United States of America v. Germánnarváez-Rosario

Of the Eighth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 05-1355
UNITED STATES OF AMERICA,
Appellee,
v.
GERMÁN NARVÁEZ-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
John R. Gibson, Senior Circuit Judge , *
and Howard, Circuit Judge.
Juan F. Matos-de Juan, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, was on brief for
appellant.
Judith Vargas, with whom H. S. García, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Senior
Appellate Attorney In Charge, and Germán A. Rieckehoff, Assistant
United States Attorney, were on brief for appellee.
March 14, 2006

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JOHN R. GIBSON, Circuit Judge. Germán Narváez-Rosario appeals
the judgment of the district court sentencing him to 120 months'
imprisonment for possession of heroin with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) following a guilty plea. We
affirm.
On February 6, 2004, Narváez-Rosario arrived at the Pan
American Dock in San Juan, Puerto Rico, on board the cruise ship
M/V Galaxy. At the dock, inspectors with United States Customs and
Border Protection conducted a search of Narváez-Rosario which
uncovered 1.94 net kilograms of heroin concealed within the sole of
his tennis shoes and inside a pair of lycra shorts worn underneath
his pants. After being advised of his rights and waiving them in
writing, Narváez-Rosario was interviewed by a special agent of the
Bureau of Immigration and Customs Enforcement. He told the agent
that a Colombian national in Puerto Rico had offered him $8,000 to
serve as a drug courier. The Colombian had instructed Narváez-
Rosario to travel onboard the M/V Galaxy to pick up the narcotics
in Venezuela, and, upon his return to Puerto Rico, to contact the
Colombian for further instructions.
A grand jury of the District of Puerto Rico indicted Narváez-
Rosario: Count One charged him with importing greater than one
kilogram of heroin into the United States in violation of 21 U.S.C.
§ 952(a) and 18 U.S.C. § 2; Count Two charged him with possession
with intent to distribute greater than one kilogram of heroin in

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The parties made no stipulation as to Narváez-Rosario's 2
criminal history category.
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violation of 21 U.S.C. 841 (a)(1) and 18 U.S.C. § 2. Narváez-
Rosario pled guilty to Count Two in exchange for the government's
agreement to dismiss the remaining count.
Under the terms of the plea agreement, the parties stipulated
that Narváez-Rosario's sentence would be determined according to
the federal sentencing guidelines. Narváez-Rosario stipulated that
he was responsible for between one and three kilograms of heroin
for a base offense level of 32, and the parties agreed that he
would receive a three-level reduction for his acceptance of
responsibility. See U.S.S.G. §§ 2D1.1(c)(4), 3E1.1(a)-(b).
The parties also agreed that if Narváez-Rosario met all the
requirements of the "safety valve" of Guideline § 5C1.2, he would
receive a two-level reduction pursuant to Guideline § 2D1.1(b)(6).
The plea agreement provided that if Narváez-Rosario were to qualify
for the two-level safety valve reduction, his total offense level
would be 27, which, assuming a criminal history category of I,2
would have carried a sentencing range of between 70 and 87 months.
Narváez-Rosario acknowledged in the plea agreement that if he
failed to meet all the requirements of the safety valve, he could
not be sentenced to less than the 120-month statutory minimum. See
21 U.S.C. § 841 (b)(1)(A)(i). Following a change of plea hearing
before a magistrate judge, the district court accepted his guilty

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plea.
Although the parties stipulated to an offense level of 27 in
the plea agreement, the pre-sentence investigation report
calculated an offense level of 29. The report arrived at this
offense level using the same sentencing factors as those recited in
the plea agreement minus the safety valve benefit. At the
sentencing hearing, the probation officer testified that because
Narváez-Rosario had more than one criminal history point, her
office recommended that the court find him ineligible for a safety
valve reduction. See U.S.S.G. § 5C1.2(a)(1) (requiring that the
defendant have no more than one criminal history point to qualify
for safety valve). Although Narváez-Rosario had not objected to
the criminal history calculation in the presentence investigation
report, his counsel argued at sentencing that after the United
States Supreme Court's decision in United States v. Booker, 543
U.S. 220 (2005), the district court had the discretion to ignore
the guidelines' criminal history calculation in determining whether
Narváez-Rosario qualified for a safety valve reduction. The
district court rejected this argument and concluded that Narváez-
Rosario was ineligible for a safety valve reduction. Recognizing
the now-advisory nature of the sentencing guidelines and
considering the sentencing factors set forth in 18 U.S.C. §
3553(a), the district court sentenced Narváez-Rosario to the
statutory minimum, 120 months' imprisonment.

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On appeal Narváez-Rosario argues that the district court erred
in finding him ineligible for the safety valve reduction
contemplated in the plea agreement. Because he does not dispute
the facts relied upon by the district court in rendering his
sentence, we review de novo the court's legal conclusion regarding
his ineligibility for the safety valve. See United States v.
McLean, 409 F.3d 492, 501-02 (1st Cir.), cert denied, 126 S.Ct. 466
(2005). Narváez-Rosario had the burden of demonstrating to the
district court that he was entitled to a safety valve reduction.
Id. at 502.
The district court correctly concluded that Narváez-Rosario
did not qualify for safety valve relief. Narváez-Rosario
stipulated in the plea agreement that he would receive a safety
valve reduction only if he satisfied all of § 5C1.2's requirements.
One such requirement was that he "not have more than one criminal
history point, as determined under the sentencing guidelines."
U.S.S.G. § 5C1.2(a)(1). Narváez-Rosario did not dispute the
district court's finding that he had three criminal history points
as determined under the sentencing guidelines. Thus, because he
did not comply with all of the requirements of Guideline §
5C1.2(a), he was not entitled to a safety valve reduction under the
terms of the plea agreement.
Relying on Booker, Narváez-Rosario argues that it was within
the district court's discretion to disregard the criminal history

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computation called for by the sentencing guidelines. Even if this
argument was not foreclosed by Narváez-Rosario's stipulation in the
plea agreement that his sentence would be determined according to
the guidelines, his argument fails as a matter of law because there
can be no Booker error where a defendant is sentenced to a
statutory minimum based on admitted facts. United States v.
Bermúdez, 407 F.3d 536, 545-46 (1st Cir.), cert.denied, 126 S.Ct.
304 (2005); see also United States v. Antonakopoulos, 399 F.3d 68,
75 (1st Cir. 2005) ("A mandatory minimum sentence imposed as
required by a statute based on facts found by a jury or admitted by
a defendant is not a candidate for Booker error."). Here, Narváez-
Rosario admitted in the plea agreement to the facts underlying the
crime for which he received the mandatory minimum sentence.
Contrary to Narváez-Rosario's contention, Booker does not give a
district court the discretion to disregard an otherwise applicable
statutory minimum. See United States v. Lee, 399 F.3d 864, 866
(7th Cir. 2005).
The judgment of the district court is affirmed.

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