Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

No. 90-50081.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and LEVI, District Judge.^** 

MEMORANDUM^*** 

BACKGROUND

On November 20, 1989, defendant Flores-Payon pled guilty to one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). AOB at 4-5.¹  Defendant pled guilty pursuant to an agreement under which the government promised: (1) to recommend the lower end of the guideline sentence or the mandatory minimum sentence of five years, whichever was higher; (2) not to seek a superseding indictment charging appellant with possession of a firearm in violation of 18 U.S.C. § 924(c); and (3) to dismiss the remaining counts of the indictment. At the entry of the guilty plea, the government advised the court that "as we calculated it the lower end of the Guidelines is three months higher than the mandatory minimum," which would be 63 months. AOB at 5. Before accepting defendant's plea, the district court informed him of the maximum sentence for the offense to which he was pleading guilty, explained that the court would not be bound by the government's sentencing recommendation, warned defendant that he would not be able to withdraw his guilty plea based on any miscalculation of the guideline sentence by his counsel, and told defendant that the court could depart upward from the guideline range. AB at 4.²  Flores-Payon acknowledged that he understood these matters. AB at 5.

The presentence report concluded that the sentence range was from 78 to 97 months, and recommended a sentence of 78 months. The offense level calculation was based on the amount of heroin defendant possessed (470 grams), on the fact that one coconspirator possessed a firearm during commission of the offense, and on defendant's acceptance of responsibility. AB at 5. Defendant objected to the presentence report on two grounds relevant to this appeal. First, defendant argued that his offense level should not have been increased for use of a firearm, because he did not know his coconspirator had a gun, AOB at 6, and he did not personally possess the weapon. AB at 5. Second, he argued that he played only a minor or minimal role in the offense, and therefore was entitled to a decrease in the offense level. The probation officer filed a response to defendant's objections noting that Flores-Payon had previous knowledge of his codefendant's possession of the firearm, and contending that because defendant played a coequal role in the offense he was not a minor participant entitled to a decrease in the offense level. At sentencing, the district court stated that it had read the presentence report, defendant's objections thereto, and the addenda to the report. After hearing argument from Flores-Payon's counsel, the district court overruled defendant's objections, and sentenced him to 78 months.

This appeal raises the following five issues: (1) did the district court sentence defendant in violation of the plea agreement?; (2) did the district court err by failing to find defendant was a minor participant?; (3) did the district court err by enhancing defendant's sentence based on his co-defendant's possession of a firearm?; (4) did the prosecutor engage in misconduct by recommending a sentence beyond the plea agreement?; and (5) did defendant waive certain of these issues by failing to raise them at the district court?

Issues not presented to the trial court cannot generally be raised for the first time on appeal. United States v. Edwards, 800 F.2d 878, 884 (9th Cir. 1986). In Edwards we declined to consider the merits of an appellant's claim that his sentence violated an implied right under his plea bargain where the appellant failed to raise the issue at the district court. Exceptions have been made to this general rule where a new issue arises due to a change in the law, where the issue first raised on appeal is purely one of law, or where an injustice might result. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983). Whether a plea agreement has been violated is a question of fact to be resolved by the district court, United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986), which we review for clear error. United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir. 1988).

A review of the record, particularly the Transcript of Sentencing, reveals that defendant never raised either of the two issues regarding the alleged violation of the plea agreement in the district court. Nor does defendant argue that this case warrants application of an exception to the general prohibition against considering issues for the first time on appeal. Neither party suggests that a relevant change in the law is involved in this case, nor does either party contend that an injustice would result from application of the general rule barring appellate review of matters not raised in the district court. Because breach of a plea agreement is a factual determination to be decided by the district court, defendant's failure to raise the issue below precludes its consideration on appeal. See United States v. Sheffer, 896 F.2d 842, 847 (4th Cir. 1990). Thus defendant's contentions based on an alleged breach of the plea agreement are not properly before this court.

Two of defendant's contentions arguably remain before this court. First, did the district court err by failing to find that defendant was a minor participant? Second, did the district court err by enhancing the defendant's sentence based on his co-defendant's possession of a firearm? Each question is discussed in turn.

"A district court's finding that a defendant does not qualify for minimal or minor participant status is, as the commentary points out, 'heavily dependent on the facts of the particular case,' and should be upheld unless clearly erroneous." United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (citation omitted), quoting Commentary to Guideline 3B1.2.

Flores-Payon contends that the district court failed to make a required factual finding of his culpability relative to his co-defendants, and that this alleged failure constitutes clear error. AOB at 20-26. Neither the Guidelines nor case law, however, requires the district court to make such a finding.

In United States v. Rigby, 896 F.2d 392 (9th Cir. 1990), we rejected the contention that a district court must make express factual findings concerning a defendant's role in a crime. Id. at 394. We noted that the Guidelines simply require the sentencing court to give the parties an opportunity to present information to the court regarding any disputed factors which are important to the sentencing determination. Id. (citing U.S.S.G. Sec. 6A1.3(a)). We also found that the district court's obligation is to "make clear on the record its resolution of all disputed matters...." Id. As in Rigby, the district court in this case provided defendant with a full opportunity to present his position, both in writing and orally, and made clear on the record the court's resolution of the disputed issues. See Transcript of Sentencing, 5:22-25, 6:10-7:3. The court need not have done more.

Defendant asserts that he was merely a courier, and that as such he was a minor participant entitled to a reduction in the offense level. In Rigby we declined to decide whether a defendant's status as a "mule" or "courier" entitles that defendant to a lower guideline range as a minor participant under Sentencing Guideline Sec. 3B1.2(b). Because defendant in this case did more than act as a simple courier, we similarly need not decide the issue here.

The district court specifically considered and rejected defendant's written and oral arguments that he was a minor participant within the meaning of Guideline Sec. 3B1.2(b). The court explicitly relied on the Second Addendum to the Presentence Report, which found that defendant had played a distinct role in the offense by delivering 470 grams of heroin to the scene of the drug transaction for which he was to earn $500, the same amount as one of his two co-defendants. According to the information in the presentence report, defendant was not merely a courier but an actual participant in a drug transaction who attended the negotiations and then brought the drugs to the scene. Sentencing Transcript, at 6, citing Second Addendum to the Presentence Report, at 1:48-2:4. Moreover, there was evidence proffered by the government that at the site of the drug transaction, defendant commented that the heroin was of "good quality" and that it "could be cut at a one-to-one ratio." Sentencing Transcript, at 12. Based on this record, the district court's finding that defendant was not entitled to a reduction in sentence for minor participation was within the court's discretion and was not clearly erroneous.

The final remaining question is whether the district court erred by enhancing defendant's sentence based on his co-defendant's possession of a firearm. In the Presentence Report the probation officer recommended an increase in the base level offense by two levels because a firearm was present during commission of the offense, pursuant to Guideline Sec. 2D1.1(b) (1).

Defendant notes that the government promised in the plea bargain not to seek a superseding indictment charging him with possession of a firearm in violation of 18 U.S.C. § 924(c). From this, Flores-Payon contends that this term of the plea bargain should have barred an increase in his offense level calculation based on the presence of the weapon.

The government did not promise in the plea bargain that the fact a weapon was used by a co-defendant during commission of the offense would not be included in calculating defendant's sentence. The government's decision to seek a superseding indictment charging defendant with possession of a firearm in violation of 18 U.S.C. § 924(c), with its minimum mandatory sentence of five years imprisonment, and the court's consideration of a weapon as a specific offense characteristic in computing the offense level for sentencing purposes are two entirely different matters. Defendant successfully bargained as to the first, but not as to the second. Indeed, the government could not bargain away the district court's duty to consider all relevant facts in applying the Sentencing Guidelines. Moreover, the district court's consideration of a weapon appears entirely appropriate. The Second Addendum to the Presentence Report notes that defendant had prior knowledge that one of his co-defendants possessed a firearm, and concluded that this knowledge justified including the weapon offense characteristic in computing the offense level. Inclusion of the specific offense characteristic pertaining to the use of a firearm in calculating defendant's sentence was not clearly erroneous.

AFFIRMED.