
USCA1 Opinion

	




          June 7, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2146                                    UNITED STATES,                                      Appellee,                                          v.                                    JOSE M. DONES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                         FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Jose M. Dones on brief pro se.            _____________            Guillermo  Gil,  United  States  Attorney  and  Juan  A.  Pedrosa,            ______________                                  _________________        Assistant U.S. Attorney, on brief for appellee.                                  ____________________                                 ____________________                      Per  Curiam.    The   sole  issue  raised  by  this                      ___________            sentencing  appeal is  whether  the district  court erred  in            determining  that defendant-appellant  Jose  Manuel Dones  is            ineligible for relief from  the statutory minimum penalty for            his offense pursuant to  18 U.S.C.   3553(f) and  the related            guideline  provision, U.S.S.G.    5C1.2.   For  the following            reasons, we affirm.                                          I.                                          _                      On May 16, 1994, co-defendant Hiram Antonio Collazo            was arrested  at the Luis Munoz  Marin International Airport,            Carolina, Puerto  Rico,  after customs  officials  discovered            that a  leather portfolio  he was carrying  contained heroin.            Collazo informed  the arresting officers that he  had gone to            Aruba to pick up the  heroin, and that he was bringing  it to            Dones,  who  had paid  him with  a  Suzuki vehicle.   Collazo            agreed  to  cooperate  with  the government,  and  Dones  was            arrested  that  same  day  after Collazo  made  a  controlled            delivery of the heroin to him.                      On June  27, 1994, Dones pled  guilty to possession            of  heroin with intent  to distribute  it.   See 21  U.S.C.                                                           ___            841(a)(1); 18 U.S.C.   2.  Prior to sentencing, a presentence            investigation report (PSR) was  prepared.  The PSR determined            the  guideline sentencing  range to  be 46  - 57  months, but            noted that the statutory minimum term of imprisonment for the            offense, which involved 333.6 grams of heroin, is five years.            See 21 U.S.C.   841(b)(1)(B).              ___                      A  sentencing hearing  was conducted,  and sentence            was  imposed, on September 23, 1994.  At the hearing, defense            counsel urged the district court to depart from the statutory            minimum term of imprisonment  to a sentence at the  middle of            the  guideline  range pursuant  to  18 U.S.C.     3553(f) and            U.S.S.G.   5C1.2, which provide for relief from the mandatory            minimum if five criteria are met.1  The  court found that the                                            ____________________            1.  The statute provides, in pertinent part, that in the case            of an offense under 21 U.S.C.   841, the court shall impose a            sentence  pursuant to  the guidelines  without regard  to any            statutory minimum sentence, if:                      (1)  the defendant does not  have more than  1                 criminal  history  point, as  determined  under the                 sentencing guidelines;                        (2)  the  defendant  did not  use  violence or                 credible threats of  violence or possess  a firearm                 or  other  dangerous  weapon  (or   induce  another                 participant  to  do  so)  in  connection  with  the                 offense;                      (3)  the offense  did not result  in death  or                 serious bodily injury to any person;                      (4)  the  defendant  was  not   an  organizer,                 leader,  manager, or  supervisor of  others  in the                 offense,   as   determined  under   the  sentencing                 guidelines  and was  not  engaged  in a  continuing                 enterprise, as defined in 21 U.S.C. 848; and                       (5)  not later than the time of the sentencing                 hearing, the  defendant has truthfully  provided to                 the Government  all  information and  evidence  the                 defendant  has concerning  the offense  or offenses                 that  were part of the same course of conduct or of                 a  common scheme  or plan,  but  the fact  that the                 defendant   has   no  relevant   or   useful  other                                         -3-                                          3            first four criteria are  met.  However, after  making inquiry            of the government,  it determined that the defendant  did not            meet the  fifth condition that  he share with  the government            all known information about the offense.  The court sentenced            Dones  to  60 months  imprisonment,  followed  by a  term  of            supervised release.  This appeal ensued.                                         II.                                         __                      Dones  argues  that  the  district court  erred  in            determining  that he  failed to  satisfy the  fifth condition            under  18 U.S.C.   3553(f) and U.S.S.G.   5C1.2.  He contends            that  although his co-defendant reached the government first,            both  he and  his co-defendant  provided the  government with            complete information.  He  further contends that the district            court  misinterpreted  the  fifth  condition  and  found  him            ineligible  for  relief from  the  statutory  minimum penalty            because  he had no new  or useful information  to provide the            government.                      Contrary  to the  government's contention,  we have            jurisdiction to review whether  Dones' sentence was  "imposed            in  violation of  law"  or  "as  a  result  of  an  incorrect            application  of  the sentencing  guidelines."    18 U.S.C.                                               ____________________                 information  to provide  or that the  Government is                 already aware of the information shall not preclude                 a determination by the court that the defendant has                 complied with this requirement.            18  U.S.C.      3553(f)(1)-(5).     The  guideline  provision            essentially tracks the language of the statute.                                         -4-                                          4            3742(a).2      We  review   fact-bound  matters   related  to            sentencing for clear error.  See United States v. Andujar, 49                                         ___ _____________    _______            F.3d 16, 25  (1st Cir.  1995); United States  v. Wright,  873                                           _____________     ______            F.2d 437, 443-44 (1st  Cir. 1989).  A district  court's legal            interpretation of  the guidelines  engenders de novo  review.                                                         __ ____            See  United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir.            ___  _____________    _________            1994).                        Dones'  suggestion that the  district court refused            to  depart from  the  statutory minimum  sentence because  he            failed to provide new or useful information to the government            is  baseless.   The record  reveals  that the  district court            denied the requested  relief because it found  that Dones did            not  come forward  and  provide complete  information to  the            government concerning  his offense.  Accordingly,  we turn to            whether this finding was erroneous.                      When   asked,  at  sentencing,  whether  Dones  had            provided  complete and  truthful information,  the government            replied that it had not engaged in any discussions with Dones            concerning the offense.  Defense counsel did not dispute this                                            ____________________            2.  The government argues that we lack jurisdiction to review            a district  court's discretionary refusal  to depart downward            from  the  applicable guideline  range.    See, e.g.,  United                                                       ___  ____   ______            States  v.  Gifford,  17  F.3d  462,  473  (1st  Cir.  1994).            ______      _______            Although this principle is true, we assume arguendo (although                                                       ________            we  need not decide) that  it is inapplicable  here.  Section            3553(f) and  the related  guideline provision do  not address            departures from the guideline  sentencing range; rather, they            provide  for  relief  from  mandatory  minimum  penalties  in            certain cases.                                           -5-                                          5            statement, but  argued that Dones had  provided the necessary            information to probation.   The probation officer stated that            Dones was very  reticent in answering questions,  and that he            only  told  probation  that  he  had  met  an  individual who            requested  that he find someone to secure narcotics.  We need            not decide, in the instant case, whether a defendant can ever            avail  himself  of the  benefits  of    3553(f)  by providing            information to probation, rather than to the prosecutor.  The            district court  did not clearly  err in determining  that the            few, sketchy details Dones came forward  with did not satisfy            the requirement that he provide "all information and evidence            [he] has  concerning the offense."   18 U.S.C.    3553(f)(5).            At the  very least, Dones should have  disclosed the identity            of the person  for whom he was operating.   See United States                                                        ___ _____________            v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. 1995).               __________                      Affirmed.                      ________                                         -6-                                          6
