U.S. v. Beltran

• Decision Date: 21 March 1997
• Docket Number: No. 96-1271,96-1271
• Citation: 109 F.3d 365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando BELTRAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 365

109 F.3d 365

UNITED STATES of America, Plaintiff-Appellee, v. Armando BELTRAN, Defendant-Appellant.

No. 96-1271.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1996.

Decided March 21, 1997.

Barry Rand Elden, Chief of Appeals, Eddie Stephens (argued), Office of U.S. Atty., Criminal Appellate Division, Chicago, IL, for plaintiff-appellee.

Michael F. Lefkow (argued), James Slater, Chicago, IL, defendant-appellant.

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Armando Beltran claims he sold cocaine only once, and then only for a good cause. He pleaded guilty; but at sentencing the district court declined to provide either a downward departure or a downward adjustment in Beltran's offense level for being a "minor or minimal participant." Because he believes the court unfairly relied upon certain information in arriving at these decisions, Beltran appeals. We affirm.

I.

Armando Beltran ("Beltran") pleaded guilty to selling cocaine. The facts of the sale are straightforward. A witness who was cooperating with the FBI ("CW") approached Marcelino Salgado about purchasing one-quarter kilogram of cocaine. Salgado agreed to sell him the cocaine for $6,500 and arranged for CW to come to a brown house, the location of which he described to CW. The following day, at the pre-arranged time, CW arrived at the house and knocked on the door. Beltran answered, told CW that Salgado had just left, and invited CW inside. After telling CW that he would telephone Salgado, Beltran placed a brief call and hung up. A short time later the phone rang and Beltran engaged in a short conversation with the caller, during which he described both CW and CW's car. After Beltran completed the call, his sister, Mayra, also placed a brief call and received a phone call back. When she completed her call she told her brother that Salgado said to give CW anything he wanted and she told CW that he could call Salgado later.

Beltran asked CW what he wanted and was told a "quarter." Beltran walked to the kitchen and returned a short time later with a brown paper bag, which he placed on the table near CW, saying "Here it is." CW paid Beltran $6,500, and left the brown house with the brown bag. Inside, agents found 254 grams of 80% pure cocaine.

Eventually, Beltran was indicted. Count one charged him with conspiracy to possess with intent to distribute the single sale of "approximately 250 grams" of cocaine. Count two charged him with distributing the same cocaine. Count three charged him with using a communication facility (telephone and electronic pager) to commit these offenses. Following unsuccessful plea negotiations, Beltran pleaded guilty to counts one and two on November 14, 1995. The following day the government moved to dismiss count three and the court accepted the plea. Sentencing was set for January 31, 1996.

Beltran met twice with the probation department prior to its preparation of a presentence report ("PSR"). On January 29, two days before the sentencing hearing, Beltran's counsel sent the probation office a letter and filed with the court a sentencing memorandum containing objections to the PSR. In the letter, counsel represented that Beltran wished to supplement the facts and if given the opportunity would testify that he knew nothing of the cocaine sale until the day of the transaction. In the letter, Beltran for the first time recounted that his brother in Mexico had been hospitalized following a motorcycle accident and required $4,000 for an emergency operation. The family in Mexico could raise only $3,000, and called upon Beltran and his sisters in the United States to come up with the $1,000 shortfall. Beltran approached Salgado, a family friend who had once dated his sister, about obtaining a loan. Salgado told Beltran the day of the transaction that if he did him the favor of making a $6,500 cocaine delivery, Beltran could keep $1,000 of the proceeds as a loan. Beltran sold the cocaine; he sent the money to Mexico; his brother had the operation; and the operation was a success. Or so we are told.

In his sentencing memorandum Beltran agreed with portions of the PSR, such as the recommendation that he receive no obstruction of justice adjustment in his sentence (he had traveled to Mexico, either coincidentally or to flee charges, depending upon the version one accepts). He also disagreed with portions of the PSR, such as the two-level acceptance of responsibility adjustment, arguing instead for three levels. Beltran also urged the court to find he was a minimal or minor participant in the offense. He noted that although evidence indicated Salgado was involved in the drug trade, no such evidence implicated Beltran. Beltran referenced the letter to the probation department explaining why he had felt it necessary to sell the cocaine, and reiterated that until the day of the offense, he had no knowledge of Salgado's ongoing drug activity. Finally, Beltran requested that the court depart downward and sentence him below the appropriate guideline sentencing range.

At sentencing, the court accepted Beltran's late motion and ordered that Beltran's letter be added to the PSR as a supplement. It granted the three-level acceptance of responsibility adjustment sought by Beltran on the ground that because of his plea, neither the court nor the government had expended significant time preparing for trial. The court then conducted a hearing on the issue of defendant's role in the offense and his motion for a downward departure.

In response, the government attorney advised the court that just that morning the probation office had notified him that it possessed an FBI report (referred to as a "302") which had been faxed to it by the case agent, refuting Beltran's allegation that the charged offense was the only instance the defendant was involved in illegal drug trafficking. At the court's direction, the government read the relevant portion of the 302 into the record. The 302 recounted the case agent's interview with Beltran's sister, Mayra, which suggested but did not specifically state that Beltran had been involved in other cocaine sales. Beltran's counsel objected to the admission of the 302 because he had only seen it just before the hearing and therefore had been unable to discuss it adequately with his client.

The government advised the court that in addition to the drug sales suggested by the 302, while CW was inside Beltran's residence he had witnessed another person arrive and discuss purchasing a "kilogram" with Beltran's sister after she let him into the house at Beltran's direction. The government further argued that Beltran's familiarity with drug lingo and the presence of a scale in the kitchen suggested that the sale to CW was not an isolated event. Beltran's counsel contended that the scale was not his client's but rather had been given to Beltran only that morning for the CW sale. Despite the dispute over whether Beltran had been involved in other sales, and despite the fact that he had not yet had an adequate opportunity to discuss the 302 with his client, Beltran's counsel never sought a continuance and the court proceeded with sentencing.

The court found that Beltran had not established he was a minimal or minor player in the offense; it made explicit findings on the record in support of this determination. None of the findings specifically related to the information contained in the 302. Instead, the court focused on "the specific transaction [ ] involved in this case," and its conclusion that "Beltran was a knowing, willing and full participant in this particular transaction." Contrary to the suggestion the government sought to glean from the 302, the court observed that there was no evidence that Beltran was in the narcotics distribution business. The court further noted that Beltran's motive for selling the cocaine, while relevant to a departure, was not relevant to a minor or minimal role in the offense adjustment. With regard to a downward departure, the court accepted Beltran's explanation for why he had sold the cocaine but noted that despite Beltran's unfortunate family situation, "those circumstances [did not] justif[y] your participation in this event or diminish your culpability in the case." Because he had no prior criminal record, was educated, and had apparently "[never] acted as a professional drug dealer," the court sentenced Beltran to the lowest end of the guideline range, 24 months. After sentencing, Beltran's counsel preserved his objection to the admission of the 302 on the grounds he had not seen it until earlier that day and had not had sufficient opportunity to discuss it with his client. The court overruled the objection. In doing so it described the 302 as "highly relevant." However, the court noted that it had based the sentence not on the 302 but on all the facts and circumstances of the offense in the record.

II.

On appeal, Beltran argues the district court improperly accepted the 302 into the record and denied him his right under the Constitution as well as the Sentencing Guidelines to subpoena witnesses and prepare rebuttal to the allegations contained within the 302 prior to the imposition of sentence. Beltran argues that prior to the improper admission of the 302, "the uncontested facts supported a finding that defendant was a minimal participant in the offense." Because of the court's consideration of the 302, Beltran contends he was denied an adjustment under U.S. Sentencing Guideline § 3B1.2 for a mitigating role in the offense.

A defendant is entitled to advance notice of the evidence upon which the court intends to base its sentence where that evidence is disputed. U.S.S.G. § 6A1.3(a) & (b); United States v. Cantero, 995 F.2d 1407, 1412, 1413 (7th Cir.1993). That is why a PSR is prepared in advance and why both parties are provided an opportunity to object to both the facts and the proposed guideline...