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[NOT FOR PUBLICATION]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

Assistant U.S. Attorney, on brief for appellee.

____________________

and

Juan A. Pedro
_______________

____________________

Per Curiam.
___________

The

sole

issue

raised

by

this

sentencing

appeal is

determining

whether

that defendant-appellant

ineligible for relief from

his offense pursuant to

guideline

the district

Jose

court erred

in

Manuel Dones

is

the statutory minimum penalty for

18 U.S.C.

provision, U.S.S.G.

3553(f) and

5C1.2.

For

the related

the following

reasons, we affirm.

I.
_

On May 16, 1994, co-defendant Hiram Antonio Collazo

was arrested

at the Luis Munoz

Carolina, Puerto

that a

Rico,

who

officials

he was carrying

had paid

discovered

contained heroin.

the arresting officers that he

Aruba to pick up the

Dones,

after customs

leather portfolio

Collazo informed

Marin International Airport,

had gone to

heroin, and that he was bringing

him with

Suzuki vehicle.

it to

Collazo

agreed

arrested

to

cooperate

that

same

with

day

the government,

after Collazo

and

made

Dones

was

controlled

delivery of the heroin to him.

On June

of

27, 1994, Dones pled

heroin with intent

841(a)(1); 18 U.S.C.

to distribute

2.

guideline sentencing

it.

See 21
___

U.S.C.

Prior to sentencing, a presentence

investigation report (PSR) was

the

guilty to possession

prepared.

range to

be 46

The PSR determined

- 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.
___

was

841(b)(1)(B).

sentencing hearing

was conducted,

imposed, on September 23, 1994.

and sentence

At the hearing, defense

counsel urged the district court to depart from the statutory

minimum term of imprisonment

the

guideline

U.S.S.G.

range pursuant

to a sentence at the

to

18 U.S.C.

middle of

3553(f) and

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.

sentence

pursuant to

841, the court shall impose a

the guidelines

without regard

to any

have more than

statutory minimum sentence, if:

(1)
criminal

the defendant does not

history

point, as

determined

under the

sentencing guidelines;

(2)

the

defendant

credible threats of
or

other

dangerous

participant

to

do

did not

use

violence or

violence or possess
weapon
so)

(or

in

a firearm

induce

connection

another
with

the

offense;

(3)

the offense

did not result

in death

or

serious bodily injury to any person;

(4)
leader,
offense,

the

defendant

manager, or
as

was

not

supervisor of

determined

under

an

organizer,

others
the

in 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

the Government
defendant
that
a

all

information and

has concerning

provided to
evidence

the offense

the

or offenses

were part of the same course of conduct or of

common scheme

defendant

has

or plan,
no

but

relevant

the fact
or

that the

useful

other

-33

first four criteria are

met.

However, after

making inquiry

of the government,

meet the

it determined that the defendant

fifth condition that

he share with

all known information about the offense.

Dones

to

60 months

supervised release.

imprisonment,

did not

the government

The court sentenced

followed

by a

term

of

erred

in

This appeal ensued.

II.
__

Dones

determining

under

argues

that he

18 U.S.C.

that

the

failed to

district court

satisfy the

3553(f) and U.S.S.G.

fifth condition

5C1.2.

He contends

that

although his co-defendant reached the government first,

both

he and

his co-defendant

complete information.

He

court

the

misinterpreted

provided the

government with

further contends that the district

fifth

condition

and

found

him

ineligible

because

for

relief from

he had no new

the

statutory

minimum penalty

or useful information

to provide the

government.

Contrary

to the

government's contention,

jurisdiction to review whether

in

violation of

application

of

law"

or

Dones' sentence was

"as

the sentencing

result

of

guidelines."

an

we have

"imposed

incorrect

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

essentially tracks the language of the statute.

-44

provision

3742(a).2

We

review

sentencing for clear error.

F.3d 16, 25

(1st Cir.

F.2d 437, 443-44 (1st

interpretation of

See
___

fact-bound

matters

related

to

See United States v. Andujar, 49

___ _____________
_______

1995); United States

_____________

Cir. 1989).

the guidelines

A district

v. Wright,
______

873

court's legal

engenders de novo
__ ____

review.

United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir.

_____________
_________

1994).

Dones'

to

suggestion that the

depart from

the

district court refused

statutory minimum

sentence because

he

failed to provide new or useful information to the government

is

baseless.

The record

denied the requested

not

come forward

that the

district court

relief because it found

that Dones did

and

government concerning

reveals

provide complete

his offense.

information to

Accordingly,

the

we turn to

whether this finding was erroneous.

When

provided

asked,

complete and

at

sentencing,

whether

truthful information,

Dones

had

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
from

the

States
______

court's discretionary refusal

applicable guideline

v.

Gifford,
_______

17

range.

F.3d

462,

473

to depart downward
See, e.g.,
___ ____

United
______

(1st

1994).

Cir.

Although this principle is true, we assume arguendo (although

________
we

need not decide) that

3553(f) and

the related

it is inapplicable

guideline provision do

departures from the guideline

provide

for

relief

from

here.

Section

not address

sentencing range; rather, they

mandatory

certain cases.

-55

minimum

penalties

in

statement, but

argued that Dones had

information to probation.

Dones was very

only

told

requested

provided the necessary

The probation officer stated that

reticent in answering questions,

probation

that

he

had

met

an

and that he

individual who

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.

district court

did not clearly

err in determining

few, sketchy details Dones came forward

The

that the

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

of the person

disclosed the identity

for whom he was operating.

See United States

___ _____________

v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. 1995).

__________

Affirmed.
________

-66