United States of America v. Uvaldo Reyes

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2013
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
U VALDO R EYES ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 661—John W. Darrah, Judge.
____________
A RGUED J ANUARY 27, 2004—D ECIDED A PRIL 20, 2004
____________
Before K ANNE , E VANS , and W ILLIAMS , Circuit Judges.
P ER C URIAM . Uvaldo Reyes pleaded guilty to one count of
conspiracy to possess with intent to distribute cocaine, 21
U.S.C. §§ 846 and 841(a)(1)(A), and was sentenced to 120
months’ imprisonment, five years’ supervised release, a
$700 fine, and a $100 special assessment. Reyes appeals his
sentence, arguing that the district court improperly refused
to apply the safety valve provision, U.S.S.G. § 5C1.2. We
affirm.
Between July and August 2000, Reyes negotiated the sale
of six kilograms of cocaine to two confidential informants
(CIs) for $24,000 per kilogram and gave them a heroin

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2 No. 03-2013
sample weighing .4 grams. When the CIs, accompanied by
an undercover officer, arrived for the exchange at the
appointed time, Reyes stated that the cocaine had not yet
arrived. Upon learning from his brother that the cocaine
had been delivered to a nearby storefront, Reyes took the
CIs and the undercover officer there and showed them the
cocaine. When Reyes and his brother began counting the
cash payment, they were arrested and charged with
conspiracy to possess with intent to distribute cocaine.
Officials searched the storefront and found 6.2 kilograms of
cocaine and 17 pounds of marijuana.
Two days before the sentencing hearing, Reyes filed a
self-styled “Sentencing Commentary and Position Paper,”
in which he presented several arguments for a downward
departure. Of particular relevance to this appeal, Reyes
sought a downward departure because his criminal history
was overstated, see U.S.S.G. § 4A1.3, and because he qua-
lified for the safety valve provision, see U.S.S.G. § 5C1.2.
The safety valve analysis requires defendants to show,
among other things, that they had no more than one crim-
inal history point, id. § 5C1.2(1), and had “truthfully pro-
vided to the Government all information and evidence” they
possessed concerning the offense or conspiracy, id.
§ 5C1.2(5). Reyes had been assigned two criminal history
points but disputed the point assigned to a battery convic-
tion, arguing that the conviction had been dismissed after
he completed a term of court supervision. Reyes argued that
he should be held responsible only for one criminal history
point and that he therefore was eligible for sentencing
under the safety valve provision.
The district court denied Reyes’s request to decrease his
criminal history points and concluded that his two criminal
history points rendered him ineligible for the safety valve
provision. Reyes properly received a criminal history point
for the battery conviction, the court noted, because he had
pleaded guilty to the offense; the eventual dismissal of the

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No. 03-2013 3
conviction was therefore irrelevant. The court generally
tracked the remaining recommendations in the presentence
report, concluding that Reyes was responsible for a total of
1,208 kilograms of marijuana (after converting the heroin
and cocaine to their marijuana equivalents). Because he
was responsible for at least 1000 but less than 3000
kilograms of marijuana, the court determined his base
offense level to be 32. See 21 U.S.C. § 846; U.S.S.G. § 2D1.1.
Reyes received a three-level decrease for acceptance of
responsibility. See U.S.S.G. § 3E1.1. With an offense level
of 29 and a criminal history category of II, Reyes’s guideline
range was 97 to 121 months; because the mandatory
minimum sentence was 120 months, see 21 U.S.C. § 841(b),
Reyes’s imprisonment range was 120 to 121 months.
On appeal Reyes challenges the district court’s conclusion
that he had more than one criminal history point. He
submits for the first time that—apart from the one criminal
history point assigned for the battery conviction—the
district court’s decision to assign a criminal history point to
a state driving violation for which he received only one year
of supervision violated U.S.S.G. § 4A1.2(c)(1), the provision
that defines how prior sentences are to be counted for
purposes of computing criminal history. Reyes argues that
§ 4A1.2(c)(1) excludes from such computations the offense
of driving without a license or with a revoked or suspended
license. Though § 4A1.2(c)(1) directs that a conviction for
such an offense be counted if it resulted in a “term of
probation of at least one year,” Reyes contends that the
term of supervision he received was not a sentence of
probation.
Reyes waived the argument, however, by failing to chal-
lenge at sentencing the imposition of a criminal history
point for the state driving violation. At sentencing Reyes
objected to the criminal history point he received for the
battery conviction; he similarly could have objected to the
criminal history point he received for the driving violation

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4 No. 03-2013
but chose not to do so. See United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000) (holding that defendant
waived his right to appeal where he knew he had the right
to object and affirmatively decided not to object). And since
“[w]aiver extinguishes any error and precludes appellate
review,” United States v. Jacques, 345 F.3d 960, 962 (7th
Cir. 2003), Reyes cannot on appeal challenge the district
court’s decision to impose a criminal history point for the
driving violation. Since Reyes must meet all of the criteria
under U.S.S.G. § 5C1.2(1)-(5) to be eligible for sentencing
under the safety valve provision, United States v. Bonsu,
336 F.3d 582, 586 (7th Cir. 2003), his inability to challenge
his second criminal history point effectively dooms his
eligibility and, by extension, his appeal.
Because Reyes’s two criminal history points render him
ineligible for sentencing under the safety valve provision,
see Bonsu, 336 F.3d at 586 (defendant must meet all criteria
to be eligible), we need not reach his remaining arguments.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-20-04

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