U.S. v. Lopez, 00-2405.

• Decision Date: 14 August 2002
• Docket Number: No. 00-2405.,00-2405.
• Citation: 299 F.3d 84
• Parties: UNITED STATES, Appellee, v. Angel LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

299 F.3d 84

UNITED STATES, Appellee, v. Angel LOPEZ, Defendant-Appellant.

No. 00-2405.

United States Court of Appeals, First Circuit.

Heard June 13, 2002.

Decided August 14, 2002.

COPYRIGHT MATERIAL OMITTED

R. Scott Miller, Jr. for appellant.

Susan M. Poswistilo, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Dina Michael Chaitowitz, Appellate Chief, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,^* Senior District Judge.

LIPEZ, Circuit Judge.

After Angel Lopez pleaded guilty to charges that he trafficked in heroin, he was sentenced to 216 months in prison and five years of supervised release. Lopez appeals his term of incarceration on the ground that the district court erred in giving him a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(3) for distribution of heroin inside a prison. He appeals his supervised release term on the ground that it exceeds the maximum term permitted under 21 U.S.C. § 841(b)(1)(B). Seeing no merit in his arguments, we affirm.

I.

On July 8, 1999, Lopez and nineteen co-defendants were charged in a multi-count drug trafficking indictment. Lopez was charged with conspiracy to distribute heroin from about September of 1996 to about March of 1999, in violation of 21 U.S.C. § 846, and with twelve counts of distributing heroin, in violation of 21 U.S.C. § 841(a)(1). On May 19, 2000, Lopez pleaded guilty to all charges.¹ He was sentenced on October 18, 2000, to 216 months in prison and five years of supervised release.

"Because this appeal involves sentencing issues following a guilty plea, we take the background facts from the presentence report" (PSR). United States v. Brady, 168 F.3d 574, 576 (1st Cir.1999). In August, 1996, the Drug Enforcement Administration (DEA) received information from a confidential informant that Wilfredo Cortes (Lopez's half-brother), who at the time was incarcerated in a Massachusetts state prison, was running a heroin distribution operation in and around Lynn, Massachusetts, in conjunction with Lopez and Christine James (Cortes' girlfriend). The confidential informant put Cortes in contact with a prospective heroin purchaser who, unbeknownst to the conspirators, was an undercover Massachusetts state police officer. Cortes informed Lopez and James that the undercover officer would be contacting them to purchase heroin. On numerous occasions between October of 1996 and February of 1999, Lopez obtained heroin from co-defendants Domingo Acevedo and Rafael Acevedo and sold it to the undercover officer. Notwithstanding his incarceration, Cortes had "telephone conversations with both Lopez and James about the heroin sales to the undercover officer and the return of money to [Cortes] from the sales."

The plea agreement stipulated that Lopez was responsible for 733.9 grams of heroin and that his base offense level was 30. The PSR recommended that Lopez receive a three-level enhancement for his role in the offense pursuant to U.S.S.G. § 3B1.1(b) ("If the defendant was a manger or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels."). The PSR also recommended a three-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. In addition, and of importance to this appeal, the PSR recommended a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(3), which provides: "If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels."

Lopez's counsel objected at the sentencing hearing to the two-level increase under § 2D1.1(b)(3) on the ground that "there's no evidence that my client actually was involved in bringing any drugs into the prison." The government concurred, explaining that while "there were tape recorded conversations [between Cortes and James] in which there was a lot of talk in August of 1996 about possibly having heroin smuggled into the prison," there was "no evidence that any heroin was actually smuggled into the prison." The government's position, the prosecutor explained, was that "the object of the conspiracy was for the undercover officer to make purchases of heroin on the outside from either Mr. Lopez or Ms. James and that money would then be funneled back to Mr. Cortes in the prison."

The district court declined to adopt the government's position:

contrary to the argument that has been made to me, I find by a fair preponderance of the evidence that the conspiracy to import drugs into the prison did involve Mr. Angel Lopez knowingly and that the two level enhancement does apply in his case.

This conclusion resulted in an adjusted offense level of 32 under the drug guidelines. Because Lopez's criminal history category was VI, his sentencing range was 210 to 262 months.² The district court sentenced Lopez to 216 months in prison and five years of supervised release. Lopez appeals.

II.

We review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error. United States v. Damon, 127 F.3d 139, 141 (1st Cir.1997). "Under this standard, a district court's determination will be treated with deference and will be reversed only if, after reviewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed." United States v. Rust, 976 F.2d 55, 57 (1st Cir.1992) (internal quotation marks omitted).

In challenging the two-level enhancement under U.S.S.G. § 2D1.1(b)(3), Lopez asserts that just one of the PSR's 425 paragraphs describes a conspiracy to distribute drugs inside a prison. Paragraph seven of the PSR states:

DEA obtained tapes of outgoing collect telephone calls placed by [the incarcerated] Cortes beginning on August 19, 1996.... The tapes revealed numerous telephone calls from Cortes to James in which they discussed the fact that James was holding heroin for Cortes and that arrangements were being made to have the heroin delivered into the prison. At various times, Cortes instructed James to divide the heroin, to wait for the call of the person who would be smuggling the heroin into the prison, to get a note with instructions from [Lopez], to give [Lopez] a quantity of money, and to contact "my brother" and "Amy" (Tavis). There were multiple conversations about these topics between Cortes and James from August 19, 1996 through August 25, 1996.

Lopez argues that "while it may be true that Cortes and James discussed distributing drugs within a prison, there is no allegation that either Cortes or James ever spoke to Lopez about this idea." He points out that the government characterized these telephone calls at the sentencing hearing as simply "a lot of talk" about possibly smuggling heroin into the prison, and cites the prosecutor's assertion that there was no evidence that any such smuggling was in fact accomplished. The government takes a different position on appeal, arguing that the two-level enhancement was proper.

We note three preliminary points. First, "a sentencing court may consider facts contained in the PSI Report as reliable evidence." United States v. Cruz, 120 F.3d 1, 2 (1st Cir.1997). Second, the district court was free to disregard the government's position at sentencing regarding the § 2D1.1(b)(3) enhancement. See United States v. Valencia-Copete, 792 F.2d 4, 7 (1st Cir.1986) ("[O]ur cases clearly bar any relief merely because a judge refuses to accept the sentence recommendations of a prosecutor, so long as the defendant has not been misled."). Third, in order to conclude that Lopez had participated in a conspiracy the object of which was the distribution of drugs inside a prison, the district court was not required to find that Lopez had committed an overt act in furtherance of that conspiracy. See United States v. Cruz, 981 F.2d 613, 617 & n. 7 (1st Cir.1992) (explaining that, in contrast to common-law conspiracy, government does not have to prove an overt act to win a conviction under 21 U.S.C. § 846).

Lopez wrongly asserts that only paragraph seven of the PSR relates to the district court's findings. Paragraph twenty-one of the PSR reports that Lopez at one point asked the undercover officer if the heroin she was purchasing was for her husband, her boyfriend, or "someone in jail." As the government argues, this was "an odd question unless prison sales was something in which Lopez was actively involved."

Paragraph five of the PSR indicates that law enforcement officials had received a report from a confidential informant that Cortes, James, and Lopez were involved in the...