United States v. Sanchez-Alvarez , 22 F. App'x 24 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1498
UNITED STATES,
Appellee,
v.
ALBERTO D. SANCHEZ-ALVAREZ,
a/k/a SEALED DEFENDANT 25,
a/k/a GILBERTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Rafael Gonzalez Velez on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, on brief for
appellee.
November 20, 2001
Per Curiam. Alberto D. Sanchez-Alvarez appeals from
the five-year mandatory minimum sentence he received
following his guilty plea to one count of possession with
intent to distribute heroin. He claims that the district
court erred in denying him the benefit of the safety valve
provision of the United States Sentencing Guidelines. See
U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6). Specifically, Alberto
Sanchez challenges the sentencing court’s finding that he
failed to meet the safety valve requirement that he
truthfully provide the government with all information and
evidence he has concerning the offense. U.S.S.G. § 5C1.2.
The sentencing court found that Alberto Sanchez had not been
candid in his debriefing interview with U.S. Customs agents
and that his testimony at the sentencing hearing was
untruthful.
“We review for clear error the factual findings
underlying the district court’s determination that the
safety valve was unavailable.” United States v. Woods, 210
F.3d 70, 76 (1st Cir. 2000). The record indicates that
following an evidentiary hearing at which defense counsel
cross-examined the government’s two witnesses and argued
vigorously in favor of the application of the safety valve
provision, the district court, after carefully considering
all the evidence, determined that the provision did not
apply because Alberto Sanchez had not been truthful. That
finding is amply supported by the record evidence. Under
these circumstances, the sentencing court did not err in
denying Alberto Sanchez the benefit of the safety valve
provision. See United States v. White, 119 F.3d 70, 74 (1st
Cir. 1997).
Alberto Sanchez objects that the district court
should not have permitted U.S. Customs Agent Richard Roark
to testify at the sentencing hearing about the meaning of
encoded language used in a recorded telephone conversation
between Alberto Sanchez and a co-defendant because Agent
Roark was not qualified as an expert. Appellant’s reliance
upon Fed.R.Evid. 702 is misplaced. “The Federal Rules of
Evidence do not pertain during the sentencing phase of a
criminal trial.” United States v. Robinson, 144 F.3d 104,
108 (1st Cir. 1998). Moreover, “[e]ven in a trial setting,
we often have permitted law enforcement officers, not
formally trained as ‘experts,’ to furnish opinions based on
their real-world experience.” Id. Agent Roark’s testimony
easily satisfied the Sentencing Guidelines’ requirement that
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it possess “sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a). Therefore, the
district court did not err in considering his testimony in
sentencing Alberto Sanchez.
Alberto Sanchez’ sentence is affirmed. See Loc. R.
27(c).
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