USA v. Maldonado

• Decision Date: 26 June 2000
• Docket Number: No. 97-50440,97-50440
• Citation: 215 F.3d 1046
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ALFREDO MALDONADO, aka Chino, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1046

215 F.3d 1046 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ALFREDO MALDONADO, aka Chino, Defendant-Appellant.

No. 97-50440

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 5, 2000

Filed June 26, 2000

Sylvia Baiz, San Diego, California, for the defendant-appellant.

Jay Alvarez, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, District Judge, Presiding. D.C. No. CR-96-02137-RMB

Before: J. Clifford Wallace, Stephen S. Trott and Ron Gould, Circuit Judges.

GOULD, Circuit Judge:

In proceedings before the United States District Court for the Southern District of California, Jose Alfredo Maldonado ("Maldonado") pleaded guilty to conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. S 846 and S 841(a)(1). The district court sentenced Maldonado to 168 months in custody. Maldonado appeals his sentence, contending that: (1) the district court did not follow Rule 32(c) of the Federal Rules of Criminal Procedure; (2) the district court erred by imposing a two-level role enhancement; and (3) the government breached the plea agreement. We have jurisdiction pursuant to 28 U.S.C. S 1291. We affirm, holding that: (1) a Rule 32(c)(1) finding was unnecessary because no matter was controverted; (2) the evidence was sufficient to support the district court's imposition of a two-level enhancement for role; and (3) Maldonado failed to demonstrate plain error because the government did not breach the plea agreement.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996 the government investigated Maldonado's drug trafficking activities. During the investigation, Maldonado and others often met with a confidential informant and with undercover agents to negotiate price, quantity and quality of methamphetamine, and to deliver such methamphetamine to the agents. Additionally, the investigation revealed that Maldonado rented a residence where Maldonado and others "stepped on" methamphetamine, diluting it to extend its amount. Agents searched the residence and found chemicals, methamphetamine manufacturing equipment, scales, measuring devices, bags used to package drugs, 96 grams of finished methamphetamine and 611 grams of amphetamine.

Mario Vargas ("Vargas") and Leonel Lopez-Lopez ("Lopez") participated in the drug trafficking. Maldonado usually did the negotiating and provided the drugs to the agents. Vargas was often present during meetings with the undercover agents, spoke with the agents about drug quality and quantity, served as an English language interpreter, delivered drugs to the agents, received drug payments from the agents and delivered drug payments to Maldonado. Lopez, who ordinarily worked as Maldonado's domestic "handy man," was present during some negotiations and deliveries of drugs to the confidential source. Additionally, once, when Maldonado told him to do so, Lopez gave a package of drugs to someone in a car outside the residence.

Maldonado entered into a plea agreement with the government whereby he agreed to plead guilty and, among other things, the government agreed to recommend a base offense level of 32 and no supervisory role enhancement. The plea agreement expressly stated that the government's sentencing recommendations would not be binding on the district court: "the recommendation made by the Government is not binding on the court, and it is uncertain at this time what defendant's sentence will be."

At Maldonado's sentencing hearing, the district court inquired into a possible pre-sentence report ("PSR") discrepancy regarding the calculation of the base offense level based on the amount of drugs seized. The PSR had quoted the amount of drugs seized as 3,372 kilograms, but at the hearing the parties acknowledged that the actual marijuana equivalency for the amount of drugs seized was 3,091 kilograms¹. Although Maldonado's counsel argued that "the amount that we pled guilty for was an amount that warrants a finding of a level 32, not a level 34 as recommended by the probation report," Maldonado's counsel agreed that, when the correct marijuana equivalency was used, the base offense level calculated to 34².

At Maldonado's sentencing hearing the district court also focused on whether the evidence supported a two-level supervisory role enhancement. The government recommended that there be no role enhancement because Maldonado was "a street dealer, and Mr. Lopez basically worked for him more in a non-drug capacity than anything else," and "Vargas was a neighbor who worked with [Maldonado] and got caught up in it, but he was basically on equal footing with Mr. Maldonado." The district court asked: "is the reason that you are not recommending [a role enhancement] . . . because of a plea bargain?" The government responded to the district court's direct inquiry by acknowledging that the government's recommendation of no role enhancement was not because of the guideline analysis, but because of its plea agreement: "That is correct, your Honor . . . . That was our plea bargain, your Honor."³

The district court rejected the government's recommendation of a base offense level of 32 and set the base offense level at 34 in accord with the facts that were honestly and correctly acknowledged in the written objections and at the hearing. The district court also rejected the PSR recommendation of a four-level supervisory role enhancement and the government's recommendation of no supervisory role enhancement. Instead, the district court increased Maldonado's sentence by a two-level enhancement to 36 because of his supervisory role.

DISCUSSION

A. Rule 32(c)

Maldonado asserts that, because the probation department erred in calculating the base offense level, and the district court adopted the recommended base offense level without a specific finding regarding the error, the district court did not follow Fed. R. Crim. P. 32(c)(3)(D)⁴. We disagree.

The issue is whether the district court followed current Rule 32(c)(1), the counterpart to the old Rule 32(c)(3)(D) cited by the parties. Rule 32(c)(1) provides in part:

At the sentencing hearing, the court must afford counsel . . . an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the pre-sentence report . . . . For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.

Fed. R. Crim. P. 32(c)(1) (emphasis added).

Here, there was no unresolved objection, nor any controverted matter, regarding the base offense level set forth in the PSR. All parties initially erred in calculating the marijuana equivalency of the drugs. However, at sentencing all parties agreed on the amount of drugs for which Maldonado was accountable, and the resulting base offense level of 34. At the sentencing hearing Maldonado in words and substance merely asserted that the PSR recommendation of a base offense level of 34 differed from the plea agreement recommendation of a base offense level of 32, not that there was error in the PSR's recommended base offense level. Because the district court relied on an accurate PSR recommendation upon which the parties agreed, a base offense level of 34, no "matter [was] controverted," making a Rule 32(c)(1) finding unnecessary.

B. Role enhancement

Maldonado contends that the district court erred by applying a two-level supervisory role enhancement to his sentence. Maldonado argues that the facts, as set forth in the PSR and modified by the parties' written objections and oral assertions, are insufficient to support the role enhancement. This contention lacks merit.

We review for clear error the district court's determination whether the defendant qualifies for a role adjustment under the United States Sentencing Guidelines ("Guidelines"). See United States v. Ruelas, 106 F.3d 1416, 1419 (9th Cir. 1997). Review under the clearly erroneous standard is deferential, "requiring for reversal a definite and firm conviction that a mistake has been made." United States v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir. 2000).

The Guidelines provide for an increase in a defendant's base offense level by two levels if the defendant "was an organizer, leader, manager, or supervisor in any criminal activity . . . ." U.S.S.G. S 3B1.1(c). An increase of offense level for an aggravating role is appropriate if there is sufficient evidence to support a finding that the defendant occupied one of the four specified roles. See U.S.S.G. S 3B1.1 App. n.2; United States v. Harper, 33 F.3d 1143, 1150 (9th Cir. 1994). When a defendant supervises other participants, she or he need exercise authority over only one of the other participants to merit the adjustment. See United States v. Cooper, 173 F.3d 1192, 1207 (9th Cir. 1999). A single incident of persons acting under a defendant's direction is sufficient evidence to support a two-level role enhancement. See, e.g., United States v. Beltran, 165 F.3d 1266, 1271 (9th Cir. 1999). Although the government must present evidence sufficient to support the upward adjustment by a preponderance of the evidence, see United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990), the district court may, without error, rely on evidence presented in the PSR to find by a preponderance of the evidence that the facts underlying a sentence enhancement have been established. See United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998); United States v. Milton, 153 F.3d 891, 897 (8th Cir. 1998) (where government and defendant both opposed PSR recommendation, the court did not err by relying on facts presented in the PSR to establish a role...