US v. Rivera-Rodriguez, No. 04-1009 affirms the sentence of a man convicted of conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1). He raises three issues, which I state in order of their interest to me: they are 1) Breach of a Plea Agreement by the government; 2) Lack of notice that the court intended to rely on testimony from his co-defendants’ trial in deciding where to sentence him within the guideline range; 3) Two-level increase for his role in the offense pursuant to U.S.S.G. § 3B1.1(c); and 4)Booker error
Breach of a Plea Agreement by the government.
Guess what? Review of claim that a plea agreement is breached is for plain error! See United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000). The First talks about how government attorneys are bound to high standards of conduct in plea agreements. But we all know where this is going – the same place that complaints about improper statements by government counsel go – condemnation in words, but ultimate affirmance.
On the facts:
Specifically, Rivera-Rodríguez claims that the government breached the plea agreement by asking the court to find a base offense level of 38, as opposed to the level 30 contemplated by the agreement, and by stating that “[t]here were quantities [of cocaine] frankly beyond the amount stipulated [to] in the plea agreement . . . .”... the agreement provided that the government would recommend 121 months of imprisonment, while Rivera-Rodríguez would request 97 months.
...
Government counsel then said “There were quantities [adduced at trial of a co-defendant] frankly beyond the amount stipulated in the plea agreement and I submit that the government is bound by the plea agreement to recommend a maximum of 121 months . . . . I would ask the court to impose the sentence that the government now recommends”
But, the First, as usual gives the green light, by saying it is “troubling” but doing nothing.
Lack of notice that the court intended to rely on testimony from his co-defendants’ trial in deciding where to sentence him within the guideline range
He claims that he didn’t have notice of damaging testimony at the time of his sentencing. Rejecting an invitation to apply United States v. Berzon, 941 F.2d 8 (1st Cir. 1991), the First finds that “it is clear that the district court mentioned the testimony it had heard at trial to emphasize that the court was familiar with both the length of time the conspiracy had operated and the quantity of drugs that had been involved.” In this case, the First found that the information (regarding just how big a supplier he was) wasn’t really “new” to the defendant.
Two-level increase for his role in the offense pursuant to U.S.S.G. § 3B1.1(c)
On plain error review, the First holds the defendant to his stipulation (but they don’t hold the government to its agreement, it seems), but holds that the record supports the court’s determination.
Booker error
There wasn’t any evidence that he would have done any better, and there is no requirement that sentencing facts be found beyond a reasonable doubt.
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