[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2007
No. 07-10591 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00009-CR-001-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL MENDOZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 12, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Noel Mendoza appeals his 120-month sentence for 1 count of distribution of
over 500 grams of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1).
Mendoza argues that the district court erred in applying an enhancement to his base
offense level under the Sentencing Guidelines for obstruction of justice under
U.S.S.G. § 3C1.1 based on letters he wrote to the government’s cooperating
witness. Mendoza further contends that the district court clearly erred in its denial
of an acceptance of responsibility reduction to his offense level, under U.S.S.G.
§ 3E1.1. Finally, Mendoza asserts that the district court imposed an unreasonable
sentence under the factors of 18 U.S.C. § 3553(a).
I. BACKGROUND On December 15, 2005, a government cooperator agreed
to initiate a controlled purchase of cocaine hydrochloride from his source. After
the cooperator initiated his request for the contraband, Mendoza, his wife, and a
male accomplice arrived by car at the cooperator’s residence whereupon agents
arrested the trio and recovered over 500 grams of cocaine hydrochloride from the
vehicle. The cooperator indicated that he had bought cocaine from Mendoza on
four other occasions.
While incarcerated and awaiting his sentencing hearing, Mendoza wrote two
letters to the government’s cooperator, the first on May 2, 2006, and the second, on
May 22, 2006. The first letter, in part, accused the cooperator of lying to
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authorities, informed the cooperator that his actions had destroyed Mendoza’s life,
and stated that “[t]here’s a saying that ‘snitches get stiches [sic].’” The second
letter requested the cooperator to write a statement that “me and my wife never
sold you any kilo’s.”
Mendoza contended that a fellow inmate wrote the letters and, based on his
limited English-language skills, he did not adequately understand the letters.
Mendoza nonetheless admitted to approving the letters as written. Mendoza
further contended that his intent was not to threaten the government’s witness;
rather, he only wanted the cooperator to elicit a statement that he and his wife
merely served as interpreters, not as a principal source of the narcotics.
In addition to the letters, the government presented testimony that Mendoza
had released portions of the Presentence Investigative Report (“PSI”) that detailed
the cooperator’s status as an informant.
II. DISCUSSION
After the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we review sentences for reasonableness,
with the Guidelines applied as advisory. United States v. Talley, 431 F.3d 784, 785
(11th Cir. 2005). The district court must follow a two-step process to determine a
defendant’s sentence by: (1) consulting the Guidelines and correctly calculating the
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guideline range; and (2) considering the factors under 18 U.S.C. § 3553(a).
Talley, 431 F.3d at 786.
I. Obstruction of justice enhancement
We review a district court’s factual finding to support an enhancement to a
defendant’s offense level for obstruction of justice under U.S.S.G. § 3C1.1 for
clear error. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006); United
States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002). We review the application of
law to those facts de novo. Singh, 291 F.3d at 763 (citation omitted). We “accord
great deference to the district court’s credibility determinations.” Id. (quotation
and citation omitted). Section 3C1.1 of the Sentencing Guidelines provides:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1.
An example of conduct covered by this enhancement includes, “threatening,
intimidating, or otherwise unlawfully influencing a . . . witness . . . directly or
indirectly, or attempting to do so.” U.S.S.G. § 3C1.1, comment. n.4(a). Generally,
the government bears the burden of establishing by a preponderance of the
evidence the facts necessary to support a sentencing enhancement. United States v.
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Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999).
In this case, the district court reviewed the letters written to the
government’s cooperator on Mendoza’s behalf, as well as two separate letters
written by Mendoza to the judge. Further, the district court listened to Mendoza
speak in English, observed Mendoza’s actions, and considered the entirety of the
record before it. The court found that Mendoza: (1) had a “greater ability to
communicate and express himself than most defendants that [come before the
court];” (2) “expresse[d] himself well and clearly in both English and Spanish;” (3)
showed no indication of “confusion or a misunderstanding on his part;” and (4)
was “not a man who is timid in his communications or sophomoric in his
communications.” In light of these findings, the court concluded that Mendoza
intended his letters to be “a not so veiled threat.”
Furthermore, after considering the evidence relating to the release of the PSI,
the district court found that the only reasonable inference of the evidence was that
Mendoza “released portions of a copy of his presentence report.” Based on the
record evidence before it, the district court cannot be said to have clearly erred in
applying an obstruction of justice enhancement under U.S.S.G. § 3C1.1.
II. Acceptance of responsibility reduction
We review “the district court’s determination of acceptance of responsibility
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only for clear error.” Singh, 291 F.3d at 764 (quotation and citation omitted).
Section 3E1.1(a) of the Sentencing Guidelines provides “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense
level by 2 levels.” U.S.S.G. § 3E1.1(a). Under certain conditions and “upon
motion of the government,” a defendant may receive an additional one-level
decrease. U.S.S.G. § 3E1.1(b). “The defendant bears the burden of clearly
demonstrating acceptance of responsibility and must present more than just a guilty
plea.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999); see also
United States v. Shores, 966 F.2d 1383, 1388 (11th Cir. 1992) (holding that an
admission of involvement in the crime alone does not necessarily amount to an
affirmative acceptance of responsibility). “Conduct resulting in an enhancement
under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily
indicates that the defendant has not accepted responsibility for his criminal
conduct. There may, however, be extraordinary cases in which adjustments under
both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, comment. (n.4). “The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is entitled
to great deference on review.” U.S.S.G. § 3E1.1, comment. (n.5).
In this case, the district court did not clearly err in denying Mendoza an
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adjustment for acceptance of responsibility. Mendoza primarily relied on his
guilty plea, which is clearly insufficient under Sawyer and Shores. Moreover, in
light of the obstruction of justice enhancement and Mendoza’s failure to show
extraordinary circumstances, the district court did not err, much less clearly err, in
deciding that the acceptance of responsibility reduction was unwarranted. See
Singh, 291 F.3d at 765 (holding that defendant, who had received an obstruction of
justice enhancement, failed to show extraordinary circumstances).
Mendoza also argued that the court incorrectly applied a 3-level
enhancement in denying the acceptance of responsibility. This argument is without
merit. Mendoza’s baseline offense level was 28 and the only enhancement applied
by the court was the 2-level obstruction of justice, giving Mendoza a total offense
level of 30.
III. Reasonableness of sentence
As stated above, we review sentences for reasonableness, with the
Guidelines applied as advisory. Talley, 431 F.3d at 785. “[N]othing in Booker or
elsewhere requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). The factors
in 18 U.S.C. § 3553(a) include the following:
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(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment
for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed educational or
vocational training or medical care; (6) the kinds of sentences available;
(7) the Sentencing Guidelines range; (8) pertinent policy statements of the
Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). Although we have rejected a
per se rule, we explained that a sentence within the applicable guideline range has
the expectation of reasonableness. Id. at 788. Review for reasonableness is
deferential, and there are a range of sentences that are reasonable. Id. The party
who challenges the sentence has the burden of proving that the sentence is
unreasonable in light of the record and the § 3553(a) factors. Id.
In this case, the district court did not impose an unreasonable sentence. The
court correctly calculated Mendoza’s guideline imprisonment range, addressed
Mendoza’s arguments, and considered the factors in 18 U.S.C. § 3553(a).
Mendoza complains that the sentence would have been much shorter had there
been no obstruction of justice enhancement and had he received a reduction for
acceptance of responsibility. This is undoubtedly true, but as shown above, the
enhancement and denial of the reduction were not clearly erroneous, and
Mendoza’s argument does nothing to show that the sentence is unreasonable. We
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accordingly hold that Mendoza’s sentence was reasonable.
IV. Conclusion
Upon careful review of the entire record and the parties’ briefs, we hold that
the district court did not err in its sentencing calculations and imposed a reasonable
sentence. We affirm Mendoza’s sentence.
AFFIRMED.
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