# United Stat es Court of Appeals For the First C ircuit

No. 03-1390 UNITED STATES OF AMERICA, Appellee,

v. AMAURY GONZÁLEZ, Defendant, Appellant.

____________________ No. 03-1826 UNITED STATES OF AMERICA, Appellee,

v. JULIAN MARTÍNEZ Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge ]

Before Boudin, Chief Judge , Torruella and Selya, Circuit Judges . John F. Cicilline on brief for appellant Amaury González. Amaury González on supplemental brief pro se. John M. Cicilline on brief for appellant Julian Martínez.Craig N. Moore , Acting United States Attorney, Donald C.

Lockhart , Assistant Uni ted S tates Attorney, and Adi Goldstein , Assistant United St ate s Attorney, on consolidated brief for appellee.

March 30, 2004-3- PerCuriam . Defendants Amaury Gon zalez and Julian Martinez were indicted, along with Lenaur Hidalgo, on drug offenses involving cocaine distribution in Providence, Rhode Island . A ll three eventually pled guilty in the district court to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (2000), as well

as multiple counts of substantive cocaine-related offenses. Gonzalez and Martinez now appeal, each raising separate issues with respect to the sentences imposed on them by the district court.

Gonzalez argues that the district court erredin finding hima career offender under U.S.S.G. § 4B1.1 (2002), a finding that hadthe effect of raising his base offense level from 26 to 34. See § 4B1.1(b). § 4B1.1(a) says:

Adefendant is a career offender if (1) the defendant was at least eighteen years oldat the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a fel ony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Gonzalez's argument centers on the third requirement for career offender status: he claims that, although he did have two prior felonyconvictions for crimes involving controlledsubstances, the district court failed to treat those convictions as "related," and

so not counted separately, for purposes of applying the guideline.

U.S.S.G. § 4B1.2(c) says, in relevant part: The term "two prior felony convictions" means (1) the defendant committed the instant-4- offense of conviction subsequent to sustaining at least t wo felony convictions of either a crime of violence or a controlled substance offense . . . , and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c). To determine whether sentences are counted separately under the provisions of U.S.S.G. § 4A1.1(a), (b), or (c), it is necessary to lookto § 4A1.2(a)(2), which says: "Prior sentences imposed in unrelatedcases are to be counted separately. Prior sentences imposedin relat ed c ases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c)." Section 4A1.2(a)(2) does not set forth any criteria for determining whether prior sentences

are "related" or "unrelated," but the accompanying commentary says:

Re late dCases. Prior sentences are not consideredrelated if t hey were for offenses tha t were separated by an intervening arre s t ( i.e. , the defendant is arrested for the first offense prio r to committing the second offense). Otherwise, pr ior sentences are consideredr elated if they resulted from offenses that (A) occurred on the same occasion, (B ) were part of a single common scheme or plan, or (C) were consolidated fo r trial or sentencing. U.S.S.G. § 4A1.2, cmt. n.3.

Gonz alez indisputably has two prior felony convictions for controlled substances offenses, one in August of 1998 and one in February of 1999. He also concedes that the two offenses "were separatedby an intervening arrest," which, acco rding to the commentaryquoted above, would make the c onvict ions unrelated1 U nitedStates v. Duty , 302 F.3d 1240, 1241-42 (11th Cir .

2002); United States v. Peltier , 276 F.3d 1003, 1006-07 (8th Cir. 2002); United States v. Bradley , 218 F.3d 670, 672-74 (7th Cir. 2000); United States v. Huggins , 191 F.3d532, 539 (4th Cir. 1999); United States v. Boonphakdee , 40 F.3d 538, 543-44 (2d Cir. 1994); UnitedStates v. Davis , 15 F.3d 526, 532-33 (6th Cir. 1994); United States v. Gallegos-Gonzalez , 3 F.3d 325, 326-28 (9 th Cir . 1993); see United States v. Hallman , 23 F .3d 821, 824-25 (3d Cir. 1994) (reaching the same conclusion for purposes of determining criminal historyscore); United States v. Wilson , 41 F.3d 1403, 1404-05 (10th Cir. 1994) (same). -5- unde r se ction 4A1.2. Gonzalez's only argument is that the commentaryshould not be f ollowed because it changes the meaning of se ction 4A1.2, which does not itself define "related" o r "unrelated" sentences.

The commentary contained in the Sentencing Guidelines is binding unless there is a conflict between the commentaryand the te xt of the particular guideline at issue. Stinson v. United States , 508 U.S. 36, 42-47 (1993). Here, there is no confli ct between section 4A1.2, w hic h contains no criteria for distinguishing between "related" and "unrelated" sentenc es, and the commen tary, which clarifies the meaning of these otherwise ambiguous terms. This conclusion a ccords with that of every circu i t to consider the issue. 1 Since the intervening arrest resolves the question, we have n o cause to consider Gonzalez's argument that his prior convictions are otherwise related.

Gonzalez also argues, in a supplementa l pro se brief, that the career offender prov is ion of the guidelines is unconstitutional because federal law cannot use state convictions-6-

for career offender class ification purposes. Gonzalez contends that to do so violates the presumption of innocence and principles of federalism. Gonzalez concedes that he did not make t hi s
ar gume nt before the district court, and therefore, our review is for plain error only. United States v. Connolly , 341 F.3d 16, 31 (1st Cir. 2003).

There is no error, plain o r ot herwise, in the reliance upon state convictions. "Once a defendant has bee n afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears." Herrera v. Collins , 506 U.S. 390, 399 (1993). Nor do principles of federalismbar federal reliance on a state conviction. Custis v. United States , 511 U.S. 485, 496

- 97 (1994) (prior state convictions may constitutionally be used for sentence enhanceme nt u nder the Armed Career Criminal Act); see generally United States v. Hornick , 214 F. Supp. 2d 6, 9-10 (D. Me. 2 002) (rejecting an argument identical to Gonzalez's).

Martinez (the other defendant in this appeal) argues that the district court erred in denying him a m it igating role adjustment under U.S.S.G. § 3B1.2 (2002).

Role-in-the-offense determinations are almost always factbound. With respect to downward role-in-the-offense adjustments, the defendant bears the bur den of proof. United States v. Ocasio , 914 F.2d 330, 332-33 (1st Cir. 1990). Appellate review is highly deferential: the sentencing court's determination of a defendant's role is reviewed only for clear-7- error. Id. at 333. "Thus, abse nt a m istake of law, battles over a defendant's status . .

. will almost always be won or lost in the district court." United States v. Graciani , 61 F.3d 70, 75 (1st Cir. 1995). UnitedStates v. Martinez-Varga s , 3 21 F.3d 245, 250 (1st Cir. 2003). Section 3B1.2 auth or izes a district court to reduce a defendant's base offense level if it finds that the defendant was

a "minor participant" or a "minimal participant" in "anycriminal activity," with "minimal participant" status carrying the greater reduct ion. "To obtain a reduction for minor participant status,

a defendan t must pro ve that he is both less culpable than most other persons involved in the offe n se of conviction and less culpable than most other persons convicted of comparable crimes." Martinez-Vargas , 321 F.3d at 250; see also United States v. M olina-Marrero , 320 F.3d 64, 66 (1st Cir. 2003). Martinez h a s failed to make such a showing.

The gove rnment's case against the three defendants restedon nine undercover drug purchases. For each purchase, the government's undercover agent w ould negotiate the deal over the phone with either Gonzalez or Hida lg o. Then, either Gonzalez or Hidalgo would be driven to meet t he undercover agent at a predetermined loca tion. In all of the transactions, Gonzalez or Hidalgo would exit the car they arrived in, enter the agent's car, and then sell cocaine to the agent.-8- In the first six transactions, the undercover agent was unable to identify who d rove Gonzalez or Hidalgo to the meeting; but in each of the last three, the agent identified Martinez as the driver . Martinez was also the driver for a proposed tenth transaction, which was never completed because the defendants were arrestedbefore the deal could be completed. Martinez claims that because his role in each of the transactions was limited to simply driving Gonzalez o r Hidalgo to and from the proposed meeting place, he should be entitled to a mitigating role adjustment.

Even if Martinez's role were limited to that of driver, that would not necessarily, with out more, prove that he deserved

a role adjustment. See United States v. Gonz alez-Soberal , 109 F.3d64, 73-74 (1st Cir. 1993). In any event, Martinez admitted that he had weighed and packaged coc aine and that he had used hidden com partments located in at least two different cars to conceal and transport drugs and money. Martinez was paid $900 a week for his services.

Basedon these facts we cannot say th at the district

co ur t clearly erred in denying Martinez a mitigating role adjustment for being a "minor" participant. Because t o qualify for "minimal" pa rtici pant status requires a defendant to demonstrate a level of culpability lower th an that of a "minor" participant, Martinez's alternative claim to "minimal" participant status fails a fortiori .-9- Affirmed .