USA v. Juan Cadavid-Yepe

Filing

OPINION filed : we AFFIRM Cadavid's conviction and sentence, decision not for publication pursuant to local rule 206. Gilbert S. Merritt and Karen Nelson Moore (authoring), Circuit Judges; Samuel H. Mays , Jr., U.S. District Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0066n.06
No. 10-1803
FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Jan 19, 2012
LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

)
)
)
Plaintiff-Appellee,
)
v.
)
)
JUAN CADAVID-YEPES
)
)
)
Defendant-Appellant.
_______________________________________)

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

Before: MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Juan Cadavid-Yepes (“Cadavid”) appeals
the judgment entered against him and subsequent sentence based on his plea of guilty to one count
of importation of a listed chemical in violation of 21 U.S.C. § 960(d)(1) and 18 U.S.C. § 2. Cadavid
was extradited from Colombia for his role in shipping samples of chemicals used in the manufacture
of methamphetamine hidden in the ink cartridges of two pens. Cadavid argues that his plea should
not have been accepted as it lacked a sufficient factual basis and that his subsequent sentence was
procedurally unreasonable because it was based on an improperly calculated drug quantity.
Cadavid’s plea agreement contained an appeal waiver provision that would otherwise preclude his
procedural reasonableness challenge; therefore, he also argues that this waiver was invalid.

*

The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.

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I. BACKGROUND
Cadavid was first charged in a sealed indictment in August 2006 for three controlledsubstance counts. At the time the initial indictment was filed, Cadavid was in Colombia serving an
unrelated prison sentence and needed to be extradited. On December 4, 2008, he made his first
appearance in the Eastern District of Michigan, and a superseding indictment was unsealed charging
him with (1) conspiracy to manufacture a controlled substance in violation of 21 U.S.C. § 846,
specifically 500 grams or more of a substance containing methamphetamine, (2) conspiracy to
possess a listed chemical with the intent to manufacture a controlled substance in violation of 21
U.S.C. § 846, specifically ephedrine and phenylpropanolamine (“PPA”), both list I chemicals, and
(3) importation of listed chemicals in violation of 21 U.S.C. § 960(d)(1) and 18 U.S.C. § 2,
specifically ephedrine and PPA. R. 8 (Superseding Indictment).
On September 9, 2009, Cadavid pleaded guilty to Count 3 pursuant to a written plea
agreement prepared only in English, not in Spanish. Cadavid is a native Spanish-speaker and does
not speak English. He communicated with counsel and the court via an interpreter. The plea
agreement stated that Cadavid sent a package from Colombia of two ballpoint pens, each containing
approximately one gram of a listed chemical hidden in its ink cartridge, which arrived in Detroit,
Michigan, on May 23, 2006. R. 44 (Plea Agreement at 2). The samples were sent to a confidential
DEA source that Cadavid believed represented drug traffickers who wanted the chemicals for the
purpose of manufacturing methamphetamine. Id. Toxicology reports revealed one pen contained
ephedrine and one pen contained PPA. R. 46 (Plea Hr’g Tr. at 14).

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At his plea colloquy, Cadavid maintained that he did not send the package; rather, he
arranged for someone else to send it. Id. at 15. He also did not know the exact chemicals in the
pens, but accepted the toxicology findings. Id. at 14. He maintained that he did not know until he
was indicted that it was illegal to ship these chemicals to the United States, but he did not deny his
involvement in sending them. Although the indictment was re-read, he was never asked about
whether the purpose of sending the drugs was to aid in the manufacture of controlled substances or
about any future contemplated transactions. The district court accepted Cadavid’s plea and took the
Rule 11 “under advisement.” Id. at 16.
The plea agreement did not stipulate to an appropriate sentencing guidelines range, as the
parties disputed Cadavid’s role in the offense and the drug quantity involved. R. 44 (Plea Agreement
at 3-4). Following the plea hearing, the probation department issued its Pre-Sentence Report
(“PSR”) recommending that Cadavid be sentenced in accordance with the government’s range,
which included a base offense level of thirty-eight due to a drug quantity of twenty-five kilograms.
The defendant objected to the report on this basis as well as others, arguing that the proper quantity
was the two grams recovered in the pens sent to the United States.
The district court held an evidentiary hearing prior to sentencing, during which the
government called the DEA agent overseeing Cadavid’s investigation. DEA Agent Lance Gibson
(“Agent Gibson”) testified with respect to Cadavid’s communications with the informant. R. 68
(Sent. Hr’g Tr. Part 1 at 23-37). Agent Gibson offered several statements by the confidential
informant that he had approached Cadavid as a representative of drug traffickers in Michigan

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interested in purchasing large quantities of ephedrine and PPA for the purposes of manufacturing
methamphetamine. Id. at 20, 24. Agent Gibson discussed several emails the government obtained
between Cadavid and the informant in which they used code words for ephedrine and the sale of
drums. Id. at 30-37. Agent Gibson was also asked about Edgar Bohorquez, the defendant’s supplier
of the chemical samples, who was arrested following the completed sale in Colombia of a twentyfive kilogram drum of PPA to the same confidential informant in September 2006. Id. at 63. The
informant was not made available to testify, and Cadavid’s attorney made numerous objections to
the lack of sufficient indicia of reliability with respect to Agent Gibson’s recital of the informant’s
statements unsupported by audio or documentary evidence.1 The government intended to call Edgar
Bohorquez but decided not to do so at the last minute. The defense called no witnesses, choosing
instead to make arguments pointing out the speculative nature of the government’s evidence that
purportedly linked Cadavid to the sale of a drum of listed chemicals.
Following arguments from both sides, the district court found that a preponderance of the
evidence demonstrated the defendant was responsible for twenty-five kilograms, the amount Cadavid
and others jointly endeavored to send to the United States. R. 61 (Sent. Hr’g Tr. Part A at 21-22).
Before sentencing, Cadavid allocuted and offered further explanation of his understanding of the
transactions. He did not deny arranging to send the pens to the United States or that the samples
were to precede a subsequent purchase. Rather, he believed the transaction he was arranging would

1

Additional details regarding Agent Gibson’s testimony and the evidence offered by the
government in support of using twenty-five kilograms as the correct drug quantity are discussed
more fully later in this opinion. See infra, Part III.
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occur in Colombia or Mexico and would be “from company to company legally.” Id. at 40-46. He
argued that the confidential informant was the one who insisted on talking in code and inflating the
amount. Id. at 39, 44. Even when he was told to send the samples to the United States instead of
Mexico, as was originally the plan, he never believed that any other part of the transaction would
take place in the United States. Id. at 45.
The district court then sentenced Cadavid to ninety-seven months’ imprisonment following
reductions for his minor participation in the offense and for acceptance of responsibility. The district
court declined to vary based on the conditions Cadavid faced in the Colombian prison while awaiting
extradition. Cadavid filed a timely notice of appeal.2
II. APPELLATE WAIVER
Whether a defendant has validly waived his right to appeal is a legal question this court
reviews de novo. United States v. Jones, 569 F.3d 569, 571-72 (6th Cir. 2009). A valid appellate
waiver in a plea agreement will be enforced as long as the waiver was made knowingly and
voluntarily. United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001).
Cadavid’s appellate waiver in his plea agreement is less than a model of clarity. It states:
6. RIGHT TO APPEAL – If the sentence imposed does not exceed the maximum
allowed by Part 3 of this agreement, defendant waives any right he has to appeal his
conviction or sentence. If the sentence imposed is within the guideline range

2

This court initially dismissed Cadavid’s appeal following his failure to respond to a motion
to dismiss filed by the government on the basis of the appellate waiver in his plea agreement. His
appeal was reinstated, however, upon the government’s failure to respond to Cadavid’s motion for
reconsideration, challenging the validity of the plea and the waiver itself.
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determined by Paragraph 2B the government agrees not to appeal the sentence, but
retains its right to appeal any sentence below that range.
The relevant portion of “Part 3” states:
3. SENTENCE – The Court will impose a sentence pursuant to 18 U.S.C. § 3553,
and in doing so must consider the sentencing guideline range.
(A) Imprisonment – Pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), the sentence of imprisonment in this case may not
exceed the top of the sentencing guideline range recommended by the
government as described in Paragraph 2B.
Paragraph 2B states each party’s position on the disputed guidelines range. The government
recommended a range of 97 to 121 months; the defendant recommended a range of 21 to 27 months.
R. 44 (Plea Agreement at 3).
During the plea colloquy, the district court had the following exchange with Cadavid as it
relates to his appeal:
THE COURT: If I sentence you under either parties’ [sic] guideline range, then you
waive your right to appeal the conviction or sentence. You understand that?
[CADAVID]: Yes, Your Honor.
R. 46 (Plea Hr’g Tr. at 12). At sentencing, the district court again repeated that Cadavid had no right
to appeal his sentence because it was within the government’s range, and his counsel made no
objection. R. 66 (Sent. Hr’g Tr. Part B at 9).
Cadavid argues that he believed his waiver provision afforded him the right to appeal a
sentence in excess of his recommended range of 21-27 months, not just in excess of the
government’s range. The government maintains that Cadavid could appeal only sentences outside

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of the government’s range. Because Cadavid received a sentence at the low end of the government’s
range, the government argues, he waived his right to appeal.
Generally, we construe ambiguities in plea agreements in favor of the defendant. Jones, 569
F.3d at 572. Although Cadavid’s argument strains the text, the agreement does not explicitly waive
his right to appeal under these circumstances, as it easily could have done. We therefore assume,
without deciding, that Cadavid’s appellate waiver provision entitles him to appeal his sentence.3
III. RULE 11 FACTUAL BASIS CLAIM
Regardless of whether the appellate waiver is valid, a defendant retains the right to challenge
the entry of his guilty plea due to a district court’s failure to comply with Federal Rule of Criminal
Procedure 11 (“Rule 11”). In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). Cadavid argues that his
conviction should be reversed because the district court failed to ensure there was a sufficient factual
basis to support his plea under 21 U.S.C. § 960(d)(1). See Fed. R. Crim. P. 11(b)(3). Cadavid
concedes that his failure to object to the purported violation at his plea colloquy renders his appeal
subject to plain-error review. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). This
means that Cadavid must show (1) an error, (2) that is plain, and (3) that affected his substantial
rights. United States v. Lalonde, 509 F.3d 750, 759 (6th Cir. 2007). “If all three conditions are met,

3

We also decline to decide both the government’s argument that this court’s prior dismissal
precludes the defendant from arguing that the appeal waiver is invalid, Appellee Br. at 15, and
Cadavid’s arguments relating to counsel’s ineffectiveness, even though he denies that he is bringing
a claim of ineffective assistance of counsel, Appellant Reply Br. at 2. Cadavid’s arguments are best
reserved for a motion under 28 U.S.C. § 2255, when the record may be more fully developed as to
what exchanges Cadavid had with his attorney before entering the plea.
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an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or reputation of judicial proceedings.” Id. (internal quotation
marks omitted).

When the defendant argues that a Rule 11 violation was plain error, he

demonstrates that his substantial rights were affected by showing a reasonable probability that, but
for the error, he would not have pleaded guilty. Dominguez Benitez, 542 U.S. at 83.
Rule 11(b)(3) requires that, “[b]efore entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” The purpose of this rule is to make sure the
defendant actually committed the offense for which he is pleading guilty. United States v.
McCreary-Redd, 475 F.3d 718, 722 (6th Cir. 2007). In reviewing an appeal based on a violation of
Rule 11(b)(3), this court “may examine the entire record, including proceedings that occurred after
the plea colloquy.” Id. at 722 n.1 (emphasis in original) (internal quotation marks omitted). The
relevant inquiry is whether there is “some evidence” that the defendant committed each element of
the offense, not whether there is “strong evidence of actual guilt.” United States v. Mobley, 618 F.3d
539, 547 (6th Cir. 2010); see also Appellant Br. at 30.
Cadavid pleaded guilty to importing listed chemicals to the United States with the intent to
manufacture a controlled substance in violation of 21 U.S.C. § 960(d)(1) and 18 U.S.C. § 2. The
parties agree that the elements of the offense require the government to establish that Cadavid “(1)
knowingly and intentionally; (2) import[ed] into the United States from a place outside of the United
States; (3) listed chemicals, that is, ephedrine and [PPA]; (4) with the intent to manufacture a
controlled substance.” Appellee Br. at 21; see also Appellant Br. at 28. Cadavid does not challenge

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that he knowingly and intentionally imported listed chemicals; only the fourth element, the specific
“intent to manufacture a controlled substance,” is in dispute. Cadavid argues that he thought this
was a lawful transaction between two companies and did not intend for the samples or any
prospective sale to be used in the production of controlled substances. Appellant Br. at 33.
The record clearly establishes sufficient evidence on review for us to conclude that there was
a factual basis for Cadavid’s plea to the importation offense. The district court at Cadavid’s plea
hearing read aloud Count 3 to him, which charged him with importing chemicals with the intent to
manufacture a controlled substance. R. 46 (Plea Hr’g Tr. at 8); see McCreary-Redd, 475 F.3d at
723-24. The signed plea agreement and the PSR also unequivocally set forth the intent to assist in
the manufacture of controlled substances.4 R. 44 (Plea Agreement at 2) (“The defendant had sent
the package to a DEA confidential source, who the defendant believed represented drug traffickers
in Michigan interested in purchasing large quantities of [the chemicals] for the purpose of
manufacturing methamphetamine.”); PSR at 6 (detailing defendant’s knowledge that chemicals were
to be used to manufacture methamphetamine in the United States for subsequent distribution); see
McCreary-Redd, 475 F.3d at 724. Although the intent to manufacture controlled substances was
never discussed further at the plea colloquy, Cadavid’s later statement that he did not know his acts
constituted a crime does not fatally undermine the factual basis established by the court.

4

Cadavid’s argument that these documents should be disregarded because they were not
properly explained or read to him by his counsel are arguments that would best be heard on a § 2255
motion raising claims of ineffective assistance of counsel.
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Additionally, consideration of the whole record further establishes that the district court had
a sufficient factual basis to accept the guilty plea. Even apart from Agent Gibson’s statements that
the confidential informant told Cadavid that he represented drug traffickers in Michigan, the emails
from Cadavid to the informant establish that this was not intended to be a lawful transaction between
two companies. Rather, it was intended to supply chemicals for the purposes of manufacturing
methamphetamine. Cadavid attempts to blame the confidential informant for the use of code in the
emails, but offers no explanation for why he himself would use code if the transaction were a
legitimate sale of the chemicals between two companies. The very fact that the samples were
shipped hidden in the ink cartridges of ball point pens further undermines Cadavid’s position.5
Cadavid himself in the emails presented by the government at his sentencing hearing references
obtaining a “mechanic” from South Africa, which the government argued was code for a chemist to
process the chemicals into methamphetamine. Cadavid offers no alternative explanation for what
this might mean. He also received an email from the confidential informant indicating that they will
“need a good apartment with good location and without seizure problems and with good neighbors.”
Nor does Cadavid argue that, but for the asserted error, he would not have pleaded guilty.
Instead, he argues that he would not have pleaded guilty if he knew he would be liable for the
twenty-five-kilogram drum. Appellant Br. at 33. Based on these arguments and the record below,

5

Cadavid also stated in his allocution that the reason he asked someone else to ship the pens
to the United States was because, in his words, “I don’t want to get involved in this. I felt kind of
that it was illegal.” R. 61 (Sent. Tr. Hr’g Part A at 45).
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we cannot conclude that the district court committed plain error in determining a factual basis existed
for Cadavid’s plea to importation with the intent to manufacture a controlled substance.
IV. PROCEDURAL REASONABLENESS OF SENTENCE CLAIM
If the appellate waiver provision is invalid or inapplicable, Cadavid is entitled to appeal the
procedural reasonableness of his sentence. Such claims are reviewed for abuse of discretion. Gall
v. United States, 552 U.S. 38, 51-52 (2007). Any factual findings determined by the district court
in applying the sentencing guidelines are reviewed for clear error. United States v. Galloway, 439
F.3d 320, 322 (6th Cir. 2006).
Cadavid argues that his sentence was procedurally unreasonable for three reasons: (1) the
district court failed to calculate properly the guidelines when it held him accountable for twenty-five
kilograms of chemicals and not two grams; (2) the district court failed to resolve each disputed fact
on the record as required under Federal Rule of Criminal Procedure 32; and (3) the district court used
clearly erroneous facts and unreliable testimony from Agent Gibson in imposing the sentence.
Because the first and the third arguments relate to the same issue—what drug quantity should be
used to calculate Cadavid’s sentence—we discuss them together.
A. Quantity of Drugs
The base offense level for a violation of 21 U.S.C. § 960(d)(1) is set by referencing the drug
quantity table in U.S.S.G. § 2D1.11(d). Where the amount in the offense is three kilograms or more
of either ephedrine or PPA, the base offense level is thirty-eight. Where the amount is at least two

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grams but less than four, the base offense level is eighteen.6 The district court first must make a
finding as to the amount of drugs for which the defendant is “accountable” based on his relevant
conduct under U.S.S.G. § 1B1.3. United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003). Relevant
conduct includes “all quantities of drugs with which [the defendant] was directly involved and, in
the case of joint criminal activity, all reasonably foreseeable quantities.” United States v. Ledezma,
26 F.3d 636, 646 (6th Cir.), cert. denied, 513 U.S. 942 (1994). A district court’s findings with
respect to drug quantities must be supported by a preponderance of the evidence. Gill, 348 F.3d at
151. “When the amount of drugs is uncertain, the district court must ‘err on the side of caution’ and
hold the defendant accountable only for that amount that is more likely than not attributable to the
defendant.” Id. The district court may, however, consider quantities of drugs not specified in the
count of conviction if they were part of the same course of conduct as the offense of conviction. Id.
(citing U.S.S.G. § 1B1.3(a)(2)).
At sentencing, the government offered seven pieces of evidence to establish that Cadavid was
accountable for the twenty-five-kilogram drum and not just the two one-gram samples that he had
sent to the United States: (1) Agent Gibson’s testimony that the confidential informant played the
role of a broker who wanted to buy drums of ephedrine; (2) Agent Gibson’s testimony that the
confidential informant told Cadavid in meetings that he was interested in getting drums of ephedrine
or PPA; (3) that Cadavid sent a sample of both chemicals to Detroit, which implied a larger quantity

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Section 2D1.11(d) n.*(B) instructs the court to aggregate quantities when both ephedrine
and PPA are involved. Thus, the pens containing one gram of each substance would be treated as
two grams total under the guidelines.
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would follow, and Agent Gibson’s testimony that these sales were typically in the form of drums
because that is how chemical companies package them; (4) the March 21, 2006, email from Cadavid
to the confidential informant attaching a photograph of a twenty-five-kilogram drum in which he
states “I am sending proof of what there is here” and attaches a sheet detailing the specifics for a
drum of ephedrine at either twenty-five or fifty kilograms; (5) the May 17, 2006, email from Cadavid
to the confidential informant in which he states “From don efra7 there are 4000 pesos available, but
this has to be quickly, because there are several people behind that,” which Agent Gibson testified
referenced either four kilograms of ephedrine or four twenty-five-kilogram drums; (6) the June 6,
2006, email from Cadavid to the confidential informant stating “two bottles and they belong to
efrain,” which Agent Gibson testified meant two drums of ephedrine; (7) intercepted calls between
Cadavid and other individuals discussing unspecified large quantities of ephedrine; and (8) that
Cadavid obtained his samples from Edgar Bohorquez, Cadavid introduced the confidential informant
to Bohorquez, and Bohorquez sold one twenty-five-kilogram drum to the confidential informant in
September 2006, three months after Cadavid’s arrest. R. 61 (Sent. Hr’g. Tr. Part A at 7-10)
(summarizing evidence); R. 68 (Sent. Hr’g Tr. Part 1 at 23-67) (testimony Agent Gibson). The
district court, focusing on what conduct was reasonably foreseeable from the defendant’s actions,
found that Cadavid was accountable for twenty-five kilograms based on the “testimony, exhibits,
[and] the argument[s].” R. 61 (Sent. Hr’g Tr. Part A at 22).

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Cadavid does not dispute that the subject of these emails was the sale of ephedrine, or that
words like “Don efra” and “efrain” were code for ephedrine. R. 68 (Sent. Hr’g Tr. Part 1 at 30).
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Cadavid argues primarily that any connection to twenty-five kilograms is speculative, based
on unreliable hearsay, or based on Agent Gibson’s erroneous interpretation of the coded emails. He
offers no alternative explanation of the coded phrases in the emails that Agent Gibson argued
referenced drums, e.g. “two bottles.” Even were we to exclude the informant’s statements Cadavid
claims were not supported by documentary evidence,8 there is ample evidence connecting Cadavid
to the ultimate sale of a twenty-five-kilogram drum by Bohorquez, which Cadavid does not deny
occurred three months after his arrest. Cadavid does not dispute that he put Bohorquez and the
informant in touch, Cadavid admits he obtained the samples from Bohorquez, and Cadavid offers
no alternative explanation for the contents of the emails that connect him to the sale of a drum. The
evidence establishes Cadavid’s knowledge of and association with the ultimate sale of a twenty-fivekilogram drum such that he can be held responsible for it even if he was not present for the
transaction. See Ledezma, 26 F.3d at 645-46.
Cadavid’s other attacks on the evidence are equally unavailing. The revelation that the photo
of a twenty-five-kilogram drum Cadavid sent as an e-mail attachment was merely an image
downloaded from a website and not an actual drum shows at most that Cadavid did not have a drum
in his possession when he sent the email. However, the district court placed greater emphasis on the
specification sheet in the email detailing the quantities available as either a twenty-five-kilogram or

8

We need not and do not decide whether there were sufficient indicia of reliability under
U.S.S.G. § 6A1.3 for the court to consider the statements of the confidential informant offered by
Agent Gibson at sentencing, because the defendant’s own statements and actions support the district
court’s findings.
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fifty-kilogram drum. R. 61 (Sent. Hr’g Tr. Part A at 22). Nor must Cadavid have ever possessed
the drum to be responsible for the greater amount. See Ledezma, 26 F.3d at 646. Given this record,
we cannot hold that the district court committed clear error in finding Cadavid accountable for the
twenty-five-kilogram drum that Bohorquez sold and not just for the two one-gram samples.
B. Rule 32
Finally, we also reject Cadavid’s argument that the district court failed to resolve properly
the dispute over drug quantity. Federal Rule of Criminal Procedure 32(i)(3)(B), formerly Rule
32(c)(3)(D), requires a district court to make findings with respect to any controverted matter or else
rule that a finding is not necessary. United States v. Solorio, 337 F.3d 580, 598 (6th Cir.), cert.
denied, 540 U.S. 1063 (2003). At sentencing, Cadavid’s counsel was given an opportunity to present
evidence regarding his position on the drug quantity and declined to do so, relying solely on
argument and his sentencing memorandum and exhibits. R. 61 (Sent. Hr’g Tr. Part A at 4). The
district court then issued its findings of fact resolving the issue of drug quantity. Id. at 21. Cadavid’s
claim that his subsequent allocution created new disputes of fact that the district court failed to
resolve lacks merit both because his allocution merely reargued the same dispute and because the
district court heard all of Cadavid’s arguments and reached the same conclusions following the
allocution, which the district court then again stated on record. R. 66 (Sent. Hr’g Tr. Part B at 7-8)
(“I believe the offense was intended to be a large amount of improper substance being sent privately
to individuals here [in the United States].”). We hold the district court did not violate Rule 32.

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V. CONCLUSION
For the aforementioned reasons, we AFFIRM Cadavid’s conviction and sentence.

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