United States v. Munoz-Vasquez

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1327 UNITED STATES OF AMERICA, Appellee, v. ELIAS MUNOZ VAZQUEZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge] Before Stahl, Circuit Judge, Aldrich and Campbell, Senior Circuit Judges. Joseph S. Berman and Berman & Dowell on brief for appellant. Geoffrey E. Hobart, Assistant United States Attorney, and Donald K. Stern, United States Attorney, on brief for appellee. ___________________ February 3, 1999 ___________________ Per Curiam. On October 17, 1997, Elias Munoz-Vazquez (Vazquez) pled guilty in the U.S. District Court for the District of Massachusetts to a single count of conspiring to distribute methamphetamine in violation of 21 U.S.C. 841(a)(1) and 846. He was sentenced on March 5, 1998. Because the transaction in question involved more than one kilogram of a methamphetamine mixture, Vazquez received a ten- year mandatory minimum sentence pursuant to 21 U.S.C. 841(b)(1)(A)(viii), which he now challenges. We affirm. Vazquez claims, first, that the district court should have made an independent finding as to the drug quantity used to support the imposition of his ten-year mandatory minimum sentence. The methamphetamine mixture, originally in ten packages weighing approximately one pound each, was seized during a buy set up by law enforcement agents posing as drug purchasers. After testing, the mixture weighed a total of 3,799.7 grams, or about 3.8 kilograms. The Sentencing Guidelines prescribe a base offense level of 34 for offenses involving "[a]t least 1.5 KG but less than 5 KG of Methamphetamine." United States Sentencing Commission, Guidelines Manual, 2D1.1(c)(3) (Nov. 1997). A base offense level of 34 was therefore appropriate for Vazquez, and he expressly agreed to that level in his plea agreement. In addition or, in this case, instead statutory law requires imposition of a ten-year mandatory minimum sentence for offenses involving "1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers." 21 U.S.C. 841(b)(1)(A)(viii). Regardless of his base offense level under the Guidelines, then, Vazquez faced the ten-year mandatory minimum, and he expressly acknowledged this both in his plea agreement and during his plea colloquy. Thus, the exposure that Vazquez acknowledged, both under the Sentencing Guidelines and under the drug abuse prevention and control statutes, was directly in accord with the determined weight of the seized methamphetamine mixture. Vazquez never objected to the drug quantity determination per se, but objected only to the Probation Department's determination of a base offense level of 36 in its Presentence Report. Vazquez argued that "[u]se of the base offense level of 36 woould [sic] constitute a material breach of the plea agreement by the Government" and requested "specific performance of the plea agreement with respect to the setting of the base offense level herein." The Probation Department had determined the base offense level of 36 based on the weight of pure methamphetamine found in the seized mixture rather than on the weight of the mixture itself. The calculation of the pure methamphetamine weight was subject to doubt, however, because of the manner in which the DEA chemist tested the drugs for purity. He first tested all of the one-pound packages and determined that each contained methamphetamine, then mixed the contents of all ten packages together to form one pile. He took samples from different parts of the pile, mixed them together, and performed a single purity test. Testing the purity and determining the weight of pure methamphetamine in each of the ten packages would have yielded a more accurate total weight of pure methamphetamine, but this was not done. So the government urged in its Sentencing Memorandum that the district court use only the total weight of the methamphetamine mixture to arrive at a base offense level of 34, the level agreed upon in the plea agreement and requested in Vazquez's Presentence Report objections. The sentencing judge did so, observing that "the proper calculation is the one that the Government has done here on that." Vazquez then acknowledged that, as to his base offense level objection, "the relief requested there has been granted. So, of course, that objection would not need a ruling." Though he objected simply to the Probation Department's base offense level of 36 and never expressly challenged any of the lab results below, Vazquez now wishes to call into question the determination as to the weight of the methamphetamine mixture, urging that the district court should have made an independent finding at an evidentiary hearing. However, we think that his actions at sentencing constitute a waiver of his right to make such a challenge. The agreement between Vazquez and the government on the proper base offense level of 34, his acknowledgment, both in the plea agreement and before the sentencing judge, that he faced a ten-year mandatory minimum sentence, and the withdrawal of his objection to the Presentence Report's base offense level of 36 once level 34 was substituted all belie Vazquez's assertions that he simply failed to object to as opposed to affirmatively waiving the government's assertions as to drug quantity or that his objection to the Presentence Report's base offense level determination and the government's concession regarding inaccurate purity testing put the methamphetamine mixture weight into question. Rather, Vazquez's actions indicate to us the affirmative, albeit unspoken, acknowledgment that the methamphetamine mixture weighed at least 1.5 kilograms, the lower threshold for base offense level 34, and was therefore above the 1 kilogram threshold triggering application of the ten-year mandatory minimum sentence. Vazquez made an "'intentional relinquishment or abandonment'" of any right to challenge the methamphetamine mixture weight. United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). See also United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (holding that failure to request an evidentiary hearing in the district court "largely dispose[d]" of defendant's claim on appeal that he should have been granted one). The authorities that Vazquez cites do not help him. In United States v. Valencia-Lucena, 988 F.2d 228, 232 (1st Cir. 1993), the court observed that "[w]hen the quantity of drugs used for the base offense level is in dispute, the district court must make an independent finding at an evidentiary hearing as to the reliability of the evidence." The crucial part of this recited rule is the requirement that the quantity of drugs used to calculate the base offense level be in dispute. As discussed above, there is no indication in this record that the total drug mixture weight was in dispute at all. Rather, the defendant successfully argued for a base offense level that reflected a methamphetamine mixture weight wholly consistent with a ten-year mandatory minimum sentence. Valencia-Lucena, therefore, does not apply. A second case held that a requested evidentiary hearing should have been granted. See United States v. Jiminez Martinez, 83 F.3d 488, 494 (1st Cir. 1996). Vazquez made no such request here, and "that largely disposes of his claim." United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996). Jiminez Martinez, then, is equally unhelpful. Not to be turned away so easily, Vazquez also claims that the district court should have applied the "safety valve" provision in 18 U.S.C. 3553(f), allowing him to escape the mandatory minimum sentence. We may dispose of this contention more easily than we have the first. Section 5C1.2 of the Sentencing Guidelines sets forth verbatim five criteria from 18 U.S.C. 3553(f) that must be met before the sentencing court may grant relief from an otherwise applicable mandatory minimum sentence. The only criterion still at issue at sentencing was the requirement that "not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information or 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." 18 U.S.C. 3553(f)(5); USSG 5C1.2(5). Though Vazquez argued in his objections to the Presentence Report that he had "fully revealed all facts known by him relevant to his conduct" and was therefore entitled to application of the safety valve, he acknowledged at sentencing that he had not, in fact, fulfilled the requirement. The lawyer for Vazquez's codefendant first made it clear that a proffer had been made but was insufficient: "I would like to advise the Court that, after debriefing with the Government, the Government is not satisfied that we have met the burden under 5C1.2 and, at this point, I would have to concur." Vazquez's lawyer echoed these sentiments: "as with Mr. Bautista, the proffer that was required was not made and we concur in that." Thus, Vazquez admitted he had not met the requirements of USSG 5C1.2, thereby waiving his right to a court finding that he did. Vazquez argues that, because he indicated in his objections to the Presentence Report his position that he was entitled to application of the safety valve, the district court should have ignored trial counsel's admission that the condition was not met and "inquired further into the circumstances of the proffer and determined whether any possibility existed for application of the safety valve." This is not the law. The admission at sentencing was an "intentional relinquishment or abandonment" of the right to a court finding on whether Vazquez had satisfied the safety valve criteria. The district court no longer had any reason or responsibility to make such a determination. We may dispose of Vazquez's third contention with even greater ease. He claims that the district court should have departed downward under the Sentencing Guidelines based on his exceptional acceptance of responsibility and minimal involvement in the drug transaction at issue. Whether such a departure from the sentencing range would have been appropriate is irrelevant since Vazquez in any event faced a ten-year mandatory minimum sentence. Affirmed.