United States v. Bermudez

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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