United States v. Quezada, 1st Cir. (1994)

USCA1 Opinion
March 4, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-1972
UNITED STATES,
Appellee,
v.
JOSE QUEZADA,
Defendant, Appellant.
________________
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
___________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
___________________
Damon M. D'Ambrosio on brief for appellant.

___________________
Edwin J. Gale, United States Attorney, and Zechariah Chafee,
_____________
________________
Assistant United States Attorney, on brief for appellee.
__________________
__________________
Per Curiam.
___________
conviction and
possessing
sentence.
heroin with
suppress evidence seized

the
warrant
probable
sentenced
quantity
of
on one
from his home, on

the search
After a
He
from
his
count of
moved to
the grounds that
was
not
supported by
hearing, the district court denied
27 months
heroin for
appeals
intent to distribute.
Quezada pled
him to
Quezada
He was indicted
authorizing
cause.
the motion.
Jose
guilty
and the
in prison.
sentencing
district
In
purposes,
court
estimating the
the district
court relied, in part, on

$2,321 in cash found during the search
of his apartment.
He
appeals
his sentence
and
the
denial
of
his
suppression
motion.
Background
__________
The
presentence
following summary
informant (known
detectives
of
report
the facts
to
contained
underlying this
the Johnston
of the Providence
("PSR")
Police
Department)
Police Department that
whom the informant
identified from a photograph
would
on October, 14,
be arriving
certain
location in
a burgundy
sale. The detectives
1992 at
van
set up watch at
van,
the detectives
saw
Quezada
An
told
a man,
as Quezada,
9:00 p.m.
at a
containing heroin
for
the specified location
and at 9:00 appellant arrived in a burgundy van.

the
case.
the
throw
Approaching
a
gray
box,
commonly used to store heroin, into the back of the van.
The
-2-
detectives arrested
Quezada and
500 glassine envelopes
seized the
of heroin, and $206 in
box, containing
cash found in
Quezada's pocket.
Later that night, the detectives executed a
search
warrant at Quezada's home.

of heroin
and the
packaging
of
glassine
following articles
heroin:
packets (some
bands, an ink
They seized 781
coffee
stamped
pad and a
glassine packets
commonly used in
grinder,
"shoot
of
to kill"),
"shoot to kill"
seized a pager and $ 2,321 in cash.
boxes
stamp.
After being
the
empty
elastic
They
also
informed of
his Miranda rights, Quezada signed a statement admitting that

_______
the drugs seized
him.
from the van and his
A subsequent
apartment belonged to
laboratory analysis
concluded that
the
weight of the total amount of heroin seized was between 15.26

grams and 18.22 grams.
In
count
of
possession
violation of
filed a
November,
1992, Quezada
with intent
21 U.S.C.
motion to suppress
841(a)(1).
heroin in
In December,
1992, he
the police.
denied
On June 15, 1993, appellant pled guilty.

the base offense level
("BOL"),the probation officer who prepared

cash
on one
distribute
the district court
For purposes of calculating
the
indicted
the drugs seized by
Following an evidentiary hearing,

the motion.
to
was
seized
($2,527) into an
from Quezada's
pocket
the PSR converted

and
equivalent amount of heroin
-3-
his apartment
(14.17 grams).
He
relied
upon
information
from
the
Drug
Enforcement
Administration that an ounce of heroin was then selling for

$5,000.
He
then added
heroin seized to arrive

grams.
That
U.S.S.G.
BOL
of
amount of
and
heroin yielded
then applied
Quezada's acceptance of
by Quezada
grams to
the amounts
at a total weight of
2D1.1 (c) (13). 1

18
statement
the 14.7
responsibility.
of 18
reduction for
The PSR
he
under
court adopted the
three-point
admitting that
29.43 to 32.39
a BOL
The district
of
included a
had committed
the
offenses charged and acknowledging that "the drugs the police

found [at my house]
were to sell."
The total
offense level
of 15 and Quezada's criminal history category of 2 yielded an

imprisonment range of 21 to 27 months.
On August
17, 1993,
the district
court sentenced
appellant to 27 months in prison and five years of supervised

release.
court
As a condition of supervised
ordered appellant,
imprisonment, to
at the
release, the district
completion of his
term of
an immigration
official
be surrendered to
for deportation.
Discussion
__________
Quezada makes three arguments on appeal.
First, he
argues that the district court erred in denying his motion to

suppress.
Second, he challenges his
sentence as based upon
____________________
1.
The Sentencing Guidelines applied were those
on the date appellant was sentenced.
in effect
-4-
illegally-seized evidence.
was
error for
the district
equivalent amount of
sentence.
court to
guilty, Quezada
appeal from the
entered,
approval
into an
calculating his
We reject all three arguments.
with
the consent
of the court,
of
the
plea of guilty to an indictment is
the
to suppress.
conditional pleas to
government
and the
in writing
"It is clear that a
an admission of guilt and
all non-jurisdictional defenses."
v. United States, 961 F.2d

_____________
by pleading
not reserve
by defendant's reserving
the right to appeal a pre-trial motion).
a waiver of
did
denial of his motion
See Fed. R. Crim. P. 11(a)(2) (allowing

___
be
convert cash
heroin for purposes of
In pleading
right to
Finally, Quezada contends that it
Acevedo-Ramos
_____________
305, 308 (1st Cir.) (holding that
guilty, defendant waived statute
of limitations
defense),
cert. denied, ___ U.S.

____________
Therefore, Quezada's guilty
___, 113 S.Ct. 299 (1992).
plea forecloses from review
the
denial of his motion to suppress.

Quezada's
guilty
Amendment challenge to
plea
also
his sentence.
bars
his
The Supreme
Fourth
Court has
explained the effect of a guilty plea as follows:

[A] guilty plea represents a break in the
chain of events which has preceded it in
the criminal process.
When a criminal
defendant has solemnly admitted in open
court that he is in fact guilty of the
offense with which he is charged, he may
not thereafter raise independent claims
relating
to
the
deprivation
of
constitutional rights that occurred prior
to the entry of the guilty plea.
-5-
Tollett v. Henderson, 411 U.S.

_______
_________
guilty,
Amendment
See
___
appellant
waived
claim for the
United States
_____________
258, 267 (1973).
the right
to
assert
purpose of attacking
v. Smallwood,
_________
920 F.2d
By pleading
his Fourth
his sentence.
1231, 1240
(5th
Cir.) (holding that, following the district court's denial of
appellant's
motion
guilty plea,
to suppress
and
appellant's subsequent
appellant "cannot resuscitate
fourth amendment
concerns solely to challenge the consideration of evidence at

sentencing."), cert. denied, ___
_____________
U.S. ___,
111 S.Ct.
2870
(1991).
Quezada
contests on
sentencing hearing, the

found in
appeal,
as
he
government's conversion of
his apartment into
an equivalent amount
for purposes of calculating appellant's BOL.

there was
insufficient evidence
him, given that

PSI failed
found.
to indicate where
proof to support
cash
was
"the
trafficking."
at the time
that the
He
He
of
in support
to
others and the

cash was
was insufficient
previous
cites his employment at an
of the search
the cash
argues that
the probation officer's assertion

result
his
of heroin
in the apartment the
also contends that there
direct
at
cash belonged
he shared the apartment with
Appellant
did
that the
narcotics
auto body shop
of his argument
that
there were other plausible sources of the cash.

For
the first time on appeal, Quezada contests the
conversion ratio used by the probation officer and adopted by
-6-
the
district
court
(one ounce
of
heroin
equals $5,000).
Having failed to object below to the conversion ratio used in

the PSR,
for
however, Quezada is barred from
the first time on
appeal.
raising this issue
United States v. Jackson, 3

______________
_______
F.2d 506, 511 (1st Cir. 1993).

"Pursuant to U.S.S.G.
responsible for all acts which
of
conduct
or
common
(1993).
'were part of the same course
scheme
charged.'" United States v.

______________
(1st Cir. 1992),
1B1.3(a)(2), a defendant is
or
plan
as
Figueroa, 976
________
offenses
F.2d 1446,
cert. denied, ___ U.S. ___,

____________
In United States v. Gerante,

_____________
_______
the
1461
113 S.Ct. 1346
891 F.2d 364, 369 (1st
Cir. 1989), we held that Application Note 2 of the Commentary

to U.S.S.G.
2D1.4 authorizes
a district court
to convert
cash into a drug amount for the purpose of calculating a base

offense
level,
provided
transactions that are
that
the
cash
"represents
part of the same course
drug
of conduct as
the instant offense." United States v. Jackson, 3 F.2d at 510

_____________
_______
(citing Gerante, 891 F.2d at 369).
_______
A
finding
by
the
district
court
that
cash
represents drug transactions that are part of the same course

of
conduct as
the charged
preponderance of the
offense must
evidence.
be supported
United States
by a
v. Jackson, 3
_____________
F.3d
at
510.
challenged,
as
At
the
sentencing
unsupported
by
evidence, the PSI's assertion that
_______
hearing,
preponderance
appellant
of
the
the cash seized from
his
-7-
apartment "was
and,
the direct
therefore,
"relevant
result of
conduct"
narcotics trafficking"
for
the
purposes
of
determining the BOL.

As
district court
required by Fed.
made a finding
contained in the PSI.
R. Crim. P.
as to the
32(c)(3)(D), the
alleged inaccuracy
The district court found as follows:
[the seizure of
heroin and numerous
articles used in the packaging of heroin
and the defendant's admission that the
drugs found were his and that they were
there to sell] certainly indicates that
this defendant was heavily involved in
the heroin trafficking business and I
join hands with the Probation Officer in
the statement that he made that he stands
firm in his belief that the $2,527 seized
from the defendant's person and his own
apartment are the proceeds of previous
heroin trafficking, and, therefore, it's
considered relevant
conduct for
the
purpose of determining
the guideline
range.
The
district court
also stated
source of the cash
that, with
respect to
and its connection to Quezada, "I
the
do not
attach much significance to the defendant's argument."

These
findings of fact
reviewable only
for
clear
by the district
error.
See
___
court are
United States
______________
v.
Jackson, 3 F.2d at 510; United States v. Gerante, 891 F.2d at

_______
_____________
_______
368.
We cannot say that the sentencing judge committed clear
error in concluding
proving
by a
that the
government met
preponderance of
seized represented
See United States
___ _____________
the
evidence that
proceeds of previous
v. Sepulveda, Nos.
_________
its burden
of
the cash
heroin trafficking.
92-1362, et al.,
slip
-8-
op.
at
81 (1st
Cir.
Dec.
20,
1993) (holding
that
"the
government presented abundant evidence of Johnson's narcotics

trafficking, .
justified
. . ,
the court's
and the volume of

illation that
the
business transacted
sums seized
were
connected to her drug dealings.").

Quezada argued at his
sentencing hearing that
the
evidence
suggested
apartment,
including a
Rodriguez.
witness
that
Quezada
there were
woman,
did not
at the hearing,
was theirs.
Nor did
his contention that

the time of his
children
produce any
on a
employed.
at his
and someone
named
such person
as a
that the money
appellant offer any evidence to support

he was employed at an
arrest.
of employment,
solely
living
however, to testify
(such as
statement
Moreover,
auto body shop at
The probation officer was unable to
verify the alleged employment.

proof
others
by
Appellant did not provide any

paycheck
his wife
the district
that
court
stubs) and
he
relied
had been
would
have been
justified in concluding that legitimate employment would

necessarily
511,
the
not
explain the presence of large amounts of cash in
Quezada's apartment.
at
so
As in
United States v. Jackson, 3 F.2d

_____________
_______
sentencing court
alternative sources of
here
"rejected
the various
the currency and determined
funds were drug proceeds."
that the
It did not commit clear error
making that determination.
-9-
in
The conviction
to Loc. R. 27.1.
and sentence are
affirmed pursuant
-10-

United States v. Quezada, 1st Cir. (1994)

Uploaded by

Copyright:

Available Formats

United States v. Quezada, 1st Cir. (1994)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Quezada, 1st Cir. (1994)

Uploaded by

Copyright:

Available Formats

USCA1 Opinion

[NOT FOR PUBLICATION]

APPEAL FROM THE UNITED STATES DISTRICT COURT

Damon M. D'Ambrosio on brief for appellant.

suppress evidence seized

from his home, on

the grounds that

hearing, the district court denied

court relied, in part, on

Police Department that

whom the informant

identified from a photograph

sale. The detectives

the specified location

and at 9:00 appellant arrived in a burgundy van.

commonly used to store heroin, into the back of the van.

500 glassine envelopes

of heroin, and $206 in

warrant at Quezada's home.

They seized 781

seized a pager and $ 2,321 in cash.

his Miranda rights, Quezada signed a statement admitting that

from the van and his

weight of the total amount of heroin seized was between 15.26

On June 15, 1993, appellant pled guilty.

("BOL"),the probation officer who prepared

the district court

For purposes of calculating

the drugs seized by

Following an evidentiary hearing,

the PSR converted

equivalent amount of heroin

Administration that an ounce of heroin was then selling for

heroin seized to arrive

2D1.1 (c) (13). 1

court adopted the

offenses charged and acknowledging that "the drugs the police

of 15 and Quezada's criminal history category of 2 yielded an

appellant to 27 months in prison and five years of supervised

release, the district

argues that the district court erred in denying his motion to

Second, he challenges his

sentence as based upon

appeal from the

We reject all three arguments.

plea of guilty to an indictment is

"It is clear that a

an admission of guilt and

all non-jurisdictional defenses."

v. United States, 961 F.2d

the right to appeal a pre-trial motion).

denial of his motion

See Fed. R. Crim. P. 11(a)(2) (allowing

heroin for purposes of

Finally, Quezada contends that it

305, 308 (1st Cir.) (holding that

guilty, defendant waived statute

cert. denied, ___ U.S.

Therefore, Quezada's guilty

cert. denied, _ U.S. _,