                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2006

USA v. Dacua
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2517




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2517


                           UNITED STATES OF AMERICA

                                           v.

                                  PAMFILO DACUA,
                             a/k/a MICHAEL MONTOYA

                                                      Pamfilo Dacua,
                                                                Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 04-cr-00774
                            (Honorable Berle M. Schiller)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 27, 2006

       Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN*, Circuit Judges

                                 (Filed: May 24, 2006)


                              OPINION OF THE COURT




   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Pamfilo Dacua appeals his criminal sentence. We have jurisdiction under 28

U.S.C § 1291 and 18 U.S.C. § 3742(a). We will affirm.

       On November 19, 2003, Dacua informed the FBI that he had been approached by

an individual, Ahmed, who sought his assistance in smuggling VX, a nerve agent, into the

United States. In reality, no such plot existed. Dacua fabricated the story in the hopes of

obtaining a place in the witness protection program for his “assistance” in revealing the

alleged VX plot. Dacua used the name of a real person, lending some credibility to his

story. To further his scheme, Dacua set up “meetings” with the fictitious Ahmed and

another invented person, Didi, a drug source allegedly provided by Ahmed. The FBI

prepped Dacua for each meeting, outfitted him with a body recorder, and conducted

surveillance, but all to no avail. Neither Ahmed nor Didi showed up. Dacua also

recruited friends to play the parts of Didi and Ahmed in several scripted recordings, made

for the benefit of the agents he hoped to deceive.

       In late December 2003, the FBI confronted Dacua and advised him of their doubts

about the veracity of his story. Dacua continued to lie to the FBI, inventing further facts

in support of his scheme. But later, when the authorities confronted Dacua again, he

confessed to having fabricated the story for his own interests.

       On December 9, 2004, Dacua was charged with three counts of making false

statements in violation of 18 U.S.C. § 1001(a)(2). At the plea colloquy, Dacua pleaded

guilty to all counts, and admitted to the facts as presented by the government. The

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presentence report (PSR) designated an adjusted offense level of 10 and a criminal history

score of VI — adding two points for Dacua’s leadership role in recruiting two people to

assist in making the fake recordings, and two more points for obstruction of justice based

on Dacua’s lies to the FBI in December 2003, when he was first confronted about his

story. In light of the obstruction of justice recommendation, the Probation Office

declined to recommend a reduction for Dacua’s eventual acceptance of responsibility.

       Dacua made several objections to the PSR, including to the obstruction of justice

and leadership role adjustments. He also asserted entitlement to a reduction for

acceptance of responsibility. Finally, he filed a motion for downward departure based on

his alleged cooperation with state authorities in a separate homicide case. Dacua asserted

his testimony in the state trial led to a double murder conviction, although he presented no

witnesses to bolster this claim.1

       At the sentencing hearing, the District Court awarded upward adjustments for

obstruction of justice and leadership role, but granted Dacua’s request for credit for

acceptance of responsibility. The District Court also denied Dacua’s motion for a

downward departure. As a result, the court placed Dacua at a total offense level of 8,

with a criminal history score of VI, resulting in an advisory guidelines range of 18 to 24

months. The government urged the court to sentence Dacua at the high end of the range,

in view of Dacua’s exploitation of a particularly sensitive issue of national concern


   1
    Dacua’s counsel asserted he subpoenaed a detective involved in the state case, but the
detective did not appear to support the motion.

                                             3
(terrorism), the danger he caused by implicating real individuals in his plot, and the

resources expended in responding to his fabricated story. The District Court sentenced

Dacua to 22-months’ imprisonment, stating the sentence reflected the considerations

listed in 18 U.S.C. § 3553(a). The court noted it considered Dacua’s cooperation in the

state case in declining to sentence him at the very top of the advisory guidelines range.

       On appeal, Dacua challenged the District Court’s decisions declining to depart

downward for cooperation and assessing the two-level upward adjustment for obstruction

of justice.2 The government asserted we did not have jurisdiction to review either the

reasonableness of Dacua’s sentence or the District Court’s decision not to depart. We

requested further briefing from the parties to determine the impact of this Court’s decision

in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), on Dacua’s appeal.

       In response, the government concedes (as it must) our jurisdiction to review

Dacua’s sentence for reasonableness under Cooper, 437 F.3d at 327, although it contends

we must review for plain error because Dacua did not object to his sentence as

unreasonable at trial. This argument is meritless. Dacua raised before the District Court

the particular grounds he now asserts justify a lighter sentence. This is all that is required

under Cooper. Id. at 329 (noting a sentence may be found unreasonable “if at sentencing

either the defendant or the prosecution properly raises a ground of recognized legal merit

(provided it has a factual basis) and the court fails to address it”) (quotation omitted).



   2
    Dacua does not challenge on appeal the leadership role adjustment to his sentence.

                                               4
       Dacua now urges us to remand for re-sentencing because it is not clear from the

record “if the District Court granted the downward departure motion.” (Appellant’s

Letter Br. 2.) There is no confusion in the record on this point. The District Court

expressly denied the downward departure motion, but took Dacua’s cooperation into

account in imposing sentence. (App. 78, 80.)

       We also reject Dacua’s original challenges to the District Court’s downward

departure and obstruction of justice decisions. We do not have jurisdiction to review a

district court’s decision not to depart downward. See Cooper, 437 F.3d at 322–33. And

Dacua’s argument that his “stupidity” at the December 2003 interview, as he describes it,

rebuts the obstruction of justice adjustment is meritless. When confronted by the FBI,

Dacua did more than deny his previous crimes, he fabricated additional facts in

furtherance of his scheme.

       The District Court’s sentence was not unreasonable. The court engaged in a

thorough inquiry into the facts of Dacua’s case. Accordingly, we will affirm the

judgment of sentence.




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