USCA1 Opinion

March 4, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-1972

UNITED STATES,
Appellee,
v.
JOSE QUEZADA,
Defendant, Appellant.
________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
___________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
___________________

Damon M. D'Ambrosio on brief for appellant.

___________________
Edwin J. Gale, United States Attorney, and Zechariah Chafee,
_____________
________________
Assistant United States Attorney, on brief for appellee.

__________________
__________________

Per Curiam.
___________
conviction and
possessing

sentence.

heroin with

suppress evidence seized

the

warrant

probable

sentenced
quantity

of

on one

from his home, on

the search

After a

He

from

his

count of
moved to

the grounds that

was

not

supported by

hearing, the district court denied

27 months

heroin for

appeals

intent to distribute.

Quezada pled
him to

Quezada

He was indicted

authorizing

cause.

the motion.

Jose

guilty

and the

in prison.

sentencing

district

In

purposes,

court

estimating the
the district

court relied, in part, on

$2,321 in cash found during the search

of his apartment.

He

appeals

his sentence

and

the

denial

of

his

suppression

motion.
Background
__________
The

presentence

following summary
informant (known
detectives

of

report

the facts

to

contained

underlying this

the Johnston

of the Providence

("PSR")

Police

Department)

Police Department that

whom the informant

identified from a photograph

would

on October, 14,

be arriving

certain

location in

a burgundy

sale. The detectives

1992 at

van

set up watch at

van,

the detectives

saw

Quezada

An
told

a man,

as Quezada,

9:00 p.m.

at a

containing heroin

for

the specified location

and at 9:00 appellant arrived in a burgundy van.

the

case.

the

throw

Approaching
a

gray

box,

commonly used to store heroin, into the back of the van.

The

-2-

detectives arrested

Quezada and

500 glassine envelopes

seized the

of heroin, and $206 in

box, containing
cash found in

Quezada's pocket.
Later that night, the detectives executed a

search

warrant at Quezada's home.

of heroin

and the

packaging

of

glassine

following articles

heroin:

packets (some

bands, an ink

They seized 781

coffee
stamped

pad and a

glassine packets

commonly used in

grinder,
"shoot

of

to kill"),

"shoot to kill"

seized a pager and $ 2,321 in cash.

boxes

stamp.

After being

the
empty

elastic

They

also

informed of

his Miranda rights, Quezada signed a statement admitting that

_______
the drugs seized
him.

from the van and his

A subsequent

apartment belonged to

laboratory analysis

concluded that

the

weight of the total amount of heroin seized was between 15.26

grams and 18.22 grams.
In
count

of

possession

violation of
filed a

November,

1992, Quezada
with intent

21 U.S.C.

motion to suppress

841(a)(1).

heroin in

In December,

1992, he

the police.
denied

On June 15, 1993, appellant pled guilty.

the base offense level

("BOL"),the probation officer who prepared

cash

on one

distribute

the district court

For purposes of calculating

the

indicted

the drugs seized by

Following an evidentiary hearing,

the motion.

to

was

seized

($2,527) into an

from Quezada's

pocket

the PSR converted

and

equivalent amount of heroin

-3-

his apartment
(14.17 grams).

He

relied

upon

information

from

the

Drug

Enforcement

Administration that an ounce of heroin was then selling for

$5,000.

He

then added

heroin seized to arrive

grams.

That

U.S.S.G.
BOL

of

amount of

and

heroin yielded

then applied

Quezada's acceptance of
by Quezada

grams to

the amounts

at a total weight of

2D1.1 (c) (13). 1

18

statement

the 14.7

responsibility.

of 18

reduction for

The PSR

he

under

court adopted the

three-point

admitting that

29.43 to 32.39

a BOL

The district

of

included a

had committed

the

offenses charged and acknowledging that "the drugs the police

found [at my house]

were to sell."

The total

offense level

of 15 and Quezada's criminal history category of 2 yielded an

imprisonment range of 21 to 27 months.
On August

17, 1993,

the district

court sentenced

appellant to 27 months in prison and five years of supervised

release.
court

As a condition of supervised

ordered appellant,

imprisonment, to

at the

release, the district

completion of his

term of

an immigration

official

be surrendered to

for deportation.
Discussion
__________
Quezada makes three arguments on appeal.

First, he

argues that the district court erred in denying his motion to

suppress.

Second, he challenges his

sentence as based upon

____________________
1.
The Sentencing Guidelines applied were those
on the date appellant was sentenced.

in effect

-4-

illegally-seized evidence.
was

error for

the district

equivalent amount of
sentence.

court to

guilty, Quezada

appeal from the

entered,

approval

into an

calculating his

We reject all three arguments.

with

the consent

of the court,

of

the

plea of guilty to an indictment is

the

to suppress.

conditional pleas to
government

and the

in writing

"It is clear that a

an admission of guilt and

all non-jurisdictional defenses."

v. United States, 961 F.2d

_____________
by pleading

not reserve

by defendant's reserving

the right to appeal a pre-trial motion).

a waiver of

did

denial of his motion

See Fed. R. Crim. P. 11(a)(2) (allowing

___
be

convert cash

heroin for purposes of

In pleading
right to

Finally, Quezada contends that it

Acevedo-Ramos
_____________

305, 308 (1st Cir.) (holding that

guilty, defendant waived statute

of limitations

defense),

cert. denied, ___ U.S.

____________

Therefore, Quezada's guilty

___, 113 S.Ct. 299 (1992).

plea forecloses from review

the

denial of his motion to suppress.

Quezada's

guilty

Amendment challenge to

plea

also

his sentence.

bars

his

The Supreme

Fourth
Court has

explained the effect of a guilty plea as follows:

[A] guilty plea represents a break in the
chain of events which has preceded it in
the criminal process.
When a criminal
defendant has solemnly admitted in open
court that he is in fact guilty of the
offense with which he is charged, he may
not thereafter raise independent claims
relating
to
the
deprivation
of
constitutional rights that occurred prior
to the entry of the guilty plea.
-5-

Tollett v. Henderson, 411 U.S.

_______
_________
guilty,
Amendment
See
___

appellant

waived

claim for the

United States
_____________

258, 267 (1973).

the right

to

assert

purpose of attacking

v. Smallwood,
_________

920 F.2d

By pleading
his Fourth

his sentence.

1231, 1240

(5th

Cir.) (holding that, following the district court's denial of

appellant's

motion

guilty plea,

to suppress

and

appellant's subsequent

appellant "cannot resuscitate

fourth amendment

concerns solely to challenge the consideration of evidence at

sentencing."), cert. denied, ___
_____________

U.S. ___,

111 S.Ct.

2870

(1991).
Quezada

contests on

sentencing hearing, the

found in

appeal,

as

he

government's conversion of

his apartment into

an equivalent amount

for purposes of calculating appellant's BOL.

there was

insufficient evidence

him, given that

PSI failed
found.

to indicate where

proof to support
cash

was

"the

trafficking."
at the time

that the

He

He

of

in support

to

others and the

cash was

was insufficient

previous

cites his employment at an

of the search

the cash

argues that

the probation officer's assertion

result

his

of heroin

in the apartment the

also contends that there

direct

at

cash belonged

he shared the apartment with

Appellant

did

that the
narcotics

auto body shop

of his argument

that

there were other plausible sources of the cash.

For

the first time on appeal, Quezada contests the

conversion ratio used by the probation officer and adopted by

-6-

the

district

court

(one ounce

of

heroin

equals $5,000).

Having failed to object below to the conversion ratio used in

the PSR,
for

however, Quezada is barred from

the first time on

appeal.

raising this issue

United States v. Jackson, 3

______________
_______

F.2d 506, 511 (1st Cir. 1993).

"Pursuant to U.S.S.G.
responsible for all acts which
of

conduct

or

common

(1993).

'were part of the same course

scheme

charged.'" United States v.

______________
(1st Cir. 1992),

1B1.3(a)(2), a defendant is

or

plan

as

Figueroa, 976
________

offenses

F.2d 1446,

cert. denied, ___ U.S. ___,

____________

In United States v. Gerante,

_____________
_______

the

1461

113 S.Ct. 1346

891 F.2d 364, 369 (1st

Cir. 1989), we held that Application Note 2 of the Commentary

to U.S.S.G.

2D1.4 authorizes

a district court

to convert

cash into a drug amount for the purpose of calculating a base

offense

level,

provided

transactions that are

that

the

cash

"represents

part of the same course

drug

of conduct as

the instant offense." United States v. Jackson, 3 F.2d at 510

_____________
_______
(citing Gerante, 891 F.2d at 369).
_______
A

finding

by

the

district

court

that

cash

represents drug transactions that are part of the same course

of

conduct as

the charged

preponderance of the

offense must

evidence.

be supported

United States

by a

v. Jackson, 3

_____________
F.3d

at

510.

challenged,

as

At

the

sentencing

unsupported

by

evidence, the PSI's assertion that

_______

hearing,
preponderance

appellant
of

the

the cash seized from

his

-7-

apartment "was
and,

the direct

therefore,

"relevant

result of
conduct"

narcotics trafficking"
for

the

purposes

of

determining the BOL.

As
district court

required by Fed.
made a finding

contained in the PSI.

R. Crim. P.
as to the

32(c)(3)(D), the
alleged inaccuracy

The district court found as follows:

[the seizure of
heroin and numerous
articles used in the packaging of heroin
and the defendant's admission that the
drugs found were his and that they were
there to sell] certainly indicates that
this defendant was heavily involved in
the heroin trafficking business and I
join hands with the Probation Officer in
the statement that he made that he stands
firm in his belief that the $2,527 seized
from the defendant's person and his own
apartment are the proceeds of previous
heroin trafficking, and, therefore, it's
considered relevant
conduct for
the
purpose of determining
the guideline
range.

The

district court

also stated

source of the cash

that, with

respect to

and its connection to Quezada, "I

the

do not

attach much significance to the defendant's argument."

These

findings of fact

reviewable only

for

clear

by the district

error.

See
___

court are

United States
______________

v.

Jackson, 3 F.2d at 510; United States v. Gerante, 891 F.2d at

_______
_____________
_______
368.

We cannot say that the sentencing judge committed clear

error in concluding
proving

by a

that the

government met

preponderance of

seized represented
See United States
___ _____________

the

evidence that

proceeds of previous
v. Sepulveda, Nos.
_________

its burden

of

the cash

heroin trafficking.

92-1362, et al.,

slip

-8-

op.

at

81 (1st

Cir.

Dec.

20,

1993) (holding

that

"the

government presented abundant evidence of Johnson's narcotics

trafficking, .
justified

. . ,

the court's

and the volume of

illation that

the

business transacted
sums seized

were

connected to her drug dealings.").

Quezada argued at his

sentencing hearing that

the

evidence

suggested

apartment,

including a

Rodriguez.
witness

that

Quezada

there were
woman,

did not

at the hearing,

was theirs.

Nor did

his contention that

the time of his

children
produce any

on a

employed.

at his

and someone

named

such person

as a

that the money

appellant offer any evidence to support

he was employed at an

arrest.

of employment,

solely

living

however, to testify

(such as

statement
Moreover,

auto body shop at

The probation officer was unable to

verify the alleged employment.

proof

others

by

Appellant did not provide any

paycheck

his wife

the district

that
court

stubs) and
he

relied

had been

would

have been

justified in concluding that legitimate employment would

necessarily

511,

the

not

explain the presence of large amounts of cash in

Quezada's apartment.
at

so

As in

United States v. Jackson, 3 F.2d

_____________
_______

sentencing court

alternative sources of

here

"rejected

the various

the currency and determined

funds were drug proceeds."

that the

It did not commit clear error

making that determination.

-9-

in

The conviction
to Loc. R. 27.1.

and sentence are

affirmed pursuant

-10-