
USCA1 Opinion

	




          March 22, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1304                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JOSE QUI ONES-PITA,                                Defendant, Appellant.                                 ___________________          No. 92-1305                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                DOMINGO COTTO-GARCIA,                                Defendant, Appellant.                                 ___________________                                     ERRATA SHEET                The  opinion of  this Court  issued on  March 16,  1993, is          amended as follows:                Page  4,  line  3,  heading should  read:    APPELLANT JOSE          QUINO ES-PITA, instead of . . . QUINO ES . . .          March 17, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1304                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JOSE QUI ONES-PITA,                                Defendant, Appellant.                                 ___________________          No. 92-1305                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                DOMINGO COTTO-GARCIA,                                Defendant, Appellant.                                 ___________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________                Lydia Lizarribar-Masini for appellant Jos  Qui ones-Pita.                _______________________                Gabriel Hern ndez-Rivera, by Appointment of the Court,  for                ________________________          appellant Domingo Cotto-Garc a.                Jorge  E. Vega-Pacheco,  Assistant United  States Attorney,                ______________________          with whom  Daniel F. L pez-Romo,  United States Attorney,  was on                     ____________________          brief for appellee.                                 ____________________                                 ____________________                    Per Curiam.  In  these appeals, which arise out  of the                    __________          same facts, one  appellant challenges his sentence  and the other          challenges his guilty  plea.   Both challenges arise  out of  the          same count in  the common indictment: conspiracy to distribute at          least  five kilograms of cocaine.   Because we  find both appeals          meritless,  we affirm.    We discuss  our  reasoning as  to  each          appellant individually.                            APPELLANT DOMINGO COTTO-GARCIA                            APPELLANT DOMINGO COTTO-GARCIA                            ______________________________                    Appellant Cotto presents  us with a curious  claim.  On          the one hand, he asserts that he entered his plea voluntarily and          knowingly  as to all counts, including the count of conspiracy to          distribute  at least  five kilograms  of cocaine.   On  the other          hand, he maintains that he did not know his plea  would result in          a  sentence based  on a  conspiracy to  distribute at  least five          kilograms.   He contends,  therefore, that  he  should have  been          sentenced in accordance  with the amount  of cocaine he  actually          handled.   Appellant  essentially wishes  us  to leave  the  plea          agreement  intact,  but  remand  the  case  for  resentencing  in          accordance with a lower amount of cocaine.  We   cannot   do   as          appellant wishes.                      Appellant specifically pled guilty  to a conspiracy  to          distribute five  kilograms of  cocaine, and expressly  refused to          seek  withdrawal  of  that  plea  at  oral   argument.    Indeed,          appellant's attorney plainly and repeatedly asserted the validity          of  that plea.   Thus, we are limited  to determining whether the          sentence  imposed pursuant  to that  plea was  improper.   As the                                         -3-          sentence fell  within the  applicable Sentencing  Guideline range          for appellant's crime, we conclude that it was entirely proper.                             APPELLANT JOSE QUINO ES-PITA                             APPELLANT JOSE QUINO ES-PITA                             ____________________________                    In  contrast to  appellant  Cotto,  appellant  Qui ones          seeks to withdraw his plea  as unknowing.  He claims that  at the          sentencing hearing,  he wished  to present evidence  negating the          factual  basis  for  the  plea.    Specifically,  he  sought  the          testimony  of appellant Cotto  to the effect  that the conspiracy          did  not  involve  five  kilograms.   Appellant  Cotto,  however,          invoked  his constitutional  right against  self-incrimination on          advice  of counsel,  and  the district  court  refused to  compel          Cotto's  testimony.   Appellant  claims that  the district  court          erred in doing so.  We find no error.                    Cotto's  right  to  claim  the  Fifth  Amendment  right          against self-incrimination  cannot be trampled upon  in appellant          Qui ones'  attempt to gain useful evidence.  See United States v.                                                       ___ _____________          Zirpolo,  704 F.2d 23, 25-26  (1st Cir.), cert.  denied, 464 U.S.          _______                                   _____________          822 (1983);  United States v. Rodr guez, 706 F.2d 31, 36 (2d Cir.                       _____________    _________          1983).  The fact that Cotto already pled guilty to the conspiracy          charge did  not preclude him from claiming  the right.  The Fifth          Amendment  does not  require that  defendants face  such exposure          because they have already pled guilty.  So long as  the threat of          future prosecution exists, it is  clear that the Fifth  Amendment          protects  defendants  from   the  threat  of  self-incrimination.          Zirpolo,  704 F.2d at 25.   Cotto's testimony  could have exposed          _______          him  to additional charges under both federal and state law.  The                                         -4-          district  court  did  not  err  in  refusing  to  compel  Cotto's          testimony.  There was no basis to withdraw the plea.                                      CONCLUSION                                      CONCLUSION                                      __________                    Cases 92-1304 and 92-1305 are affirmed.                                                  ________                                         -5-
