United States v. Vazquez-Ortiz ( 1999 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 98-1547
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO VAZQUEZ-ORTIZ,
a/k/a PAPO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Edward E. Parson on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
United States Attorney, and Camille Vélez-Rivé, Assistant United States
Attorney, on brief for appellee.
August 24, 1999
Per Curiam. Fernando Vazquez-Ortiz challenges the 97-month
sentence imposed upon him for conspiring to launder monetary
instruments. We affirm the district court judgment.
First, Vazquez claims, the district court erred by placing
him in criminal history category III, see U.S.S.G. § 4A1.1, given that
the Arecibo Superior Court subsequently vacated an earlier conviction
for aggravated larceny. On the other hand, the government counters
with a more recent document from the same superior court which
conclusively refutes any such vacatur.
Second, Vazquez contends that the government breached a
provision in the plea agreement — that the base offense level was to be
23 and that "there would not be any further adjustment" — by remaining
silent as the district court imposed a three-level enhancement, on its
own motion, based on the supervisory role Vazquez played in the offense
of conviction. See U.S.S.G. § 3B1.1. Once again we disagree, since
the district court carefully explained to Vazquez, during the plea
colloquy, that it was not bound by the sentencing recommendation made
by the government. See United States v. Grimm, 170 F.3d 760, 768 (1st
Cir. 1999). Moreover, the government neither agreed to recommend that
the court impose no upward adjustments, cf. United States v. Velez-
Carrero, 77 F.3d 11 (1st Cir. 1996), nor to oppose whatever upward
adjustments the probation office might recommend or the district court
might opt to impose, cf. United States v. Clark, 55 F.3d 9 (1st Cir.
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1995).
Finally, Vazquez argues that the district court erred in
basing its § 3B1.1 enhancement exclusively on the conclusory
description of his involvement in the charged offense set forth in the
presentence report, and by refusing to conduct an evidentiary hearing.
First, the presentence report contained reliable evidence of the
supervisory role played by Vazquez. See United States v. Gonzalez-
Vazquez, 34 F.3d 19, 25 (1st Cir. 1994) ("Facts contained in a
presentence report ordinarily are considered reliable evidence for
sentencing purposes."). It indicated that Vazquez produced and
distributed flyers which he and his codefendants utilized to gain
access to mailboxes for the purpose of stealing U.S. Treasury checks.
Vazquez used his own vehicle to transport codefendants to these sites,
to obtain false identification cards, and to cash the stolen checks.
See United States v. Joyce, 70 F.3d 679, 683 (1st Cir. 1995) (noting
that § 3B1.1 enhancement may apply where defendant was "responsible for
organizing others for the purpose of carrying out the crime"). At the
Rule 11 hearing, Vazquez, through counsel, not only accepted the
government’s description of the evidence, but "made no proffer
regarding any [other] possible, let alone relevant or material,
evidence that would be brought forward at an evidentiary hearing."
United States v. Grant, 114 F.3d 323, 327 (1st Cir. 1997).
Accordingly, the factual determinations made by the district
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court were not clearly erroneous. United States v. Ticchiarelli, 171
F.3d 24, 28 (1st Cir. 1999).
Affirmed.
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