                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-2003

USA v. Salcedo
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2592




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    No. 02-2592
                                 ________________

                          UNITED STATES OF AMERICA

                                            v.

                              NELSON SALCEDO, JR.,
                                     a/k/a
                                      Naz

                                   Nelson Salcedo, Jr.,

                                         Appellant
                        ________________________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                            (D.C. Crim. No. 01-cr-00373-1)
                    District Judge: Honorable Jerome B. Simandle
                   _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 16, 2003

            Before: SLOVITER, ROTH and STAPLETON, Circuit Judges

                             (Filed: December 30, 2003)
                             _______________________
                                      OPINION
                             _______________________


ROTH, Circuit Judge

      Appellant Nelson Salcedo, Jr. appeals the judgment of sentence entered in the
United States District Court for the District of New Jersey. Salcedo pleaded guilty to one

count of conspiracy to possess with intent to distribute in excess of five kilograms of

cocaine and in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and 21 U.S.C. § 846. The District Court sentenced him to 150 months imprisonment.

       Salcedo raises three issues on appeal. First, he argues that the District Court erred

in the factual determinations underlying its decision not to apply the safety-valve

provision of the Sentencing Guidelines, U.S.S.G. § 5C1.2. Second, Salcedo claims that

the District Court attributed an incorrect quantity of drugs to him at sentencing. Finally,

Salcedo claims that the District Court erred in declining to decrease his offense level

under U.S.S.G. § 3E1.1. For the reasons that follow, we will affirm.

       As we write for the parties, who are aware of the facts underlying this appeal, we

will set forth only those facts essential to our discussion. In reviewing the District

Court’s factual findings, we apply the deferential clearly erroneous standard. See United

States v. Fuentes, 954 F.2d 151, 152-55 (3rd Cir. 1992). A district court does not commit

clear error unless its factual findings are completely devoid of a credible evidentiary basis

or bear no rational relationship to the supporting data. See United States v. Haut, 107

F.3d 213, 218 (3d Cir. 1997). By contrast, “[w]hether the facts found by the district court

warrant application of a particular guideline provision is a legal question and is to be

reviewed de novo.” See United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997)

(quoting United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994)).



                                              2
      We first confront Salcedo’s contention that the District Court erred in failing to

apply the safety-valve provisions contained in U.S.S.G. § 5C1.2. The District Court

denied Salcedo’s request for a safety-valve reduction because it found that Salcedo had

managed and supervised Rafael Prado and Michelle Thomas. This factual finding is

supported by the record.1 At the sentencing hearing, the prosecutor described the

structure of the conspiracy with which Salcedo was involved and the roles of the various

parties. Isaac Rivera (a.k.a. Isaac Burgos), Ronnie Lopez, and Salcedo were in the top

tier of the conspiracy. Below them were Jose Lopez and Rafael Prado. Jose Lopez was

the money man. Prado was the primary distributor of the crack cocaine. At the bottom

level of the conspiracy were people such as Michelle Thomas, Narlyn Ramirez, and

Carlos Merced. Everything that Michelle Thomas did was at the direction of Rivera,

Ronnie Lopez, and Salcedo. All three of them sent Thomas on menial errands and used

her residence to allow Rivera to cook powder cocaine into crack cocaine.2 Salcedo’s

counsel did not disagree with the Government’s characterizations of Salcedo’s role in the



      1
         We note that Salcedo submitted to this Court a copy of an affidavit produced by
co-conspirator Ronnie Lopez. In the affidavit, Lopez avers that Salcedo was not a
manager or supervisor of the conspiracy. The affidavit post-dates the sentencing hearing
by seven months and was never presented to the District Court. It is thus not part of the
record on appeal. See Fed. R. App. P. 10(a).
      2
         Salcedo claims on appeal that, under United States v. Fuentes, 954 F.2d 151, 154
(3d Cir. 2002), he did not supervise Michelle Thomas because she primarily provided a
building for storage. The claim lacks merit. The record established that Michelle
Thomas not only provided a building for storage, but was sent on menial errands, such as
buying the implements necessary to cook powder cocaine into crack cocaine.

                                            3
conspiracy. He did, however, clarify that Rivera was at the top of the conspiracy and that

Ronnie Lopez and Salcedo were not at the “top top.” To the extent that Salcedo claims

that he could not have been a manager or supervisor because he was not the overall leader

of the conspiracy, his claim lacks merit. See United States v. King, 21 F.3d 1302, 1305

(3d Cir. 1994) (district court did not clearly err in finding that a defendant was a manager

or supervisor even if co-conspirator was the mastermind of the plot).

       In any event, the safety-valve provision does not apply in view of the sentence

Salcedo received. See United States v. Holman, 168 F.3d 655, 660 (3d Cir. 1999).

Section 5C1.2 is designed to allow the court to “impose a sentence in accordance with the

applicable guidelines without regard to any statutory minimum sentence,” if the court

finds that the defendant fulfills five criteria. In the present case, the statutory mandatory

minimum was 120 months. 21 U.S.C. § 841(a)(1). The District Court determined that

Salcedo’s applicable guideline range was between 235 and 293 months. The District

Court also recognized that, because the Government had filed a motion for a reduced

sentence pursuant to 18 U.S.C. § 3553(e), it had the discretion to depart below the 120

month statutory minimum. Ultimately, the District Court sentenced Salcedo to a 150

month term of imprisonment. The record evidence shows that this decision was made in

full consideration of the applicable guideline range and without regard to the statutory

minimum sentence. Thus, even if Salcedo met the requirements of the safety valve

provision, and he did not, the provisions of section 5C1.2 would be of no help to him.



                                              4
See id. at 661.

       Salcedo next challenges the drug quantity utilized by the District Court in

calculating his sentencing guideline range. Salcedo is not in a position to make this

argument. See United States v. Melendez, 55 F.3d 130, 136 (3d Cir.1995). In his plea

agreement, Salcedo stipulated that the amount of controlled substances attributable to him

for sentencing purposes was more than 1.5 kilograms of cocaine base, and at least 15

kilograms but less than 50 kilograms of cocaine. At the sentencing hearing, Salcedo did

not contest the quantity of drugs attributed to him. We accordingly conclude that the

District Court properly attributed 1.5 kilograms of cocaine base, and at least 15 kilograms

but less than 50 kilograms of cocaine to Salcedo. See id. (rejecting a defendant’s attempt

to dispute a stipulation regarding the appropriate sentencing range); see also United States

v. Parker, 874 F.2d 174 (3d Cir. 1989) (declining to allow a defendant to argue facts

which contradicted those to which he agreed in his plea agreement).

       Finally, Salcedo argues that the District Court erred in declining to decrease his

offense level under U.S.S.G. § 3E1.1 because of his post-offense drug rehabilitation and

acceptance of responsibility. This argument is factually incorrect. Upon review of the

record, it is clear that the District Court awarded Salcedo a three level reduction in his

Total Offense Level for acceptance of responsibility, which is the maximum reduction

available under U.S.S.G. § 3E1.1. Salcedo stipulated to a Base Offense Level of 38 in his

plea agreement. The District Court awarded him a three level reduction under U.S.S.G. §



                                              5
3E1.1., but adjusted his offense level upward by three points under U.S.S.G. § 3B1.1 for

his role as a manager or supervisor in a drug conspiracy that involved five or more

participants. As the District Court properly concluded, the resulting Total Offense Level

was 38.

       For the reasons set forth above, we will affirm the judgment of sentence.




                                            6
TO THE CLERK:
                Please file the foregoing opinion.




                                                /s/ Jane R. Roth
                                                Circuit Judge
