                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2007

USA v. Cedeno
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2899




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"USA v. Cedeno" (2007). 2007 Decisions. Paper 696.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/696


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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                      No. 06-2899
                      __________

           UNITED STATES OF AMERICA

                            v.

                  DAMASO CEDENO,
                             Appellant
                     __________

       Appeal from the United States District Court
         for the Middle District of Pennsylvania
                  (Crim. No. 05-cr-00216)
        District Judge: Hon. William W. Caldwell
                       __________

    Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                     June 18, 2007

Before: McKEE, FISHER, and CHAGARES, Circuit Judges

             (Opinion Filed: July 26, 2007)


                      __________

                       OPINION
                      __________




                            1
McKee, Circuit Judge:

       Damaso Cedeno appeals the sentence that was imposed after he pled guilty to one

count of unlawfully possessing with the intent to manufacture and distribute an

unspecified amount of cocaine. For the reasons that follow, we will affirm.1

                                                I.

       Inasmuch as we write primarily for the parties who are familiar with the case, we

need not set forth the factual background or procedural history except insofar as may be

helpful to our brief discussion. Pursuant to the terms of the plea agreement, Cedeno

agreed that the amount of cocaine attributable to him was to be determined at the

sentencing hearing.2 Cedeno argues that the district court erred by imposing the

mandatory prison term of ten years under 21 U.S.C. § 841(b)(1)(A) based solely on the

court’s determination of the amount of cocaine. He claims the quantity should have been

established beyond a reasonable doubt, and that the court should have applied the safety

valve provision of 18 U.S.C. § 3553(f).


       1
         We have jurisdiction to review all final decisions of the district court of the United
States under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
        “We exercise plenary review over the District Court’s interpretation of the Sentencing
Guidelines and constitutional questions.” United States v. Lennon, 372 F.3d 535, 538 (3d Cir.
2004).
       2
          Cedeno’s sentencing memorandum acknowledged the following language of the United
States Sentencing Guidelines:
        With respect to offenses involving contraband (including controlled substances), the
defendant is accountable for all quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal activity that he jointly undertook.
U.S.S.G. § 1B1.3, commentary, application note (2)(ii).

                                                 2
                                              II.

       Cedeno’s appeal was filed before we decided, United States v. Grier, 475 F.3d

556, 565 (3d Cir. 2007) (en banc). Cedeno’s claim that the court could not determine

drug quantity absent proof beyond a reasonable doubt is foreclosed by that decision. We

there held that the Due Process Clause does not require facts relevant only to sentencing

enhancements to be proven beyond a reasonable doubt.3 Grier, 475 F.3d at 565-66.

Rather, such findings need only be supported by a preponderance of the evidence.

Additionally, under U.S.S.G. § 1B1.3(a)(1)(A), a defendant’s guideline range is

determined on the basis of “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant.”

       There is no dispute about the actual weight of the drugs involved in this case.

Rather, Cedeno argues that the government did not establish that he knew how much the

drugs he was transporting weighed.4 He admitted the interstate transportation of all of the

cocaine he was charged with possessing with the intent to distribute. It was therefore

appropriate to hold him responsible for that entire amount, even if he did not know the

precise weight. The district court found by a preponderance of the evidence that that

cocaine weighed eight kilograms, and that quantity triggered the statutory maximum of



       3
          Booker altered the constitutional impact of the Sentencing Guidelines by excising the
provisions of the United States Code requiring mandatory application of the Guidelines. United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
       4
        The Presentence Report states that the laboratory analysis revealed that the cocaine
weighed 8.029 kilograms.

                                               3
ten years imprisonment. See 21 U.S.C. § 841(b)(1)(A); and U.S.S.G § 5G1.1(c)(2). The

guideline term is 120 months. The record also establishes that the court considered the

relevant sentencing factors and reasonably applied them in imposing sentence.

                                                III.

       The safety valve provisions in 18 U.S.C. § 3553(f) apply if five specified

conditions are met. The fifth condition under § 3553(f) is the only one in dispute here.

That condition requires a defendant to truthfully provide all relevant information and

evidence pertaining to the offense to the government. 8 U.S.C. § 3553(f)(5). The

defendant must show, by a preponderance of the evidence, that he/she complied with that

requirement. See United States v. Sabir, 117 F.3d 750, 754 (3d Cir. 1997) (citing United

States v. Ramirez, 94 F.3d 1095, 1100-02 (7th Cir. 1996).5

       Although Cedeno did file a sentencing memorandum in which he purported to

comply with that requirement, the district court questioned the veracity of the information

Cedeno provided. The court also found that the information he gave was vague.6

Although Cedeno requested an additional opportunity to address the court’s concerns, the

court proceeded to sentence him based upon the information Cedeno’s first bite of the


       5
          We exercise plenary review over interpretation of the safety valve provision as it raises
a legal question, but the district court’s factual findings with regards to the safety valve
conditions are reviewed for clear error. United States v. Sabir, 117 F.3d 750, 752 (3d Cir. 1997).
       6
           Cedeno claimed he “didn’t know how much drugs were there or didn’t know who was
giving it to him or where it was going.” The district court quite naturally concluded that the
“information isn’t helpful to anybody” as it is “hard to believe that somebody who is
transporting cocaine in whatever amount and is going to get $4,000 when he delivers it doesn’t
know . . . where the person is . . . [or] how . . . he was going to make this delivery[.]” We agree.

                                                  4
apple provided. However, the court nevertheless suggested that the government could

file a Rule 35 motion to reduce the sentence if appropriate in view of any subsequent

information Cedeno might choose to provide. That was both reasonable and appropriate.

       Although Cedeno claims that the district court erred and misunderstood his request

for an additional opportunity to obtain evidence for the government, the record does not

support that claim. Accordingly, we conclude that the district court’s finding was not

clearly erroneous, and the resulting sentence was reasonable given the court’s

consideration of the various sentencing factors set forth in § 3553(a).

                                            IV.

       For all the above reasons, we will affirm the judgment of sentence.




                                             5
