United States Court of Appeals

For the First Circuit

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 United States Attorney, and Adi Goldstein,

Assistant United States Attorney, on consolidated brief for

appellee.

March 30, 2004
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Per Curiam. Defendants Amaury Gonzalez and Julian

Martinez were indicted, along with Lenaur Hidalgo, on drug offenses

involving cocaine distribution in Providence, Rhode Island. All

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 erred in finding

him a career offender under U.S.S.G. § 4B1.1 (2002), a finding that

had the effect of raising his base offense level from 26 to 34.

See § 4B1.1(b). § 4B1.1(a) says:

A defendant is a career offender if (1) the

defendant was at least eighteen years old at

the time the defendant committed the instant

offense of conviction; (2) the instant offense

of conviction is a felony 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

felony convictions for crimes involving controlled substances, 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
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offense of conviction subsequent to sustaining

at least two 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

look to § 4A1.2(a)(2), which says: "Prior sentences imposed in

unrelated cases are to be counted separately. Prior sentences

imposed in related cases 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:

Related Cases. Prior sentences are not

considered related if they were for offenses

that were separated by an intervening arrest

(i.e., the defendant is arrested for the first

offense prior to committing the second

offense). Otherwise, prior sentences are

considered related 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 for

trial or sentencing.

U.S.S.G. § 4A1.2, cmt. n.3. 

Gonzalez 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

separated by an intervening arrest," which, according to the

commentary quoted above, would make the convictions unrelated
1United States 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.3d 532, 539 (4th Cir. 1999);

United States v. Boonphakdee, 40 F.3d 538, 543-44 (2d Cir. 1994);

United States v. Davis, 15 F.3d 526, 532-33 (6th Cir. 1994); United

States v. Gallegos-Gonzalez, 3 F.3d 325, 326-28 (9th 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

history score); United States v. Wilson, 41 F.3d 1403, 1404-05

(10th Cir. 1994) (same).

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under section 4A1.2. Gonzalez's only argument is that the

commentary should not be followed because it changes the meaning

of section 4A1.2, which does not itself define "related" or

"unrelated" sentences. 

The commentary contained in the Sentencing Guidelines is

binding unless there is a conflict between the commentary and the

text of the particular guideline at issue. Stinson v. United

States, 508 U.S. 36, 42-47 (1993). Here, there is no conflict

between section 4A1.2, which contains no criteria for

distinguishing between "related" and "unrelated" sentences, and

the commentary, which clarifies the meaning of these otherwise

ambiguous terms. This conclusion accords with that of every

circuit to consider the issue.1 Since the intervening arrest

resolves the question, we have no cause to consider Gonzalez's

argument that his prior convictions are otherwise related. 

Gonzalez also argues, in a supplemental pro se brief,

that the career offender provision of the guidelines is

unconstitutional because federal law cannot use state convictions
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for career offender classification purposes. Gonzalez contends

that to do so violates the presumption of innocence and principles

of federalism. Gonzalez concedes that he did not make this

argument 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 or otherwise, in the reliance

upon state convictions. "Once a defendant has been 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 federalism bar 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 enhancement under the Armed Career Criminal

Act); see generally United States v. Hornick, 214 F. Supp. 2d 6,

9-10 (D. Me. 2002) (rejecting an argument identical to

Gonzalez's).

Martinez (the other defendant in this appeal) argues

that the district court erred in denying him a mitigating 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 burden 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
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error. Id. at 333. "Thus, absent a mistake

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).

United States v. Martinez-Vargas, 321 F.3d 245, 250 (1st Cir.

2003). 

Section 3B1.2 authorizes 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 "any criminal

activity," with "minimal participant" status carrying the greater

reduction. "To obtain a reduction for minor participant status,

a defendant must prove that he is both less culpable than most

other persons involved in the offense 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.

Molina-Marrero, 320 F.3d 64, 66 (1st Cir. 2003). Martinez has

failed to make such a showing.

The government's case against the three defendants

rested on nine undercover drug purchases. For each purchase, the

government's undercover agent would negotiate the deal over the

phone with either Gonzalez or Hidalgo. Then, either Gonzalez or

Hidalgo would be driven to meet the undercover agent at a

predetermined location. 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.
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In the first six transactions, the undercover agent was

unable to identify who drove 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

arrested before the deal could be completed. Martinez claims that

because his role in each of the transactions was limited to simply

driving Gonzalez or 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, without more, prove that he deserved

a role adjustment. See United States v. Gonzalez-Soberal, 109

F.3d 64, 73-74 (1st Cir. 1993). In any event, Martinez admitted

that he had weighed and packaged cocaine and that he had used

hidden compartments located in at least two different cars to

conceal and transport drugs and money. Martinez was paid $900 a

week for his services.

Based on these facts we cannot say that the district

court clearly erred in denying Martinez a mitigating role

adjustment for being a "minor" participant. Because to qualify

for "minimal" participant status requires a defendant to

demonstrate a level of culpability lower than that of a "minor"

participant, Martinez's alternative claim to "minimal" participant

status fails a fortiori. 
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Affirmed.