NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0406n.06

Case Nos. 17-1829/2073

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANGEL PINA (17-1829), and

JAIME VALENTE PINA, JR. (17-2073),

Defendants-Appellants.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

BEFORE: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge. Police arrested brothers Jaime and Angel Pina during a search 

of a suspected drug dealer’s home. Soon thereafter, Jaime spoke to investigators, and authorities 

used some of Jaime’s statements to indict both brothers on federal charges. Angel pled guilty, but 

Jaime went to trial and was convicted. In this consolidated appeal, Jaime challenges his conviction

on ineffective-assistance-of-counsel grounds, and Angel appeals his sentence as procedurally 

unreasonable. We affirm. 

I.

Michigan police arrested Jaime and Angel Pina on drug charges after finding cocaine in 

their possession. After their arrest, Jaime Pina spoke to investigators three times. First, Jaime 

spoke to police at the site of his arrest on November 9. He denied being a cocaine user but admitted 
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that police would find narcotics-related text messages on his cell phone. The following day, Jaime 

spoke to investigators again—this time claiming that the cocaine was for personal use and that he 

was not a drug dealer. That same day, state authorities charged Jaime with possession with intent 

to deliver and he was arraigned on this charge on November 14. After this second interview, 

Jaime’s attorney learned that federal authorities were also investigating Jaime and his brother. So 

Jaime’s attorney advised Jaime to speak to state investigators for a third time. The attorney did 

not secure an immunity agreement for that testimony. And at this third interview, with his attorney 

present, Jaime made a number of incriminating statements about distributing drugs and operating 

as a supplier to a couple of local drug dealers. Relying in part on Jaime’s statements from this 

third interview, federal prosecutors indicted both brothers.1 Angel pled guilty, but Jaime went to 

trial. 

At Jaime’s trial, federal prosecutors relied in part on his statements to state investigators. 

These statements corroborated physical evidence, text messages, and the testimony of another codefendant. The prosecutors also wanted Angel to testify, but Angel refused to take the stand. The 

district court ordered Angel to testify and granted him immunity for his statements. But Angel 

still refused. As a consequence, the court held him in civil contempt and sentenced him to six 

months in prison, to be served consecutive to his drug charges. The following day, however, the 

court had second thoughts. The court deemed the contempt sentence “premature” and vacated it. 

And the court gave Angel an opportunity to change his mind. Yet Angel never testified.

Notwithstanding Angel’s refusal to testify, the jury convicted Jaime of conspiracy to 

distribute and of possession with the intent to distribute cocaine. But when the time came to 

sentence Angel after Jaime’s trial, the court did not let Angel’s intransigence go unnoticed. Since

 

1 Following this third interview, state authorities added a charge of conspiracy as to Jaime on November 17. 
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Angel refused to testify, the district court enhanced his drug sentence by two levels for obstruction 

of justice. The district court also declined to credit Angel with acceptance of responsibility because 

Angel obstructed justice and minimized his role in the conspiracy. 

Both Pina brothers now appeal. 

II. 

Jaime argues that his counsel was ineffective because he (1) let Jaime speak to state 

investigators without first securing testimonial immunity for the third interview, and (2) had a 

conflict of interest when he recommended that Jaime speak to those investigators. Jaime raised 

these arguments before the district court both in a motion to suppress and a motion for a new trial. 

The district court denied both motions.

This court, sitting en banc, recently decided a case that forecloses Jaime’s arguments. In 

Turner v. United States, we held that the Sixth Amendment right to counsel does not attach preindictment. 885 F.3d 949, 953 (6th Cir. 2018) (en banc) (“Because the Supreme Court has not 

extended the Sixth Amendment right to counsel to any point before the initiation of adversary 

judicial criminal proceedings, we may not do so.”). Indeed, Turner noted that “the Supreme Court 

has repeatedly rejected attempts by criminal defendants to extend the Sixth Amendment right to 

counsel to preindictment proceedings.” Id. Since Jaime gave his third interview before his federal 

indictment, the Sixth Amendment did not attach to Jaime’s statements. Id.; see also Rothgery v. 

Gillespie Cty., 554 U.S. 191, 211 (2008) (stating that the Sixth Amendment does not attach until 

“the government has used the judicial machinery to signal a commitment to prosecute”); Moran v. 

Burbine, 475 U.S. 412, 432 (1986) (holding that the Sixth Amendment does not apply to statements 

a defendant makes to police before he is indicted); United States v. Gouveia, 467 U.S. 180, 188 

(1984); Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion). 
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Nevertheless, since the appellant in Turner has petitioned for certiorari, Jaime asks that we 

wait to resolve his case until the Supreme Court acts. See Pet. for Writ of Cert., Turner v. United 

States, No. 18-106 (U.S. July 20, 2018). Yet even under the Turner dissent’s more expansive view 

of Sixth Amendment protections, no right to counsel had attached to Jaime’s federal charges. The 

Turner dissent argued that the right attaches when the government offers a preindictment plea deal. 

Turner, 885 F.3d at 980 (Stranch, J., dissenting) (“I think it clear that a formal plea offer on specific 

forthcoming charges contains all of the trappings of an adversary judicial proceeding.”). But 

unlike the defendant in Turner, Jaime had not received a plea offer when he made the incriminating 

statements. Indeed, Jaime’s attorney allowed Jaime to be interviewed by state authorities only

because the Department of Homeland Security and the U.S. Attorney’s Office were interested in 

interviewing him—not because a plea agreement was pending. 

Jaime argues, however, that because the state had already filed drug charges against him 

when he spoke to state investigators, the Sixth Amendment protects his statements. But the right 

to counsel is offense-specific. Texas v. Cobb, 532 U.S. 162, 167–68 (2001) (holding that a

defendant’s statements regarding uncharged offenses, without his attorney present, were 

admissible notwithstanding his right to counsel on other charged offenses). And federal and state 

charges are distinct for purposes of the Sixth Amendment because the federal and state government 

are separate sovereigns. See Turner, 885 F.3d at 954–55 (joining the majority of circuits, which 

have held that a person who commits the same crime against two sovereigns commits two distinct 

offenses for Sixth Amendment purposes). Even if the minority of circuits’ view is correct that 

state and federal offenses could be considered the same—if they share the same essential 

elements—Jaime has failed to argue that his state and federal offenses share the same elements. 

Id., 885 F.3d at 975–76; see also Cobb, 532 U.S. at 172–73 (citing Blockburger v. United States, 
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284 U.S. 299, 304 (1932)). So Jaime has forfeited this argument. See United States v. Johnson, 

440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a settled appellate rule that issues adverted to in a 

perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed 

waived.”). 

In sum, Jaime had no right to counsel when he gave statements to the state investigators. 

Perhaps Jaime’s attorney should not have allowed him to be interviewed a third time, but the Sixth 

Amendment offers no remedy when the prospect of criminal charges is merely hypothetical. As 

such, we need not decide whether Jaime’s attorney provided ineffective assistance. His conviction 

must stand regardless. 

III.

Angel argues that the district court misapplied two provisions of the Sentencing Guidelines. 

We review each in turn. 

Obstruction of Justice. First, Angel claims that the district court erred in enhancing his 

sentence for obstruction of justice on account of his refusal to testify at Jaime’s trial. He concedes 

that refusing to testify qualifies as obstruction of justice but claims that the enhancement should 

not apply in his case because the district court separately sentenced him for contempt. U.S.

Sentencing Guidelines Manual § 3C1.1 & cmt. n.1 (U.S. Sentencing Comm’n 2016). Since Angel 

did not raise this argument below, we review for plain error. See United States v. Vonner, 516 

F.3d 382, 386 (6th Cir. 2008) (en banc). 

Plain error review places the burden of persuasion on the defendant, and Angel has not met 

that burden. All Angel points to is Guidelines’ commentary indicating that courts should not 

enhance a sentence for contempt based on obstruction of justice. See U.S.S.G. § 3C1.1 cmt. n.7. 
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But the court applied the obstruction of justice enhancement to Angel’s sentence for his drug

offenses, not his contempt offense. Therefore, this commentary to § 3C1.1 does not apply. 

In addition, Angel has not shown the district court otherwise erred by “double-counting” 

his refusal to testify—once in his contempt sentence and again with an obstruction-of-justice 

enhancement. First, although the district court initially imposed a consecutive six-month sentence 

after finding Angel in contempt, it quickly vacated that sentence. Second, the Guidelines explicitly 

contemplate how to sentence a defendant for both contempt and an underlying charge. Id. § 3C1.1 

cmt. n.8. But Angel does not even attempt to show that the district court should have followed 

this procedure after vacating his contempt sentence. 

Most of all, it is not clear that Angel served any part of his contempt sentence. When the 

district court sentenced Angel to contempt, Angel had pled guilty to his drug charge and was 

already incarcerated. So the district court stated that the contempt sentence “will be consecutive 

to any sentence [Angel] receive[d] in the underlying conspiracy to which [he had] already pled 

guilty.” R. 186, Pg. ID 930. This means until Angel finished his drug sentence, he would never 

be imprisoned on account of his contempt. Angel has therefore failed to establish any prejudice 

from the court’s purported error. Thus, Angel has not shown that he is entitled to plain-error relief.

Acceptance of Responsibility. Angel admitted his guilt. As such, he argues that the district 

court should have given him credit for acceptance of responsibility and reduced his sentencing 

range. See U.S.S.G. § 3E1.1 & cmt. n.1. We review the district court’s fact-finding for clear error 

and the application of § 3E1.1 to those facts de novo. See United States v. Hollis, 823 F.3d 1045, 

1047 (6th Cir. 2016) (per curiam). 

The district court did not err when it concluded that Angel had attempted to minimize his 

role in the drug conspiracy and denied him credit for acceptance of responsibility. Since district 
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judges are in a unique position to evaluate one’s acceptance of responsibility, we give the district 

court’s findings “great deference.” See U.S.S.G. § 3E1.1 cmt. n.5. Here the record supports the 

district court’s findings. Angel inconsistently described both the amount of cocaine he sold and 

how often he sold it. He also refused to identify his source for cocaine. And most importantly, 

the court enhanced Angel’s sentence for obstructing justice because he refused to testify. Only in 

the “extraordinary case” will a court assess both an upward adjustment for obstruction and a 

downward adjustment for acceptance of responsibility. See id. § 3E1.1 cmt. n.4 (“Conduct 

resulting in an enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not 

accepted responsibility for his criminal conduct.”); see also United States v. Verduzco, 558 F. 

App’x 562, 566 (6th Cir. 2014). Angel has pointed to nothing in the record to suggest that this 

case is an extraordinary one. The district court’s denial of the departure was appropriate.

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We therefore AFFIRM both Jaime Pina’s conviction and Angel Pina’s sentence.