United States v. Cedeno , 243 F. App'x 682 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-26-2007
USA v. Cedeno
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2899
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"USA v. Cedeno" (2007). 2007 Decisions. Paper 696.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2899
__________
UNITED STATES OF AMERICA
v.
DAMASO CEDENO,
Appellant
__________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 05-cr-00216)
District Judge: Hon. William W. Caldwell
__________
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
June 18, 2007
Before: McKEE, FISHER, and CHAGARES, Circuit Judges
(Opinion Filed: July 26, 2007)
__________
OPINION
__________
1
McKee, Circuit Judge:
Damaso Cedeno appeals the sentence that was imposed after he pled guilty to one
count of unlawfully possessing with the intent to manufacture and distribute an
unspecified amount of cocaine. For the reasons that follow, we will affirm.1
I.
Inasmuch as we write primarily for the parties who are familiar with the case, we
need not set forth the factual background or procedural history except insofar as may be
helpful to our brief discussion. Pursuant to the terms of the plea agreement, Cedeno
agreed that the amount of cocaine attributable to him was to be determined at the
sentencing hearing.2 Cedeno argues that the district court erred by imposing the
mandatory prison term of ten years under 21 U.S.C. § 841(b)(1)(A) based solely on the
court’s determination of the amount of cocaine. He claims the quantity should have been
established beyond a reasonable doubt, and that the court should have applied the safety
valve provision of 18 U.S.C. § 3553(f).
1
We have jurisdiction to review all final decisions of the district court of the United
States under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
“We exercise plenary review over the District Court’s interpretation of the Sentencing
Guidelines and constitutional questions.” United States v. Lennon, 372 F.3d 535, 538 (3d Cir.
2004).
2
Cedeno’s sentencing memorandum acknowledged the following language of the United
States Sentencing Guidelines:
With respect to offenses involving contraband (including controlled substances), the
defendant is accountable for all quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal activity that he jointly undertook.
U.S.S.G. § 1B1.3, commentary, application note (2)(ii).
2
II.
Cedeno’s appeal was filed before we decided, United States v. Grier, 475 F.3d
556, 565 (3d Cir. 2007) (en banc). Cedeno’s claim that the court could not determine
drug quantity absent proof beyond a reasonable doubt is foreclosed by that decision. We
there held that the Due Process Clause does not require facts relevant only to sentencing
enhancements to be proven beyond a reasonable doubt.3 Grier, 475 F.3d at 565-66.
Rather, such findings need only be supported by a preponderance of the evidence.
Additionally, under U.S.S.G. § 1B1.3(a)(1)(A), a defendant’s guideline range is
determined on the basis of “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.”
There is no dispute about the actual weight of the drugs involved in this case.
Rather, Cedeno argues that the government did not establish that he knew how much the
drugs he was transporting weighed.4 He admitted the interstate transportation of all of the
cocaine he was charged with possessing with the intent to distribute. It was therefore
appropriate to hold him responsible for that entire amount, even if he did not know the
precise weight. The district court found by a preponderance of the evidence that that
cocaine weighed eight kilograms, and that quantity triggered the statutory maximum of
3
Booker altered the constitutional impact of the Sentencing Guidelines by excising the
provisions of the United States Code requiring mandatory application of the Guidelines. United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
4
The Presentence Report states that the laboratory analysis revealed that the cocaine
weighed 8.029 kilograms.
3
ten years imprisonment. See 21 U.S.C. § 841(b)(1)(A); and U.S.S.G § 5G1.1(c)(2). The
guideline term is 120 months. The record also establishes that the court considered the
relevant sentencing factors and reasonably applied them in imposing sentence.
III.
The safety valve provisions in 18 U.S.C. § 3553(f) apply if five specified
conditions are met. The fifth condition under § 3553(f) is the only one in dispute here.
That condition requires a defendant to truthfully provide all relevant information and
evidence pertaining to the offense to the government. 8 U.S.C. § 3553(f)(5). The
defendant must show, by a preponderance of the evidence, that he/she complied with that
requirement. See United States v. Sabir, 117 F.3d 750, 754 (3d Cir. 1997) (citing United
States v. Ramirez, 94 F.3d 1095, 1100-02 (7th Cir. 1996).5
Although Cedeno did file a sentencing memorandum in which he purported to
comply with that requirement, the district court questioned the veracity of the information
Cedeno provided. The court also found that the information he gave was vague.6
Although Cedeno requested an additional opportunity to address the court’s concerns, the
court proceeded to sentence him based upon the information Cedeno’s first bite of the
5
We exercise plenary review over interpretation of the safety valve provision as it raises
a legal question, but the district court’s factual findings with regards to the safety valve
conditions are reviewed for clear error. United States v. Sabir, 117 F.3d 750, 752 (3d Cir. 1997).
6
Cedeno claimed he “didn’t know how much drugs were there or didn’t know who was
giving it to him or where it was going.” The district court quite naturally concluded that the
“information isn’t helpful to anybody” as it is “hard to believe that somebody who is
transporting cocaine in whatever amount and is going to get $4,000 when he delivers it doesn’t
know . . . where the person is . . . [or] how . . . he was going to make this delivery[.]” We agree.
4
apple provided. However, the court nevertheless suggested that the government could
file a Rule 35 motion to reduce the sentence if appropriate in view of any subsequent
information Cedeno might choose to provide. That was both reasonable and appropriate.
Although Cedeno claims that the district court erred and misunderstood his request
for an additional opportunity to obtain evidence for the government, the record does not
support that claim. Accordingly, we conclude that the district court’s finding was not
clearly erroneous, and the resulting sentence was reasonable given the court’s
consideration of the various sentencing factors set forth in § 3553(a).
IV.
For all the above reasons, we will affirm the judgment of sentence.
5