United States v. Guzman ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1450
UNITED STATES,
Appellee,
v.
JEREMIAS GUZMAN,
Defendant, Appellant.
No. 96-1608
UNITED STATES,
Appellee,
v.
NATANAEL GUZMAN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Ronald Ian Segal on brief for appellant, Jeremias Guzman.
William J. O'Hare on brief for appellant, Natanael Guzman.
Donald K. Stern, United States Attorney, William F. Sinnott,
Assistant U.S. Attorney, and Patrick M. Hamilton, Assistant U.S.
Attorney, on brief for appellee.
March 11, 1997
Per Curiam. Jeremias and Natanael Guzman appeal from
their sentences on two related grounds. First, they argue
that the district court erred in rejecting their claim that
government agents had engaged in sentencing factor
manipulation by requesting that the cocaine they purchased
from appellants be delivered in crack rather than powder
form. Second, appellants contend that the district court
erred in denying their request for an evidentiary hearing on
the sentencing manipulation claim. Natanael Guzman filed a
supplemental pro se brief in which he raised several
additional issues.
This court has emphasized that "garden variety
manipulation claims are largely a waste of time. . . .
[S]entencing factor manipulation is a claim only for the
extreme and unusual case." United States v. Montoya, 62 F.3d
1, 4 (1st Cir. 1995). We agree with the district court that,
even assuming the truth of the facts alleged by appellants at
sentencing, appellants have failed to demonstrate sentencing
manipulation amounting to "extraordinary misconduct." Id."Because manipulation is largely a fact-bound inquiry, even
the district court's ultimate judgment whether the
government's conduct is outrageous or intolerable is not
lightly to be disregarded." Id. at 4. We decline to reverse
that judgment here.
The district court did not abuse its discretion in
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denying appellants' request at sentencing for an evidentiary
hearing on the issue of sentencing factor manipulation.
Under the Sentencing Guidelines, "when any factor important
to the sentencing determination is reasonably in dispute, the
parties shall be given an adequate opportunity to present
information to the court regarding that factor." U.S.S.G.
6A1.3. In this case, the facts in the presentence report
were undisputed. The district court repeatedly questioned
appellants at sentencing about the facts that they sought to
prove by introducing evidentiary evidence. Rather than hold
a formal hearing, the court assumed, for the purposes of
sentencing, the truth of those alleged facts. The court
properly concluded that, even with those assumptions,
appellants were not entitled to an adjustment in their
sentences. There was no abuse of discretion.
In his pro se supplemental brief, Natanael Guzman raises
several additional issues, none of which entitle him to
relief. Natanael objects belatedly to certain evidentiary
matters related to the grand jury proceedings. Even had the
issues been raised below (which they apparently were not),
Natanael's guilty plea "effectuates a waiver of any and all
independent non-jurisdictional lapses that may have marred
the case's progress up to that point." United States v.
Cordero, 42 F.3d 697, 699 (1st Cir. 1994). Natanael also
waived his constitutional right to a speedy trial, not only
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by failing to assert the right, but also by contributing to
the delay when he moved for a continuance of the trial date.
See Barker v. Wingo, 407 U.S. 514, 529 (1972). Finally,
because Natanael did not present his ineffective assistance
claim to the trial court first, we decline to consider it.
See United States v. Guzman, 85 F.3d 823, 830 (1st Cir.
1996).
The convictions and sentences of Jeremias and Natanael
Guzman are summarily affirmed. See Loc. R. 27.1.
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