United States v. Guzman , 142 F. App'x 474 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1425
UNITED STATES,
Appellee,
v.
JOSE GUZMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.
August 4, 2005
Per Curiam. Jose Guzman appeals from his sentence. While his
appeal was pending, the Supreme Court decided Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,
542 U.S. ___, 125 S. Ct. 738 (2005). Guzman has filed supplemental
briefs raising claims under both Blakely and Booker. Guzman pled
guilty to conspiring to possess with intent to distribute and to
distribute more than five kilograms of cocaine, in violation of 21
U.S.C. § 841(a)(1). The statutory mandatory minimum sentence for
the offense to which he pled guilty is ten years' imprisonment. See
21 U.S.C. § 841(b)(1)(A)(ii). Guzman received a prison sentence of
ten years. Those three undisputed facts dispose of all of Guzman's
claims.
I. Original Claim: Breach of Plea Agreement
Guzman's original claim was that the government had breached
its plea agreement with him by referring in its amended motion
pursuant to U.S.S.G. §5K1.1 to a Guidelines sentencing range beyond
what the plea agreement had contemplated. He sought specific
performance of the plea agreement and resentencing with a
recommendation by the government for a sentence based on a base
offense level of 32.
It is unnecessary to decide whether the government breached
the plea agreement by referring in its amended § 5K1.1 motion to a
guideline imprisonment range of 262 to 327 months, which
corresponded with the offense level calculated under § 4B1.1, the
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career offender Guidelines provision, rather than with the offense
level calculated under § 2D1.1, based on drug quantity (which would
yield an imprisonment range of 151 - 188 months). Guzman concedes
that the issue was not raised below and, therefore, that plain
error review applies. Even if there had been a breach, Guzman
cannot satisfy the third prong of plain error review, which
requires a showing that the error "affects substantial rights."
United States v. Olano, 507 U.S. 725, 732 (1993).
The government neither agreed to request nor requested a
departure in accord with 18 U.S.C. § 3553(e), below the statutory
mandatory minimum sentence. The government requested that the
sentencing court depart below the applicable Guidelines sentencing
range to impose a sentence of 120 months, the statutory mandatory
minimum. The sentencing court granted that request. Therefore,
Guzman has not shown that the alleged breach affected his sentence.
II. Blakely/Booker Claims
In his first supplemental brief, Guzman argues that his
sentence is invalid under Blakely because the facts underlying his
career offender enhancement (specifically his age and the fact of
his prior offenses) were not found by a jury or admitted by him.
In his second supplemental brief, he argues that he is entitled to
remand for resentencing under Booker because he was sentenced under
a mandatory Guidelines system and there was a reasonable
probability that he would receive a lighter sentence under an
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advisory Guidelines system. Neither claim has merit.
Guzman received the mandatory minimum statutory sentence for
the offense to which he pled guilty, i.e., conspiring to possess
with intent to distribute and to distribute more than five
kilograms of cocaine. Therefore, there was no enhancement of his
sentence based on judge-found facts. "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."
Antonakopoulos, 399 F.3d at 75; see United States v. Bermudez, 2005
WL 1208131, No. 04-1222, slip op. at 19-20 (1st Cir. May 23, 2005).
In addition, "the rationale of Apprendi does not apply to
sentence-enhancement provisions based upon prior criminal
convictions." United States v. Moore, 286 F.3d 47, 51 (1st Cir.
2002); see also United States v. Stearns, 387 F.3d 104, 107 (1st
Cir. 2004) (holding that the fact of a prior conviction is beyond
the ambit of Blakely), cert. denied, __ U.S. __, 125 S. Ct. 1614(2005). Post-Booker it remains the law that "prior criminal
convictions are not facts that a jury must find beyond a reasonable
doubt." United States v. Lewis, 406 F.3d 11, 21 n. 11 (1st Cir.
2005).1
1
To the extent that Guzman based his Blakely claim on the
judicial factfinding with respect to his age at the time the
offense was committed, that argument is frivolous. Guzman did not
object below to the PSR's reporting of his birth date as 1966
(making him 35 at the time the offense was committed). "In the
post-Apprendi world, this court adopted a rule that any such error
in sentencing should be held harmless so long as the evidence of
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Defendant-Appellant's Motion to Proffer Facts Not on the
Record is granted. Guzman's conviction and sentence are affirmed.
See 1st Cir. R. 27(c).
the trial judge's factual findings is overwhelming and no
reasonable jury could have disagreed with them." United States v.
Morgan, 384 F.3d 1, 8 (1st Cir. 2004).
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