March 4, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1972
UNITED STATES,
Appellee,
v.
JOSE QUEZADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Boudin and Stahl, Circuit Judges.
Damon M. D'Ambrosio on brief for appellant.
Edwin J. Gale, United States Attorney, and Zechariah Chafee,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Jose Quezada appeals from his
conviction and sentence. He was indicted on one count of
possessing heroin with intent to distribute. He moved to
suppress evidence seized from his home, on the grounds that
the warrant authorizing the search was not supported by
probable cause. After a hearing, the district court denied
the motion. Quezada pled guilty and the district court
sentenced him to 27 months in prison. In estimating the
quantity of heroin for sentencing purposes, the district
court relied, in part, on
$2,321 in cash found during the search of his apartment. He
appeals his sentence and the denial of his suppression
motion.
Background
The presentence report ("PSR") contained the
following summary of the facts underlying this case. An
informant (known to the Johnston Police Department) told
detectives of the Providence Police Department that a man,
whom the informant identified from a photograph as Quezada,
would be arriving on October, 14, 1992 at 9:00 p.m. at a
certain location in a burgundy van containing heroin for
sale. The detectives set up watch at the specified location
and at 9:00 appellant arrived in a burgundy van. Approaching
the van, the detectives saw Quezada throw a gray box,
commonly used to store heroin, into the back of the van. The
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detectives arrested Quezada and seized the box, containing
500 glassine envelopes of heroin, and $206 in cash found in
Quezada's pocket.
Later that night, the detectives executed a search
warrant at Quezada's home. They seized 781 glassine packets
of heroin and the following articles commonly used in the
packaging of heroin: a coffee grinder, boxes of empty
glassine packets (some stamped "shoot to kill"), elastic
bands, an ink pad and a "shoot to kill" stamp. They also
seized a pager and $ 2,321 in cash. After being informed of
his Miranda rights, Quezada signed a statement admitting that
the drugs seized from the van and his apartment belonged to
him. A subsequent laboratory analysis concluded that the
weight of the total amount of heroin seized was between 15.26
grams and 18.22 grams.
In November, 1992, Quezada was indicted on one
count of possession with intent to distribute heroin in
violation of 21 U.S.C. 841(a)(1). In December, 1992, he
filed a motion to suppress the drugs seized by the police.
Following an evidentiary hearing, the district court denied
the motion. On June 15, 1993, appellant pled guilty.
For purposes of calculating the base offense level
("BOL"),the probation officer who prepared the PSR converted
the cash seized from Quezada's pocket and his apartment
($2,527) into an equivalent amount of heroin (14.17 grams).
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He relied upon information from the Drug Enforcement
Administration that an ounce of heroin was then selling for
$5,000. He then added the 14.7 grams to the amounts of
heroin seized to arrive at a total weight of 29.43 to 32.39
grams. That amount of heroin yielded a BOL of 18 under
U.S.S.G. 2D1.1 (c) (13). 1 The district court adopted the
BOL of 18 and then applied a three-point reduction for
Quezada's acceptance of responsibility. The PSR included a
statement by Quezada admitting that he had committed the
offenses charged and acknowledging that "the drugs the police
found [at my house] were to sell." The total offense level
of 15 and Quezada's criminal history category of 2 yielded an
imprisonment range of 21 to 27 months.
On August 17, 1993, the district court sentenced
appellant to 27 months in prison and five years of supervised
release. As a condition of supervised release, the district
court ordered appellant, at the completion of his term of
imprisonment, to be surrendered to an immigration official
for deportation.
Discussion
Quezada makes three arguments on appeal. First, he
argues that the district court erred in denying his motion to
suppress. Second, he challenges his sentence as based upon
1. The Sentencing Guidelines applied were those in effect
on the date appellant was sentenced.
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illegally-seized evidence. Finally, Quezada contends that it
was error for the district court to convert cash into an
equivalent amount of heroin for purposes of calculating his
sentence. We reject all three arguments.
In pleading guilty, Quezada did not reserve the
right to appeal from the denial of his motion to suppress.
See Fed. R. Crim. P. 11(a)(2) (allowing conditional pleas to
be entered, with the consent of the government and the
approval of the court, by defendant's reserving in writing
the right to appeal a pre-trial motion). "It is clear that a
plea of guilty to an indictment is an admission of guilt and
a waiver of all non-jurisdictional defenses." Acevedo-Ramos
v. United States, 961 F.2d 305, 308 (1st Cir.) (holding that
by pleading guilty, defendant waived statute of limitations
defense), cert. denied, U.S. , 113 S.Ct. 299 (1992).
Therefore, Quezada's guilty plea forecloses from review the
denial of his motion to suppress.
Quezada's guilty plea also bars his Fourth
Amendment challenge to his sentence. The Supreme Court has
explained the effect of a guilty plea as follows:
[A] guilty plea represents a break in the
chain of events which has preceded it in
the criminal process. When a criminal
defendant has solemnly admitted in open
court that he is in fact guilty of the
offense with which he is charged, he may
not thereafter raise independent claims
relating to the deprivation of
constitutional rights that occurred prior
to the entry of the guilty plea.
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Tollett v. Henderson, 411 U.S. 258, 267 (1973). By pleading
guilty, appellant waived the right to assert his Fourth
Amendment claim for the purpose of attacking his sentence.
See United States v. Smallwood, 920 F.2d 1231, 1240 (5th
Cir.) (holding that, following the district court's denial of
appellant's motion to suppress and appellant's subsequent
guilty plea, appellant "cannot resuscitate fourth amendment
concerns solely to challenge the consideration of evidence at
sentencing."), cert. denied, U.S. , 111 S.Ct. 2870
(1991).
Quezada contests on appeal, as he did at his
sentencing hearing, the government's conversion of the cash
found in his apartment into an equivalent amount of heroin
for purposes of calculating appellant's BOL. He argues that
there was insufficient evidence that the cash belonged to
him, given that he shared the apartment with others and the
PSI failed to indicate where in the apartment the cash was
found. Appellant also contends that there was insufficient
proof to support the probation officer's assertion that the
cash was "the direct result of previous narcotics
trafficking." He cites his employment at an auto body shop
at the time of the search in support of his argument that
there were other plausible sources of the cash.
For the first time on appeal, Quezada contests the
conversion ratio used by the probation officer and adopted by
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the district court (one ounce of heroin equals $5,000).
Having failed to object below to the conversion ratio used in
the PSR, however, Quezada is barred from raising this issue
for the first time on appeal. United States v. Jackson, 3
F.2d 506, 511 (1st Cir. 1993).
"Pursuant to U.S.S.G. 1B1.3(a)(2), a defendant is
responsible for all acts which 'were part of the same course
of conduct or common scheme or plan as the offenses
charged.'" United States v. Figueroa, 976 F.2d 1446, 1461
(1st Cir. 1992), cert. denied, U.S. , 113 S.Ct. 1346
(1993). In United States v. Gerante, 891 F.2d 364, 369 (1st
Cir. 1989), we held that Application Note 2 of the Commentary
to U.S.S.G. 2D1.4 authorizes a district court to convert
cash into a drug amount for the purpose of calculating a base
offense level, provided that the cash "represents drug
transactions that are part of the same course of conduct as
the instant offense." United States v. Jackson, 3 F.2d at 510
(citing Gerante, 891 F.2d at 369).
A finding by the district court that cash
represents drug transactions that are part of the same course
of conduct as the charged offense must be supported by a
preponderance of the evidence. United States v. Jackson, 3
F.3d at 510. At the sentencing hearing, appellant
challenged, as unsupported by a preponderance of the
evidence, the PSI's assertion that the cash seized from his
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apartment "was the direct result of narcotics trafficking"
and, therefore, "relevant conduct" for the purposes of
determining the BOL.
As required by Fed. R. Crim. P. 32(c)(3)(D), the
district court made a finding as to the alleged inaccuracy
contained in the PSI. The district court found as follows:
[the seizure of heroin and numerous
articles used in the packaging of heroin
and the defendant's admission that the
drugs found were his and that they were
there to sell] certainly indicates that
this defendant was heavily involved in
the heroin trafficking business and I
join hands with the Probation Officer in
the statement that he made that he stands
firm in his belief that the $2,527 seized
from the defendant's person and his own
apartment are the proceeds of previous
heroin trafficking, and, therefore, it's
considered relevant conduct for the
purpose of determining the guideline
range.
The district court also stated that, with respect to the
source of the cash and its connection to Quezada, "I do not
attach much significance to the defendant's argument."
These findings of fact by the district court are
reviewable only for clear error. See United States v.
Jackson, 3 F.2d at 510; United States v. Gerante, 891 F.2d at
368. We cannot say that the sentencing judge committed clear
error in concluding that the government met its burden of
proving by a preponderance of the evidence that the cash
seized represented proceeds of previous heroin trafficking.
See United States v. Sepulveda, Nos. 92-1362, et al., slip
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op. at 81 (1st Cir. Dec. 20, 1993) (holding that "the
government presented abundant evidence of Johnson's narcotics
trafficking, . . . , and the volume of business transacted
justified the court's illation that the sums seized were
connected to her drug dealings.").
Quezada argued at his sentencing hearing that the
evidence suggested that there were others living at his
apartment, including a woman, children and someone named
Rodriguez. Quezada did not produce any such person as a
witness at the hearing, however, to testify that the money
was theirs. Nor did appellant offer any evidence to support
his contention that he was employed at an auto body shop at
the time of his arrest. The probation officer was unable to
verify the alleged employment. Appellant did not provide any
proof of employment, (such as paycheck stubs) and relied
solely on a statement by his wife that he had been so
employed. Moreover, the district court would have been
justified in concluding that legitimate employment would not
necessarily explain the presence of large amounts of cash in
Quezada's apartment. As in United States v. Jackson, 3 F.2d
at 511, the sentencing court here "rejected the various
alternative sources of the currency and determined that the
funds were drug proceeds." It did not commit clear error in
making that determination.
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The conviction and sentence are affirmed pursuant
to Loc. R. 27.1.
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