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

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: GI LMAN, GI BBONS, and THAPAR, Circuit Judges

. THAPAR, Circuit Judge. Police arrested brothers Jaime and Angel Pina duri ng a search of a suspected drug dealer’s home. Soon thereafter, Jaime spoke to investigators , and a uthorities

u s ed some of Jaime’s statements to indict both brothers on federal charges. Angel pled guilty, but Jaime went to trial and was convicted. In th is consolidated appeal, Jaime challenges his conviction on ineffective

- assistance

- of

- counsel grounds , and Angel appeals his sentence as procedurally unreasonable

. We affirm. I. Michigan p olice 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 admittedCase Nos. 17

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- that police would find narcotics

- related t e xt messages on his cell phone. The following day , Jaime spoke to investigators again

— t his 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 f or a third time

. T he attorney did not secure an immunity agreement for that testimony

. And at this third interview, w ith 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 prosecut ors relied in part on his statements to state investigators. These statements corroborated physical evidence, text messages, and the testimony of another co

defendant. The prosecutors also wanted Angel to testify , but Angel refused to take the stand. Th e district court ordered Angel to testify and granted him immunity for his statements. But Angel still refused. As a consequence, t he 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 t he court gave Angel an opportunity to change his mind. Yet Angel never testified. Notwithstanding Angel’s refusal to te stify , 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.Case Nos. 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 i n 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 int erest 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 argument s . In Turner v. United States , we held that the Sixth Amendment right to counsel does not attach pre

indictment . 885 F.3d 949, 953 (6th Cir. 2018) (en banc) (“Because the Supreme Court has no t extended the Sixth Amendment right to counsel to any point before the initiation of advers ary judicial criminal p roceedings, we may not do so.”)

. Indeed, Turner noted that “the Supreme Court has repeatedly rejected attempts by criminal defendants to ext end 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

. ; s ee also Rothgery v. Gillespie C ty
. , 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 t hat t he Sixth Amendment does not apply to st atements 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).Case Nos. 17

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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 offer s a preindictment plea deal. Turner, 885 F.3d at 980 (S tranch, 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 wa s 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 distinc t 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 offense s share the same elements

. Id. , 885 F.3d at 975

– 76; s ee also Cobb , 532 U.S. at 172

– 73 (citing Blockburger v. United States ,Case Nos. 17

- 1829 / 2073 , United States v. Pina

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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 stat ements 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 whe ther Jaime’s attorney provided ineffective assistance. His conviction must stand regardless. II I

. Angel argues that th e district c ourt misapplied two provisions of the S entencing G uidelines. 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 enha ncement 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. 200 8 ) (en banc)

. Plain error review places the burden of persuasion on the defendant, and Angel has not met that burden. A ll Angel points to is Guidelines’ commentary indicating that court s should not enhance a sentence for contempt based on obstruction of justice. See U.S.S.G. § 3C1.1 cmt. n.7

.Case Nos. 17

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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, althoug h 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 fr om 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 i t concluded that Angel had attempted to minimize his role in the drug conspiracy a nd denied him credit for acceptance of responsibil i ty
. Since districtCase Nos. 17

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- judges are in a unique position to evaluate one’s acceptance of responsibility, we give the district court’s finding s “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 sol d and how often he sold it. He also refused to identify his source for cocaine. And mo st importantly, the court enhanced Angel’s sent ence for obstructing justice because he refused to testify

. O nly 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

resu lting i n 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 nothi ng in the record to suggest that this case is an extraordinary one. T he district court’s denial of the departure was appropriate.

* * * We therefore AFFIRM both Jaime Pina’s convic tion and Angel Pina’s sentence.