
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          March 4, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.      Jose  Quezada  appeals  from  his                      ___________            conviction and  sentence.   He was indicted  on one  count of            possessing  heroin with  intent to distribute.   He  moved to            suppress evidence seized  from his home, on  the grounds that            the  warrant  authorizing  the search  was  not  supported by            probable  cause.  After a  hearing, the district court denied            the motion.    Quezada pled  guilty  and the  district  court            sentenced  him to  27 months  in prison.   In  estimating the            quantity  of  heroin for  sentencing  purposes,  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   report  ("PSR")   contained  the            following summary  of  the facts  underlying this  case.   An            informant (known  to  the Johnston  Police  Department)  told            detectives  of the Providence  Police Department that  a man,            whom the informant  identified from a photograph  as Quezada,            would  be arriving  on October, 14,  1992 at  9:00 p.m.  at a            certain  location in  a burgundy  van  containing heroin  for            sale. The detectives  set up watch at  the specified location            and at 9:00 appellant arrived in a burgundy van.  Approaching            the  van,  the detectives  saw  Quezada  throw  a  gray  box,            commonly used to store heroin, into the back of the van.  The                                         -2-            detectives arrested  Quezada and  seized the  box, containing            500 glassine envelopes  of heroin, and $206 in  cash found in            Quezada's pocket.                      Later that night, the detectives executed a  search            warrant at Quezada's home.  They seized 781  glassine packets            of heroin  and the  following articles  commonly used in  the            packaging  of  heroin:  a  coffee  grinder,  boxes  of  empty            glassine  packets (some  stamped  "shoot  to kill"),  elastic            bands, an ink  pad and a  "shoot to kill"  stamp.  They  also            seized a pager and $ 2,321 in cash.  After being  informed of            his Miranda rights, Quezada signed a statement admitting that                _______            the drugs seized  from the van and his  apartment belonged to            him.   A subsequent  laboratory analysis  concluded that  the            weight of the total amount of heroin seized was between 15.26            grams and 18.22 grams.                      In  November,  1992, Quezada  was  indicted  on one            count  of  possession  with intent  to  distribute  heroin in            violation of  21 U.S.C.    841(a)(1).  In December,  1992, he            filed a  motion to suppress  the drugs seized by  the police.            Following an evidentiary hearing,  the district court  denied            the motion.  On June 15, 1993, appellant pled guilty.                         For purposes of calculating  the base offense level            ("BOL"),the probation officer who prepared  the PSR converted            the  cash  seized  from Quezada's  pocket  and  his apartment            ($2,527) into an  equivalent amount of heroin  (14.17 grams).                                         -3-            He  relied   upon  information  from  the   Drug  Enforcement            Administration that an ounce of heroin was then selling for             $5,000.   He  then added  the 14.7  grams to  the amounts  of            heroin seized to arrive  at a total weight of  29.43 to 32.39            grams.   That  amount of  heroin yielded  a BOL  of 18  under            U.S.S.G.   2D1.1 (c) (13). 1  The district  court adopted the            BOL  of  18  and  then applied  a  three-point  reduction for            Quezada's acceptance of  responsibility.  The PSR  included a            statement  by Quezada  admitting that  he  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.  As a condition of supervised  release, the district            court  ordered appellant,  at the  completion of his  term of            imprisonment, to  be surrendered to  an immigration  official            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  in effect            on the date appellant was sentenced.                                         -4-            illegally-seized evidence.  Finally, Quezada contends that it            was  error for  the district  court to  convert cash  into an            equivalent amount of  heroin for purposes of  calculating his            sentence.  We reject all three arguments.                      In pleading  guilty, Quezada  did  not reserve  the            right to  appeal from the  denial of his motion  to suppress.            See Fed. R. Crim. P. 11(a)(2) (allowing  conditional pleas to            ___            be  entered,  with  the consent  of  the  government  and the            approval  of the court,  by defendant's reserving  in writing            the right to appeal a pre-trial motion).  "It is clear that a            plea of guilty to an indictment is  an admission of guilt and            a waiver of  all non-jurisdictional defenses."  Acevedo-Ramos                                                            _____________            v. United States, 961 F.2d  305, 308 (1st Cir.) (holding that               _____________            by pleading  guilty, defendant waived statute  of limitations            defense),  cert. denied, ___ U.S.  ___, 113 S.Ct. 299 (1992).                       ____________            Therefore, Quezada's guilty  plea forecloses from review  the            denial of his motion to suppress.                        Quezada's  guilty   plea  also   bars  his   Fourth            Amendment challenge to  his sentence.  The Supreme  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.  258, 267 (1973).  By pleading            _______    _________            guilty,  appellant  waived  the right  to  assert  his Fourth            Amendment  claim for the  purpose of attacking  his sentence.            See  United States  v. Smallwood,  920 F.2d  1231, 1240  (5th            ___  _____________     _________            Cir.) (holding that, following the district court's denial of            appellant's  motion  to suppress  and  appellant's subsequent            guilty plea,  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  appeal,  as  he  did  at  his            sentencing hearing, the  government's conversion of  the cash            found in  his apartment into  an equivalent amount  of heroin            for purposes of calculating appellant's BOL.  He  argues that            there was  insufficient evidence  that the  cash belonged  to            him, given that  he shared the apartment with  others and the            PSI failed  to indicate where  in the apartment the  cash was            found.  Appellant  also contends that there  was insufficient            proof to support  the probation officer's assertion  that the            cash   was   "the   direct  result   of   previous  narcotics            trafficking."  He  cites his employment at an  auto body shop            at the time  of the search  in support  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,  however, Quezada is barred from  raising this issue            for  the first time on  appeal.  United  States v. Jackson, 3                                             ______________    _______            F.2d 506, 511 (1st Cir. 1993).                      "Pursuant to U.S.S.G.   1B1.3(a)(2), a defendant is            responsible for all acts which  'were part of the same course            of  conduct   or  common  scheme  or  plan  as  the  offenses            charged.'" United  States v.  Figueroa, 976  F.2d 1446,  1461                       ______________     ________            (1st Cir. 1992),  cert. denied, ___ U.S. ___,  113 S.Ct. 1346                              ____________            (1993).  In United States v. Gerante,  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  that  the  cash  "represents  drug            transactions that are  part of the same course  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  offense must  be supported  by a            preponderance of the  evidence.  United States  v. Jackson, 3                                             _____________     _______            F.3d   at  510.     At  the  sentencing   hearing,  appellant            challenged,   as  unsupported  by   a  preponderance  of  the            evidence, the PSI's assertion that  the cash seized from  his                                         -7-            apartment "was  the direct  result of  narcotics trafficking"            and,  therefore,  "relevant  conduct"  for  the  purposes  of            determining the BOL.                        As  required by Fed.  R. Crim. P.  32(c)(3)(D), the            district court  made a finding  as to the  alleged inaccuracy            contained in the PSI.  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  that, with  respect to  the            source of the cash  and its connection to Quezada, "I  do not            attach much significance to the defendant's argument."                      These  findings of fact  by the district  court are            reviewable only  for  clear  error.   See  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  that the  government met  its burden  of            proving  by a  preponderance of  the  evidence that  the cash            seized represented  proceeds of previous  heroin trafficking.            See United States  v. Sepulveda, Nos.  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, .  . . ,  and the volume of  business transacted            justified  the court's  illation that  the  sums seized  were            connected to her drug dealings.").                      Quezada argued at his  sentencing hearing that  the            evidence  suggested  that  there were  others  living  at his            apartment,  including a  woman,  children  and someone  named            Rodriguez.   Quezada  did not  produce any  such person  as a            witness  at the hearing,  however, to testify  that the money            was theirs.  Nor did  appellant offer any evidence to support            his contention that  he was employed at an  auto body shop at            the time of his  arrest.  The probation officer was unable to            verify the alleged employment.  Appellant did not provide any            proof  of employment,  (such as  paycheck  stubs) and  relied            solely  on a  statement  by  his wife  that  he  had been  so            employed.    Moreover,  the district  court  would  have been            justified in concluding that legitimate employment would  not            necessarily  explain the presence of large amounts of cash in            Quezada's apartment.  As in  United States v. Jackson, 3 F.2d                                         _____________    _______            at  511,  the  sentencing court  here  "rejected  the various            alternative sources of  the currency and determined  that the            funds were drug proceeds."  It did not commit clear error  in            making that determination.                                         -9-                      The conviction  and sentence are  affirmed pursuant            to Loc. R. 27.1.                                         -10-
