                      NOT RECOMMENDED FOR PUBLICATION
                             File Name: 05a0980n.06
                             Filed: December 14, 2005

                                        No. 04-6429

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                               On Appeal from the United
                                                               States District Court for the
EZEQUIEL ESPINOSA-JIMENEZ,                                     Western District of
                                                               Kentucky
       Defendant-Appellant.

                                                         /

Before:       GUY and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*

       RALPH B. GUY, JR..           Defendant Ezequiel Espinosa-Jimenez appeals from the

sentence he received after pleading guilty to one count of conspiracy to possess with intent

to distribute and to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§

846 and 841(a)(1). Defendant argues first that the government breached the plea agreement

by advocating that the district court determine his sentence based on drug quantities well in

excess of the “cap” to which the parties had stipulated in the plea agreement. Review of the

record convinces us that the district court did not clearly err in finding that it was the

defendant, not the government, who failed to fulfill obligations under the plea agreement.

Further, any error in this regard would be harmless since defendant’s sentence was based on



       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-6429                                                                                2

quantities that did not exceed the stipulated amount. Defendant also argues that the district

court erred in calculating the quantity of drugs involved and by denying him a reduction in

the offense level for acceptance of responsibility. We find no error and affirm.

                                             I.

       Defendant was charged along with his brother-in-law, Antonio Vasquez-Bahena, with

one count of conspiracy to possess with intent to distribute and to distribute more than 500

grams of cocaine. A superceding indictment followed a few months later, charging them

both with conspiracy to possess with intent to distribute and to distribute more than 5

kilograms of cocaine. This led to defendant’s decision to enter a written plea agreement in

March 2004, under which defendant pleaded guilty to the charge in the original indictment

and agreed to cooperate with the government.

       The terms of the plea agreement are significant to this appeal. First, the parties

stipulated that “the quantity of drugs involved in this case is less than 5 kilograms of a

mixture or substance containing a detectable amount of cocaine.” Second, if the government

determined that the defendant failed to fulfill any obligation under the agreement, the

government, in its discretion, would have “the option of being relieved of its obligations

under the plea agreement.” The agreement also expressly provided that if defendant were

to breach the agreement, he would not be permitted to withdraw his guilty plea, the

government would be free to make any sentencing recommendation, any evidence or

statements from the defendant would be admissible at trial or sentencing, and the government
No. 04-6429                                                                                             3

would be free to bring additional charges.1

        At the change of plea hearing, the parties’ understanding concerning drug quantity

was explored. Defendant admitted that at least 500 grams of cocaine was involved; the

parties confirmed that the plea agreement “capped” the amount by stipulating that less than

5 kilograms of cocaine was involved; and the government took the position that the offense

of conviction involved between 3½ and 5 kilograms of cocaine. The government represented

that the evidence would establish defendant’s involvement in three controlled buys between

Vasquez-Bahena and an informant—one 2-ounce and two 500-gram purchases of cocaine.

In addition, the government subsequently intercepted and recorded conversations between

defendant and Vasquez-Bahena relating to the purchase of additional quantities of cocaine.

In all, the government estimated that the offense of conviction involved between 3½ and 5

kilograms of cocaine. Defendant’s guilty plea was accepted.

        During the proffer interview, however, defendant stated that he was involved in only

one 500-gram cocaine deal with Vasquez-Bahena and claimed to have received only $300

for his expenses. The government took the position that defendant had failed to provide

complete and truthful information as required by the plea agreement, releasing it from the

stipulation as to quantity. As a result, the government sought to include an additional 25 to

30 kilograms of cocaine as relevant conduct in determining defendant’s sentence. The

government had connected defendant to a seemingly unrelated cocaine distribution case.

Specifically, Brian Centeno, a cooperating defendant in another case, identified Espinosa-


        1
         The plea agreement further stated that: “Whether or not defendant has completely fulfilled all of
the obligations under this Agreement shall be determined by the United States.”
No. 04-6429                                                                                   4

Jimenez as the individual who had supplied him with between 25 and 30 kilograms of

cocaine.

       The presentence report recommended that defendant’s sentence be calculated based

on at least 15 but less than 50 kilograms of cocaine.            Defendant objected to this

recommendation as violative of the stipulation in the plea agreement.               Sentencing

proceedings were held in June, October, and November 2004. After the proceedings in June,

the hearing was continued and additional briefing was requested concerning the quantity of

drugs attributable to defendant, the government’s obligations under the plea agreement, and

the impact of the recent decision in Blakely v. Washington, 542 U.S. 296 (2004). When the

government did not file a brief, the district court entered an order central to defendant’s

claims on appeal.

       That order, dated September 13, 2004, stated that the government had “offered no

authority for its position relative to withdrawal from the stipulation within the plea agreement

or the relevance of any evidence of additional quantities of cocaine” and set a new date for

imposition of sentence “in accordance with the terms of the written plea agreement and in

compliance with Blakely [], based upon 500 grams of cocaine.” (Emphasis added.)

Defendant argues that it was error for the district court not to have imposed sentence in

accordance with that order. However, additional evidence was received on these issues

during subsequent proceedings in October and November 2004. In fact, defense counsel

called the district court’s attention to the September 13 Order and argued that the court had

already resolved these issues in the defendant’s favor.

       Before imposing sentence on November 18, 2004, the district court expressly found
No. 04-6429                                                                                 5

that there was “ample evidence” that defendant had not been fully forthcoming with respect

to his involvement in the charged offense; that his statements and testimony were clearly at

odds with the recordings of the telephone conversations between defendant and his

codefendant Vasquez-Bahena; and that, as a result, defendant would not receive the

adjustment for acceptance of responsibility and would be disqualified from relief under the

safety valve provisions of the guidelines. Crediting the testimony of Vasquez-Bahena, the

district court found the offense of conviction involved between 3½ and 5 kilograms of

cocaine—an amount consistent with the stipulation in the plea agreement. Based on the

defendant’s “lack of candor” about his involvement, the district court further concluded that

the government was released from its contractual obligations under the plea agreement. The

district court nonetheless rejected Centeno’s testimony as not credible and refused to include

the 25 to 30 kilograms of cocaine as relevant conduct. The offense level, based on 3½ to 5

kilograms of cocaine, was 30 and resulted in a sentencing guideline range of 97 to 121

months’ imprisonment. Defendant was sentenced at the bottom of that range to a term of 97

months’ imprisonment, and this appeal followed.

                                             II.

A.     Breach of the Plea Agreement

       Defendant argues that the government breached the plea agreement by advocating that

his sentence be based on relevant conduct that involved quantities of cocaine well in excess

of the maximum quantity stipulated to in the plea agreement. If the government breaches a

plea agreement, the breach may be remedied by requiring specific performance or permitting

the defendant to withdraw the plea. United States v. Skidmore, 998 F.2d 372, 375 (6th Cir.
No. 04-6429                                                                                 6

1993). The issue of whether the government breached the agreement is reviewed de novo.

United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000).

       In arguing that the government breached the plea agreement, however, defendant

relies on the September 13 Order to establish not only that the government was bound by the

stipulation as to quantity but also that the sentence would be based on no more than 500

grams of cocaine. As is clear from the recitation of the facts, this position misrepresents or

at least misapprehends the record. Rather, free to revisit its own orders, the district court

made a determination based on the evidence presented that defendant failed to fulfill his

obligation under the plea agreement to provide complete and truthful information concerning

the offense of conviction. Defendant does not directly challenge or even acknowledge this

determination, which we find was supported by the record.

       Defendant does not dispute that he maintained during the proffer interview that he was

involved in only one 500-gram cocaine transaction with Vasquez-Bahena. Also, although

defense counsel filed a sentencing memorandum conceding that defendant had supplied the

cocaine for all three controlled purchases, that concession was later contradicted by

defendant’s own testimony during the sentencing proceedings that followed. Ultimately, the

district court seemed to accept the defendant’s equivocal admission of involvement in the

three controlled purchases, but found that it was “pretty clear that his involvement [was] in

excess of the two half kilograms plus 2 ounces that he has owned up to so far, and that the

telephone recordings show dealing in more than that.” The district court found the defendant

had not been fully forthcoming or truthful about his conduct and, crediting the testimony of

Vasquez-Bahena, concluded that the defendant’s offense involved between 3½ and 5
No. 04-6429                                                                                  7

kilograms of cocaine. Referring to the earlier finding “with respect to the [d]efendant’s lack

of complete candor here in his description of his involvement,” the district court concluded

that the government was “released from its contractual obligation under the plea agreement.”

       We find the district court did not err in determining that the government was released

from the stipulation as to quantity by defendant’s failure to provide complete and truthful

information concerning the offense of conviction. Therefore, the government did not breach

the plea agreement by arguing that the district court should include the additional 25 to 30

kilograms of cocaine allegedly supplied to Centeno as relevant conduct in calculating the

sentencing guideline range. Moreover, because the district court rejected that evidence,

defendant’s sentence was in fact based on quantities that did not exceed the stipulated

amount.

B.     Sentencing Guideline Calculation

       First, relying again on the September 13 Order, defendant argues that the district court

erred by failing to impose sentence in accordance with the plea agreement based upon 500

grams of cocaine. It is abundantly clear that the plea agreement stipulated only that the

quantity involved was less than 5 kilograms and that the statement in the September 13 Order

concerning quantity was not the district court’s final determination of the issue. The district

court specifically found that the quantity involved in the offense of conviction was between

3½ and 5 kilograms of cocaine, which does not exceed the stipulated amount in the plea

agreement. Defendant does not otherwise challenge the finding as to quantity.

       Second, defendant contends that the district court erred when it denied him a two-level

reduction in the offense level for acceptance of responsibility under USSG § 3E1.1(a)
No. 04-6429                                                                                                  8

(2003).2 The defendant bears the burden of proving by a preponderance of the evidence that

he merits a reduction for acceptance of responsibility. United States v. Benjamin, 138 F.3d

1069, 1075 (6th Cir. 1998). In determining whether to grant a reduction, the appropriate

considerations include:

        truthfully admitting the conduct comprising the offense(s) of conviction, and
        truthfully admitting or not falsely denying any additional relevant conduct for
        which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note
        that a defendant is not required to volunteer, or affirmatively admit, relevant
        conduct beyond the offense of conviction in order to obtain a reduction under
        subsection (a). A defendant may remain silent in respect to relevant conduct
        beyond the offense of conviction without affecting his ability to obtain a
        reduction under this subsection. However, a defendant who falsely denies, or
        frivolously contests, relevant conduct that the court determines to be true has
        acted in a manner inconsistent with acceptance of responsibility[.]

USSG § 3E1.1, comment. n. 1(a). The district court’s determination on this issue is reviewed

for clear error. United States v. Webb, 335 F.3d 534, 536-38 (6th Cir. 2003).

        Defendant argues on appeal that it was error to consider his silence regarding the

alleged relevant conduct in denying him the reduction for acceptance of responsibility. As

alluded to earlier, the district court did not reference the relevant conduct in denying him this

reduction. Instead, the focus was on the defendant’s failure to be truthful concerning the

extent of his involvement in the offense of conviction. That is, the district court found

defendant’s testimony and statements were “at odds” with the recordings of the intercepted

telephone conversations between him and Vasquez-Bahena. The district court explained


        2
          The presentence report recommended an additional one-level reduction under USSG § 3E1.1(b),
which applies “[i]f the defendant qualifies for a decrease under subsection (a), the offense level determined
prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that
the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court to allocate their resources efficiently[.]”
No. 04-6429                                                                                     9

       that it’s pretty clear that his involvement is in excess of the two half kilograms
       plus 2 ounces that he has owned up to so far, and that the telephone recordings
       show dealing in more than that.

              So, I am going to hold that the [d]efendant has not been fully
       forthcoming, and not fully truthful in his rendition of what he said he did, and
       his conduct here.

               Now that’s going to have the effect of disqualifying him from the safety
       valve on the sentence to be imposed here. It is also going to disqualify him for
       acceptance points. As to quantity, we have testimony that I think is credible
       from the codefendant here, Vasquez-Bahena, that there is involvement here of
       this [d]efendant of somewhere between three and a half to five kilograms.

The district court identified the base offense level and guideline range, which the district court

again noted “would not be reduced by any acceptance points and would not be reduced by the

safety valve.” Having made this determination, the district court then turned to the question

of the alleged relevant conduct—the additional 25 to 30 kilograms testified to by Centeno—

and rejected it.

       Given the rejection of the evidence concerning relevant conduct and the focus on

defendant’s involvement in the offense of conviction, we are satisfied that the district court

did not penalize defendant for his lack of cooperation by denying him the reduction for

acceptance of responsibility. Rather, the record demonstrates that the district court’s denial

was based on defendant’s failure to truthfully admit the conduct involved in the offense of

conviction. Accordingly, we find that the district court did not clearly err in denying

defendant a reduction in the offense level for acceptance of responsibility.

       AFFIRMED.
