U.S. v. Oliveras

• Citation: 905 F.2d 623
• Decision Date: 04 June 1990
• Docket Number: D,No. 657,657
• Parties: UNITED STATES of America, Appellee, v. Julio OLIVERAS, Defendant-Appellant. ocket 89-1380.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 623

905 F.2d 623

59 USLW 2011

UNITED STATES of America, Appellee, v. Julio OLIVERAS, Defendant-Appellant.

No. 657, Docket 89-1380.

United States Court of Appeals Second Circuit.

Argued Feb. 1, 1990.

Decided June 4, 1990.

Don D. Buchwald, New York City (James M. Keneally, of counsel), for defendant-appellant.

Jeh C. Johnson, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, Chief Judge, KEARSE, Circuit Judge, and FLETCHER, Circuit Judge. ^*

PER CURIAM:

BACKGROUND

Julio Oliveras and his girlfriend, Lillian Acosta, were arrested on January 25, 1989 for selling PCP to an undercover police officer in the Bronx. The arrest was made as part of a "federal day" ¹ sweep carried out by New York City police. According to the complaint, undercover officers approached Oliveras and Acosta and asked Oliveras for two bags of PCP. After making proper change for the $14 sale, Oliveras delivered the drugs. Oliveras and Acosta were arrested several minutes later. The arresting officers alleged that as they approached Oliveras, they observed him drop eight additional bags of PCP from his pocket. Oliveras contended that he was one of two dozen people arrested in the sweep at the same time in the same location, all of whom were placed up against a wall. One of the others arrested, according to Oliveras, must have thrown down the eight PCP bags.

A grand jury indicted Oliveras and Acosta on February 17, 1989. Count One charged Oliveras and Acosta with selling two bags of PCP within one thousand feet of a school in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(D), and 845a(a). Count Two of the original indictment charged Oliveras and Acosta with possessing with intent to distribute eight bags of PCP in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(D).

During plea discussions, Oliveras' counsel advised the prosecutor that Oliveras admitted having sold the two bags of PCP, but denied having possessed and then dropped the other eight on the sidewalk. The Government proposed dropping Count Two of the indictment (the possession of eight bags) in return for Oliveras' guilty plea to Count One (the distribution of two bags) and his admission, in his plea allocution, to the possession of the eight additional bags. Maintaining he had not possessed those eight bags, Oliveras refused the government's offer. ²

The government then offered to allow Oliveras to plead guilty to Count One of the Superseding Information, charging him with the sale of two PCP bags within one thousand feet of a school. This new proposal did not require Oliveras to admit to having possessed the eight bags, which Following his guilty plea, Oliveras was interviewed by a probation officer for the purpose of preparing the presentence report. Oliveras continued to deny having possessed the eight bags of PCP, but admitted selling the two and acknowledged that he had a drug problem. The probation officer recommended that Oliveras not receive the two-point reduction of the offense level under Sec. 3E1.1 of the Sentencing Guidelines for "Acceptance of Responsibility," which provides for a reduction in the offense level if the defendant clearly demonstrates a recognition and acceptance of personal responsibility for his criminal conduct. The probation officer's recommendation was based on the fact that Oliveras'

Oliveras persisted in denying. Oliveras accepted the offer, and on April 25, 1989 entered his guilty plea.

statement concerning the instant offense is limited to the sale itself and does not address relevant conduct, i.e., the possession of the additional 8 bags of PCP. In addition, his explanation for his behavior, namely needing money for [video] tapes, is not credible given the fact that he apparently had $70.00 with which he purchased the PCP he was planning on selling.

Probation Report at p. 3. The probation report also quoted from a prior presentence report on Oliveras, which stated that Oliveras "does not appear to recognize the seriousness of the offense and shifts the blame onto his accomplices.... He feels that he was framed."

During the sentencing hearing, defense counsel sought the two-point reduction under Sec. 3E1.1. ³ Defense argued that Oliveras had accepted responsibility for selling the two bags of PCP and had come to grips with his drug problem, as evidenced not only by his admission of use, but also by his voluntary surrender to begin his prison term immediately even though the prosecution had consented to his release through the sentencing date. Although frankly acknowledging the impossibility of accurately predicting if a given individual will succeed in ridding himself of a drug problem that is at the root of his criminal conduct, defense counsel advised that Oliveras' situation presented some genuine room for hope since his former employer had offered to take him back after release from prison and Oliveras seemed committed to raising the child that Ms. Acosta was to have. Further, defense argued that it would be improper to predicate a refusal to credit Oliveras with acceptance of responsibility on his denial of possessing the eight PCP bags. The defense urged the court to follow United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989), which held that acceptance of responsibility should be assessed solely with respect to the actual charge to which a defendant pleads guilty, and not to those counts which were dismissed as part of a plea agreement. The Government argued that the court should reject Perez-Franco, and, in any event, should deny the two-point reduction because Oliveras had not accepted responsibility even for the conduct to which he had pled guilty.

The district court explicitly declined to follow Perez-Franco. Finding Oliveras' acceptance of responsibility to be "selective," the judge denied the two-point reduction.

I again say I think he [Oliveras] is selective to the extent he is willing to concede both his problem with use of drugs, and also with the extent of his involvement...."

You haven't been candid with the probation officer and you haven't been candid with the prosecutor and apparently you haven't been candid with your lawyer.... Based on the very convincing and thorough letter presented to the court by the government ..., which convinces me that you should not get credit for acceptance of responsibility for a selective admission of what your involvement is, and the fact you took eight glassine envelopes out of your pocket The judge sentenced Oliveras to 30 months' imprisonment. Oliveras timely appeals from that sentence.

and dropped them on the ground doesn't mean you should have continued to avoid fessing up, admitting what the situation was.

DISCUSSION

In recognition of "legitimate societal interests," the Sentencing Guidelines provide for a lesser sentence to a defendant who has demonstrated sincere remorse in a timely fashion. Section 3E1.1, Background, Sentencing Guidelines. Section 3E1.1(a) instructs as follows:

If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.

I Requiring the Assumption of Responsibility for Crimes not Pled Violates the Fifth Amendment

Oliveras argues that to read this statute as requiring him to accept responsibility other than for the count to which he pled guilty would violate his fifth amendment right to refuse to incriminate himself, and that the sentencing judge erred in basing the denial of the credit on his refusal to admit possession of the eight bags. We agree. So long as the defendant's statements are not immunized against use in subsequent criminal prosecutions, the effect of requiring a defendant to accept responsibility for crimes other than those to which he pled guilty or of which he has been found guilty is to penalize him for refusing to incriminate himself. This runs afoul of the fifth amendment.

Just because the government has agreed to dismiss counts does not remove the risk of self-incrimination posed by admissions made by a defendant to a probation officer concerning crimes to which he is not pleading guilty. As the Perez-Franco court observed, a plea bargain can "unravel at any time for any number of reasons," ⁴ and some statements made by a defendant during plea negotiations may be admissible in other litigation. 873 F.2d at 460. In interpreting the contours of the fifth amendment, the Supreme Court has made clear that the "amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings ... unless and until he is protected at least against the use of his compelled answers." Lefkowitz v. Turley, 414 U.S. 70, 77-78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1983). As a necessary corollary, the Court has warned that the government cannot impose penalties because a person has elected to assert his constitutional right not to make statements that would incriminate him. ⁵ Minnesota v. Murphy, 465 U.S. 420 The government argues that the position it urges does not penalize a defendant for refusing to admit related conduct; it simply withholds a benefit to which the defendant is not automatically entitled. Courts squarely have rejected such a simple dichotomy. This distinction invokes the unconstitutional conditions doctrine. Although the doctrine is currently under sharp academic fire, ⁷ even its critics acknowledge To require a defendant to accept responsibility for crimes other than those to which he has pled guilty or of which he has been found guilty in effect forces defendants to choose between incriminating themselves as...