United States v. Acevedo

824 F.3d 179, 2016 U.S. App. LEXIS 10033, 2016 WL 3094190
CourtCourt of Appeals for the First Circuit
DecidedJune 2, 2016
Docket15-1378P
StatusPublished
Cited by5 cases

This text of 824 F.3d 179 (United States v. Acevedo) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Acevedo, 824 F.3d 179, 2016 U.S. App. LEXIS 10033, 2016 WL 3094190 (1st Cir. 2016).

Opinion

SOUTER, Associate Justice.

Edgar Acevedo appeals the below-Guidelines sentence he received after pleading guilty to conspiracy to commit kidnapping. We affirm.

I

The indictment charged Acevedo with violating 18 U.S.C. § 1201(e) by conspiring with Alfred Vazquez and Alberto Moreno, among others, to kidnap one John Doe and hold him for ransom. It alleged that the group seized Doe at gunpoint in Boston and that Vazquez, Moreno, and Acevedo *182 later met at Vazquez’s house to hide the ransom money.

When Acevedo pleaded guilty, he acknowledged that he had read the indictment and did not object to its description of the offense. The Government set out what it would have proven if the case had gone to trial, and Acevedo confirmed that he did not dispute anything the Government said. According to the Government, two men pulled Doe from a car in Boston, one of them, Moreno, armed with a gun. They dragged Doe into a nearby van, driven by Acevedo, and sped off to Lawrence. Vazquez subsequently called Doe’s wife to demand a ransom. After Doe had been held for several days at a house in Lawrence, he was rescued by the FBI. Three witnesses, the Government explained, would have identified Acevedo as a member of the group that kidnapped and held the victim.

Following the guilty plea, the Probation Office prepared a Presentence Report (PSR) based on information developed by the investigating agents and four cooperating co-conspirators. Among the additions to the story were that Vazquez,- who dealt in drugs but also ran an auto shop, was hired by another drug dealer to kidnap Doe (whom the PSR identified as JP) to collect a drug debt. It was Vazquez who recruited Moreno, Acevedo, and others to plan and do the kidnapping. Acevedo was a friend of Moreno’s and at the time was living with him while working at Vazquez’s auto shop.

To commit the crime, according to the PSR, Acevedo stopped the van behind a car in which JP was riding, which was blocked by another car in front. Moreno and the other conspirator jumped out of the van, pulled JP from the car at gunpoint, and shoved him into the van, which headed-for Lawrence and an unoccupied house where Vazquez had once lived. Vazquez told JP that he could pay the drug debt and be released, or fail to pay and he and his family would be killed. In a series of phone calls over the next few days, Vazquez demanded the money from JP’s wife. In the PSR account, Acevedo was present at various times in the house where JP was being held.

The PSR reported that JP’s family called the FBI, which led the recovery effort. Agents coated marked ransom money with fluorescent powder that is normally invisible but glows in black light. After a ransom drop observed by the FBI, Vazquez and Moreno brought some of the marked bills to Moreno and Acevedo’s apartment. Thence the three went to Vazquez’s residence, where agents arrested Vazquez and Acevedo, whose hands glowed under a black light.

The agents rescued JP and collected further evidence. According to the PSR, cellphone analysis revealed that, during the period beginning three weeks before the kidnapping and ending one day after JP’s recovery, Vazquez’s and Acevedo’s phones were in contact 114 times for a total of some three hours. Over the same period, Moreno’s and Acevedo’s phones were in contact 89 times for a total of about an hour and a half.

The PSR calculated a total offense level ' of 37 under the U.S. Sentencing Guidelines Manual § 2A4.1(a), starting from a base offense level of 32 for conspiracy to commit kidnapping. To this, the PSR added a six-level enhancement under § 2A4.1(b)(l) for making a ransom demand and a two-level enhancement under § 2A4.1(b)(3) for using a firearm; the PSR then reduced the offense level by three under § 3E1.1 for acceptance of responsibility. The resulting offense level, coupled with a criminal history score of zero, yielded a Guidelines imprisonment range of 210 to 262 months.

*183 Acevedo filed objections to the PSR, some of them going to particular details, such as his involvement in planning the kidnapping. He said that he drove a tow truck for Vazquez’s auto shop, so there was nothing unusual about being told to drive into Boston on the day of the kidnapping, and, by his account, he did not learn that he was there for a kidnapping until he was already in the city. He also disputed that he was present in the house where JP was held, and that he handled the ransom money. He thus urged that he deserved a two-level reduction because of his “minor role” in the conspiracy.

Acevedo objected further to the PSR’s offense-level calculation for its inclusion of the ransom-demand enhancement, on the ground that this was impermissible “double counting,” a ransom demand being an element of the substantive kidnapping offense. And he also contested the firearm enhancement on the ground that he could not reasonably have foreseen that any of his co-conspirators would possess a gun.

Both Acevedo and the Government submitted sentencing memorandums, Acevedo’s reiterating his objections to the PSR. He did not, however, submit any relevant evidentiary support for his assertions 1 or request an evidentiary hearing. The Government, for its part, endorsed the PSR and filed a transcript of grand jury testimony and a police report supporting the claim that cooperating witnesses identified Acevedo at both a planning meeting in advance of the kidnapping and the house where JP was held. The Government requested a 210-month sentence, at the bottom of the Guidelines range.

At sentencing, the district court overruled Acevedo’s objections and adopted the Government’s and Probation Office’s positions. The court (i) ruled that a ransom demand was not required for a conviction under the statute and thus was an additional fact that could be the basis of an enhancement, (ii) found that Acevedo could reasonably have foreseen that a gun would be used, and (iii) rejected Acevedo’s request for a minor-role reduction: even without considering the contested assertions that Acevedo guarded JP and handled the ransom money, the court determined that driving the abduction van was not a “minor role.” The PSR’s Guidelines range of 210 to 262 months was accordingly adopted.

■Nevertheless, the district court found that a Guidelines sentence was longer than necessary to satisfy the sentencing objects under 18 U.S.C. § 3553(a)(2) and imposed a below-Guidelines term of 192 months. It is from this sentence that Acevedo appeals.

II

Acevedo first argues that the district court failed to resolve factual disputes that bore on his sentence, in violation of Federal Rule of Criminal Procedure 32(i)(3)(B) (“[T]he court must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing .... ”).

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Bluebook (online)
824 F.3d 179, 2016 U.S. App. LEXIS 10033, 2016 WL 3094190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-acevedo-ca1-2016.