U.S. v. Bernal, JIMENEZ-SANCHE

• Decision Date: 02 March 1989
• Docket Number: JIMENEZ-SANCHE,D
• Citation: U.S. v. Bernal, 884 F.2d 1518 (1st Cir. 1989)
• Parties: 28 Fed. R. Evid. Serv. 894 UNITED STATES of America, Appellee, v. Felipe BERNAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mariaefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1518

884 F.2d 1518

28 Fed. R. Evid. Serv. 894

UNITED STATES of America, Appellee, v. Felipe BERNAL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Maria JIMENEZ-SANCHEZ, Defendant, Appellant.

United States Court of Appeals First Circuit.

Heard March 2, 1989.

Decided Sept. 14, 1989.

Albert C. Bielitz, Jr., Cambridge, Mass., by Appointment of the Court, for appellant Felipe Bernal.

Luis A. Medina Torres, Hato Rey, P.R., by Appointment of the Court, for appellant Maria Jimenez-Sanchez.

Salixto Medina-Malave, Asst. U.S. Atty., Santurce, P.R., Crim. Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.

Before TORRUELLA and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

This consolidated appeal arises out of a "sting" operation conducted by Puerto Rico police and U.S. Drug Enforcement Administration ("DEA") agents which led to the arrest and indictment of four defendants on three counts each: conspiracy to possess with intent to distribute cocaine, aiding and abetting the possession with intent to distribute cocaine, and distributing a controlled substance, all in violation of 21 U.S.C. Secs. 841(a)(1), 846, and 18 U.S.C. Sec. 2. Two defendants pled guilty to one count each and were sentenced to ten and twelve year terms of imprisonment respectively. Defendant-appellant Felipe Bernal pled guilty to all three counts and received three ten-year consecutive terms. Defendant-appellant Maria Jimenez-Sanchez proceeded to trial and the jury found her guilty on two of the three counts. She was later sentenced to a ten-year concurrent term on each count.

Appellant Bernal, who is 62, now appeals his 30-year sentence as unconstitutional cruel and unusual punishment and claims that his plea was not knowingly and willingly entered because he believed that two of the counts would be merged before sentencing. Appellant Sanchez challenges the sufficiency of the evidence presented at her trial, the district court's finding, under United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977), that permitted her co-conspirators' statements to be admitted at trial, and the admissibility of a government videotape of the meeting between DEA agents and the four defendants, including Sanchez. In all respects regarding the issues above, we affirm.

I. Background

The sting operation began when DEA undercover agents in Colombia received the address and telephone number of two women in Puerto Rico who could arrange a cocaine purchase. The agents contacted the two women who agreed to set up a meeting and introduce them to appellant Bernal, who they described as the "owner" of the cocaine. After some negotiating, the agents eventually met the two women at the Caribe Hilton Hotel pool bar in San Juan and were introduced to Bernal. At this meeting, Bernal was accompanied by appellant Sanchez, who he introduced as his wife. Bernal, Sanchez, the two women and the two agents proceeded to a room in the hotel previously secured by the DEA, where agent Morales discussed the price and amount of cocaine he wished to purchase from Bernal ($180,000 for ten kilos) and "flashed" some cash. DEA agents videotaped this meeting from the room next door. Morales and Bernal agreed to complete the transaction the following day.

Agents and police monitored Bernal's and Sanchez's activities from the time they left the hotel room until their arrest the next day. Bernal and Sanchez went to Sanchez's residence after the meeting at the Hotel. The following morning, the couple went shopping together and Bernal made several telephone calls to Morales in order to finalize the cocaine deal. Bernal and Sanchez eventually returned to Sanchez's house and agents observed Bernal leaving the residence with two white and purple shopping bags. Bernal arrived at Morales' room at the Caribe Hilton carrying the same shopping bags. Each bag contained five blocks of cocaine. After his arrest, Bernal consented to a search of his locked room at Sanchez's house, where police found six more packages of cocaine. Later testing established that the seized cocaine was 88% pure and weighed a total of 15.67 kilograms, or 34.47 pounds.

II. Bernal's Sentence

When reviewing a criminal sentence imposed by the trial court, the standard is high:

In challenging their sentences, the appellants bear a very heavy burden, since the trial court has very broad discretion in sentencing ... Indeed, the general rule is that when the sentence is within statutory limits, it is not subject to review by an appellate court.

United States v. Jimenez-Rivera, 842 F.2d 545, 548 (1st Cir.) (citing Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-592, 30 L.Ed.2d 592 (1972); and United States v. Pasarell, 727 F.2d 13, 17 (1st Cir.), cert. denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984)), cert. denied, --- U.S. ----, 108 S.Ct. 2882, 101 L.Ed.2d 917 (1988). We have recognized a "narrow exception" to this general rule, however, and "will overturn a sentence where the facts indicate that the court below adopted a rigid, mechanistic approach to sentencing, and failed to consider the individual mitigating circumstances of each defendant." Jimenez-Rivera, 842 F.2d at 548 (citing United States v. Wardlaw, 576 F.2d 932, 938 (1st Cir.1978)).

As a threshold matter, we note that the district court sentenced Bernal to the statutory minimum. Section 841(b)(1)(A) provides that, in the case of violations involving a schedule II controlled substance such as cocaine, see 21 U.S.C. Sec. 812(c), "such person shall be sentenced to a term of imprisonment which may not be less than 10 years...." 21 U.S.C. Sec. 841(b)(1)(A). Bernal's sentence is, therefore, properly within the applicable statutory limits.

Bernal argues, however, that because he is 62 years old, his 30-year sentence is, in effect, a death sentence. He argues that this was his first known offense in the United States and this, in combination with his age, unspecified health problems, and his belief that his co-conspirators received lighter sentences, leads to Bernal's assertion that his sentence constitutes cruel and unusual punishment. We find no merit in these arguments. As to Bernal's argument that this was his first offense, we can do no better than to repeat the district court's words at the sentencing hearing:

[I]t is impossible for me to understand that if the defendant says this is the first time that he was involved in drugs how could it be that he had 17 kilos of cocaine 90 percent pure? That is inconceivable because you don't have access to that amount of drugs unless you have been dealing in drugs for quite a number of years.

Transcript of Proceedings, Feb. 4, 1988, at 6. As to his co-conspirators' sentences, we note that the three other defendants were sentenced to comparable terms on each applicable count in the indictment. The fact that Bernal's cumulative term is longer than that received by his co-conspirators does not provide a basis for overturning the sentence. Gregory v. United States, 585 F.2d 548, 550 (1st Cir.1978). And finally, in response to Bernal's argument that his sentence constitutes cruel and unusual punishment because of his age and health, we travel a well-worn path. The sentencing court must grant "substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes ..." Congress has made the determination that persons possessing that quantity of the drug constitute major traffickers and managers of the retail level traffic ... and imposed the minimum mandatory penalty as a deterrent to such activities ... In light of the severity of the crime and drug-related problems in today's society, the penalty is not so high as to be unconstitutional.

United States v. Restrepo, 676 F.Supp. 368, 377 (D.Mass.1987) (quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009-3010, 77 L.Ed.2d 637 (1983); other citations omitted), aff'd, 867 F.2d 605 (1st Cir.1988). Congress established the 10-year minimum term for violations of 21 U.S.C. Sec. 841(a)(1). The district court properly determined that Bernal was a major trafficker in cocaine. In choosing the minimum mandatory sentence, rather than an even harsher sentence permitted by law, the court apparently did consider the individual mitigating factors of Bernal's age and health and did not sentence him in an impermissibly rigid, mechanistic manner. Jimenez-Rivera, 842 F.2d at 548.

Bernal also argues that his guilty plea was not knowingly and voluntarily made because he believed two counts would merge. This assertion is flatly contradicted by the record. Unlike two of the defendants, Bernal made no plea agreement with the government. At the initial sentencing hearing, during the colloquy, the court asked the following questions, which Bernal and his attorney answered:

Q: Now, you have filed [sic] out a form here in petition to enter a guilty plea, is that correct?

A: Yes.

Q: Have you had enough time to consult with your attorney about this matter?

A: Yes ...

Q: And to which count are you going to plea[d] guilty?

Mr. Amoros: To three counts ...

The Court: Do you know what you have been charged before this court?

A [Mr. Bernal]: Yes, yes.

Q: If you have any doubt about that, I can read the charges for you, if you want me to.

A: No, that is not necessary.

Transcript, Change of Plea, Dec. 14, 1987, at 3-4. The court later asked:

Q: Do you know what the [m]aximum possible penalty in count one is?

A: Yes, sir.

Q: Do you know what the maximum possible penalty in count two is?

A: Yes, sir.

Q: And do you know what the maximum possible penalty in count three is?

A: Yes, I do.

Q: What is your understanding of what the maximum penalty is[?]

A: Life imprisonment.

Q: As to each count?

A: Yes, sir.

Transcript,...