U.S. v. Alba

• Decision Date: 23 May 1991
• Docket Number: No. 861,D,861
• Citation: 933 F.2d 1117
• Parties: UNITED STATES of America, Appellant, v. Didier ALBA; John Gonzalez; Marizol Vasquez, Defendants, John Gonzalez, Defendant-Appellee. ocket 90-1523.
• Court: U.S. Court of Appeals — Second Circuit

Page 1117

933 F.2d 1117

UNITED STATES of America, Appellant, v. Didier ALBA; John Gonzalez; Marizol Vasquez, Defendants, John Gonzalez, Defendant-Appellee.

No. 861, Docket 90-1523.

United States Court of Appeals, Second Circuit.

Argued March 1, 1991.

Decided May 23, 1991.

Deborah R. Slater, Asst. U.S. Atty., D. Conn., Hartford, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant, U.S.

Hubert Santos, Hartford, Conn. (Hope C. Seeley, Santos, Peck & Smith, P.C., Hartford, Conn., of counsel), for defendant-appellee, John Gonzalez.

Before OAKES, Chief Judge, and CARDAMONE and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

Defendant John Gonzalez pled guilty on April 18, 1990 to a charge of conspiracy to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). Responsibility for two kilograms of cocaine was attributed to him and, upon receiving two base offense level reductions for his minimal role in the offense and acceptance of responsibility, his Sentencing Guidelines range was 41-51 months. Relying on four separate factors, the district court then departed from that range and instead sentenced Gonzalez to six months in a halfway house, followed by two years of supervised release and a $50 fine.

On this appeal from the judgment entered July 17, 1990 in the District of Connecticut, Peter C. Dorsey, Judge, the United States challenges each of the four factors relied on by the sentencing court to depart downwardly from the appropriate Guidelines range; it also contends that the magnitude of the departure was unreasonable. For reasons to be discussed in a moment, we think the sentencing judge properly relied on two of the factors cited but that the other two he relied upon may not be appropriately considered as reasons for a downward departure. Because we cannot be certain the district court would have exercised its discretion and granted a downward departure to the same degree had it based its decision to depart solely on the valid factors, we remand for resentencing.

BACKGROUND

Confidential information obtained in 1988 by the FBI and the Connecticut Statewide On September 21 when the informant advised Alba that he was at the Sheraton, Alba said he would join him there with the money. DEA agents then observed Alba driving away from his residence followed by another car driven by defendant Gonzalez. The two cars stopped at a gas station and the agents observed Gonzalez take a plastic bag from the trunk of his car and put it on the front seat.

Narcotics Taskforce indicated that Didier Alba, a co-defendant of Gonzalez, was an established cocaine supplier in the Willimantic, Connecticut area. In August 1989 Drug Enforcement Administration (DEA) agents were advised by a confidential informant that Alba was involved in multi-kilogram cocaine transactions in that locality. After a confidential informant made contact with Alba, he arranged a ten-kilogram purchase. During the course of the negotiations, co-defendant Marizol Vasquez, Alba's wife, was heard on two recorded phone conversations advising the informant that Alba had the money for four kilograms, that she and Alba sold two "motors" (kilograms) per week, and did not like to sell "transmissions" (ounces), leaving that to others. Plans were thereafter made to deliver the ten kilograms to Alba on September 21, 1989 at the Sheraton Hotel at Bradley International Airport in Windsor Locks, Connecticut. Alba agreed to pay $11,000 per kilogram and to tender $65,000 as a downpayment.

From there Alba and Gonzalez drove directly to the Sheraton's underground parking area. Gonzalez remained in his vehicle, while Alba went to the hotel lobby. A few minutes later Alba returned to the garage with the informant and an undercover agent. He told Gonzalez to show them a box inside the bag, which he stated contained $60,000. Alba and the informant then returned to the lobby while the undercover agent and Gonzalez remained in the parking area. While waiting there, Gonzalez and the agent had a conversation which was recorded by the agent. In it Gonzalez discussed cocaine prices and other subjects relating to cocaine trafficking. Gonzalez later stated he adlibbed this conversation because he was afraid of the agent, whom he thought to be a member of organized crime. Defendant Alba was arrested in front of the Sheraton after he took possession of what he believed to be a package containing ten kilograms of cocaine. Gonzalez was arrested and searched shortly thereafter in the parking lot. The search revealed Gonzalez had in his possession a piece of paper with beeper numbers on it.

After his arrest, Gonzalez received and waived his Miranda rights. According to the government, the defendant then made a post-arrest statement in which he admitted he had held the $60,000 overnight, received $3,000 for his part in the deal, and been told by Alba to call the beeper numbers after they received the cocaine to make arrangements for its delivery. None of this information was contained in the presentence investigation report. A search of Gonzalez' home uncovered a black powder .36 caliber revolver, three boxes of 30-30 rifle cartridges, and $3,612 in cash.

PROCEEDINGS BELOW

Gonzalez was indicted on one count for conspiring to distribute and to possess with the intent to distribute cocaine and on a second count for attempting to commit the same crimes. Upon his entering into an agreement under which he pled guilty to the conspiracy charge, the government dismissed the attempt count. The presentence report attributed two kilograms of cocaine to the defendant, resulting in an offense level of 28. It also recommended two reductions, one of four levels for minimal participation and one of two levels for acceptance of responsibility, which brought the offense level to 22. Since defendant had no prior arrests, his criminal history category was I. These combined under the Sentencing Table to produce a Guidelines range of 41-51 months. Although the amount of cocaine attributed to him was two kilograms, defendant reserved the right to argue that he was not aware of the quantity of narcotics involved.

At the April plea hearing Gonzalez testified that he did not know he was involved in a drug transaction until the contents of

the bag on the front seat of his car were shown to the informant and undercover agent. He declared that the money the police found in his home came from paychecks and a loan from a family member to pay for his daughter's braces, and produced a notarized letter confirming the loan. The Presentence Report--noting the emotional trauma defendant's incarceration would have on Gonzalez' family and the fact that he provided the primary financial support for his immediate family as well as his disabled father and his grandmother--found that these were mitigating factors that might warrant departure.

DISCUSSION

I Waiver

Before discussing each of the grounds for downwardly departing, we must first determine whether the prosecution is entitled to appellate review of them. Gonzalez argues that the government is not so entitled because it failed to argue in the trial court that these factors were adequately contemplated by the Sentencing Commission in formulating the Guidelines. See United States v. Garcia-Pillado, 898 F.2d 36, 39-40 (5th Cir.1990) (government held to have waived right to contest sentence on appeal where, despite ample opportunity to raise the matter before the district court, it failed to do so). Defendant also asserts that the United States may not challenge that court's reliance on his knowledge of the amount of cocaine involved in the transaction as a basis for departing because it assented to the reservation of his right to make that argument in the plea agreement letter. Neither of defendant's contentions has merit.

It is true that though the government responded to the sentencing court's concerns regarding the disparity between the sentence imposed on Vasquez and the one Gonzalez received, and refuted defendant's arguments regarding his limited degree of involvement, it did not contend that the grounds relied on were adequately calculated by the Sentencing Commission and therefore could not serve as the basis for a departure. But the United States did not receive adequate notice of the possibility of departure as required by United States v. Jagmohan, 909 F.2d 61, 63 (2d Cir.1990). See United States v. Cardenas, 917 F.2d 683, 688-89 (2d Cir.1990); United States v. Ramirez Acosta, 895 F.2d 597, 600-01 (9th Cir.1990) (notice requirement met where all factors relied on were listed as possible grounds for departure in presentence report, unlike here where only one factor--the impact of incarceration on Gonzalez' family--was identified in the report). Because of this, the government had no opportunity to challenge the accuracy of each factor and the propriety of its use as a basis for a departure. See Cardenas, 917 F.2d at 689. Even though the government does not raise the notice issue on appeal as a basis for reversal, it can scarcely be penalized for failing to raise issues before the district court of which it had no notice. Hence, the government is entitled to advance these arguments on appeal.

Nor did the government waive its right to contest the sentencing court's reliance on Gonzalez' lack of knowledge as to the specific amount of cocaine involved in the transaction. The plea agreement reserved Gonzalez' right to argue lack of knowledge, but it did not--either expressly or by implication--limit the government's ability to contest the accuracy or appropriateness of that factor. We proceed therefore to a discussion of the government's contentions.

II Grounds for Downward Departure

The Guidelines were promulgated in part to eliminate disparity in sentencing and should not lightly be laid aside; yet sentencing remains more an art than an...