Unpublished Disposition, 914 F.2d 264 (9th Cir. 1988)

No. 89-50256.

United States Court of Appeals, Ninth Circuit.

Before CANBY and LEAVY, Circuit Judges, and PRICE,^*  District Judge.

MEMORANDUM^** 

Roberto Maestre was convicted of importation of a controlled substance and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 952, 960, 841(a) (1). He was sentenced to 260 months imprisonment on each count, to run concurrently, and five years supervised probation. He appeals the conviction and sentence. We affirm.

FACTS

On September 13, 1988, Roberto Maestre drove a van from

Mexico into the United States. A customs inspection

revealed a hidden compartment in a non-factory made wall

behind the driver's seat. The compartment contained 175.3

kilograms of cocaine, valued at $2,629,500 wholesale in the

United States. Maestre said that the van belonged to his

brother-in-law, but it was registered to Raul Escalante, an

old friend.

One week after Maestre's arrest, DEA Agent Rae met with Raul

Escalante and his brother, Miguel Escalante, at their

attorney's office. After this conversation, both government

and defense investigators had difficulty contacting either

of the Escalantes.

Miguel Escalante was subpoenaed to appear at trial and

failed to appear. Miguel's attorney informed defense

counsel that he had advised his client to remain silent and

assert the Fifth Amendment. The government stipulated that

if Miguel Escalante were to testify, he would state that his

brother Raul had built the hidden compartment in the van and

that the van was sold in March 1988.

Defense counsel sought to admit Raul Escalante's statements

to a defense investigator as declarations against penal

interest under Rule 804(b) (3) of the Federal Rules of

Evidence. Defense counsel proffered that the defense

investigator's testimony would be that Raul admitted that he

built the secret compartment in the van shortly after its

purchase in 1985, that he used the compartment to smuggle

tennis shoes into Mexico, and that he sold the van to a drug

dealer in Mexico without getting a bill of sale or new registration.

The defense investigator testified that he had been unable

to subpoena Raul Escalante. He telephoned Raul about ten or

twelve times in both the United States and Mexico, but got

through to speak with him only twice. The investigator

arranged a meeting in Chula Vista, California, but Raul did

not show up. The district court ruled that Raul was not

"unavailable" under Rule 804 and excluded Raul's statements

to the defense investigator. The district court also ruled

that Raul's statements were immaterial to the issue of

whether Maestre knowingly imported cocaine.

A jury convicted Maestre of importation of cocaine and

possession of cocaine with intent to distribute. Defense

counsel objected to the presentence report because it

included no adjustment for acceptance of responsibility

under U.S.S.G. Sec. 3E1.1, even though Maestre said at his

arrest, "I know what I did and I'll do the time." The

sentencing judge noted the objection, and said "I also agree

with the [presentence] report that the defendant has shown

no remorse in the matter...."

Maestre appeals the district court's exclusion of Raul

Escalante's statements to the defense investigator, its

failure to grant a downward adjustment for acceptance of

responsibility, its failure to record whether that

adjustment would be granted, and its failure to state why it

chose the particular sentence within the Sentencing

Guidelines range.¹ 

ANALYSIS

1. Exclusion of Raul Escalante's Out-of-Court Statements

The trial court's decision to exclude testimony under Rule 804(b) (3) is reviewed for abuse of discretion. United States v. Slaughter, 891 F.2d 691, 697 (9th Cir. 1989). For the reasons that follow, we find no abuse of discretion.

Hearsay may be admitted under Rule 804(b) (3) "if the declarant is unavailable as a witness," and the statement

at the time of its making ... so far tended to subject the declarant to civil or criminal liability, ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Fed.R.Evid. 804(b) (3)

In order for Raul to be considered an unavailable witness, Maestre had to establish that he "ha [d] been unable to procure [Raul's] attendance ... or testimony by process or other reasonable means." Fed.R.Evid. 804(a) (5).

The defendant argues that Raul Escalante avoided service of process because he failed to show up for a meeting with a defense investigator after his brother Miguel had been served with a subpoena. The defense efforts to contact Raul consist of ten or twelve phone calls, two of which reached Raul, and one meeting where Raul did not show up. Raul frequently was in Mexico and was difficult to reach. However, the government argues that the defendant failed to make several obvious efforts to contact Raul. The defendant presented no testimony that he ever contacted Raul's known attorney, went to Raul's last addresses, or even wrote him a letter.

" [A] good faith effort [must be made] to obtain the witness's presence," before a witness is unavailable for the purposes of Rule 804. United States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985). The extent of the efforts that must be made is a question of reasonableness. Id. In Winn, the government made no efforts to locate undocumented aliens who were released to Mexico. However, this circuit held that the aliens were unavailable as witnesses because the government did not have the aliens' addresses or any other information to help locate them. We did not require the government in Winn to make futile efforts to locate witnesses without any means or hope of doing so. In contrast, Maestre had several possible leads for locating Raul, including telephone numbers, addresses, and even the name and location of his attorney. Because the defense failed to make reasonable efforts to follow up on those leads, the district court did not abuse its discretion when it found that Raul was not an unavailable witness under Rule 804.² 

The defendant argues that the district court erred either by not reducing Maestre's sentence for acceptance of responsibility under U.S.S.G. Sec. 3E1.1 or by not putting on the record whether he would grant such an adjustment.

We accept the sentencing court's determination of whether or not a defendant has accepted responsibility for his crime, unless it is clearly erroneous. United States v. Gonzales, 897 F.2d 1018, 1019 (9th Cir. 1990). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." U.S.S.G. Sec. 3E1.1 (comment 5).

A two-level reduction in offense level is available " [i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1. The defendant bears the burden of proof when he seeks such an adjustment. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990).

Aside from the defendant's one statement that "I know what I did and I'll do the time," he did nothing else to merit the reduction. He did not voluntarily terminate or withdraw from criminal conduct, admit involvement in related criminal conduct, or further assist authorities. See U.S.S.G. Sec. 3E1.1, (comments 1(a)-(g)) (a non-exclusive list of factors to be considered in granting a reduction for acceptance of responsibility).

The defendant challenged his factual guilt at trial, refused to be interviewed by the probation officer, and made no statements accepting responsibility at sentencing. The district court did not err in denying the adjustment for acceptance of responsibility, because the defendant did not clearly demonstrate that he accepted personal responsibility for his criminal conduct.

The defendant's claim that the district court failed to put on the record whether he would grant a downward adjustment for acceptance of responsibility is without merit. The sentencing judge noted the defense objection to the presentence report and said, "I also agree with the [presentence] report that defendant showed no remorse in this matter." No further statement was needed.

3. Reasons for Imposing a Particular Sentence Within the Range

The defendant contends that the district court erred by failing to state its reason for imposing a 260-month sentence, from within a sentencing range of 235 to 293 months.³ 

Because the sentencing court imposed a sentence from within a sentencing range that exceeded 24 months, it was required to "state in open court ... the reason for imposing a sentence at a particular point within the range." See 18 U.S.C. § 3553(c); see also United States v. Howard, 894 F.2d at 1092. The statement of reasons may "help focus the judge's thinking ..., promote respect for the guidelines ... [and] help the Sentencing Commission understand how judges are approaching and applying the guidelines." 133 Cong.Rec. H10019 Nov. 16, 1987. " [P]articularly at the upper guideline levels, where the judge has a fairly wide range from which to choose, the statement of reasons may reduce the appearance of unwarranted disparity." Id.

Those goals were met here. A review of the record reveals that the judge did not impose the sentence in an arbitrary or conclusory manner. His thinking was focused on the facts of this case. Shortly before imposing the sentence, he stated that the defendant had "shown no remorse" and "played a major part in this drug ring." He then imposed a sentence near the mid-point of the range, and stated, "That is the term recommended by the probation office, and I agree it's proper under the circumstances of this case, as it stands at the present time." He then stated that the sentence was "sufficient, but not greater than necessary," in light of the statutory factors that must be considered in imposing a sentence.⁴  See 18 U.S.C. § 3553(a).

The presentence report justified its sentence recommendation as follows:

The quantity of cocaine involved certainly indicates the defendant was a participant in a large scale drug trafficking operation. Such conduct warrants severe consequences. One could easily argue for a sentence on the high end of the guideline range, considering it only takes 50 kilograms of cocaine to be categorized at an offense level of 36. However, a sentence at a mid-point (approximately 21 and 1/2 years) should serve as the necessary punishment and deterrent.

We conclude that the sentencing court accepted by incorporation the reasoning of the presentence report, and made sufficient statements in open court to apprise the defendant of his reasons for imposing the particular sentence within the applicable sentencing range. The defendant could not have been surprised by the judge's decision, because he had received a copy of the presentence report, and had ample opportunity to object to it. While it is preferable for district courts to make more specific independent finding of their reasons, here the court's statements in the record and its acceptance by incorporation of the reasoning of the presentence report suffice. See United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990) (affirming a sentence imposed when the sentencing court determined the defendant's role in the offense by finding that "the probation report and the addendum correctly computes the guideline range ...").

CONCLUSION

The district court did not err in excluding out-of-court statements because the defendant did not establish that the witness was unavailable. The district court also did not err in not adjusting the defendant's sentence for acceptance of responsibility. The district court stated its reasons for imposing a sentence, in part, by accepting by incorporation the reasoning of the presentence report.

AFFIRMED.