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USCA1 Opinion
March 22, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1304
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE QUI ONES-PITA,
Defendant, Appellant.
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No. 92-1305
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO COTTO-GARCIA,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on March 16, 1993, is
amended as follows:
Page 4, line 3, heading should read: APPELLANT JOSE
QUINO ES-PITA, instead of . . . QUINO ES . . .
March 17, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1304
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE QUI ONES-PITA,
Defendant, Appellant.
___________________
No. 92-1305
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO COTTO-GARCIA,
Defendant, Appellant.
___________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Lydia Lizarribar-Masini for appellant Jos Qui ones-Pita.
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Gabriel Hern ndez-Rivera, by Appointment of the Court, for
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appellant Domingo Cotto-Garc a.
Jorge E. Vega-Pacheco, Assistant United States Attorney,
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with whom Daniel F. L pez-Romo, United States Attorney, was on
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brief for appellee.
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Per Curiam. In these appeals, which arise out of the
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same facts, one appellant challenges his sentence and the other
challenges his guilty plea. Both challenges arise out of the
same count in the common indictment: conspiracy to distribute at
least five kilograms of cocaine. Because we find both appeals
meritless, we affirm. We discuss our reasoning as to each
appellant individually.
APPELLANT DOMINGO COTTO-GARCIA
APPELLANT DOMINGO COTTO-GARCIA
______________________________
Appellant Cotto presents us with a curious claim. On
the one hand, he asserts that he entered his plea voluntarily and
knowingly as to all counts, including the count of conspiracy to
distribute at least five kilograms of cocaine. On the other
hand, he maintains that he did not know his plea would result in
a sentence based on a conspiracy to distribute at least five
kilograms. He contends, therefore, that he should have been
sentenced in accordance with the amount of cocaine he actually
handled. Appellant essentially wishes us to leave the plea
agreement intact, but remand the case for resentencing in
accordance with a lower amount of cocaine. We cannot do as
appellant wishes.
Appellant specifically pled guilty to a conspiracy to
distribute five kilograms of cocaine, and expressly refused to
seek withdrawal of that plea at oral argument. Indeed,
appellant's attorney plainly and repeatedly asserted the validity
of that plea. Thus, we are limited to determining whether the
sentence imposed pursuant to that plea was improper. As the
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sentence fell within the applicable Sentencing Guideline range
for appellant's crime, we conclude that it was entirely proper.
APPELLANT JOSE QUINO ES-PITA
APPELLANT JOSE QUINO ES-PITA
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In contrast to appellant Cotto, appellant Qui ones
seeks to withdraw his plea as unknowing. He claims that at the
sentencing hearing, he wished to present evidence negating the
factual basis for the plea. Specifically, he sought the
testimony of appellant Cotto to the effect that the conspiracy
did not involve five kilograms. Appellant Cotto, however,
invoked his constitutional right against self-incrimination on
advice of counsel, and the district court refused to compel
Cotto's testimony. Appellant claims that the district court
erred in doing so. We find no error.
Cotto's right to claim the Fifth Amendment right
against self-incrimination cannot be trampled upon in appellant
Qui ones' attempt to gain useful evidence. See United States v.
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Zirpolo, 704 F.2d 23, 25-26 (1st Cir.), cert. denied, 464 U.S.
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822 (1983); United States v. Rodr guez, 706 F.2d 31, 36 (2d Cir.
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1983). The fact that Cotto already pled guilty to the conspiracy
charge did not preclude him from claiming the right. The Fifth
Amendment does not require that defendants face such exposure
because they have already pled guilty. So long as the threat of
future prosecution exists, it is clear that the Fifth Amendment
protects defendants from the threat of self-incrimination.
Zirpolo, 704 F.2d at 25. Cotto's testimony could have exposed
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him to additional charges under both federal and state law. The
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district court did not err in refusing to compel Cotto's
testimony. There was no basis to withdraw the plea.
CONCLUSION
CONCLUSION
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Cases 92-1304 and 92-1305 are affirmed.
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Document Info
Docket Number： 92-1304
Filed Date： 3/22/1993
Precedential Status： Precedential
Modified Date： 9/21/2015