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United States v. Cota-Luna

United States Court of Appeals, Sixth Circuit

June 4, 2018


v.
Alejandro Cota-Luna (17-3692); Antonio Navarro-Gaytan (17-3694), Defendants-Appellants.

          Argued: May 2, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:16-cr-00307-John R. Adams, District Judge.

         ARGUED:

          Jaime P. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for Appellant in 17-3692.

          Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant in 17-3694.

          Duncan T. Brown, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Jaime P. Serrat, Marisa L. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for Appellant in 17-3692.

          Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant in 17-3694.

          Duncan T. Brown, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

          OPINION

          CLAY, Circuit Judge.

         Defendants Alejandro Cota-Luna and Antonio Navarro-Gaytan appeal their convictions and sentences for conspiracy to possess with intent to distribute at least 92 kilograms of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. For the reasons set forth below, we VACATE Defendants' convictions and sentences and REMAND their cases with instructions for the district court to reconsider whether to accept the plea agreements the parties offered under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. We further order that the cases be reassigned on remand to a different district court judge.

         FACTUAL AND PROCEDURAL HISTORY

         In early September 2016, an agent of the Drug Enforcement Agency in Ohio learned from colleagues in California that a particular tractor trailer traveling to Cleveland, Ohio, likely contained narcotics. When the truck arrived in Cleveland the next morning, investigators were waiting. They watched as the driver parked in a fenced-in lot behind a large commercial building. Thirty minutes later, a small Nissan sedan driven by Defendants Cota-Luna and Navarro-Gaytan entered the parking lot, stopping near the truck. The drivers of the two vehicles talked; when they finished, they maneuvered their vehicles to a secluded area of the lot. The driver of the truck unhitched the trailer and drove away in the cab. Investigators did not follow him, and he was never identified.

         After the truck driver left, Cota-Luna and Navarro-Gaytan approached the trailer. Using flashlights, they appeared to work on a secret compartment underneath the trailer. At various points, they walked back and forth between the trailer and sedan, apparently moving items between the vehicles. After around thirty minutes, they drove away in the sedan, leaving the trailer unattended.

         A short while later, Ohio State Troopers stopped Defendants' vehicle, allegedly for speeding. During the stop, a narcotics detection dog sniffed the car and alerted the officers to the possible presence of narcotics. The officers searched the car but did not find any drugs, money, or illegal items. Instead, they found tools-including screwdrivers, pry bars, and a headlamp- as well as a notebook filled with writing in Spanish. The officers photographed some of the items, including the notebook, but allowed Cota-Luna and Navarro-Gaytan to leave with a warning for speeding.

         After Cota-Luna and Navarro-Gaytan were released, law enforcement officers obtained a search warrant for the secret compartment underneath the trailer, which remained unattended in the parking lot. When executing the warrant, officers discovered that the trailer actually had two secret compartments, containing around 92 kilograms of cocaine. Cota-Luna and Navarro-Gaytan were arrested in a hotel, and officers seized three cell phones and the Spanish notebook. One cell phone contained coded text messages to and from different phone numbers. The notebook was translated and contained the decoded messages: detailed information regarding when and where the tractor trailer would arrive in Cleveland and instructions to contact certain phone numbers once Cota-Luna and Navarro-Gaytan located the trailer.

         In late September 2016, Cota-Luna and Navarro-Gaytan were charged with two crimes: (1) conspiracy to possess with intent to distribute at least 92 kilograms of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and (2) possession with intent to distribute at least 92 kilograms of a mixture or substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. The mandatory minimum sentence for each offense was 10 years' imprisonment. See 21 U.S.C. § 841(b)(1)(A).

         The parties began plea negotiations and quickly agreed that Defendants played only a small role in the drug conspiracy. In particular, the parties agreed that Defendants, who lived in Mexico, were unaware of the nature and amount of drugs contained in the trailer; relied entirely on directions sent to Cota-Luna by cell phone; did not organize or plan the criminal activity; and were unable to open the secret compartments under the trailer because they lacked the proper tools. The parties further agreed that Defendants participated in the crime due to threats from the Mexican drug cartel that recruited them. According to the government, there was no reason to think that either Defendant stood to profit in any way from the criminal transaction. In addition, both Defendants had accepted responsibility for their actions, cooperated fully with the government, and expressed remorse. In short, the parties saw Defendants as pawns in a dangerous game run by a large, powerful Mexican drug cartel. As the government would later explain, international drug traffickers often use "highly segmented and compartmentalized stages during shipment." (R. 74, government sentencing memorandum, PageID# 679.) This ensures that "no single actor is fully aware of the scope of the whole conspiracy, thus if they are caught, there is little useable [sic] information provided to law enforcement." (Id.)

         Defendants agreed to plead guilty to the conspiracy count under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. That rule authorizes plea agreements that, if accepted by the district court, specify the exact sentence the district court must enter. See Fed. R. Crim. P. 11(c)(1)(C). In calculating Defendants' offense levels under the United States Sentencing Guidelines, the plea agreements began with a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (base offense level of 34 applies if the crime involved at least 50 but less than 150 kilograms of cocaine). The plea agreements then applied the "Safety Valve" guideline, § 5C1.2, which authorizes a sentence below the mandatory minimum for certain defendants with little or no criminal history. See U.S.S.G. § 5C1.2. This triggered a two-point offense-level reduction under an associated guideline, § 2D1.1(b)(17). See § 2D1.1(b)(17) (applying a two-point offense-level reduction if the Safety Valve guideline was applied). Next, the plea agreements provided for a four-point offense-level reduction under guideline § 3B1.2(a) for being "minimal participants" in the drug conspiracy; a three-point offense-level reduction under guideline § 2D1.1(a)(5)(ii) for being minimal participants in a crime involving a large amount of drugs; a two-point offense-level reduction under guideline § 2D1.1(b)(16) for being minimal participants who, inter alia, acted out of fear; and a three-point offense-level reduction under guideline § 3E1.1 for acceptance of responsibility. This resulted in a final offense level of 20 for each Defendant. In light of this offense level and the circumstances of the case, the plea agreements specified that Cota-Luna should be sentenced to exactly 36 months' imprisonment and that Navarro-Gaytan should be sentenced to exactly 33 months' imprisonment.[1]

         In January 2017, the parties attended a change of plea hearing, expecting to enter the plea agreements. To their surprise, the district court rejected the agreements. When the government asked for an explanation, the district court refused to answer, saying "I don't think it's appropriate" to discuss the matter. (R. 104, plea hearing transcript, PageID# 935.) But the parties persisted, asking whether the court objected to the guidelines calculations in the plea agreements. The district court responded:

Guidelines are advisory. They are just the starting point. I've got to consider the-I have to consider the nature and circumstances of the offense, all the overall conduct. We have, what, 90 plus kilograms of cocaine? I have other relevant ...

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