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United States v. Tapia

United States Court of Appeals, Fifth Circuit

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ROSALIO RAMOS TAPIA, also known as Rosalio Ramos, also known as Chale, also known as Mocho, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.

          KURT D. ENGELHARDT, Circuit Judge.

         Rosalio Ramos Tapia pleaded guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(viii). The district court sentenced Tapia to 210 months of imprisonment and four years of supervised release based on a drug-quantity finding of 45 kilograms or more of methamphetamine. Tapia appeals his sentence, contending that the Government breached the plea agreement by using protected proffer information to support a higher drug-quantity finding. We AFFIRM.

         After being indicted for conspiracy to distribute and to possess with intent to distribute methamphetamine, Tapia entered into a proffer agreement on August 24, 2016, with the United States Attorney's Office for the Northern District of Texas. Under the proffer agreement, Tapia was required to "tell the truth" and was prohibited from, among other things, "withhold[ing] any material information" and "seek[ing] to minimize [his] own or anyone else's criminal activity." Law enforcement agents then interviewed Tapia, wherein he estimated participating in transactions of methamphetamine totaling approximately 21 kilograms.

         On September 14, 2016, Tapia pleaded guilty, pursuant to a plea agreement, to a superseding information charging that he conspired to distribute and to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine.[1]As part of the plea agreement, Tapia agreed to "give complete and truthful information and/or testimony concerning his participation in the offense of conviction." In exchange, the Government agreed not to bring any additional charges against Tapia based upon the conduct underlying and related to his guilty plea.

         A supplement to the plea agreement provided that Tapia further agreed to fully cooperate with the Government and to provide, in any proceeding, information or testimony that is truthful and complete regarding his participation in the offense of conviction and his knowledge of criminal activities. The Government agreed to move for a downward departure under U.S.S.G. § 5K1.1, in the event the Government, "in its sole discretion," determined that Tapia "cooperated and provided substantial assistance in the investigation or prosecution of others." Most importantly to the dispute on appeal, the supplement also contained a provision regarding information proffered by Tapia:

The government agrees that U.S.S.G. § 1B1.8 is applicable to the defendant. Any information provided by the defendant, other than that charged in the indictment, in connection with the defendant's assistance to the United States, including debriefing and testimony, will not be used to increase the defendant's Sentencing Guideline level or used against the defendant for further prosecution, if in the opinion of the United States Attorney the defendant has met all of the defendant's obligations under the Plea Agreement and provided full, complete, and truthful information and testimony. However, nothing revealed by the defendant during the defendant's debriefings and testimony would preclude the defendant's prosecution for any violent crime.

         As calculated in the presentence report (PSR), Tapia's base offense level was 38, upon a finding that Tapia was responsible for a total of 67 kilograms of methamphetamine.[2] After two two-level enhancements[3] and a three-level reduction[4], Tapia's total offense level of 39 combined with a category I criminal history yielded a guidelines range of 262-327 months of imprisonment. Tapia filed written objections to the PSR, including an objection to the PSR's drug-quantity finding, in which he denied responsibility for the 65 kilograms derived from CD1's statements to agents. The Government filed a response, in which it included, among other exhibits, FBI reports in support of CD1's credibility and reliability, as well as Tapia's proffer information.[5] Subsequently, the Government filed a motion under § 5K1.1, asking that Tapia's total offense level be reduced by two levels, from 39 to 37. Observing that such a reduction would lower Tapia's guidelines range to 210 to 262 months of imprisonment, the Government requested a sentence of 210 months of imprisonment.

         At sentencing, Tapia reiterated his objection to the 65 kilograms of methamphetamine relating to CD1. Tapia admitted that he had transactions with CD1 but asserted that the transactions totaled no more than six to eight kilograms. Tapia then contended that he should be held responsible for 5 to 15 kilograms of methamphetamine, a range that corresponded to a base offense level of 34. In addressing the information detailed in the Government's response to Tapia's PSR objections, Tapia spoke about the Government's use of his own proffer. Tapia then contended that CD1's information attributing 65 kilograms of methamphetamine to Tapia was not corroborated by the other information presented by the Government.

         In response, the Government urged the court to consider the "entire investigation" and began by reviewing the amounts of methamphetamine identified throughout the PSR. The Government then asserted that Tapia's own proffer indicated he was responsible for more than 5 to 15 kilograms of methamphetamine. From that proffer information, the Government identified a minimum of 21 kilograms of methamphetamine attributable to Tapia. The Government ultimately contended that the 65-kilogram quantity was supported by a preponderance of the evidence and that Tapia's objection to the drug quantity should be overruled.

         The district court overruled Tapia's objection to the PSR's drug-quantity finding, reasoning that the Government had shown by a preponderance of the evidence that the drug quantity exceeded 45 kilograms of methamphetamine, the threshold for a base offense level of 38. The court granted the Government's § 5K1.1 motion, thereby reducing Tapia's total offense level from 39 to 37. The statement of reasons reflects that the district court adopted the PSR and PSR addendum without change. Tapia's guidelines range after the § 5K1.1 departure was 210 to 262 months of imprisonment, and the district court sentenced him to 210 months of imprisonment and four years of supervised release. Tapia did not object to the sentence after its pronouncement. He timely filed a notice of appeal. See Fed. R. App. P. 4(b)(1)(A)(i).

         On appeal, Tapia contends that the Government breached the plea agreement by using information from his proffer to advocate for a higher sentence. First, Tapia argues that he preserved this issue for appeal by objecting to the Government's use of proffer information during the sentencing hearing. Second, he asserts that the district court erred by relying on the protected proffer information in making its drug-quantity finding, which resulted in a ...


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