Filed: May 01, 2007
Latest Update: Feb. 21, 2020
Summary: And they, have been stating it since day one, since the, first time we asked them, and then go around, and go over to [the judge in the other case], and defense counsel and tell them were going, to use [Báez] as a witness, because, [Government Counsel] would get into a lot of, trouble.
Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1876
UNITED STATES,
Appellee,
v.
RAÚL BÁEZ DE JESÚS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Gímenez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Lynch, Circuit Judge,
and DiClerico, Jr.,* District Judge.
Rafael F. Castro Lang for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, for appellee.
May 1, 2007
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. On Christmas Eve of 2004,
Raúl Báez De Jesús was arrested with Christian Sánchez when they
were intercepted while navigating a boat carrying cocaine from St.
Thomas to Puerto Rico. Báez and Sánchez were indicted for aiding
and abetting each other to distribute 220 kilograms of cocaine and
for illegally importing cocaine into the United States. Báez pled
guilty on July 5, 2005. He appeals from his sentence of 135
months’ imprisonment on the ground that the district court erred in
denying his request for a downward departure. For the following
reasons, we dismiss the appeal for lack of jurisdiction.
On appeal, Báez argues that the District Court
erroneously failed to recognize that the government’s conduct in
revealing Báez as the source of certain statements against his co-
conspirators, who are charged in a separate action, constituted
grounds for a downward departure under either U.S.S.G. § 5K2.0 or
18 U.S.C. § 3553.1 Importantly, Báez does not challenge the
reasonableness of his sentence under United States v. Booker, 543
U.S. 220 (2005). Cf., e.g., United States v. Martínez-Vives, 475
1
Although Báez cites § 3553 in his appellate brief, he makes
no developed argument under any provision of that statute, and
instead relies on § 5K2.0. During the sentencing proceeding,
however, Báez did not raise § 5K2.0 and instead relied on § 3553.
Generally, arguments not raised below are reviewed only for plain
error. United States v. Milkiewicz, 470 F.3d 390, 401 (1st Cir.
2006). Because we conclude that jurisdiction is lacking to review
Báez’s claim on appeal, the standard of review is not an issue in
this case.
-2-
F.3d 48, 54 (1st Cir. 2007) (“Martínez challenges his 33-month
sentence as unreasonable.”).
A sentencing court’s denial of a downward departure is
discretionary and unreviewable unless the court refuses the request
based “on a view that it lacks legal authority to consider a
departure or . . . base[d] . . . on an error of law.” United
States v. Meléndez-Torres, 420 F.3d 45, 50 (1st Cir. 2005).
Neither exception occurred in this case.
Báez contends that certain statements made during the
sentencing proceeding demonstrate that the sentencing court
believed it lacked authority to grant a downward departure based on
the government’s disclosure to Báez’s co-conspirators that he was
the source of statements made against them.2 Specifically, Báez
cites the court’s response to defense counsel’s question during the
following exchange:
[DEFENSE COUNSEL]: Your Honor, if they
weren’t using him as a witness, if they
weren’t giving him the benefit of cooperation,
then we can see no other reason why his
statement would be provided to defense counsel
[in the co-conspirators’ case] other than to
lead defense counsel in that case to induce
their clients to plead guilty because this
defendant would be available to testify
against them; when now the government says
that it won’t be using my client as a witness.
THE COURT: They don’t say it now. They have
always said it from day one. In my case, in
2
Defense counsel also argued a variety of other grounds for
downward departure that are not at issue on appeal.
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this case, they’ve said that they are not
going to use it in the other case.
[DEFENSE COUNSEL]: Then why was a statement,
Your Honor, provided in Criminal Case 05-302?
THE COURT: You will have to ask the
government. But that’s an issue that has
nothing to do with sentencing in this case.
Anything else?
Sentencing Hr’g Tr. 43-44, Apr. 26, 2006. When defense counsel
continued to argue that the government was benefitting from the use
of Báez’s statement in his co-conspirators’ case and that defense
counsel had not been told that Báez would not be a witness in that
case, the court responded:
I’m sure they have, because [Government
Counsel] are not going to come here as
officers of the court and state to me that
they are not going to be using it. And they
have been stating it since day one, since the
first time we asked them, and then go around
and go over to [the judge in the other case]
and defense counsel and tell them we’re going
to use [Báez] as a witness, because
[Government Counsel] would get into a lot of
trouble.
Counsel, I told you that was a good faith
mistake, that they turned it over. And
[Government Counsel] explained it to you and
to me a long time ago, that it was a mistake,
they are sorry for it, that they should have
not done it.
Id. at 47. Government counsel agreed that the government had
informed the judge and defense counsel in the other case that Báez
would not be a witness in that case and also noted that none of the
defendants in the other case had entered guilty pleas.
-4-
Taken in context, the sentencing court’s statements show
it found that the government’s disclosure of Báez’s statement did
not constitute misconduct which could affect Báez’s sentencing.
See United States v. Snyder, 235 F.3d 42, 50 n.8 (1st Cir. 2000)
(“[G]overnment misconduct may serve as a ground for departure, but
only if relevant in some particular way to sentencing.”). We
conclude from our review of the record in this case that the
sentencing court was aware of its authority to depart based on
government misconduct, but in the exercise of its discretion, the
court declined to do so under the circumstances as it found them to
be. Therefore, we lack jurisdiction to review the district court’s
discretionary decision denying Báez’s request for a downward
departure.
Meléndez-Torres, 420 F.3d at 51.
The appeal is dismissed.
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