U.S. v. Ponce, 89-5628

• Decision Date: 08 August 1990
• Docket Number: No. 89-5628,89-5628
• Citation: 917 F.2d 841
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto Valdez PONCE, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 841

917 F.2d 841

UNITED STATES of America, Plaintiff-Appellee, v. Alberto Valdez PONCE, Defendant-Appellant.

No. 89-5628

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 8, 1990.

Manuel G. Escobar, Jr., San Antonio, Tex. (Court appointed counsel), for defendant-appellant.

LeRoy Morgan Jahn, Glenn W. MacTaggart, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, GARWOOD and DUHE, Circuit Judges.

PER CURIAM:

Defendant-appellant, Alberto Valdez Ponce (Ponce), appeals the sentence that he received after pleading guilty to a charge of possession with intent to distribute cocaine under 21 U.S.C. Sec. 841(a)(1). Finding no error, we affirm the sentence imposed by the district court.

I.

A grand jury returned an eight-count indictment against Ponce and others. Ponce was charged with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (count one) and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (count five). Through appointed counsel, Ponce entered into an agreement to plead guilty to count five of the indictment. In exchange, the government agreed 1) not to oppose a finding that Ponce had demonstrated an acceptance of personal responsibility for his conduct and 2) to move to dismiss count one of the indictment.

Following Ponce's plea, a pre-sentence investigative report (PSIR) was written. It is uncontroverted that on June 1, 1988, DEA Special Agent Wade purchased approximately one ounce of cocaine from Louis Cantu and Ponce for $1100 (the offense of conviction). If only the one ounce of cocaine were considered, Ponce's base offense level for a criminal history category of III would equal 12. In the PSIR, however, the probation officer calculated Ponce's base offense level at 20 on the offense of conviction as well as the quantities of cocaine implicated in transactions involving Ponce's alleged co-conspirators. In sum, such "relevant conduct" involved a total of 231.3 grams of cocaine.

Ponce filed the following objections to the PSIR: 1) Ponce was not a part of any criminal organization or conspiracy; 2) the PSIR failed to connect Ponce to the alleged criminal activity of the co-defendants since Ponce's participation in alleged criminal activity was mentioned only in paragraphs 8 and 12 of the PSIR; 3) Ponce's base offense level should be 12 because his involvement was limited to the 23.98 grams of cocaine discussed in Paragraph 8 of the PSIR and 82 milligrams of cocaine detailed in Paragraph 12 of the PSIR; and 4) Ponce believed he was entitled to an adjustment for acceptance of responsibility. The court adopted the factual statements of the PSIR to which there were no objections. The court also ruled that Ponce was a member of a criminal organization, and therefore, that the total drug quantities mentioned in the PSIR should be used in computing his sentence. Further, the court found a downward adjustment for acceptance of responsibility unwarranted.

The sentencing range set by the Sentencing Guidelines (the Guidelines) for Ponce's offense as calculated in the PSIR was 41-51 months. The court sentenced Ponce to a term of imprisonment of 41 months and a five-year term of supervised release. Ponce appealed in a timely manner.

II.

At sentencing, the district court is required to resolve "specifically disputed issues of fact if it intends to use those facts as the basis for its sentence." United States v. Rodriguez, 897 F.2d 1324, 1327 (5th Cir.1990). Such factual findings will be upheld on appeal unless they are clearly erroneous. United States v. Perez, 897 F.2d 751, 752-53 (5th Cir.1990). Thus, "[w]e will uphold the district court's sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989); see also United States v. Buenrostro, 868 F.2d 135, 136 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). ("A reviewing court will uphold a sentence unless the sentence was 'imposed in violation of law,' or was 'imposed as a result of an incorrect application of the sentencing guidelines,' or was 'outside the range of the applicable sentencing guideline, and is unreasonable.' ") (quoting 18 U.S.C. Secs. 3742(d) and (e)).

In the case at hand, the sentencing court found inter alia, for the purposes of sentencing, that Ponce was part of a conspiracy to distribute cocaine. Consequently, the sentencing court considered the entire quantity of cocaine discussed in the PSIR and the indictment in setting Ponce's sentence. We have previously held that "[a] district court's findings about the quantity of drugs implicated by the crime are factual findings reviewed under the 'clearly erroneous' standard." United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990). Thus, we review the district court's calculation of Ponce's sentence based on the offense of conviction and relevant conduct involving a total of 231.3 grams of cocaine to assess whether it is a correct application of the Guidelines and whether the underlying factual findings were clearly erroneous.

III.

Ponce contends that drug quantities beyond the amounts of cocaine involved directly in count five, to which he pleaded guilty, should not have been considered in computing his base offense level. In order to consider this claim, we track through the relevant Guideline provisions.

Under section 1B1.1(a) of the Guidelines, we must first "[d]etermine the offense guideline section in Chapter Two ... most applicable to the offense of conviction." U.S.S.G. Sec. 1B1.1(a). In the instant case, as Ponce was convicted for the sale of under 25 grams of cocaine, section 2D1.1, which controls cases involving "Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit these Offenses)," applies. Subsection (a)(3) of section 2D1.1 dictates that the base offense level be set in accordance with the "Drug Quantity Table" contained in subsection (c) of the same section.

As detailed supra, Ponce argues that because the PSIR links him directly to less than 25 grams of cocaine, the facts in the case at hand place it within the parameters of base offense level 12. See U.S.S.G. Sec. 2D1.1(c). On the other hand, the government contends--and the district court agreed--that the correct base offense level should reflect the entire quantity of cocaine mentioned in the PSIR and the indictment and, therefore, is 20. Facing these divergent views of the appropriate application and Guideline range, we return to section 1B1.2 for guidance. Such section instructs us that after the determination of the appropriate offense guideline sections, the applicable guideline range is determined "in accordance with Sec. 1B1.3 (Relevant Conduct)." U.S.S.G. Sec. 1B1.2(b).

Section 1B1.3(a), in turn, states in part:

Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts or omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. Sec. 1B1.3(a). ¹ In this circuit, under these rules, it is well established that in determining the base offense level, the sentencing court may consider quantities of drugs not specified in the count of conviction. See, e.g., Sarasti, 869 F.2d at 806 ("The guidelines make plain that the district court is not bound by the quantity of drugs mentioned by the indictment."); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989) ("The January 15, 1988 revisions ... indeed make clear now that the guidelines allow the consideration of relevant conduct for which the defendant was not convicted in determining the actual guideline range."); United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir.1989) (at sentencing, "the court may properly consider past crimes including those for which a defendant has been indicted but not convicted, as well as the factual basis of dismissed counts."); United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990) ("The guidelines make clear that in drug distribution cases quantities of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction."). Thus, if we confronted a case in which the defendant had pleaded guilty to one of several substantive drug trafficking counts, there is no doubt that--assuming that the evidence presented satisfied the requisite criteria of reliability ²--prior case law would require us to uphold an offense level finding based not only on the quantity of drugs specified in the count of conviction but also on other quantities of drugs that were part of the same plan or scheme.

The instant case, however, presents a variation on this theme. The...