United States Court of Appeals
For the First Circuit
No. 03-1680
UNITED STATES OF AMERICA,
Appellee,
v.
ALONSO TAVAREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Baldock, Senior Circuit Judge,*
Lipez, Circuit Judge.
Patrick M. Hamilton, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP
was on brief, for appellant.
May 23, 2005
*
Of the Tenth Circuit, sitting by designation.
LYNCH, Circuit Judge. On appeal from his guilty plea and
sentence, Alonso Tavarez raises two arguments: (1) that his guilty
plea violated Rule 11 of the Federal Rules of Criminal Procedure as
it was not knowing and intelligent and (2) that his sentence should
be vacated and remanded for resentencing in light of United States
v. Booker, 125 S. Ct. 738 (2005), when he did not preserve a claim
of error below. We reject both arguments and affirm Tavarez'
conviction and sentence.
On September 20, 2000, a grand jury returned an
indictment against Tavarez. Count One charged him with conspiracy
to possess with intent to distribute and to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. § 846. Count
Nineteen charged him with possession with intent to distribute and
distribution of at least five kilograms of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A)(ii)(II). Tavarez pled
guilty to both of these counts on October 30, 2002. On March 17,
2003, the district court sentenced the defendant to 70 months'
imprisonment followed by three years of supervised release.
Although the crime to which the defendant pled guilty carries a
mandatory minimum sentence of ten years, see 21 U.S.C. §
841(b)(1)(A), the defendant's sentence was significantly reduced
due to the application of the safety valve, 28 U.S.C. § 3553(f),
and the defendant's acceptance of responsibility.
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We reject Tavarez' first argument that his guilty plea
was taken in violation of Fed. R. Crim. P. 11 because it was not
"knowing and intelligent" as it was based on an understanding of a
sentencing scheme rendered erroneous by United States v. Booker,
125 S. Ct. 738 (2005). The defendant conceded at oral argument
that this court's opinion in United States v. Sahlin, 399 F.3d 27
(1st Cir. 2005), resolves this issue against the defendant. See
Sahlin, 399 F.3d at 31.
We also reject Tavarez' second argument that his case
should be remanded for resentencing because the district court
sentenced him under the mandatory Guidelines regime. As the
defendant did not preserve this error below, his claim is reviewed
for plain error. See United States v. Antonakopoulos, 399 F.3d 68
(1st Cir. 2005). Tavarez must show a "reasonable probability" that
the district court would have imposed a lower sentence if the
Guidelines were advisory. Id. at 75; see United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). While we are not
"overly demanding as to proof of probability," in this case, the
defendant has offered us no "reasonable indication that the
district judge might well have reached a different result under
advisory guidelines." Heldeman, 402 F.3d at 224. The factors to
which Tavarez points -- for example, his status as a deportable
felon, his psychiatric history, and his recognition of the
consequences of his crime on family members -- do not convince us
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that the district court would have imposed a sentence below the
sentence he has already received.
Accordingly, his conviction and sentence are affirmed.
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