United States v. Cardenas ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-10009
Plaintiff-Appellee,
v.  D.C. No.
CR-99-20217-JW
MARTIN CARDENAS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
March 18, 2005—San Francisco, California
Filed May 4, 2005
Before: John T. Noonan, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Noonan
4857
4858 UNITED STATES v. CARDENAS
COUNSEL
Christopher Johns, San Rafael, California, for the defendant-
appellant.
Amber Rosen, San Jose, California, for the plaintiff-appellee.
UNITED STATES v. CARDENAS 4859
OPINION
NOONAN, Circuit Judge:
Martin Cardenas appeals the mandatory minimum sentence
he received after pleading guilty to three counts of possessing
heroin with intent to distribute, and one count of possessing
heroin and cocaine with intent to distribute. Although he
waived the right to appeal, he contends that the government
breached the plea agreement and that his sentence is illegal
because he was entitled to the safety valve codified at 18
U.S.C. § 3553(f). We hold that there was no breach by the
government and that the sentence was not illegal. We dismiss
the appeal.
FACT AND PROCEEDINGS
During the month of September 1999, Cardenas on three
occasions sold a total of 50 ounces of heroin for a total
amount of $25,950. He was indicted November 24, 1999 and
in June 2000 entered into a written plea agreement with the
government admitting these acts as crimes in violation of 21
U.S.C. § 841(a), subject to a mandatory minimum sentence of
ten years imprisonment unless he qualified for the safety
valve. As part of this agreement, he stated, “I also agree to
waive any right I may have to appeal my sentence.” The gov-
ernment agreed “to recommend the Guidelines calculations
set out above [showing an adjusted offense level of 27] if the
Court determines that the mandatory minimum prison sen-
tence does not apply.” Sentencing was postponed.
On July 18, 2001, Cardenas signed a “Safety Valve State-
ment” to render himself eligible for safety valve relief under
18 U.S.C. § 3553(f). He confirmed that the government’s
investigative reports of his activities were “true and accurate.”
He admitted that he had sold drugs on more than the three
occasions he had pled to. He named his supplier as Bartolo
Sierra, a.k.a. El Pelotus. He admitted to making phone calls
4860 UNITED STATES v. CARDENAS
related to his selling of drugs. As to whether any family mem-
bers were involved in selling drugs, he stated, “I cannot con-
firm this for the government for personal family reasons.” He
declared himself willing to answer further questions.
A sentencing hearing was held on July 30, 2001. The gov-
ernment stated that in two safety valve interviews Cardenas
had not been “truthful and complete.” Sentencing was
deferred. A third safety valve interview was conducted by the
government’s attorney. According to his report to the court,
Cardenas stated “that he had never sold drugs before or out-
side of these three occasions.” The government attorney
added that in none of the three interviews had Cardenas been
“credible or complete.” Cardenas told the court, “I had never
sold any other drugs other than these.” The court then stated,
“It does appear to me that given the quantity of drugs
involved and the financial amounts involved that there is good
reason for the government’s question of the credibility of Mr.
Cardenas with respect to the nature of his activities. It also
appears that the inconsistencies in his various stories give rise
to doubt and he himself admits that he has not been forthcom-
ing.”
The court sentenced Cardenas to the statutory mandatory
minimum, ten years imprisonment. Cardenas appeals.
ANALYSIS
Despite his knowing and unequivocal waiver of his right to
appeal his sentence, Cardenas argues three grounds why the
waiver does not hold. We consider them in turn.
[1] Breach of the plea agreement. Cardenas argues that the
government “implicitly agreed” to support application of the
safety valve if Cardenas satisfied the statutory requirements
set by 18 U.S.C. § 3553(f)(5). It is difficult to see what provi-
sion of the plea agreement can be understood as an implica-
tion of a promise. Explicitly, the government promised to
UNITED STATES v. CARDENAS 4861
support the application if the court determined that the statu-
tory conditions were met. The government made no other
promise. The court did not so determine. The government did
not breach the agreement.
[2] Illegal sentence. Cardenas contends that he was entitled
to the safety valve and that therefore his sentence is illegal.
“An illegal sentence is one ‘not authorized by the judgment
of conviction’ or ‘in excess of the permissible statutory pen-
alty for the crime.’ ” United States v. Vences, 169 F.3d 611,
613 (9th Cir. 1999) (quoting United States v. Fowler, 794
F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094
(1987)). Cardenas’ sentence is not illegal. His contention
turns out to be a recasting of the argument relative to the
safety valve. Cardenas’s recantation with regard to other drug
sales, he maintains, does not involve relevant conduct under
18 U.S.C. § 3553(f)(5). The irrelevance is hard to see. The
argument, moreover, does not go to the basis of the district
court’s scepticism that Cardenas had not fully disclosed all he
knew given “the quantity of drugs involved and the financial
amounts involved.” Cardenas tries to bolster his position by
saying that the investigative reports which he admitted to be
correct should have been part of the record. The court had the
substance of these reports through the pre-sentence report;
they did not change the court’s estimate of Cardenas’s credi-
bility.
[3] Disagreement with the sentencing court’s credibility
determination does not show that the sentence imposed was
illegal. Cardenas’s waiver of appeal holds.
[4] Booker issue. The teaching of United States v. Booker,
125 S. Ct. 738 (2004), on the Sentencing Guidelines, 18
U.S.C. § 3553(b)(1), means that his waiver of appeal of the
sentence was involuntary and unknowing, Cardenas says. The
argument fails both because Booker does not bear on manda-
tory minimums and because a change in the law does not
4862 UNITED STATES v. CARDENAS
make a plea involuntary and unknowing. United States v.
Johnson, 67 F.3d 200, 202-03 (9th Cir. 1995).
Appeal DISMISSED.