United States v. Morales , 260 F. App'x 585 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE LUIS MORALES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-00037-sgw)
Submitted: November 21, 2007 Decided: January 7, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, PLC,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Anthony P. Giorno, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Morales pled guilty to conspiracy to possession
of 500 grams or more of methamphetamine with intent to distribute,
21 U.S.C. § 846 (2000), and was sentenced to a term of 151 months
imprisonment. Morales appeals his sentence, arguing that the
district court’s fact findings in connection with the sentence were
error under United States v. Booker, 543 U.S. 220 (2005);
contesting the court’s decision to deny him an adjustment for
acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1 (2006), and a reduction under the safety valve provisions
in USSG § 2D1.1(b)(9) and § 5C1.2; and arguing that the sentence is
unreasonable because the district court refused to impose a
sentence below the guideline range to correct an alleged
unwarranted disparity between Morales’ sentence and the sentences
received by his co-defendants and other similarly situated
defendants. We affirm.
On February 22, 2006, state and federal law enforcement
officers executed a search warrant at the home of Stephanie
Fitzgerald. They found 134.08 grams of crack, $9765, scales, and
packaging materials. Fitzgerald decided to cooperate and called
Michael Fisher, who agreed to bring more methamphetamine to her
house. Fisher and Morales arrived shortly afterward. Fisher was
carrying a bag that contained 364.39 grams of methamphetamine; he
had another 110.92 grams of methamphetamine in his pocket. He was
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also carrying a pistol and ammunition. Morales was carrying $927
in currency and a small quantity of methamphetamine. Morales’
wife, Jennifer Fisher Morales (Michael Fisher’s sister), was later
arrested. Morales told investigators that he bought small amounts
of methamphetamine for himself and his wife, but denied selling
methamphetamine. However, Fitzgerald, Michael Fisher, and Jennifer
Fisher Morales all implicated Jose Morales in the conspiracy. In
particular, Michael Fisher said that he delivered four ounces of
methamphetamine to Fitzgerald from Jose and Jennifer Morales on ten
occasions, a total of 1134 grams of methamphetamine.
In the presentence report, the probation officer
recommended that Morales was responsible for more than 1.5
kilograms of methamphetamine. This amount included the 609.39
grams of methamphetamine seized at Fitzgerald’s house on February
22, 2006; another 252.60 grams of methamphetamine which was the
equivalent of the $10,692 seized from Fitzgerald and Michael
Fisher; and the 1134 grams of methamphetamine that Michael Fisher
said he delivered to Fitzgerald between November 2005 and February
2006. The probation officer recommended a base offense level of 34
(500 grams to 1.5 kilograms of methamphetamine), see USSG
§ 2D1.1(c)(3)), but did not recommend an adjustment for acceptance
of responsibility.
Morales objected to the drug quantity on constitutional
grounds and claimed that the evidence of a higher drug quantity was
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based on unreliable statements from his co-defendants. He also
asserted that he should receive an adjustment for acceptance of
responsibility based on his guilty plea. He maintained that his
statement to the probation officer in which he admitted obtaining
methamphetamine for his personal use satisfied the “truthful
proffer” requirement for a safety valve reduction. See 18 U.S.C.
§ 3553(f) (2000); USSG § 5C1.2(a)(5).* Finally, he argued that his
sentence should not be longer than the sentences of his co-
defendants and other similarly situated defendants in the same
district.
At sentencing, after hearing testimony from the federal
case agent and from Michael Fisher, the district court concluded
that Fisher was a credible witness and determined that the quantity
involved in the conspiracy exceeded 1.5 kilograms of
methamphetamine, enough to justify a base offense level of 34. The
court decided that Morales had not accepted responsibility because
he had minimized his role in the conspiracy. The court also
determined that Morales was not eligible for the safety valve
reduction because any admissions he had made to the probation
officer did not qualify as information provided to the government
and because Morales’ admissions to the probation officer minimized
*
The fifth criteria for a safety valve reduction is that the
defendant, by the time of sentencing, have “truthfully provided to
the Government all information and evidence [he] has concerning the
offense . . . .” 18 U.S.C. § 3553(f)(5); USSG § 5C1.2(a)(5).
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his participation in the conspiracy. The court held that there was
no constitutional violation because the guidelines were applied as
advisory.
Morales’ attorney then requested a downward departure,
arguing that a sentence greater than those received for the same
crime by his co-defendants, and other defendants in the same
district, would violate Booker by creating unwarranted disparity.
The request in fact constituted a request for a variance sentence
pursuant to 18 U.S.C. § 3553(a)(6) (2000). The district court
declined to impose a sentence below the guideline range, stating
that –
[T]he Court sees this defendant’s role in this offense as
substantial, as being one of the actual suppliers within
this conspiracy; that [and] his lack of acceptance of
responsibility in this matter are factors that I think
are important for me to take into account. I have
factored them in and I have considered all of the factors
under [18 U.S.C.A. §] 3553(a) [(West 2000 & Supp. 2007)]
in arriving at the decision [to impose a sentence of 151
months].
Morales’ first allegation of error under Apprendi v. New
Jersey, 430 U.S. 566 (2000), and Booker is without merit. After
Booker, the sentencing court must still calculate the appropriate
advisory guideline range by making any necessary factual findings.
United States v. Battle, 499 F.3d 315, 322 (4th Cir. 2007),
petition for cert. filed, ___ U.S.L.W. ___, (U.S. Oct. 4, 2007)
(No. 07-6945); United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). The court must then
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consider the resulting advisory guideline range in conjunction with
the factors set out in § 3553(a) and determine an appropriate
sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). We will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable,” id. at 433
(internal quotation marks and citation omitted), and “a sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)
(upholding application of rebuttable presumption of reasonableness
to within-guidelines sentence). Consequently, Morales’ sentence
did not constitute a violation of the Sixth Amendment or an
erroneous upward variance, as he contends. See Battle, 499 F.3d at
322.
Morales claims that the district court’s factual finding
concerning the quantity of methamphetamine was erroneous because
the court relied on Michael Fisher’s testimony. However, under the
advisory guideline system, the district court continues to make
factual findings about sentencing factors by a preponderance of the
evidence, and its findings are reviewed for clear error. Battle,
499 F.3d at 322-23. The court found Fisher’s testimony credible.
The district court’s credibility findings are not reviewable on
appeal. See United States v. Locklear, 829 F.2d 1314, 1317 (4th
Cir. 1987) (“Absent compelling evidence to the contrary, this court
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declines to overturn a factual determination founded on witness
demeanor and credibility.”). In addition, Fisher’s testimony was
corroborated by Fitzgerald’s statement. Therefore, the district
court did not clearly err in finding that Morales was responsible
for more than 1.5 kilograms of methamphetamine based in part on
Fisher’s testimony.
Next, we find no clear error in the district court’s
decision to deny Morales an adjustment for acceptance of
responsibility. To receive the adjustment, a defendant must
demonstrate “by a preponderance of the evidence that he has clearly
recognized and affirmatively accepted personal responsibility for
his criminal conduct.” United States v. May, 359 F.3d 683, 693
(4th Cir. 2004) (quoting United States v. Nale, 101 F.3d 1000, 1005
(4th Cir. 1996)). A guilty plea alone is insufficient to entitle
a defendant to the adjustment. May, 359 F.3d at 693; USSG § 3E1.1,
comment. (n.3) (a guilty plea is significant evidence of acceptance
of responsibility, but is not dispositive). The district court’s
determination that a defendant has accepted responsibility is
reviewed for clear error. United States v. Dugger, 485 F.3d 236,
239 (4th Cir. 2007).
Morales argues that he made an early decision to plead
guilty with or without a plea agreement, which should have entitled
him to the adjustment. He asserts that he made “truthful
admissions” in connection with his plea. However, he admitted only
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that he bought small amounts of methamphetamine for personal use
and denied selling methamphetamine in any quantity. His position
at sentencing was thus at odds with the factual basis underlying
his guilty plea, to which he assented. The court determined that
Morales had minimized his participation in the conspiracy in a
manner which precluded an adjustment for acceptance of
responsibility. The court’s finding was not clearly erroneous.
With respect to the safety valve reduction, the district
court must determine whether the defendant has satisfied the five
criteria set out in § 5C1.2. United States v. Ivester, 75 F.3d
182, 185 (4th Cir. 1996). The defendant has the burden of showing
that he has met all five requirements, United States v. Wilson, 114
F.3d 429, 432 (4th Cir. 1997), and also has the burden of acting
affirmatively to satisfy the fifth criteria, that is, “to ensure
that the Government is truthfully provided with all information and
evidence [he has] concerning the relevant crimes.” Ivester, 75
F.3d at 185. Disclosures made to the probation officer do not
satisfy this requirement. United States v. Wood, 378 F.3d 342, 353
(4th Cir. 2004). The district court’s factual finding as to
whether the defendant has made the necessary showing as to each
requirement is reviewed for clear error. Wilson, 114 F.3d at 432.
Here, the district court found that Morales’ statements
to the probation officer were not sufficient, and in any case, in
those statements Morales minimized his participation in the
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offense. Therefore, the court determined in effect that Morales
had made no attempt to provide to the government all information he
possessed about the offense, which made him ineligible for the
safety valve reduction. We conclude that the district court’s
factual finding was not clearly erroneous.
Last, Morales argues that the court failed to avoid an
unreasonable sentence disparity between his sentence and the
sentences of his co-defendants, all of whom received sentences of
100 months or less, and the eighty-seven-month sentences given in
early 2007 by a different judge in the same division to three other
federal defendants guilty of methamphetamine conspiracy.
One of the factors the sentencing court must consider is
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct . . . .” 18 U.S.C. § 3553(a)(6). However, “the
kind of disparity with which § 3553(a) is concerned is an
unjustified difference across judges (or districts) rather than
among defendants to a single case.” United States v. Pyles, 482
F.3d 282, 290 (4th Cir. 2007) (internal quotation and citation
omitted), petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 23,
2007) (No. 07-5497); see also United States v. Clark, 434 F.3d
684, 687 (4th Cir. 2006) (same).
However, under Pyles and Clark, Morales’ co-defendants’
sentences are not relevant to the question of unwarranted
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disparity. With respect to the sentences of other defendants in
the Harrisonburg area, Morales made no showing that their lower
sentences were due to anything other than the proper application of
the guidelines. In his reply brief, Morales claims that he was
unable to prove unwarranted disparity based on a pattern of
discrimination against Hispanic defendants because the records for
the defendants whose judgments he submitted are sealed, and he
asserts that the district court should have investigated the sealed
records of these defendants and others to determine the proper
sentence in his case. Whatever the practical difficulties may be
in proving unwarranted disparity, Morales did not show that the
differences in the sentences were grounds for a variance.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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