USCA1 Opinion
June 7, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2146
UNITED STATES,
Appellee,
v.
JOSE M. DONES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Jose M. Dones on brief pro se. _____________
Guillermo Gil, United States Attorney and Juan A. Pedrosa, ______________ _________________
Assistant U.S. Attorney, on brief for appellee.
____________________
____________________
Per Curiam. The sole issue raised by this ___________
sentencing appeal is whether the district court erred in
determining that defendant-appellant Jose Manuel Dones is
ineligible for relief from the statutory minimum penalty for
his offense pursuant to 18 U.S.C. 3553(f) and the related
guideline provision, U.S.S.G. 5C1.2. For the following
reasons, we affirm.
I. _
On May 16, 1994, co-defendant Hiram Antonio Collazo
was arrested at the Luis Munoz Marin International Airport,
Carolina, Puerto Rico, after customs officials discovered
that a leather portfolio he was carrying contained heroin.
Collazo informed the arresting officers that he had gone to
Aruba to pick up the heroin, and that he was bringing it to
Dones, who had paid him with a Suzuki vehicle. Collazo
agreed to cooperate with the government, and Dones was
arrested that same day after Collazo made a controlled
delivery of the heroin to him.
On June 27, 1994, Dones pled guilty to possession
of heroin with intent to distribute it. See 21 U.S.C. ___
841(a)(1); 18 U.S.C. 2. Prior to sentencing, a presentence
investigation report (PSR) was prepared. The PSR determined
the guideline sentencing range to be 46 - 57 months, but
noted that the statutory minimum term of imprisonment for the
offense, which involved 333.6 grams of heroin, is five years.
See 21 U.S.C. 841(b)(1)(B). ___
A sentencing hearing was conducted, and sentence
was imposed, on September 23, 1994. At the hearing, defense
counsel urged the district court to depart from the statutory
minimum term of imprisonment to a sentence at the middle of
the guideline range pursuant to 18 U.S.C. 3553(f) and
U.S.S.G. 5C1.2, which provide for relief from the mandatory
minimum if five criteria are met.1 The court found that the
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1. The statute provides, in pertinent part, that in the case
of an offense under 21 U.S.C. 841, the court shall impose a
sentence pursuant to the guidelines without regard to any
statutory minimum sentence, if:
(1) the defendant does not have more than 1
criminal history point, as determined under the
sentencing guidelines;
(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
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 fact that the
defendant has no relevant or useful other
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first four criteria are met. However, after making inquiry
of the government, it determined that the defendant did not
meet the fifth condition that he share with the government
all known information about the offense. The court sentenced
Dones to 60 months imprisonment, followed by a term of
supervised release. This appeal ensued.
II. __
Dones argues that the district court erred in
determining that he failed to satisfy the fifth condition
under 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2. He contends
that although his co-defendant reached the government first,
both he and his co-defendant provided the government with
complete information. He further contends that the district
court misinterpreted the fifth condition and found him
ineligible for relief from the statutory minimum penalty
because he had no new or useful information to provide the
government.
Contrary to the government's contention, we have
jurisdiction to review whether Dones' sentence was "imposed
in violation of law" or "as a result of an incorrect
application of the sentencing guidelines." 18 U.S.C.
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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.
18 U.S.C. 3553(f)(1)-(5). The guideline provision
essentially tracks the language of the statute.
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3742(a).2 We review fact-bound matters related to
sentencing for clear error. See United States v. Andujar, 49 ___ _____________ _______
F.3d 16, 25 (1st Cir. 1995); United States v. Wright, 873 _____________ ______
F.2d 437, 443-44 (1st Cir. 1989). A district court's legal
interpretation of the guidelines engenders de novo review. __ ____
See United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir. ___ _____________ _________
1994).
Dones' suggestion that the district court refused
to depart from the statutory minimum sentence because he
failed to provide new or useful information to the government
is baseless. The record reveals that the district court
denied the requested relief because it found that Dones did
not come forward and provide complete information to the
government concerning his offense. Accordingly, we turn to
whether this finding was erroneous.
When asked, at sentencing, whether Dones had
provided complete and truthful information, the government
replied that it had not engaged in any discussions with Dones
concerning the offense. Defense counsel did not dispute this
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2. The government argues that we lack jurisdiction to review
a district court's discretionary refusal to depart downward
from the applicable guideline range. See, e.g., United ___ ____ ______
States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994). ______ _______
Although this principle is true, we assume arguendo (although ________
we need not decide) that it is inapplicable here. Section
3553(f) and the related guideline provision do not address
departures from the guideline sentencing range; rather, they
provide for relief from mandatory minimum penalties in
certain cases.
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statement, but argued that Dones had provided the necessary
information to probation. The probation officer stated that
Dones was very reticent in answering questions, and that he
only told probation that he had met an individual who
requested that he find someone to secure narcotics. We need
not decide, in the instant case, whether a defendant can ever
avail himself of the benefits of 3553(f) by providing
information to probation, rather than to the prosecutor. The
district court did not clearly err in determining that the
few, sketchy details Dones came forward with did not satisfy
the requirement that he provide "all information and evidence
[he] has concerning the offense." 18 U.S.C. 3553(f)(5).
At the very least, Dones should have disclosed the identity
of the person for whom he was operating. See United States ___ _____________
v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. 1995). __________
Affirmed. ________
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