U.S. v. Cetina-Gomez, CETINA-GOME

• Decision Date: 06 November 1991
• Docket Number: D,No. 91-1216,CETINA-GOME,91-1216
• Citation: 951 F.2d 432
• Parties: UNITED STATES of America, Appellee, v. Cesar Augustoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 432

951 F.2d 432

UNITED STATES of America, Appellee, v. Cesar Augusto CETINA-GOMEZ, Defendant, Appellant.

No. 91-1216.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1991.

Decided Dec. 17, 1991.

Norberto Colon, by Appointment of the Court, for defendant, appellant.

Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., was on brief for appellee.

Before LEVIN H. CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Defendant, Cesar-Augusto Cetina Gomez, appeals from his sentence pursuant to a conviction in the United States District Court for the district of Puerto Rico, for (1) knowingly and intentionally possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) importing cocaine into the United States, in violation of 21 U.S.C. § 952(a); and (3) possessing cocaine on board an aircraft arriving in the United States without entering it into the supply list or cargo manifest of the aircraft, in violation of 21 U.S.C. § 955. A jury found defendant guilty on all counts. The district judge sentenced him to concurrent terms of imprisonment of 78 months for each count and concurrent terms of supervised release of four years on each count. A special monetary assessment of fifty dollars for each count was also imposed. Defendant argues on appeal that the district court erred by including the full amount of cocaine charged in the indictment in its sentencing calculation. We affirm the sentence.

I.

On September 29, 1990, defendant arrived in Puerto Rico on an Iberia Airlines flight originating in Quito, Ecuador en route to Madrid, Spain. During a routine inspection, a customs agent noticed a strong chemical odor emanating from a suitcase in one of the luggage containers. Upon further inspection, 4,054 grams of cocaine were found in the walls of the suitcase. Another 165.1 grams of cocaine were found contained in an aerosol can within the suitcase. The suitcase was identified as defendant's by a claim tag and defendant was arrested.

At trial defendant testified that the purpose of his trip to Spain was to carry--for a friend--what he thought was 200 grams of cocaine contained in the aerosol can. He claimed that this friend lent him the suitcase and that he was unaware that the walls of the suitcase contained additional cocaine. The district court properly instructed the jury that to sustain a guilty verdict the evidence need not establish that the amount of cocaine was the same as alleged in the indictment, or that the defendant knew the precise amount of the cocaine he was transporting. The jury found defendant guilty on all three counts of the indictment.

At the sentencing hearing, despite defendant's trial testimony that he only had knowledge of the cocaine in the aerosol can, the court determined that the total amount of cocaine found in defendant's possession should be applied in calculating his sentence. ¹ Under the United States Sentencing Guidelines--based on a total amount of 4,291 grams of cocaine and a criminal history category of I--the court determined a base offense level of 30. United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(7) (Nov.1990). The court also granted defendant a two point reduction for acceptance of responsibility, arriving at a final base offense level of 28. This appeal followed.

II.

Defendant appeals from his sentence, arguing that he only intended to carry 200 grams of cocaine in an aerosol can and no more. He maintains that he was unaware of the 4,054 grams of cocaine found in the walls of the suitcase he was carrying, and that it was error for the judge to determine, for sentencing purposes, that defendant's base offense level was 30 based on that amount. Instead, he contends that his base offense level should have been 18, U.S.S.G. § 2D1.1(c)(13), based on possession of 165.1 grams of cocaine found in the aerosol can. We disagree.

Contrary to the government's contention, we have jurisdiction to review whether defendant's sentence was "imposed in violation of law." 18 U.S.C. § 3742(a). ² Our standard of review, however, is limited. This court must "give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous...." 18 U.S.C. § 3742(e); see also United States v. Pilgrim Market Corp., 944 F.2d 14 (1st Cir.1991).

Looking at all the evidence presented, the district court concluded that defendant had known about all the cocaine found within his possession when apprehended, and sentenced him accordingly. The court rejected defendant's testimony denying knowledge of the cocaine in the walls of his suitcase. See supra note 1. As we have said in numerous cases, "assessing the credibility of witnesses is solely the province of the trier of fact." United States v. Green, 887 F.2d 25, 28 (1st Cir.1989) (citation omitted); see also United States v. Patrone, 948 F.2d 813, 816 (1st Cir.1991); United States v. Bouthot, 878 F.2d 1506, 1514 n. 8 (1st Cir.1989); United States v. Hyson, 721 F.2d 856, 864 (1st Cir.1983). The district court was also permitted to draw reasonable inferences from the uncontested facts of the case, i.e., the contents of the suitcase when seized, the odor and location of the cocaine, the circumstances of the seizure, etc. Where there is "more than one reasonable inference [that] may be drawn from undisputed facts, the court's choice from among supportable alternatives cannot be clearly erroneous." United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir.1991); see also United States v. Estrada-Molina, 931 F.2d 964, 966 (1st Cir.1991); United States v. Bradley, 917 F.2d 601, 606 (1st Cir.1990). We think it was permissible to infer from the facts here that defendant knew what was in the suitcase he was carrying. Accordingly, having also had the opportunity to see and hear defendant, and having determined that defendant's contrary explanation was not credible, the court had ample basis to find that defendant was aware of...