UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-30011
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTHONY BAEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CR-97)
January 26, 1998
Before WISDOM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
On July 11, 1996, Anthony Baez pleaded guilty to an indictment
charging him and 13 others with conspiracy to possess with intent
to distribute cocaine hydrochloride, in violation of 21 U.S.C. §
846.2 That same day, he entered into a Use and Derivative Use
Immunity Agreement with the United States. In exchange for Baez’s
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except in
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
Neither the indictment nor the factual basis for Baez’s
guilty plea included the amount of cocaine that would ultimately be
attributed to him for purposes of sentence calculation. The
factual basis does, however, note that Baez stored unspecified
quantities of cocaine at his home on behalf of a codefendant.
agreement to cooperate in its ongoing investigation of other
defendants, the government agreed to advise the sentencing court of
his assistance, and promised that none of the truthful information
he disclosed under the agreement would be used, directly or
indirectly, to increase his sentence.3
The district court eventually sentenced Baez to a 30-month
term of imprisonment, to be followed by a three-year term of
supervised release. Since neither the indictment nor the factual
basis for the guilty plea included the amount of cocaine
attributable to Baez for sentencing purposes, the district court
calculated his sentence on the basis of the recommendations set
forth in the Presentence Investigation Report. The Probation
Officer who prepared the report concluded that Baez should be held
responsible for having trafficked in approximately 612 grams of
cocaine. The district court accepted this finding over Baez’s
objections.
Baez’s principal contentions in this appeal are that the
district court clearly erred in concluding (1) that the Government
did not use immunized information for purposes of increasing his
sentence, and (2) that there was a sufficient evidentiary basis for
his sentence. A district court’s findings as to the quantity of
drugs upon which a sentence should be based are factual findings
3
Government agents debriefed Baez on July 15, 1996, under the
terms of the immunity agreement.
2
that we review for clear error.4
Section 1B1.8 of the Guidelines provides that neither the
government nor the court may use information that a defendant has
furnished in reliance on a valid immunity agreement to increase his
or her sentence.5 Since immunity agreements are in the nature of
contracts,6 it is Baez’s burden to show by a preponderance of the
evidence that the government breached the agreement.7 Our
principal inquiry, then, is whether Baez has demonstrated that the
factual underpinnings of his sentence were tainted by the direct or
indirect use of the immunized information he furnished. We uphold
Baez’s sentence if the record reveals that the district court
relied on evidence that the government obtained from legitimate,
independent sources.8 If the record so reveals, neither the
government nor the district court can be said to have breached the
4
United States v. Rivera, 898 F.2d 442, 445 (5th Cir. 1990).
5
The Commentary to § 1B1.8 offers an illustration: “If a
defendant is arrested in possession of a kilogram of cocaine and,
pursuant to an agreement to provide information concerning the
unlawful activities of co-conspirators, admits that he assisted in
the importation of an additional three kilograms of cocaine, a fact
not previously known to the government, this admission would not be
used to increase his applicable guideline range, except to the
extent provided in the agreement.”
6
United States v. Fulbright, 804 F.2d 847, 852 (5th Cir.
1986).
7
United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996).
See also United States v. Watson, 988 F.2d 544, 548 (5th Cir. 1993)
(defendant bore the burden of proving that the government breached
a plea agreement by a preponderance of the evidence).
8
See Fulbright at 852.
3
immunity agreement.
A sentencing court is justified in relying on information
provided in a presentence report that has an adequate evidentiary
basis.9 After conducting an extensive, three-session sentencing
hearing, the district court concluded that “the presentence report
had a valid evidentiary basis that was not connected to information
that was provided by defendant Baez in any immunized debriefings.”
The presentence report concluded that Baez had purchased one ounce
of cocaine from his codefendant, Raumondo Dominguez, had stored
another two ounces for Dominguez, and had been present in his own
home when Dominguez weighed seven more ounces. These amounts
totaled 10 ounces, or 283 grams of cocaine. The report further
stated that Baez should be held accountable for 329 grams that had
been seized from Dominguez upon the latter’s return from a cocaine-
purchasing trip to Florida. According to the report, wiretap
information revealed that Baez had been aware that Dominguez and
other codefendants were traveling to Florida to purchase cocaine,
and that Baez had agreed to furnish traveling expenses.10 The total
9
United States v. Tedder, 81 F.3d 549, 551 (5th Cir. 1996).
See also United States v. Valencia, 44 F.3d 269, 274 (5th Cir.
1995) (a presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the district court in
resolving disputed facts).
10
Drug conspirators are accountable not only for the
quantities of drugs they actually possessed, but also for the
quantities foreseeably possessed by their coconspirators in
furtherance of the conspiracy. United States v. Bermea, 30 F.3d
1539, 1575 (5th Cir. 1994).
4
quantity of cocaine that the presentence report attributed to Baez
was approximately 612 grams, resulting in a base offense level of
26.11
It is clear to us that the presentence report had a sound
evidentiary basis that was independent of the information Baez
furnished to the government under the immunity agreement. In the
factual basis for his plea, Baez admitted that he had purchased
cocaine from, and stored cocaine for, Dominguez. He also admitted
that his wiretapped conversations with Dominguez showed a pattern
of dealing in cocaine. In addition, a search of Baez’s residence
uncovered a white powder residue, as well as three scales of the
type used for measuring distribution quantities of cocaine.
Finally, we note that while some of the evidence used to determine
Baez’s culpability was obtained directly from Dominguez,12 Baez has
not made the requisite showing that Dominguez would not have
furnished the inculpatory information but for Baez’s immunized
testimony.13 Accordingly, we affirm the district court’s findings
11
Section 2D1.1 of the Guidelines establishes base offense
levels according to the quantity of drugs attributable to a
defendant. Baez’s offense level was ultimately lowered to 19,
which corresponded with a guideline range of 30-37 months’
imprisonment.
12
A probation officer interviewed Dominguez after Baez’s
debriefing. Dominguez told a probation officer that he had weighed
seven to nine ounces of cocaine in Baez’s residence, and that Baez
knew that he was traveling to Florida to purchase cocaine.
13
See United States v. Gibson, 48 F.3d 876, 878-79 (5th Cir.
1995).
5
that the government did not breach the immunity agreement, and that
Baez’s sentence rests on a sufficient evidentiary basis. We have
carefully reviewed Baez’s remaining claims, and find no reversible
error.
AFFIRMED. All pending motions are hereby DENIED.
6