On appeal from The United States District Court for the Middle District of Pennsylvania ">

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Date: 12-02-2021

Case Style:

United States of America v. Jose De Leon-Pineda

Case Number: 19-1459

Judge: Thomas L. Ambro


On appeal from The United States District Court for the Middle District of Pennsylvania

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

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New York, NY - Criminal defense lawyer represented defendant charged with drug distribution.

In June 2018, DeLeon-Pineda entered into a plea agreement with the Government
and ultimately pled guilty to distribution and possession of 100 grams or more of heroin,
and 28 grams or more of crack cocaine, and to possession with intent to distribute an
amount of heroin, cocaine, and crack equivalent to at least 100 but less than 400
kilograms of marijuana.
His guilty plea was based on the following factual allegations. From about June
2016 to March 2017, federal agents and officers made controlled purchases of heroin
supplied by DeLeon-Pineda and eventually obtained probable cause for a Title III wiretap
against him. Intercepted calls established he was obtaining supplies of heroin and
redistributing via a network of street dealers, runners, and addicts. He set prices,
arranged for deliveries (which he made personally or directed a subordinate to make), and
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
collected payments. He directed co-conspirators as to where and what drugs to deliver,
obtained drugs from multiple suppliers, and “cook[ed]” powder cocaine into cocaine
base, or crack. App. 61–62.
DeLeon-Pineda had no employment during the period charged in the indictment,
kept a “stash house” (a separate residence where he did not reside, for the purpose of
storing drugs, money, and a firearm), employed several individuals with addiction issues
to further his drug-trafficking activities, and specifically targeted heroin addicts for his
drug sales.
The investigation also uncovered violent and threatening conduct by DeLeonPineda. He told an unindicted co-conspirator that he would be late with a payment
because he, Pineda, had shot an unidentified Puerto Rican individual and was waiting for
the “waters to settle.” The Drug Enforcement Agency (“DEA”) confirmed that local
police officials had investigated reports of a shooting that occurred shortly before that
intercepted call at a local restaurant. Additionally, in one instance DeLeon-Pineda
demanded payments from a co-conspirator, and he told others that he had a gun and
would shoot the co-conspirator at their next meeting if he did not pay in time.
In July 2018, less than a month after pleading guilty, DeLeon-Pineda and five
other inmates at the county prison assaulted another prisoner by punching and kicking
him after he was tackled. DeLeon-Pineda was placed in restricted housing as a result of
the attack. No criminal charges were filed against the participants of the fight.
The Sentencing Guidelines range for DeLeon-Pineda was 188 to 235 months. At
the sentencing hearing, DeLeon-Pineda objected to the Guidelines calculation on
numerous grounds, including specifically the denial of acceptance of responsibility points
and the cumulative effect of the many enhancements applied, among others, for his
leadership role and possession of a firearm in connection with his drug dealing. The
District Court denied the three-level adjustment for acceptance of responsibility because
of the inmate fight and applied all the enhancements recommended by the Presentence
Report, finding that the Guidelines allowed for duplicative and cumulative enhancements.
The Court ultimately imposed a sentence of 188 months in prison, to be followed by four
years of supervised release.
II. Analysis1
A. Acceptance of Responsibility Reduction
We review for clear error the District Court’s factual determination of whether
DeLeon-Pineda was entitled to an acceptance-of-responsibility reduction in his sentence.
United States v. DeLeon-Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995). Whether the Court
correctly interpreted U.S.S.G. § 3E1.1 is a legal question subject to de novo review.
United States v. Frierson, 945 F.2d 650, 655 (3d Cir. 1991).
DeLeon-Pineda has the burden of establishing by a preponderance of the evidence
that he is entitled to an offense level reduction for acceptance of responsibility. See
United States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002). Section 3E1.1(a) of the
Sentencing Guidelines states: “If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by [two] levels.” U.S.S.G.
1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
§ 3E1.1(a). The Commentary gives numerous factors that a district court may consider in
determining whether a defendant has demonstrated an acceptance of responsibility under
§ 3E1.1. One is “(B) voluntary termination or withdrawal from criminal conduct or
associations[.]” U.S.S.G. § 3E1.1 Application Note 1(B).
We have previously held that “a plea of guilty is not dispositive as to the
defendant’s acceptance of responsibility,” United States v. Singh, 923 F.2d 1039, 1043
(3d Cir. 1991), and that “the Guidelines make clear that a guilty plea does not carry with
it an automatic entitlement to credit for acceptance of responsibility.” United States v.
Bennett, 161 F.3d 171, 197 (3d Cir. 1998). It “may constitute evidence of
acceptance of responsibility, but the sentencing court [is] free to consider other evidence
that is inconsistent with acceptance of responsibility[.]” Id. “A guilty plea in acceptance
of responsibility may be outweighed by conduct that is inconsistent with such
acceptance.” United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir. 1996); see also
U.S.S.G. § 3E1.1, cmt. n.3.
Here, the only evidence that DeLeon-Pineda accepted responsibility is that he
entered a guilty plea. He presented no other evidence before the District Court. It
conducted a fact-specific assessment and weighed the dearth of evidence presented by
DeLeon-Pineda against the evidence of the prison fight. After considering reports about
the fight filed by several officers, the Court articulated several factual findings explaining
its decision to deny the application of the Section 3E1.1 reduction.
The Court first concluded that the prison incident was not a “fight,” but an
“ambush,” because it did not involve a one-on-one fight between two inmates. App. 108.
It stated that in such a case it would have ruled differently. The circumstances here
indicated that DeLeon-Pineda was engaged in criminal association with others and agreed
with them to carry out an assault. The Court considered this to be evidence that he had
not accepted responsibility for his crimes. Second, the Court found that the attack was
evidence that DeLeon-Pineda had not abandoned his propensity for violence. It noted
that if DeLeon-Pineda’s “involvement with the sale of drugs was non-violent, I would
take that into consideration, but the facts are . . . there is violence interwoven with the
crimes . . . . I must take that into account here in determining whether there was genuine
remorse . . . .” App. 110–11. The Court cited to the portions of the record detailing how
DeLeon-Pineda possessed and carried a firearm while trafficking drugs, admitted in a
recorded conversation that he shot someone, and threatened to shoot a subordinate who
owed him a drug debt.
The District Court did not clearly err in finding that any demonstration of
acceptance of responsibility inherent in DeLeon-Pineda’s guilty plea was outweighed by
the violent assault he engaged in with others while awaiting sentencing. It was not
required to base its holding on any subsequent criminal charges, but only had to consider
whether DeLeon-Pineda engaged in conduct inconsistent with acceptance of
responsibility. Ceccarini, 98 F.3d at 130. The Court relied on persuasive case law from
our sister circuits that violent conduct while in custody awaiting sentencing is
inconsistent with acceptance of responsibility. See, e.g., United States v. Prince, 204
F.3d 1021, 1023–24 (10th Cir. 2000) (holding that a defendant’s attack on a fellow
prisoner while awaiting sentencing for bank robbery could be considered in assessing
acceptance of responsibility). Accordingly, we affirm the District Court’s denial of the
acceptance-of-responsibility reduction.
B. Substantive Unreasonableness
We review sentences for substantive reasonableness under an abuse of discretion
standard, see Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc), and “affirm a procedurally sound sentence as
substantively reasonable unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided.”
United States v. Handerhan, 739 F.3d 114, 124 (3d Cir. 2014) (internal quotation marks
omitted). We may presume that a sentence within the advisory Guidelines is reasonable.
Rita v. United States, 551 U.S. 338, 364 (2007); Handerhan, 739 F.3d at 124.
DeLeon-Pineda does not allege any procedural deficiency in his sentencing. We
explain above why his argument regarding the reduction for acceptance of responsibility
fails. His only other arguments are that the District Court unfairly applied multiple
enhancements and did not properly consider mitigating factors. He broadly argues that
the nature of his offense cannot justify the sentence and that the length is unduly punitive.
These arguments also fail.
First, although DeLeon-Pineda contends that the enhancements the Court applied
unfairly “overlap,” he does not argue that any of the enhancements were unsupported a
preponderance of evidence, and he does not point us to any case law (and we are aware of
none) suggesting that these specific enhancements may not be applied together. DeLeonPineda Br. 28. We see no error in the District Court’s Guidelines calculations. DeLeon-
Pineda was responsible for the distribution and possession with intent to distribute of
over 100 grams of heroin and over 28 grams of cocaine base, or crack, and 49 grams of
cocaine, resulting in a base offense level of 24. He organized and led the operation,
resulting in an increase of four levels. He possessed a firearm that had a nexus to his
drug trafficking, resulting in an increase of two levels. He employed violence, resulting
in a two-level increase. He maintained a separate residence where he stored drugs,
money, and at least one gun, also resulting in a two-level increase. Finally, he had no
legitimate income, but made his entire livelihood from his criminal activity, resulting in a
two-level increase. We fail to see how any of these enhancements are duplicative. The
possession of the firearm and the use of and threat of violence are different and separate
conduct. And a leadership-role enhancement does not capture conduct involving the
maintenance of a stash house, nor does either of those enhancements capture making a
criminal livelihood, and so they are not unfairly duplicative. Indeed, the livelihood
enhancement under U.S.S.G. § 2D1.1(b)(15)(E) cannot apply unless the defendant also
receives the leadership-role enhancement.
Second, despite DeLeon-Pineda’s argument to the contrary, the District Court did
indeed consider the mitigating factors that this was his first offense and that he faced
deportation after serving his sentence. The Court listed the mitigating factors and still
found that “the evidence is substantial and compelling that the Defendant made his living
by leading a drug distribution conspiracy that involved his use of firearms, violence and a
stash house as the leader of five or more others engaged in criminal activity at his
direction.” App. 126. The Court also considered the § 3553(a) factors but nonetheless
exercised discretion in imposing a sentence at the bottom of the Guidelines range. That it
did not vary downward because of the mitigating factors does not make the sentence
unreasonable. See United States v. Lessner, 498 F.3d 185, 204–205 (3d Cir. 2007).
DeLeon-Pineda’s sentence is thus not substantively unreasonable.

Outcome: Accordingly, we affirm the District Court’s denial of a reduction for acceptance of
responsibility and hold that DeLeon-Pineda’s sentence was not substantively

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