
USCA1 Opinion

	




          January 10, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2014                                    UNITED STATES,                                      Appellee,                                          v.                          DANIEL CRUZ-TORRES, a/k/a EL GAGO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Watson,* Senior Judge.                                           ____________                                _____________________               Lydia  Lizarr bar-Masini, by  Appointment of the  Court, for               ________________________          appellant.               Julie J.  Shemitz, Attorney, Criminal Division, Narcotic and               _________________          Dangerous  Drug Section,  U.S. Department  of Justice,  with whom          Jo Ann  Harris,  Assistant  Attorney General,  Theresa  M.B.  Van          ______________                                 __________________          Vliet,  Chief, Criminal  Division,  Narcotic and  Dangerous  Drug          _____          Section, U.S. Department of Justice, Guillermo Gil, Acting United                                               _____________          States Attorney, and  Lena Watkins, Attorney,  Criminal Division,                                ____________          Narcotic and Dangerous Drug  Section, U.S. Department of Justice,          were on brief for appellee.                                        ____________________          *  Of the United States  Court of International Trade, sitting by          designation.                                 ____________________                                 ____________________                                         -2-                    WATSON,  Senior  Judge.    This  is  an  appeal  from a                    WATSON,  Senior  Judge.                             _____________          sentence imposed in the  U.S. District Court for the  District of          Puerto Rico.   Appellant was  sentenced to  imprisonment for  ten          years, after pleading guilty to conspiring to possess cocaine and          marijuana with  intent  to distribute  them, in  violation of  21          U.S.C.   846.  Between the early part  of 1987  and the middle of          1989,  he  participated in  a  conspiracy to  import  cocaine and          marijuana by helping to  unload drugs from boats onto  the shores          of Puerto Rico.   In the  plea agreement it  was stipulated  that          appellant was responsible  for the  importation of  approximately          10,000 pounds of marijuana and 100 kilograms of cocaine.                      The ten-year  sentence represented the  trial judge's          adjustment  of the sentence from  a potential 135  to 168 months,          downward  to  the  mandatory  minimum  of  120   months  for  the          mitigating  circumstance  of  appellant's condition  of  paranoid          schizophrenia.                    Appellant claims that the  trial judge erred in failing          to  take into  account in  the sentencing  defendant's diminished          capacity to foresee the amount of drugs that were involved in the          conspiracy to which he belonged.  This claim has no merit.   In a          challenge to the court's factfinding the sentence is reviewed for          clear  error.  United States v. Thompson,  32 F.3d 1, 4 (1st Cir.                         _____________    ________          1994).                      The  amount  of drugs  attributable to  appellant was          settled  for all purposes by the plea agreement pursuant to which          he pleaded  guilty to Count One of the indictment.  That plea has                                         -3-          not been  challenged, nor is there the  slightest indication that          it was defective.   The  record shows that  the trial judge  took          great  care  to ascertain  that the  guilty  plea was  being made          competently, knowingly and voluntarily.   At that time, appellant          acknowledged that, although he did not  know if it was cocaine or          marijuana,  he had  unloaded packages  of drugs  from boats.   He          acknowledged that he had  read and discussed the  indictment with          his   attorney.    He  entered  into  a  written  plea  agreement          specifying  that  he  was  responsible for  the  importation  and          distribution of approximately 10,000  pounds of marijuana and 100          kilograms of cocaine,  so it is  clear that  the amount of  drugs          involved was fully understood.                      Appellant  has a long history  of mental illness.  He          was discharged from the  army in 1973, after serving  in Vietnam,          with  a diagnosis of paranoid schizophrenia.  He was given a 100%          service-connected  disability.   It took  eight months  of court-          supervised hospitalization and treatment for  appellant to become          competent to proceed to trial and, after the plea, the sentencing          was delayed for another hospitalization.                      Nevertheless,  the  sentencing  judge  was  under  no          obligation at the time of sentencing to reopen the subject of the          amount of drugs that plaintiff could reasonably have foreseen.  A          proper reliance on the guilty  plea distinguishes this case  from          those in which  the district  court failed to  make a  sufficient          finding  of  foreseeability.   See,  United  States v.  Valencia-                                         ___   ______________     _________          Lucena, 988  F.2d 228, 233-235  (1st Cir. 1993).   It is  obvious          ______                                         -4-          that  when  a  guilty plea  resolves  the  question  of what  was          foreseeable  to a defendant it would be unreasonable to require a          sentencing judge to make a new determination of foreseeability at          the time  of sentencing.  In  this case his reliance  on the plea          agreement and the information contained in the presentence report          was  more than sufficient to satisfy the requirement in 18 U.S.C.             3553(c)  (Supp.  1992)  that  "[t]he  court  at  the  time  of          sentencing, shall  state  in  open  court  the  reasons  for  its          imposition of the particular sentence . . . ."                      In any event, the  sentencing judge departed from the          Sentencing Guidelines pursuant to    5K2.13 and, in circumstances          that ordinarily  would have required  a minimum  sentence of  135          months, lowered the term  of imprisonment to 120 months.  That is          the mandatory minimum term of imprisonment for the crime to which          appellant  pleaded  guilty.   Without  undoing  the guilty  plea,          appellant could not hope for a better result.  Affirmed.                                                         Affirmed                                                         ________                                         -5-
