United States v. Sagrario Valdez , 297 F. App'x 560 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2019
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Sagrario Valdez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 23, 2008
Filed: October 16, 2008
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
After Segrario Valdez pleaded guilty to conspiring to distribute
methamphetamine, the district court1 sentenced her to 199 months' imprisonment,
three years below the recommended guideline range. Ms. Valdez appeals her
sentence, contending that the court erred in determining drug quantity and her role in
the offense and imposed an unreasonable sentence. We affirm.
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
Ms. Valdez asserts that the district court plainly erred in determining that she
was responsible for 22.68 kilograms of methamphetamine when calculating her
guideline sentence. In her brief, Ms. Valdez acknowledges that she was part of a drug
conspiracy that lasted almost three years. According to the presentence report's
description of numerous drug transactions, the conspirators transported significant
quantities of methamphetamine from California to Iowa, where the drugs were then
distributed. The PSR further stated that an informant had reported that "over
50 pounds" (22.68 kilograms) of methamphetamine was distributed in Iowa on behalf
of the conspiracy, and the PSR concluded that "material contained in the
Government's discovery files supports the attribution" of 22.68 kilograms of
methamphetamine.
A sentencing court "may accept any undisputed portion of the presentence
report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A); see United States v.
Cervantes, 420 F.3d 792, 796 (8th Cir. 2005). Ms. Valdez did not object to any of the
offense conduct detailed in the PSR. During sentencing, moreover, her attorney told
the court that he had "had a chance to go over the PSR" with Ms. Valdez and that he
was not asking for any modification to the PSR's description of the offense conduct.
Later in the proceedings, counsel agreed with the court's guideline-range calculation
(235 to 293 months), which was based on 22.68 kilograms of methamphetamine.
Before imposing sentence, the district court offered Ms. Valdez an opportunity to
speak, but she declined to do so. Ms. Valdez points to an admission in her plea
agreement that she was responsible for "at least 173.24 grams of methamphetamine."
But by its terms this admission adverts to a minimum amount only, and when the PSR
later stated that she was responsible for more methamphetamine, she did not object.
We therefore detect no error, plain or otherwise, in the district court's determination
that Ms. Valdez was responsible for 22.68 kilograms of methamphetamine, the
undisputed amount set out in the PSR. See Fed. R. Crim. P. 32(i)(3)(A).
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Ms. Valdez also maintains that the district court erred in increasing her offense
level by three for her role in the offense. See U.S.S.G. § 3B1.1. The PSR stated that
Ms. Valdez "oversaw the business end" of the "methamphetamine distribution
business" and was "the most culpable" of the conspirators, and it recommended that
her offense level be increased by four levels, which is appropriate for an organizer or
leader of an "extensive" criminal activity. See id. Before sentencing, Ms. Valdez
objected to the PSR's characterization of her role, arguing that it was based on
statements from co-conspirators who were trying to minimize their own culpability.
During sentencing, Ms. Valdez's attorney and counsel for the government announced
that they had agreed to an increase of three levels, rather than four, for Ms. Valdez's
role in the offense, and the court calculated her guideline range accordingly. We
therefore conclude that the issue has been waived.
We see no merit to Ms. Valdez's contention that the district court imposed an
unreasonable sentence because it did not give weight to her "familial characteristics,"
particularly her "status as the mother of four children" and her "personal relationship"
with co-conspirator Jose Amparano-Gonzales (the father of one of her children), when
assessing Ms. Valdez's "history and characteristics" under 18 U.S.C. § 3553(a).
We note that Ms. Valdez, in the course of raising the issues that we have
addressed, asserts in her brief that she did not see the PSR before her sentencing
hearing, that she did not enter into an agreement regarding her role in the offense, and
that she did not agree to a sentencing guideline range "like her lawyer did." For
present purposes, Ms. Valdez is bound by her attorney's acts and representations. See
New York v. Hill, 528 U.S. 110, 114-15 (2000); see also Loggins v. Frey, 786 F.2d
364, 368 (8th Cir. 1986), cert. denied, 479 U.S. 842 (1986). Insofar as she is
challenging the adequacy of her legal representation at sentencing, such matters
should be raised, if at all, in a post-conviction motion under 28 U.S.C. § 2255 rather
than on direct appeal. United States v. Pherigo, 327 F.3d 690, 696 (8th Cir. 2003).
Affirmed.
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