U.S.A. v. Cadavid, 97-2412

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: FUSTE
• Citation: U.S.A. v. Cadavid, 192 F.3d 230 (1st Cir. 1999)
• Decision Date: 05 August 1999
• Docket Number: No. 97-2412,97-2412
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. JUAN CARLOS CADAVID, Defendant, Appellant. . Heard

Page 230

192 F.3d 230 (1st Cir. 1999)

UNITED STATES, Appellee, v. JUAN CARLOS CADAVID, Defendant, Appellant.

No. 97-2412.

United States Court of Appeals for the First Circuit.

Heard Aug. 5, 1999.

Decided Oct. 1, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.

[Copyrighted Material Omitted] Mark F. Itzkowitz, by appointment of the Court, for appellant.

Michael D. Ricciuti, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Fuste,^* District Judge.

FUSTE, District Judge.

Appellant, Juan Carlos Cadavid, challenges the district court's calculation of his criminal sentence. For the reasons fully enunciated herein, we affirm the district court's determination.

I. Introduction

On November 29, 1995, a grand jury indicted Cadavid and Albeiro Castrillon for a conspiracy to possess cocaine with intent to distribute from August 19, 1992, until September 4, 1992, in violation of 21 U.S.C. § 846 ("count one"); possession of cocaine with intent to distribute and aiding and abetting on August 29, 1992, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ("count two"); Cadavid and Jesus Gutierrez with a conspiracy to possess cocaine with intent to distribute from January 1, 1994, until September 30, 1994, ("count three"); possession and distribution of cocaine in or about January 1994 ("count four"); June 1994 ("count five"); between June and September 1994 ("count six"); and on September 15, 1994 ("count seven").

On May 27, 1997, pursuant to a plea agreement, Cadavid pled guilty to counts one through seven of the superseding indictment. Prior to his sentencing hearing, Cadavid filed objections to the Pre-Sentence Report ("PSR") which were followed by sentencing memoranda filed by both Cadavid and the government.

On November 21, 1997, the district court sentenced Cadavid. At the hearing, the court ruled on objections to the PSR filed by Cadavid and rejected his request for a downward departure. The district court determined that Cadavid's total offense level was a 36 with a criminal history category ("CHC") of II. Therefore, the court found that the applicable U.S.S.G. range was 210 to 262 months. Accordingly, the court imposed a 228-month incarceration sentence, representing a partially concurrent disposition to an extant 108-month federal sentence Cadavid was currently serving, followed by 60 months of supervised release, and a special monetary assessment of three-hundred and fifty dollars.

II. The Plea Agreement

The plea agreement specified that the quantity of narcotics attributable to Cadavid was between 50 and 150 kilograms of cocaine; that because he accepted responsibility under U.S.S.G. § 3E1.1(a), Cadavid was entitled to a two-point reduction in his base offense level; that because Cadavid had provided the government with information regarding his own involvement in the offense within the meaning of U.S.S.G. § 3E1.1(b), he was entitled to a one-point reduction in his base offense level under U.S.S.G. § 3E1.1(b)(1); and that the sentence the court imposed would run partially concurrently with a prior federal sentence Cadavid was serving in the Southern District of Florida pursuant to U.S.S.G. § 5G1.3(c). The agreement further stated that "there is no basis for departure."

The agreement also enunciated several disputed issues between the parties. First, the government explicitly reserved the right to argue for an upward role adjustment of no more than three points for Cadavid's role in the offense pursuant to U.S.S.G. § 3B1.1. Cadavid reserved the right to oppose that argument and to argue that no upward adjustment was appropriate. Second, Cadavid reserved his right to contend that his prior 1994 sentence was for conduct that formed part of the instant offense within the meaning of U.S.S.G. § 4A1.2(a)(1). The government reserved the right to dispute this point and oppose any incorrect application of the law. Finally, the government agreed not to argue that CHC III applies in this case. Pursuant to the plea agreement, Cadavid pled guilty on May 27, 1997.

III. The Presentence Report

The Probation Department concluded, pursuant to U.S.S.G. § 2D1.1 and the quantity of cocaine involved in this case, that Cadavid's base offense level was 36. They further determined that an upward adjustment of three points was appropriate considering Cadavid's managerial or supervisory role in a criminal activity that involved more than five people. U.S.S.G. § 3B1.1(c). The Probation Department further credited Cadavid with a three-point downward adjustment for acceptance of criminal responsibility pursuant to U.S.S.G. § 3B1.1(b). Thus, Cadavid's adjusted base offense level, as calculated by the Probation Department, was 36.

In calculating Cadavid's criminal history, the Probation Department found five prior convictions: (1) a 1988 Florida state court conviction for disorderly intoxication to which Cadavid pled nolo contendere and received an adjudication withheld, a fine and was ordered to pay costs; (2) a 1990 Florida state court conviction for driving under the influence of alcohol ("DUI") for which Cadavid was found guilty, fined, sentenced to fifty hours of community service followed by six months probation and ordered to attend a DUI school; (3) a 1990 Florida state court conviction for battery to which Cadavid pled nolo contendere and received an adjudication withheld and an order to pay court costs; (4) a 1991 Florida state court conviction for DUI¹ to which Cadavid pled nolo contendere and received an order to pay a fine;² and (5) the 1994 federal narcotics conviction. Based upon this history, the Probation Department determined that Cadavid had six criminal history points: one point for the 1990 DUI conviction pursuant to U.S.S.G. § 4A1.2(c); one point for the 1990 battery conviction pursuant to U.S.S.G. § 4A1.2(f); one point for the 1991 DUI conviction pursuant to U.S.S.G. § 4A1.2(c); and three points for the 1994 narcotics conviction pursuant to U.S.S.G. § 4A1.1(a). Therefore, the Probation Department originally calculated Cadavid's CHC to be III and the applicable sentencing range to be 235 to 293 months.

The Probation Department next noted that Cadavid was currently serving an undischarged 108-month federal sentence and that the court had the discretion to impose a concurrent, partially concurrent or consecutive sentence with the prior sentence. U.S.S.G. § 5G1.3(c) (1997).³ The Probation Department then suggested a partially concurrent sentence and computed the additional consecutive component of punishment for Cadavid to be served after completion of his extant federal sentence. See U.S.S.G. § 5G1.3(c) nn. 3-5. In order to create a theoretical yardstick upon which to evaluate the proposed section 5G1.3(c) partial concurrence and the extent of any consecutive component of the sentence, the Probation Department consolidated the 1994 conviction and the instant offense by combining the amounts of cocaine from both offenses (73.995 kilograms, base offense level 36). Next, they added the three-point leadership enhancement, then subtracted three points for acceptance of responsibility. Since they consolidated the two cases, the Probation Department ignored the three criminal history points from the 1994 narcotics conviction and used CHC II in its recommendation. The Probation Department determined that Cadavid's "theoretical guideline sentencing range" for both the 1994 and 1997 offenses was 210 to 262 months (offense level 33, CHC II). Thus, the Probation Department concluded that the appropriate incremental punishment pursuant to U.S.S.G. § 5G1.3(c) was to add 118 to 170 months to Cadavid's prior 108-month sentence.

IV. Cadavid's Objections

Two months prior to sentencing, on September 17, 1997, Cadavid obtained new counsel. Cadavid then filed several objections to the PSR's criminal history calculation. Specifically, he alleged that: (1) the award of one criminal history point for the 1991 DUI conviction was erroneous because he was not represented by counsel; (2) the award of one criminal history point for the 1990 battery conviction was erroneous because a sentence of adjudication withheld fails to constitute a judicial determination of guilt; and (3) the award of three criminal history points for the 1994 narcotics case was erroneous because it constituted the "same course of conduct as alleged in the Indictment."

The Probation Department disagreed with each of Cadavid's objections finding that: (1) the 1991 conviction, even if no counsel was present, was for a misdemeanor and thus eligible to count pursuant to Nichols v. United States, 511 U.S. 738 (1994) (holding that, consistent with the Sixth and Fourteenth Amendments, uncounseled misdemeanor conviction is valid for use in enhancing punishment at subsequent conviction); (2) the 1990 "adjudication withheld" battery conviction was properly counted as a diversionary disposition under U.S.S.G. § 4A1.2(f); and (3) the 1994 conviction and this case were separate.

Cadavid then filed a sentencing memorandum raising, for the first time, the contention that he was entitled to the benefit of the "safety valve" pursuant to U.S.S.G. § 5C1.2(5). Cadavid also claimed that there were grounds for departure from the guidelines, despite the fact that the agreement provided that no such grounds existed. The five specific grounds he claimed included: (1) that he suffered a physical injury while in prison; (2) that he would agree to deportation; (3) that his criminal activity constituted aberrant behavior; (4) that his criminal history was overstated; and (5) that there were a combination of these factors.

Perceiving Cadavid's contentions for a downward departure as a breach of his pledge under the plea agreement not to seek such a departure, the government objected and withdrew from the agreement prior to...