United States Court of Appeals
For the First Circuit
No. 00-2405
UNITED STATES,
Appellee,
v.
ANGEL LOPEZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.
R. Scott Miller, Jr. for appellant.
Susan M. Poswistilo, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, and Dina
Michael Chaitowitz, Appellate Chief, were on brief, for appellee.
August 14, 2002
_____________
* Of the Northern District of California, sitting by
designation.
LIPEZ, Circuit Judge. After Angel Lopez pleaded guilty
to charges that he trafficked in heroin, he was sentenced to 216
months in prison and five years of supervised release. Lopez
appeals his term of incarceration on the ground that the district
court erred in giving him a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(3) for distribution of heroin inside a prison.
He appeals his supervised release term on the ground that it
exceeds the maximum term permitted under 21 U.S.C. § 841(b)(1)(B).
Seeing no merit in his arguments, we affirm.
I.
On July 8, 1999, Lopez and nineteen co-defendants were
charged in a multi-count drug trafficking indictment. Lopez was
charged with conspiracy to distribute heroin from about September
of 1996 to about March of 1999, in violation of 21 U.S.C. § 846,
and with twelve counts of distributing heroin, in violation of 21
U.S.C. § 841(a)(1). On May 19, 2000, Lopez pleaded guilty to all
charges.1 He was sentenced on October 18, 2000, to 216 months in
prison and five years of supervised release.
"Because this appeal involves sentencing issues following
a guilty plea, we take the background facts from the presentence
report" (PSR). United States v. Brady, 168 F.3d 574, 576 (1st Cir.
1999). In August, 1996, the Drug Enforcement Administration (DEA)
received information from a confidential informant that Wilfredo
1
Lopez also was charged with, and pleaded guilty to,
conspiring to distribute marijuana. He was sentenced for that
offense on August 31, 2000.
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Cortes (Lopez's half-brother), who at the time was incarcerated in
a Massachusetts state prison, was running a heroin distribution
operation in and around Lynn, Massachusetts, in conjunction with
Lopez and Christine James (Cortes' girlfriend). The confidential
informant put Cortes in contact with a prospective heroin purchaser
who, unbeknownst to the conspirators, was an undercover
Massachusetts state police officer. Cortes informed Lopez and
James that the undercover officer would be contacting them to
purchase heroin. On numerous occasions between October of 1996 and
February of 1999, Lopez obtained heroin from co-defendants Domingo
Acevedo and Rafael Acevedo and sold it to the undercover officer.
Notwithstanding his incarceration, Cortes had "telephone
conversations with both Lopez and James about the heroin sales to
the undercover officer and the return of money to [Cortes] from the
sales."
The plea agreement stipulated that Lopez was responsible
for 733.9 grams of heroin and that his base offense level was 30.
The PSR recommended that Lopez receive a three-level enhancement
for his role in the offense pursuant to U.S.S.G. § 3B1.1(b) ("If
the defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more
participants or was otherwise extensive, increase by 3 levels.").
The PSR also recommended a three-level reduction for acceptance of
responsibility. See U.S.S.G. § 3E1.1. In addition, and of
importance to this appeal, the PSR recommended a two-level increase
pursuant to U.S.S.G. § 2D1.1(b)(3), which provides: "If the object
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of the offense was the distribution of a controlled substance in a
prison, correctional facility, or detention facility, increase by
2 levels."
Lopez's counsel objected at the sentencing hearing to the
two-level increase under § 2D1.1(b)(3) on the ground that "there's
no evidence that my client actually was involved in bringing any
drugs into the prison." The government concurred, explaining that
while "there were tape recorded conversations [between Cortes and
James] in which there was a lot of talk in August of 1996 about
possibly having heroin smuggled into the prison," there was "no
evidence that any heroin was actually smuggled into the prison."
The government's position, the prosecutor explained, was that "the
object of the conspiracy was for the undercover officer to make
purchases of heroin on the outside from either Mr. Lopez or Ms.
James and that money would then be funneled back to Mr. Cortes in
the prison."
The district court declined to adopt the government's
position:
contrary to the argument that has been made to
me, I find by a fair preponderance of the
evidence that the conspiracy to import drugs
into the prison did involve Mr. Angel Lopez
knowingly and that the two level enhancement
does apply in his case.
This conclusion resulted in an adjusted offense level of 32 under
the drug guidelines. Because Lopez's criminal history category was
VI, his sentencing range was 210 to 262 months.2 The district
2
Lopez's criminal history category was VI because he
qualified as a career offender. See U.S.S.G. § 4B1.1 ("A career
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court sentenced Lopez to 216 months in prison and five years of
supervised release. Lopez appeals.
II.
We review the sentencing court's factual findings, which
must be supported by a preponderance of the evidence, for clear
error. United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997).
"Under this standard, a district court's determination will be
treated with deference and will be reversed only if, after
reviewing all the evidence, we are left with the definite and firm
conviction that a mistake has been committed." United States v.
Rust, 976 F.2d 55, 57 (1st Cir. 1992) (internal quotation marks
omitted).
In challenging the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(3), Lopez asserts that just one of the PSR's 425
paragraphs describes a conspiracy to distribute drugs inside a
prison. Paragraph seven of the PSR states:
DEA obtained tapes of outgoing collect
telephone calls placed by [the incarcerated]
Cortes beginning on August 19, 1996. . . .
The tapes revealed numerous telephone calls
from Cortes to James in which they discussed
the fact that James was holding heroin for
Cortes and that arrangements were being made
to have the heroin delivered into the prison.
At various times, Cortes instructed James to
divide the heroin, to wait for the call of the
person who would be smuggling the heroin into
the prison, to get a note with instructions
from [Lopez], to give [Lopez] a quantity of
money, and to contact "my brother" and "Amy"
(Tavis). There were multiple conversations
offender's criminal history category in every case shall be
Category VI.").
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about these topics between Cortes and James
from August 19, 1996 through August 25, 1996.
Lopez argues that "while it may be true that Cortes and James
discussed distributing drugs within a prison, there is no
allegation that either Cortes or James ever spoke to Lopez about
this idea." He points out that the government characterized these
telephone calls at the sentencing hearing as simply "a lot of talk"
about possibly smuggling heroin into the prison, and cites the
prosecutor's assertion that there was no evidence that any such
smuggling was in fact accomplished. The government takes a
different position on appeal, arguing that the two-level
enhancement was proper.
We note three preliminary points. First, "a sentencing
court may consider facts contained in the PSI Report as reliable
evidence." United States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997).
Second, the district court was free to disregard the government's
position at sentencing regarding the § 2D1.1(b)(3) enhancement.
See United States v. Valencia-Copete, 792 F.2d 4, 7 (1st Cir. 1986)
("[O]ur cases clearly bar any relief merely because a judge refuses
to accept the sentence recommendations of a prosecutor, so long as
the defendant has not been misled."). Third, in order to conclude
that Lopez had participated in a conspiracy the object of which was
the distribution of drugs inside a prison, the district court was
not required to find that Lopez had committed an overt act in
furtherance of that conspiracy. See United States v. Cruz, 981
F.2d 613, 617 & n.7 (1st Cir. 1992) (explaining that, in contrast
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to common-law conspiracy, government does not have to prove an
overt act to win a conviction under 21 U.S.C. § 846).
Lopez wrongly asserts that only paragraph seven of the
PSR relates to the district court's findings. Paragraph twenty-one
of the PSR reports that Lopez at one point asked the undercover
officer if the heroin she was purchasing was for her husband, her
boyfriend, or "someone in jail." As the government argues, this
was "an odd question unless prison sales was something in which
Lopez was actively involved."
Paragraph five of the PSR indicates that law enforcement
officials had received a report from a confidential informant that
Cortes, James, and Lopez were involved in the distribution of
heroin inside a state prison:
In August 1996, DEA received information from
a confidential informant ("CI") that Cortes
was running a heroin distribution business
inside state prison and that he was assisted
in this endeavor by Lopez and James. The CI
reported that Cortes recruited customers by
offering them a percentage of the heroin that
was smuggled into the prison and that he had
persons smuggle heroin into the prison during
visits with inmates. The CI reported that a
customer would make arrangements to have money
sent to Lopez or James, that heroin would be
smuggled into the prison and delivered to
Cortes, that Cortes would give a portion of
the heroin to the customer, and that Cortes
would sell the remainder. The CI provided DEA
with the home telephone numbers of both Lopez
and James in Lynn.
Although the confidential informant's statement is hearsay, we have
held that a sentencing court "'may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
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indicia of reliability to support its probable accuracy.'" United
States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992) (quoting
U.S.S.G. § 6A1.3(a)); see also United States v. Powell, 50 F.3d 94,
103 (1st Cir. 1995) (upholding sentencing determination based in
part on hearsay evidence in presentence report supplied by
confidential informant). Here, the government points out that the
confidential informant's account was corroborated in significant
respects. James and Lopez were indeed running a heroin
distribution operation, and recorded conversations between Cortes
and James corroborated the confidential informant's assertion that
smuggling heroin into a prison was among their objectives. We
therefore conclude that the confidential informant's report in
paragraph five of the PSR had "sufficient indicia of reliability to
support its probable accuracy." Tardiff, 969 F.2d at 1287
(internal quotation marks omitted).
Lopez is correct that paragraph seven of the PSR contains
no direct evidence that he conspired to distribute heroin inside a
prison. Paragraph seven does, however, constitute circumstantial
evidence implicating Lopez in that project, and it is not the only
evidence found in the PSR. Based on (1) Lopez's extensive
participation in the heroin business with Cortes and James; (2) the
discussions between Cortes and James about plans to distribute
heroin inside a prison with Lopez's assistance; (3) Lopez's
question to the undercover officer about purchasing heroin for
"someone in jail"; and (4) the confidential informant's report, we
cannot say that the district court clearly erred in drawing the
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inference, by a preponderance of the evidence, that Lopez had
conspired with Cortes and James to distribute heroin inside a
prison. See Damon, 127 F.3d at 141.
We acknowledge that the actual drug sales documented in
the PSR were made by Lopez to the undercover officer and did not
entail distribution inside a prison. But that fact simply reflects
the nature of the government's undercover operation. As the
government points out, nothing in the guideline requires that
distribution inside a prison be the sole object of the conspiracy.
See U.S.S.G. § 2D1.1(b)(3), historical notes (explaining that 1995
amendment added two-level enhancement "for an offense involving a
prison or detention facility" (emphasis added)). We therefore
affirm the two-level enhancement.
III.
In addition to a prison term of 216 months, Lopez
received a five-year term of supervised release. On its face, this
term is consistent with the statute under which he was sentenced,
21 U.S.C. § 841(b)(1)(B), which provides for a term of supervised
release of "at least 4 years." However, Lopez cites United States
v. Barnes, 244 F.3d 172, 178 (1st Cir. 2001), for the proposition
that "supervised release terms set out in particular sections of
the drug laws establish the maximum terms for violations of those
sections." Based on this statement in Barnes, he argues that his
five-year term of supervised release should be vacated because it
"exceeds the term set forth in [21 U.S.C. § 841(b)(1)(B)]." He
points out that 21 U.S.C. § 841(b)(1)(B) provides for a term of
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supervised release of "at least 4 years" and argues that according
to Barnes four years is the maximum term of supervised release to
which he can be sentenced.
The government responds that the phrase "at least"
establishes a mandatory minimum, but no maximum, and that a five-
year term of supervised release is therefore permissible under
§ 841(b)(1)(B). We agree with the government that the five-year
term of supervised release Lopez received is consistent with the
statutory provision for a term of supervised release of "at least
4 years." § 841(b)(1)(B). To the extent that Barnes suggests
otherwise, we conclude that the above-quoted statement in Barnes,
244 F.3d at 178, is limited to the specific facts of that case.
Affirmed.
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