     13-1334-cr
     United States v. Beltre

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of April, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                              Circuit Judges,
 9                CHRISTINA REISS,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Unite States of America,
14
15                    Appellee,
16
17                    -v.-                                               13-1334-cr
18
19       Joel Beltre, AKA Matumbo,
20
21                    Defendant-Appellant,
22



                *
               Chief Judge Christina Reiss, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   Ismael Canales, AKA Ish, Jose Medina,
 2   AKA Lou, Jonathan Rodriguez, AKA Cabo,
 3   Nikolaos Antonakos, AKA Mist, Javier
 4   Delarosa, AKA Javi, Ivan Canales,
 5   Edwin Ruiz, Michael Cotto, AKA Mikey,
 6   AKA Gordo,
 7
 8            Defendants.
 9   - - - - - - - - - - - - - - - - - - - -X
10
11   FOR APPELLANT:             BERNARD ALAN SEIDLER, New York,
12                              New York.
13
14   FOR APPELLEES:             SARAH E. PAUL, JUSTIN S. WEDDLE,
15                              on the brief, for Preet Bharara,
16                              United States Attorney for the
17                              Southern District of New York,
18                              New York, New York.
19
20
21        Appeal from a judgment of the United States District
22   Court for the Southern District of New York (Sullivan, J.).
23
24        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25   AND DECREED that the judgment of the district court be
26   AFFIRMED.
27
28        Joel Beltre (“Beltre”) appeals from a judgment of the
29   United States District Court for the Southern District of
30   New York (Sullivan, J.) sentencing him, following a guilty
31   plea, to 66 months’ imprisonment for conspiracy to
32   distribute, and possession with intent to distribute, 100
33   grams or more of a substance containing a detectable amount
34   of heroin. On appeal, Beltre argues that his sentence was
35   procedurally unreasonable because the district court
36   improperly (1) denied him “safety valve” relief pursuant to
37   18 U.S.C. § 3553(f); (2) applied a 2-point offense level
38   increase for obstruction of justice; and (3) denied him an
39   offense level reduction for acceptance of responsibility.
40   In addition, Beltre challenges the denial of his motion to
41   withdraw his guilty plea. We assume the parties’
42   familiarity with the underlying facts, the procedural
43   history, and the issues presented for review.
44
45        Sentences are reviewed for procedural error and
46   substantive reasonableness. United States v. Cavera, 550

                                  2
 1   F.3d 180, 189-90 (2d Cir. 2008) (en banc). “A district
 2   court commits procedural error where it fails to calculate
 3   the Guidelines range (unless the omission of the calculation
 4   is justified), makes a mistake in its Guidelines
 5   calculation, . . . treats the Guidelines as mandatory[,]
 6   . . . does not consider the Section 3553(a) factors, or
 7   rests its sentence on a clearly erroneous finding of fact.”
 8   Id. at 190 (citations omitted); see also Gall v. United
 9   States, 552 U.S. 38, 51 (2007). If we conclude that there
10   was no procedural error, we “then consider the substantive
11   reasonableness of the sentence imposed under an
12   abuse-of-discretion standard.” Gall, 552 U.S. at 51. That
13   review “take[s] into account the totality of the
14   circumstances, giving due deference to the sentencing
15   judge’s exercise of discretion, and bearing in mind the
16   institutional advantages of district courts.” Cavera, 550
17   F.3d at 190.
18
19        The district court properly calculated the Guidelines
20   range of 78 to 97 months’ imprisonment, with a mandatory
21   minimum term of 60 months. As explained below, this
22   calculation accounts for the denial of safety-valve relief,
23   the two-level increase to the base offense level for
24   obstruction of justice, and the denial of the three-point
25   reduction for acceptance of responsibility.
26
27        The 66-month sentence was also substantively
28   reasonable. The sentence imposed was just six months above
29   the mandatory minimum, and well below the Guidelines range.
30   The district court explained to Beltre at sentencing that
31   “to give you 60 months would be to treat you like someone
32   who fully accepted responsibility and someone who didn’t
33   make false statements about counsel and about the plea that
34   I witnessed, and so I think it would be wrong to sentence
35   you to only 60 months.” This decision rested well within
36   the district court’s discretion.
37
38   1.   The safety-valve provisions set forth in 18 U.S.C. §
39   3553(f) and U.S.S.G. § 5C1.2 entitle a defendant to “a
40   sentence in accordance with the applicable guidelines
41   without regard to any minimum statutory sentence,” but only
42   if (inter alia) “not later than the time of the sentencing
43   hearing the defendant has truthfully provided to the
44   Government all information and evidence the defendant has
45   concerning the offense or offenses that were part of the
46   same course of conduct or of a common scheme or plan.”
47   U.S.S.G. § 5C1.2(a)(5); 18 U.S.C. § 3553(f)(5). Pursuant to

                                  3
 1   U.S.S.G. § 2D1.1(b)(6), a defendant who meets the safety-
 2   valve criteria is also eligible for a two-point offense
 3   level reduction.
 4
 5        The defendant bears the burden of proving safety-valve
 6   eligibility by a preponderance of the evidence.1 United
 7   States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006). In
 8   advance of sentencing, the defendant must provide to the
 9   government “an exhaustive and truthful portrayal of his
10   knowledge of his offense conduct and all related activity.”
11   United States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir.
12   2004). Unless the defendant discloses all he knows, the
13   safety-valve reduction is properly denied. United States v.
14   Conde, 178 F.3d 616, 620 (2d Cir. 1999). The district
15   court’s factual findings in this regard are accepted unless
16   clearly erroneous. United States v. Ortiz, 136 F.3d 882,
17   883 (2d Cir. 1997).
18
19        The record supports the district court’s finding that
20   Beltre failed to provide truthful and complete information
21   about his offense. During his plea allocution, Beltre
22   admitted to entering into an agreement to distribute 104
23   grams of heroin. Just over one month later, Beltre (through
24   new counsel) filed a motion seeking to withdraw his guilty
25   plea, and averred in his attached, sworn affidavit that he
26   had never entered into an agreement to distribute 100 grams
27   or more of heroin, and that his former counsel, Margaret
28   Shalley, had been deficient in numerous respects. In two
29   subsequent safety-valve proffers, Beltre continued to deny
30   that he ever had an agreement to distribute heroin. At a
31   later hearing, Shalley testified that Beltre admitted to her
32   (on several occasions) that he had purchased and resold
33   heroin, in amounts totaling more than 100 grams. Calvin
34   Scholar, Shalley’s mentee, also testified that Beltre told
35   Scholar multiple times that Beltre had been involved in
36   sales of heroin in quantities greater than 100 grams. The
37   district court credited the testimony of Shalley and


         1
           This remains the standard following the United States
     Supreme Court’s decision in United States v. Booker, 543
     U.S. 220 (2005). See, e.g., United States v. Jimenez, 451
     F.3d 97, 102 (2d Cir. 2006) (“The fact that mandatory
     minimums have taken on increased significance after Booker
     . . . does not undermine our decision to place the burden of
     proof on the defendant to demonstrate his eligibility for
     safety-valve relief.”).
                                  4
 1   Scholar, along with Beltre’s plea allocution, and determined
 2   that Beltre had lied in his affidavit. This finding is
 3   amply supported by testimony of Beltre himself and others.
 4
 5   2.   An enhancement for obstruction of justice is
 6   appropriate when a defendant has “willfully obstructed or
 7   impeded, or attempted to obstruct or impede, the
 8   administration of justice with respect to the investigation,
 9   prosecution, or sentencing of the instant offense of
10   conviction.” U.S.S.G. § 3C1.1. Where “the defendant has
11   clearly lied in a statement made under oath, the court need
12   do nothing more . . . than point to the obvious lie and find
13   that the defendant knowingly made a false statement on a
14   material matter.” United States v. Lincecum, 220 F.3d 77,
15   80 (2d Cir. 2000) (internal quotation marks omitted). In
16   reviewing an obstruction of justice enhancement, we “accept
17   the district court’s findings of fact unless they are
18   clearly erroneous” and “review de novo a ruling that the
19   established facts constitute obstruction of justice.” Id.
20   at 80.
21
22        The record supports the finding that Beltre lied in his
23   affidavit when he denied entering into an agreement to
24   distribute 100 grams or more of heroin. This statement was
25   directly contradicted by Beltre’s own plea allocution and
26   the testimony of both Shalley and Scholar. Beltre’s
27   statements therefore support the obstruction enhancement.
28
29   3.   “A defendant who enters a guilty plea is not
30   automatically entitled to an adjustment for acceptance of
31   responsibility.” United States v. Ortiz, 218 F.3d 107, 108
32   (2d Cir. 2000). “Although a guilty plea, combined with
33   truthful statements about the defendant’s offense and other
34   relevant conduct, is significant evidence of acceptance of
35   responsibility, it can be outweighed by conduct that is
36   inconsistent with acceptance of responsibility.” Id.
37   (internal quotation marks omitted). The sentencing court
38   “‘is in a unique position to evaluate a defendant’s
39   acceptance of responsibility,’ and therefore its
40   determination whether to grant the reduction is ‘entitled to
41   great deference on review.’” United States v. Zhuang, 270
42   F.3d 107, 110 (2d Cir. 2001) (quoting U.S.S.G. § 3E1.1 cmt.
43   n.5).
44
45        The record supports denial of a three-point reduction
46   for acceptance of responsibility. The district court found
47   that Beltre submitted a false affidavit, instead crediting

                                  5
 1   the testimony of Beltre’s former counsel. Beltre continued
 2   to insist at sentencing that Shalley had made him “plead[]
 3   out to heroin,” which was “something I didn’t do.” This
 4   post-plea disavowal of guilt may be treated as inconsistent
 5   with acceptance of responsibility. See U.S.S.G. § 3E1.1
 6   cmt. n.4 (“Conduct resulting in an enhancement under § 3C1.1
 7   (Obstructing or Impeding the Administration of Justice)
 8   ordinarily indicates that the defendant has not accepted
 9   responsibility for his criminal conduct.”).
10
11   4.   A motion to withdraw a guilty plea prior to sentencing
12   is governed by Fed. R. Crim. P. 32(e). “Although Rule 32(e)
13   provides that a defendant may move to withdraw a guilty plea
14   upon a showing of a ‘fair and just reason,’ . . . a
15   defendant has no absolute right to withdraw his guilty plea.
16   The defendant bears the burden of demonstrating valid
17   grounds for relief.” United States v. Torres, 129 F.3d
18   710, 715 (2d Cir. 1997) (internal citation, quotation marks,
19   and brackets omitted). “To get permission to withdraw a
20   guilty plea, a defendant must raise a significant question
21   about the voluntariness of the original plea. A defendant’s
22   bald statements that simply contradict what he said at his
23   plea allocution are not sufficient grounds to withdraw the
24   guilty plea.” Id. (internal citation omitted). We review
25   the district court’s denial of a motion to withdraw a guilty
26   plea for abuse of discretion. Id.
27
28        The record confirms that Beltre’s plea was voluntary
29   and knowing. Beltre affirmed that he had read the plea
30   agreement, had “a full opportunity to discuss” the document
31   with his lawyers, and was “able to ask them any questions”
32   he had. Beltre explicitly denied that anyone was forcing
33   him to sign the plea agreement. “Considering that
34   statements at a plea allocution carry a strong presumption
35   of veracity, and that his unequivocal admissions under oath
36   contradict his unsupported assertions of pressure, the
37   district court did not abuse its discretion in denying [the]
38   motion.”2 Torres, 129 F.3d at 715 (internal citation
39   omitted).


         2
           Beltre argues that the government must demonstrate it
     suffered prejudice for the court to deny the motion to
     withdraw the plea. However, “the government need not
     demonstrate prejudice where the defendant fails to show
     sufficient grounds to justify withdrawal of the plea.”
     Torres, 129 F.3d at 715.
                                  6
1
2        For the foregoing reasons, and finding no merit in
3   Beltre’s other arguments, we hereby AFFIRM the judgment of
4   the district court.
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8
9




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