at 1129.

The distinction makes no difference in this case, however.

Leyva has admitted "the essential elements of the charge: that

he was part of the conspiracy to distribute controlled

substances." He makes no claim of innocence, let alone a

viable one.

The only "defense" Leyva did assert before the district

court was that "as a legal matter he believed that the Court

lacked jurisdiction over him" because, according to Leyva,

Mexico authorized his extradition solely with respect to

conduct that occurred after January 2008. But even our cases

calling only for a "legally cognizable defense" have required

that the defendant have "effectively denied his culpability,"

United States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975),

which Leyva has not done. In any event, Leyva had raised this

objection, and the district court had rejected it, before Leyva

entered his plea of guilty. Consequently, he had nothing to gain

in this regard by withdrawing his plea and proceeding to trial.

The district court therefore did not abuse its discretion in

denying the defendant's motion to withdraw his guilty plea.

See Curry, 494 F.3d at I 129 (finding no abuse of discretion

where the defendant's defense "had a very limited chance of

success").

III. Sentencing Issues

Leyva challenges two aspects of his sentence. First, he

objects to the 12 points in sentencing enhancements the district

court applied. Second, he contends that the district court erred

in denying him a three-point adjustment for acceptance of

responsibility.

App 1l

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 13 of 26

13

Leyva asserts various errors with respect to each

enhancement; the one argument common to all five is that the

evidence establishing the relevant conduct was unreliable. "It

is the Government's burden to demonstrate by a fair

preponderance of the evidence that an enhancement is

warranted." United States v. Bapack, 129 F.3d 1320, 1324

(D.C. Cir. 1997) (cleaned up). In resolving a factual dispute

related to sentencing, the Guidelines permit a district court to

"consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of

reliability to support its probable accuracy." USSG § 6A I.3(a).

Accordingly, Leyva's argument is that the evidence relied upon

by the district court lacked "sufficient indicia of reliability."

An appellate court generally "reviews the factual findings

supporting a sentence under the Sentencing Guidelines for

clear error." United States v. Stover, 329 F.3d 859, 871 (D.C.

Cir. 2003). This court has not specified the standard of review,

however, for a district court's determination that evidence is

"reliable" under USSG § 6A I .3(a). See In re Sealed Case, 246

F.3d 696, 700 (D.C. Cir. 200 I) (deeming the evidence reliable

under de nova review without deciding the applicable

standard).

Leyva argues the reliability of evidence is a "legal issue

reviewable de novo." We disagree. Far from being a pure issue

of law, a district court's determination of reliability during a

sentencing hearing is akin to an evidentiary ruling at trial,

which we review for abuse of discretion, see United States v.

Mathis, 216 F.3d 18, 27-28 (D.C. Cir. 2000); see also In re

Sealed Case, 350 F.3d I 13, 124 (D.C. Cir. 2003) (reviewing

evidentiary rulings at sentencing for abuse of discretion). A

district court's decision to rely upon hearsay is necessarily a

judgment about the credibility of both the witness and the

App 1 m

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 14 of 26

14

declarant. See, e.g., United States v. Agyemang, 876 F.2d 1264,

1272 (7th Cir. 1989) (finding no abuse of discretion in relying

upon hearsay evidence of an identification where the defendant

cross-examined the witness and was able to point out

weaknesses in the declarant's identification). We give

"especially strong deference to credibility determinations

because the district court has a unique opportunity to evaluate

the credibility of witnesses and to weigh the evidence." United

States v. Jones, 744 F.3d 1362, 1367 (D.C. Cir. 2014). We

therefore join the majority of our sister circuits in holding that

abuse of discretion is the appropriate standard for reviewing a

district court's evaluation of the reliability of hearsay evidence

at sentencing. See United States v. Rodriguez, 731 F.3d 20, 31

( l st Cir. 2013); United States v. Pineda, 770 F.3d 313,318 (4th

Cir. 2014); United States v. Moncivais, 492 F.3d 652,658 (6th

Cir. 2007); United States v. Tapias, 610 F.3d 505,514 (7th Cir.

201O); United States v. Sheridan, 859 F.3d 579, 583 (8th Cir.

2017); United States v. Hernandez-Guerrero, 633 F Jd 933,

935 (9th Cir. 2011); United States v. Kendrick, 697 F. App'x

622,623 ( I I th Cir. 2017) (unpublished); see also United States

v. Ryan, 806 F.3d 691, 693 (2d Cir. 2015) (applying the clear

error standard); United States v. Jones, 514 Fed. App'x 229,

232 (3d Cir. 20 I 3) (unpublished) (same); United States v.

Ortega-Calderon, 814 F.3d 757, 760 (5th Cir. 2016) (same);

United States v. Martinez, 824 F.3d 1256, 1261 (10th Cir.

2016) (same).

A. Leadership Enhancement under§ 3B1.l(a)

In order to apply the four-level enhancement for being an

organizer or leader of criminal activity under USSG

§ 3B 1.1(a),the district court must find it was "more likely than

not that the defendant led, managed, or supervised the crime."

Bapack, 129 F.3d at 1324. The district court identified two

pieces of evidence supporting its conclusion that Leyva was a

App 1 n

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 15 of 26

15

leader of the cartel. First, "[a]II three cooperating witnesses ...

reported that the defendant was the top authority in charge of

controlling various geographic areas in Mexico that were

critical to the Beltran Leyva drug trafficking organization." As

the district court highlighted, Poveda and Villarreal provided

details about the defendant's control of one such area,

Culiacan. According to them, the importance of Culiacan as a

hub for the OTO meant that Leyva was the principal person in

"control of the [OTO's] trafficking of narcotics into the United

States." Second, Poveda and Villarreal reported the defendant

met with the leaders of the Sinaloa Cartel in order to coordinate

joint ventures, indicating his authority to speak on behalf of the

OTO.

Leyva argues this evidence is unreliable for two reasons.

First, the statements of Poveda and Villarreal are hearsay,

relayed to the court by case agents Hatherly and Peschka; the

cooperators themselves did not testify. The Sentencing

Guidelines, however, expressly permit consideration of

"reliable hearsay." USSG § 6A 1.3 cmt. Even "out-of-court

declarations by an unidentified informant may be considered

where there is good cause for the non-disclosure of the

informant's identity and there is sufficient corroboration by

other means." Id. The question before us, then, is whether

there was sufficient corroboration to make the hearsay reliable.

Here, the district court took care to rely only upon facts

substantiated by more than one cooperator. See Jones, 744

F.3d at 1367 (affirming the defendants' sentences where the

district court "relied only on testimony corroborated by at least

one ... other witness[]"). Further, the court explained, "Poveda

had personal knowledge of the ultimate authority that the

defendant exercised over critical pieces of the drug trade

because he was in charge of supplying drugs to the

organization." lambada confirmed that "Poveda was a main

App 1o

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 16 of 26

16

supplier of cocaine to the Beltran Leyva Organization." The

court also determined "Villarreal had personal knowledge of

the defendant's position because his job was to work with

defendant's security employees to secure the defendant." On

this record, the district court did not abuse its discretion m

holding the hearsay evidence reliable.

Leyva also levies a barrage against the character and

incentives of Poveda and Villarreal, and, for that matter,

Zambada: They may have been hoping to curry favor with the

Government; Zambada may have believed Leyva had

"something to do with the murder of his son"; Poveda was a

"drug kingpin" with a violent criminal history; Zambada and

Villarreal were drug addicts; Villarreal was "a corrupt

policeman" and "a sadistic multiple murderer." He reiterates

these objections with respect to each of the enhancements; we

reject them here, once and for all.

At the outset, we observe that Leyva's attorneys cross­

examined the FBI agents at length about the co-conspirators'

cooperation agreements and bad acts. The district court was

therefore "well aware of the cooperators' credibility issues."

Jones, 744 F.3d at 1367. More important, Leyva's attacks are

too general. As we said in Jones, "while such facts may

undercut the cooperators' credibility generally, they do not

establish that it was implausible for the district court to credit

particular aspects of their testimony, especially where, as here,

the cooperators offered mutually corroborative accounts." Id.;

accord United States v. Bell, 795 F.3d 88, I 06 (D.C. Cir.2015).

After all, "the testimony of co-conspirators ... is often credited

if other indicia of reliability are present," In re Sealed Case,

246 F.3d 696, 701 (D.C. Cir. 2001).

In short, because the reports were mutually corroborative

and the district court took due care in weighing the evidence,

App 1p

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 17 of 26

17

we conclude the court did not abuse its discretion in crediting

the cooperators' statements.

B. Weapons Enhancement under§ 2D1.l(b)(l)

In order to justify imposing a two-level enhancement for

possession of a "dangerous weapon," the Government must

show that the "weapon (including a firearm) was possessed" in

connection with a drug offense. USSG § 2D I. l (b)(I); see also

Mathis, 216 F.3d at 27. Here, the weapon in question is a pistol

inscribed with "El Aguila" - Spanish for "the Eagle" - that

the defendant carried "as he conducted drug trafficking

business." ln finding that Leyva possessed the pistol, the

district court cited the Mexican evidence report on Leyva's

arrest, which indicated that he was captured with the pistol.

Additionally, the court credited Zambada's and Villarreal's

reports of having witnessed the defendant in possession of a

pistol.

As with the leadership enhancement, the district court did

not abuse its discretion in relying upon this hearsay evidence.

Zambada's and Villarreal's statements were corroborated not

only by one another, but also by the Mexican evidence report.

Leyva responds that the district court should not have

considered the Mexican report because police reports generally

do not fall within Federal Rule of Evidence 803(8) - the

public records exception to the hearsay rule - in criminal

cases. See Fed. R. Evid. 803(8)(A)(ii) (excluding "a matter

observed by law-enforcement personnel"); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 321-22 (2009). As he

acknowledges, however, the Federal Rules of Evidence do not

apply at sentencing. Fed. R. Evid. l l 0 l (d)(3). To the extent

he argues the exclusion of police reports from Rule 803(8) casts

doubt upon the reliability of police reports as such, see Fed. R.

App 1q

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 18 of 26

18

Evid. 803, Advisory Committee Notes to 1974 Enactment

("Ostensibly, the reason for this exclusion is that observations

by police officers .. . are not as reliable as observations by

public officials in other cases because of the adversarial nature

of the confrontation between the police and the defendant in

criminal cases."), his objection has little force here: The

Government relied upon the report only for its photographs of

the items seized at the time of the defendant's arrest, and not

for any other aspect of the Mexican investigation. Under these

circumstances, the district court was well within its discretion

to admit those portions of the report for the "limited purpose"

of corroborating the cooperators' accounts.

See Joint

Appendix (J.A.) 375. We therefore hold the district court did

not abuse its discretion in considering the evidence from

Zambada and Villarreal or clearly err in finding the gun

belonged to the defendant.

Leyva also challenges the weapons enhancement by

claiming this particular pistol was an inoperable collector's

item, but that is of no moment: Since 2000, the Sentencing

Commission has defined "dangerous weapon" to include "an

object that is not an instrument capable of inflicting death or

serious bodily injury but . . . closely resembles such an

instrument." USSG § I BI. I cmt. n. l (D); see also United

States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989)

(concluding the term "firearm" under USSG 2D 1.1(b) includes

inoperable as well as operable firearms). A collector's model

of a pistol certainly comes within this definition. Leyva does

not suggest the item at issue differed in appearance from an

operable firearm. Accordingly, we hold a firearm is a

"dangerous weapon" within the meaning of§ 2D 1.1 regardless

whether it is capable of being fired.

App 1r

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 19 of 26

19

C. Adjustment for Acceptance of Responsibility under

§ 3El.l(a)

With respect to the sentencing enhancements for the use of

violence, for bribery, and for being a leader directly involved

in the importation of a controlled substance, Leyva again

argues the evidence was insufficiently reliable and contends,

for the first time on appeal, that the application of those

enhancements violates the Ex Post Facto Clause of the U.S.

Constitution because the enhancements were added to the

Sentencing Guidelines after he engaged in the relevant

conduct.

In order to "avoid the unnecessary resolution of

constitutional questions," Nw. Austin Mun. Util. Dist. No. One

v. Holder, 557 U.S. 193, 197 (2009), we turn first to Leyva's

claim that the district court should have granted him an

adjustment for acceptance of responsibility under USSG

§ 3E1.1 (a). Having already upheld six points in enhancements,

if we deny Leyva the adjustment for acceptance of

responsibility - as we do - then Leyva will have a final

offense level of at least 44. Because any offense level above

43 is treated as 43, the maximum, any error with respect to the

other three enhancements would not affect his sentence, see

USSG ch. 5, pt. A, cmt. n.21, and we would have no occasion

to reach his Ex Post Facto argument.

The district court's conclusion that a defendant has not

"clearly demonstrated acceptance of responsibility" within the

meaning of USSG § 3E I. I (a) is an application of the

Guidelines to the facts, which this court reviews under a due

deference standard. United States v. Rodriguez, 67 6 F.3d 183,

192 (D.C. Cir. 201 2). Due deference review lies "somewhere

between de novo and 'clearly erroneous'" review. United

States v. Cano-Flores, 796 F.3d 83, 90 (D.C. Cir. 201 5).

App 1s

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 20 of 26

20

It is the defendant's burden to convince the district court

that he is entitled to the downward adjustment for acceptance

of responsibility. United States v. McLean, 951 F.2d I 300,

1302 (D.C. Cir. 1991). Even a "defendant who enters a guilty

plea is not entitled to an adjustment ... as a matter of right."

United States v. Saani, 650 F.3d 761, 767 (D.C. Cir. 2011)

(quoting USSG § 3E I.I cmt. n.3).

The transcript of the sentencing hearing indicates the

district court denie<l the downward adjustment because the

defendant falsely minimized his role in the conspiracy. The

court explained, "I think he has sought to avoid responsibility,

to the extent that he could, and minimize his involvement and

role here."

Our case law is clear: lt is not error for a district court to

"require an acceptance of responsibility that extended beyond

the narrow elements of the offense" to "all of the

circumstances" surrounding the defendant's offense. United

States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991). The

Application Notes to § 3E1.1 provide, "A defendant who

falsely denies ... relevant conduct that the court determines to

be true has acted in a manner inconsistent with acceptance of

responsibility ...." USSG § 3El.1 cmt. n.l(A). Relevant

conduct includes the defendant's leadership role. See, e.g.,

United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992) ("[A]

defendant who is found to have had a leadership role in the

offense does not fully accept responsibility for purposes of

§ 3E 1.1 if, despite his admission of all elements of the offense

of conviction, he nevertheless attempts to minimize his

leadership role").

Having upheld the district court's finding that Leyva was

"one of the leaders" of the OTO, we cannot say it was

App 1t

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 21 of 26

21

unreasonable for the district court to conclude Leyva failed to

accept responsibility when he falsely denied being a leader.

Leyva would confess and avoid on the ground that he "merely

sought to require the Government to justify enhancements

through reliable information." Leyva's motivation for denying

his leadership role is immaterial, however; he cannot accept

responsibility for his conduct and simultaneously contest the

sufficiency of the evidence that he engaged in that conduct.

D. Enhancements under§§ 2D1.l(b)(2), (11), (15)(C)

Because we affirm the district court's denial of the

adjustment for acceptance of responsibility, as well as its

application of six points in enhancements, Leyva has a final

offense level of at least 44. Therefore, as explained in Part Ill.C

above, we do not need to reach his arguments against the

enhancements for using violence, bribing a law enforcement

official, and being a leader directly involved in the importation

of a controlled substance. We pause to note only that applying

these enhancements would present a serious Ex Post Facto

question if we had occasion to reach the merits and if the

objection had been properly preserved.

IV. Forfeiture Issues

Leyva's final challenges are to the forfeiture element of his

sentence. Pursuant to 21 U.S.C. § 853(a)(l ), "Any person

convicted of [certain crimes] punishable by imprisonment for

more than one year shall forfeit to the United States ... any

property constituting, or derived from, any proceeds the person

obtained, directly or indirectly, as the result of such violation."

Section 970 makes this provision applicable to the controlled

substances crimes of which Leyva was convicted.

App 1u

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 22 of 26

22

The district judge ordered Leyva to forfeit $529.2 million.

To arrive at that figure, the court estimated that Leyva's

organization transported 25,200 kilograms of cocaine from

Culiacan to the border during a single three-month period. The

court then multiplied that amount by $21,000 per kilogram, the

price of cocaine on the Mexican side of the border according to

the Drug Enforcement Administration (DEA).

A district court uses a preponderance of the evidence

standard in determining the appropriate amount of a forfeiture.

See, e.g., United States v. Capoccia, 503 F .3d I 03, 116 (2d Cir.

2007). "In an appeal from a criminal forfeiture proceeding," as

usual, "we review the district court's fact finding for clear error

and the district court's legal interpretations de novo." United

States v. Emor, 785 F.3d 671, 676 (D.C. Cir. 2015) (citations

omitted).

Leyva does not take issue with the price per kilogram used

by the district court. He likewise concedes that "proceeds" in

§ 853 means gross receipts, not net profits. He objects only to

the amount of cocaine attributed to him.

First, Leyva argues ·the district court's calculation of the

quantity of cocaine was based upon unreliable evidence. The

court principally relied upon evidence from Villarreal, who

conducted a security evaluation of Leyva's outfit in Culiacan

for three to six months in 2005. Villarreal reported seeing

planes being loaded with cocaine in Culiacan to be flown to the

U.S. border. We review for abuse of discretion the district

court's decision to credit Villarreal's evidence in determining

the amount to be forfeited. Cf Libretti v. United States, 516

U.S. 29, 39 (1995) (holding criminal forfeiture is an aspect of

sentencing).

App 1v

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 23 of 26

23

We see no abuse of discretion in this case. Leyva reiterates

his attacks on Villarreal's hearsay evidence and poor character,

rejected above. Leyva also likens his case to United States v.

Nava, 404 F .3d 1119 (9th Cir. 2005), which is wholly

inapposite. Unlike the district court in Nava, the court here did

not rely upon conflicting or ambiguous reports. The court

found Villarreal's hearsay evidence to be credible because he

was "actually present and witnessed defendant oversee and

direct the air shipments of cocaine." In addition, the

Government presented evidence from Poveda that Leyva

purchased several hundred thousand kilograms of Colombian

cocaine from 2004 to 2008. The court treated Poveda's

account of Leyva's cocaine supply as corroboration for

Villarreal's testimony.

Second, Leyva argues the amount of the forfeiture exceeds

the "outer bounds of reasonableness" because it is "based on

unreliable assumptions and unsound reasoning." We realize

that extrapolation can create a significant risk of error,

depending upon the predicate values used. See, e.g., United

States v. Candelaria-Silva, 714 F.3d 651, 658 (1st Cir. 2013)

("[W]here, as here, a drug quantity determination relies on

multiples of averages or extrapolations, the sentencing court

must be mindful of the potential for error where one conclusory

estimate serves as the multiplier for another"). A district court

should therefore err on the side of caution, using only reliable

or conservative estimates.

To that end, the district court used low-end estimates of

what Villarreal said were (1) the number of planes departing at

a time; (2) the number of trips the planes made per week; (3)

the amount of cocaine per plane; and (4) the amount of time

Villarreal spent with the defendant. Thus, although Villarreal

said he saw "caravans of seven to ten planes," the court used

seven. Villarreal said the caravans left "one or two times a

App 1w

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 24 of 26

24

week"; the court used one. Villarreal said there were

"approximately 300 to 350 kilograms of cocaine per plane"; the

court used 300 kilograms. Villarreal said he was in Culiacan

with the defendant for "approximately three to six months"; the

court used 12 weeks. Moreover, the court's calculation

covered only the period that Villarreal actually witnessed, not

the full duration of the conspiracy.

In sum, the $529.2 million forfeiture was a conservative

estimate of the revenue obtained by the operation in Culiacan

that Leyva personally oversaw. On this record,we find no clear

error in the court's calculation of the proceeds of Leyva's

criminal activities.

Last,Leyva argues the Government failed to show that the

entire $529.2 million allegedly earned by the drug organization

was personally acquired by the defendant, as required by

Honeycutt v. United States, 137 S. Ct. 1626 (2017),and Cano­

Flores, 796 F.3d 83. Because the defendant is raising this

objection for the first time on appeal,we review the record for

plain error. United States v. Wheeler, 753 F.3d 200,210 (D.C.

Cir. 2014). This means Leyva can prevail only if the district

court committed "(I) an error,(2) that [was] clear or obvious,

(3) that affected the outcome of the district court proceedings,

and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings." United States v. Grey, 891

F.3d I054,I058 (D.C. Cir. 2018).

The district court expressly recognized its obligations

under Cano-Flores. The case law, however, was (and is) far

from clear that property acquired by an organization cannot

qualify as property "obtained,directly or indirectly" by a leader

of that organization. In Cano-Flores, we held the district court

erred in attributing to the defendant $15 billion in proceeds

earned by the entire cartel of which the defendant was a mid-

App 1x

USCA Case #17-3027

Document#1774859

Filed: 02/26/2019

Page 25 of 26

25

level member; the district court had done so on the theory that

those proceeds were "reasonably foreseeable" by him. 796

F.3d at 91. We also stated, however, that property obtained

"indirectly" might include "property received by persons or

entities that are under the defendant's control," such as "an

employee or other subordinate of the defendant." Id. at 92.

Leyva, unlike Cano-Flores, was a leader of his organization,

and the district court attributed to him only proceeds from

activities directly supervised by Leyva in Culiacan. As a result,

this case comes within the exception that we described in

Cano-Flores.

Honeycutt, like Cano-Flores, did not involve the leader of

an organization, and hence did not close this potential

exception. There the manager of a hardware store was found

guilty of conspiring with the owner of the store to sell iodine

with the knowledge it would be used to manufacture

methamphetamine. 137 S. Ct. at 1630. The Supreme Court

held the defendant could not be held liable for forfeiture of the

proceeds because he was merely a salaried employee who "did

not personally benefit" from the sales. Id. at 1631, 163 5.

Finally, we note that even now Leyva does not specify

what amount should have been excluded from the court's

calculation of his gross receipts. For both reasons, we could

not deem any error by the district court "clear or obvious."

V. Conclusion

The district court, which substantially complied with the

requirements of Rule 11, did not abuse its discretion in denying

Leyva's motion to withdraw his guilty plea. The appellant's

various objections to his sentence and the forfeiture imposed

by the court are unavailing for the reasons given above.

App 1y

USCA Case #17-3027

Document #1774859

Filed: 02/26/2019

Page 26 of 26

26

The judgment of the district court is, therefore,

Affirmed.

App 1z

USCA Case #17-3027

Document #1781240

Filed: 0410512019

Page 1 of 1

�uit£h �tat£s <'.!lnurt nf J\pp£als

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17-3027

September Term, 2018

1 :12-cr-00184-RJL-1

Filed On: April 5, 2019

United States of America,

Appellee

v.

Alfredo Beltran Leyva, also known as

Mochomo,

Appellant

BEFORE:

Rogers and Srinivasan, Circuit Judges; Ginsburg, Senior Circuit

Judge

O RDER

Upon consideration of appellant's amended petition for panel rehearing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Isl

Ken R. Meadows

Deputy Clerk

App 2 a

USCA Case #17-3027

Filed: 04/05/2019

Document #1781244

Jlfnitrb �htirs Qiourt of J\pprals

Page 1 of 1

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2018

No. 17-3027

1 :12-cr-00184-RJL-1

Filed On: April 5, 2019

United States of America,

Appellee

V.

Alfredo Beltran Leyva, also known as

Mochomo,

Appellant

BEFORE:

Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith,

Srinivasan, Millett, Pillard, Wilkins, Katsas, and Rao*, Circuit

Judges; Ginsburg, Senior Circuit Judge

O R DER

Upon consideration of appellant's amended petition for rehearing en bane, and

the absence of a request by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Ken R. Meadows

Deputy Clerk

*Circuit Judge Rao did not participate in this matter.

App 2b