United States v. Munoz-Vasquez

• Court: Court of Appeals for the First Circuit
• Decided: February 11, 1999
• Docket: 98-1327
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT] 



                 United States Court of Appeals

                     For the First Circuit


No. 98-1327



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                       ELIAS MUNOZ VAZQUEZ,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Douglas P. Woodlock, U.S. District Judge]


Before



                      Stahl, Circuit Judge,

                                

          Aldrich and Campbell, Senior Circuit Judges.


Joseph S. Berman and Berman & Dowell on brief for appellant.

     Geoffrey E. Hobart, Assistant United States Attorney, and

Donald K. Stern, United States Attorney, on brief for appellee.



                       ___________________



                        February 3, 1999

                      ___________________

                                                                      Per Curiam.  On October 17, 1997, Elias Munoz-Vazquez

    (Vazquez) pled guilty in the U.S. District Court for the

    District of Massachusetts to a single count of conspiring to

    distribute methamphetamine in violation of 21 U.S.C.

     841(a)(1) and 846.  He was sentenced on March 5, 1998. 

    Because the transaction in question involved more than one

    kilogram of a methamphetamine mixture, Vazquez received a ten-

    year mandatory minimum sentence pursuant to 21 U.S.C.

     841(b)(1)(A)(viii), which he now challenges.  We affirm.

      Vazquez claims, first, that the district court should

    have made an independent finding as to the drug quantity used

    to support the imposition of his ten-year mandatory minimum

  sentence.  The methamphetamine mixture,   originally in ten

    packages weighing approximately one pound each, was seized

    during a buy set up by law enforcement agents posing as drug

    purchasers.  After testing, the mixture weighed a total of

    3,799.7 grams, or about 3.8 kilograms.  The Sentencing

    Guidelines prescribe a base offense level of 34 for offenses

    involving "[a]t least 1.5 KG but less than 5 KG of

    Methamphetamine."  United States Sentencing Commission,

    Guidelines Manual,  2D1.1(c)(3) (Nov. 1997).  A base offense

    level of 34 was therefore appropriate for Vazquez, and he

    expressly agreed to that level in his plea agreement.  In

    addition   or, in this case, instead   statutory law requires

    imposition of a ten-year mandatory minimum sentence for

    offenses involving "1 kilogram or more of a mixture or

    substance containing a detectable amount of methamphetamine,

    its salts, isomers, or salts of its isomers."  21 U.S.C.

     841(b)(1)(A)(viii).  Regardless of his base offense level

    under the Guidelines, then, Vazquez faced the ten-year

    mandatory minimum, and he expressly acknowledged this both in

    his plea agreement and during his plea colloquy.

       Thus, the exposure that Vazquez acknowledged, both

    under the Sentencing Guidelines and under the drug abuse

    prevention and control statutes, was directly in accord with

    the determined weight of the seized methamphetamine mixture. 

    Vazquez never objected to the drug quantity determination per

    se, but objected only to the Probation Department's

    determination of a base offense level of 36 in its Presentence

    Report.  Vazquez argued that "[u]se of the base offense level

    of 36 woould [sic] constitute a material breach of the plea

    agreement by the Government" and requested "specific

    performance of the plea agreement with respect to the setting

    of the base offense level herein."

       The Probation Department had determined the base

    offense level of 36 based on the weight of pure

    methamphetamine found in the seized mixture rather than on the

    weight of the mixture itself.  The calculation of the pure

    methamphetamine weight was subject to doubt, however, because

    of the manner in which the DEA chemist tested the drugs for

    purity.  He first tested all of the one-pound packages and

    determined that each contained methamphetamine, then mixed the

    contents of all ten packages together to form one pile.  He

    took samples from different parts of the pile, mixed them

    together, and performed a single purity test.  Testing the

    purity and determining the weight of pure methamphetamine in

    each of the ten packages would have yielded a more accurate

    total weight of pure methamphetamine, but this was not done. 

    So the government urged in its Sentencing Memorandum that the

    district court use only the total weight of the

    methamphetamine mixture to arrive at a base offense level of

    34, the level agreed upon in the plea agreement and requested

    in Vazquez's Presentence Report objections.  The sentencing

    judge did so, observing that "the proper calculation is the

    one that the Government has done here on that."  Vazquez then

    acknowledged that, as to his base offense level objection,

    "the relief requested there has been granted.  So, of course,

    that objection would not need a ruling."

       Though he objected simply to the Probation

    Department's base offense level of 36 and never expressly

    challenged any of the lab results below, Vazquez now wishes to

    call into question the determination as to the weight of the

    methamphetamine mixture, urging that the district court should

    have made an independent finding at an evidentiary hearing. 

    However, we think that his actions at sentencing constitute a

    waiver of his right to make such a challenge.  The agreement

    between Vazquez and the government on the proper base offense

    level of 34, his acknowledgment, both in the plea agreement

    and before the sentencing judge, that he faced a ten-year

    mandatory minimum sentence, and the withdrawal of his

    objection to the Presentence Report's base offense level of 36

    once level 34 was substituted all belie Vazquez's assertions

    that he simply failed to object to   as opposed to

    affirmatively waiving   the government's assertions as to drug

    quantity or that his objection to the Presentence Report's

    base offense level determination and the government's

    concession regarding inaccurate purity testing put the

    methamphetamine mixture weight into question.  Rather,

    Vazquez's actions indicate to us the affirmative, albeit

    unspoken, acknowledgment that the methamphetamine mixture

    weighed at least 1.5 kilograms, the lower threshold for base

    offense level 34, and was therefore above the 1 kilogram

    threshold triggering application of the ten-year mandatory

    minimum sentence.  Vazquez made an "'intentional

    relinquishment or abandonment'" of any right to challenge the

    methamphetamine mixture weight.  United States v. Olano, 507

    U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,

    464 (1938)).  See also United States v. Montanez, 82 F.3d 520,

    523 (1st Cir. 1996) (holding that failure to request an

    evidentiary hearing in the district court "largely dispose[d]"

    of defendant's claim on appeal that he should have been

    granted one).

       The authorities that Vazquez cites do not help him. 

    In United States v. Valencia-Lucena, 988 F.2d 228, 232 (1st

    Cir. 1993), the court observed that "[w]hen the quantity of

    drugs used for the base offense level is in dispute, the

    district court must make an independent finding at an

    evidentiary hearing as to the reliability of the evidence." 

    The crucial part of this recited rule is the requirement that

    the quantity of drugs used to calculate the base offense level

    be in dispute.  As discussed above, there is no indication in

    this record that the total drug mixture weight was in dispute

    at all.  Rather, the defendant successfully argued for a base

    offense level that reflected a methamphetamine mixture weight

    wholly consistent with a ten-year mandatory minimum sentence. 

    Valencia-Lucena, therefore, does not apply.  A second case

    held that a requested evidentiary hearing should have been

    granted.  See United States v. Jiminez Martinez, 83 F.3d 488,

    494 (1st Cir. 1996).  Vazquez made no such request here, and

    "that largely disposes of his claim."  United States v.

    Montanez, 82 F.3d 520, 523 (1st Cir. 1996).  Jiminez Martinez,

    then, is equally unhelpful.

       Not to be turned away so easily, Vazquez also claims

    that the district court should have applied the "safety valve"

    provision in 18 U.S.C.  3553(f), allowing him to escape the

    mandatory minimum sentence.  We may dispose of this contention

    more easily than we have the first.  Section 5C1.2 of the

    Sentencing Guidelines sets forth verbatim five criteria from

    18 U.S.C.  3553(f) that must be met before the sentencing

    court may grant relief from an otherwise applicable mandatory

    minimum sentence.  The only criterion still at issue at

    sentencing was the requirement that "not later than the time

    of the sentencing hearing, the defendant has truthfully

    provided to the Government all information or 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."  18 U.S.C.  3553(f)(5); USSG  5C1.2(5).

       Though Vazquez argued in his objections to the

    Presentence Report that he had "fully revealed all facts known

    by him relevant to his conduct" and was therefore entitled to

    application of the safety valve, he acknowledged at sentencing

    that he had not, in fact, fulfilled the requirement.  The

    lawyer for Vazquez's codefendant first made it clear that a

    proffer had been made but was insufficient:  "I would like to

    advise the Court that, after debriefing with the Government,

    the Government is not satisfied that we have met the burden

    under 5C1.2 and, at this point, I would have to concur." 

    Vazquez's lawyer echoed these sentiments:  "as with Mr.

    Bautista, the proffer that was required was not made and we

    concur in that."  Thus, Vazquez admitted he had not met the

    requirements of USSG  5C1.2, thereby waiving his right to a

    court finding that he did.

       Vazquez argues that, because he indicated in his

    objections to the Presentence Report his position that he was

    entitled to application of the safety valve, the district

    court should have ignored trial counsel's admission that the

    condition was not met and "inquired further into the

    circumstances of the proffer and determined whether any

    possibility existed for application of the safety valve." 

    This is not the law.  The admission at sentencing was an

    "intentional relinquishment or abandonment" of the right to a

    court finding on whether Vazquez had satisfied the safety

    valve criteria.  The district court no longer had any reason

    or responsibility to make such a determination.

       We may dispose of Vazquez's third contention with even

    greater ease.  He claims that the district court should have

    departed downward under the Sentencing Guidelines based on his

    exceptional acceptance of responsibility and minimal

    involvement in the drug transaction at issue.  Whether such a

    departure from the sentencing range would have been

    appropriate is irrelevant since Vazquez in any event faced a

    ten-year mandatory minimum sentence.

       Affirmed.