United States v. Guzman ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1449
UNITED STATES,
Appellee,
v.
JOSE GUZMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
Boudin, Circuit Judge.
Jose Guzman on brief pro se.
Donald K. Stern, United States Attorney, William F. Sinnott,
Assistant United States Attorney, and Carolyn Crotty Guttilla, Suffolk
University Law School, on brief for appellee.
December 16, 1997
Per Curiam. In this appeal from his sentence, Jose
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
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
United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996). It was
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).
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
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
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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