United States v. TaverasUnited States v. Taveras
Case Information
*1 Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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. 03-2283
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN TAVERAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Todd A. Bussert on brief for appellant. Paula D. Silsby, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), on brief for appellee.
December 21, 2004
*2
Per Curiam. This is an appeal from a sentence imposed pursuant to the federal sentencing guidelines. The underlying case arose out of a two-count superseding indictment that charged defendant-appellant Juan Taveras with conspiracy to possess with intent to distribute fifty grams or more of cocaine base and a detectable amount of heroin (count 1) and distribution of five grams or more of cocaine base and a detectable amount of heroin (count 2). See 21 U.S.C. §§ 841(a)(1), 846. The appellant eventually entered a straight plea of guilty (i.e., a plea unaccompanied by a plea agreement) to count 2 of the superseding indictment. [1]
The district court convened a sentencing hearing on September 3, 2003. It found the appellant responsible for 54.9 grams of cocaine base and 67.365 grams of heroin, aggregating 1,165.4 kilograms of marijuana equivalent. That finding yielded a base offense level of 32. See USSG §2D1.1. The court subtracted three levels for acceptance of responsibility, id. §3E1.1; placed the appellant in criminal history category III; and constructed a guideline sentencing range of 108-135 months, see id. Ch.5, Pt.A (sentencing table). The court proceeded to sentence the appellant to a 118-month incarcerative term, four years of supervised release, and payment of a $100 special assessment.
*3 In essence, the appellant assigns error in only two respects. First, he contests the sentencing court's drug-quantity determination. Second, he advances a constitutional challenge to his sentence based on the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). As we explain below, both assignments of error lack merit.
Drug Quantity
Drug quantity often drives the length of a defendant's
sentence in a narcotics trafficking case. See United States v.
Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993). For sentencing
purposes, a defendant is accountable not only for drugs that were
actually involved in the crime of conviction but also for what was
involved in any "relevant conduct." See United States v. Laboy,
At sentencing, the government bears the burden of proving
drug quantity. See United States v. Huddleston,
The court below credited some of the testimony of Michael Pushard, the appellant's "middleman," who testified at the disposition hearing as a government witness. The appellant concedes that Pushard's testimony, if taken at face value, supports the disputed drug-quantity finding. He argues, however, that Pushard was a turned accomplice, a heroin addict, an inconsistent and at times self-contradictory witness, and otherwise unreliable.
A sentencing court has considerable latitude in making
credibility determinations. See, e.g., United States v. Sanchez,
354 F.3d 70, 83 (1st Cir.), cert. denied, 124 S. Ct. 2187, 2189
(2004); United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.
1993). The standard of review is deferential, as an appellate
court will set aside a sentencing court's factual findings only for
clear error. United States v. Ruiz,
We have reviewed the presentence investigation report,
the sentencing transcript, and other relevant materials. Having
done so, we are not left with an impression that the sentencing
court's drug-quantity finding is outside the realm of reason.
After all, it is within the sentencing court's purview to credit
some portions of a witness's testimony, but not others. See, e.g.,
Huddleston,
We give credit where credit is due. Mindful of the circumstances, the sentencing court took care to limit its reliance upon Pushard's testimony, making findings only as to transactions proven by a preponderance of the evidence and excluding from its calculus those deliveries supported by weaker or otherwise uncorroborated testimony. That cautious approach warrants our respect. Cf. United States v. Whiting, 28 F.3d 1296, 1305 (1st Cir. 1994) (noting that a court must take "special care" in approximating drug quantity but assigning no error to a "conservative estimate [that] left a fair margin of safety"). We therefore reject the appellant's attack on the sentencing court's drug-quantity finding.
Blakely
The appellant also invites this court to set aside his
sentence on the basis of the Supreme Court's decision in Blakely v.
Washington,
While the Court made clear that the federal sentencing guidelines were not before it and expressed no opinion on their validity, id. at 2538 n.9, the rationale of Blakely calls their constitutionality into doubt. Indeed, the Court has recently taken this question under advisement. See United States v. Booker, No. 04-104 (argued Oct. 4, 2004); United States v. Fanfan, No. 04-105 (argued Oct. 4, 2004). That doubt, however, does not redound to the appellant's benefit.
In this case, the sentencing court ruled, inter alia, that the appellant's base offense level should be increased due to its drug-quantity determination. The increase in the offense level yielded an elevated guideline sentencing range and, thus, led to a *7 more onerous sentence. The appellant now attempts, for the first time, to mount a Blakely challenge. He posits, correctly, that the fact on which the upward adjustment depends — drug quantity — was neither determined by a jury nor established beyond a reasonable doubt.
Leaving to one side the fact that this case involves a
guilty plea, not a jury verdict, the record is crystal clear that
the appellant failed to advance this argument in the lower court.
[2]
Arguably, this omission constitutes a waiver; if not, it
constitutes a forfeiture. See United States v. Morgan,
Forfeited claims are reviewable only for plain error.
See Rodriguez, 311 F.3d at 437. Plain error review is not
appellant-friendly. Under that standard, the court of appeals will
reverse the trial court's decision only if a defendant demonstrates
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also (4)
*8
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte,
As said, the district court sentenced the appellant on
September 3, 2003. That was nine months before the Supreme Court
decided Blakely. Circuit precedent in force at the time of
sentencing, in line with the Supreme Court's decision in Apprendi
v. New Jersey,
Here, the offense to which the appellant pleaded carries
a maximum sentence of forty years. See 21 U.S.C. § 841(b)(1)(B).
Whether Blakely has fatally undermined previous circuit authority
is an unsettled question and, whatever the ultimate outcome, the
answer is at this moment neither clear nor obvious. Accordingly,
we cannot hold that the district court committed plain error when
it sentenced the appellant on the bases, in part, of the disputed
drug-quantity finding and the dates of the relevant conduct. See
United States v. Del Rosario,
We need go no further. For the reasons elucidated above, the appellant's conviction and sentence are summarily affirmed. See 1st Cir. R. 27(c).
Affirmed.
Notes
[1] The district court dismissed count 1 on the government's motion.
[2] The fact that Blakely had not been decided at the time of
sentencing does not excuse this default. See United States v. Del
Rosario,