U.S. v. Atehortua, 88-1265

• Decision Date: 22 May 1989
• Docket Number: No. 88-1265,88-1265
• Citation: 875 F.2d 149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo Jesus ATEHORTUA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 149

875 F.2d 149

UNITED STATES of America, Plaintiff-Appellee, v. Arturo Jesus ATEHORTUA, Defendant-Appellant.

No. 88-1265.

United States Court of Appeals, Seventh Circuit.

Argued April 25, 1989.

Decided May 22, 1989.

Colette Holt, Schiff Hardin & Waite, Chicago, Ill., for defendant-appellant.

Kevin E. Milner, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

How much cocaine is in a kilogram? The answer "1,000 grams" is almost certainly wrong, because no sample of "white powdery substance" (the jargon of police reports) is 100% pure. And a dealer's offer to supply a customer with one kilogram means "one kilo, more or less, of a substance containing cocaine more or less pure". A judge imposing sentence might think that the "more or less" is more or less irrelevant: the gravity of the offense does not depend on whether the weight turns out to be 980 grams or 1,020 grams. How much cocaine is in a kilogram matters, though, for the Parole Commission's release guidelines, which treat selling over 1,000 grams as a more serious offense (with a correspondingly longer period before release). 28 C.F.R. Sec. 2.20 Items 921(d) and (f). Quantities matter under the Sentencing Guidelines, too. See Guideline 2D1.1 and its elaborate Drug Quantity Tables.

Arturo Jesus Atehortua, who in the late 1960s was a police inspector in Medellin, Colombia, stands convicted of selling a kilogram of cocaine in November 1986 to an undercover agent in Indiana. The maximum term under the version of 21 U.S.C. Sec. 841 then in force was 15 years' imprisonment. ^* Atehortua pleaded guilty and received a sentence of eight years' imprisonment, to be followed by three years' special parole. He does not challenge the conviction but protests the sentence, believing that the district judge labored under a misapprehension about how the Parole Commission would view the offense.

Ronald Bartnicki, the probation officer who prepared the presentence report, estimated that the quantities involved would lead the Commission to give Atehortua an "offense severity rating" of six, which when coupled with Atehortua's personal history would lead the Commission to release Atehortua on parole after 40 to 52 months' custody. A month after sentencing, Bartnicki changed his mind and wrote a letter to the Commission saying that the severity rating should be five, implying release between 24 and 36 months. Atehortua soon returned to the district court under Fed.R.Crim.P. 35, seeking a lower sentence so that he could take advantage of this new parole prognosis. One-third of eight years is 32 months, and so long as the eight-year sentence stood, the Commission would have to hold Atehortua at least that long. 18 U.S.C. Sec. 4205(a) (a repealed statute still applicable to offenses before November 1987). Judge Moody assumed that Bartnicki got it right the second time but declined to reduce Atehortua's sentence, giving this explanation:

Due process requires that defendants be sentenced on the basis of accurate information.... In reviewing the presentence report, the court finds that the magnitude of the offense, based on the quantity and purity of the illicit substance involved, fully supports the sentence imposed without any reliance on the "offense severity" rating in the presentence report. In any case, objections to the accuracy of information in a presentence report may not be raised in a Rule 35 motion when a defendant does not object to the report, or to any inadequacy of time to consider it, at the sentencing hearing.... For these reasons, defendant's Rule 35 motion, to the extent that it depends on the inaccuracy in the presentence report, is DENIED.

Finally, that portion of defendant's motion asserting that his sentence is too harsh is a true Rule 35(b) motion which is, in essence, an appeal for leniency.... The court has reviewed the grounds asserted in defendant's motion as justification for reducing his sentence, and does not find them persuasive. Defendant has provided no new information of which the court was not previously aware when it determined his original sentence. It is the court's opinion now, as it was then, that his sentence was appropriate in light of the serious nature of the crime to which he pled guilty.

Atehortua asks us to order the district court to reduce his sentence. A Rule 35(b) motion, as a plea for lenience, is committed to the district court's discretion. Eight years for selling a kilo of cocaine does not approach the limits of discretion for pre-Guideline sentences. Selling between 500 and 2,000 grams of cocaine is a level 26 offense under the Guidelines, implying a sentence of 63 to 78 months (without parole) for an offender with the best personal characteristics. Atehortua will serve less than that (assuming he behaves himself) no matter which severity rating the Parole Commission assigns to his sale.

The district court lacks discretion, however, if the sentence is "in violation of law", see Rule 35(a), and Atehortua maintains that the error in the presentence report makes his sentence illegal. Not so. Even if the presentence report had said that the severity rating is one, Judge Moody lawfully could have imposed a 15-year sentence. Estimates in reports do not change statutory ranges or cabin district judges' discretion. That Atehortua sold roughly one kilo of cocaine is established. Applying 28 C.F.R. Sec. 2.20 to this fact does not yield a second "fact"; legal consequences of facts are not themselves facts. See United States v. Dean, 752 F.2d 535, 544-45 (11th Cir.1985), declining to treat a judge's error in foreseeing the Parole Commission's approach to a case as one of fact under Fed.R.Crim.P. 32; United States v. Katzin, 824 F.2d 234, 239 (3d Cir.1987), declining to treat the quantity and purity of the drug as a question that must be resolved at the Rule 32 hearing.

We do not pursue esoterica about when a judge's erroneous estimate or opinion about consequences of facts is "misinformation of constitutional magnitude" for purposes of United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), on which see United States ex rel. Villa v. Fairman, 810 F.2d 715, 718-19 (7th Cir.1987), for two reasons. First, Atehortua forfeited his opportunity to contest this estimate at sentencing; second, the district court has told us that the estimate was irrelevant to the sentence.

Rule 32 is designed to bring into the open facts affecting the sentence, and it requires the accused to object to any assertion in the presentence report with which the accused takes issue. The judge is free to rely on any averment not controverted, Rule 32(c)(3), unless there is plain error, Rule 52(b). E.g., United States v. Carmel, 801 F.2d 997, 1000 (7th Cir.1986); United States v. Ray, 683 F.2d 1116, 1121 (7th Cir.1982); United States v. Plisek, 657 F.2d 920, 924-25 (7th Cir.1981). Atehortua has not found any case excusing failure to raise an objection to the presentence report in a timely fashion; neither have we.

Atehortua's case shows the value of the contemporaneous-objection requirement. Under the Parole Commission's regulations, an offense passes from level five to level six when the amount, converted to 100% purity, exceeds 1,000 grams. Bartnicki's letter confessing error asserts that the amount involved is "980.35 grams of 100% pure cocaine." That figure comes from page 2 of the presentence report Bartnicki prepared, which says that Atehortua sold "999.98 grams of 98% pure cocaine with a total net weight of 979.98 grams" and that police found in Atehortua's house a grinder "containing .4 grams of 93% pure cocaine with a total net weight of .37 grams". If their sum, 980.35 grams is the total, then 28 C.F.R. Sec. 2.20 Item 921(f) assigns a severity level of five. But is this the full amount? The lab report analyzing the cocaine sold by or seized from Atehortua is not in the record. Quantity appears in the record only in the written plea agreement and the Rule 11 colloquy. ...