[NOT FOR PUBLICATION]
No. 94-1331
UNITED STATES,
Appellee,
v.
MANUEL VITTINI,
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
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Damon M. D'Ambrosio on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Kenneth P. Madden, Assistant United States Attorneys, on brief for
appellee.
November 30, 1994
Per Curiam. Manuel Vittini pled guilty to one count of
possession with intent to distribute heroin, in violation of
21 U.S.C. 841(a)(1). The issue on appeal is whether the
district court had authority to reject the parties'
stipulation in the plea agreement that "[b]ecause one of the
quantities of heroin involved in this case is an estimated
quantity, the government agrees that a sentence should be
imposed upon a total quantity of thirty-nine grams of
heroin." We conclude that the court, indeed, has such
authority. See, e.g., United States v. Mason, 961 F.2d 1460
(9th Cir. 1992) (holding that the district court was not
bound by parties' stipulation as to amount of cocaine);
United States v. Garcia, 902 F.2d 324, 326-27 (5th Cir. 1990)
(same). Further, contrary to Vittini's assertion, it was not
clear error for the court to do so here.
According to the laboratory reports, the total amount of
heroin seized was 42.85 grams - 35.12 grams found in the
floor boards where Vittini was discovered secreting it, 2.49
grams found in nearby gym bags, and an estimated 5.24 grams
from 276 "street bags" of heroin, also found near Vittini.
The estimated 5.24 grams was based on a tested sampling of 13
of the 276 bags. That Vittini hoped that less than 40 grams
would inform the sentencing determination is obvious. There
is a two level difference in the base offense level depending
on whether at least 40 grams of heroin are involved (Level
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20) or less than 40 grams are involved (Level 18). After
computation of, and adjustment for, the other relevant
factors, none of which are in dispute here, the difference in
the resulting total offense level and sentencing range was
Level 17 with a range of 24-30 months and a Level 15 with a
range of 18-24 months. After informing Vittini that it would
not accept the 39 grams as an accurate calculation, the
district court offered Vittini the opportunity to withdraw
his guilty plea. Vittini declined. The district court
deemed Level 17 the correct level and sentenced Vittini to 30
months.
We reject Vittini's assertion that the district court
clearly erred in rejecting the stipulation in this case. Not
only was there no clear error; there was no error at all.
Vittini suggests that the court was bound to accept the
stipulated amount because, in Vittini's view, it was a
concession on the government's part as to the amount it could
prove. Notwithstanding the government's "concession," the
quantity of drugs is relevant to sentencing and the district
court has an independent duty to determine the facts relevant
to sentencing. The guidelines themselves state that "[t]he
court is not bound by the stipulation, but may with the aid
of the presentence report, determine the facts relevant to
sentencing." USSG 6B1.4(d),p.s. (Nov. 1993).
Even though stipulations are expected to
be accurate and complete, the court
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cannot rely exclusively upon stipulations
in ascertaining the factors relevant to
the determination of sentence. Rather,
in determining the factual basis for the
sentence, the court will consider the
stipulation, together with the results of
the presentence investigation, and any
other relevant information.
USSG 6B1.4, comment. (Nov. 1993). We also have previously
stated that "the law is clear that, where a non-binding plea
agreement is struck, the district court is constrained
neither by the United States Attorney's sentencing
recommendation, nor by stipulations of fact accompanying the
plea contract." United States v. Jimenez-Otero, 898 F.2d
813, 815 (1st Cir. 1990) (citations to the guidelines
omitted).1
In fulfilling its obligation to determine the facts
relevant to the sentencing, the district court was on solid
ground in relying on the laboratory report and the
presentence report (PSR). See United States v. Morillo, 8
F.3d 864, 871 (1st Cir. 1993) (opining that "[w]hen it is
impossible or impractical to obtain an exact drug quantity
for sentencing purposes, a reasoned estimate will suffice").
The difference between the laboratory analysis of 42.85 grams
and the stipulation of 39 grams was 3.85 grams. The PSR
opined, and the court agreed, that it was unlikely that the
1. Vittini concedes that the plea agreement was non-binding.
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laboratory would have erred by this much in its estimate of
the 5.24 gram amount.
Further, the PSR opined, and the court again agreed,
that it was reasonable to conclude that the $875 found on
Vittini was obtained through illegal drug sales and that,
converting the $875 to an estimated drug quantity, see United
States v. Gerante, 891 F.2d 364 (1st Cir. 1989), resulted in
an additional 2 to 3 grams of heroin. Vittini did not at
sentencing, and does not now, contest either the propriety of
this conversion or its resulting computation of amount.
Either one of these two amply supported grounds -
reasonable reliance on the laboratory report or conversion of
the money to an estimated quantity of drugs - sufficed to
raise the 39 gram stipulated amount of heroin past the 40
gram threshold. Finding no error, we affirm the conviction
and sentence. Loc. R. 27.1.
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