Appeal from the United States District Court for the Southern District of Illinois. No. 99 CR 30226--William D. Stiehl, Judge.
Before Ripple, Kanne, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge.
Edward Martinez pleaded guilty to possession with intent to distribute illegal controlled substances in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Martinez to120 months' imprisonment. In this appeal, Martinez argues that his sentence does not comply with due process, that cocaine should not have been included in the calculation of the quantity of drugs attributable to him, and that the court should have granted him a two-level deduction under the safety valve provision of the Sentencing Guidelines. We conclude that the district court did not err in imposing Martinez's sentence. Accordingly, we affirm.
An Illinois State Trooper stopped the U-Haul truck that Martinez was driving after it drifted onto the shoulder. After issuing a warning, the trooper asked Martinez if he was transporting anything illegal. Martinez responded that he was not and consented to a search of the truck. The trooper found twenty-two bundles of marijuana weighing 314 kilograms and arrested Martinez.
While in custody, Martinez admitted that although he was not certain that he was hauling drugs, he was paid two weeks' salary to drive the truck from Texas to Illinois. Martinez also confessed to transporting drugs on one other occasion. Based on this evidence, Martinez was indicted for possession of marijuana with intent to distribute.
A few weeks later, a crime lab technician found approximately six kilograms of cocaine concealed inside the marijuana bundles. The grand jury then charged Martinez in a superseding indictment with possession with intent to distribute "divers amounts of illegal controlled substances," in violation of 21 U.S.C. § 841(a)(1). Martinez pleaded guilty.
The probation officer converted the six kilograms of cocaine into the equivalent of marijuana under the Guidelines and included it in the calculation of relevant conduct. The probation officer concluded that Martinez was involved with at least 1,000, but less than 3,000, kilograms of marijuana and made this recommendation in the Presentence Investigation Report. The PSR also recommended that Martinez should be sentenced below the statutory mandatory minimum sentence of ten years because he met the safety valve requirements in 18 U.S.C. § 3553(f).
Both parties filed objections to the PSR. Martinez asserted that he could be sentenced only for the 314 kilograms of marijuana because he did not know or suspect that cocaine was concealed in the marijuana. The government argued that Martinez did not qualify for the safety valve because he failed to provide complete and truthful information concerning the scheme to transport drugs. After a sentencing hearing, the district judge found that Martinez's relevant conduct included the cocaine and that Martinez was ineligible for the safety valve. Judge Stiehl also concluded that he was required to apply the mandatory minimum of ten years for possession with intent to distribute cocaine under § 841(b)(1)(A) and then imposed a sentence of 120 months.
Martinez filed this appeal on three grounds. First, he claims his sentence violates his due process rights in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, he contends that if Apprendi does not apply, then the district court committed clear error by including the cocaine as part of his relevant conduct. Finally, Martinez argues that the district court committed error when it found that he was not eligible for the safety valve provision.
A. Apprendi and Due Process
Martinez argues that the district court violated his due process rights when it included both marijuana and cocaine in his relevant conduct for sentencing purposes, when neither drug type nor quantity were charged in the superseding indictment. Therefore, ...