United States v. Jose Mata-Peres ( 2007 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-1741
    ___________
    United States of America,               *
    *
    Appellee,                   *
    *
    v.                                *
    *
    Jose Mata-Peres,                        *
    *
    Appellant.                   *
    ___________
    Appeals from the United States
    No. 06-2017                           District Court for the Northern
    ___________                           District of Iowa.
    United States of America,               *
    *
    Appellee,                   *
    *
    v.                                *
    *
    Felix Luna-Hernandez,                   *
    *
    Appellant.                  *
    Submitted: January 9, 2007
    Filed: March 2, 2007
    ___________
    Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    Jose Mata-Peres pled guilty to five counts of methamphetamine possession and
    sales and one count of knowingly completing a false employment eligibility form.
    Felix Luna-Hernandez pled guilty to one count of knowingly and intentionally
    distributing and aiding and abetting in the distribution of methamphetamine. Each
    defendant was sentenced separately by the district court1 and each contests aspects of
    his sentencing.
    I.    MATA-PERES
    Mata-Peres challenges two aspects of his sentencing: a two-level section
    3B1.1(c) adjustment for a supervisory or managerial role in the offense and the
    ultimate reasonableness of his sentence.
    To support the enhancement, Detective Lisa Kenny of the Storm Lake, Iowa,
    Police Department testified about sales made to a confidential informant (CI). A co-
    worker of the CI set up meetings with the CI and Mata-Peres to carry out controlled
    buys. The date, time, location, drug amount, and price would be set at work between
    the CI and the co-worker, but then the co-worker would have to confirm the amount
    and the price with Mata-Peres.
    On April 23, 2005, the CI arrived at the designated location, where the CI gave
    money to the co-worker, and the co-worker gave the money to Mata-Peres. Mata-
    Peres then handed the methamphetamine to the co-worker, and the co-worker handed
    the drugs to the CI. Mata-Peres spoke only Spanish, the CI spoke only English, and
    the bilingual co-worker served as a translator. On May 7, 2005, a similar transaction
    1
    The Honorable Mark W. Bennett, United States District Judge for the Northern
    District of Iowa.
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    took place, but the CI paid for only half of the drugs and paid the balance on June 3,
    2005. During the June 3 meeting, the CI handed the money to the co-worker who
    passed it to Mata-Peres and the three began making arrangements for a larger sale.
    The final sale was set up by the CI and the co-worker, who called Mata-Peres
    from a cell phone while at work to confirm the amount of methamphetamine and fix
    the price, time and location. As arranged, on June 8, 2005, the CI went to the location,
    but the co-worker never showed up. The CI located Mata-Peres, found Luna-
    Hernandez to translate and completed the transaction. The police also found an ounce
    of methamphetamine, $350.00 and a scale in Mata-Peres' house.
    Based on Detective Kenny's testimony, the district court found that the
    government had shown, by a preponderance of the evidence, that Mata-Peres' conduct
    warranted a section 3B1.1(c) adjustment for his having a supervisory or managerial
    role in the offense. The district court found that Mata-Peres exerted more control over
    the situation than did the co-worker, primarily because Mata-Peres made the ultimate
    decision on price and quantity and also carried and held the drugs and money.
    We review the district court's decision to apply a section 3B1.1(c) adjustment
    for clear error. United States v. Plancarte-Vazquez, 
    450 F.3d 848
    , 853 (8th Cir. 2006).
    Since Mata-Peres organized or led at least one other participant and assumed the
    leadership role of determining the price for the drug sales, the district court's decision
    to apply this enhancement was not clearly erroneous. United States v. Willis, 
    433 F.3d 634
    , 636-67 (8th Cir.), cert. denied, 
    127 S. Ct. 144
    (2006).
    The district court determined that Mata-Peres' Guidelines sentencing range,
    with the section 3B1.1(c) enhancement, was 151 to 188 months. The district court
    then rejected Mata-Peres' motion for a variance and sentenced him to the bottom of
    the Guidelines range. Now, Mata-Peres claims that the sentence is unreasonable
    because the district court failed to recognize its ability to sentence him below the
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    advisory Guidelines range. Mata-Peres bases this claim on the district court's noting,
    in its denial of the motion, "that lack of criminal history is taken into account in the
    defendant's criminal history and, therefore, something that's taken into account in the
    criminal history isn't a proper basis for a variance."
    However, Mata-Peres' claim disregards the court's further remarks, "I don't
    believe . . . that a variance under Title 18, 3553(a) is appropriate in this case looking
    at all of the factors. I don't find sufficient factors that would justify a sentence outside
    of the advisory United States Sentencing Guideline range." The district court
    correctly observed that a wide variance from a Guidelines sentence based solely on
    lack of criminal history risks running afoul of section 3553(a)(6), which requires
    courts "to avoid unwarranted sentence disparities among defendants with similar
    records who have been found guilty of similar conduct." United States v. Myers, 
    439 F.3d 415
    , 418 (8th Cir. 2006) (citing 18 U.S.C. § 3553(a)(6)).
    From the sentencing transcript, the district court considered whether to vary
    from the Guidelines sentencing range and decided to sentence Mata-Peres at the
    bottom of the Guidelines range, based on all the 18 U.S.C. § 3553(a) factors. The
    district court followed the proper sentencing procedure. "[T]he district court
    recognized its right under Booker to sentence outside the Guidelines, determined the
    proper, applicable advisory Guidelines range, chose a sentence at the low end of that
    range, and then justified that sentence by specific reference to the § 3553(a) factors."
    United States v. Shepard, 
    462 F.3d 847
    , 875 (8th Cir.), cert. denied, 
    127 S. Ct. 838
    (2006). We find the district court recognized its discretionary authority to vary from
    the Guidelines and the sentence imposed is reasonable.
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    II.   LUNA-HERNANDEZ
    Luna-Hernandez, likewise, alleges two sentencing errors: the addition of two
    criminal history points for committing the instant offense while on probation and the
    district court's engaging in fact-finding on the probation issue, which ultimately
    disqualified Luna-Hernandez from 18 U.S.C. § 3553(f) safety-valve relief and
    required the imposition of a mandatory-minimum sentence.
    We review the district court's interpretation and application of the Sentencing
    Guidelines de novo, and its factual findings for clear error. United States v.
    Grinbergs, 
    470 F.3d 758
    , 760 (8th Cir. 2006). In his brief, Luna-Hernandez
    essentially argues that the district court should not have assessed two criminal history
    points for commission of the instant offense while on probation because Iowa did not
    follow sufficient procedures to give him notice that he was still on probation.
    Contrary to these assertions, a judgment entered in the Iowa District Court for
    Buena Vista County was introduced at sentencing, and this Iowa judgment stated that
    Luna-Hernandez was placed on probation on September 20, 2004, for a period of one
    year. Luna-Hernandez' claim of lack of notice is unavailing, as the Iowa judgment
    itself notes that Luna-Hernandez took a copy of the judgment on September 20, 2004.
    Also, Luna-Hernandez made a subsequent court appearance asking for an extension
    of time to comply with one of the specific requirements of the Iowa judgment. Since
    Luna-Hernandez' conduct in the instant offense occurred on June 8, 2005, he was still
    on probation and the two additional criminal history points were properly assessed
    pursuant to section 4A1.1(d) of the Sentencing Guidelines.
    Luna-Hernandez' second allegation of sentencing error takes the form of a
    three-part argument. The first part of this argument, that the government was required
    to provide witnesses to prove that he was on probation at the time of the instant
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    offense, is rejected. The government offered a certified copy of the judgment against
    him, and Luna-Hernandez did not object to this exhibit.
    Second, Luna-Hernandez argues that the district court violated Booker by
    judicially finding that the defendant was on probation. In holding that mandatory
    sentencing guidelines are unconstitutional, United States v. Booker decreed, "[a]ny
    fact (other than a prior conviction) which is necessary to support a sentence exceeding
    the maximum authorized by the facts established by a plea of guilty or a jury verdict
    must be admitted by the defendant or proved to a jury beyond a reasonable doubt."
    
    543 U.S. 220
    , 244 (2005). Luna-Hernandez' argument that the district court erred in
    finding facts about the nature of the conviction and its ensuing punishment is
    unavailing. See, e.g., 
    Shepard, 462 F.3d at 871-72
    (examining the nature of prior
    convictions for sentencing purposes), United States v. Davis, 
    417 F.3d 909
    , 913 (8th
    Cir. 2005) (rejecting defendant's arguments that the facts related to a prior conviction
    should have been submitted to the jury prior to imposition of a mandatory-minimum
    sentence), cert. denied, 
    126 S. Ct. 1160
    (2006).
    Third, Luna-Hernandez argues that this judicial fact-finding results in the
    imposition of a statutorily mandated minimum sentence in contravention of Booker.
    See, e.g., 
    Shepard, 462 F.3d at 875
    (explaining that no Booker error occurred when
    the defendant was sentenced to a statutorily defined mandatory-minimum sentence as
    a career offender, in a case where the jury had determined the drug quantity at issue
    and the court had determined the defendant's status as a career offender based on
    previous convictions). However, since the judicial fact-finding related only to the
    punishment imposed for a previous conviction, the district court did not violate
    Booker.
    III.   CONCLUSION
    For the reasons stated, we affirm the district court.
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