United States v. Quintana-Perez , 117 F. App'x 773 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2131
02-2144
UNITED STATES,
Appellee,
v.
PEDRO QUINTANA-PÉREZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
James M. Fox on brief for appellant.
H. S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.
December 23, 2004
Per Curiam. Upon review of the record and the briefs
(including appellant's pro se supplemental brief), we conclude that
the facts and legal issues have been adequately presented and that
the decisional process would not be significantly aided by oral
argument. See Fed. R. App. P. 34(a)(2)(C); 1st Cir. Loc. R.
34(a)(2)(C). Appellant pled guilty to two separate drug
conspiracies. In connection with one of these charges (#00-332),
appellant stipulated to the applicable guidelines, including a 4-
level leadership adjustment under § 3B1.1(a), and to a 168-month
recommended prison sentence. Accepting the parties' stipulations,
the district court adopted the guideline calculations set forth in
their plea agreement and imposed the 168-month sentence to which
the parties had agreed. Appellant now says that he should have
received a lower sentence.
In essence, appellant contends that the 4-level
leadership adjustment that the court imposed lacked an adequate
factual basis because appellant's admissions at his change of plea
hearing were too vague to support it and his stipulations did not
constitute admissions. In addition, appellant contends that his
sentence violates Blakely v. Washington, 124 S. Ct. 2531, 2537
(2004)(holding that "the 'statutory maximum' for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant.")(citations omitted, emphasis in original).
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Although appellant protested the leadership adjustment at
his sentencing he did not suggest that the facts did not support
it. Moreover, appellant's counsel effectively conceded that
appellant did not have a valid legal objection to the adjustment.
Arguably, the claims appellant raises now have been waived. See
United States v. Stearns, 387 F.3d 104, 107-08 (1st Cir. 2004).
Nevertheless, we review them for plain error. See, e.g., United
States v. Savarese, 385 F.3d 15, 22 (1st Cir. 2004); United States
v. Solares, 236 F.3d 24, 25 (1st Cir. 2000).
The district court did not commit plain error by applying
the leadership adjustment. The record discloses that appellant
admitted that he owned the drug point at which he "supervised" at
least five people, specifically, his codefendants and a cooperating
informant, and that he was responsible for the sale of over five
kilograms of cocaine over the course of the conspiracy.1
Appellant's claim that he did not admit that he supervised anyone
is belied by the record of the Rule 11 hearing. Appellant only
disagreed with the prosecutor's statement that he personally sold
26 grams of cocaine to an undercover officer. Appellant did not
1
Although the prosecutor did not specify at the Rule 11
hearing that the persons that appellant supervised were his
codefendants and a cooperating informant, the presentence report
(PSR) did, and appellant did not object to it. Appellant is
therefore bound by the PSR's findings. See United States v.
Medina, 167 F.3d 77, 81 (1st Cir. 1999)("a court may accept, as true
and accurate, any unchallenged fact contained in the PSR[]")(citing
United States v. Rosales, 19 F.3d 763, 770 (1st Cir. 1994)).
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disagree with the prosecutor's claim that he supervised at least
five others and that he owned the drug point. The fact that
appellant stipulated to the leadership adjustment and admitted
facts that made its application plausible is enough to defeat his
claim, see United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001),
especially where appellant's counsel conceded that he lacked a
valid objection to the adjustment. As we said in Teeter, id.:
Should the [sentencing] court decide to accept
and act upon factual stipulations for
sentencing purposes, the parties usually will
be firmly bound. This general rule will apply
when, for example, a defendant stipulates to a
matter of fact or to the applicability of a
sentencing guideline (the legal meaning of
which is pellucid) to the unique facts of her
case. After all, the defendant knows what she
has done, and has little cause for complaint
if the district court takes her at her word.
The fact that appellant's admissions adequately support
the leadership adjustment is enough to remove this case from
Blakely's potential reach. See, e.g., Stearns, 387 F.3d at 107("Blakely does not apply to 'facts admitted by the
defendant[,]'")(citations omitted); Savarese, 385 F.3d at 22. And
since it is obvious that the district court applied the adjustment
based on appellant's admissions and stipulations, appellant's
suggestion that the district court's sentencing findings were not
specific enough to support the adjustment also fails. See United
States v. Garcia Morales, 382 F.3d 12, 20 (1st Cir. 2004).
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Accordingly, the judgment of the district court is affirmed. See
Local Rule 27(c).
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