United States v. Manuel Jimenez-Otero, 898 F.2d 813 (1st Cir. 1990). · Go Syfert
United States v. Manuel Jimenez-Otero, 898 F.2d 813 (1st Cir. 1990). Cases Citing This Book View Copy Cite
36 citation events (7 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Valdez-Vazquez (ca1, 2017-11-06)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Valdez-Vazquez
1st Cir. · 2017 · confidence medium
Because that basis was plausible, "we cannot say that [the sentencing court's] conclusions were unfounded or clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) (quoting United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir. 1990)).2 B.
discussed Cited as authority (rule) United States v. Carbajal-Váldez
1st Cir. · 2017 · confidence medium
Because that basis was plausible, “we cannot say that [the sentencing court’s] conclusions were unfounded or clearly erroneous.” United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) (quoting United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir. 1990)). 2 B.
discussed Cited as authority (rule) United States v. Dixon
1st Cir. · 2006 · confidence medium
We afford clear-error review to his fact-bound challenges, see United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990), but consider the essentially legal question of whether the facts sufficiently establish the requisite intent de novo, see United States v. Carrasco-Mateo, 389 F.3d 239, 243 (1st Cir.2004). 1.
discussed Cited as authority (rule) United States v. Rodriguez-Castillo (2×) also: Cited "see, e.g."
1st Cir. · 2003 · confidence medium
See United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Vittini
1st Cir. · 1994 · confidence medium
We also have previously stated that "the law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by the United States Attorney's sentencing recommendation, nor by stipulations of fact accompanying the plea contract." United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir. 1990) (citations to the guidelines omitted). 1 6 In fulfilling its obligation to determine the facts relevant to the sentencing, the district court was on solid ground in relying on the laboratory report and the presentence report (PSR).
discussed Cited as authority (rule) United States v. Joshua William Sanders (2×)
9th Cir. · 1994 · confidence medium
The only other published cases even mentioning § 2A6.1(b)(2) are United States v. Lowenstein, 1 F.3d 452, 453-54 (6th Cir.1993) (affirming an upward departure where the defendant wrote a huge volume of threatening letters); United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990) (affirming an upward adjustment under § 2A6.1(b)(1) for an “offense involv[ing] any conduct evidencing an intent to carry out such threat” where the defendant brandished a screwdriver while making the threats); United States v. Bellrichard, 801 F.Supp. 263, 266 (D.Minn.1992) (denying a § 2A6.1(b)(2) red…
cited Cited as authority (rule) United States v. Gibbens
1st Cir. · 1994 · confidence medium
See, e.g., United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990).
cited Cited as authority (rule) United States v. Donald Sauerwein
7th Cir. · 1993 · confidence medium
United States v. Hill, 943 F.2d 873, 875 (8th Cir.1991); United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Claude Paul Tardiff
1st Cir. · 1992 · confidence medium
See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) ("where there is more than one plausible view of the circumstances, the sentencing court's choice among supportable alternatives cannot be clearly erroneous"); United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990) (same).
cited Cited as authority (rule) United States v. Paul Edward Aubin
1st Cir. · 1992 · confidence medium
See United States v. Vega-Encarnacion, 914 F.2d at 25 ; United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990).
cited Cited as authority (rule) United States v. Richard Clark Johnson, United States v. Martin Quigley, United States v. Christina Leigh Reid
1st Cir. · 1992 · confidence medium
United States v. Lauzon, 938 F.2d 326, 330-31 (1st Cir.1991); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Hector Garcia
1st Cir. · 1992 · confidence medium
See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) (“where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous”); United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990) (same).
discussed Cited as authority (rule) United States v. Beverly Brum
1st Cir. · 1991 · confidence medium
Finally, without citation to authority, appellant contends that her acquittal on the conspiracy charge entitled her to a downward adjustment under U.S.S.G. § 3B1.2. 4 The district court took appropriate account of the acquittal, reasoning that appellant “was much less than a full participant because she wasn’t found guilty of conspiracy, but she was certainly guilty of possession with intent to distribute as the jury found, and not just a minimal, or minor participant.” According the deference due “the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742…
discussed Cited as authority (rule) United States v. Barbara Hilton
1st Cir. · 1991 · confidence medium
Accord, e.g., United States v. Porter, 924 F.2d 395, 399 (1st Cir.1991); United States v. Harotunian, 920 F.2d 1040, 1044 (1st Cir.1990); United States v. Sanchez, 917 F.2d 607, 613 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1625 , 113 L.Ed.2d 722 (1991); United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.1990); United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Pighetti, 898 F.2d 3, 4-5 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Kaya Aymelek
1st Cir. · 1991 · confidence medium
See United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990) (discussing district court’s right to make credibility judgments in guideline sentencing); United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990) (similar).
cited Cited as authority (rule) United States v. Frank Porter, Jr.
1st Cir. · 1991 · confidence medium
See United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990).
discussed Cited as authority (rule) United States v. Dennis Harotunian
1st Cir. · 1990 · confidence medium
Accord Ocasio, 914 F.2d at 333; United States v. LaGuardia, 902 F.2d 1010, 1012 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); Pighetti, 898 F.2d at 4-5 ; United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Gilberto Ocasio, A/K/A Gilberto Ocasio Agosto
1st Cir. · 1990 · confidence medium
In United States v. Ruiz, 905 F.2d 499 (1st Cir.1990), we restated the rule: “absent extraordinary circumstances, a criminal defendant cannot ground an appeal on the district court’s discretionary decision not to undertake a downward departure from the sentencing range indicated by the guidelines.” Id. at 508-09 ; see also United States v. LaGuardia, 902 F.2d 1010, 1012 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Pighetti, 898 F.2d 3, 4-5 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Julio La Guardia, United States of America v. Eredia Josefa Jimenez-Minalla
1st Cir. · 1990 · confidence medium
APPELLATE JURISDICTION Despite the fact “that a criminal defendant cannot normally ground an appeal” on the sentencing court’s discretionary decision not to essay a downward departure from the sentencing guidelines, United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); see also United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989), we believe we have jurisdiction to determine the instant appeals.
discussed Cited "see" United States v. Cirilo
1st Cir. · 2015 · signal: see · confidence high
See United States v. Jiménez-Otero, 898 F.2d 813, 815 (1st Cir.1990) ("[T]he law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by the United States Attorney's' sentencing recommendation nor by stipulations of fact accompanying the plea contract.” (citations omitted)).
discussed Cited "see" United States v. Rodriguez
1st Cir. · 2003 · signal: accord · confidence high
The fact that the district court could have placed a less sinister interpretation on the submission of the Santana letter is of no consolation to the appellant. 3 “Where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous.” United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990); accord United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990).
cited Cited "see" United States v. Michael Neal Lauzon
1st Cir. · 1991 · signal: see · confidence high
See United States v. Jiminez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989).
cited Cited "see" United States v. James Bannister
1st Cir. · 1991 · signal: see · confidence high
See United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990).
discussed Cited "see" United States v. Robert E. Bradley (2×) also: Cited "see, e.g."
1st Cir. · 1990 · signal: accord · confidence high
As we have *606 heretofore written, “where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990); accord Jimenez-Otero, 898 F.2d at 815 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 , 105 S.Ct. 1504, 1511-12 , 84 L.Ed.2d 518 (1985)).
discussed Cited "see" United States v. Fausto D. Ruiz
1st Cir. · 1990 · signal: see · confidence high
See United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990); see also Mocciola, 891 F.2d at 17 (even where defendant had been acquitted on weapons charge, district court’s factual finding that connection between gun and drug offense was not “clearly improbable” could be upheld on appeal). 3.
discussed Cited "see, e.g." United States v. Lynch
1st Cir. · 1996 · signal: see also · confidence medium
See, e.g., United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994) (discussing utility at sentencing of facts contained in PSI Report); United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) (discussing utility of trial testimony in the sentencing phase); see also United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990) (explaining that, when there are two or more plausible views of the evidence, the sentencing court's choice among them cannot be clearly erroneous). 1 6 2.
discussed Cited "see, e.g." United States v. Horton
C.D. Ill. · 1995 · signal: see also · confidence low
See Fed.R.Crim.P. 11(e); U.S.S.G. § 6Bl.l(b) (policy statement); United States v. Sanchez-Estrada, 62 F.3d 981, 987 (7th Cir.1995); see also United States v. Jimenez-Otero, 898 F.2d 813 (1st Cir.1990) (affirming district court decision to enhance offense level by 6 because the defendant engaged in conduct evidencing intent to carry out his threat, despite plea agreement stating that the 4 level reduction was appropriate).
discussed Cited "see, e.g." United States v. Timothy L. Cousens
1st Cir. · 1991 · signal: see also · confidence medium
See also United States v. Preakos, 907 F.2d 7, 8 (1st Cir.1990) (where appeals court is reviewing district court’s findings that defendant used firearms to protect his drug operation and that defendant was organizer or leader of criminal activity under Guidelines, “ ‘due deference’ requires that we review the district court’s fact-based application of the guidelines only for clear error”), citing United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990) (reviewing “only for clear error” the district court’s fact-based determination regarding defendant’s purpose in…
cited Cited "see, e.g." United States v. Harris
M.D. Ala. · 1991 · signal: see also · confidence medium
See also United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990). 11 .
cited Cited "see, e.g." United States v. Bartolo Trinidad De La Rosa
1st Cir. · 1990 · signal: see, e.g. · confidence medium
See, e.g., United States v. Jimenez-Ote-ro, 898 F.2d 813, 815 (1st Cir.1990) (reviewing district court’s application of guidelines to undisputed facts only for clear error).
cited Cited "see, e.g." United States v. Victor Vega-Encarnacion, United States v. Hector Orlando Cruz-Rosario
1st Cir. · 1990 · signal: see also · confidence medium
See also United States v. Jiminez-Otero, 898 F.2d 813, 815 (1st Cir.1990); *26 United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990).
cited Cited "see, e.g." United States v. Darrell Walter Preakos
1st Cir. · 1990 · signal: see, e.g. · confidence medium
See, e.g., United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990) (reviewing district court’s application of guidelines to undisputed facts only for clear error).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Manuel JIMENEZ-OTERO, Defendant, Appellant
89-1562.
Court of Appeals for the First Circuit.
Mar 14, 1990.
898 F.2d 813
Gabriel Hernandez Rivera, with whom Feldstein, Gelpi, Hernandez & Gotay, Old San Juan, P.R., was on brief for defendant, appellant., Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.
Breyer, Selya.
Cited by 34 opinions  |  Published
[*814] SELYA, Circuit Judge.

This is a single-issue sentencing appeal wherein a defendant who pled guilty to a charge of threatening a federal officer, in violation of 18 U.S.C. § 115(a), (b)(4), challenges the district court’s 6-point adjustment in its computation of defendant’s total offense level. The court made the upward adjustment because it found that the defendant had engaged in conduct “evidencing an intent to carry out [the] threat,” U.S.S.G. § 2A6.1(b)(l), by brandishing a screwdriver during the crime’s commission.

The circumstances are as follows. On September 28, 1988, defendant-appellant Manuel Jimenez-Otero (Jimenez) was charged with having verbally threatened to murder a postal service employee engaged in the performance of his official duties. Subsequently, a non-binding plea agreement was entered, Fed.R.Crim.P. 11(e)(1)(B), in which the government agreed to reduce the charge from “threat to murder” to “threat to assault.” Jimenez agreed to plead guilty to the reduced charge. The parties stipulated that they believed the applicable sentencing guideline should be computed at a base offense level of 12, U.S.S.G. § 2A6.1(a), to be decreased by 4 levels since defendant’s conduct involved a single instance evidencing little or no deliberation, U.S.S.G. § 2A6.1(b)(2), and further reduced by 2 more levels for acceptance of responsibility, U.S.S.G. § 3El.l(a). (A base offense level of 6 and a criminal history category of I would produce a sentencing range of 0 to 6 months).

Defendant pled guilty to the reduced charge. Pursuant to standard convention, see Fed.R.Crim.P. 32(c), the court ordered a presentence report (PSI Report). The Report did not recommend the downward adjustments foreseen by the parties. Rather, the probation officer suggested an increase of 6 levels on the ground that the defendant had brandished a dangerous weapon — a screwdriver — during the commission of the crime [1] Inasmuch as this conduct called for a 6-level upward adjustment, see infra, the probation officer advised computing the sentence at a total offense level of 18, resulting in a guideline imprisonment range of 27-33 months. The Report concluded with the opinion that there was no information that would warrant departure from the guidelines.

At the sentencing hearing, the court granted defendant a 2-point reduction for acceptance of responsibility (not envisioned by the probation officer) but increased the base offense level by 6 because the “defendant engaged in conduct evidencing an intent to carry out a threat ... [by] brandishing] a dangerous weapon.” See U.S. S.G. § 2A6.1(b)(l). The resultant total offense level (16) produced a 21-27 month spread. The court sentenced defendant at the nadir of the guideline range, 21 months in prison.

Jimenez appeals on the basis that the district court incorrectly applied the guidelines. See 18 U.S.C. § 3742(a)(2). We review the district court’s fact-based determination regarding defendant’s purpose in holding the screwdriver only for clear error. See 18 U.S.C. § 3742(e) (court of appeals “shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts”); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir.1990); United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam); United States v. Zayas, 876 F.2d 1057, 1060 (1st Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). The “clearly erroneous” rule applies “in full flower” to inferences drawn from documentary evidence and/or agreed facts. E.g., In re Tully, 818 F.2d 106, 109 (1st Cir.1987). It is plainly reasonable to think of a screwdriver as a “dangerous weapon” in the context of this offense and therefore to conclude the wielder has “engaged in conduct evidenc[*815] ing an intent to carry out a threat.” U.S. S.G. § 2A6.1(b)(l). Accordingly, we cannot alter the trial court’s interpretation of the undisputed facts. After all, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

Nor can we say that the plea agreement made a dispositive difference. Appellant concedes that the colloquy ordained under Fed.R.Crim.P. 11(c) contained all of the required advice, warnings, and caveats. Moreover, the law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by the United States Attorney’s sentencing recommendation, see U.S.S.G. § 6Bl.l(b) (policy statement), nor by stipulations of fact accompanying the plea contract, U.S.S.G. § 6B1.4(d) (policy statement).

Defendant also argues that there were “mitigating circumstances” such that the court should have departed downward in imposing sentence. We have held before, and today reaffirm, that a criminal defendant cannot normally ground an appeal on such a theory. See United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989). This case is no exception to that rule.

We need go no further. Although the district judge might have elected to view the scenario more congenially to defendant, she was not obliged to do so. Because the court’s recension of the evidence was plausible, we cannot say that its conclusions were unfounded or clearly erroneous. The judgment of conviction and the concomitant sentence are, therefore, Affirmed.

1

. Defendant did not dispute that he was holding the screwdriver at the time. He argued instead that it was part of his usual equipage as a maintenance man and that he was not carrying it in a threatening manner.