United States Court of Appeals
For the First Circuit
No. 04-1222
UNITED STATES,
Appellee,
v.
FRANCISCO JOSÉ BERMÚDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
George J. West for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on brief, for
appellee.
May 23, 2005
CAMPBELL, Senior Circuit Judge. Francisco José Bermúdez
pled guilty in the Rhode Island federal district court to two
counts of drug offenses. In the plea agreement and at the plea
hearing, Bermúdez admitted that the total drug weight was 8954.06
grams of cocaine. At sentencing, the district court found that
Bermúdez had testified falsely at the trial of co-defendant Gonzola
Velasquez, thereby relieving the government of any obligation under
the plea agreement to file a substantial assistance motion under
U.S.S.G. § 5K1.1.1 The district court further found that Bermúdez
did not qualify for a safety valve sentencing reduction under 18
U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 because of his failure to
establish that he truthfully provided to the government all
information he had regarding the drug offenses. Based on the drug
weight admitted by Bermúdez, the district court imposed the
mandatory minimum sentence of ten years' imprisonment. See 21
U.S.C. § 841(b)(1)(A).
Bermúdez appeals from his sentence. He contends that the
district court erred in not ordering specific performance of the
government's agreement to file a substantial assistance motion and
in denying him a safety valve reduction, either of which, if
applied, would have allowed a sentence lower than the mandatory
minimum sentence. See 18 U.S.C. §§ 3553(e), (f). Bermúdez also
1
For purposes of computation, the district court used the
Supplement to the 2002 United States Guidelines Manual
incorporating guideline amendments effective April 30, 2003.
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seeks a remand for resentencing under United States v. Booker, 125
S. Ct. 738 (2005), arguing that a jury, not the judge, should have
made the factual determinations regarding substantial assistance
and safety valve relief. Finding no error, we affirm.
I. Background
On February 9, 2003, Bermúdez and Gonzola Velasquez drove
from New York to Rhode Island, carrying with them cocaine for
delivery at the home of one Shawn Montegio. Tipped off to the
impending delivery by intercepted cell phone conversations, federal
agents went to Montegio's house and there arrested Bermúdez,
Velasquez, and Montegio in the course of their illegal transaction.
On February 12, 2003, a federal grand jury returned a
four-count indictment charging: (1) Bermúdez, Montegio, and
Velasquez with conspiring to distribute over five kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846; (2) the three men with possessing over five kilograms of
cocaine with intent to distribute it, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 18 U.S.C. § 2; and (3) Montegio with two
firearm-related counts not relevant to this appeal.
On July 3, 2003, Bermúdez signed a plea agreement in
which he agreed to plead guilty to the two counts naming him and
agreed that the total weight of the cocaine was 8954.06 grams. The
government agreed to recommend the lowest Guideline sentence or the
ten-year mandatory minimum sentence, whichever was greater. The
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plea agreement provided: "If Defendant qualifies for the 'safety
valve' provision, 18 U.S.C. § 3553(f), the government will
recommend the applicable 2-level decrease under the guidelines."
On July 22, 2003, the district court, after a hearing,
accepted Bermúdez's guilty plea. Bermúdez specifically
acknowledged the 8954.06 gram figure as to drug weight. At the
change of plea hearing, the prosecutor described the elements of
the safety valve test, including the fifth element, which he
explained requires that "not later than the time of the sentencing
hearing, the defendant truthfully provides to the Government all
information and evidence that the defendant has concerning the
offense or offenses that were part of the same course of conduct."
See U.S.S.G. § 5C1.2(a)(5). Bermúdez said he understood the
requirements.
On August 8 and 11, 2003, Bermúdez met with the
government for two safety valve debriefings. Prior to the second
meeting, the parties entered into a new two-page agreement
supplementing the original plea agreement. In this supplemental
agreement, Bermúdez agreed to be debriefed by federal agents and to
testify at any trial. In exchange, the government agreed that,
"[i]f Defendant is called as a witness and if Defendant's testimony
is truthful, accurate and complete, the Government will move for a
downward departure pursuant to § 5K1.1 of the United States
Sentencing Guidelines." The agreement was conditioned on Bermúdez
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providing "truthful, accurate and complete" information, and
expressly relieved the government of its obligation to file a
substantial assistance motion if Bermúdez failed to provide such
information.
The trial of co-defendant Velasquez began on August 13,
2003. Called as a government witness, Bermúdez testified on August
13 and 14. After speaking with the prosecutor and FBI case agent
during a lunch break, Bermúdez revised his initial direct
examination testimony about the details of his first visit to
Montegio's home in the summer of 2002, conceding that his initial
testimony had been different. Thereafter, upon cross examination,
Bermúdez conceded that he had lied in his earlier testimony, and he
furnished details about the charged February 9 drug transaction
never previously disclosed to the government. Bermúdez admitted
then that the information he had given to the government in his
debriefings had not been complete. The jury acquitted Velasquez on
all counts.
At Bermúdez's sentencing hearing, the district court
found that Bermúdez had given false testimony at the Velasquez
trial. Based on that finding, the district court concluded that,
under the terms of the supplemental plea agreement, the government
was not obligated to file a substantial assistance motion. After
reviewing the contradictions and inconsistencies between Bermúdez's
trial testimony and the earlier disclosures he made to the
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government, the court further held that Bermúdez was ineligible for
the safety valve reduction. Accordingly, based on the drug weight
admitted by Bermúdez, the district court imposed the mandatory
minimum sentence of concurrent ten-year terms of imprisonment as to
each count and five years of supervised release. See 21 U.S.C. §
841(b)(1)(A).
II. Discussion
A. Substantial Assistance
Bermúdez argues that the district court erred in not
ordering specific performance of the government's agreement to file
a substantial assistance motion. U.S.S.G. § 5K1.1 provides that
"[u]pon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, the court may
depart from the guidelines." Under 18 U.S.C. § 3553(e),
substantial assistance may justify a sentence below the statutorily
required minimum sentence. U.S.S.G. § 5K1.1, cmt. n.1.
While we have held that this court ordinarily lacks
jurisdiction to review on appeal a district court's refusal to
depart downward, United States v. Atwood, 963 F.2d 476, 478 (1st
Cir. 1992), we may review whether the government's failure to file
a substantial assistance motion violated the plea agreement. See,
e.g., United States v. Gonzalez-Perdomo, 980 F.2d 13, 15 (1st Cir.
1992); Atwood, 963 F.2d at 478 (collecting cases). The latter
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question is looked at de novo. United States v. Clark, 55 F.3d 9,
11 (1st Cir. 1995).
Plea agreements are interpreted under principles of
contract law. Id. at 12; Atwood, 963 F.2d at 479. "If the
defendant lives up to his end of the bargain, the government is
bound to its promises. On the other hand, if the defendant fails
to fulfill his promises, the government is released from its
agreement . . . ." United States v. Gonzalez-Sanchez, 825 F.2d
572, 578 (1st Cir. 1987).
Here, the supplemental plea agreement provides that "if
[Bermúdez's] testimony or his debriefing by federal agents is not
truthful, or accurate, or complete, his plea of guilty shall stand,
[and] the Government will not be obligated to adhere to the terms
of the plea agreement." Bermúdez argues that he provided
substantial assistance to the government, including meeting with
federal agents twice and testifying as the key witness against
Velasquez over the course of two days of trial. Bermúdez concedes
that he "backtracked on a few areas and subsequently revised his
testimony," but contends that "on balance a fair reading of all his
testimony is that he gave a truthful account."
The district court found that Bermúdez gave false and
inconsistent testimony at the Velasquez trial. The court expressly
found that Bermúdez had stated in his debriefings with the
government in connection with his first visit to Montegio's home
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that: (1) he knew the purpose of the trip was a drug transaction;
(2) the transaction involved five to ten kilograms of cocaine; and
(3) he had been paid between $1,000 and $2,000 for his services.
On direct examination at the Velasquez trial, however, Bermúdez
initially testified that: (1) he did not know for sure whether it
was a drug transaction; and (2) he had only been paid $500 for his
services. After speaking with the prosecutor and FBI case agent
during the lunch break, Bermúdez revised his initial direct
examination testimony and reverted to what he had said in the
debriefing. He stated that his earlier testimony had been
different because this was his first time testifying and he was
nervous. On cross examination, Bermúdez conceded that he had
"lied" in his earlier testimony.
Beyond other instances of false testimony, the court
found "this [instance] alone [] enough to relieve the Government of
any obligation it had to move for a downward departure under the
terms of the plea agreement." Concluding that a single episode is
enough is not without precedent. See, e.g., United States v.
Cruz-Mercado, 360 F.3d 30, 34 (1st Cir. 2004) (government's
decision not to file a substantial assistance motion was within its
discretion where the defendant failed "in one instance" to meet his
obligation under the plea agreement to be truthful and stipulated
to an upward adjustment for obstruction of justice); Gonzalez-
Sanchez, 825 F.2d at 578-79 (trial court's determination that
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defendant breached plea agreement to cooperate honestly and fully
in giving testimony at trial was amply supported by the record,
where defendant's testimony as to who set fire to a certain
business differed from his earlier statement to FBI agents).
But even assuming arguendo that more was needed, the
district court also pointed to the fact that Bermúdez admitted on
cross examination that the information he had given the government
in his debriefings about the charged February 9 drug transaction
had been incomplete. This admission followed his disclosure during
cross examination of additional details of the transaction not
revealed during his debriefings or on direct examination.
As the district court's ultimate finding that Bermúdez's
trial testimony and debriefing statements had not been "truthful,
or accurate, or complete," as required by the plea agreement, was
amply supported, we are satisfied that the district court properly
refused to order specific performance of the government's agreement
to file a substantial assistance motion.
B. Safety Valve
Bermúdez argues that the district erred in finding that
he was ineligible for the safety valve reduction pursuant to 18
U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Congress enacted the safety
valve provision, 18 U.S.C. § 3553(f), in order to limit the harsh
effect of mandatory minimum sentences in certain cases. See United
States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000). The
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Sentencing Commission incorporated the text of § 3553(f) verbatim
into the Guidelines. Id. U.S.S.G. § 5C1.2 provides:
[T]he 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 criteria in 18 U.S.C. § 3553(f)(1)-(5) set
forth verbatim below:
(1) the defendant does not have more than 1 criminal
history point . . . ;
(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 . . . and was not
engaged in a continuing criminal enterprise . . . ; 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
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.
As the parties agree, only the fifth element of the safety valve
provision is in dispute. The issue is whether the district court
clearly erred in finding that Bermúdez had not satisfied the
requirement that "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
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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).
Our review of the court's adverse factual finding on the
safety valve issue is for clear error. United States v. Marquez,
280 F.3d 19, 22 (1st Cir. 2002). Review under the clear error
standard is "extremely deferential." Id. at 26. Under that
standard, "an appellate court ought not to disturb either findings
of fact or conclusions drawn therefrom unless the whole of the
record compels a strong, unyielding belief that a mistake has been
made." United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003).
A defendant who wishes to take advantage of the safety
valve bears the burden of showing that he has made truthful,
complete, and timely disclosures to the government. Id. at 39. We
have made it clear that "nothing short of truthful and complete
disclosure will suffice." Id. at 38; see Marquez, 280 F.3d at 24;
United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996).
In the instant case, the district court carefully
considered Bermúdez's inconsistent testimony at the Velasquez
trial, compared it to his debriefing statements, and based the
denial of the safety valve reduction on specific factual findings.
The court recounted in detail, citing the relevant pages of the
Velasquez trial transcript and the debriefing summary memorandum,
the instances in which Bermúdez's debriefing statements were
incomplete and/or inconsistent with his trial testimony.
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In addition to the initially inconsistent and admittedly
false testimony about his first visit to Montegio's home, see supra
Part II.A, the district court found that Bermúdez's disclosures to
the government had not been truthful and complete in other
respects.
Relative to the charged February 9 drug transaction
itself, Bermúdez testified on cross examination to information he
had failed to disclose during the debriefings or on direct
examination. Bermúdez had told the government during the
debriefings that he was at Velasquez's home on the afternoon of
February 9 when two Columbian males arrived with the cocaine. He
said he stayed in the living room while the two Columbians entered
the bedroom with Velasquez. After the Columbians left, Bermúdez
said he went into the bedroom where Velasquez showed him the
cocaine.
In his testimony on direct examination at the Velasquez
trial, however, Bermúdez added that he could not see into the
bedroom because the door was closed and, therefore, did not know
what the three men were doing in the bedroom. On cross
examination, Bermúdez added more new information -- that there were
women and children in the drug suppliers' vehicle; that one of the
men was Columbian and one was Mexican, a determination he made from
hearing them speak; that he knew one of the men, contrary to his
prior statements otherwise; and that he had been called into the
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bedroom while the men were present to see if the cocaine was
acceptable for Montegio. The district court was struck in
particular by Bermúdez's testimony that he had been called into the
bedroom to view the cocaine, because this testimony was
inconsistent with his contention that he had no expertise on drugs.
The district court found that a February 8 phone
conversation between Bermúdez and Montegio indicated the falsity
and incompleteness of Bermúdez's disclosures to the government. At
the Velasquez trial, Bermúdez testified that Velasquez was sitting
right next to him during the phone call and told him that a price
of $22,000 per kilogram of cocaine was okay with him. The district
court listened to the taped conversation multiple times and found
"no indication whatsoever . . . that anyone is sitting next to or
being spoken to by Bermúdez." The court concluded that Bermúdez
was the one negotiating the price with Montegio. The court also
found that the recording belied Bermúdez's trial testimony that he
had not yet seen the cocaine at the time of the phone call, because
Bermúdez described the cocaine to Montegio in a way that implied
that he had already seen it.
Finally, the district court noted Bermúdez's inconsistent
disclosures as to the amount of money he was to receive from the
charged February 9 drug transaction. In his first debriefing,
Bermúdez stated that he expected to receive $4,000 to $5,000 from
Velasquez. In his second debriefing, he changed that amount to
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$10,000. At the Velasquez trial, Bermúdez admitted he had made
this mistake as to the amount.
The district judge concluded that "all of these areas of
discrepancy and changing of stories, of gaps, of missing
information, of new information occurring to him" were "too much to
be attributed to either coincidence or nervousness or any other
excuse." Even more significantly, the court went on to state, "I,
frankly, at the end of all of this, I don't know what happened in
this transaction. I'm not sure which aspects of these various
stories to believe." Accordingly, the district court concluded
that Bermúdez had failed to prove, as it was his burden to do, that
his proffers to the government had been truthful and complete.
Bermúdez concedes that he made misstatements at the
Velasquez trial and added information he had not previously
disclosed to the government. He contends, however, that he is
entitled to the safety valve because he gave a truthful and
complete account to the government by the close of his testimony
and before the commencement of the sentencing hearing. Bermúdez
points out that the safety valve statute, 18 U.S.C. § 3553(f)(5),
and the guideline, U.S.S.G. § 5C1.2, require truthful and complete
disclosures to be made to the government not later than the time of
the sentencing hearing. See Matos, 328 F.3d at 39. Under his
theory, any prevarication or incompleteness at an earlier stage was
cured by full disclosure later on.
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But even under this generous standard, Bermúdez's
argument fails. At the sentencing hearing, the court made clear
its uncertainty whether Bermúdez had ever made full disclosure. It
was Bermúdez's burden to establish that he had done so. Id.;
Marquez, 280 F.3d at 23. It was permissible for the court to infer
from Bermúdez's inconsistency, as it seems to have done, that his
credibility was so shaky that no version yet rendered could be
taken as true and complete. Cf. United States v. Schreiber, 191
F.3d 103, 107 (2d Cir. 1999) (noting that defendant who changes his
story to match the government's evolving knowledge of the events
runs the risk of undermining his credibility). After reviewing at
sentencing the "final rendition of the facts" set forth by
Bermúdez, the district judge found, as already noted, that, "at the
end of all of this, I don't know what happened in this
transaction." On this record, the district judge did not err, let
alone clearly err, in finding that Bermúdez had not fulfilled his
burden of proving that he had provided to the government a truthful
and complete disclosure by the time of sentencing.
Bermúdez also contends that his contradictions and
omissions related merely to tangential matters, hence should not
disqualify him from the safety valve. We do not accept his
"tangential" characterization. The safety valve provision states
that the required disclosure must concern "the offense or offenses
that were part of the same course of conduct or of a common scheme
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or plan." U.S.S.G. § 5C1.2(a)(5). The contradictions and non-
disclosures in issue fell well within the parameters of this
requirement. They include when Bermúdez first knew of Montegio's
drug trafficking activities, how the arrangement for the charged
drug transaction was made, how the cocaine was obtained, the amount
of money Bermúdez received for his services, and the extent of
Bermúdez's knowledge of drugs. These matters directly relate to
the offenses of conviction and concern the same course of conduct
that led to Bermúdez's arrest. They also bear on co-defendant
Velasquez's ultimately successful claim that it was Bermúdez, and
not himself, who was the chief culprit. For safety valve purposes,
courts are not easily persuaded of the unimportance of omissions
and misstatements. See, e.g., Matos, 328 F.3d at 41 (rejecting
defendants' argument that most of their contradictions and
omissions related to peripheral matters and thus should not deprive
them of the benefits of the safety valve). A defendant must
"provide 'all' information to the government." Marquez, 280 F.3d
at 25 (rejecting argument that non-disclosures were immaterial).
In light of Bermúdez's misstatements at the Velasquez
trial as well as the inconsistencies between his trial testimony
and debriefing statements, the district court did not clearly err
in determining that Bermúdez failed to provide truthful and
complete information to the government such as warranted safety
valve relief.
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C. Booker Claim
In his original brief, Bermúdez argued for the first time
on appeal that his case should be remanded for resentencing under
Blakely v. Washington, 124 S. Ct. 2531 (2004), because the factual
determinations regarding substantial assistance and safety valve
relief, either of which would have allowed a sentence lower than
the mandatory minimum, were not submitted to a jury. After United
States v. Booker, 125 S. Ct. 738 (2005) was decided, this Court
invited both parties to submit supplemental briefing on the impact
of that case. Because Bermúdez did not argue in the district court
error under Apprendi v. New Jersey, 530 U.S. 466 (2000), or
Blakely, or that the Guidelines were unconstitutional, plain error
analysis applies. United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005).
Bermúdez's primary argument is a Blakely type argument --
that resentencing is required because the district court, and not
a jury, made the following findings to "enhance" his sentence in
violation of the Sixth Amendment: (1) that the United States had
not breached its agreement to file a substantial assistance motion
and (2) that he did not qualify for the safety valve reduction.
But a factual finding resulting in the denial of a sentencing
reduction, as in the present case, is scarcely an "enhancement."
See Booker, 125 S. Ct. at 756 (holding that "the Sixth Amendment is
violated by the imposition of an enhanced sentence under the United
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States Sentencing Guidelines based on the sentencing judge's
determination of a fact (other than a prior conviction) that was
not found by the jury or admitted by the defendant") (emphasis
added). Cf. United States v. Carey, 382 F.3d 387, 389 & n.1 (3d
Cir. 2004) (suggesting Blakely was irrelevant to judicial
determination of "a fact adverse to [the defendant's] entitlement
to a downward departure"). Moreover, it is clear from the Supreme
Court's case law that refusals to reduce a statutory sentence based
on judicial factfinding do not violate the defendant's Sixth
Amendment rights. See Harris v. United States, 536 U.S. 545, 558-
60 (2002) (judicial factfinding triggering a statutory mandatory
minimum does not implicate the Sixth Amendment). Only judge-found
facts that serve mechanically to raise a defendant's sentence above
that authorized by the jury verdict or guilty plea amount to Sixth
Amendment violations. Booker, 125 S. Ct. at 756. Bermúdez does
not claim that judicial factfinding served to raise his sentence
above that authorized by his guilty plea; rather, he claims that
judicial factfinding prevented him from getting a potentially lower
sentence than what he might have gotten absent that judicial
factfinding. Such a claim simply does not implicate Blakely.
In any event, we rejected the premise of this argument in
Antonakopoulos. There, we held that "[t]he error [under Booker] is
not that a judge (by a preponderance of the evidence) determined
facts under the Guidelines which increased a sentence beyond that
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authorized by the jury verdict or an admission by the defendant;
the error is only that the judge did so in a mandatory Guidelines
system." Antonakopoulos, 399 F.3d at 75.
Had the district court erred in the findings on which the
substantial assistance and safety valve decisions were based, that
error would, of course, provide a basis for remand. Id. at 82. As
we have explained, however, no such error occurred. See supra
Parts II.A & B.
In supplemental briefing Bermúdez contends that his
sentence should be vacated and remanded under Booker, arguing that
he was erroneously sentenced under a mandatory Guidelines system,
and that, in effect, there is a reasonable probability that the
district court would have given him a lower sentence under advisory
Guidelines. Antonakopoulos, 399 F.3d at 83.
However, as is clear from Antonakopoulos, Bermúdez fails
to satisfy even the first prong of the plain error test. Contrary
to his assertion, Bermúdez was not erroneously sentenced under a
mandatory Guidelines system. Rather, he was sentenced to a
statutory mandatory minimum based on an amount of drugs, 8954.06
grams, to which he admitted being involved with in his plea
agreement. See 21 U.S.C. § 841(b)(1)(A) (where the offense
involves "5 kilograms or more" of cocaine, the defendant "shall be
sentenced to a term of imprisonment which may not be less than 10
years or more than life"). Bermúdez was sentenced to ten years'
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imprisonment, the statutory mandatory minimum penalty that could
have been imposed. As this court said in Antonakopoulos, "[a]
mandatory minimum sentence imposed as required by a statute based
on facts found by a jury or admitted by a defendant is not a
candidate for Booker error." 399 F.3d at 75. Since Bermúdez was
sentenced to a statutory mandatory minimum, rather than to an
erroneously mandatory Guideline amount, no Booker error occurred.
The mere fact that he did not receive the benefit of a downward
departure or adjustment based on substantial assistance or the
safety valve is irrelevant to that conclusion.
III. Conclusion
For the foregoing reasons, the sentence is affirmed.
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