United States v. Taveras , 118 F. App'x 516 ( 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Not for Publication in West's Federal Reporter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. 03-2283
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN TAVERAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Todd A. Bussert on brief for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney (Appellate Chief), on
brief for appellee.
December 21, 2004
Per Curiam. This is an appeal from a sentence imposed
pursuant to the federal sentencing guidelines. The underlying case
arose out of a two-count superseding indictment that charged
defendant-appellant Juan Taveras with conspiracy to possess with
intent to distribute fifty grams or more of cocaine base and a
detectable amount of heroin (count 1) and distribution of five
grams or more of cocaine base and a detectable amount of heroin
(count 2). See 21 U.S.C. §§ 841(a)(1), 846. The appellant
eventually entered a straight plea of guilty (i.e., a plea
unaccompanied by a plea agreement) to count 2 of the superseding
indictment.1
The district court convened a sentencing hearing on
September 3, 2003. It found the appellant responsible for 54.9
grams of cocaine base and 67.365 grams of heroin, aggregating
1,165.4 kilograms of marijuana equivalent. That finding yielded a
base offense level of 32. See USSG §2D1.1. The court subtracted
three levels for acceptance of responsibility, id. §3E1.1; placed
the appellant in criminal history category III; and constructed a
guideline sentencing range of 108-135 months, see id. Ch.5, Pt.A
(sentencing table). The court proceeded to sentence the appellant
to a 118-month incarcerative term, four years of supervised
release, and payment of a $100 special assessment.
1
The district court dismissed count 1 on the government's
motion.
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In essence, the appellant assigns error in only two
respects. First, he contests the sentencing court's drug-quantity
determination. Second, he advances a constitutional challenge to
his sentence based on the Supreme Court's recent decision in
Blakely v. Washington, 124 S. Ct. 2531 (2004). As we explain
below, both assignments of error lack merit.
Drug Quantity
Drug quantity often drives the length of a defendant's
sentence in a narcotics trafficking case. See United States v.
Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993). For sentencing
purposes, a defendant is accountable not only for drugs that were
actually involved in the crime of conviction but also for what was
involved in any "relevant conduct." See United States v. Laboy,
351 F.3d 578, 582 (1st Cir. 2003); see also USSG §1B1.3. Relevant
conduct includes all acts "'that were part of the same course of
conduct or common scheme or plan as the offense of conviction,'
whether or not charged in the indictment." United States v. Sklar,
920 F.2d 107, 110 (1st Cir. 1990) (quoting USSG §1B1.3(a)(2)).
At sentencing, the government bears the burden of proving
drug quantity. See United States v. Huddleston, 194 F.3d 214, 224
(1st Cir. 1999). In determining drug quantity, the sentencing
court may accept, and act upon, any reliable evidence. See Sklar,
920 F.2d at 113. Typically, the court makes its drug-quantity
determination by reference to a preponderance of the evidence. See
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United States v. Eirby, 262 F.3d 31, 37 (1st Cir. 2001). Under
that standard, the amount need not be exact; "[a]n approximation of
drug quantity will be upheld 'as long as it represents a reasoned
estimate.'" Huddleston, 194 F.3d at 224 (quoting United States v.
Webster, 54 F.3d 1, 5 (1st Cir. 1995)).
The court below credited some of the testimony of Michael
Pushard, the appellant's "middleman," who testified at the
disposition hearing as a government witness. The appellant
concedes that Pushard's testimony, if taken at face value, supports
the disputed drug-quantity finding. He argues, however, that
Pushard was a turned accomplice, a heroin addict, an inconsistent
and at times self-contradictory witness, and otherwise unreliable.
A sentencing court has considerable latitude in making
credibility determinations. See, e.g., United States v. Sanchez,
354 F.3d 70, 83 (1st Cir.), cert. denied, 124 S. Ct. 2187, 2189
(2004); United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.
1993). The standard of review is deferential, as an appellate
court will set aside a sentencing court's factual findings only for
clear error. United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.
1990). Under that standard, we must affirm the district court's
decision "[s]o long as [it] is based on reasonable inferences drawn
from adequately supported facts." United States v. Santos, 357
F.3d 136, 142 (1st Cir. 2004).
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We have reviewed the presentence investigation report,
the sentencing transcript, and other relevant materials. Having
done so, we are not left with an impression that the sentencing
court's drug-quantity finding is outside the realm of reason.
After all, it is within the sentencing court's purview to credit
some portions of a witness's testimony, but not others. See, e.g.,
Huddleston, 194 F.3d at 223-24 (explaining that a factfinder may
reject a witness's testimony as to one matter, but accept it as to
another). That is what the court did here with regard to Pushard's
testimony. That testimony, though suspect for the reasons cited by
the appellant, was not so farfetched as to require the court to
ignore it entirely.
We give credit where credit is due. Mindful of the
circumstances, the sentencing court took care to limit its reliance
upon Pushard's testimony, making findings only as to transactions
proven by a preponderance of the evidence and excluding from its
calculus those deliveries supported by weaker or otherwise
uncorroborated testimony. That cautious approach warrants our
respect. Cf. United States v. Whiting, 28 F.3d 1296, 1305 (1st
Cir. 1994) (noting that a court must take "special care" in
approximating drug quantity but assigning no error to a
"conservative estimate [that] left a fair margin of safety"). We
therefore reject the appellant's attack on the sentencing court's
drug-quantity finding.
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Blakely
The appellant also invites this court to set aside his
sentence on the basis of the Supreme Court's decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004). We refuse the invitation.
Blakely examined the constitutionality of a Washington
state sentencing scheme. After the defendant pleaded guilty to
kidnaping, the trial court imposed a sentence above the statutory
maximum based on a finding of "deliberate cruelty." Id. at 2534-
35. The Supreme Court noted that this finding was "neither
admitted by [the defendant] nor found by a jury," id. at 2537, and
declared the augmented sentence to be violative of Blakely's Sixth
Amendment right to trial by jury, id. at 2538.
While the Court made clear that the federal sentencing
guidelines were not before it and expressed no opinion on their
validity, id. at 2538 n.9, the rationale of Blakely calls their
constitutionality into doubt. Indeed, the Court has recently taken
this question under advisement. See United States v. Booker, No.
04-104 (argued Oct. 4, 2004); United States v. Fanfan, No. 04-105
(argued Oct. 4, 2004). That doubt, however, does not redound to
the appellant's benefit.
In this case, the sentencing court ruled, inter alia,
that the appellant's base offense level should be increased due to
its drug-quantity determination. The increase in the offense level
yielded an elevated guideline sentencing range and, thus, led to a
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more onerous sentence. The appellant now attempts, for the first
time, to mount a Blakely challenge. He posits, correctly, that the
fact on which the upward adjustment depends — drug quantity — was
neither determined by a jury nor established beyond a reasonable
doubt.
Leaving to one side the fact that this case involves a
guilty plea, not a jury verdict, the record is crystal clear that
the appellant failed to advance this argument in the lower court.2
Arguably, this omission constitutes a waiver; if not, it
constitutes a forfeiture. See United States v. Morgan, 384 F.3d 1,
7-8 (1st Cir. 2004) (discussing this question); see also United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (explicating
the different consequences of waiver and forfeiture), cert. denied,
538 U.S. 937 (2003). We need not resolve that question today.
Assuming, favorably to the appellant, that the omission constitutes
a forfeiture, his argument fails.
Forfeited claims are reviewable only for plain error.
See Rodriguez, 311 F.3d at 437. Plain error review is not
appellant-friendly. Under that standard, the court of appeals will
reverse the trial court's decision only if a defendant demonstrates
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also (4)
2
The fact that Blakely had not been decided at the time of
sentencing does not excuse this default. See United States v. Del
Rosario, 388 F.3d 1, 13 n.8 (1st Cir. 2004).
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seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001). We discern no plain error here.
As said, the district court sentenced the appellant on
September 3, 2003. That was nine months before the Supreme Court
decided Blakely. Circuit precedent in force at the time of
sentencing, in line with the Supreme Court's decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), provided that a drug-quantity
finding did not need to be presented to a jury or proven beyond a
reasonable doubt so long as the resulting sentence did not exceed
the statutory maximum for the offense of conviction. See, e.g.,
Derman v. United States, 298 F.3d 34, 43 (1st Cir.), cert. denied,
537 U.S. 1048 (2002); Eirby, 262 F.3d at 37; United States v.
Robinson, 241 F.3d 115, 119 (1st Cir. 2001).
Here, the offense to which the appellant pleaded carries
a maximum sentence of forty years. See 21 U.S.C. § 841(b)(1)(B).
Whether Blakely has fatally undermined previous circuit authority
is an unsettled question and, whatever the ultimate outcome, the
answer is at this moment neither clear nor obvious. Accordingly,
we cannot hold that the district court committed plain error when
it sentenced the appellant on the bases, in part, of the disputed
drug-quantity finding and the dates of the relevant conduct. See
United States v. Del Rosario, 388 F.3d 1, 14-15 (1st Cir. 2004);
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United States v. Cordoza-Estrada, 385 F.3d 56, 60 (1st Cir. 2004)
(per curiam); Morgan, 384 F.3d at 8.
We need go no further. For the reasons elucidated above,
the appellant's conviction and sentence are summarily affirmed.
See 1st Cir. R. 27(c).
Affirmed.
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