                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               AUG 20 1998
                    UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                    Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA ,

               Plaintiff - Appellee,

          v.                                                 No. 97-2241
                                                     (D. Ct. No. CR 96-513 BB)
 HILDA SALAZAR,                                              (D. N. Mex.)

               Defendant - Appellant.




                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.


      Defendant Hilda Salazar appeals her sentence on the ground that the

government breached her plea agreement. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

      The defendant pleaded guilty to Count I of a nine-count indictment, a

charge of conspiring to distribute heroin in violation of 21 U.S.C. § 846. In a



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
written plea agreement, the parties stipulated in detail the specific types and

amounts of controlled substances that would be used in determining Salazar’s

base offense level under section 2D1.1(c)(6) of the U.S. Sentencing Guidelines

Manual (U.S.S.G.) (1995 1). As part of the agreement, the government agreed to

dismiss the remaining counts of the indictment and gave the defendant blanket

protection from being charged for other drug offenses committed during the

period of the conspiracy set forth in the indictment. The government also stated

that it would “not seek to enhance defendant’s offense level under § 1B1.3 [of the

Sentencing Guidelines] for relevant conduct” for additional amounts of controlled

substances that she possessed and/or distributed. Plea Agmt. at ¶ 10(c). For her

part, Salazar waived her right to appeal her sentence and agreed not to move for a

downward departure. Under U.S.S.G. § 2D1.1(c)(6), and as stipulated in ¶ 7(a) of

the plea agreement, the heroin for which Salazar was held accountable established

a base offense level of 28. The agreement also stipulated a three-level reduction

to level 25 for acceptance of responsibility under U.S.S.G. § 3E1.1.

      The United States Probation Office prepared a presentence report that

implemented the plea agreement. The first version of the report assigned Salazar

a base offense level of 25 and placed her in criminal history category III.

Following objections to the report filed by both parties, the probation office


      1
          All references to the sentencing guidelines are to this version.

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reduced her criminal history category to I, but it increased her base offense level

to 27 because she played a leadership role in the conspiracy under U.S.S.G.

§ 3B1.1(c). Based on this leadership role, the probation office also rejected

Salazar’s argument that she met the criteria of U.S.S.G. §§ 5C1.2 and 2D1.1(b)(4)

(authorizing imposition of sentence below the statutory minimum), which would

have qualified her for a two-level reduction.

      At the sentencing hearing, the defendant called Agent Dennis Cordova to

testify regarding the relative roles in the conspiracy of several of her co-

defendants, in an effort to challenge the probation office’s finding that she had

played a leadership role. On cross-examination, Agent Cordova detailed Salazar’s

involvement in drug transactions spanning the entire period specified in the

indictment. The next day, the defendant filed additional objections to the

presentence report, arguing that there was no factual basis for assessing a two-

level offense increase under U.S.S.G. § 3B1.1(c) for her purported leadership role

in the conspiracy. The probation office rejected this argument. At the sentencing

hearing on June 27, the defendant alleged that the government’s cross-

examination of Agent Cordova violated the plea agreement by referring to

conduct that was not to be considered for enhancement purposes. The district

court rejected this argument.

      Following these developments, the court adopted the factual findings and


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guideline applications of the revised presentence report. The court specifically

found that the offense level was 27 and that defendant belonged in criminal

history category I, for a guideline range of 70-87 months. The court imposed a

70-month sentence. The defendant appeals, asserting that the government

breached the plea agreement by seeking to enhance her base offense level for a

leadership role in the conspiracy and by cross-examining Agent Cordova about

events that the government had agreed not to elicit. The defendant also asserts

that there is evidence in the record that the district court relied on an ex parte

communication between the government and the court. The defendant seeks

resentencing before a different district court judge.

      We review factual questions of what the terms of the plea agreement are

and what the government’s conduct was only for clear error. See United States v.

Clark, 55 F.3d 9, 11 (1st Cir. 1995). Whether the government’s conduct breached

the plea agreement is subject to de novo review. See id. Each of the defendant’s

arguments is without merit. Nothing in the plea agreement prohibited the

government from seeking an upward adjustment in the defendant’s offense level

pursuant to U.S.S.G. § 3B1.1(c) based on her leadership role in the conspiracy.

The only restriction on the government was that it agreed “not to seek to enhance

defendant’s offense level under § 1B1.3 for relevant conduct” based on several

enumerated actions. See Plea Agmt. at ¶ 10(c). Furthermore, the government’s


                                          -4-
cross-examination of Agent Cordova elicited information to support the upward

role adjustment. Nothing in the plea agreement prohibited the government from

eliciting such facts during sentencing. Finally, we find nothing in the record to

support defendant’s assertion that the district court relied on ex parte

communications in determining the defendant’s sentence. The defendant’s

sentence here was within the range to which the defendant agreed in the plea.

      AFFIRMED.

                                        ENTERED FOR THE COURT,


                                        Deanell Reece Tacha
                                        Circuit Judge




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