United States v. Mattei-Garcia ( 2001 )

United States Court of Appeals
For the First Circuit
No. 01-1298
UNITED STATES,
Appellee,
v.
ELLIOT GIRAUD-PINEIRO, A/K/A PIVI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Doumar,* Senior District Judge.
Howard M. Srebnick, Christine Ng, and Black, Srebnick &
Kornspan, P.A., on brief for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco were on brief for appellee.
October 19, 2001
* Of the Eastern District of Virginia, sitting by designation.
STAHL, Senior Circuit Judge. The defendant, Elliot
Giraud-Pineiro, pled guilty to conspiracy to possess cocaine
with intent to distribute and conspiracy to finance illegal
narcotics transactions. He now appeals his sentence. For the
following reasons, we affirm.
I.
In a multi-count indictment that named numerous co-
defendants, Giraud-Pineiro was charged in three counts: Count
One alleged that the defendants conspired to possess with intent
to distribute more than five kilograms of cocaine and more than
one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1)
and 846; Count Two alleged that the defendants conspired to
finance these illegal transactions in violation of 18 U.S.C. §
1956; and Count Six was a forfeiture count.
Defendant initially pled not guilty to these charges.
On May 17, 2000, Giraud-Pineiro and the government entered into
a plea agreement, in which he agreed to plead guilty to the
offenses charged in Counts One and Two of the indictment. The
plea agreement states that the defendant was originally indicted
for possessing more than five kilograms of cocaine, and
incorporates a factual statement that the conspiracy involved
hundreds of kilograms of cocaine and that the defendant's role
was to finance the cocaine shipments and manage the financial
-3-
transactions so as to conceal the illegal proceeds. In return
for his guilty plea, the government agreed that the defendant
would “be held accountable in determining the applicable
guideline range to at least three point five (3.5) but less than
five (5) kilograms of cocaine.” This stipulation had the effect
of decreasing defendant's penalty exposure from ten years to
life imprisonment, see 21 U.S.C. § 841(b)(1)(A), to a range of
five to forty years, see 21 U.S.C. § 841(b)(1)(B). In the plea
agreement, it was agreed that the applicable offense level for
the more serious count in the indictment (Count One) would be
30,1 translating into a sentencing range of 97 to 121 months for
a defendant with no prior criminal history. Based on this
calculation, the government agreed that it would recommend to
the Court a sentence of 120 months.2
At the change-of-plea hearing, the district court
advised the defendant about the consequences of pleading guilty,
and informed him that, as Count One of the indictment reads, it
carried a mandatory minimum term of ten years to a maximum of
1 This offense level was calculated by using a base
offense level of 30, applicable for the 3.5 to less than five
kilogram quantity, minus three levels for acceptance of
responsibility, plus three levels for defendant's role in the
offense.
2 The plea agreement left defendant free to argue for a
sentence at the lower end of the applicable guideline range.
-4-
life imprisonment. However, the district court specifically
noted that the plea agreement stated that the government would
only attribute to defendant an amount of cocaine of at least 3.5
kilograms but less than five kilograms. The defendant confirmed
that this was his understanding. Satisfied that the decision of
the defendant was made knowingly and voluntarily, the district
court accepted the change of plea.
The probation office's presentence report recognized
that the defendant had pled guilty to the offenses listed in the
indictment, but that the plea agreement stipulated to a lesser
quantity of drugs. The report also confirmed the government's
calculation of the base offense level (30) and criminal history
category (I), indicating a guideline range of 97 to 121 months
imprisonment, with an applicable five-year mandatory minimum.
The district court accepted the recommendation of the probation
office and adopted its calculations as the applicable guideline
range in this case. At sentencing, as agreed, the government
recommended that the defendant be sentenced to a term of 120
months. The defendant was then sentenced to a term of 120
months on Counts One and Two, to be served concurrently,
followed by five years of supervised release.
II.
-5-
Giraud-Pineiro appeals his sentence, claiming that the
prosecutor breached the plea agreement by suggesting that he
was, in fact, responsible for “hundreds” of kilograms of drugs,
directly contradicting the amount stipulated by the parties.
Defendant emphasizes that during the sentencing hearing the
government claimed that he had pled guilty to more than five
kilograms of cocaine, and, as a result, the court sentenced him
to the mandatory minimum of 120 months for the sale of more than
five kilos. As a result, Giraud-Pineiro insists that he is
entitled to a new sentencing hearing before a different judge.
This court exercises plenary review over the issue of
whether the government has breached a plea agreement. See
United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995). However,
we review only for plain error when the defendant has knowledge
of the conduct that purportedly amounts to a breach of the plea
agreement, but nevertheless fails to bring it to the attention
of the district court, as is the case here. See United States
v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (citing, inter alia,
Johnson v. United States, 520 U.S. 461, 466 (1997)).
We are satisfied that there was no breach of the plea
agreement in this case. The government fulfilled its obligation
under the plea agreement when it recommended a sentence of 120
-6-
months. Even though Giraud-Pineiro pled guilty to Count One of
the indictment, which stated that the offense involved more than
five kilograms of cocaine, the judge made clear at the change-
of-plea hearing that he would only hold the defendant
responsible for an amount greater than 3.5 kilograms but less
than five kilograms in accordance with the joint stipulation.3
Likewise, at the sentencing hearing, the judge emphasized that
he was only taking into account the lesser amount of drugs, as
reflected in the plea agreement, when making his sentencing
determination.4 Nothing in the transcript suggests that the
sentencing judge believed that the statutory mandatory minimum
of ten years was applicable to defendant's case. Nor did the
sentencing judge indicate that he was influenced by the fact
that, in the absence of the stipulation, the defendant would
have been subject to the ten-year mandatory minimum. The trial
judge simply accepted the recommendation of the government,
3 (“Regarding guidelines, you're going to be held liable
for at least 3.5, but less than five kilos of cocaine. . . .
There is together to be a recommendation that you be sentenced
in both cases to 120 months.”).
4 (“[Defendant] stipulated to an amount of drug [sic],
and he's going to walk out the door sentenced to that amount of
drugs. . . .”); (“[Defendant] stipulated that he was
responsible for at least 3.5 but less than 5 kilos of cocaine,
and that gives us a base level of 30 under guideline section
2D1.1.“).
-7-
apparently because he believed that a sentence at the high end
of the guideline range was appropriate.
III.
Having found no error in the proceedings below, we
hereby affirm the sentence imposed by the district court.
Affirmed.
-8-