U.S. v. Rivera
| Decision Date | 03 April 1990 |
| Docket Number | No. 89-1843,89-1843 |
| Citation | 898 F.2d 442 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Elias Gomez RIVERA, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles A. Friedman (court-appointed), McCrarey & Friedman, Fort Worth, Tex., for defendant-appellant.
Randell P. Means, Asst. U.S. Atty., Marvin Collins, Fort Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
The defendant, Elias Gomez Rivera, pled guilty to distribution of .28 grams of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and was sentenced to 92 months of imprisonment. Rivera appeals, challenging the constitutionality of the Sentencing Guidelines and arguing that the district court improperly applied the Guidelines. We uphold the constitutionality of the Guidelines, but we vacate Rivera's sentence and remand the case to the district court for resentencing because we conclude that there are insufficient factual findings to support the application of the Guidelines in this case.
Rivera was indicted in four counts of a twenty-two count indictment alleging the felony offenses of conspiracy to distribute heroin, possession with intent to distribute heroin, distribution of heroin, and maintaining a place for the purpose of distribution of heroin. A superseding indictment was later returned, maintaining the same charges against Rivera. Count 11 of that indictment charged Rivera with distribution of .28 grams of heroin. Count 12 charged Rivera and Sylvia B. Salinas with distribution of .09 grams of heroin.
Rivera pled guilty to the distribution of .28 grams of heroin, as charged in count 11 of the superseding indictment. A factual resume was submitted for the trial court's consideration at the time of the entry of the guilty plea. That factual resume provides:
Beginning sometime prior to August 1, 1988 and continuing until December 12, 1988, Romero Perez, Jr., Defendant, controlled a residence located at 212 E. Pafford, Fort Worth, Texas. During the time Perez controlled this residence he directed the distribution of the controlled substance heroin from the residence and provided amounts of heroin to various individuals in order that the heroin could be distributed to others. During this time period, Perez made amounts of heroin available, either directly or through other persons, to Robert Olguin, Sylvia B. Salinas, Elias Gomez Rivera, Ramona L. Pena, and Teodolinda Herrera, for the purpose of enabling such persons to distribute heroin to others. Perez allowed Salinas, Rivera, Pena, Herrera, and others, to use the residence at 212 East Pafford as a place from which heroin could be sold. Perez also provided amounts of heroin to Robert Olguin at said residence in order that Olguin could distribute the heroin to persons at other locations.
On August 2, 1988, Teodolinda Herrera distributed approximately .51 grams of heroin to a police officer at 212 East Pafford, Fort Worth, Texas, in return for the payment by the officer of $300.00 in currency. Perez was present during this sale of heroin and directed Herrera to conduct such sales with heroin which Perez had provided.
On each of the following dates, Perez provided amounts of heroin to Robert Olguin in order that Olguin could distribute the heroin to other persons for money paid to Olguin, which was then paid to Perez:
1. August 11, 1988 24.6 grams $ 6,500
2. September 22, 1988 24.1 grams $ 6,000
3. September 26, 1988 24.9 grams $ 6,000
4. December 12, 1988 149.1 grams $36,000.*
(* The $36,000.00 was the intended sales price of the approximately six ounces
of heroin provided by Perez to Olguin. The money was not paid due to the
arrest of Olguin during such distribution.)
On November 23 and 29, 1988, Perez made heroin available to Sylvia Salinas at the residence at 212 East Pafford and allowed Salinas to conduct sales of heroin from the residence.
On November 28 and 29, 1988, Perez made heroin available to Elias Gomez Rivera and allowed Rivera to conduct sales of heroin from the residence. Rivera distributed approximately .28 grams of heroin to a police officer in return for payment of $40.00 in currency on November 28, 1988. Rivera distributed approximately .09 grams of heroin to a police officer in return for payment of $30.00 in currency on November 29, 1988.
On December 1, 1988, Perez made heroin available to Ramona L. Pena and allowed Pena to conduct sales of heroin from the same residence.
At the plea hearing, the trial court asked Rivera if anything in the factual resume needed to be corrected. Rivera's counsel replied that Rivera stipulated only to the matters of which he had personal knowledge, and disavowed the parts of the factual resume of which he did not and could not have knowledge. This objection was clarified at the sentencing hearing. Rivera stipulated to the events of November 28, 1988 and November 29, 1988, and stated that he had no knowledge of the other events described in the factual resume.
At the sentencing hearing, Rivera contested the district court's inclusion of quantities of narcotics attributed to his co-defendants in the quantity of drugs used in calculating his base offense level. The district court adopted the findings of fact in the pre-sentence report prepared by the probation officer from the factual resume, and denied Rivera's challenges to the Guidelines. The pre-sentence report adopted by the district court computed Rivera's base offense level as 26, based on the total of 224.47 grams of heroin involved in the indictment. Two points were added for the involvement of firearms in the offense, and two points were deducted for Rivera's acceptance of responsibility. With a criminal history category of IV, the Guidelines prescribe a sentencing range of 92-115 months imprisonment, a term of supervised release of three to five years, a fine range of $12,500 to $1,000,000, and a special assessment of $50. Rivera received a sentence of 92 months imprisonment, a supervised release term of three years, and a special assessment of $50. No fine was assessed. Rivera appeals.
Rivera argues that the district court erred in adopting the pre-sentence report's inclusion of quantities of heroin attributable to his co-defendants in calculating his base offense level. Rivera concedes that, in addition to the .28 grams of heroin that he pled guilty to distributing, the district court should have included the delivery of .09 grams of heroin charged in Count 12. He argues, however, that the quantities of drugs attributable to his co-defendants should not have been included.
A district court's findings about the quantity of drugs implicated by the crime are factual findings reviewed under the "clearly erroneous" standard. The district court may properly consider a variety of evidence, not limited to amounts seized or specified in the indictment, in making such findings. United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989). The district court's sentence will be upheld so long as it results from a correct application of the guidelines to factual findings that are not clearly erroneous. United States v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir.1989).
In applying the Sentencing Guidelines, the first step is to "[d]etermine the applicable offense guideline section from Chapter Two." Sentencing Guidelines, Sec. 1B1.1(a). Section 2D1.1 of the Guidelines is the guideline section most applicable to the offense of distribution of heroin. Under Sec. 2D1.1, a crime involving .37 grams of heroin, the amount Rivera concedes, has a base offense level of 12, while a crime involving 224.47 grams of heroin, the amount the government contends is applicable, has a base offense level of 26.
On the record before us, we cannot agree with the government that the facts established that Rivera made an agreement with anyone other than Perez to distribute heroin from the house located at 212 East Pafford Street, or that Rivera knew or should have known of the heroin sales made by his co-defendants. At most, the record shows that, at some time on November 29, 1988, the date on which Rivera admits selling .28 grams of heroin, Salinas also sold heroin at the same location. Although the indictment charged Rivera with conspiring with Perez and the other co-defendants, and although there is apparently no dispute that there was a conspiracy involving at least 224.47 grams of heroin, the extent to which Rivera was involved with any more of it than .37 grams was disputed. Rivera refused to stipulate to any facts regarding the distribution of heroin by his co-defendants, and denied any knowledge of such distribution by his co-defendants. The record before us contains no factual finding that Rivera was part of a jointly-undertaken scheme to distribute heroin with any of his co-defendants other than Perez. The district court did not find that Rivera was aware of his co-defendants' participation in the heroin...
To continue reading
Request your trial
-
Rupert v. Johnson
...consequences); Spinelli v. Collins, 992 F.2d 559, 561 (5th Cir.1993); United States v. Pearson, 910 F.2d at 223; United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990); and Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir.1982), cert. denied, 459 U.S. 867, 103 S.Ct. 149, 74 L.Ed.2d 125 121. Se......
-
U.S. v. Thomas
...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). Applying this standard, we uphold the district Hodgkiss contends that the evidence does not support the district court'......
-
U.S. v. Pofahl
...F.2d 286, 289 (5th Cir.1990) (holding that determination of relevant conduct under § 1B1.3 is "primarily factual"); United States v. Rivera, 898 F.2d 442, 445 (5th Cir.1990) (holding that quantity of drugs implicated by a crime is a factual In the alternative, we find no plain error in hold......
-
Gene Mitchell Olivier La. Doc v. Prince
...F.3d 591, 592-93 n. 2 (5th Cir. 1996), cert. denied, 517 U.S. 1198, 116 S.Ct. 1696, 134 L.Ed.2d 795 (1996) citing United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990). "[A] plea of guilty is not voluntary if it is induced by threats, misrepresentation, unfulfilled promises, or promise......
-
How much time am I looking at?': plea bargains, harsh punishments, and low trial rates in southwest border districts
...banc) (rejecting claim where counsel advised defendant before plea he faced 78-108 months and he received 360); United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990) (rejecting claim where even though the sentence was greater than defendant expected, counsel’s failure to predict senten......