U.S. v. Santamaria, 85-1679

• Decision Date: 23 April 1986
• Docket Number: No. 85-1679,85-1679
• Citation: 788 F.2d 824
• Parties: UNITED STATES of America, Appellee, v. Juan C. SANTAMARIA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 824

788 F.2d 824

UNITED STATES of America, Appellee, v. Juan C. SANTAMARIA, Defendant, Appellant.

No. 85-1679.

United States Court of Appeals First Circuit.

April 23, 1986.

Paul J. DiMaio, Providence, R.I., for defendant, appellant.

James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, ^* Senior Judge.

MALETZ, Senior Judge.

Defendant-appellant Juan Santamaria appeals from denial of his motion to correct or reduce sentence, Fed.R.Crim.P. 35, contending that the manner in which he was sentenced violated due process. Santamaria argues also that the district court erred in failing to attach to the presentence investigation report its findings as to contested information in the report. Additionally, the government has stated for the first time on this appeal that the court erred in imposing a special parole term. We affirm, with modifications, and remand.

I. Introduction

Santamaria was indicted for (1) conspiring in violation of 21 U.S.C. Sec. 846 to knowingly and intentionally distribute and possess with intent to distribute in excess of one kilogram of a mixture containing cocaine, id. Sec. 841(a)(1) and (b)(1)(A), and (2) knowingly and intentionally possessing with intent to distribute one kilogram or more of a mixture containing cocaine, id. Santamaria pleaded guilty to both counts of the indictment pursuant to a plea agreement providing for a maximum sentence of twenty years, with a fine and a special parole term to be set in the discretion of the court. He was sentenced on Count II to a term of twenty years, a special parole term of ten years, and a fine of $50,000, and on Count I to a concurrent suspended sentence of ten years. Subsequently, his motion to correct or reduce sentence was denied. This appeal followed.

II. Background

On November 15, 1984, Santamaria was recruited by an individual in Rhode Island to go to Florida to pick up four kilograms of cocaine. He then paid his wife, from whom he was separated, $2,000 to accompany him to Florida, where he picked up the cocaine, then returning to Rhode Island. On December 5, 1984, Santamaria again went to Florida with his wife, paid $100,000 for the cocaine previously received, obtained five additional kilograms on consignment, and drove back to Rhode Island with the cocaine hidden in secret compartments built into his Porsche. While en route he was apprehended. A search of his house in Rhode Island revealed additional cocaine, scales, and other implements used in the distribution of cocaine.

Shortly after his arrest, Santamaria made two voluntary statements in which he provided the details of the November and December transactions and gave the names of a number of major cocaine dealers. Thereafter, however, he stopped cooperating, with the result that the information he provided was of little use to the government. Santamaria then moved to suppress the statements he had made during the course of his cooperation. At the hearing on that motion, he testified that he had stopped cooperating out of fear, and that he initially had been misled by government agents into believing that any information he provided would not become public. The court found, contrary to this testimony, that there had been no deception by government agents.

Information available to the court at the time of sentencing included the fact that Santamaria was a twenty-two-year-old unemployed high school graduate with some community college education and no criminal record. At the time of his arrest, he owned four cars: the Porsche in which he had transported the cocaine; two cars admittedly purchased with the proceeds of drug sales; and a car purchased for $8300 in cash shortly after the November trip to Florida. Bank records showed that he had deposited an additional $11,300 in cash shortly after that trip. Santamaria's four cars had been forfeited, as had his house, following a magistrate's determination that although the house was held in the name of his mother and stepfather, Santamaria had provided the $30,000 cash down payment.

At sentencing, defense counsel contested two aspects of the presentence report. The first objection was to a characterization of Santamaria's refusal to continue cooperating as reflecting a "change of heart." Counsel argued that because the defendant had initially been under a misapprehension as to the manner in which the information he provided would be used, it was misleading to say that he had had a "change of heart." The court indicated that its understanding of the phrase was that when Santamaria had realized cooperation would require him to testify, he decided that was not his original intention and that he would not do it. Defense counsel agreed with this characterization.

Counsel's second objection concerned an assertion in the presentence report that Santamaria had been involved in a Canadian drug transaction. Rather than granting counsel's request for a hearing on that aspect of the report, the court indicated that it would not take the alleged transaction into account.

III. Alleged Violations of Due Process

Santamaria contends that statements of the court indicate that it did in fact consider the Canadian transaction, despite its representation to the contrary, and that the denial of a hearing regarding that transaction was thus a denial of due process. The statements objected to include the court's comments at sentencing that Santamaria was a "kingpin of this industry that is rattling this country and eating alive our young," and that he was a "villain" and "beyond rehabilitation." Santamaria argues that there was nothing in the facts before the court to support these conclusions, and that the court therefore must have taken the Canadian transaction into account. But given the serious nature of the drug transactions that provided the basis for Santamaria's plea, and in light of the additional information properly before the sentencing court, there is no reason to doubt the judge's assertion that he was not considering the Canadian transaction. Cf. United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir.1985) (district court's statement that it will disregard certain matter in presentence report must be taken at face value), cert. denied, --- U.S. ----, 106 S.Ct 826, 88 L.Ed.2d 798 (1986). Thus, there was no constitutional violation, since there is no due process right to contest the accuracy of information not relied upon by the court. See United States v. Brown, 715 F.2d 387, 389 (8th Cir.1983) (due process affords the defendant no right to rebut evidence not relied upon in the sentencing process).

Santamaria also argues that the comments of the district court indicated that it employed a rigid sentencing policy rather than considering the defendant as an individual. See United States v. Foss, 501 F.2d 522, 527 (1st Cir.1974) (sentences dictated by a mechanistic concept of what a particular type of crime deserves may be vacated by appellate court); accord United States v. Miller, 589 F.2d 1117, 1138 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct 1499, 59 L.Ed.2d 771 (1979). We find the contention without merit. For the record shows specific consideration by the court of factors peculiar to this defendant, including the use of his wife as a "front," the secret compartments in his car, the fact that greed was apparently his only motive, and the amount of narcotics involved.

Santamaria further argues that the court penalized him because he had refused to continue to cooperate. This contention is based in part upon the court's statement that "[w]hat has been termed as forthrightness and candor I see as a cautious venturing forward governed only by self-interest, without the slightest sign of genuine remorse or even a true recognition of the enormity of the wrong which you have committed."

We cannot agree that this or any other statement of the district court indicates that the defendant was being penalized for his failure to cooperate. To the contrary, the court's statements indicate merely an assessment that the defendant's limited cooperation had reflected only self-interest, and not a step towards rehabilitation. Accordingly, the court did not abuse its discretion by its apparent refusal to consider that cooperation as a ground for leniency. See United States v. Reed, 674 F.2d 128, 129-30 (1st Cir.1982) (the premium to be placed on cooperation is a policy judgment left to the discretion of the trial court); United States v. Miller, 589 F.2d 1117, 1138 (1st Cir.1978) (there is a distinction between punishing a defendant for asserting his innocence and merely considering a failure to recant when evaluating his prospects for rehabilitation), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); cf. Roberts v. United States, 445 U.S. 552, 556-61, 100 S.Ct. 1358, 1362-65, 63 L.Ed.2d 622 (1980) (cooperation with the authorities is a laudable endeavor that bears a rational connection to a defendant's willingness to change his behavior); United States v. Tracey, 675 F.2d 433, 441 (1st Cir.1982) (defendant's lack of cooperation with the government is a legitimate factor in sentencing).

More troubling is Santamaria's contention that he was denied due process by the sentencing court's conclusion that: "I think from what I know of your case that you are beyond rehabilitation, that punishment for punishment's sake is deserving, that punishment for the sake of deterrence is deserved...." Santamaria argues that a conclusion that he--a twenty-two-year-old with no prior criminal record--was beyond rehabilitation lacked any foundation in the record. He therefore argues that his sentence was based in part upon a false premise, and so violates due process.

A sentence within statutory limits is generally not subject to substantive review. See Dorszynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042,...