Appeal from judgment of United States District Court for the Eastern District of New York, Charles P. Sifton, J., sentencing appellant to the statutory maximum pursuant to a guilty plea, and upwardly departing from recommended sentence of the Sentencing Guidelines because of the large quantity of drugs discovered in appellant's possession.
Feinberg, Chief Judge. Cardamone and Pratt, Circuit Judges.
Luis Fernando Correa-Vargas appeals from a sentence of Judge Sifton of the United States District Court for the Eastern District of New York, imposed upon him for violation of 21 U.S.C. § 843(b), which prohibits use of a communication facility in the commission of a drug offense. The judge imposed the statutory maximum of 48 months, well over the recommended range of imprisonment for this offense in the Sentencing Guidelines. The judge justified his upward departure from the Guidelines by the quantity of narcotics involved. Appellant claims that this was improper. For reasons given below, we affirm the judgment of the district court.
In late 1987, agents of the Drug Enforcement Administration (DEA) received information from an informant that a drug transaction was to take place at the Howard Johnson Plaza Hotel in Plainview, New York. The next day, a DEA agent observed a man walking back and forth behind the hotel when Correa-Vargas drove into the parking lot. After a short conversation, the man took a large cardboard box from the trunk of his car, placed it into Correa-Vargas's car, and Correa-Vargas handed him a quantity of cash. DEA agents blocked Correa-Vargas as he attempted to leave the parking lot. Subsequent investigation showed that the box contained 20 kilos of 87 per cent pure cocaine. The agents also found an expensive cellular telephone in Correa-Vargas's car.
Correa-Vargas was initially indicted on one count, charging conspiracy to possess with intent to distribute in excess of five kilos of cocaine, 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A), and on a second count, charging possession of the cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(A). In order to protect a confidential informant, we are told, the government agreed to accept a guilty plea to a one-count superseding information charging Correa-Vargas only with using a communication facility in the commission of a drug offense, 21 U.S.C. § 843(b).
Because the offense took place after November 1, 1987, the Sentencing Guidelines apply to this case. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 235(a)(1), 98 Stat. 2031, amended by Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728, and Sentencing Act of 1987, Pub. L. No. 100-182, § 2(a), 101 Stat. 1266. The applicable guideline for a violation of 21 U.S.C. § 843(b) recommends a sentence of from six to twelve months. Sentencing Guidelines § 2D1.6.*fn1 At the sentencing hearing, Judge Sifton departed from the guideline and imposed the statutory maximum of 48 months, because he considered the quantity of cocaine to be an aggravating circumstance. This appeal, pursuant to 18 U.S.C. § 3742(a)(3)(A), followed.
We note at the outset that appellant has not challenged the constitutionality of the Sentencing Guidelines, an issue that has already been argued to the Supreme Court and to this court. Turning to the issues before us, the Sentencing Reform Act of 1984 provides the statutory standard for reviewing sentences. Section 213(a) of the Act provides, in relevant part:
(d) Consideration. -- Upon review of the record, the court of appeals shall determine whether the sentence --
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is outside the range of the applicable sentencing guideline, and is ...