CA1: another drug seaman appeal sinks

US v. de la Cruz, No. 05-2210 (unpublished).  This case summarily affirms yet another drug “seaman” case.  This guy got was denied a downward adjustment for being a “minor participant” but got a safety valve adjustment.

Even though it is unpublished, there are some weighty issues. 

The first one shows the difference between a change of plea hearing and an actual guilty plea, namely and concludes that “Even assuming that at the time of the initial change-of-plea hearing in October of 2004 there existed an "informal agreement" that the defendant would be permitted to plead guilty without waiving the right to appeal from the denial of the suppression motion, he does not argue that the actual plea, entered three months later, was pursuant to such an agreement.”

Since the defendant was charged with “charged with possession with intent to distribute and with conspiring to import drugs” as opposed to distribution, the First says that determining his role must be assessed not with regard to the role of the buyers and sellers, but with regard to the much more modest elements of “possession with intent.”

A challenge to a failure to get“downward departure on the ground of duress, as was granted to several of his co-defendants” is waived because it wasn’t raised below!

A Booker error argument – that the facts needed to go to the jury – is summarily rejected.