January 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2014
UNITED STATES,
Appellee,
v.
DANIEL CRUZ-TORRES, a/k/a EL GAGO,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Watson,* Senior Judge.
Lydia Lizarr bar-Masini, by Appointment of the Court, for
appellant.
Julie J. Shemitz, Attorney, Criminal Division, Narcotic and
Dangerous Drug Section, U.S. Department of Justice, with whom
Jo Ann Harris, Assistant Attorney General, Theresa M.B. Van
Vliet, Chief, Criminal Division, Narcotic and Dangerous Drug
Section, U.S. Department of Justice, Guillermo Gil, Acting United
States Attorney, and Lena Watkins, Attorney, Criminal Division,
Narcotic and Dangerous Drug Section, U.S. Department of Justice,
were on brief for appellee.
* Of the United States Court of International Trade, sitting by
designation.
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WATSON, Senior Judge. This is an appeal from a
WATSON, Senior Judge.
sentence imposed in the U.S. District Court for the District of
Puerto Rico. Appellant was sentenced to imprisonment for ten
years, after pleading guilty to conspiring to possess cocaine and
marijuana with intent to distribute them, in violation of 21
U.S.C. 846. Between the early part of 1987 and the middle of
1989, he participated in a conspiracy to import cocaine and
marijuana by helping to unload drugs from boats onto the shores
of Puerto Rico. In the plea agreement it was stipulated that
appellant was responsible for the importation of approximately
10,000 pounds of marijuana and 100 kilograms of cocaine.
The ten-year sentence represented the trial judge's
adjustment of the sentence from a potential 135 to 168 months,
downward to the mandatory minimum of 120 months for the
mitigating circumstance of appellant's condition of paranoid
schizophrenia.
Appellant claims that the trial judge erred in failing
to take into account in the sentencing defendant's diminished
capacity to foresee the amount of drugs that were involved in the
conspiracy to which he belonged. This claim has no merit. In a
challenge to the court's factfinding the sentence is reviewed for
clear error. United States v. Thompson, 32 F.3d 1, 4 (1st Cir.
1994).
The amount of drugs attributable to appellant was
settled for all purposes by the plea agreement pursuant to which
he pleaded guilty to Count One of the indictment. That plea has
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not been challenged, nor is there the slightest indication that
it was defective. The record shows that the trial judge took
great care to ascertain that the guilty plea was being made
competently, knowingly and voluntarily. At that time, appellant
acknowledged that, although he did not know if it was cocaine or
marijuana, he had unloaded packages of drugs from boats. He
acknowledged that he had read and discussed the indictment with
his attorney. He entered into a written plea agreement
specifying that he was responsible for the importation and
distribution of approximately 10,000 pounds of marijuana and 100
kilograms of cocaine, so it is clear that the amount of drugs
involved was fully understood.
Appellant has a long history of mental illness. He
was discharged from the army in 1973, after serving in Vietnam,
with a diagnosis of paranoid schizophrenia. He was given a 100%
service-connected disability. It took eight months of court-
supervised hospitalization and treatment for appellant to become
competent to proceed to trial and, after the plea, the sentencing
was delayed for another hospitalization.
Nevertheless, the sentencing judge was under no
obligation at the time of sentencing to reopen the subject of the
amount of drugs that plaintiff could reasonably have foreseen. A
proper reliance on the guilty plea distinguishes this case from
those in which the district court failed to make a sufficient
finding of foreseeability. See, United States v. Valencia-
Lucena, 988 F.2d 228, 233-235 (1st Cir. 1993). It is obvious
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that when a guilty plea resolves the question of what was
foreseeable to a defendant it would be unreasonable to require a
sentencing judge to make a new determination of foreseeability at
the time of sentencing. In this case his reliance on the plea
agreement and the information contained in the presentence report
was more than sufficient to satisfy the requirement in 18 U.S.C.
3553(c) (Supp. 1992) that "[t]he court at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence . . . ."
In any event, the sentencing judge departed from the
Sentencing Guidelines pursuant to 5K2.13 and, in circumstances
that ordinarily would have required a minimum sentence of 135
months, lowered the term of imprisonment to 120 months. That is
the mandatory minimum term of imprisonment for the crime to which
appellant pleaded guilty. Without undoing the guilty plea,
appellant could not hope for a better result. Affirmed.
Affirmed
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