United States v. Martinez-Vega , 303 F. App'x 6 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1083
UNITED STATES OF AMERICA,
Appellee,
v.
SERGIO MARTÍNEZ-VEGA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Boudin, Selya, and Stahl,
Circuit Judges.
María Soledad Ramírez-Becerra and Maria Soledad Ramirez-
Becerra Law Office, on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Germán A.
Rieckehoff, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-
Vélez, United States Attorney, on brief for appellee.
December 17, 2008
Per Curiam. Defendant pled guilty to one count of
conspiring with others to possess with intent to distribute 50
grams or more of crack cocaine within a public housing project and
within 1,000 feet of a public school, in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(A), 846, and 860, and was sentenced to 240
months' imprisonment, near the bottom of the guideline range as
computed by the district court.
On appeal, defendant argues, first, that he was not
adequately informed of the consequences of his guilty plea,
particularly the maximum penalty for the offense to which he pled
guilty. It is true that the district court misspoke at the change-
of-plea hearing when it stated that the maximum penalty for that
offense was 20 years under 21 U.S.C. § 860; in fact, the maximum
penalty was life imprisonment under 21 U.S.C. § 841(b)(1)(A), as
accurately stated in the Presentence Report. However, defendant
never sought below, and does not seek now, to vacate his guilty
plea and go to trial.1 Rather, in the district court, his only
1
Although he stated both at the change-of-plea hearing and at
the sentencing hearing that he "felt pressured" into entering a
straight plea as opposed to a negotiated plea, there is nothing in
the record to indicate that he felt pressured to plead guilty
rather than stand trial.
If defendant were asking this court to vacate his guilty plea,
we would review such an unpreserved claim only for plain error and
would find none since the record contains no indication, much less
a "reasonable probability," that defendant would have decided to go
to trial rather than plead guilty if he had been correctly informed
of the maximum penalty for his offense at the time of his guilty
plea. United States v. Dominguez Benitez, 524 U.S. 74, 83 (2004).
-2-
hesitation about pleading guilty was based on his persistent hope
(despite the repeated advice of his counsel and the prosecutor to
the contrary) that he could belatedly accept the government's prior
offer of a plea agreement (which defendant had previously rejected
and the government had since withdrawn), rather than enter a
straight plea.
In this court, defendant's only dispute is with the
length of the sentence imposed, which was apparently higher than he
hoped to receive when he pled guilty. That, of course, is no basis
for challenging the validity of his plea, United States v. Mercedes
Mercedes, 428 F.3d 355, 359 (1st Cir. 2005), much less his
sentence. "Defendants cannot have it both ways--one way when they
plead and another when they come to sentence, unless they express
a willingness to have the pleas set aside." Dawson v. Wainwright,
440 F.2d 1259, 1262 (5th Cir. 1971).
Moreover, any defect in defendant's plea colloquy had no
bearing on his ultimate sentence. The drug quantity used to
calculate defendant's guideline range was based not on the amount
of drugs to which he pled guilty but on the evidence presented by
the government at sentencing. Defendant pled guilty to the
indictment, which charged him with conspiring to possess with
intent to distribute "50 grams or more of crack cocaine" but did
not specify the precise amount of drugs involved. Because
defendant disputed the amount of drugs found attributable to him in
-3-
the presentence report, the government called an agent involved in
the underlying investigation to testify on that issue at the
sentencing hearing. Based on the agent's testimony, the court
found that the total amount of drugs involved in the conspiracy was
3.8 kilograms. Defendant does not challenge the factual accuracy
of that calculation on appeal.
Although defendant argued below that he should be held
accountable for only half of that amount (based on the agent's
testimony that defendant shared leadership of the drug point in
question with another defendant), the court found it unnecessary to
resolve that issue since the base offense level, 36, would have
been the same whether the drug amount attributable to defendant
were 3.8 or 1.9 kilograms. See U.S.S.G. § 2D1.1(c)(2) (applying
level 36 to at least 1.5 but less than 4.5 kilograms of cocaine
base). Defendant acknowledged as much below and does not press
this issue on appeal either.
Defendant's only remaining argument is that the district
court failed to give adequate weight to certain purportedly
mitigating sentencing factors--namely, defendant's age (21), his
limited education (11th grade), his upbringing in a drug-infested
environment, and his lack of a criminal record. However, the
record indicates that the district court did consider those factors
but found them outweighed by the seriousness of the offense--large-
scale drug trafficking in plain view of young children on a
-4-
basketball court in a public housing project and near a public
middle school--and the resulting need for punishment and
deterrence. Given the deference due to the district court's
balancing of the applicable factors, United States v. Deppe, 509
F.3d 54, 62 (1st Cir. 2007); United States v. Dixon, 449 F.3d 194,
205 (1st Cir. 2006), particularly where, as here, the chosen
sentence falls within the guideline range, Rita v. United States,
127 S. Ct. 2456, 2463 (2007), we decline to second-guess its
plausible reasoning or its defensible result, United States v.
Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc).
Accordingly, the district court's judgment is summarily
affirmed. See 1st Cir. R. 27.0(c).
-5-