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The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1180

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

* 

Carlos Quinones-Rodriguez, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: September 5, 2003

 Filed: October 7, 2003

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Before BYE, BOWMAN, and MELLOY, Circuit Judges.

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PER CURIAM.

Carlos Quinones-Rodriguez (Quinones) appeals from the sentence imposed by

the District Court1

 after he pleaded guilty to conspiring to distribute and possession

with intent to distribute 500 grams or more of a mixture containing

methamphetamine, in violation of 21 U.S.C. § 846 (2000).
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Prior to sentencing, Quinones objected to all of the criminal history points

recommended in the presentence report (PSR) for his prior criminal sentences, on the

basis that there was no showing he had been legally represented, or had voluntarily

waived his right to counsel, as to any of the sentences. At the sentencing hearing,

Quinones expanded his objection to include the existence of the convictions

underlying two November 1999 sentences. The government submitted a copy of a

plea agreement related to one of the November convictions. As to the other

conviction, the government admitted that it had no supporting documents. The

District Court found that the plea agreement along with the PSR provided sufficient

evidence of both convictions, and that Quinones also had not met his burden of

showing he was denied the right to counsel as to his prior convictions.

Quinones then moved for a downward departure, arguing that his status as a

deportable alien would make him ineligible for some Bureau of Prisons programs,

and that he would voluntarily waive his resistance to deportation. As to Quinones’s

first argument, the Court found there were no exceptional circumstances warranting

a departure based on his deportability. As to the second argument, the Court noted

it had discretion to grant a downward departure when a defendant voluntarily waived

his right to deportation proceedings; recognizing, however, that Quinones was going

to be “back” before the Court on a government motion for a downward departure, the

Court denied his departure motion. The Court sentenced Quinones to 235 months of

imprisonment and 5 years of supervised release. 

On appeal, Quinones argues that the District Court erred (1) in assessing

criminal history points for the November 1999 sentences, because the evidence

offered by the government was insufficient to substantiate the underlying convictions;

(2) in adding two criminal history points based on Quinones’s probationary status

when he committed the instant offense, because the bill of particulars specified that

he did not enter the conspiracy until September 1, 2002; and (3) in relying on the
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possibility of a future departure motion by the government to deny his own departure

motion.

Quinones’s reliance on the bill of particulars, in challenging the two-point

enhancement for being on probation when he committed the instant offense, is raised

for the first time on appeal; thus we review this argument only for plain error. See

United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (requiring

plain error as the standard of review). There is an obvious clerical error in the bill of

particulars, which specifies that Quinones entered the conspiracy on September 1,

2002, and exited it on April 18, 2002. Further, the unobjected-to statements in the

PSR indicate Quinones was involved in the conspiracy as early as July 2001, and it

is undisputed that Quinones was sentenced to 6 months probation in May 2001 for

an assault. The District Court did not plainly err in assessing the enhancement. See

United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993) (recognizing that a district

court may accept as true all unobjected-to factual statements in PSR); United States

v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978) (holding that a typographical mistake

on a bill of particulars was not a source of reversible error), cert. denied, 439 U.S. 819

(1978). Also, we find that the District Court’s discretionary decision not to depart is

unreviewable. See United States v. VanHouten, 307 F.3d 693, 696 (8th Cir. 2002)

(holding discretionary decisions not to depart are not reviewable absent a finding of

unconstitutional motive).

We believe that the District Court erred, however, in overruling Quinones’s

objection to the fact of the convictions underlying his November 1999 sentences. The

plea agreement offered by the government in support of one of the contested

convictions does not, in our view, establish that Quinones actually entered the plea

that was the subject of the agreement. The government offered nothing to support the

second contested conviction, and the District Court erred in relying on the objected-to

statements in the PSR. See United States v. Wise, 976 F.2d 393, 404 (8th Cir. 1992)

(en banc) (holding that a PSR is not evidence and is not legally sufficient basis for
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making findings on contested issues of material facts), cert. denied, 507 U.S. 989

(1993). Because Quinones did not raise this objection until the sentencing hearing,

however, the government should be given an opportunity on remand to present

evidence to support the convictions. We thus remand for an evidentiary hearing on

this issue and resentencing. 

Accordingly, we affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion. 

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