United States Court of Appeals
For the First Circuit
No. 99-1330
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Veronica J. White, by appointment of the court, for
appellant.
Jennifer H. Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and William M.
Welch II, Assistant United States Attorney, was on brief for the
United States.
May 24, 2000
BOUDIN, Circuit Judge. David Cruz was indicted in
December 1995 and charged with participating in a drug
conspiracy and related counts. 21 U.S.C. §§ 841, 846, 853, 856.
The gist of the charges was that he had been involved in a ring
based in Springfield, Massachusetts, which manufactured and sold
at least 62 kilograms of powder cocaine and 770 grams of crack
cocaine over a five-year period. In January 1997, on a date
previously scheduled for trial, Cruz pled guilty to the
conspiracy count and a forfeiture count pursuant to a plea
agreement with the government.1
On February 25, 1999, after a sentencing hearing, Cruz
was sentenced to 180 months in prison. The guideline range
computed by the district court, after crediting Cruz with time
spent in state custody on a related offense, was 250-315 months,
but a lesser sentence--180 months--was imposed after the
district court departed downward based on the government's
1
Later, Cruz also pled guilty to a specific distribution
count, apparently in an effort to bar or dissuade the state from
imposing an additional penalty for the conduct involved in that
distribution. This wrinkle does not affect any of the issues
presented on this appeal.
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motion describing the nature and extent of Cruz's cooperation
with and substantial assistance to the government. U.S.S.G. §
5K1.1. Cruz has now appealed, challenging his sentence but not
the judgment of conviction.
It is worth noting at the outset that almost all of the
claims now made on appeal were not presented to the district
court. We need not decide which if any could fairly be
described as expressly "waived" and thus not subject to review
under any standard (although the court may always choose on its
own to correct fault where a miscarriage of justice would
otherwise result). United States v. Olano, 507 U.S. 725, 733
(1993). It is enough that the claims not presented at the
district court also do not rise to the level of "plain error,"
which is the usual standard applied where a claim is not
properly preserved. Olano, 507 U.S. at 732-35; United States v.
Lilly, 13 F.3d 15, 18 n.6 (1st Cir. 1994).
Cruz first argues that the government induced him to
cooperate and plead guilty by indicating that his sentence might
be as low as 10 years and then breached this commitment, or at
least acted in bad faith, by recommending a 19-year sentence; as
already noted, the district judge departed downward to 15 years.
Cruz says that at the very least he was entitled to an
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evidentiary hearing (which he never requested) on the good faith
issue. Cruz's arguments are without merit.
So far as it appears, the Assistant United States
Attorney indicated at some point in the plea bargaining process
that to qualify for a recommendation as low as ten years, Cruz
would have to inculpate someone equivalent to a notorious
Colombian drug figure named by the prosecutor. However, the
government found that Cruz's cooperation was halting, initially
incomplete and of limited value--although sufficient to justify
the downward departure motion already noted. If there is any
basis for the promise of a ten-year sentence more specific than
what we have just described, it is not revealed in Cruz's brief.
The plea agreement that Cruz entered reserved to the
government complete freedom to recommend a particular sentence
or make no recommendation at all. And the agreement contained
an integration clause saying that it was the complete agreement
between the parties, that no other promises had been made, and
that the agreement superseded the "prior understandings, if any,
of the parties, whether written or oral." And before the
sentencing, Cruz made clear his disappointment with the
government's refusal to recommend a ten-year sentence but never
claimed this to be a breach of any agreement.
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Against this background, the claims of a breach, bad
faith or the need for an evidentiary hearing are close to
frivolous. There is no ambiguity in the agreement, see United
States v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999), and there
is no indication of bad faith, id. at 187. The government did
not promise a recommendation of ten years at any stage, nor is
there any evidence that its evaluation of Cruz's cooperation was
made in bad faith (the government's reasons were provided in
detail in its section 5K1.1 submission to the district court).
The idea that there is any lurking plain error here is nonsense.
In a slightly more interesting variant on this theme,
Cruz says that the government promised that if substantial
assistance were provided, it would move "under 18 U.S.C. §
3553(e) and U.S.S.G. § 5K1.1 . . . ." In the end, the
government moved under the guideline provision but did not
explicitly mention section 3553(e), which would have permitted
a departure below the statutory minimum. The government says
that it is not obliged to move under both provisions, although
given the language of the plea agreement this point is at least
debatable; but it also asserts without disagreement from Cruz
that the mandatory minimum sentence was ten years. See 21
U.S.C. § 841(b)(1)(A)(ii).
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This issue was not raised in the district court, but
waiver and standard of review are beside the point because there
is no indication that the failure to seek a departure under
section 3553(e) had any effect on the sentence adverse to Cruz.2
The district judge chose to impose a sentence well above what
the government and the defendant treat as the statutory minimum.
Cruz has not even attempted to explain how he was prejudiced by
the failure to reduce the sentencing floor below ten years where
the district judge had no intention of departing downward to
that floor, let alone below it.
Cruz's second argument is that the district court did
not give him sufficient credit at sentencing for 12 months that
he had spent in New York State custody for conduct
(specifically, a particular sale of drugs) that was also used to
determine the offense level for the federal crime. As Cruz
concedes, the district court did subtract the 12 months from the
initial minimum guideline range sentence of 262-327 months,
reducing it to 250-315 months, before departing downward for
2As it happens, a statutory departure may have occurred.
Both the pre-sentence report and the plea agreement indicate
that the statutory minimum sentence was 20 years because of
Cruz's prior conviction for a felony drug offense, 21 U.S.C. §
841(b)(1)(A)(ii). If so, the government's recommendation of a
19-year sentence could be treated as a motion to depart below
the statutory minimum. See Melendez v. United States, 518 U.S.
120, 126 n.5 (1996).
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substantial assistance. See U.S.S.G. § 5G1.3(b) n.2 (adjust the
sentence for period of imprisonment already served).
However, Cruz now says that the district court should
have departed downward and then subtracted the 12 months, a
sequence that would produce a lower federal sentence if the
district court had computed the amount of the downward departure
in a particular way, i.e., by determining that the defendant's
pre-departure minimum guideline sentence should be reduced by or
to a specific percentage. In the district court, the
defendant's counsel not only made no objection to the sequence
used but affirmatively endorsed it, supporting the government's
claim that there was an affirmative waiver (so that the
calculation should not even be reviewed for plain error). See
Olano, 507 U.S. at 733. In any event, Cruz was not prejudiced.
The district court did not purport to use a mechanical
percentage to determine the downward departure. Presumably,
like most judges, the district judge was primarily concerned
with reaching a result that seemed just in light of the severity
of the offense, the defendant's past record, and the degree of
assistance that had been furnished to the government. There is
no indication that the district court's final choice of 180
months as the proper sentence would have been any different had
it been told that the 12 months should be subtracted after the
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downward departure, as it could easily have done by departing
downward to 192 months and then giving credit for time served.
Cruz's third major argument is that the district court
erred in failing to make a detailed finding on one issue
relating to drug quantities. The pre-sentence report attributed
to Cruz responsibility for 62 kilograms of powder cocaine and
770 grams of crack cocaine. Cruz objected at sentencing that
some of the powder cocaine had been used to make the crack so
that there was a measure of double counting. However, defense
counsel conceded that the calculation dispute would not affect
the guideline range, explaining that Cruz wanted to preserve the
objection in case Congress later reduced the penalties for crack
and made the reduced penalties retroactive.
The district court declined to resolve the dispute on
the ground that it had no effect on the present sentence. Under
Fed. R. Crim. P. 32(c)(1), the district court is permitted to
bypass controverted facts where the matter "will not affect"
sentencing. Here, Cruz's base offense level would have been the
same if only the amount of powder cocaine were considered. See
U.S.S.G. § 2D1.1(c)(2) & n.10. Accordingly, the district court
did not have to consider the double counting issue. See United
States v. Miller, 951 F.2d 164, 165 (8th Cir. 1991).
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On appeal Cruz contends for the first time that the
double counting issue might have affected the sentence. Cruz's
theory is that if the district court had found a lesser quantity
of drugs, it might have deemed this a mitigating circumstance
not adequately considered by the guidelines and thus warranting
a further downward departure under 18 U.S.C. § 3553(b).
Ignoring waiver and plain error limitations, the argument is
silly: the guidelines specifically prescribe offense levels
based on quantity, and Cruz's suggested departure could hardly
be a matter not adequately considered by the Commission. 18
U.S.C. § 3553(b).
Cruz's fourth argument is that there was an
insufficient basis for the two-level enhancement of his sentence
for recklessly endangering another person while fleeing from a
law enforcement officer. U.S.S.G. § 3C1.2. The pre-sentence
report described, with respect to one of the drug transactions,
Cruz's attempted flight from arresting officers, leading to a
high-speed chase through Springfield during which Cruz rammed
several police vehicles, drove up onto the sidewalk and
eventually crashed his own vehicle.
Cruz stipulated in his plea agreement that he was
subject to the two-level enhancement based on this incident so
the objection has arguably been waived. In any event, there is,
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once again, no indication of any error--let alone a plain error.
The facts in the presentence report adequately support the
enhancement. See, e.g., United States v. Conley, 131 F.3d 1387,
1389-90 (10th Cir. 1997), cert. denied, 523 U.S. 1087 (1998).
And Cruz is mistaken in thinking that it matters whether the
persons he hit or nearly hit were law enforcement officers; it
is enough that he created a substantial risk of injury to any
person while fleeing from law enforcement. U.S.S.G. § 3C1.2 &
n.4.
In his final claim, Cruz says that the district court
should have granted him a larger downward departure based on his
pre-sentence rehabilitation or based on his pre-trial
confinement in a detention center where (he says) the conditions
are harsher than those at ordinary Bureau of Prisons facilities.
In the district court Cruz did not ask for a downward departure
based on these factors and--absent a mistake of law--refusal to
depart on these grounds would not be reviewable in any event.
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). As
it happens, the district court did comment favorably on Cruz's
efforts at rehabilitation and presumably considered them in
determining the final sentence.
None of the arguments made by Cruz in this appeal has
the slightest merit and--to put the cork in the bottle--none of
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the episodes even remotely suggests that Cruz was poorly
represented in the district court in connection with the
sentencing. No criticism of appellate counsel is suggested:
the appeal was well handled on Cruz's behalf and a criminal
defendant is entitled to be zealously represented. But in
future cases of this kind, a citation in an unpublished opinion
to this opinion can be taken to indicate that the arguments in
question are as hopeless as those before us now.
Affirmed.
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United States v. Cruz
Court: Court of Appeals for the First Circuit
Date filed: 2000-05-24
Citations: 213 F.3d 1
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