United States v. Doe ( 1999 )

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<pre> [NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit ____________________ No. 98-2216 UNITED STATES OF AMERICA, Appellee, v. JOHN DOE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] ____________________ Before Torruella, Stahl, and Lynch, Circuit Judges. ____________________ Miriam Ramos Grateroles and Luz M. Rios Rosario on brief for appellant. Jorge E. Vega-Pacheco, Nelson Prez-Sosa, and Guillermo Gil on brief for appellee. ____________________ May 7, 1999 ____________________ 

LYNCH, Circuit Judge. After reaching a plea agreement under Fed. R. Crim. P. 11(e)(1)(B), defendant John Doe pled guilty to conspiracy to distribute cocaine. He appeals from his sentence. We affirm. Acting on wiretap information, Drug Enforcement Administration agents pulled over a car driven by Doe. The car contained approximately 120 kilograms of cocaine. Agents also executed a warrant to search the home of co-defendant Nelson De Jess-Morales, and found approximately 529 kilograms of cocaine as well as evidence of cocaine traffic approaching 3,000 kilograms. A grand jury indicted Doe with conspiracy to distribute cocaine, see 21 U.S.C. 841(a)(1) (West 1981) & 846 (West Supp. 1999), and possession of cocaine with intent to distribute. See 21 U.S.C. 841(a)(1); 18 U.S.C. 2 (West 1969). The parties reached a plea agreement, under which Doe pled guilty to the conspiracy charge and the government sought dismissal of the possession charge. The agreement attributed 50-150 kilograms of cocaine to Doe, leading to a base offense level of 36. See U.S. Sentencing Guidelines 2D1.1(c) (1998). The agreement proposed a three-level reduction in the offense level for acceptance of responsibility, see U.S.S.G. 3E1.1, and an additional two-level reduction should the court determine that Doe met the criteria of the 'safety valve' provision set forth in U.S.S.G. 5C1.2. If both reductions applied, defendant's adjusted offense level would be 31, and the government would recommend the minimum sentence of 120 months' imprisonment. The agreement noted that, should Doe fail to meet the safety valve criteria, his adjusted offense level would be 33 and his minimum sentence would be 135 months. Finally, the agreement acknowledged that all sentencing conclusions remained "within the sound discretion of the sentencing judge." The sentencing hearing focused on 5C1.2, the safety valve provision. The government argued that 5C1.2 should not apply because Doe did not meet its requirement of truthfulness: [N]ot later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. U.S.S.G. 5C1.2(5). Doe replied that he had satisfied the truthfulness requirement and merited a two-level reduction. After holding a sentencing hearing, the district court agreed with the government. Noting that "even on the stand [Doe] has been hesitant," the district court found that Doe had not been fully truthful. Doe moved for reconsideration, and the court entertained further discussion before denying his motion. The court did apply the reduction for acceptance of responsibility, reaching an adjusted offense level of 33, and sentenced Doe to the minimum term of 135 months' imprisonment followed by five years of supervised release. The sole issue on appeal is whether the sentencing court erred in denying a two-level reduction under 5C1.2. We review de novo any legal interpretation of this section, see United States v. White, 119 F.3d 70, 73 n.6 (1st Cir. 1997), and review factual determinations for clear error. See United States v. Miranda- Santiago, 96 F.3d 517, 527 (1st Cir. 1996). Doe bore the burden of proof: to benefit from the safety valve, he had to "persuade the district court that he ha[d] truthfully provided the required information and evidence to the government." United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (internal quotation marks omitted). Doe makes two alternative arguments. He first contends that the district court erred in three ways: by improperly applying the standard of U.S.S.G. 5K1.1 to his case, by failing to credit his desire to cooperate, and by sanctioning him for failing to provide evidence of a different drug conspiracy not "part of the same course of conduct or . . . common scheme or plan." Had the district court not committed these errors, Doe argues, it would have found that he met the requirements of 5C1.2. The record is clear that the district court did not apply 5K1.1 in this case and that it used the appropriate standard under 5C1.2. At the sentencing hearing, which took place over two days and resulted in 180 transcript pages, the government introduced sufficient evidence for the district court to find that Doe was not fully truthful as required by 5C1.2. Contrary to Doe's depiction of his own meager involvement, a co-defendant identified Doe as responsible for packaging and mailing of the cocaine to New York; another witness identified Doe as an active participant in three meetings packaging the cocaine for shipment; and the court, having heard Doe's testimony, found that he was not forthcoming. There was no error. In the alternative, Doe argues that the district court applied 5C1.2 harshly against him, but leniently against co- defendant Nelson De Jess-Morales. Doe believes that De Jess- Morales received a 5C1.2 reduction only because he was higher in the drug organization and therefore had more information to disclose than Doe, who characterizes himself as a mere "mule." Whether or not De Jess-Morales knew (and disclosed) more information than Doe, Doe's argument does nothing to rebut the district court's conclusion that he was not fully truthful. That was ample reason for any disparity and there can be no claim that the resulting sentence was disproportionate to the crime. Cf. United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir. 1994). The sentencing order is affirmed.</pre>

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Document Info

Docket Number： 98-2216

Filed Date： 5/10/1999

Precedential Status： Non-Precedential

Modified Date： 4/17/2021

Authorities (4)

United States v. Miranda Santiago , 96 F.3d 517 ( 1996 )

United States v. Montanez , 82 F.3d 520 ( 1996 )

United States v. White , 119 F.3d 70 ( 1997 )

United States v. Daryl E. Singleterry , 29 F.3d 733 ( 1994 )

View All Authorities »