United States v. Quezada

Opinion

USCA1 Opinion

          March 4, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1972

UNITED STATES,

                                      Appellee,

                                          v.

                                    JOSE QUEZADA,
                                Defendant, Appellant.

                                   ________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________
                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               Damon M. D'Ambrosio on brief for appellant.
               ___________________
               Edwin J. Gale, United States Attorney, and Zechariah Chafee,
               _____________                              ________________
          Assistant United States Attorney, on brief for appellee.

__________________

                                  __________________

Per  Curiam.      Jose  Quezada  appeals  from  his
                      ___________

            conviction and  sentence.   He was indicted  on one  count of

            possessing  heroin with  intent to distribute.   He  moved to

            suppress evidence seized  from his home, on  the grounds that

            the  warrant  authorizing  the search  was  not  supported by

            probable  cause.  After a  hearing, the district court denied

            the motion.    Quezada pled  guilty  and the  district  court

            sentenced  him to  27 months  in prison.   In  estimating the

            quantity  of  heroin for  sentencing  purposes,  the district

            court relied, in part, on 

            $2,321 in cash found during the search  of his apartment.  He

            appeals  his sentence  and  the  denial  of  his  suppression

            motion.

                                      Background
                                      __________

                      The  presentence   report  ("PSR")   contained  the

            following summary  of  the facts  underlying this  case.   An

            informant (known  to  the Johnston  Police  Department)  told

            detectives  of the Providence  Police Department that  a man,

            whom the informant  identified from a photograph  as Quezada,

            would  be arriving  on October, 14,  1992 at  9:00 p.m.  at a

            certain  location in  a burgundy  van  containing heroin  for

            sale. The detectives  set up watch at  the specified location

            and at 9:00 appellant arrived in a burgundy van.  Approaching

            the  van,  the detectives  saw  Quezada  throw  a  gray  box,

            commonly used to store heroin, into the back of the van.  The

-2-

detectives arrested  Quezada and  seized the  box, containing

            500 glassine envelopes  of heroin, and $206 in  cash found in

            Quezada's pocket.

                      Later that night, the detectives executed a  search

            warrant at Quezada's home.  They seized 781  glassine packets

            of heroin  and the  following articles  commonly used in  the

            packaging  of  heroin:  a  coffee  grinder,  boxes  of  empty

            glassine  packets (some  stamped  "shoot  to kill"),  elastic

            bands, an ink  pad and a  "shoot to kill"  stamp.  They  also

            seized a pager and $ 2,321 in cash.  After being  informed of

            his Miranda rights, Quezada signed a statement admitting that
                _______

            the drugs seized  from the van and his  apartment belonged to

            him.   A subsequent  laboratory analysis  concluded that  the

            weight of the total amount of heroin seized was between 15.26

            grams and 18.22 grams.

                      In  November,  1992, Quezada  was  indicted  on one

            count  of  possession  with intent  to  distribute  heroin in

            violation of  21 U.S.C.    841(a)(1).  In December,  1992, he

            filed a  motion to suppress  the drugs seized by  the police.

            Following an evidentiary hearing,  the district court  denied

            the motion.  On June 15, 1993, appellant pled guilty.   

                      For purposes of calculating  the base offense level

            ("BOL"),the probation officer who prepared  the PSR converted

            the  cash  seized  from Quezada's  pocket  and  his apartment

            ($2,527) into an  equivalent amount of heroin  (14.17 grams).

-3-

He  relied   upon  information  from  the   Drug  Enforcement

            Administration that an ounce of heroin was then selling for 

            $5,000.   He  then added  the 14.7  grams to  the amounts  of

            heroin seized to arrive  at a total weight of  29.43 to 32.39

            grams.   That  amount of  heroin yielded  a BOL  of 18  under

            U.S.S.G.   2D1.1 (c) (13). 1  The district  court adopted the

            BOL  of  18  and  then applied  a  three-point  reduction for

            Quezada's acceptance of  responsibility.  The PSR  included a

            statement  by Quezada  admitting that  he  had committed  the

            offenses charged and acknowledging that "the drugs the police

            found [at my house]  were to sell."  The total  offense level

            of 15 and Quezada's criminal history category of 2 yielded an

            imprisonment range of 21 to 27 months. 

                      On August  17, 1993,  the district  court sentenced

            appellant to 27 months in prison and five years of supervised

            release.  As a condition of supervised  release, the district

            court  ordered appellant,  at the  completion of his  term of

            imprisonment, to  be surrendered to  an immigration  official

            for deportation. 

                                      Discussion
                                      __________

                      Quezada makes three arguments on appeal.  First, he

            argues that the district court erred in denying his motion to

            suppress.   Second, he challenges his  sentence as based upon

____________________

            1.   The Sentencing  Guidelines applied were those  in effect
            on the date appellant was sentenced.

                                         -4-

illegally-seized evidence.  Finally, Quezada contends that it

            was  error for  the district  court to  convert cash  into an

            equivalent amount of  heroin for purposes of  calculating his

            sentence.  We reject all three arguments.

                      In pleading  guilty, Quezada  did  not reserve  the

            right to  appeal from the  denial of his motion  to suppress.

            See Fed. R. Crim. P. 11(a)(2) (allowing  conditional pleas to
            ___

            be  entered,  with  the consent  of  the  government  and the

            approval  of the court,  by defendant's reserving  in writing

            the right to appeal a pre-trial motion).  "It is clear that a

            plea of guilty to an indictment is  an admission of guilt and

            a waiver of  all non-jurisdictional defenses."  Acevedo-Ramos
                                                            _____________

            v. United States, 961 F.2d  305, 308 (1st Cir.) (holding that
               _____________

            by pleading  guilty, defendant waived statute  of limitations

            defense),  cert. denied, ___ U.S.  ___, 113 S.Ct. 299 (1992).
                       ____________

            Therefore, Quezada's guilty  plea forecloses from review  the

            denial of his motion to suppress.  

                      Quezada's  guilty   plea  also   bars  his   Fourth

            Amendment challenge to  his sentence.  The Supreme  Court has

            explained the effect of a guilty plea as follows:

                      [A] guilty plea represents a break in the
                      chain of events which has preceded it  in
                      the  criminal process.   When  a criminal
                      defendant has  solemnly admitted  in open
                      court  that he is  in fact guilty  of the
                      offense with  which he is charged, he may
                      not thereafter  raise independent  claims
                      relating    to    the    deprivation   of
                      constitutional rights that occurred prior
                      to the entry of the guilty plea.

-5-

Tollett v. Henderson, 411 U.S.  258, 267 (1973).  By pleading
            _______    _________

            guilty,  appellant  waived  the right  to  assert  his Fourth

            Amendment  claim for the  purpose of attacking  his sentence.

            See  United States  v. Smallwood,  920 F.2d  1231, 1240  (5th
            ___  _____________     _________

            Cir.) (holding that, following the district court's denial of

            appellant's  motion  to suppress  and  appellant's subsequent

            guilty plea,  appellant "cannot resuscitate  fourth amendment

            concerns solely to challenge the consideration of evidence at

            sentencing."), cert.  denied, ___  U.S. ___,  111 S.Ct.  2870
                           _____________

            (1991).

                      Quezada  contests on  appeal,  as  he  did  at  his

            sentencing hearing, the  government's conversion of  the cash

            found in  his apartment into  an equivalent amount  of heroin

            for purposes of calculating appellant's BOL.  He  argues that

            there was  insufficient evidence  that the  cash belonged  to

            him, given that  he shared the apartment with  others and the

            PSI failed  to indicate where  in the apartment the  cash was

            found.  Appellant  also contends that there  was insufficient

            proof to support  the probation officer's assertion  that the

            cash   was   "the   direct  result   of   previous  narcotics

            trafficking."  He  cites his employment at an  auto body shop

            at the time  of the search  in support  of his argument  that

            there were other plausible sources of the cash. 

                      For  the first time on appeal, Quezada contests the

            conversion ratio used by the probation officer and adopted by

-6-

the  district  court  (one ounce  of  heroin  equals $5,000).

            Having failed to object below to the conversion ratio used in

            the PSR,  however, Quezada is barred from  raising this issue

            for  the first time on  appeal.  United  States v. Jackson, 3
                                             ______________    _______

            F.2d 506, 511 (1st Cir. 1993).

                      "Pursuant to U.S.S.G.   1B1.3(a)(2), a defendant is

            responsible for all acts which  'were part of the same course

            of  conduct   or  common  scheme  or  plan  as  the  offenses

            charged.'" United  States v.  Figueroa, 976  F.2d 1446,  1461
                       ______________     ________

            (1st Cir. 1992),  cert. denied, ___ U.S. ___,  113 S.Ct. 1346
                              ____________

            (1993).  In United States v. Gerante,  891 F.2d 364, 369 (1st
                        _____________    _______

            Cir. 1989), we held that Application Note 2 of the Commentary

            to U.S.S.G.    2D1.4 authorizes  a district court  to convert

            cash into a drug amount for the purpose of calculating a base

            offense  level,  provided  that  the  cash  "represents  drug

            transactions that are  part of the same course  of conduct as

            the instant offense." United States v. Jackson, 3 F.2d at 510
                                  _____________    _______

            (citing Gerante, 891 F.2d at 369).  
                    _______

                      A   finding  by   the  district  court   that  cash

            represents drug transactions that are part of the same course

            of  conduct as  the charged  offense must  be supported  by a

            preponderance of the  evidence.  United States  v. Jackson, 3
                                             _____________     _______

            F.3d   at  510.     At  the  sentencing   hearing,  appellant

            challenged,   as  unsupported  by   a  preponderance  of  the

            evidence, the PSI's assertion that  the cash seized from  his

-7-

apartment "was  the direct  result of  narcotics trafficking"

            and,  therefore,  "relevant  conduct"  for  the  purposes  of

            determining the BOL.  

                      As  required by Fed.  R. Crim. P.  32(c)(3)(D), the

            district court  made a finding  as to the  alleged inaccuracy

            contained in the PSI.  The district court found as follows:

                      [the  seizure  of   heroin  and  numerous
                      articles used in the  packaging of heroin
                      and  the defendant's  admission that  the
                      drugs found were  his and that  they were
                      there to  sell] certainly  indicates that
                      this  defendant was  heavily involved  in
                      the  heroin  trafficking business  and  I
                      join  hands with the Probation Officer in
                      the statement that he made that he stands
                      firm in his belief that the $2,527 seized
                      from the defendant's  person and his  own
                      apartment  are the  proceeds of  previous
                      heroin trafficking, and,  therefore, it's
                      considered  relevant   conduct  for   the
                      purpose  of  determining   the  guideline
                      range.

            The  district court  also stated  that, with  respect to  the

            source of the cash  and its connection to Quezada, "I  do not

            attach much significance to the defendant's argument."

                      These  findings of fact  by the district  court are

            reviewable only  for  clear  error.   See  United  States  v.
                                                  ___  ______________

            Jackson, 3 F.2d at 510; United States v. Gerante, 891 F.2d at
            _______                 _____________    _______

            368.  We cannot say that the sentencing judge committed clear

            error in concluding  that the  government met  its burden  of

            proving  by a  preponderance of  the  evidence that  the cash

            seized represented  proceeds of previous  heroin trafficking.

            See United States  v. Sepulveda, Nos.  92-1362, et al.,  slip
            ___ _____________     _________

-8-

op.  at  81 (1st  Cir.  Dec.  20,  1993) (holding  that  "the

            government presented abundant evidence of Johnson's narcotics

            trafficking, .  . . ,  and the volume of  business transacted

            justified  the court's  illation that  the  sums seized  were

            connected to her drug dealings.").

                      Quezada argued at his  sentencing hearing that  the

            evidence  suggested  that  there were  others  living  at his

            apartment,  including a  woman,  children  and someone  named

            Rodriguez.   Quezada  did not  produce any  such person  as a

            witness  at the hearing,  however, to testify  that the money

            was theirs.  Nor did  appellant offer any evidence to support

            his contention that  he was employed at an  auto body shop at

            the time of his  arrest.  The probation officer was unable to

            verify the alleged employment.  Appellant did not provide any

            proof  of employment,  (such as  paycheck  stubs) and  relied

            solely  on a  statement  by  his wife  that  he  had been  so

            employed.    Moreover,  the district  court  would  have been

            justified in concluding that legitimate employment would  not

            necessarily  explain the presence of large amounts of cash in

            Quezada's apartment.  As in  United States v. Jackson, 3 F.2d
                                         _____________    _______

            at  511,  the  sentencing court  here  "rejected  the various

            alternative sources of  the currency and determined  that the

            funds were drug proceeds."  It did not commit clear error  in

            making that determination.

-9-

The conviction  and sentence are  affirmed pursuant

            to Loc. R. 27.1.

-10-