F I L E D

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FEB 17 1998

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

v.

Plaintiff - Appellee,

GREG ZACHERY FLOREZ,

No. 97-4055
D. Utah

(D.C. No. 96-CR-75J)

Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Greg Zachery Florez pled guilty to one count of possession with intent to
distribute 500 grams of cocaine in violation of 21 U.S.C. 841(a)(1). He was
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

sentenced to 70 months imprisonment after the court denied the governments

motion for a downward departure for substantial assistance to authorities. Mr.
Florez appeals the sentence, arguing: (1) the district court erred in refusing to
grant the substantial assistance downward departure because it relied on improper
factors; (2) the court erred in including a mischievous conduct conviction in
calculating his criminal history; and (3) even if the mischievous conduct
conviction was properly included, the court misapprehended its authority to depart
from the guidelines for over-representation of a defendants criminal history
category. We affirm.

BACKGROUND
Mr. Florez was arrested on January 4, 1996, after purchasing one kilogram
of cocaine from an undercover FBI agent. On April 17, 1996, the government
filed a sealed indictment, charging Mr. Florez with violation of 21 U.S.C.
841(a)(1), which carries a mandatory minimum sentence of five years
imprisonment under 21 U.S.C. 841(b)(1)(B). After his arrest in January 1996
and until his arraignment in September 1996, Mr. Florez cooperated with the
government by helping to effect the arrest of a major narcotics trafficker, by
providing information about others involved in the drug trade, and by agreeing to
testify on behalf of the government. On January 13, 1997, Mr. Florez pled guilty
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in accordance with a plea agreement in which the government agreed to move for
a downward departure for substantial assistance to authorities pursuant to 18
U.S.C. 3553(e) and U.S. Sentencing Guidelines Manual (USSG) 5K1.1, p.s.,
and to recommend a three-point downward departure for acceptance of
responsibility pursuant to USSG 3E1.1.
The U.S. Probation Office prepared a presentence report (PSR), in which it
recommended a criminal history category III, a base offense level of 26, plus two
more points for possession of a firearm. R. Vol. VI 40, 41, 68. The PSR also
recommended a three-point downward departure for acceptance of responsibility,
resulting in a recommended sentencing range of 70 to 87 months imprisonment.
Id. at 38, 46, 97. After the PSR was issued, but prior to sentencing, the
government filed a sealed motion for a departure below both the statutory
minimum and the sentencing guidelines based on Mr. Florezs substantial
assistance.
At sentencing, the district court was concerned that the written plea
agreement did not mention an apparent agreement between the government and
Mr. Florez not to include in the indictment a separate 18 U.S.C. 924(c) count
for using or carrying a gun in connection with the underlying possession charge.
After inquiring of government counsel as to why the government did not arrest

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the defendant immediately after the indictment was handed down, the following
exchange took place between the court and government counsel:
THE COURT: Let me tell you this. In this court before me if youve
got something pending, you process it, and you process it
expeditiously. Its unfair to the process to simply let it be
manipulated, which it is.
MR. MacDOUGALL: Ill keep that in mind, Your Honor.
THE COURT: Not only keep in mind, you follow it.
MR. MacDOUGALL: Ill do that.
THE COURT: That isnt how the system works.
What else do you want to tell me about this young man other
than his help?
MR. MacDOUGALL: Well, Your Honor, I think the fact that he has
cooperated in the manner in which he has, I think that hes
recognized that what he did was wrong. I think hes attempted to
atone for this conduct, and we would hope that Mr. Florez has had
impressed upon him that he ought not to engage in this kind of
future.
THE COURT: Now, he had a gun when he was picked up, did he
not?
MR. MacDOUGALL: As I recall he did.
THE COURT: Was he indicted for having a gun?
MR. MacDOUGALL: No, Your Honor. That was part of what was
discussed prior to the indictment being returned.
THE COURT: Well, was there discussion with him before the
indictment was returned?
MR. MacDOUGALL: Yes, there was, Your Honor.
THE COURT: So what weve got is an arrangement made with the
United States attorney before an indictment ever came down.
MR. MacDOUGALL: Thats correct, Your Honor.
THE COURT: And we do this in the name of uniformity and
equality.
R. Vol. IV at 12-13.
The court then spent nearly the entire balance of the hearing inquiring of
the defendant and governments counsel why the agreement not to indict was not
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included in the written plea agreement and why the plea agreement stated that no
other agreements had been entered into. Defense counsel asked the court to
continue the hearing so that he could discuss with Mr. Florez the possibility of
withdrawing his guilty plea because of what had happened at the hearing that day.
When the hearing resumed one week later, defense counsel indicated that Mr.
Florez would not seek to withdraw his plea. The court spent the first portion of
the hearing listening to defendant and counsels for the government and for the
defense discuss the assistance provided by the defendant to the government, the
defendants criminal, employment, and health history, and the defendants family
and personal situation. The court then told Mr. Florez:
Were there a gun charge here, you see, we would be dealing
with five years going in on the gun charge, plus the narcotics charge,
which the guidelines says are 70 to 87 months. If you added those
together, you see, youre talking about almost 12 years, and thats a
long time. Of course we dont have a gun charge. That was part of
your deal.
....
. . . I think, under the circumstances, quite frankly, Mr. Florez,
you have done well. Purportedly the gun charge had substance, but it
wasnt filed. That eliminated five years going in. Thats a fairly
substantial factor. It may or may not have been sustained, but at
least part of your arrangement with the United States was that they
wouldnt file it.
The gun charge would have been a mandatory five years going
in tacked on, and thats a substantial factor.

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Ive looked at this. Ive looked at your history. Quite frankly,

Ive looked at the patterns. I respect the fact that youve got a boy
who ought to be looking up to you. I respect the fact that youve got
other problems.
But because of the nature of whats been going on for a period
of time, its the judgment of the Court that you be sentenced to the
custody of the Bureau of Prisons for a period of 70 months . . . .
....
I respect the fact that youve got a problem with your knee.
There are medical facilities available within the system. Some are
extremely good. I respect the fact that you may have other problems
of a personal nature, and Ive noted that. In my opinion, however,
you should go with the marshals and commence what appears to me
to be an appropriate sentence after recognizing your informal
arrangement with the United States.
R. Vol. V at 10, 12, 13.
The courts 70-month sentence was at the low end of the sentencing range,
reflecting a three-point downward departure for acceptance of responsibility but
no departure for substantial assistance under 5K1.1.

DISCUSSION
I. Departure for Substantial Assistance to Authorities
A district courts discretionary decision not to depart downward from the
Sentencing Guidelines is unreviewable. See United States v. Munoz, 946 F.2d
729, 730 (10th Cir. 1991); United States v. Davis, 900 F.2d 1524, 1529-30 (10th
Cir. 1990). However, we do have jurisdiction to review a sentence if the district
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court erroneously concluded that it lacked the authority to depart, see United
States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996); United States v.
Maldonado-Campos, 920 F.2d 714, 718 (10th Cir. 1990), or if the district court
imposed a sentence which violates the law or incorrectly applies the guidelines.
See 18 U.S.C. 3742(a); 1 United States v. Belt, 89 F.3d 710, 714 (10th Cir.
1996).
Mr. Florez claims that the district court improperly considered the
governments agreement with defendant to not indict him for using or carrying a
gun in denying the downward departure and that it thereby incorrectly applied the
guidelines. While we have previously rejected an appellants attempt to evade the
jurisdictional bar by characterizing the district courts refusal to depart [under
5K1.1] as a misapplication of the guidelines rather than as an exercise of

18 U.S.C. 3742(a) authorizes a defendant to appeal an otherwise final sentence

if the sentence:
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(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline
range to the extent that the sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the maximum
established in the guideline range, or includes a more limiting condition of
probation or supervised release under section 3563(b)(6) or (b)(11) than the
maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
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discretion, United States v. Fitzherbert, 13 F.3d 340, 344 (10th Cir. 1993), we
believe Mr. Florezs appeal is not such an attempt. We therefore have jurisdiction
pursuant to 18 U.S.C. 3742(a), and we review de novo the courts application of
the guidelines. See United States v. LeRoy, 984 F.2d 1095, 1096 (10th Cir.
1993).
We find the action of the district court somewhat troubling. The district
court spent the vast majority of the two sessions of sentencing hearings focusing
on the possible 924(c) violation and discussing the pre-indictment agreement
between defendant and the government as to that violation. While the court was
justified in ensuring that correct procedure had been followed, we do not believe
it should have held the defendant responsible for any mistakes made by the
government in the indictment and plea process.
Defendant urges us to reverse and remand to a different district judge for
reconsideration of the substantial assistance motion and for resentencing thereon
as the Seventh Circuit did in United States v. Lee, 46 F.3d 674 (7th Cir. 1995). In
Lee, the Seventh Circuit remanded for resentencing based on a Rule 35(b) motion
because:
Lees rights were not adequately considered by the district judge who
conducted a wide-ranging criticism and dialogue on the misconduct
of government counsel in the [related cases] and seemed to charge
Lee with complicity because he, as a witness in those cases, accepted
favors from the government.
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We do not doubt the concern and sincerity of [the district

judges] ire at government counsel whose conduct required setting
aside many [related cases] defendants convictions. We doubt,
however, that such blame should extend to Lee. What is eminently
clear in this proceeding is that Lee, a cooperating witness, has
received a very heavy sentence as compared to [related cases]
defendants whose crimes were similar but who have not cooperated.
Lee has placed himself in considerable risk and danger in so doing
and, as we understand it, is or was under witness protection.
Lee, 46 F.3d at 681.
While we have many of the same concerns the Seventh Circuit had with
respect to the sentencing of the defendant, the sentence in Mr. Florezs case
reflects a less severe situation than that in Lee. We are no doubt concerned that
the district court focused much attention on the prosecutors discretion not to
indict Mr. Florez for the possible 924(c) violation and that it was less concerned
with making specific findings as to the factors set forth in 5K1.1(a), p.s.: the
significance and usefulness of the assistance; the truthfulness, completeness, and
reliability of the defendants aid; the nature and extent of the assistance; any
injury or risk of injury to defendant that may have resulted from his cooperation;
and the timeliness of the assistance.
However, the factors listed in 5K1.1(a), p.s., are not exclusive or
exhaustive. That section dictates that the appropriate reduction shall be
determined by the court for reasons stated that may include, but are not limited
to the factors listed above. Id. (emphasis added). 18 U.S.C. 3553 provides
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other relevant factors to be considered in imposing a sentence, including: the

history and characteristics of the defendant; the seriousness of the offense; the
need for just punishment; deterrence; protection of the public; correctional
treatment; guideline patterns and policy statements; sentencing disparity; and the
need to provide restitution. See 18 U.S.C. 3553(a). Viewing the sentencing
hearing as a whole, we conclude that the court considered many factors in making
its sentencing decision and that to the extent it considered the possible 924(c)
indictment and the pre-indictment agreement, it did so in determining whether a
reduced sentence would be appropriate in light of all of the defendants actions.
In the end, Mr. Florez was not harmed by the courts inquiry into the side issues.
In no way do we suggest that it is appropriate for a district court to weigh
against a defendant the procedural mistakes that the government may have made
or the questionable discretionary decisions made by the prosecutor.

II. Inclusion of Mischievous Conduct Conviction in Criminal History

Mr. Florez next argues that the court should not have included his prior
state misdemeanor conviction for mischievous conduct for purposes of
calculating his criminal history. Generally, misdemeanor offenses are included in
a defendants criminal history. See USSG 4A1.2(c). However, a misdemeanor
may be excluded from the criminal history calculation if it is similar to an offense
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listed in 4A1.2(c)(1) unless: (1) the defendant was sentenced to the requisite
term of probation or imprisonment, or (2) the prior offense was similar to an
instant offense. United States v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995); see
USSG 4A1.2(c)(1). Mr. Florez claims that his mischievous conduct conviction
is similar to disorderly conduct or disturbing the peace, which are listed in
4A1.2(c)(1), and that his minimal sentence for that offense excludes it from his
criminal history.
The Utah criminal code contains no offense for mischievous conduct but
does include the offenses of criminal mischief and disorderly conduct. See
Utah Code Ann. 76-6-106, 76-9-102. Criminal mischief is an offense that is
generally more serious than disorderly conduct under Utah law. A criminal
mischief conviction requires a showing of intentional, willful, or reckless damage
or potential damage to property and ranges from a third degree felony to a class C
misdemeanor. See Utah Code Ann. 76-6-106. Disorderly conduct, on the other
hand, deals with public inconvenience or annoyance, does not involve damage or
potential damage to property, and is either a class C misdemeanor or an
infraction. See Utah Code Ann. 76-9-102. Mr. Florez argues, for the first time
on appeal, that because the PSR does not state to what specific conduct he pled
guilty in his mischievous conduct conviction, there is a possibility the offense
really fits better as disorderly conduct and might therefore be excluded from the
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criminal history calculation. Although the PSR did not contain specific facts
about Mr. Florezs conduct underlying the conviction, we note that defendant paid
$200 restitution to the victim, in addition to a $250 fine, a suspended jail term,
and six months court probation. We doubt that restitution would be required for
disorderly conduct, but it could certainly be required for damage to property
under the criminal mischief statute. We therefore conclude that Mr. Florezs
prior conviction for mischievous conduct was properly included in calculating
criminal history.

III. Departure for Over-Representation of Criminal History

Finally, Mr. Florez contends that even if the mischievous conduct
conviction was properly included in his criminal history, the court misunderstood
its authority to depart for over-representation of his criminal history category
pursuant to USSG 4A1.3, p.s. As discussed above, we have jurisdiction to
review a district courts discretionary decision not to depart from the guideline
range if we find that the courts decision was based on its erroneous belief that
the Guidelines deprived it power to depart. Rowen, 73 F.3d at 1063.
[U]nless the judges language unambiguously states that the judge does
not believe he has authority to downward depart, we will not review his
decision. Belt, 89 F.3d at 715 (quoting United States v. Rodriguez, 30 F.3d
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1318, 1319 (10th Cir. 1994)). Defendant alleges that the following question by
the judge indicates he did not believe he had the authority to depart: I dont
understand your argument there. Are you asking me to ignore that as part of the
history? R. Vol. IV at 4. However, this was in response to defense counsels
vague statement that the mischievous conduct conviction was a rather minor
matter, but it does make some difference or could make some difference to him if
the Court were to look upon that favorably. Id. We are unconvinced that the
Court misunderstood its authority to depart on a ground that is so firmly
established. See United States v. Sanders, 18 F.3d 1488, 1491 (10th Cir. 1994).

CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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