United States v. Guzman ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1449



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                     JOSE GUZMAN,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                                Boudin, Circuit Judge.
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            Jose Guzman on brief pro se.
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            Donald  K. Stern,  United  States  Attorney,  William F.  Sinnott,
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        Assistant United States Attorney, and Carolyn Crotty Guttilla, Suffolk
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        University Law School, on brief for appellee.





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                                  December 16, 1997

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                 Per  Curiam.   In this  appeal  from his  sentence, Jose
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            Guzman raises three issues which  he concedes were not raised



            in  the district  court.  Accordingly,  "his sentence  can be



            reversed on  [these grounds]  only upon  a showing  of 'plain



            error.'" United  States v. Olivier-Diaz,  13 F.3d  1, 5  (1st
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            Cir. 1993).  After careful  review of the record, we conclude



            that appellant has failed to make such a showing with respect



            to any of the issues he raises on appeal.



                 The  district   court  adopted   the  undisputed   facts



            contained in the  PSR, as permitted by Fed.R.Crim.P.  32. See
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            United States v. Van,  87 F.3d 1, 3 (1st Cir.  1996).  It was
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            not "plain error"  for the district court to  find that those



            facts supported a  finding that the substance  distributed by



            appellant was "cocaine  base" as that term is  defined by the



            Sentencing   Guidelines   for   the   purposes  of   sentence



            enhancement. See U.S.S.G.  2D1.1(c) and note (D).
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                 Nor does appellant's new sentencing factor  manipulation



            claim   provide  a   basis   for  reversing   his   sentence.



            "[S]entencing factor  manipulation is  a claim  only for  the



            extreme and unusual case." United  States v. Montoya, 62 F.3d
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            1, 4 (1st Cir.  1995).  As  we reasoned in  a recent case  in



            which a similar claim was  made, "[g]overnment agents are not



            limited to replicating a suspect's largest unsolicited crime.



            In this case, the full  contours of the criminal operation --



            its size,  techniques, personnel  -- were,  like an  iceberg,







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            largely  submerged;   and  the  means  of   exploration  were



            additional and  larger transactions.  . .  . While  the sting



            could not be endlessly prolonged and enlarged, nothing in the



            objective  facts  suggests  'misconduct'  at  all,  let alone



            'extraordinary' misconduct.'"  United States v.  Egemonye, 62
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            F.3d 425 (1st Cir. 1995).



                 Appellant's final  argument is  based upon  his mistaken



            impression  that the  district court  did not apply  a three-



            level reduction in his  base offense level for  acceptance of



            responsibility,  pursuant  to  the United  States  Sentencing



            Guidelines,  3E1.1.  Our careful review of the record reveals



            that the  district court  adopted  the guideline  application



            contained in  the presentence report, including a three-level



            reduction  for  acceptance  of  responsibility.    Therefore,



            appellant's final claim is entirely without merit.



                 Appellant's sentence is affirmed.
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