United States v. Dones Rivera

Opinion

USCA1 Opinion

June 7, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 94-2146



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    JOSE M. DONES,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                         FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ____________________



            Jose M. Dones on brief pro se.
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            Guillermo  Gil,  United  States  Attorney  and  Juan  A.  Pedrosa,
            ______________                                  _________________

        Assistant U.S. Attorney, on brief for appellee. 


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Per  Curiam.    The   sole  issue  raised  by  this
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            sentencing  appeal is  whether  the district  court erred  in



            determining  that defendant-appellant  Jose  Manuel Dones  is



            ineligible for relief from  the statutory minimum penalty for



            his offense pursuant to  18 U.S.C.   3553(f) and  the related



            guideline  provision, U.S.S.G.    5C1.2.   For  the following



            reasons, we affirm.



                                          I.
                                          _



                      On May 16, 1994, co-defendant Hiram Antonio Collazo



            was arrested  at the Luis Munoz  Marin International Airport,



            Carolina, Puerto  Rico,  after customs  officials  discovered



            that a  leather portfolio  he was carrying  contained heroin.



            Collazo informed  the arresting officers that he  had gone to



            Aruba to pick up the  heroin, and that he was bringing  it to



            Dones,  who  had paid  him with  a  Suzuki vehicle.   Collazo



            agreed  to  cooperate  with  the government,  and  Dones  was



            arrested  that  same  day  after Collazo  made  a  controlled



            delivery of the heroin to him.



                      On June  27, 1994, Dones pled  guilty to possession



            of  heroin with intent  to distribute  it.   See 21  U.S.C.  
                                                         ___



            841(a)(1); 18 U.S.C.   2.  Prior to sentencing, a presentence



            investigation report (PSR) was  prepared.  The PSR determined



            the  guideline sentencing  range to  be 46  - 57  months, but



            noted that the statutory minimum term of imprisonment for the



offense, which involved 333.6 grams of heroin, is five years.



            See 21 U.S.C.   841(b)(1)(B).  
            ___



                      A  sentencing hearing  was conducted,  and sentence



            was  imposed, on September 23, 1994.  At the hearing, defense



            counsel urged the district court to depart from the statutory



            minimum term of imprisonment  to a sentence at the  middle of



            the  guideline  range pursuant  to  18 U.S.C.     3553(f) and



            U.S.S.G.   5C1.2, which provide for relief from the mandatory



            minimum if five criteria are met.1  The  court found that the



                                
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            1.  The statute provides, in pertinent part, that in the case

            of an offense under 21 U.S.C.   841, the court shall impose a

            sentence  pursuant to  the guidelines  without regard  to any

            statutory minimum sentence, if:



                      (1)  the defendant does not  have more than  1

                 criminal  history  point, as  determined  under the

                 sentencing guidelines;  



                      (2)  the  defendant  did not  use  violence or

                 credible threats of  violence or possess  a firearm

                 or  other  dangerous  weapon  (or   induce  another

                 participant  to  do  so)  in  connection  with  the

                 offense;



                      (3)  the offense  did not result  in death  or

                 serious bodily injury to any person;



                      (4)  the  defendant  was  not   an  organizer,

                 leader,  manager, or  supervisor of  others  in the

                 offense,   as   determined  under   the  sentencing

                 guidelines  and was  not  engaged  in a  continuing

                 enterprise, as defined in 21 U.S.C. 848; and 



                      (5)  not later than the time of the sentencing

                 hearing, the  defendant has truthfully  provided to

                 the Government  all  information and  evidence  the

                 defendant  has concerning  the offense  or offenses

                 that  were part of the same course of conduct or of

                 a  common scheme  or plan,  but  the fact  that the

                 defendant   has   no  relevant   or   useful  other



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first four criteria are  met.  However, after  making inquiry



            of the government,  it determined that the defendant  did not



            meet the  fifth condition that  he share with  the government



            all known information about the offense.  The court sentenced



            Dones  to  60 months  imprisonment,  followed  by a  term  of



            supervised release.  This appeal ensued.



                                         II.
                                         __



                      Dones  argues  that  the  district court  erred  in



            determining  that he  failed to  satisfy the  fifth condition



            under  18 U.S.C.   3553(f) and U.S.S.G.   5C1.2.  He contends



            that  although his co-defendant reached the government first,



            both  he and  his co-defendant  provided the  government with



            complete information.  He  further contends that the district



            court  misinterpreted  the  fifth  condition  and  found  him



            ineligible  for  relief from  the  statutory  minimum penalty



            because  he had no new  or useful information  to provide the



            government.



                      Contrary  to the  government's contention,  we have



            jurisdiction to review whether  Dones' sentence was  "imposed



            in  violation of  law"  or  "as  a  result  of  an  incorrect



            application  of  the sentencing  guidelines."    18 U.S.C.   



                                
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                 information  to provide  or that the  Government is

                 already aware of the information shall not preclude

                 a determination by the court that the defendant has

                 complied with this requirement.



            18  U.S.C.      3553(f)(1)-(5).     The  guideline  provision

            essentially tracks the language of the statute.



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3742(a).2      We  review   fact-bound  matters   related  to



            sentencing for clear error.  See United States v. Andujar, 49
                                         ___ _____________    _______



            F.3d 16, 25  (1st Cir.  1995); United States  v. Wright,  873
                                           _____________     ______



            F.2d 437, 443-44 (1st  Cir. 1989).  A district  court's legal



            interpretation of  the guidelines  engenders de novo  review.
                                                         __ ____



            See  United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir.
            ___  _____________    _________



            1994).  



                      Dones'  suggestion that the  district court refused



            to  depart from  the  statutory minimum  sentence because  he



            failed to provide new or useful information to the government



            is  baseless.   The record  reveals  that the  district court



            denied the requested  relief because it found  that Dones did



            not  come forward  and  provide complete  information to  the



            government concerning  his offense.  Accordingly,  we turn to



            whether this finding was erroneous.



                      When   asked,  at  sentencing,  whether  Dones  had



            provided  complete and  truthful information,  the government



            replied that it had not engaged in any discussions with Dones



            concerning the offense.  Defense counsel did not dispute this


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            2.  The government argues that we lack jurisdiction to review

            a district  court's discretionary refusal  to depart downward

            from  the  applicable guideline  range.    See, e.g.,  United
                                                       ___  ____   ______

            States  v.  Gifford,  17  F.3d  462,  473  (1st  Cir.  1994).
            ______      _______

            Although this principle is true, we assume arguendo (although
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            we  need not decide) that  it is inapplicable  here.  Section

            3553(f) and  the related  guideline provision do  not address

            departures from the guideline  sentencing range; rather, they

            provide  for  relief  from  mandatory  minimum  penalties  in

            certain cases.  



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statement, but  argued that Dones had  provided the necessary



            information to probation.   The probation officer stated that



            Dones was very  reticent in answering questions,  and that he



            only  told  probation  that  he  had  met  an  individual who



            requested  that he find someone to secure narcotics.  We need



            not decide, in the instant case, whether a defendant can ever



            avail  himself  of the  benefits  of    3553(f)  by providing



            information to probation, rather than to the prosecutor.  The



            district court  did not clearly  err in determining  that the



            few, sketchy details Dones came forward  with did not satisfy



            the requirement that he provide "all information and evidence



            [he] has  concerning the offense."   18 U.S.C.    3553(f)(5).



            At the  very least, Dones should have  disclosed the identity



            of the person  for whom he was operating.   See United States
                                                        ___ _____________



            v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. 1995).
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                      Affirmed.
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