United States Court of Appeals
For the First Circuit
No. 08-1834
UNITED STATES OF AMERICA,
Appellee,
v.
JESUS PEREZ-CRUZ, a/k/a Indio,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
Hector L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, Patricia A.
Garrity, Assistant Federal Public Defender, and Vivianne M.
Marrero, Research and Writing Specialist, were on brief for
appellant.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief for appellee.
February 25, 2009
Per Curiam. On November 9, 1998, Jesus Perez-Cruz pled
guilty to conspiracy to distribute more than 5 kilograms of
cocaine, more than 5 kilograms of cocaine base, and more than 100
kilograms of marijuana, 21 U.S.C. §§ 841(a)(1), 846 (2006). He had
also been indicted for conducting a continuing criminal enterprise
involving drug trafficking which (given the quantities) pointed
toward a mandatory life sentence, id. § 848(b), but as part of the
plea arrangement the government dropped this count.
Perez-Cruz headed a substantial drug trafficking
enterprise at a public housing project in Rio Piedras, Puerto Rico,
which distributed cocaine, crack and marijuana. The gang used
violence to maintain its position, including murder. The pre-
sentence report initially assigned to Perez-Cruz specific
responsibility for two separate murders and Perez-Cruz conceded
involvement in at least one.
Under the applicable sentencing guidelines as described
in the pre-sentence report (seemingly the 1999 edition), the drug
quantity should not have mattered because the murder required a
base offense level of 43, U.S.S.G. § 2A1.1, which was adjusted by
the report (up 2 levels for leadership, id. § 3B1.1(c), and down 3
for acceptance of responsibility, id. § 3E1.1) and pointed to a
guideline range of 360 months to life. Id. Sentencing Table
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(1998).1 Given his plea to the indictment, a life sentence was the
permissible maximum.
However, by the plea agreement, the government agreed
that Perez-Cruz should be held responsible for far lower drug
quantities than were specified in the indictment. The lower
quantities in the agreement pointed to a base offense level of 38,
and an adjusted level of 39 (ignoring any murder but including
upward adjustments for leadership and firearms (see note 1), and a
downward adjustment for accepting responsibility). The government
also agreed that Perez-Cruz's criminal history should be Level II,
although the probation report calculated it as Level III.
With the adjustments agreed to by the government, the
resulting range was 292 to 365 months, and the plea agreement
recommended on behalf of both Perez-Cruz and the government a
sentence of 324 months. Neither the bargained-for calculations nor
the recommendations bound the district court; but, treating the
sentence as an agreed-to guideline departure--this was a pre-Booker
sentence--the district judge acquiesced and sentenced Perez-Cruz to
324 months.
1
In the plea agreement, Perez-Cruz stipulated to a further
upward adjustment of 2 levels based on the possession of firearms
in connection with the offense, U.S.S.G. § 2D1.1(b)(1). For
reasons that are not clear, the probation officer did not make this
adjustment in his own calculation; if it were applied, the
guideline sentence would have been life.
-3-
Nine years later, Perez-Cruz filed a pro se motion for
reduction of sentence based on guideline amendments adjusting
downward the crack cocaine guidelines.2 The Commission made the
amendments applicable to already final sentences, a step that
allows an inmate to request a re-computation of his sentence if it
was based on an offense level that has subsequently been adjusted
downward. Under the governing statute, 18 U.S.C. § 3582(c)(2)
(2006), the district judge is then free, although not obliged, to
re-compute the sentence on motion by the inmate.
The district court denied the motion in this instance,
stating that the motion relied on amendments 706 and 711, which by
their terms did not apply where (as here) the offense involved
multiple drug types rather than just crack cocaine alone. Perez-
Cruz, now counseled by the Federal Public Defender, appeals from
this decision. His brief argues that amendment 715, adopted after
Perez-Cruz's motion but while it was pending, applies the crack
reductions to cases involving multiple drugs.
The government's opposing brief in this court offers 20
pages of objections. They include the fact that the plea was a
negotiated one, that the plea agreement dropped an even more
2
Bowing to widespread criticism of the 100 to 1 crack to
cocaine ratio, the Commission modestly reduced the offense levels
prescribed for crack at various quantity levels, starting with two
amendments (706 and 711), promulgated November 1, 2007, and with a
later amendment (715), promulgated May 1, 2008, extending the
reduction to cases where multiple drug types were involved.
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serious count and made a joint recommendation well below what
Perez-Cruz would likely have faced if convicted even on the counts
to which he pled, that his plea agreement included an unqualified
waiver of any right to appeal the sentence (ignored by his opening
brief in this court) and that he never invoked amendment 715 below
and so forfeited the claim.
Putting to one side the other objections, the final one--
forfeiture--is self-evident; but a forfeiture can be disregarded
under plain error doctrine, assuming the necessary showings of
error, plainness, prejudice and a miscarriage of justice. United
States v. Olano, 507 U.S. 725 (1993). Perez-Cruz was un-counseled
in the district court and we might be disposed to ignore the
forfeiture--and reach the government's other objections--if any
real chance existed that the district court might lower the
sentence.
The government agrees that if one assumed as accurate the
drug quantities stipulated as part of the plea bargain and adjusted
them in accordance with amendment 715, the guideline range would be
somewhat lower than the actual sentence. Yet that would be true
only if one ignored the admission of at least one murder.3 Indeed,
3
One might also have to ignore other deviations from the PSR's
much higher recommended guidelines range--deviations that the
government was willing to make only because of the plea bargain.
Apart from the murder, the prospect of a reduced guideline range
appears to depend--aside from the reduction based on the newly
prescribed crack guideline--on reducing the criminal history
category from III to II and ignoring the firearms adjustment.
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if the plea agreement's specification that Perez-Cruz intended to
distribute in excess of 5 kilograms of cocaine base is taken as
true, amendment 715 would not apply at all.4
In other words, even if the government's other legal
objections could be overcome, the likelihood seems vanishingly
small that the district judge would in the end be presented with a
lower guideline range and then, in addition, exercise his
discretion to reduce the sentence below the bargained level that
Perez-Cruz achieved at the outset. Nothing in the Federal Public
Defender's brief even begins to confront this difficulty: it simply
takes the bargained for calculations as a starting point from which
amendment 715 would prescribe a further reduction.
Even if the plea bargain or waiver of appeal do not
preclude a recalculation of the sentence, it is hard to imagine
that the district judge would start in re-sentencing with a
baseline that was seemingly inaccurate and was accepted by the
district judge only as part of a bargain that the defendant now
seeks to disavow. The district judge approved the resulting
sentence as reasonable in light of the bargain and, far from
approving the calculations, described the sentence as a departure.
4
See U.S.S.G. § 2d1.1 Application Note 10(D)(ii) ("The 2-level
reduction provided in subdivision (i) shall not apply in a case in
which: (I) the offense involved 4.5 kg or more, or less than 250
mg, of cocaine base . . . .").
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The government's objections, apart from forfeiture, raise
issues which are far-reaching and which might or might not yield a
simple rule applicable in all cases. It is neither necessary nor
wise to pursue them in a case where forfeiture, albeit technical,
is patent and the prospect of a different outcome seems wholly
implausible. There is nothing close to the showing of prejudice
ordinarily needed to find plain error under Olano.
Affirmed.
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