Filed: May 31, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 99-10509 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MARGUERITE CASALE, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas (4:98-CR-211-Y) _ May 11, 2000 Before POLITZ, SMITH, and DENNIS, possession with intent to distribute heroin in Circuit Judges. violation of 21 U.S.C. § 841(a)(1). We affirm. JERRY E. SMITH, Circuit Judge:* I. The government first argues that we shou
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 99-10509 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MARGUERITE CASALE, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas (4:98-CR-211-Y) _ May 11, 2000 Before POLITZ, SMITH, and DENNIS, possession with intent to distribute heroin in Circuit Judges. violation of 21 U.S.C. § 841(a)(1). We affirm. JERRY E. SMITH, Circuit Judge:* I. The government first argues that we shoul..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10509
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARGUERITE CASALE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:98-CR-211-Y)
_________________________
May 11, 2000
Before POLITZ, SMITH, and DENNIS, possession with intent to distribute heroin in
Circuit Judges. violation of 21 U.S.C. § 841(a)(1). We affirm.
JERRY E. SMITH, Circuit Judge:* I.
The government first argues that we should
Marguerite Casale appeals the sentence im- dismiss without consideration of the merits be-
posed following her plea of guilty of cause Casale’s written plea agreement contains
a waiver-of-appeal provision. A defendant can
waive the right to appeal as part of a plea
*
agreement, but the waiver must be informed
Pursuant to 5TH CIR. R. 47.5, the court has
(or “knowing”) and voluntary. See United
determined that this opinion should not be
States v. Melançon, 972 F.2d 566, 567 (5th
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. Cir. 1992). “[A] defendant's waiver of her
47.5.4. right to appeal deserves and, indeed, requires
the special attention of the district court. . . . sentencing hearing, the defendant has
It is up to the district court to insure that the truthfully provided to the Government
defendant fully understands her right to appeal all information and evidence the
and the consequences of waiving that right.” defendant has concerning the offense or
United States v. Baty,
980 F.2d 977, 979 (5th offenses that were part of the same
Cir. 1992). A generic discussion of the course of conduct or of a common
possibility of waiving one’s right to an appeal scheme or plan, but the fact that the
is not sufficient. See United States v. defendant has no relevant or useful other
Robinson,
187 F.3d 516, 518 (5th Cir. 1999). information to provide or that the
Government is already aware of the
The record of Casale’s FED. R. CRIM. P. 11 information shall not preclude a
hearing does not unequivocally indicate that determination by the court that the
she had read and understood the plea defendant has complied with this
agreement, and the hearing did not include any requirement.1
explanation of the waiver-of-appeal provision.
The record is not adequate to demonstrate that This requirement is repeated verbatim at
Casale knowingly and voluntarily waived her U.S.S.G. § 5C1.2, and U.S.S.G. § 2D1.1(b)(6)
right to appeal, so the waiver is not effective. provides for a two-level decrease in offense
See Robinson, 187 F.3d at 518; United States level if the “safety-valve” requirements are met
v. Portillo,
18 F.3d 290, 292-93 (5th Cir. and the offense level is 26 or greater.
1994).
Based on the government’s assertion that
II. Casale had not truthfully provided all
Casale argues that the court erred by information and evidence she had regarding
declining to impose a sentence below the the offense, the Presentence Report (“PSR”)
statutory minimum pursuant to the “safety recommended that she was ineligible for the
valve” provision of 18 U.S.C. § 3553(f): safety-valve provision. The court tentatively
sustained Casale’s objection to this
Notwithstanding any other provision of recommendation, but, after hearing testimony
law, in the case of an offense under . . . from a government agent and Casale,
21 U.S.C. 841 . . . the court shall determined that the PSR recommendation was
impose a sentence pursuant to guidelines correct and refused to apply the safety-valve
promulgated by the United States provision because of a failure to satisfy the
Sentencing Commission . . . without truthfulness criterion of § 3553(f)(5). We
regard to any statutory minimum review this finding for clear error.2 See United
sentence, if the court finds at sentencing,
after the Government has been afforded
the opportunity to make a 1
Section 3553(f) contains five requirements,
recommendation, thatSS but the parties dispute only whether Casale has
satisfied the requirement contained at § 3553(f)(5).
...
2
Neither party contends that the court
(5) not later than the time of the incorrectly interpreted the provision as a matter of
(continued...)
2
States v. Miller, 179 F.3d 961, 963-64 (5th untruthfulness regarding matters not related to
Cir. 1999). the offense of conviction. See
Miller, 179
F.3d at 965-66. Miller does not control
The government asserts that Casale has not whether the money order testimony is relevant,
been truthful about at least two issues. First, however, because unlike the situation in Mil-
although the government was able to verify ler, the only basis for determining whether the
Casale’s claim that she had engaged in a money order is relevant is Casale’s credibility,
practice run from New York to Texas after her a judgment the district court was uniquely well
recruitment as a drug courier, government qualified to make.
agents did not believe she was unaware of the
identity of all other participants in the drug Casale’s assertion that the court incorrectly
operation, and did not believe her assertion relied on pure speculation is likewise not sup-
that, having suffered a stroke, she was unable ported by Miller. In Miller, we did hold that
to recall specific dates. a court may not rely on mere speculation, but
in so doing we explicitly followed United
Second, Casale became extremely evasive States v. Miranda-Santiago, 96 F.3d 517 (1st
on cross examination when the government Cir. 1996), and United States v. White, 119
asked about a receipt for a $50 postal money F.3d 70 (1st Cir. 1997). See Miller, 179 F.3d
order from Lucy Montemoro in Brooklyn, at 967-68.
New York, to Luis de Jesus in Elmira, New
York, which was found in Casale’s purse at The Miranda-Santiago court held that mere
the time of arrest. Casale claimed that the speculation is not sufficient to defeat
money order was not related to her criminal application of 18 U.S.C. § 3553(f): “The
offense, and therefore refused to identify the government cannot assure success simply by
named individuals. saying, ‘We don’t believe the defendant,’ and
doing nothing more.” Miranda-Santiago, 96
Following Casale’s testimony, the court F.3d at529. In White, the court clarified
stated that it now understood why the PSR Miranda-Santiago in affirming a refusal to
found her to be ineligible for the safety valve apply the safety valve provision:
provision, and overruled her objection to the
denial of that reduction on the ground that she Miranda-Santiago in no sense suggests
had been evasive under questioning and had that the sentencing court cannot arrive
failed to demonstrate that she had been at an independent determination
forthcoming for purposes of § 3553(f)(5). regarding a criminal defendant’s
Casale argues that the court erred by denying truthfulness, based on the evidence
the reduction based on irrelevant matters and before it. Rather, we there held merely
pure speculation, in violation of Miller. that it was clear error to conclude that
the defendant had been untruthful, based
In Miller, we held that a court may not re- solely on a PSR which directly
fuse the safety valve reduction based on contradicted the district court’s
determination.
2
(...continued)
law.
3
White, 119 F.3d at 74.3
As in White, the district court in this case,
after preliminarily rejecting the government’s
argument, “made the carefully considered de-
termination that [Casale] lacked credibility.”
White, 119 F.3d at 74. That decision is not
clearly erroneous.
AFFIRMED.
3
The Miranda-Santiago district court was con-
fused about two matters, the nature and content of
the plea agreement and the content of the PSR. See
Miranda-Santiago, 96 F.3d at 527. In particular,
the court incorrectly believed that the PSR
supported the government’s position as to the
defendant’s truthfulness. See
id.
4
