U.S. v. Bedoya, 929

• Citation: 878 F.2d 73
• Decision Date: 23 June 1989
• Docket Number: D,No. 929,929
• Parties: UNITED STATES of America, Appellee, v. Diego BEDOYA, Defendant-Appellant. ocket 88-1554.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 73

878 F.2d 73

UNITED STATES of America, Appellee, v. Diego BEDOYA, Defendant-Appellant.

No. 929, Docket 88-1554.

United States Court of Appeals, Second Circuit.

Submitted March 29, 1989.

Decided June 23, 1989.

Paul E. Warburgh, Jr., New York City (Axelrod & Warburgh, New York City, of counsel), for defendant-appellant.

Jacques Semmelman, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty. E.D.N.Y., David C. James, Asst. U.S. Atty., Brooklyn, of counsel), for appellee.

Before FEINBERG, PIERCE, and BROWN, ^* Circuit Judges.

PER CURIAM:

This is an appeal from a sentence imposed by the United States District Court for the Eastern District of New York (Korman, Judge ), under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual (issued pursuant to the Sentencing Reform Act of 1984, Pub.L. No. 98-473, tit. II, 98 Stat.1987 (codified as amended in scattered sections of 18 & 28 U.S.C.)). Appellant claims that the district court erroneously calculated his sentence under the Sentencing Guidelines by selecting the base offense level for sentencing purposes based upon the full amount of drugs seized--21 kilograms of cocaine--rather than upon the lesser amount that appellant admitted possessing. Appellant points out that, though the indictment charged appellant with possessing in excess of 5 kilograms, the superseding information, filed by the government as a result of a plea bargain with appellant, only charged him with possessing more than 500 grams of cocaine. He argues that the government's agreement to move to dismiss the original charges in the indictment, once granted, achieved the same effect as an acquittal, and that thus his sentence should not have been based upon the full amount underlying the original indictment.

For the reasons set forth below, we affirm.

BACKGROUND

On April 22, 1988, appellant was arrested on a street in Rego Park, Queens, in New York City, while carrying a plastic bag containing slightly less than 5 kilograms of cocaine. With appellant's consent, federal agents searched a nearby apartment--which appellant identified as his--and found a handgun and approximately 7 additional kilograms of cocaine. Earlier in the day, his alleged co-conspirator, Oscar Civelli, had been arrested shortly after he left appellant's house in Staten Island, New York, and was found to be carrying 9 kilograms of cocaine. Thus, during this brief episode, the officers seized, in total, roughly 21 kilograms of cocaine, all of approximately 95% purity.

Appellant and Civelli were indicted for conspiracy to distribute cocaine, possession of more than 5 kilograms of cocaine with intent to distribute, and use of a firearm during a drug trafficking offense. Subsequently, in return for appellant's agreement to plead guilty to a superseding information charging him with possession with intent to distribute more than 500 grams of cocaine, the government agreed to move to dismiss the original indictment. On August Although appellant had only pleaded guilty to possessing more than 500 grams with intent to distribute, the presentence report prepared thereafter took into account the full amount of drugs seized during the episode--21 kilograms--in calculating appellant's sentence under the Sentencing Guidelines. This resulted in a "base offense level" of 34. See Guidelines Manual, supra, Sec. 2D1.1. Two levels were subtracted because appellant acknowledged his responsibility in the offense. Id. Sec. 3E1.1. Thus appellant's "total offense level" was 32, ¹ which translated into a Guidelines sentencing range of 121-151 months. Id. ch. 5, pt. A (sentencing table). In contrast, had appellant's sentence been based upon the 4 kilograms of cocaine which he admitted possessing, and had he still acknowledged responsibility, the corresponding sentencing range would have been 78-97 months.

15, 1988, appellant pleaded guilty to the superseding information before Judge Nickerson. During his plea allocution, appellant admitted that, at the time of his arrest, he was carrying 4 kilograms of cocaine which he intended to deliver to another person.

At a hearing held before Judge Korman on November 17, 1988, appellant strenuously objected to the use of the full 21 kilograms of cocaine in calculating the sentence. Appellant's counsel argued that it was unfair for the sentence to be based upon amounts which appellant had not admitted possessing. After a lengthy colloquy with counsel, Judge Korman offered appellant an opportunity to withdraw his plea, if it had been given as a result of some misunderstanding of the Sentencing Guidelines. The sentencing hearing was adjourned, so that appellant might have time to weigh the court's offer. However, when the sentencing hearing was reconvened on November 29, 1988, appellant declined to withdraw his plea. Judge Korman sentenced appellant to 121 months' imprisonment, imposed a $50 special assessment, and ordered 4 years of supervision upon release.

DISCUSSION

On this appeal, appellant argues that the government, by agreeing to dismiss the more serious charges, was impliedly conceding that it lacked adequate proof to convict on those charges. Thus, urges appellant, the dismissed charges should have been treated as acquittals, and actions or amounts of narcotics relevant to the dismissed charges should not have been used in calculating his...