U.S. v. Wright, No. 88-1687

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before BOWNES, BREYER and TORRUELLA; BREYER; BREYER
• Citation: 873 F.2d 437
• Parties: UNITED STATES of America, Appellee, v. Bertie Alexander WRIGHT, Defendant, Appellant. . Heard
• Docket Number: No. 88-1687
• Decision Date: 13 January 1989

Page 437

873 F.2d 437 57 USLW 2650 UNITED STATES of America, Appellee,
v.
Bertie Alexander WRIGHT, Defendant, Appellant. No. 88-1687. United States Court of Appeals,
First Circuit. Heard Jan. 13, 1989.
Decided April 27, 1989.

Page 439

Julia M. Garriga, for defendant, appellant.

Jorge E. Vega Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose R. Gaztambide, Asst. U.S. Atty., Crim. Div., Hato Rey, P.R., were on brief, for the U.S.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

In mid-February 1988, security officials of the ship Jubilee found cocaine in the locker of appellant Wright, a member of the ship's crew. The government indicted Wright, charging him in Count I with unlawfully importing cocaine, 21 U.S.C. Sec. 952(a) (1982), and in Count II with unlawfully possessing cocaine on a vessel arriving in the United States, 21 U.S.C. Sec. 955. The government entered into a plea bargain with Wright; it agreed to move to dismiss Count I in return for Wright's plea of guilty to Count II.

Subsequently, the probation officer prepared a presentence report, and the court held a sentencing hearing. The court dismissed Count I, it accepted his plea of

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guilty to Count II, and it sentenced Wright to a prison term of 45 months. Since the crime took place after November 1, 1987, the court sentenced the appellant in accordance with the new Sentencing Guidelines. See 28 U.S.C. Sec. 994(a) (promulgation of Guidelines); Pub.L. No. 98-473 Sec. 235, reprinted at 18 U.S.C. Sec. 3551 note (Supp.1988) (effective date of Guidelines).

To be more specific, in this fairly simple, straightforward case, the court essentially did the following:

(1) The court looked up the statute of conviction, 21 U.S.C. Sec. 955, in the Guidelines index, which referred the court to Guideline Sec. 2Dl.1.

(2) Guideline Sec. 2D1.1 sets forth different offense levels depending upon the amount of drug the defendant possessed. The court determined that Wright possessed a little over 400 grams of cocaine, and consequently it chose offense level "24," the level the Guideline sets for possession of 400-499 grams of cocaine.

(3) The court found that the only applicable "adjustment" was a two-level reduction for "acceptance of responsibility," see Guideline Sec. 3E1.1; it therefore reduced the offense level from "24" to "22."

(4) Appellant had no significant prior criminal convictions. Since he therefore received "0" criminal history points, see Guideline Sec. 4A1.1, the court found that Column I of the sentencing table, Guideline Sec. 5A, applied.

(5) The court found the relevant row and column in the sentencing table, Guideline Sec. 5A (level 22; column I).

(6) The court rejected defendant's requests to "depart" from the Guidelines, see Guidelines, Introduction Sec. 4(b); Sec. 5K.

(7) The court selected a prison term of 45 months, a term within the range listed at the intersection of the appropriate row and column of the sentencing table, Guideline Sec. 5A (41 to 51 months).

Appellant raises a series of legal objections to the manner in which the court applied the Guidelines. We shall consider each in turn.

1. Appellant makes several arguments about the conduct that the court considered when imposing sentence. He concedes that the court properly took account of his conduct, insofar as it constituted elements of the crime to which he pled guilty, namely possession of cocaine on a ship entering the United States. But, he does not think the court could lawfully consider certain other, related conduct. In light of the fact that the Guidelines are new, we have read his arguments generously in his favor, but we still conclude that they are not correct as a matter of law.

a. Appellant's argument, literally read, says that the district court erred in considering conduct that was the subject of Count I. Count I, however, covered the same underlying conduct as Count II (Count I charged unlawful importation of cocaine, while Count II charged unlawful possession of cocaine on a vessel arriving in the United States). Thus, the court necessarily had to consider that conduct in imposing sentence for the crime to which appellant pled guilty.

b. Appellant complains that the court took account of the fact that the ship's authorities found in his locker a small amount of marijuana, as well as the cocaine that was the subject of Count II. The short answer to this claim is that the district court specifically wrote in its statement of reasons, see 18 U.S.C. Sec. 3553(c), that it "does not take into consideration for the purpose of this sentence the marijuana seized." Regardless, had the government adequately proved possession of the marijuana and shown that its possession was related to possession of the cocaine, the court could have taken it into account when imposing sentence, as "relevant conduct." See Guidelines Introduction 4(a); Guideline Sec. 1B1.3; see pp. 441-42, infra.

c. Appellant's basic concern may be that his plea bargain, though it led to a dismissal of Count I, did not produce a lower sentence. Appellant is correct about this fact. Because the Guidelines, in respect to drug cases, base sentences for the most part upon the amount of drugs possessed,

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"charge-type" plea bargains, see Fed.R.Crim.P. 11(e)(1)(A), may no longer prove of much value to defendants in drug cases. Here, for example, the government's agreement to dismiss Count I did not help the appellant. His sentence, based upon the amount of cocaine the court found he actually possessed, would have been roughly the same, whether he had been convicted of importation and possession-on-a-vessel, or possession-on-a-vessel alone. See Guidelines Sec. 3D1.2(d) (multiple counts). But that fact does not make plea bargaining futile; it simply means that the government and the defendant, should they wish to bargain in a case like this one, should bargain about sentence "recommendation," see Fed.R.Crim.P. 11(e)(1)(B), or "a specific sentence," see Fed.R.Crim.P. 11(e)(1)(C). Even though the prosecutor need not agree to any such bargain, and even though the court may reject any such bargain--as it can reject any and all plea bargains, see Fed.R.Crim.P. 11(e)(2)--the Guidelines' structure does not inhibit these latter types of bargains.

In any event, appellant cannot attack his sentence by pointing to the plea bargain, for that bargain did not promise him a lower sentence. Although a guilty plea based on a promise by the prosecutor is invalid if the promise is not kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), if there is no "unfulfilled promise," the plea must stand, unless, for some reason, it was not "intelligent and voluntary," and appellant has made no such showing here. See Mabry v. Johnson, 467 U.S. 504, 508-10, 104 S.Ct. 2543, 2546-48, 81 L.Ed.2d 437 (1984).

2. Appellant complains of the fact that the sentencing court took account of the fact that, on other occasions, various people had paid him to keep cocaine on the ship for them.

a. Insofar as appellant complains of the court's taking account of conduct relevant to the offense in question, or past behavior relevant to determining an appropriate penalty for the crime, he complains of a practice in which all sentencing courts have engaged in the past and in which they will continue to engage in the future. Guideline Sec. 1B1.3 requires courts to take account of "relevant conduct"--conduct that, very roughly speaking, corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines' enactment. Past practice, and authoritative case law, indicates that the Constitution does not, as a general matter, forbid such consideration. See McMillan v. Pennsylvania, 477 U.S. 79, 92, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986) ("Sentencing courts necessarily consider the circumstances of an offense ... and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime").

b. Appellant complains that the court relied on his probation officer's testimony at the sentencing hearing, in which the probation officer said that appellant told him he had been paid to hold cocaine on several past occasions. Insofar as appellant challenges this testimony as hearsay, he cannot prevail in light of case law that clearly establishes the sentencing court's power to rely upon hearsay evidence that appears reliable. United States v. Fatico, 603 F.2d 1053, 1057 (2d Cir.1979) (allowing use of hearsay evidence in sentencing hearings, if reliable), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980). Regardless, the "hearsay" at issue here was a reported statement by appellant himself; a statement that the rules of evidence would classify as a "party's own statement," and not hearsay at all. See Fed.R.Evid. 801(d)(2)(A).

c. Insofar as appellant challenges the standard of proof as to the facts the court relied on in sentencing, the challenge fails. Case law clearly establishes that the government need not prove the facts used for sentencing "beyond a reasonable doubt." The Supreme Court has held that the "preponderance standard satisfies due process." McMillan, 477 U.S. at 91, 106 S.Ct. at 2419 (noting that sentencing courts have "traditionally heard evidence and found facts without any prescribed burden of proof at all"); see also Fatico, 603 F.2d at 1057 (government need not prove facts

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used in sentencing beyond a reasonable doubt). And here, that standard was easily met.

d. Appellant also argues that the court used a "confession" that was "illegally obtained" in sentencing. He apparently refers to a statement he made to the ship's security officer. In that statement, appellant again said that, in the past, people had paid him to hold cocaine for them, and also that he had sold small amounts of cocaine. As far...