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United States v. Bosque

December 03, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PEDRO J. BOSQUE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 00 CR 93--David F. Hamilton, Judge.

Before Coffey, Rovner and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge

ARGUED SEPTEMBER 26, 2002

After the government put on its case at trial, Pedro Bosque pled guilty to an indictment charging him with one count of conspiracy to possess with intent to distribute methamphetamine, four counts of distribution of methamphetamine, and one count of possession with intent to distribute marijuana. Bosque raises two challenges to his sentence, claiming the district court erred when it failed to grant him a reduction in his sentence for acceptance of responsibility, and that the court erred when it refused to sentence him according to the terms of an agreement he believed he had with the government. We affirm in part and dismiss for lack of jurisdiction in part.

I.

Pedro Bosque ("Bosque") became a drug dealer under somewhat unusual circumstances. One day, several men came to his home and told him that his son, Pedro Bosque, II ("Pedro"), had stolen drugs and money from them at gunpoint. They told Bosque that they would kill Pedro if he did not repay them. Bosque agreed to repay the money for his son by selling drugs for the men in exchange for a promise that they would spare Pedro's life. Bosque then began selling methamphetamine for the men, turning over the proceeds of the sales to them. Pedro became even more indebted to the men, and Bosque returned home with his wife one day to find two men holding Pedro at gunpoint and again threatening to kill him. Bosque again agreed to sell drugs in exchange for his son's life, this time in greater quantities.

Local law enforcement officers became aware that Bosque was selling drugs and set up an undercover operation in order to catch him in the act. Detective Jerry Cannon of the Indianapolis Metropolitan Task Force managed the Bosque operation. He enlisted the aid of FBI Special Agent Jo Ann Burkhart, in part because federal law was implicated. On four occasions, an under cover agent for the Task Force purchased methamphet amine from Bosque in increasingly larger amounts, culmi nating in Bosque's arrest in early July 2000, when he sold three pounds of methamphetamine and one ounce of cocaine to the undercover officer. Bosque confessed and consented to a search of a storage shed where he kept his supply of drugs. Additional drugs and weapons were seized and Bosque was charged in a six-count indictment.

Because Bosque's wife had been with him shortly before the final controlled buy, Agent Burkhart questioned her on the day of Bosque's arrest and subsequently had additional conversations with her about her husband's case. Bosque's wife later testified that Agent Burkhart promised leniency for Bosque if he cooperated with law en forcement. Ms. Bosque also testified that Detective Can non promised a sentence of one to three years in a state facility in exchange for Bosque's cooperation. When federal prosecutors later offered Bosque a plea agreement, his wife advised him to reject it because it did not meet the terms of the agreement she alleged she reached with Agent Burkhart and Detective Cannon.

Bosque went to trial, the government presented its case, and Bosque put on one witness in his defense case before changing course and pleading guilty. At the time he pled guilty, Bosque explained that his son had "a bad, bad, bad record" that led to Bosque's crimes:

I'm saying this: I didn't have the opportunity or I didn't have the chance to call the police because I felt, not only fear for my wife, my kids, my grand kids, my whole family and the situation that I was put into--I did the best to my ability and if I had to--and I will go to jail for what I did. I take full responsibility for my actions and I will do it again for my son. Tr. at 453.

The court then explained that a guilty plea would result in Bosque losing the right to appeal his defense of duress or coercion. Bosque replied:

Well, Your Honor, I know I did all these things, you know. I know I'm guilty. But, too, I had a reason to do--for what I do, you know. I'm not saying I'm not guilty. Tr. at 454.

The court accepted the plea. During the presentence investigation period, Bosque submitted an affidavit purporting to accept "total, full responsibility for all of the charges that the U.S. Government filed against me and to which I plead guilty in open court." R. 81, Sentencing Tr. at 8.

The district court subsequently sentenced Bosque to 188 months imprisonment, five years of supervised release and a $600 special assessment. The court declined to reduce Bosque's sentence for acceptance of responsibility, in part because Bosque waited to see how the trial would go before pleading guilty. The court noted that Bosque's decision to go to trial is not consistent nor has his other conduct been consistent with what this Court views as an acceptance of moral responsibility for drug dealing on a wide and destructive scale by Mr. Bosque. In addition, frankly, it seems to me that Mr. Bosque is continuing to try to shift responsibility away from himself, to his son, to his son's associates, to law enforcement officials, and that is additional evidence that seems to me to be inconsistent with the acceptance of responsibility adjustment in this case. . . . I simply am not convinced that Mr. ...


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