United States of America v. Jose Luis Tavarez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-2258
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UNITED STATES OF AMERICA
v.
JOSE LUIS TAVAREZ,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 02-cr-00095-7)
District Judge: Honorable Thomas I. Vanaskie
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Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: FISHER, STAPLETON and COWEN, Circuit Judges.
(Filed: October 25, 2007)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Following his guilty pleas to several counts of conspiracy, distribution, and
possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, Jose Luis Tavarez was sentenced to 145 months’ imprisonment.

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Tavarez appeals from that sentence, arguing that the District Court improperly relied on
the stipulated amount of cocaine base as a sentencing factor. For the reasons that follow,
we will affirm the sentence.
I.
Because we write only for the parties who are familiar with the factual context and
procedural history of the case, we set forth only those facts necessary to our analysis. An
investigation revealed that Tavarez acted as a street-level dealer of cocaine base since
1998. Throughout 2001 and 2002, investigators made controlled purchases from the drug
distribution network in which Tavarez was a member. A superseding indictment charged
Tavarez with conspiracy, distribution, and possession with intent to distribute cocaine and
cocaine base. On the day he was scheduled to go to trial, Tavarez pleaded guilty to all
counts and expressly agreed that the Government could prove the facts underlying those
counts beyond a reasonable doubt.
According to the Presentence Investigation Report (PSR), the offenses to which
Tavarez pleaded guilty involved a drug quantity of at least 500 grams of cocaine base.
The PSR accordingly calculated Tavarez’s Guidelines range at 262 to 327 months, based
on a total offense level of 39 and a criminal history category of I. Upon reviewing his
PSR, Tavarez sent a letter to the District Court, noting the discrepancy between the
amount of cocaine base to which he admitted (at least 50 grams) versus the amount
indicated in the PSR (at least 500 grams). Partially as a result of this letter, during the

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sentencing hearing on February 17, 2004, the parties agreed to a compromise drug
quantity of 150 to 500 grams of cocaine base, which resulted in a total offense level of 34,
a criminal history of I, and a Guidelines range of 151 to 188 months. The District Court
sentenced Tavarez to 151 months’ imprisonment.
Tavarez filed a notice of appeal from that sentence. During the pendency of that
appeal, the United States Supreme Court decided United States v. Booker, 543 U.S. 220
(2005), which held that the Sentencing Guidelines were advisory. Id. at 266. Therefore,
we vacated the pre-Booker sentence and remanded for resentencing in accordance with
United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc).
During the March 31, 2006 resentencing hearing, Tavarez did not challenge the
stipulated Guidelines calculation (“Judge, we’re not here really here to dispute those
calculations . . . after various agreements and stipulations, my client had an offense level
of 34”). The District Court agreed (“The defense notes that there is no objection or
dispute to the calculation, and I would reiterate that the Guideline range in this case was
really determined by agreement of the parties . . . as to the amount of drugs attributable to
the defendant”), so proceeded to consider whether to exercise its discretion under 18
U.S.C. § 3553(a) to vary from the Guidelines range. It noted that because Tavarez will be
deported, he would not be eligible for placement in a halfway house for the last six
months of his sentence, so to avoid any unwarranted disparities, it imposed a sentence of

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Even giving Tavarez every benefit of the doubt in addressing arguments he1
frames but never ends up pursuing, we find that the statement of reasons given by the
District Court at resentencing is replete with references to the § 3553(a) factors: (1) “The
history and characteristics of the Defendant are taken into account by the criminal history
score”; (2) “The sentence must reflect the seriousness of the offense and, indeed,
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145 months’ imprisonment, which is six months less than the bottom of the applicable
Guidelines range. The instant appeal followed.
II.
We have jurisdiction to review the sentence under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). United States v. Cooper, 437 F.3d 324, 327 n.4 (3d Cir. 2006). We review
any factual findings underlying the sentence, such as the drug quantity attributable to the
defendant, for clear error, see United States v. Grier, 475 F.3d 556, 569-70 (3d Cir. 2007)
(en banc), but the sentence itself for reasonableness. United States v. Tomko, 498 F.3d
157, 163 (3d Cir. 2007).
Tavarez frames the appellate issues presented as: (1) the District Court erred “in
simply looking at the stipulated amount of cocaine base (150 to 500 grams) rather than
the other appropriate sentencing factors”; and (2) the District Court erred in giving
insufficient consideration to the § 3553(a) factors. Yet, in the actual argument section of
his brief, the two issues are collapsed into one entirely different argument, viz., there was
insufficient evidence at sentencing to establish that any drug quantity in excess of 50
grams of cocaine base may be attributed to Tavarez. We therefore address only this
argument.1

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distribution of crack cocaine is a very serious matter”; (3) “The sentence must promote
respect for the law and to provide just punishment for the offense”; (4) “I have to
consider a sentence that affords adequate deterrence to further criminal conduct and
protection of the public from crimes of this Defendant”; (5) “The sentence I have
imposed . . . varies slightly from the sentence called for by the Guidelines. I have done so
in an effort to provide parity of treatment between criminal aliens and non-criminal
aliens”; and (6) “[I] conclude that the sentence that I imposed in this matter, originally . . .
is a reasonable sentence under the circumstances.” This series of statements defeats any
argument that the District Court either neglected its duty to consider the § 3553(a) factors
or that it overweighed the stipulated drug quantity over all other factors.
Because this argument was never raised in any of the District Court proceedings,2
we ordinarily would apply the plain error standard. See, e.g., United States v. Watson,
482 F.3d 269, 274 (3d Cir. 2007). We need not do so in this case, however, because we
conclude that Tavarez fails to establish any error in the first instance.
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Initially, we observe that it is misleading to argue that the only drug quantity
attributable to Tavarez must be limited to the 50 grams of cocaine base for which he
expressly acknowledged responsibility at his plea hearing. Tavarez pleaded guilty to only
50 grams because the pertinent statute, 21 U.S.C. § 841(b)(1)(A)(iii), sets the applicable
penalties to begin at 50 grams. This statutory threshold quantity does not change the
well-established practice that the actual drug quantity is determined at sentencing by a
preponderance of the evidence. See U.S.S.G. § 2D1.1(c); United States v. Ricks, 494 F.3d
394, 401-02 (3d Cir. 2007); United States v. Swinton, 333 F.3d 481, 489 (3d Cir. 2003).
Tavarez’s only remaining argument, then, is that the District Court’s actual drug
quantity finding at sentencing is clearly erroneous. But the correctness of its finding is2
confirmed on no fewer than three separate occasions. First, at Tavarez’s plea hearing,
after the District Court found Tavarez to be fully competent to offer a plea, the

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Government informed the District Court that at least two witnesses were prepared to
testify that they purchased cocaine base from Tavarez on hundreds of occasions in half-
gram quantities, suggesting an aggregate of 200 grams as an underestimate. When asked
by the District Court whether he agreed that the Government would be able to “prove
those facts beyond a reasonable doubt,” Tavarez through an interpreter answered “Yes.”
Second, as alluded to in his own brief, Tavarez stipulated to at least 150 grams
during his original sentencing hearing. The record does not reveal any indication that
Tavarez’s stipulation was not knowing, voluntary, or intelligent. Indeed, the following
exchange transpired between the District Court and Tavarez at the hearing:
“THE COURT: And do you recall that we went over objections to the
Pre-sentence Report?
THE INTERPRETER: Yes.
THE COURT: And you recall that we resolved all the objections?
THE INTERPRETER: Yes.
THE COURT: And that, as a result of that proceeding, we determined that
your guideline range would be 151 to 188 months. Do you remember that?
THE INTERPRETER: Yeah.”
Third, Tavarez did not challenge the stipulation at resentencing, as revealed in the
colloquy between the District Court and Tavarez’s counsel. See section I, supra.
Combining the admission at the plea hearing, the stipulation at the first sentencing
hearing, and the reaffirmation of the stipulation at the resentencing hearing, we conclude
that the District Court did not commit clear error in finding that the drug quantity
attributable to Tavarez is at least 150 grams of cocaine base.

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III.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.

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