United States Court of Appeals
For the First Circuit
No. 03-2436
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE DE LOS SANTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
David Abraham Silverman for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, was on brief, for appellee.
August 24, 2005
LIPEZ, Circuit Judge. Primarily relying on arguments
relating to the safety valve requirements of the law and the
Sentencing Guidelines, defendant-appellant Jorge De Los Santos
seeks a remand for resentencing in light of Blakely v. Washington,
542 U.S. 296 (2004), and United States v. Booker, __ U.S. __, 125
S. Ct. 738 (2005). We affirm De Los Santos's sentence.1
I. Background
On May 27, 2003, De Los Santos pled guilty to one count
of conspiracy to possess, with intent to distribute, 900 grams of
a substance containing heroin, an offense that carries a mandatory
minimum sentence of 60 months of imprisonment. See 21 U.S.C.
§§ 841, 846. The relevant facts are brief and undisputed:
beginning no later than December 2000, while based in the U.S.
Virgin Islands, De Los Santos participated in a conspiracy to
import and distribute heroin in Puerto Rico and the continental
United States by supplying heroin to co-conspirators in exchange
for cash. In a plea agreement, De Los Santos stipulated that the
drug quantity involved in the offense was 900 grams of heroin,
corresponding to a base offense level of 30 under the U.S.
Sentencing Guidelines. U.S.S.G. § 2D1.1. The parties jointly
1
De Los Santos's appeal was originally consolidated with that
of a co-defendant. Because the issues raised in the two appeals
are unrelated, we have chosen to issue separate decisions. See
United States v. Barnes, 244 F.3d 172, 175 n.2 (1st Cir. 2001). We
issue both decisions today. See United States v. Delgado-
Hernandez, No. 03-2245 (1st Cir. Aug. 24, 2005).
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agreed to recommend that De Los Santos receive a three-level
decrease if he accepted responsibility pursuant to U.S.S.G.
§ 3E1.1, no adjustment based on his role in the offense pursuant to
U.S.S.G. §§ 3B1.1 and 3B1.2, and a two-level decrease pursuant to
U.S.S.G. § 2D1.1(b)(6) if he complied with each of the five "safety
valve" requirements set forth in 18 U.S.C. § 3553(f)(1)-(5) and
U.S.S.G. § 5C1.2(a)(1)-(5).2 Under the agreement, De Los Santos's
2
U.S.S.G. § 2D1.1(b)(6) was renumbered as § 2D1.1(b)(7) in
2004. That Guideline provides for a two-level decrease in offense
level for covered offenses "[i]f the defendant meets the criteria
set forth" in U.S.S.G. § 5C1.2(a)(1)-(5):
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines before application
of subsection (b) of § 4A1.3 (Departures Based
on Inadequacy of Criminal History Category);
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense, as determined under the
sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in
21 U.S.C. § 848; and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
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lowest possible total offense level was 25, which corresponds to a
Guidelines sentencing range ("GSR") of 57-71 months of imprisonment
for a defendant in Criminal History Category I. Finally, upon the
court's acceptance of the plea agreement "and the calculations of
defendant's Adjusted Offense Level contained [t]herein," the
parties jointly agreed to "recommend a sentence of sixty months
(60) imprisonment" -- the statutory minimum -- "or the nearest term
of imprisonment available under the Sentencing Guidelines."
At his sentencing hearing on September 12, 2003, De Los
Santos confirmed that he declined to be debriefed in order to
pursue a safety valve sentence reduction. The district court then
imposed a three-level decrease from a base offense level of 30 for
acceptance of responsibility and sentenced De Los Santos to 70
months of imprisonment, at the bottom of the applicable GSR of 70-
87 months for a defendant in Criminal History Category I with a
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement.
These criteria are identical to the safety valve criteria set forth
in 18 U.S.C. § 3553(f)(1)-(5). See United States v. Bermúdez, 407
F.3d 536, 541 (1st Cir. 2005) ("The Sentencing Commission
incorporated the text of § 3553(f) verbatim into the Guidelines.").
Pursuant to U.S.S.G. § 5C1.2(a) (with an exception not applicable
here), "the court shall impose a sentence in accordance with the
applicable guidelines without regard to any statutory minimum
sentence, if the court finds that the defendant meets" the five
criteria. See also 18 U.S.C. § 3553(f).
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total offense level of 27. The court also imposed a four-year term
of supervised release and a special monetary assessment of $100.
De Los Santos timely appealed his sentence.
II. Blakely and Booker Claims
Briefing in this case was completed prior to the Supreme
Court's decision in United States v. Booker, __ U.S. __, 125 S. Ct.
738 (2005). In his opening brief, De Los Santos sought
resentencing under Blakely v. Washington, 542 U.S. 296 (2004), on
the ground that the Sixth Amendment requires the facts determining
compliance with the safety valve requirements of 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2(a) to be found by a jury (beyond a
reasonable doubt) rather than by a judge (by a preponderance of the
evidence). Because he did not understand that requirement when he
decided, prior to Blakely, not to participate in the safety valve
regimen, De Los Santos argues that he would have made a different
decision if he had known that his entitlement to a sentence
reduction would have to be found by a jury by a reasonable doubt.
This claim is a non-starter. A change in the law does not warrant
vacating a sentence so that the defendant may reconsider his
initial decision not to pursue a safety valve reduction, just as a
change in the law does not warrant vacating a guilty plea so that
the defendant may choose to face trial instead. See United States
v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) ("[T]he possibility of
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a favorable change in the law occurring after a plea is one of the
normal risks that accompany a guilty plea.").3
In Booker, the Supreme Court clarified that Blakely
applies to the federal sentencing Guidelines, holding that the
Sixth Amendment requires "[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict [to] be admitted by the defendant or proved to a
jury beyond a reasonable doubt." 125 S. Ct. at 756. In its
remedial opinion, however, the Court eliminated any Sixth Amendment
concerns under the Guidelines by severing the provision of the
Sentencing Reform Act which made the Guidelines mandatory. Id. at
764.4 After oral argument, we invited the parties to submit
supplemental briefs addressing the effect of Booker and our circuit
precedent on De Los Santos's claim of sentencing error.
Because De Los Santos failed to challenge the
constitutionality of the Guidelines before the district court, his
3
Even if De Los Santos had chosen to be debriefed for the
safety valve, the fact that his entitlement to a sentence
reduction, as distinct from a sentence enhancement, may have
depended on judicial factfinding would not have offended Blakely or
the Sixth Amendment. See Bermúdez, 407 F.3d at 545 (possibility
that "judicial factfinding prevented [defendant] from getting a
potentially lower sentence than what he might have gotten absent
that judicial factfinding . . . . does not implicate Blakely"
(emphasis added)).
4
The Court also severed 18 U.S.C. § 3742(e), which authorized
appellate courts to engage in de novo review of certain sentencing
issues.
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claim of Booker error is unpreserved and subject only to plain
error review on appeal. United States v. Antonakopoulos, 399 F.3d
68, 76 (1st Cir. 2005). Under plain-error doctrine, we may notice
and correct (1) error (2) that is plain, (3) that affected a
defendant's substantial rights, and (4) that "'seriously affect[ed]
the fairness, integrity or public reputation of judicial
proceedings.'" Id. at 77 (quoting United States v. Olano, 507 U.S.
725, 736 (1993)).
As we explained in Antonakopoulos, the relevant inquiry
under Booker is not whether the Sixth Amendment precludes judicial
factfinding by a preponderance of the evidence for purposes of
imposing a mandatory sentence enhancement "beyond [the sentence]
authorized by a jury verdict or an admission by the defendant."
Id. at 75. Rather, "[t]he Booker error is that the defendant's
Guidelines sentence was imposed under a mandatory system." Id.
Because De Los Santos's sentence was imposed under a mandatory
Guidelines regime, prongs one and two of the plain error analysis
are satisfied. Id. De Los Santos fails, however, to meet his
burden of persuasion on the "prejudice" prong, which requires him
to "point to circumstances creating a reasonable probability that
the district court would impose a different sentence more favorable
to the defendant under the new 'advisory Guidelines' Booker
regime." Id.
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De Los Santos argues that factors relating to his
decision not to participate in the safety valve regimen, as well as
other mitigating factors in the record, establish a reasonable
probability of a lower sentence under an advisory Guidelines system
on remand. First, he asserts that he declined to be debriefed by
the government only because he "did not want to squeal on anyone"
and because he "fear[ed] for the safety of himself and his family."
See 18 U.S.C. § 3553(f)(5) (conditioning satisfaction of the safety
valve requirements on defendant's "truthful[] provi[sion] to the
Government [of] all information and evidence [he had] concerning
the offense or offenses that were part of the same course of
conduct or of a common scheme or plan"); U.S.S.G. § 5C1.2(a)(5)
(same). We have no reason to doubt that De Los Santos had weighty
reasons for deciding not to seek a safety valve reduction. We fail
to see, however, why the district court would consider De Los
Santos's rationale for forgoing an opportunity for a lower sentence
to be a mitigating factor in support of a lower sentence.
De Los Santos next points to evidence contained in his
pre-sentence investigation report showing that he experienced a
difficult childhood, has a history of alcohol abuse, and is
deportable as a consequence of his drug-trafficking conviction, as
factors supporting a remand for resentencing under Booker. We note
that the district court, while not bound by the parties' joint
recommendation of either the 60-month statutory mandatory minimum
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sentence or "the nearest term of imprisonment available under the
Sentencing Guidelines," did sentence De Los Santos to the lowest
available sentence in the applicable GSR of 70-87 months of
imprisonment, evidencing at least some willingness to be lenient.
While "[w]e are inclined not to be overly demanding as to
proof of probability where, either in the existing record or by
plausible proffer, there is reasonable indication that the district
judge might well have reached a different result under advisory
guidelines," United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005), we are unable to discern any such indication based on the
combination of mitigating factors identified here. See United
States v. Tavarez, 410 F.3d 1, 2 (1st Cir. 2005) (defendant seeking
Booker remand could not show prejudice under plain error review by
pointing to his "status as a deportable felon, his psychiatric
history, and his recognition of the consequences of his crime on
family members"). Having failed to demonstrate a reasonable
probability of a lower sentence under advisory guidelines, De Los
Santos's Booker claim must fail.5
5
Because De Los Santos declined to be debriefed in order to
seek a safety valve reduction, the district court had no occasion
to apply either U.S.S.G. § 2D1.1(b)(6) (now § 2D1.1(b)(7)) or its
statutory counterpart, 18 U.S.C. § 3553(f). This case therefore
does not require us to decide whether a court applying the safety
valve pursuant to 18 U.S.C. § 3553(f), which provides that "the
court shall impose a sentence pursuant to" the Guidelines (emphasis
added) "without regard to any statutory minimum sentence" if the
five criteria are met, must nevertheless treat the Guidelines as
advisory under Booker. See United States v. Serrano-Beauvaix, 400
F.3d 50, 56 (1st Cir. 2005) ("The effect of Booker, if any, on the
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III. Drug Testing Condition of Supervised Release
At the sentencing hearing, the district court ordered De
Los Santos to observe "the standard conditions of supervised
release recommended by the United States Sentencing Commission and
adopted by this Court." In its written judgment, the court
specified that, as one of those conditions, "[t]he defendant shall
submit to one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter" (emphasis added).
De Los Santos argues that the written drug testing
provision could be construed as "vest[ing] the probation officer
with the discretion to order an unlimited number of drug tests" in
violation of 18 U.S.C. § 3583(d), which requires the determination
of the maximum number of tests to be made by the court. See United
States v. Melendez-Santana, 353 F.3d 93, 103 (1st Cir. 2003),
overruled on other grounds by United States v. Padilla, No. 03-
1918, 2005 U.S. App. LEXIS 15153 (1st Cir. July 25, 2005) (en banc)
(declining to revisit settled law that district court's delegation
of the discretion to determine the maximum number of drug tests to
a probation officer is legal error, but holding that such error
safety valve has not been determined."), petitions for cert. filed,
___ U.S.L.W. ___ (U.S. May 27, 2005) (No. 04-10405), and ___
U.S.L.W. ___ (U.S. June 2, 2005) (No. 04-10489); cf. United States
v. Duran, 2005 U.S. Dist. LEXIS 1287, at *13 (D. Utah Feb. 17,
2005) (concluding that the Guidelines are advisory for purposes of
safety valve sentences and noting that the government "agrees that
an interpretation of the safety valve 'that treats the [G]uidelines
as mandatory cannot be reconciled with Booker.'").
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does not warrant an automatic remand for resentencing if
forfeited).6
De Los Santos also argues that the written judgment could
potentially be construed as being in material conflict with his
oral sentence in violation of his right to be present during the
imposition of any "potentially significant new burden," id. at 100
-- here, the burden of "a written drug testing condition, not
announced at the sentencing hearing, which orders more drug tests
than the minimum three required by the statute," United States v.
Tulloch, 380 F.3d 8, 13 (1st Cir. 2004) (emphasis omitted). See
id. (declining to decide whether imposition of such a condition in
a written judgment but not at the sentencing hearing would violate
defendant's right to be present). In order to avoid these
possibilities, De Los Santos seeks judicial amendment of the
written drug testing provision and/or a limited remand for the
purpose of resentencing on the drug testing condition of supervised
release.
In United States v. Lewandowski, 372 F.3d 470 (1st Cir.
2004) (per curiam), we confronted a drug testing provision
identical to that imposed in the written judgment in this case.
6
18 U.S.C. § 3583(d) provides, in relevant part, that "[t]he
court shall . . . order, as an explicit condition of supervised
release, that the defendant refrain from any unlawful use of a
controlled substance and submit to a drug test within 15 days of
release on supervised release and at least 2 periodic drug tests
thereafter (as determined by the court) for use of a controlled
substance" (emphasis added).
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Although the provision contained no express delegation of authority
to a probation officer, we "construe[d] the condition to cap the
number of drug tests at three, i.e., to state both the maximum and
minimum number of tests. In effect, we read the words 'at least'
out of the condition as imposed, so that it requires only three
drug tests during the supervised release term." Id. at 471. We
further stated that "probation officers who monitor supervisees
subject to the drug testing condition we consider here may not
require more than the minimum three tests without obtaining a
modification of the condition under 18 U.S.C. § 3583(e)." Id. We
apply the same construction to the written drug testing provision
here.
As De Los Santos acknowledges, this construction of the
drug testing provision eliminates the possibility that it could be
interpreted as imposing a condition of supervised release
materially different from that of which he had constructive notice
during oral sentencing. See Tulloch, 380 F.3d at 13 (defendant had
constructive notice of burden imposed by drug testing condition
that is "consistent with the burden mandated by § 3583(d)").
Accordingly, as construed herein, and in all other
respects, De Los Santos's sentence is affirmed.
So ordered.
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