U.S. v. Mata-Grullon, MATA-GRULLON

Decision Date06 October 1989
Docket NumberNos. 89-1140,89-1240,MATA-GRULLON,s. 89-1140
Citation887 F.2d 23
PartiesUNITED STATES, Appellee, v. Ramon, a/k/a Santos Perez, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

John F. Cicilline, Providence, R.I., on brief, for defendant, appellant.

Lincoln C. Almond, U.S. Atty., Providence, R.I., and Suzanne Grealy Curt, Asst. U.S. Atty., on brief, for appellee.

Before BREYER, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

Ramon Antonio Mata Grullon entered a plea of guilty to a charge of possessing heroin with intent to distribute it. 21 U.S.C. Sec. 841(a)(1). The district court sentenced him to a term of 27 months imprisonment, a fine, and a term of supervised release. See United States Sentencing Commission Guidelines Secs. 2D1.1 (base offense level for drug trafficking), 5C2.1 (imprisonment), 5D3.1-5D3.3 (supervised release), 5E4.2 (individual fine). Defendant appeals that sentence. We affirm.

1. Appellant argues that the district court erroneously added two Guideline levels for willfully obstructing justice, see Guidelines Sec. 3C1.1, an adjustment the court based upon appellant's having lied about his name, birthdate and citizenship both to an immigration agent and a federal magistrate. At the sentencing hearing, however, appellant conceded that "the court is entitled to increase" the sentencing level "because during the proceedings there has been an obstruction, so to speak." Given this concession, we believe that appellant waived the point. See United States v. Edgewood Health Care Center, 608 F.2d 13, 14 (1st Cir.) (issues not raised below normally will not be considered on appeal), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1979). Regardless, we can find nothing improper about the increase.

2. Appellant says that, in light of his guilty plea, the district court should have given him a two-level reduction for "acceptance of responsibility." See Guidelines Sec. 3E1.1. The Guidelines make clear, however, that a defendant who pleads guilty is not automatically entitled to this two level reduction. See id. Sec. 3E1.1(c) ("A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right."). Rather, the court may take account of other related circumstances. Here, appellant's false statements militate against the reduction, see id. Sec. 3E1.1, Application Note 4 ("An adjustment under this section is not warranted where a defendant perjures himself ... or otherwise obstructs the ... administration of justice (see Sec. 3C1.1) regardless of other factors"), and we cannot say the court committed legal error in refusing to award it, see United States v. Zayas, 876 F.2d 1057, 1060 (1st Cir.1989); see also United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989) ("Whether or not a defendant has accepted responsibility for his crime is a factual question ... [that] enjoys the protection of the 'clearly erroneous' standard."); Guidelines Sec. 3E1.1, Application Note 5 ("the determination of the sentencing judge [with respect to defendant's acceptance of responsibility] is entitled to great deference on review and should not be disturbed unless it is without foundation"). To treat the false statements as evidence of both a failure to accept responsibility and an effort to obstruct justice does not impermissibly "double count" them, for the false statements, in fact, tend to show both.

3. Appellant argues that the government failed to fulfill its plea-bargained promise to recommend the lowest sentence within the appropriate Guideline range. Of course, the government must keep its plea agreements, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and may not do "end-runs around them," see United States v. Voccola, 600 F.Supp. 1534, 1537 (D.R.I.1985). On the other hand, the government must bring all relevant facts to the judge's attention, see United States v. Hogan, 862 F.2d 386, 388-89 (1st Cir.1988) (notwithstanding the existence of any plea agreement, "[t]he sentencing judge ... has a right to expect that the prosecutor ... give him all relevant facts within [the prosecutor's] ken"), and its recommendations need not be "enthusiastic," see United States v. Ramos, 810 F.2d 308, 313-14 (1st Cir.1987). Here, the government made the promised recommendation. It also pointed out that the heroin's purity was "above 50 percentile, which is quite potent compared to what's usually...

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