[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15692 ELEVENTH CIRCUIT
JULY 25, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-20949-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO BRU,
a.k.a. Julio,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 25, 2012)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Gustavo Bru appeals his 121-month sentence for
conspiring to possess with intent to distribute five kilograms or more of a
substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(ii) and 846. After review, we affirm.
I. BACKGROUND
Although defendant Bru’s offense conduct was in 2003, Bru was a fugitive
for years. As a result, Bru had several revised Presentence Investigation Reports
(“PSI”) and several different attorneys. We detail the sequence of events that led
to his 2009 sentencing.
A. Offense Conduct in 2003
In 2003, Drug Enforcement Administration (“DEA”) agents investigated a
Colombian narcotics trafficking group that was based in Panama. As a result of
the investigation, the DEA seized a shipment of approximately 121 kilograms of
cocaine as it arrived in Port Everglades, Florida, on November 7, 2003. The
trafficking group had arranged for the cocaine shipment to be distributed among
three or four different groups of buyers, with the sales to be facilitated by several
DEA confidential sources (“CS”).
Defendant Bru and his co-defendant William Acevedo Sterling formed one
of the groups of buyers. Law enforcement agents monitored and recorded the
negotiations that took place between a CS and the Bru/Sterling group.
2
On November 18, 2003, a CS told DEA agents that one of the Colombian
traffickers told him to distribute 35 kilograms of the cocaine to “Julio” in Miami,
and said that Julio would call the CS to arrange a meeting. Shortly thereafter, a
man who identified himself as Julio called the CS. Julio said he would send
someone to meet the CS to pick up the cocaine. Later, the CS received a call from
co-defendant Sterling, who identified himself as “a friend of Julio’s.” Sterling and
the CS set up a time and place to do the pick-up.
The CS arrived at the pre-arranged location with a bag containing 35
kilograms of “sham” cocaine. The CS called Julio and said he was waiting for
Julio’s friend to arrive. A short time later, defendant Bru arrived and approached
the CS’s car. DEA agents watched defendant Bru enter the car from the passenger
side, talk to the CS, leave with the bag of sham cocaine, and ride away in a white
Ford Expedition that was rented in defendant Bru’s name and was being driven by
co-defendant Sterling. DEA agents stopped the Expedition and arrested Bru and
Sterling. The CS told DEA agents that Bru had told the CS, during their
conversation in the car, that he was Julio.
B. Bru’s Guilty Plea in 2003
On December 2, 2003, defendant Bru was indicted on two counts:
conspiring (Count 1) and attempting (Count 2) to possess with intent to distribute
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five kilograms or more of a substance containing a detectable amount of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846. Bru pled not guilty
and was released pending trial on a $100,000 bond. Later, Bru pled guilty to
Count 1 and the government agreed to dismiss Count 2. The district court accepted
Bru’s plea, adjudicated him guilty, and continued his bond until sentencing.
C. Bru is Fugitive in 2004–2008
Defendant Bru failed to appear for his sentencing hearing scheduled for
April 28, 2004. The district court re-set the hearing for May 10, 2004, but Bru
again failed to appear. The district court revoked Bru’s bond, declared Bru a
fugitive, and issued a bench warrant for his arrest.
Defendant Bru fled to Colombia and evaded authorities for years. In 2008,
Colombian police arrested Bru and imprisoned him pending extradition to the
United States. Bru spent 13 months in a Colombian prison before his June 2009
extradition. Bru retained new counsel for his sentencing in 2009.
D. 2009 Sentencing
The Presentence Investigation Report (“PSI”) was originally prepared in
March 2004 and was revised in April 2004, July 2009, and August 2009. The PSI
noted that: (1) defendants Bru and Sterling “are viewed as equally culpable” in the
offense because “[t]hey negotiated with the CS for the purchase of [the] 35
4
kilograms of cocaine and collaborated equally to complete the transaction”; and (2)
“Bru contacted the CS on the telephone several times to negotiate the purchase of
the cocaine.”
The PSI calculated: (1) a base offense level of 34 pursuant to U.S.S.G.
§ 2D1.1(a)(3), (c)(3) (2003); and (2) a two-level increase for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1, because of defendant Bru’s flight. The PSI declined
to apply a reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.
Bru had no criminal history points. With an adjusted offense level of 36 and a
criminal history category of I, Bru’s advisory guidelines range, as calculated by the
PSI, was 188 to 235 months’ imprisonment.
Defendant Bru raised objections to the PSI both in 2004 and in 2009. In
2004, through his original counsel, Bru objected to the PSI’s suggestion that he
was the “Julio” who called the CS to negotiate and arrange the details of the drug
pick-up. Bru admitted that, in the CS’s car, the CS asked him if he were Julio and
Bru said yes. But Bru claimed that he “answered this question affirmatively
because he was instructed by the organizers that ‘Julio’ was the name they had
assigned to identify the courier in the transaction,” and that he did not know the
organizers used the name “Julio” to identify the man who made the phone calls
arranging the transaction.
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Defendant Bru also objected to the PSI’s determination that he was equally
culpable with Sterling and argued he was entitled to a minor or minimal role
reduction pursuant to U.S.S.G. § 3B1.2(a)–(b). Bru claimed his role was merely to
pick up the drugs from the CS “and deliver[] them a few feet away” to Sterling,
who was waiting in the Expedition. Bru also argued that he was entitled to a
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.1
In 2009, through his new sentencing counsel, defendant Bru objected to the
revised PSI. Bru objected to the lack of a three-level reduction for acceptance of
responsibility, arguing that his failure to appear for sentencing “should not mitigate
his initial and now subsequent acceptance of responsibility for both the underlying
offense and the failure to appear.”2 Bru also objected to the lack of safety-valve
relief pursuant to U.S.S.G. § 5C1.2.3 Bru conceded the applicability of the
1
In April 2004, the PSI was revised to apply a three-level reduction for acceptance of
responsibility because Bru had admitted his involvement in the offense and timely notified the
government of his intent to plead guilty. Later revisions to the PSI, following Bru’s flight and
return to custody, removed this reduction.
2
Bru submitted a written statement, included in the PSI, in which he apologized for his
flight while awaiting sentencing. Bru claimed he fled to Colombia primarily to be with his
mother, who was suffering from serious heart problems, “on her death bed.”
3
The safety-valve relief of § 5C1.2, which is authorized by 18 U.S.C. § 3553(f), provides
that the 10-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(ii) does not apply to
defendants who meet certain criteria, including having no more than one criminal history point,
not being a leader or organizer in the offense, and not using violence or a dangerous weapon in
connection with the offense. See 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2(a). The original PSI
stated that Bru was entitled to safety-valve relief. The 2009 version of the PSI stated that,
according to the prosecutor currently assigned to the case, Bru was not entitled to receive the
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obstruction-of-justice increase and did not object to the lack of a minor-role
reduction.
The district court held a sentencing hearing on August 28, 2009. At the
hearing, the government conceded that the safety-valve provision applied.4 The
parties also agreed that Bru was entitled to credit for the approximately 13 months
he served in Colombia awaiting extradition. According to the government, the
only issue was whether Bru was entitled to a reduction for acceptance of
responsibility in light of his flight. Bru’s counsel did not contradict or correct the
government on its statement that the acceptance-of-responsibility reduction was the
only issue in dispute.
The district court held that Bru was entitled to a two-level reduction for
acceptance of responsibility. Thus, with an adjusted offense level of 32 and a
criminal history category of I, Bru’s advisory guidelines range was 121–151
months’ imprisonment. The district court determined that a low-guidelines
sentence was appropriate and sentenced Bru to 121 months’ imprisonment.
The district court addressed Bru personally when it pronounced sentence,
and advised Bru of his right to appeal. The court did not ask Bru if he wished to
benefit of the safety-valve provision.
4
As a result, Bru’s offense level was subject to a two-level reduction pursuant to U.S.S.G.
§ 2D1.1(b)(16).
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speak on his own behalf or ask if he had reviewed the PSI or consulted with
counsel about it. The district court did ask, however, if the defense “has any
objection to the sentence, or the manner [in] which it was pronounced,” and Bru’s
counsel responded that “we do not.” Bru later appealed the sentence and retained
new appellate counsel.5
II. DISCUSSION
Bru raises three issues on appeal: (1) whether the district court erred by
failing to indicate on the judgment that Bru was entitled to credit for the 13 months
he served in prison in Columbia while awaiting extradition; (2) whether the district
court violated the procedural requirements of Federal Rule of Criminal Procedure
32 during the sentencing hearing; and (3) whether Bru’s 2009 counsel provided
ineffective assistance at the sentencing hearing.
We need not address the first claim. In his reply brief, Bru acknowledges
this issue has been resolved, as Bru has now obtained (with the assistance of the
United States Attorney’s Office) credit from the Bureau of Prisons for his
Colombian imprisonment time.
5
Bru filed his notice of appeal untimely, but within 30 days of the appeal period’s
expiration. On September 21, 2010, this Court remanded the case for the district court to
determine whether Bru’s untimely notice of appeal was the result of excusable neglect or good
cause under Federal Rule of Appellate Procedure 4(b)(4). After an evidentiary hearing, the
district court found Bru’s untimely filing was the result of excusable neglect.
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Nor do we consider Bru’s third claim. “We will not generally consider
claims of ineffective assistance of counsel raised on direct appeal where the district
court did not entertain the claim nor develop a factual record.” United States v.
Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (quoting United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002)). Here, the district court did not entertain an
ineffective assistance claim, and there has been no factual development of the
claim whatsoever. Therefore, we decline to consider it on direct appeal.
That leaves only Bru’s Rule 32 claim. Bru argues that the district court
violated Rule 32 by not: (1) ruling on Bru’s 2004 objections to the PSI’s factual
statements that Bru was Julio and negotiated with the CS before the drug pick-up;
(2) ruling on Bru’s 2004 objection to the lack of a minor role reduction; (3)
verifying that Bru had read the PSI and discussed it with his counsel; and (4)
addressing Bru personally and giving him the opportunity to speak or present
information in mitigation of sentence.
Bru did not make these arguments to the district court. Instead, when asked
if the defense had any objections to the sentence or the manner in which the district
court pronounced it, Bru’s counsel said he and Bru had none. Because these
arguments are raised for the first time on appeal, we review only for plain error.
See, e.g., United States v. Dorman, 488 F.3d 936, 942 (11th Cir. 2007) (applying
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plain error review to alleged Rule 32 violation raised for first time on appeal).6
“To find reversible error under the plain error standard, we must conclude
that: (1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights in that it was prejudicial and not harmless, and (4) the error seriously
affected the fairness, integrity, or public reputation of a judicial proceeding.”
United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011), cert. denied, 132 S. Ct.
1943 (2012). “Where the district court . . . offered the defendant the opportunity to
object to his sentences, this court will not entertain an unraised objection unless
refusal to do so would result in manifest injustice.” Id. (quotation marks omitted).
At sentencing, Rule 32 requires a district court to, inter alia: (1) “verify that
the defendant and the defendant’s attorney have read and discussed the [PSI] and
any addendum to” the PSI, Fed. R. Crim. P. 32(i)(1)(A); (2) “address the defendant
personally in order to permit the defendant to speak or present any information to
mitigate the sentence,” Fed. R. Crim. P. 32(i)(4)(A)(ii); and (3) rule on any
disputed portion of the PSI “or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not consider
6
We reject the government’s contention that Bru intentionally waived—rather than
forfeited by failing to raise—his 2004 PSI objections, and thus is not entitled even to plain error
review. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” United States v. Olano, 507 U.S.
725, 733, 113 S. Ct. 1770, 1777 (1993). There is no evidence in the record from which to infer
Bru or his counsel intentionally chose to abandon or relinquish the 2004 objections.
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the matter in sentencing,” Fed. R. Crim. P. 32(i)(3)(B).
The parties do not dispute, and we agree, that the district court committed
error that was plain when it did not follow Rule 32’s requirements of (1) verifying
that Bru had read the PSI and discussed it with his attorney, and (2) addressing Bru
personally to permit him to speak or present information in mitigation of his
sentence. Fed. R. Crim. P. 32(i)(1)(A), (i)(4)(A)(ii). However, we conclude that
the district court did not commit error that was plain as to Bru’s 2004 objections
(to certain facts in the PSI and the lack of a minor role reduction) because they: (1)
were raised by Bru’s previous counsel, not his 2009 sentencing counsel; (2) were
not renewed in the objections to the PSI as later revised; and (3) were not raised, or
even mentioned, at the sentencing hearing.
But even if Bru had shown the district court committed plain error as to all
of his alleged Rule 32 violations, he has failed to show that the errors affected his
substantial rights. The “affected substantial rights” prong of the plain-error test
requires the defendant to show “a reasonable probability that the result would have
been different but for the error[s].” United States v. Underwood, 446 F.3d 1340,
1343–44 (11th Cir. 2006); see United States v. Fields, 408 F.3d 1356, 1360 (11th
Cir. 2005).
Bru has not shown a reasonable probability that he would have received a
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lesser sentence if the district court had confirmed he read and discussed the PSI
with his attorney, permitted Bru to speak, and ruled on the 2004 objections. First,
Bru never contends that he actually failed to read the PSI or discuss it with his
counsel, and fails to articulate any possible effect on his sentence caused by the
district court’s failure to confirm these facts. Second, although we have held that
the failure to give a defendant the right to speak in mitigation of sentence affects
substantial rights where the defendant “did not receive the lowest possible sentence
within the applicable guideline range,” United States v. Prouty, 303 F.3d 1249,
1253 (11th Cir. 2002), here Bru did receive the lowest possible sentence—121
months—under the applicable guidelines range.
Further, Bru has not shown that a lower guidelines range would have applied
had the district court ruled on the 2004 objections. Even if the district court had
sustained Bru’s 2004 objections to the fact section of the PSI and accepted his
position that he was not the “Julio” who negotiated the cocaine transaction on the
phone with the CS, Bru did not dispute that he nevertheless acted as a drug courier
by personally meeting with the CS, retrieving 35 kilograms of cocaine from the
CS’s vehicle, and renting the car with which he and Sterling left the drug pick-up.
In order to obtain a minor role reduction, Bru would have had to prove by a
preponderance of the evidence that he had a minor role in the transaction. United
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States v. Barner, 572 F.3d 1239, 1253 (11th Cir. 2009). In light of the very
substantial quantity of drugs involved, and Bru’s admitted conduct during the drug
transaction, it is not reasonably probable that the district court would have granted
Bru’s request (had he made one at the 2009 sentencing hearing) for a minor role
reduction as to the 35 kilograms of cocaine for which Bru was convicted. See
United States v. Rodriguez De Varon, 175 F.3d 930, 943 (11th Cir. 1999) (stating
that, for drug couriers, the amount of drugs involved is a material consideration in
deciding whether minor-role reduction is warranted, and courier’s possession of
very large quantity of drugs “may be the best indication of the magnitude of the
courier’s participation in the criminal enterprise”). Bru has not met his burden of
showing that the district court’s errors affected his substantial rights, and thus he is
not entitled to relief on his claims of Rule 32 error.
AFFIRMED.
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