
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ____________________        No. 94-1331                                     UNITED STATES,                                      Appellee,                                          v.                                   MANUEL VITTINI,                                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                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Damon M. D'Ambrosio on brief for appellant.            ___________________            Sheldon  Whitehouse,  United States  Attorney, Margaret  E. Curran            ___________________                            ___________________        and Kenneth P. Madden, Assistant United States Attorneys, on brief for            _________________        appellee.                                 ____________________                                  November 30, 1994                                 ____________________                 Per Curiam.  Manuel Vittini  pled guilty to one count of                 __________            possession  with intent to distribute heroin, in violation of            21  U.S.C.   841(a)(1).   The issue on  appeal is whether the            district  court   had  authority  to   reject  the   parties'            stipulation in the plea agreement that "[b]ecause one  of the            quantities of heroin  involved in this  case is an  estimated            quantity, the  government agrees  that a  sentence should  be            imposed  upon  a  total  quantity  of  thirty-nine  grams  of            heroin."    We  conclude that  the  court,  indeed, has  such            authority.  See, e.g., United  States v. Mason, 961 F.2d 1460                        _________  ______________    _____            (9th  Cir. 1992)  (holding that  the district  court was  not            bound  by  parties'  stipulation as  to  amount  of cocaine);            United States v. Garcia, 902 F.2d 324, 326-27 (5th Cir. 1990)            _____________    ______            (same).  Further, contrary to Vittini's assertion, it was not            clear error for the court to do so here.                 According to the laboratory reports, the total amount of            heroin  seized was  42.85 grams  - 35.12  grams found  in the            floor  boards where Vittini was discovered secreting it, 2.49            grams found in  nearby gym bags, and an  estimated 5.24 grams            from 276  "street bags" of  heroin, also found  near Vittini.            The estimated 5.24 grams was based on a tested sampling of 13            of the 276 bags.  That Vittini hoped that less than  40 grams            would  inform the sentencing determination is obvious.  There            is a two level difference in the base offense level depending            on whether  at least 40  grams of heroin are  involved (Level                                         -2-            20)  or less than  40 grams are  involved (Level 18).   After            computation  of,  and  adjustment  for,  the  other  relevant            factors, none of which are in dispute here, the difference in            the  resulting total offense  level and sentencing  range was            Level  17 with a range of 24-30 months  and a Level 15 with a            range of 18-24 months.  After informing Vittini that it would            not accept  the  39 grams  as  an accurate  calculation,  the            district court  offered Vittini  the opportunity  to withdraw            his  guilty  plea.   Vittini  declined.   The  district court            deemed Level 17 the correct level and sentenced Vittini to 30            months.                 We  reject Vittini's  assertion that the  district court            clearly erred in rejecting the stipulation in this case.  Not            only  was there no  clear error; there  was no  error at all.            Vittini  suggests  that the  court  was bound  to  accept the            stipulated  amount because,  in  Vittini's  view,  it  was  a            concession on the government's part as to the amount it could            prove.   Notwithstanding the  government's "concession,"  the            quantity  of drugs is relevant to sentencing and the district            court has an independent duty to determine the facts relevant            to sentencing.   The guidelines themselves state  that "[t]he            court is not bound  by the stipulation, but may with  the aid            of  the presentence report,  determine the facts  relevant to            sentencing."  USSG  6B1.4(d),p.s. (Nov. 1993).                      Even though stipulations  are expected to                      be  accurate  and   complete,  the  court                                         -3-                      cannot rely exclusively upon stipulations                      in ascertaining  the factors  relevant to                      the determination  of sentence.   Rather,                      in determining the  factual basis for the                      sentence,  the  court will  consider  the                      stipulation, together with the results of                      the  presentence  investigation,  and any                      other relevant information.            USSG  6B1.4, comment.  (Nov. 1993).  We also  have previously            stated that "the law is  clear that, where a non-binding plea            agreement  is  struck,  the  district  court  is  constrained            neither   by   the   United  States   Attorney's   sentencing            recommendation, nor  by stipulations of fact accompanying the            plea contract."   United  States v.  Jimenez-Otero, 898  F.2d                              ______________     _____________            813,  815  (1st  Cir.  1990)  (citations  to  the  guidelines            omitted).1                 In fulfilling  its  obligation to  determine  the  facts            relevant to the  sentencing, the district court was  on solid            ground   in  relying  on   the  laboratory  report   and  the            presentence report (PSR).   See United  States v. Morillo,  8                                        ___ ______________    _______            F.3d 864,  871 (1st  Cir. 1993) (opining  that "[w]hen  it is            impossible  or impractical to  obtain an exact  drug quantity            for sentencing purposes, a reasoned  estimate will suffice").            The difference between the laboratory analysis of 42.85 grams            and the  stipulation of  39 grams  was 3.85  grams.   The PSR            opined, and the  court agreed, that it was  unlikely that the                                            ____________________            1.  Vittini concedes that the plea agreement was non-binding.                                         -4-            laboratory would have  erred by this much in  its estimate of            the 5.24 gram amount.                 Further, the  PSR opined,  and the  court again  agreed,            that it  was reasonable  to conclude that  the $875  found on            Vittini was  obtained through  illegal drug  sales and  that,            converting the $875 to an estimated drug quantity, see United                                                               ___ ______            States v. Gerante, 891 F.2d  364 (1st Cir. 1989), resulted in            ______    _______            an additional  2 to 3  grams of heroin.   Vittini did  not at            sentencing, and does not now, contest either the propriety of            this conversion or its resulting computation of amount.                 Either  one of  these  two  amply  supported  grounds  -            reasonable reliance on the laboratory report or conversion of            the money  to an  estimated quantity of  drugs -  sufficed to            raise the  39 gram  stipulated amount of  heroin past  the 40            gram  threshold.  Finding no  error, we affirm the conviction                                                    ______            and sentence.  Loc. R. 27.1.                                         -5-
