United States v. Salcedo ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-30-2003
USA v. Salcedo
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2592
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2592
________________
UNITED STATES OF AMERICA
v.
NELSON SALCEDO, JR.,
a/k/a
Naz
Nelson Salcedo, Jr.,
Appellant
________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 01-cr-00373-1)
District Judge: Honorable Jerome B. Simandle
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 16, 2003
Before: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Filed: December 30, 2003)
_______________________
OPINION
_______________________
ROTH, Circuit Judge
Appellant Nelson Salcedo, Jr. appeals the judgment of sentence entered in the
United States District Court for the District of New Jersey. Salcedo pleaded guilty to one
count of conspiracy to possess with intent to distribute in excess of five kilograms of
cocaine and in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846. The District Court sentenced him to 150 months imprisonment.
Salcedo raises three issues on appeal. First, he argues that the District Court erred
in the factual determinations underlying its decision not to apply the safety-valve
provision of the Sentencing Guidelines, U.S.S.G. § 5C1.2. Second, Salcedo claims that
the District Court attributed an incorrect quantity of drugs to him at sentencing. Finally,
Salcedo claims that the District Court erred in declining to decrease his offense level
under U.S.S.G. § 3E1.1. For the reasons that follow, we will affirm.
As we write for the parties, who are aware of the facts underlying this appeal, we
will set forth only those facts essential to our discussion. In reviewing the District
Court’s factual findings, we apply the deferential clearly erroneous standard. See United
States v. Fuentes, 954 F.2d 151, 152-55 (3rd Cir. 1992). A district court does not commit
clear error unless its factual findings are completely devoid of a credible evidentiary basis
or bear no rational relationship to the supporting data. See United States v. Haut, 107
F.3d 213, 218 (3d Cir. 1997). By contrast, “[w]hether the facts found by the district court
warrant application of a particular guideline provision is a legal question and is to be
reviewed de novo.” See United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997)
(quoting United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994)).
2
We first confront Salcedo’s contention that the District Court erred in failing to
apply the safety-valve provisions contained in U.S.S.G. § 5C1.2. The District Court
denied Salcedo’s request for a safety-valve reduction because it found that Salcedo had
managed and supervised Rafael Prado and Michelle Thomas. This factual finding is
supported by the record.1 At the sentencing hearing, the prosecutor described the
structure of the conspiracy with which Salcedo was involved and the roles of the various
parties. Isaac Rivera (a.k.a. Isaac Burgos), Ronnie Lopez, and Salcedo were in the top
tier of the conspiracy. Below them were Jose Lopez and Rafael Prado. Jose Lopez was
the money man. Prado was the primary distributor of the crack cocaine. At the bottom
level of the conspiracy were people such as Michelle Thomas, Narlyn Ramirez, and
Carlos Merced. Everything that Michelle Thomas did was at the direction of Rivera,
Ronnie Lopez, and Salcedo. All three of them sent Thomas on menial errands and used
her residence to allow Rivera to cook powder cocaine into crack cocaine.2 Salcedo’s
counsel did not disagree with the Government’s characterizations of Salcedo’s role in the
1
We note that Salcedo submitted to this Court a copy of an affidavit produced by
co-conspirator Ronnie Lopez. In the affidavit, Lopez avers that Salcedo was not a
manager or supervisor of the conspiracy. The affidavit post-dates the sentencing hearing
by seven months and was never presented to the District Court. It is thus not part of the
record on appeal. See Fed. R. App. P. 10(a).
2
Salcedo claims on appeal that, under United States v. Fuentes, 954 F.2d 151, 154
(3d Cir. 2002), he did not supervise Michelle Thomas because she primarily provided a
building for storage. The claim lacks merit. The record established that Michelle
Thomas not only provided a building for storage, but was sent on menial errands, such as
buying the implements necessary to cook powder cocaine into crack cocaine.
3
conspiracy. He did, however, clarify that Rivera was at the top of the conspiracy and that
Ronnie Lopez and Salcedo were not at the “top top.” To the extent that Salcedo claims
that he could not have been a manager or supervisor because he was not the overall leader
of the conspiracy, his claim lacks merit. See United States v. King, 21 F.3d 1302, 1305
(3d Cir. 1994) (district court did not clearly err in finding that a defendant was a manager
or supervisor even if co-conspirator was the mastermind of the plot).
In any event, the safety-valve provision does not apply in view of the sentence
Salcedo received. See United States v. Holman, 168 F.3d 655, 660 (3d Cir. 1999).
Section 5C1.2 is designed to allow the court to “impose a sentence in accordance with the
applicable guidelines without regard to any statutory minimum sentence,” if the court
finds that the defendant fulfills five criteria. In the present case, the statutory mandatory
minimum was 120 months. 21 U.S.C. § 841(a)(1). The District Court determined that
Salcedo’s applicable guideline range was between 235 and 293 months. The District
Court also recognized that, because the Government had filed a motion for a reduced
sentence pursuant to 18 U.S.C. § 3553(e), it had the discretion to depart below the 120
month statutory minimum. Ultimately, the District Court sentenced Salcedo to a 150
month term of imprisonment. The record evidence shows that this decision was made in
full consideration of the applicable guideline range and without regard to the statutory
minimum sentence. Thus, even if Salcedo met the requirements of the safety valve
provision, and he did not, the provisions of section 5C1.2 would be of no help to him.
4
See id. at 661.
Salcedo next challenges the drug quantity utilized by the District Court in
calculating his sentencing guideline range. Salcedo is not in a position to make this
argument. See United States v. Melendez, 55 F.3d 130, 136 (3d Cir.1995). In his plea
agreement, Salcedo stipulated that the amount of controlled substances attributable to him
for sentencing purposes was more than 1.5 kilograms of cocaine base, and at least 15
kilograms but less than 50 kilograms of cocaine. At the sentencing hearing, Salcedo did
not contest the quantity of drugs attributed to him. We accordingly conclude that the
District Court properly attributed 1.5 kilograms of cocaine base, and at least 15 kilograms
but less than 50 kilograms of cocaine to Salcedo. See id. (rejecting a defendant’s attempt
to dispute a stipulation regarding the appropriate sentencing range); see also United States
v. Parker, 874 F.2d 174 (3d Cir. 1989) (declining to allow a defendant to argue facts
which contradicted those to which he agreed in his plea agreement).
Finally, Salcedo argues that the District Court erred in declining to decrease his
offense level under U.S.S.G. § 3E1.1 because of his post-offense drug rehabilitation and
acceptance of responsibility. This argument is factually incorrect. Upon review of the
record, it is clear that the District Court awarded Salcedo a three level reduction in his
Total Offense Level for acceptance of responsibility, which is the maximum reduction
available under U.S.S.G. § 3E1.1. Salcedo stipulated to a Base Offense Level of 38 in his
plea agreement. The District Court awarded him a three level reduction under U.S.S.G. §
5
3E1.1., but adjusted his offense level upward by three points under U.S.S.G. § 3B1.1 for
his role as a manager or supervisor in a drug conspiracy that involved five or more
participants. As the District Court properly concluded, the resulting Total Offense Level
was 38.
For the reasons set forth above, we will affirm the judgment of sentence.
6
TO THE CLERK:
Please file the foregoing opinion.
/s/ Jane R. Roth
Circuit Judge