United States Court of Appeals

For the First Circuit

No. 99-1330

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Veronica J. White, by appointment of the court, for

appellant.

Jennifer H. Zacks, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and William M.

Welch II, Assistant United States Attorney, was on brief for the

United States.
1Later, Cruz also pled guilty to a specific distribution

count, apparently in an effort to bar or dissuade the state from

imposing an additional penalty for the conduct involved in that

distribution. This wrinkle does not affect any of the issues

presented on this appeal.

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May 24, 2000

BOUDIN, Circuit Judge. David Cruz was indicted in

December 1995 and charged with participating in a drug

conspiracy and related counts. 21 U.S.C. §§ 841, 846, 853, 856.

The gist of the charges was that he had been involved in a ring

based in Springfield, Massachusetts, which manufactured and sold

at least 62 kilograms of powder cocaine and 770 grams of crack

cocaine over a five-year period. In January 1997, on a date

previously scheduled for trial, Cruz pled guilty to the

conspiracy count and a forfeiture count pursuant to a plea

agreement with the government.1

On February 25, 1999, after a sentencing hearing, Cruz

was sentenced to 180 months in prison. The guideline range

computed by the district court, after crediting Cruz with time

spent in state custody on a related offense, was 250-315 months,

but a lesser sentence--180 months--was imposed after the

district court departed downward based on the government's
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motion describing the nature and extent of Cruz's cooperation

with and substantial assistance to the government. U.S.S.G. §

5K1.1. Cruz has now appealed, challenging his sentence but not

the judgment of conviction.

It is worth noting at the outset that almost all of the

claims now made on appeal were not presented to the district

court. We need not decide which if any could fairly be

described as expressly "waived" and thus not subject to review

under any standard (although the court may always choose on its

own to correct fault where a miscarriage of justice would

otherwise result). United States v. Olano, 507 U.S. 725, 733

(1993). It is enough that the claims not presented at the

district court also do not rise to the level of "plain error,"

which is the usual standard applied where a claim is not

properly preserved. Olano, 507 U.S. at 732-35; United States v.

Lilly, 13 F.3d 15, 18 n.6 (1st Cir. 1994).

Cruz first argues that the government induced him to

cooperate and plead guilty by indicating that his sentence might

be as low as 10 years and then breached this commitment, or at

least acted in bad faith, by recommending a 19-year sentence; as

already noted, the district judge departed downward to 15 years.

Cruz says that at the very least he was entitled to an
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evidentiary hearing (which he never requested) on the good faith

issue. Cruz's arguments are without merit.

So far as it appears, the Assistant United States

Attorney indicated at some point in the plea bargaining process

that to qualify for a recommendation as low as ten years, Cruz

would have to inculpate someone equivalent to a notorious

Colombian drug figure named by the prosecutor. However, the

government found that Cruz's cooperation was halting, initially

incomplete and of limited value--although sufficient to justify

the downward departure motion already noted. If there is any

basis for the promise of a ten-year sentence more specific than

what we have just described, it is not revealed in Cruz's brief.

The plea agreement that Cruz entered reserved to the

government complete freedom to recommend a particular sentence

or make no recommendation at all. And the agreement contained

an integration clause saying that it was the complete agreement

between the parties, that no other promises had been made, and

that the agreement superseded the "prior understandings, if any,

of the parties, whether written or oral." And before the

sentencing, Cruz made clear his disappointment with the

government's refusal to recommend a ten-year sentence but never

claimed this to be a breach of any agreement.
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Against this background, the claims of a breach, bad

faith or the need for an evidentiary hearing are close to

frivolous. There is no ambiguity in the agreement, see United

States v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999), and there

is no indication of bad faith, id. at 187. The government did

not promise a recommendation of ten years at any stage, nor is

there any evidence that its evaluation of Cruz's cooperation was

made in bad faith (the government's reasons were provided in

detail in its section 5K1.1 submission to the district court).

The idea that there is any lurking plain error here is nonsense.

In a slightly more interesting variant on this theme,

Cruz says that the government promised that if substantial

assistance were provided, it would move "under 18 U.S.C. §

3553(e) and U.S.S.G. § 5K1.1 . . . ." In the end, the

government moved under the guideline provision but did not

explicitly mention section 3553(e), which would have permitted

a departure below the statutory minimum. The government says

that it is not obliged to move under both provisions, although

given the language of the plea agreement this point is at least

debatable; but it also asserts without disagreement from Cruz

that the mandatory minimum sentence was ten years. See 21

U.S.C. § 841(b)(1)(A)(ii).
2As it happens, a statutory departure may have occurred.

Both the pre-sentence report and the plea agreement indicate

that the statutory minimum sentence was 20 years because of

Cruz's prior conviction for a felony drug offense, 21 U.S.C. §

841(b)(1)(A)(ii). If so, the government's recommendation of a

19-year sentence could be treated as a motion to depart below

the statutory minimum. See Melendez v. United States, 518 U.S.

120, 126 n.5 (1996).

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This issue was not raised in the district court, but

waiver and standard of review are beside the point because there

is no indication that the failure to seek a departure under

section 3553(e) had any effect on the sentence adverse to Cruz.2

The district judge chose to impose a sentence well above what

the government and the defendant treat as the statutory minimum.

Cruz has not even attempted to explain how he was prejudiced by

the failure to reduce the sentencing floor below ten years where

the district judge had no intention of departing downward to

that floor, let alone below it.

Cruz's second argument is that the district court did

not give him sufficient credit at sentencing for 12 months that

he had spent in New York State custody for conduct

(specifically, a particular sale of drugs) that was also used to

determine the offense level for the federal crime. As Cruz

concedes, the district court did subtract the 12 months from the

initial minimum guideline range sentence of 262-327 months,

reducing it to 250-315 months, before departing downward for
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substantial assistance. See U.S.S.G. § 5G1.3(b) n.2 (adjust the

sentence for period of imprisonment already served).

However, Cruz now says that the district court should

have departed downward and then subtracted the 12 months, a

sequence that would produce a lower federal sentence if the

district court had computed the amount of the downward departure

in a particular way, i.e., by determining that the defendant's

pre-departure minimum guideline sentence should be reduced by or

to a specific percentage. In the district court, the

defendant's counsel not only made no objection to the sequence

used but affirmatively endorsed it, supporting the government's

claim that there was an affirmative waiver (so that the

calculation should not even be reviewed for plain error). See

Olano, 507 U.S. at 733. In any event, Cruz was not prejudiced.

The district court did not purport to use a mechanical

percentage to determine the downward departure. Presumably,

like most judges, the district judge was primarily concerned

with reaching a result that seemed just in light of the severity

of the offense, the defendant's past record, and the degree of

assistance that had been furnished to the government. There is

no indication that the district court's final choice of 180

months as the proper sentence would have been any different had

it been told that the 12 months should be subtracted after the
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downward departure, as it could easily have done by departing

downward to 192 months and then giving credit for time served.

Cruz's third major argument is that the district court

erred in failing to make a detailed finding on one issue

relating to drug quantities. The pre-sentence report attributed

to Cruz responsibility for 62 kilograms of powder cocaine and

770 grams of crack cocaine. Cruz objected at sentencing that

some of the powder cocaine had been used to make the crack so

that there was a measure of double counting. However, defense

counsel conceded that the calculation dispute would not affect

the guideline range, explaining that Cruz wanted to preserve the

objection in case Congress later reduced the penalties for crack

and made the reduced penalties retroactive.

The district court declined to resolve the dispute on

the ground that it had no effect on the present sentence. Under

Fed. R. Crim. P. 32(c)(1), the district court is permitted to

bypass controverted facts where the matter "will not affect"

sentencing. Here, Cruz's base offense level would have been the

same if only the amount of powder cocaine were considered. See

U.S.S.G. § 2D1.1(c)(2) & n.10. Accordingly, the district court

did not have to consider the double counting issue. See United

States v. Miller, 951 F.2d 164, 165 (8th Cir. 1991).
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On appeal Cruz contends for the first time that the

double counting issue might have affected the sentence. Cruz's

theory is that if the district court had found a lesser quantity

of drugs, it might have deemed this a mitigating circumstance

not adequately considered by the guidelines and thus warranting

a further downward departure under 18 U.S.C. § 3553(b).

Ignoring waiver and plain error limitations, the argument is

silly: the guidelines specifically prescribe offense levels

based on quantity, and Cruz's suggested departure could hardly

be a matter not adequately considered by the Commission. 18

U.S.C. § 3553(b).

Cruz's fourth argument is that there was an

insufficient basis for the two-level enhancement of his sentence

for recklessly endangering another person while fleeing from a

law enforcement officer. U.S.S.G. § 3C1.2. The pre-sentence

report described, with respect to one of the drug transactions,

Cruz's attempted flight from arresting officers, leading to a

high-speed chase through Springfield during which Cruz rammed

several police vehicles, drove up onto the sidewalk and

eventually crashed his own vehicle.

Cruz stipulated in his plea agreement that he was

subject to the two-level enhancement based on this incident so

the objection has arguably been waived. In any event, there is,
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once again, no indication of any error--let alone a plain error.

The facts in the presentence report adequately support the

enhancement. See, e.g., United States v. Conley, 131 F.3d 1387,

1389-90 (10th Cir. 1997), cert. denied, 523 U.S. 1087 (1998).

And Cruz is mistaken in thinking that it matters whether the

persons he hit or nearly hit were law enforcement officers; it

is enough that he created a substantial risk of injury to any

person while fleeing from law enforcement. U.S.S.G. § 3C1.2 &

n.4.

In his final claim, Cruz says that the district court

should have granted him a larger downward departure based on his

pre-sentence rehabilitation or based on his pre-trial

confinement in a detention center where (he says) the conditions

are harsher than those at ordinary Bureau of Prisons facilities.

In the district court Cruz did not ask for a downward departure

based on these factors and--absent a mistake of law--refusal to

depart on these grounds would not be reviewable in any event.

United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). As

it happens, the district court did comment favorably on Cruz's

efforts at rehabilitation and presumably considered them in

determining the final sentence.

None of the arguments made by Cruz in this appeal has

the slightest merit and--to put the cork in the bottle--none of
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the episodes even remotely suggests that Cruz was poorly

represented in the district court in connection with the

sentencing. No criticism of appellate counsel is suggested:

the appeal was well handled on Cruz's behalf and a criminal

defendant is entitled to be zealously represented. But in

future cases of this kind, a citation in an unpublished opinion

to this opinion can be taken to indicate that the arguments in

question are as hopeless as those before us now.

Affirmed.