United States v. Armando Beltran

109 F.3d 365, 1997 U.S. App. LEXIS 5417, 1997 WL 128546

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 21, 1997
• Docket: 96-1271
• Status: Published

Opinions

MANION, Circuit Judge.

Armando Beltran claims he sold cocaine only once, and then only for a good cause. He pleaded guilty; but at sentencing the district court declined to provide either a downward departure or a downward adjustment in Beltran’s offense level for being a “minor or minimal participant.” Because he believes the court unfairly relied upon certain information in arriving at these decisions, Beltran appeals. We affirm.

I.

Armando Beltran (“Beltran”) pleaded guilty to selling cocaine. The facts of the sale are straightforward. A witness who was cooperating with the FBI (“CW”) approached Marcelino Salgado about purchasing one-quarter kilogram of cocaine. Salgado agreed to sell him the cocaine for $6,500 and arranged for CW to come to a brown house, the location of which he described to CW. The following day, at the pre-arranged time, CW arrived at the house and knocked on the door. Beltran answered, told CW that Salgado had just left, and invited CW inside. After telling CW that he would telephone Salgado, Beltran placed a brief call and hung up. A short time later the phone rang and Beltran engaged in a short conversation with the caller, during which he described both CW and CWs car. After Beltran completed the call, his sister, Mayra, also placed a brief call and received a phone call back. When she completed her call she told her brother that Salgado said to give CW anything he wanted and she told CW that he could call Salgado later.

Beltran asked CW what he wanted and was told a “quarter.” Beltran walked to the kitchen and returned a short time later with a brown paper bag, which he placed on the table near CW, saying “Here it is.” CW paid Beltran $6,500, and left the brown house with the brown bag. Inside, agents found 254 grams of 80% pure cocaine.

Eventually, Beltran was indicted. Count one charged him with conspiracy to possess with intent to distribute the single sale of “approximately 250 grams” of cocaine. Count two charged him with distributing the same cocaine. Count three charged him with using a communication facility (telephone and electronic pager) to commit these offenses. Following unsuccessful plea negotiations, Beltran pleaded guilty to counts one and two on November 14, 1995. The following day the government moved to dismiss count three and the court accepted the plea. Sentencing was set for January 31,1996.

Beltran met twice with the probation department prior to its preparation of a presentence report (“PSR”). On January 29, two days before the sentencing hearing, Beltran’s counsel sent the probation office a letter and filed with the court a sentencing memorandum containing objections to the PSR. In the letter, counsel represented that Beltran wished to supplement the facts and if given the opportunity would testify that he knew nothing of the cocaine sale until the day of the transaction. In the letter, Beltran for the first time recounted that his brother in Mexico had been hospitalized following a motorcycle accident and required $4,000 for an emergency operation. The family in Mexico could raise only $3,000, and called upon Beltran and his sisters in the United States to come up with the $1,000 shortfall. Beltran approached Salgado, a family friend who had once dated his sister, about obtaining a loan. Salgado told Beltran the day of the transaction that if he did him the favor of making a $6,500 cocaine delivery, Beltran could keep $1,000 of the proceeds as a loan. Beltran sold the cocaine; he sent the money to Mexico; his brother had the operation; and the operation was a success. Or so we are told.

In his sentencing memorandum Beltran agreed with portions of the PSR, such as the recommendation that he receive no obstruction of justice adjustment in his sentence (he had traveled to Mexico, either coincidentally or to flee charges, depending upon the version one accepts). He also disagreed with portions of the PSR, such as the two-level acceptance of responsibility adjustment, arguing instead for three levels. Beltran also urged the court to find he was a minimal or minor participant in the offense. He noted that although evidence indicated Salgado was involved in the drug trade, no such evidence implicated Beltran. Beltran referenced the letter to the probation department explaining why he had felt it necessary to sell the cocaine, and reiterated that until the day of the offense, he had no knowledge of Saigado’s ongoing drug activity. Finally, Beltran requested that the court depart downward and sentence him below the appropriate guideline sentencing range.

At sentencing, the court accepted Beltran’s late motion and ordered that Beltran’s letter be added to the PSR as a supplement. It granted the three-level acceptance of responsibility adjustment sought by Beltran on the ground that because of his plea, neither the court nor the government had expended significant time preparing for trial. The court then conducted a hearing on the issue of defendant’s role in the offense and his motion for a downward departure.

In response, the government attorney advised the court that just that morning the probation office had notified him that it possessed an FBI report (referred to as a “302”) which had been faxed to it by the case agent, refuting Beltran’s allegation that the charged offense was the only instance the defendant was involved in illegal drug trafficking. At the court’s direction, the government read the relevant portion of the 302 into the record. The 302 recounted the case agent’s interview with Beltran’s sister, Mayra, which suggested but did not specifically state that Beltran had been involved in other cocaine sales. Beltran’s counsel objected to the admission of the 302 because he had only seen it just before the hearing and therefore had been unable to discuss it adequately with his client.

The government advised the court that in addition to the drug sales suggested by the 302, while CW was inside Beltran’s residence he had witnessed another person arrive and discuss purchasing a “kilogram” with Beltran’s sister after she let him into the house at Beltran’s direction. The government further argued that Beltran’s familiarity with drug lingo and the presence of a scale in the kitchen suggested that the sale to CW was not an isolated event. Beltran’s counsel contended that the scale was not his client’s but rather had been given to Beltran only that morning for the CW sale. Despite the dispute over whether Beltran had been involved in other sales, and despite the fact that he had not yet had an adequate opportunity to discuss the 302 with his client, Beltran’s counsel never sought a continuance and the court proceeded with sentencing.

The court found that Beltran had not established he was a minimal or minor player in the offense; it made explicit findings on the record in support of this determination. None of the findings specifically related to the information contained in the 302. Instead, the court focused on “the specific transaction [ ] involved in this case,” and its conclusion that “Beltran was a knowing, willing and full participant in this particular transaction.” Contrary to the suggestion the government sought to glean from the 302, the court observed that there was no evidence that Beltran was in the narcotics distribution business. The court further noted that Beltran’s motive for selling the cocaine, while relevant to a departure, was not relevant to a minor or minimal role in the offense adjustment. With regard to a downward departure, the court accepted Beltran’s explanation for why he had sold the cocaine but noted that despite Beltran’s unfortunate family situation, “those circumstances [did not] justif[y] your participation in this event or diminish your culpability in the case.” Because he had no prior criminal record, was educated, and had apparently “[never] acted as a professional drug dealer,” the court sentenced Beltran to the lowest end of the guideline range, 24 months. After sentencing, Beltran’s counsel preserved his objection to the admission of the 302 on the grounds he had not seen it until earlier that day and had not had sufficient opportunity to discuss it with his client. The court overruled the objection. In doing so it described the 302 as “highly relevant.” However, the court noted that it had based the sentence not on the 302 but on all the facts and circumstances of the offense in the record.

II.

On appeal, Beltran argues the district court improperly accepted the 302 into the record and denied him his right under the Constitution as well as the Sentencing Guidelines to subpoena witnesses and prepare rebuttal to the allegations contained within the 302 prior to the imposition of sentence. Beltran argues that prior to the improper admission of the 302, “the uncontested facts supported a finding that defendant was a minimal participant in the offense.” Because of the court’s consideration of the 302, Beltran contends he was denied an adjustment under U.S. Sentencing Guideline § 3B1.2 for a mitigating role in the offense.

A defendant is entitled to advance notice of the evidence upon which the court intends to base its sentence where that evidence is disputed. U.S.S.G. § 6A1.3(a) & (b); United States v. Cantero, 995 F.2d 1407, 1412, 1413 (7th Cir.1993). That is why a PSR is prepared in advance and why both parties are provided an opportunity to object to both the facts and the proposed guideline applications in the PSR. U.S.S.G. § 6A1.3; Cantero, id. Of course those objections are supposed to be filed sometime earlier than two days before the sentencing hearing. It is a bit disingenuous for Beltran to complain that the government somehow surprised him with the 302 when that 302 was introduced in response to his own last-minute supplemental letter and motion objecting to the PSR. Nevertheless, the court formally accepted both Beltran’s letter and motion into the record at sentencing. The 302 relating to the FBI’s discussion with Beltran’s sister, herself a target of the investigation, had never been disclosed to Beltran earlier because it was neither exculpatory, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), nor required under the Jencks Act, 18 U.S.C. § 3500(b) (requiring that the United States produce prior statements by witnesses after they have testified at trial). It became relevant only when Beltran submitted his letter describing his motive for participating in what he described as a one-shot cocaine sale.

Beltran attempts to show that either the Constitution or the Sentencing Guidelines entitles him to an opportunity to subpoena witnesses to contradict evidence contained within the PSR, or in this case within the supplemented record. He has no such right. Cantero, 995 F.2d at 1413 (“An evidentiary hearing need not be afforded on demand because there is no ‘right’ to a hearing.”) The decision whether or not to hold an evidentiary hearing prior to sentencing is expressly vested in the sound discretion of the district court. Fed.R.Crim.P. 32(c)(3)(A). The Guidelines do provide, however, that Beltran must be afforded an adequate opportunity to contest information important to the sentencing determination with which he disagrees. U.S.S.G. § 6A1.3; United States v. Blackwell, 49 F.3d 1232, 1236 (7th Cir. 1995). While this does not require an evidentiary hearing, it does require some procedure for disputing a PSR, such as the submission of affidavits. Cantero, 995 F.2d at 1413. Here, if the 302 was relevant to Beltran’s sentence, the court could and probably should have provided Beltran an opportunity to contest the 302. At a minimum, Beltran’s counsel should have been provided an adequate opportunity to discuss it with his client.

We have held that where a court relies on information not contained within the PSR to depart upward, the defendant must be notified in advance and provided an opportunity to rebut that information. We have debated whether such notice and opportunity might even be required for an upward adjustment. See United States v. Jackson, 32 F.3d 1101, 1105-10, 1111, 1112-13 (7th Cir.1994) (opinion by Coffey, J.; Posner, C.J. and Kanne, J. concurring separately) (disagreeing with that portion of opinion holding that opportunity to rebut evidence must be afforded for upward adjustment). But we are aware of no precedent discussing whether a defendant must be provided that same notice and opportunity to rebut evidence that at best serves only to limit the possibility of a downward adjustment.

We need not reach the issue here, however, because in this case the record reveals that Beltran’s counsel never requested either an evidentiary hearing, an opportunity to rebut the 302, an opportunity to consult with his client, or a continuance so as to investigate the question further. In fact, Beltran’s counsel did not object to the court’s consideration of the 302 on any ground other than that he had not seen it until shortly before the hearing. When a “defendant does not request a continuance after receiving belated discovery, ‘a court can often assume that counsel did not need more time to incorporate the information into the defense’s game plan.’ ” United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.) (quoting United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993)), cert. denied, — U.S. -, 117 S.Ct. 253, 136 L.Ed.2d 180 (1996).¹

Despite the district court’s offhand statement that the information in the 302 was “highly relevant” in response to defense counsel’s renewed motion to strike it, our review indicates otherwise. In fact, the 302 had no relevance whatsoever to the question of Beltran’s role in the offense, and played no role in the court’s denial of a downward departure.

Sentencing Guideline § 3B1.2 directs the court to provide a four-level reduction in offense level if the defendant was a minimal participant in the criminal activity and a two-level reduction if he was a minor participant. “When a defendant requests a decrease in his offense level, he has the burden of demonstrating that he is eligible for the reduction by a preponderance of the evidence.” United States v. Nobles, 69 F.3d 172, 190 (7th Cir.1995) (quoting United States v. Soto, 48 F.3d 1415, 1423 (7th Cir. 1995)). The Guidelines note this determination is heavily dependent on the facts of the case, “which implies a correspondingly limited appellate role.” United States v. Burnett, 66 F.3d 137, 140 (7th Cir.1995). The defendant must show he was a minimal participant because he was “plainly among the least culpable of those involved in the conduct of a group,” or a minor participant because he was “less culpable than most other participants.” U.S.S.G. § 3B1.2, comment, (nn.l, 3). It is intended that these downward departures be used infrequently. Id., comment. (n.2).

Beltran failed to demonstrate he was a minor or minimal participant. While a defendant’s lack of knowledge or understanding of the structure of an enterprise or the activity of others is indicative of a minimal role, a defendant is not eligible for the reduction “just by being at the end of the chain of distribution, by being a courier, or by serving as a go-between rather than a principal.” United States v. Willis, 49 F.3d 1271, 1275 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 136, 133 L.Ed.2d 84 (1995). In this respect, because he was only charged and held accountable for the one transaction in which he admittedly was involved, Beltran played an integral and significant rather than a minor role in the offense for which he was held accountable. United States v. Lampkins, 47 F.3d 175, 181 (7th Cir.) (“[I]t makes no sense to claim that one is a minor participant in one’s own conduct.”), cert. denied, — U.S. -, 115 S.Ct. 1440, 131 L.Ed.2d 319 (1995). The government did not charge Beltran for the larger conspiracy or for other transactions. Nor did the court consider any larger conspiracy or other transactions as relevant conduct. Beltran’s minor role in the larger conspiracy already was reflected in the minor nature of the charges against him. With regard to the specific charges at issue, the one transaction and the conspiracy to commit that one transaction, however, Beltran played a significant role. Thus, he is not entitled to a further reduction. Id.; U.S.S.G. § 3B1.2, comment, (n.4) (when defendant has received lower offense level “by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role ... is not warranted____”). Beltran was charged only with distributing a quarter kilo, approximately one-half pound, which he sold to CW, the government witness, for $6500. This was a significant sale and its significance would not have escaped Beltran, who the court noted (based on the PSR’s account of his background, education, and occupation) was an intelligent man.

In addition, the court explicitly relied only on the one transaction in sentencing Beltran: “the facts and circumstances as to the specific transaction that is involved in this case suggests that Mr. Beltran was a knowledgeable, willing and full participant in this particular transaction.... ” After the defense counsel preserved his objection to the 302, the court admonished counsel not to mischaracterize the court’s finding, emphasizing that it had based the sentence on a review of all the facts and circumstances of the offense charged.² So even if Beltran had been provided an opportunity to rebut the 302 at an evidentiary hearing, and had called witnesses who had in fact discredited Beltran’s sister’s reported statement, Beltran would have been left in the same position in which he ultimately found himself: the court would have considered his motions for an adjustment only in light of the single sale actually charged, which the record reveals is exactly what the court did. Therefore, even considering the transaction and motivations most favorably to Beltran, he was not entitled to the mitigating adjustment.

After determining Beltran was not entitled to the downward adjustment for his role in the offense, the court considered his request for a downward departure based on Beltran’s claimed need to quickly raise money so that his brother could pay for an operation. With all deference to his reported circumstances, the court determined that Beltran’s family crisis did not justify his actions and declined to depart. The determination to depart downward “is wholly within the discretion of the district court [and] there is no appellate remedy if a district court chooses not to depart.” United States v. Gaines, 7 F.3d 101, 105 (7th Cir.1993). This court lacks the authority to review a district court’s refusal to depart downward unless the refusal is in violation of the law. United States v. Franz, 886 F.2d 973, 980 (7th Cir. 1989). To the extent the court relied on the 302 in declining to depart downward after failing to ascertain whether the 302 was reliable, Beltran might well claim that his case falls into this narrow exception. However, Beltran has not made that claim on appeal. Both his opening and reply briefs focus on the court’s refusal to adjust downward to the exclusion of any argument over its refusal to depart downward. He has waived the argument. See, e.g., United States v. Spaeni, 60 F.3d 313, 317 (7th Cir.) (argument raised for first time in reply brief is waived), cert. denied, — U.S. -, 116 S.Ct. 536, 133 L.Ed.2d 441 (1995); United States v. Kezerle, 99 F.3d 867, 869 n. 2 (7th Cir.1996) (argument raised for first time at oral argument is waived). In any event, the argument would get him nowhere. Our review of the sentencing record indicates quite clearly that the district court rejected a downward departure with all deference to Beltran’s family hardship. The court did not rely upon nor cite to the information contained within the disputed 302 in discussing why it would not depart. Accordingly, even had Beltran not waived the argument, he would not have succeeded with it either.

Apart from the 302, numerous facts in the record would permit the district court to conclude that Beltran was more familiar with cocaine distribution than he now cares to admit. The quantity of drugs and the money involved constitute a significant sale. The quantity has further significance in that Beltran was trusted by others in the distribution network to sell such an amount. CW was invited to Beltran’s house where Beltran made a phone call and described CW and CW’s car. From that the court noted that Beltran was “not somebody who was unwittingly involved in a drug transaction and [who] merely performed a single task of physically transferring possession of drugs in exchange for money then passing it on to someone else who was really in control.” In describing the offense to the probation officer, Beltran freely used drug lingo in describing the events, indicating a familiarity with the subject.

But suppose we disregard not just the evidence contained in the 302 but also all the other evidence. Even if we accept as true Beltran’s claim that he was totally unfamiliar with the narcotics market, and only learned the morning of the sale that he was going to be distributing $6,500 worth of cocaine to CW, he still is not entitled to the minor or minimal role reduction provided for in U.S.S.G. § 3B1.2, nor to a downward departure. Beltran was charged with only the one sale. He received an appropriate sentence for that single yet significant transaction. He received the minimal sentence within the appropriate range, he received no enhancements due to other relevant conduct, and he incurred no increases from higher criminal history categories. These limiting factors fully account for the fact that Beltran sold cocaine only once.

Accordingly, we affirm the district court’s imposition of Beltran’s sentence.

1 . Beltran also argued that the 302 did not meet the minimum indices of reliability required by the Guidelines. United States v. Beler, 20 F.3d 1428, 1432 (7th Cir.1994) (defendants possess due process right to be sentenced on the basis of reliable evidence). This objection was not presented to the district court and was thereby waived. United States v. Bailey, 97 F.3d 982, 985 (7th Cir. 1996) (failure to raise issue to sentencing court waives it on appeal). We review waived issues for plain error and will reverse only if an error is so egregious as to constitute a miscarriage of justice. Id. In any event, whether the 302 did or did not meet due process standards of reliability is not relevant to our holding and thus we need not discuss it further.

2 . Even had the court relied upon the 302 (which its colloquy indicates is not the case) without giving Beltran an opportunity to rebut it, we would still conclude, based on the entire record, that the error was harmless. United States v. Dawson, 1 F.3d 457, 465-66 (7th Cir.1993). In these circumstances, Beltran simply was not entitled to the downward adjustment he requested.