USA v. Jorge Chavez

Filing

Opinion issued by court as to Appellant Jorge Chavez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17439
Non-Argument Calendar
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D.C. Docket No. 1:95-cr-00361-DTKH-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE CHAVEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 16. 2017)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:

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After pleading guilty, Jorge Chavez appeals his 121-month sentence for
conspiracy to import cocaine, in violation of 21 U.S.C. § 963. On appeal, Chavez
argues that his sentence is procedurally unreasonable because the district court
considered hearsay evidence at sentencing and denied Chavez’s request for credit
for time he served in a Peruvian jail while awaiting extradition. After review, we
affirm.
I. BACKGROUND FACTS
In May 1995, Chavez was involved in a scheme to import cocaine from Peru
into the United States using a tropical fish importation business. Pursuant to a plea
agreement, in August 1995, Chavez pled guilty to one count of conspiracy to
import cocaine. Chavez agreed to cooperate with the government, including
testifying in judicial proceedings and working in an undercover role. To that end,
Chavez was released on bond, and his sentencing was postponed several times.
Chavez’s sentencing hearing finally was set for April 1996, but on that date
Chavez did not appear. The district court issued a warrant for Chavez’s arrest and,
in 1997, declared Chavez a fugitive.
In the meantime, Chavez, while a fugitive, was charged with drug trafficking
in Peru at some point in 1997 or 1998. He remained in jail in Peru until 2002,
when he was given “semi-release,” which Chavez described as similar to
probation. A month or two later, on July 20, 2002, Chavez was re-arrested by
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Interpol and detained on “a federal hold” because the United States had submitted
its extradition request. In 2005, while in jail in Peru, Chavez was charged with,
and convicted of, a separate drug trafficking offense in a Peruvian court and
received an eleven-year sentence. Chavez said he remained in jail in Peru from
July 20, 2002 to November 4, 2015, when he was extradited to the United States.
As already mentioned, the United States submitted a request to the Peruvian
government to extradite Chavez from Peru in 2002. Although Peru granted the
request, execution was postponed while Chavez served his second criminal
sentence in Peru for drug trafficking.
In November 2016, more than twenty years after he pled guilty, Chavez was
sentenced for his federal cocaine importation conspiracy offense. At the
sentencing hearing, the parties disputed, inter alia, whether the district court should
apply a two-level enhancement, pursuant to U.S.S.G. § 3C1.1, for willful
obstruction of justice because Chavez had fled the United States before his
originally scheduled April 1996 sentencing. Chavez testified that he failed to
appear in 1996 because he was kidnapped by Peruvian officials, taken back to
Peru, and incarcerated.
The government, over Chavez’s hearsay objection, submitted a sworn
statement from a now-retired Federal Bureau of Investigation (“FBI”) case agent,
who averred that Chavez’s cooperation with federal investigators before his April
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1996 sentencing hearing was fruitless. The district court discredited Chavez’s
kidnapping story, found that Chavez willingly left the United States, and overruled
Chavez’s objection to the obstruction-of-justice enhancement.
The district court calculated an advisory guidelines range of 121 to 151
months’ imprisonment. After denying Chavez’s request for credit for time served
in the Peruvian jail and considering the 18 U.S.C. § 3553(a) sentencing factors, the
district court imposed a 121-month sentence.
II. DISCUSSION
In reviewing a sentence for procedural reasonableness, this Court considers
whether the district court committed any significant procedural error, such as
miscalculating the advisory guidelines range, treated the guidelines as mandatory,
failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to explain adequately the chosen sentence. See
United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). 1
A.

District Court’s Obstruction-of-Justice Ruling

1

In his opening brief, Chavez states in the heading for his first issue that his sentence is
both procedurally and substantively unreasonable, but makes no argument as to substantive
reasonableness. Thus, we do not address that issue on appeal. See Sapuppo v. Allstate
Floridian. Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (explaining that a party abandons an issue
on appeal by making only a passing reference to it); United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003). (“Under our caselaw, a party seeking to raise a claim or issue on
appeal must plainly and prominently so indicate. Otherwise, the issue—even if properly
preserved at trial—will be considered abandoned.”).
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Prior to Chavez’s 2016 sentencing, the probation office prepared a
presentence investigation report (“PSI”) that, among other things, recommended
applying a two-level increase in Chavez’s offense level, pursuant to U.S.S.G.
§ 3C1.1, for willfully obstructing or impeding the administration of justice. The
PSI stated that Chavez “obstructed the administration of justice by failing to appear
for sentencing in 1995 and leaving the United States” and noted that Chavez had
“been a fugitive until his arrest in Peru in November 2015.”2 Chavez objected to
the obstruction-of-justice enhancement, claiming that he was unable to attend the
1996 sentencing because Peruvian officials had forcibly taken him back to Peru,
where he was arrested and incarcerated.
The government filed a response and sentencing memorandum arguing that
Chavez had offered no proof that he was unwillingly removed from the United
States in 1996 and was not credible. The government attached (1) copies of
Peruvian documents relating to Chavez’s extradition; and (2) an affidavit from
retired FBI agent Scott Wiegmann, the case agent who investigated Chavez’s drug
trafficking activities. In his affidavit, Wiegmann stated that he had refreshed his
recollection by reviewing documents provided by the prosecutor. Wiegmann
averred that after agreeing to postpone Chavez’s sentencing several times and

2

The PSI erroneously stated that Chavez’s original sentencing hearing was in 1995. In
December 1995, the district court granted Chavez’s second motion to continue the sentencing
hearing and re-set Chavez’s sentencing hearing for April 12, 1996.
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meeting with Chavez on numerous occasions to debrief him, Chavez’s cooperation
was not fruitful, and his sentencing was set for April 12, 1996. Wiegmann stated
that he was “confident” that Chavez’s cooperation “did not result in any arrests,
seizures, indictments, or convictions.”
At his 2016 sentencing hearing, Chavez testified that while on bond, he
worked with FBI and Drug Enforcement Agency (“DEA”) agents to help arrest
and prosecute various drug dealers. Before his sentencing hearing, however,
Peruvian officials, working with a DEA agent, kidnapped him and forcibly
returned him to Peru.
After Chavez began to elaborate upon his cooperation with various federal
investigations, the following exchange between the court and defense counsel
occurred:
THE COURT: Can I make a suggestion? I don’t - - this is
really not helpful to me to hear about all of these other things. What I
really need to know is whether the - - I need to know the dates and
factual statement about what Mr. Chavez is contending.
In other words, if he is contending that he literally was taken
from the United States prior to the date of his sentencing. I think that
has to be established. I think it’s admissible that he may have been
trying to help the Government and probably enter a 5K1 for himself or
something else, but I’m afraid that gets us into a tangent that really
isn’t helpful today. I need to know was he taken out of the United
States.
MR. RODRIGUEZ:
I will certainly address that, but I
want the Court to realize that the only reason this is being brought to
your attention is not for purposes of a 5K or a Rule 35, it’s to show
that he had every anticipation and every expectation of receiving a
benefit here, and why would he return to Peru.
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THE COURT: I understand that. I understand all of that.
But I think the factual issue that we have got to deal with is, is it true
that he was literally taken out of the United States and, thereby, was
not able to come to the sentencing.
Defense counsel stated he understood.
As to his failure to appear for sentencing in 1996, Chavez testified that about
four or five months before his 1996 sentencing hearing, two Peruvian police
officers and a United States DEA agent (with whom Chavez said he had previously
worked in Peru) grabbed him as he parked his car at his home. Chavez claimed the
officers tricked him by telling him he “was under arrest for a warrant in Peru,” but
he later learned there was no arrest warrant and he had been kidnapped. The three
officers took Chavez to the Miami airport and escorted him on a commercial flight
to Peru. Chavez said the officers purchased the airline tickets at the airport, and he
was able to board the plane without a passport or any other documentation. Once
in Peru, Chavez said he was immediately arrested for drug trafficking and taken to
jail. Chavez believed he was kidnapped because he had told DEA agents based in
Peru that he “couldn’t cooperate with them any further” because other DEA agents
based in the United States had advised him to concentrate on solving his own
problems and cooperate with them instead.
In response, the government argued that Chavez was not credible for two
reasons. First, the government contended that Chavez’s testimony was internally
inconsistent and had “a lot of holes,” and that his claim that Peruvian officers
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would “conduct essentially an extraordinary rendition” and that a DEA agent
would risk his career to help, “defies common sense and reason.”
Second, the government offered retired agent Wiegmann’s sworn statement
to refute Chavez’s claim that he had no motivation to flee because he expected to
receive a sentence reduction for his cooperation. Chavez objected to the statement
“as hearsay,” but did not elaborate. The district court stated that reliable hearsay is
admissible at sentencing and determined that Wiegmann’s “sworn and notarized
statement” was reliable as “testimony offered under oath.” After reading the
statement, the district court stated that “all Agent Wiegmann says is Mr. Chavez
really never produced anything that they thought was useful. So he doesn’t speak
at all to the issue of the alleged kidnapping.” The district court admitted the
statement over Chavez’s objection.
After hearing argument from the parties, the district court stressed that “the
question is what really happened here.” The district court found Chavez’s
testimony “just simply to be preposterous and not credible,” noting that there were
established extradition procedures and that the “notion that three people show up in
the dead of night and literally kidnap Mr. Chavez is really fairly extraordinary. I
don’t think that it’s credible and worthy of belief.” The district court pointed out
that Chavez already gave testimony (on another objection) that contradicted the unobjected to facts in the PSI, “shaving the truth.” The district court stated that
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Chavez’s story was not impossible, but “it’s so out of the realm of what - - how
governments conduct themselves and how matters like this are handled, that I
simply find that it’s not credible and worthy of belief. For that reason, I’m going
to overrule the defendant’s objection to the two-level enhancement for obstruction
of justice.” The district court found that Chavez chose to exit the United States
prior to the 1996 sentencing when he realized that he would not get a reduction for
cooperation. The district court stated, “the nub of the issue of what he’s talking
about is ‘I wasn’t present at sentencing because I was literally taken from the
United States’ I find not to be credible and worthy of belief. And so I reject that
testimony.”
B.

Chavez’s Hearsay Claim
In determining whether factors exist to support a sentencing enhancement,

the sentencing court may consider any information, including hearsay, regardless
of its admissibility at trial, “provided that the evidence has sufficient indicia of
reliability, the court makes explicit findings of fact as to credibility, and the
defendant has an opportunity to rebut the evidence.” United States v. Ghertler, 605
F.3d 1256, 1269 (11th Cir. 2010); see also 18 U.S.C. § 3661; U.S.S.G. § 6A1.3(a)
(“[T]he court may consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable accuracy.”).
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“A defendant has a due process right, however, not to be sentenced based on
false or unreliable information.” Ghertler, 605 F.3d at 1269. “To prevail on a
challenge to a sentence based on the consideration of such information, a defendant
must show (1) that the challenged evidence is materially false or unreliable and (2)
that it actually served as the basis for the sentence.” Id. The defendant bears the
burden of showing that the district court explicitly relied on the information. Id.
On appeal, Chavez concedes that a district court may consider reliable
hearsay evidence at sentencing. Instead, Chavez argues that: (1) Federal Rule of
Evidence 807 required the government to give him notice of its intent to rely on the
hearsay evidence; (2) former agent Wiegmann’s statement lacked sufficient indicia
of reliability; and (3) the district court failed to make explicit findings as to
Wiegmann’s credibility.
At sentencing, Chavez’s only objection to Wiegmann’s statement was on
hearsay grounds. Chavez did not object to the lack of notice under Rule 807 or to
the sufficiency of the district court’s credibility finding. Accordingly, we review
these issues only for plain error. See United States v. Chau, 426 F.3d 1318, 132122 (11th Cir. 2005).
As to the lack of notice, Chavez cannot show error, much less plain error.
First, the Federal Rules of Evidence do not apply to sentencing proceedings. See
Fed. R. Evid. 1101(d)(3). Therefore, the government was not required to provide
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the notice required by Rule 807. Second, the government attached a copy of
Wiegmann’s statement to its sentencing memorandum filed prior to the sentencing
hearing. Thus, Chavez cannot argue that he was unaware of Wiegmann’s
statement and the government’s reliance upon it to undermine Chavez’s claim that
he had no reason to flee because he expected a government motion for a sentence
reduction based on his substantial assistance.
As for the reliability of Wiegmann’s claim that Chavez’s cooperation was
fruitless, Wiegmann’s statement, as the district court noted, was sworn before a
notary. Furthermore, Wiegmann was the FBI case agent who investigated Chavez,
and Wiegmann met with Chavez numerous times after his guilty plea in an effort
to obtain useful information from him. Thus, Wiegmann was speaking of events
about which he had personal knowledge. Although Wiegmann was describing
events that occurred twenty years earlier, Wiegmann averred that he had refreshed
his recollection by reviewing materials provided by the prosecutor, and Wiegmann
stated that he was confident of his recollection that Chavez’s cooperation did not
result in any arrests, seizures, indictments, or convictions.
Moreover, while Chavez was not able to cross-examine Wiegmann, he did
have an opportunity to rebut Wiegmann’s claims at the sentencing hearing with his

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own evidence.3 In fact, Chavez took the stand and contradicted Wiegmann,
testifying, among other things, that in various criminal cases his cooperation led to
the arrest of 13 individuals, the seizure of drugs and four airplanes, and his
testifying before a judge against a member of the Medellin drug cartel. The
problem for Chavez is that the district court wholly discredited Chavez’s
testimony, and Chavez did not present any other evidence to suggest that
Wiegmann’s statement about Chavez’s fruitless cooperation was either false or
unreliable. Indeed, Chavez has never offered any reason why Wiegmann, a retired
FBI agent, would lie under oath about the results of Chavez’s cooperation.4
As for the district court’s failure to make explicit findings about
Wiegmann’s credibility, the district court appears to have implicitly credited
Wiegmann’s statement. Specifically, the district court stated “What happened in
this case, in my view and the evidence points to it, is that Mr. Chavez simply
exited the United States and was not present at the sentencing and that was a result
of a willful decision on his part that he saw that the 5K1 effort was not going to be
successful and he then took matters into his own hands.” In any event, a district
3

This Court has concluded that the Sixth Amendment right of confrontation does not
extend to non-capital sentencing proceedings. See United States v. Cantellano, 430 F.3d 1142,
1146 (11th Cir. 2005).
4

Notably, the prosecutor advised the district court that he had asked the former prosecutor
assigned to Chavez’s case in 1995 to give an assessment of Chavez’s cooperation so that the
current prosecutor could file a 5K motion, but he was told that Chavez provided “a lot of
hearsay, a lot of information from other sources, but not his own.” The current prosecutor said
he could not find anything to corroborate Chavez’s claims about his cooperation.
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court’s failure to make the credibility finding explicit “‘does not necessarily
require reversal or remand where the reliability of the statements is apparent from
the record.’” United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009).
As already discussed, Wiegmann’s statement had sufficient indicia of reliability.
More importantly, however, Chavez cites no authority demonstrating plain error in
these circumstances.5
In sum, given that Wiegmann’s statement contained sufficient indicia of
reliability and that Chavez was aware of, and had an opportunity to rebut
Wiegmann’s statement with his own evidence, the district court did not err in
admitting it at the sentencing hearing.
C.

Denial of Credit for Time Served in Peru
At sentencing, the district court declined Chavez’s request to give him credit

for the “more than 13 years” he spent in jail in Peru after the U.S. extradition
request. The district court concluded that it lacked authority to grant Chavez’s
request and that “it needs to be handled at another time in another forum.”
The Attorney General through the Bureau of Prisons (“BOP”), not the
district courts, is authorized under 18 U.S.C. § 3585(b) to compute sentence credit

5

We recognize that a defendant has a due process right “not to be sentenced based on
false or unreliable information.” See Ghertler, 605 F.3d at 1269. Chavez, however, does not
now (and never has) raised a due process claim based on the district court’s reliance on
Wiegmann’s statement. Chavez’s brief on appeal does not mention the words due process.
Thus, he has abandoned this issue. See Jernigan, 341 F.3d at 1283 n.8.
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awards after sentencing. Dawson v. Scott, 50 F.3d 884, 889 (11th Cir. 1995). The
Attorney General delegated his authority in this area to the BOP. United States v.
Lucas, 898 F.2d 1554, 1555-56 (11th Cir. 1990). This Court has held that “the
granting of credit for time served is in the first instance an administrative, not a
judicial, function.” United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir.
1989). The district court, therefore, cannot circumvent the Attorney General’s
initial discretion concerning whether to credit a defendant’s time in custody prior
to sentencing. Lucas, 898 F.2d at 1555.
Chavez attempts to distinguish this binding precedent by arguing that his
request for time-served credit from 2002 to 2015 is based on an extradition treaty
between the United States and Peru. Chavez contends that under this extradition
treaty, the United States must give him credit for his detention in Peru while
awaiting extradition. Chavez ignores that from 2005 to 2015, by his own
admission, he was serving jail time on his second Peruvian drug trafficking
sentence. In any event, Chavez provides no authority for his claim that despite 18
U.S.C. § 3585(b), “a district court must still consider the impact of a treaty which
addresses this matter.” Nothing in the treaty, which Chavez attached to his
sentencing memorandum, suggests it was intended to supersede § 3585(b). We
conclude that Chavez must first present his request to the BOP and exhaust his

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administrative remedies before that agency before seeking judicial review. See
Lucas, 898 F.2d at 1555.
Accordingly, the district court did not err in concluding it lacked authority to
give Chavez credit for time served in Peru.
II. CONCLUSION
For these reasons, we conclude that Chavez has not shown that his sentence
is procedurally unreasonable. Accordingly, we affirm Chavez’s 121-month
sentence.
AFFIRMED.

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