United States Court of Appeals
For the First Circuit
No. 03-1390
UNITED STATES OF AMERICA,
Appellee,
v.
AMAURY GONZÁLEZ,
Defendant, Appellant.
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No. 03-1826
UNITED STATES OF AMERICA,
Appellee,
v.
JULIAN MARTÍNEZ
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
John F. Cicilline on brief for appellant Amaury González.
Amaury González on supplemental brief pro se.
John M. Cicilline on brief for appellant Julian Martínez.
Craig N. Moore, Acting United States Attorney, Donald C.
Lockhart, Assistant United States Attorney, and Adi Goldstein,
Assistant United States Attorney, on consolidated brief for
appellee.
March 30, 2004
Per Curiam. Defendants Amaury Gonzalez and Julian
Martinez were indicted, along with Lenaur Hidalgo, on drug offenses
involving cocaine distribution in Providence, Rhode Island. All
three eventually pled guilty in the district court to conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 846 (2000), as well
as multiple counts of substantive cocaine-related offenses.
Gonzalez and Martinez now appeal, each raising separate issues with
respect to the sentences imposed on them by the district court.
Gonzalez argues that the district court erred in finding
him a career offender under U.S.S.G. § 4B1.1 (2002), a finding that
had the effect of raising his base offense level from 26 to 34.
See § 4B1.1(b). § 4B1.1(a) says:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.
Gonzalez's argument centers on the third requirement for career
offender status: he claims that, although he did have two prior
felony convictions for crimes involving controlled substances, the
district court failed to treat those convictions as "related," and
so not counted separately, for purposes of applying the guideline.
U.S.S.G. § 4B1.2(c) says, in relevant part:
The term "two prior felony convictions" means
(1) the defendant committed the instant
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offense of conviction subsequent to sustaining
at least two felony convictions of either a
crime of violence or a controlled substance
offense . . . , and (2) the sentences for at
least two of the aforementioned felony
convictions are counted separately under the
provisions of §4A1.1(a), (b), or (c).
To determine whether sentences are counted separately under the
provisions of U.S.S.G. § 4A1.1(a), (b), or (c), it is necessary to
look to § 4A1.2(a)(2), which says: "Prior sentences imposed in
unrelated cases are to be counted separately. Prior sentences
imposed in related cases are to be treated as one sentence for
purposes of § 4A1.1(a), (b), and (c)." Section 4A1.2(a)(2) does
not set forth any criteria for determining whether prior sentences
are "related" or "unrelated," but the accompanying commentary says:
Related Cases. Prior sentences are not
considered related if they were for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). Otherwise, prior sentences are
considered related if they resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for
trial or sentencing.
U.S.S.G. § 4A1.2, cmt. n.3.
Gonzalez indisputably has two prior felony convictions
for controlled substances offenses, one in August of 1998 and one
in February of 1999. He also concedes that the two offenses "were
separated by an intervening arrest," which, according to the
commentary quoted above, would make the convictions unrelated
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under section 4A1.2. Gonzalez's only argument is that the
commentary should not be followed because it changes the meaning
of section 4A1.2, which does not itself define "related" or
"unrelated" sentences.
The commentary contained in the Sentencing Guidelines is
binding unless there is a conflict between the commentary and the
text of the particular guideline at issue. Stinson v. United
States, 508 U.S. 36, 42-47 (1993). Here, there is no conflict
between section 4A1.2, which contains no criteria for
distinguishing between "related" and "unrelated" sentences, and
the commentary, which clarifies the meaning of these otherwise
ambiguous terms. This conclusion accords with that of every
circuit to consider the issue.1 Since the intervening arrest
resolves the question, we have no cause to consider Gonzalez's
argument that his prior convictions are otherwise related.
Gonzalez also argues, in a supplemental pro se brief,
that the career offender provision of the guidelines is
unconstitutional because federal law cannot use state convictions
1
United States v. Duty, 302 F.3d 1240, 1241-42 (11th Cir.
2002); United States v. Peltier, 276 F.3d 1003, 1006-07 (8th Cir.
2002); United States v. Bradley, 218 F.3d 670, 672-74 (7th Cir.
2000); United States v. Huggins, 191 F.3d 532, 539 (4th Cir. 1999);
United States v. Boonphakdee, 40 F.3d 538, 543-44 (2d Cir. 1994);
United States v. Davis, 15 F.3d 526, 532-33 (6th Cir. 1994); United
States v. Gallegos-Gonzalez, 3 F.3d 325, 326-28 (9th Cir. 1993);
see United States v. Hallman, 23 F.3d 821, 824-25 (3d Cir. 1994)
(reaching the same conclusion for purposes of determining criminal
history score); United States v. Wilson, 41 F.3d 1403, 1404-05
(10th Cir. 1994) (same).
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for career offender classification purposes. Gonzalez contends
that to do so violates the presumption of innocence and principles
of federalism. Gonzalez concedes that he did not make this
argument before the district court, and therefore, our review is
for plain error only. United States v. Connolly, 341 F.3d 16, 31
(1st Cir. 2003).
There is no error, plain or otherwise, in the reliance
upon state convictions. "Once a defendant has been afforded a
fair trial and convicted of the offense for which he was charged,
the presumption of innocence disappears." Herrera v. Collins, 506
U.S. 390, 399 (1993). Nor do principles of federalism bar federal
reliance on a state conviction. Custis v. United States, 511 U.S.
485, 496-97 (1994) (prior state convictions may constitutionally
be used for sentence enhancement under the Armed Career Criminal
Act); see generally United States v. Hornick, 214 F. Supp. 2d 6,
9-10 (D. Me. 2002) (rejecting an argument identical to
Gonzalez's).
Martinez (the other defendant in this appeal) argues
that the district court erred in denying him a mitigating role
adjustment under U.S.S.G. § 3B1.2 (2002).
Role-in-the-offense determinations are almost
always factbound. With respect to downward
role-in-the-offense adjustments, the defendant
bears the burden of proof. United States v.
Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).
Appellate review is highly deferential: the
sentencing court's determination of a
defendant's role is reviewed only for clear
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error. Id. at 333. "Thus, absent a mistake
of law, battles over a defendant's status . .
. will almost always be won or lost in the
district court." United States v. Graciani,
61 F.3d 70, 75 (1st Cir. 1995).
United States v. Martinez-Vargas, 321 F.3d 245, 250 (1st Cir.
2003).
Section 3B1.2 authorizes a district court to reduce a
defendant's base offense level if it finds that the defendant was
a "minor participant" or a "minimal participant" in "any criminal
activity," with "minimal participant" status carrying the greater
reduction. "To obtain a reduction for minor participant status,
a defendant must prove that he is both less culpable than most
other persons involved in the offense of conviction and less
culpable than most other persons convicted of comparable crimes."
Martinez-Vargas, 321 F.3d at 250; see also United States v.
Molina-Marrero, 320 F.3d 64, 66 (1st Cir. 2003). Martinez has
failed to make such a showing.
The government's case against the three defendants
rested on nine undercover drug purchases. For each purchase, the
government's undercover agent would negotiate the deal over the
phone with either Gonzalez or Hidalgo. Then, either Gonzalez or
Hidalgo would be driven to meet the undercover agent at a
predetermined location. In all of the transactions, Gonzalez or
Hidalgo would exit the car they arrived in, enter the agent's car,
and then sell cocaine to the agent.
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In the first six transactions, the undercover agent was
unable to identify who drove Gonzalez or Hidalgo to the meeting;
but in each of the last three, the agent identified Martinez as
the driver. Martinez was also the driver for a proposed tenth
transaction, which was never completed because the defendants were
arrested before the deal could be completed. Martinez claims that
because his role in each of the transactions was limited to simply
driving Gonzalez or Hidalgo to and from the proposed meeting
place, he should be entitled to a mitigating role adjustment.
Even if Martinez's role were limited to that of driver,
that would not necessarily, without more, prove that he deserved
a role adjustment. See United States v. Gonzalez-Soberal, 109
F.3d 64, 73-74 (1st Cir. 1993). In any event, Martinez admitted
that he had weighed and packaged cocaine and that he had used
hidden compartments located in at least two different cars to
conceal and transport drugs and money. Martinez was paid $900 a
week for his services.
Based on these facts we cannot say that the district
court clearly erred in denying Martinez a mitigating role
adjustment for being a "minor" participant. Because to qualify
for "minimal" participant status requires a defendant to
demonstrate a level of culpability lower than that of a "minor"
participant, Martinez's alternative claim to "minimal" participant
status fails a fortiori.
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Affirmed.
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