United States v. Barreto

• Court: Court of Appeals for the First Circuit
• Decided: July 28, 1992
• Docket: 92-1142
• Status: Published

Opinion

USCA1 Opinion

July 28, 1992           [NOT FOR PUBLICATION]

____________________

No. 92-1142 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  WILFREDO BARRETO,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Francisco M. Dolz-Sanchez on brief for appellant.
            _________________________
            Daniel F. Lopez-Romo, United  States Attorney, and Warren Vazquez,
            ____________________                               ______________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.   Defendant  appeals his sentence.   He
                      __________

            claims  that  the district  court  committed  clear error  in

            finding  him  to be  "an organizer  or  leader of  a criminal

            activity  that  involved five  or  more  participants or  was

            otherwise extensive,"  U.S.S.G.    3B1.1(a), and in enhancing

            his  sentence four  levels  pursuant to  that provision.   We

            affirm.

                                    I.  BACKGROUND
                                        __________

                      Appellant Wilfredo  Barreto was indicted  with four

            co-defendants  on two  counts:   conspiring  to possess  with

            intent  to distribute  multi-kilo quantities of  marijuana in

            violation  of 21 U.S.C.   846 (count one) and possession with

            intent to  distribute 85 kilograms of  marijuana in violation

            of 21 U.S.C.   841(a)(1) and 18 U.S.C.   2  (count two).  The

            indictment characterized appellant  and co-defendant  Carmelo

            Rosado as "organizers" and the remaining  three co-defendants

            as  "couriers."    After  two   days  of  testimony  by   the

            government's witnesses, appellant entered a plea agreement in

            which  he  agreed  to  plead  guilty  to  count  one  of  the

            indictment and the government agreed to request the dismissal

            of  count two against him.   On September  3, 1991, appellant

            pled  guilty to count one after a hearing before the district

            court.

                      Pursuant  to Rule  418  of the  Local Rules  of the

            United States District Court for the District of Puerto Rico,

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the government filed a  statement of facts with  the district

            court.   Appellant  signed onto  the  government's  statement

            rather than prepare his own.  The facts contained therein are

            as follows.   During December 1990,  appellant conspired with

            four  other  persons to  possess  with  intent to  distribute

            marijuana.  On December 26, 1990, appellant purchased airline

            tickets for co-defendant Reinaldo Cordero-Nieves to travel to

            San Diego, California, to pick up marijuana  and transport it

            back to San Juan,  Puerto Rico.  According to  the statement,

            appellant   also   purchased  airline   tickets   for  "other

            individuals."  Co-defendant Carmelo Rosado  purchased airline

            tickets on the same day for co-defendants Reinaldo Rodriguez-

            Vargas and  Anibal Santiago-Martinez  to travel to  San Diego

            and back for the  purpose of transporting the marijuana.   On

            December 29, 1990,  co-defendants Cordero-Nieves,  Rodriguez-

            Vargas  and Santiago-Martinez  were  travelling  between  San

            Diego,  California and  Puerto  Rico when  their luggage  was

            intercepted and searched pursuant  to warrants.  The searches

            uncovered approximately 85 kilograms of marijuana.

                      The  sentencing hearing  was  held  on January  13,

            1992, before the same judge who presided over the trial.  The

            district court  determined a base offense level  of 24, given

            that  85 kilograms of marijuana had been seized.  U.S.S.G.   

            2D1.1(c)  and 2D1.4.  It then enhanced the base offense level

            by  four   levels  pursuant   to  U.S.S.G.      3B1.1(a)  for

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appellant's  role as an organizer  or leader of  five or more

            participants.   The court  reduced the offense  level by  two

            levels for appellant's acceptance of responsibility, U.S.S.G.

               3E1.1(a), arriving  at a total  offense level  of 26.   At

            criminal history  category I,  the relevant guideline  called

            for 63 to  78 months.   The court  sentenced appellant to  70

            months  imprisonment and  four years  supervised release  and

            imposed a special monetary assessment of $50.

                      The  district court made  the following findings at

            the sentencing hearing in support of  its decision to enhance

            appellant's base offense  level for his role in  the offense:

            1) appellant "took affirmative  steps to purchase the airline

            tickets for  his co-defendants,"  and 2)  appellant "imparted

            instructions to the couriers relative to the transporting and

            delivering of the marijuana seized."  To support  its finding

            that appellant was an organizer or leader, the district court

            also  adopted the  Presentence Report  (PSI) and  two addenda

            thereto prepared by the probation officer.

                      The PSI set forth the facts of the case in somewhat

            more detail  than the  government's statement of  facts filed

            pursuant to Local  Rule 418.   The PSI  stated that  Cordero-

            Nieves, Rodriguez-Vargas, Santiago-Martinez and  others "were

            instructed  to  travel round-trip  from  Puerto  Rico to  San

            Diego, California, to bring luggage loaded with marijuana for

            Carmelo Rosado and  Wilfredo Barreto."  The PSI also asserted

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that on December 26,  1990, U.S. Customs officers  obtained a

            search warrant  for luggage  checked in by  appellant to  the

            flight from San Juan to San Diego (via Nashville, Tennessee).

            The suitcase was searched and found to contain $105,590.00 in

            cash.   The  PSI  noted that  "pursuant  to the  governmental

            authorities," appellant  and Rosado  were the  organizers and

            leaders of the scheme  "since they arranged for the  group of

            couriers to travel to  San Diego, California, to pick  up the

            marijuana."

                      Appellant filed a partial  opposition to the PSI in

            which  he   sought  to   clarify   certain  alleged   factual

            inaccuracies  and  contested  the  PSI's  acceptance  of  the

            government's   characterization  of   the  appellant   as  an

            organizer or leader.   Appellant also argued  that his recent

            misfortunes  in  his  career  as  an  amateur  boxer and  his

            pregnant wife's  ill  health warranted  a downward  departure

            from  the guidelines.    The probation  officer, pursuant  to

            Local Rule 418, prepared  two addenda to the PSI  in response

            to appellant's opposition.  The addenda reconfirmed the PSI's

            conclusion  that   the   facts  warranted   enhancement   for

            appellant's role in the offense as an organizer or leader.

                                   II.  DISCUSSION
                                        __________

                      On  appeal,  Barreto  contests  both  the  district

            court's   factual   findings   underlying    the   four-level

            enhancement  and the  district court's interpretation  of the

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underlying facts to  find that appellant  is an organizer  or

            leader  within the meaning of U.S.S.G.   3B1.1(a).  We review

            the district court's determination of the appellant's role in

            the  offense only for clear  error.  United  States v. Panet-
                                                 ______________    ______

            Collazo,  960 F.2d 256, 261 (1st Cir. 1992); United States v.
            _______                                      _____________

            Akitoye,  923 F.2d 221, 227 (1st Cir. 1991); United States v.
            _______                                      _____________

            Ocasio, 914 F.2d 330,  333 (1st Cir. 1990); United  States v.
            ______                                      ______________

            Diaz-Villafane, 874 F.2d 43, 48  (1st Cir.) cert. denied  493
            ______________                              ____________

            U.S. 862 (1989); 18 U.S.C.   3742(e).

                      Factual Findings
                      ________________

                      Appellant  disputes the court's finding that he had

            purchased airline  tickets for his co-defendants.   He argues
                                                           _

            that  the evidence  was that he  purchased an  airline ticket

            only for  co-defendant Cordero-Nieves.   Second,  he contests

            the  court's  finding that  he  instructed  the co-defendants

            regarding  the transportation and  delivery of the marijuana.

            He states that this  information was not included in  the PSI

            or its addenda.

                      Appellant argues  that he only purchased an airline

            ticket  for Cordero-Nieves.   The  Government's Statement  of

            Facts  filed with  the  plea agreement  and  executed by  the

            appellant pursuant  to Local  Rule 418, however,  states that

            "on or  about December  26, 1990, defendant  Wilfredo Barreto

            purchased  airline tickets  for  defendant Reinaldo  Cordero-

            Nieves  . . . , and other  individuals."  At trial, there was
                            ______________________

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evidence  introduced that appellant purchased airline tickets

            for  several persons.    Appellant's attorney  stated at  the

            sentencing hearingthat theappellant had bought"some tickets."

                      The evidence does indicate  that of the persons for

            whom appellant  purchased  tickets, only  Cordero-Nieves  was

            named  as a  co-defendant  in the  indictment.   The district

            court  apparently  relied  upon   the  PSI's  statement  that

            "Carmelo Rosado and  Wilfredo Barreto  purchased tickets  for

            [co-defendants] and  other individuals."   Even if  the court

            erred in  stating that  appellant "took affirmative  steps to

            purchase the airline tickets for his co-defendants," any such
                                                             _

            error is  harmless.  Appellant purchased  airline tickets for

            himself  and at  least four other  persons.  At  least two of

            those other persons were  identified at trial as part  of the

            group which met at the airport on December 26, 1990 to travel

            to  San  Diego.     The  indictment  charges  appellant  with

            conspiring  with his  co-defendants  "and with  diverse other

            persons."  Appellant's leadership status is not diminished by

            the Grand Jury's failure to indict all of the co-conspirators

            for whom the appellant  purchased tickets.  Any error  in the

            court's finding with respect to the status of the persons for

            whom appellant purchased tickets is harmless. 

                      Appellant  objects to the  district court's finding

            that he  "imparted instructions  to the couriers  relative to

            the transporting  and delivering of the  marijuana seized" on

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the ground that this information did not appear in the PSI or

            its  addenda.  The  PSI, however, states  that Carmelo Rosado

            and appellant purchased airline tickets for the co-defendants

            and others and  that "they were  instructed to travel  round-

            trip  from Puerto  Rico to  San Diego,  California, to  bring

            luggage loaded with marijuana for Carmelo Rosado and Wilfredo

            Barreto."  Viewed in isolation, the "they" in the last quoted

            phrase may be ambiguous.  "They" could  include appellant, in

            which  case  someone  other  than  appellant  was  doing  the

            instructing.  On the  other hand, "they" could  reference the

            three couriers  alone,  in which  case  it is  reasonable  to

            conclude  that  appellant  and Carmelo  Rosado,  the intended

            recipients   of  the   marijuana,   were   the  ones   giving

            instructions.   The  district  court  ostensibly adopted  the

            latter interpretation.  For several reasons, that was a fully

            permissible construction.

                      First, the  PSI also  states that "pursuant  to the

            governmental authorities, [the  appellant and Carmelo Rosado]

            arranged  for the group of  couriers to travel  to San Diego,

            California,  to pick up  the marijuana."   The district court

            could reasonably  conclude that appellant instructed  the co-

            defendants as part of "arranging for" their travel to pick up

            the drugs.

                      Second, in applying  the sentencing guidelines, the

            district court  was not restricted to  the evidence presented

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in  the PSI.  The court could  rely on any information it had

            access to,  provided  that the  information  had  "sufficient

            indicia  of reliability  to  support its  probable accuracy."

            U.S.S.G.    6A1.3.  See United States  v. Zuleta-Alvarez, 922
                                ___ _____________     ______________

            F.2d 33, 36  (1st Cir.  1990), cert. denied,  111 S.Ct.  2039
                                           ____________

            (1991).   Evidence introduced at trial  and subject to cross-

            examination certainly satisfies this test.

                      At  trial, government  witnesses testified  that on

            December 26,  1990, appellant met with  the co-defendants and

            others at  the airport,  distributed airline tickets  to them

            and departed San Juan with the group on a plane bound for San

            Diego, California (via Nashville, Tennessee).  The government

            also  introduced evidence at trial that a suitcase with a tag

            bearing appellant's name  and checked onto the  flight to San

            Diego was intercepted and found to contain more than $100,000

            in cash.   The district court could reasonably have concluded

            from  this  testimony  that  appellant,  who  purchased   and

            distributed  airline tickets and whose suitcase contained the

            large amount of cash  necessary for a drug purchase,  was the

            person  immediately in  control of  the  job in  progress and

            hence  the  one  giving  instructions  to  the  co-defendants

            regarding  the  transport   and  delivery   of  the   drugs.1

____________________

            1.  At his  guilty plea hearing, appellant  appeared to admit
            that he also purchased the marijuana in San Diego:

                 Mr. Barreto:  We agreed among each other to bring this  
                              marijuana into Puerto Rico.

                                         -9-

Therefore,  the  district court's  conclusion  that appellant

            imparted  instructions to his  co-defendants is  supported by

            the evidence and is not clearly erroneous.

                      Interpretation of the Facts
                      ___________________________

                      In   addition  to  appellant's   challenge  to  the

            district  court's  factual  findings, he  also  contests  the

            court's interpretation of  those facts to conclude that he is

            an organizer or leader.  The Sentencing Guidelines direct the

            district   court  to  consider   the  following   factors  in

            distinguishing  a  leader  or  organizer from  a  manager  or

            supervisor:

                      the    exercise   of    decision   making
                      authority, the nature of participation in
                      the  commission  of   the  offense,   the
                      recruitment  of accomplices,  the claimed
                      right to a larger  share of the fruits of
                      the crime, the degree of participation in
                      planning or organizing  the offense,  the
                      nature and scope of the illegal activity,
                      and the degree  of control and  authority
                      exercised over others.

____________________

                 The Court:    And you bought the tickets?
                 Mr. Barreto:  With someone else.
                 The Court:    And the group went to San Diego?
                 Mr. Barreto:  Yes.
                 The Court:    And  you bought the marijuana there in San
                               Diego?
                 Mr. Barreto:  Yes.
                 The Court:      And the  marijuana you  brought back  to
            Puerto                  Rico?
                 Mr. Barreto:  Other co-defendants.

            There  is some  ambiguity in  this exchange,  however, as  to
            whether "you" refers  to appellant himself  or to the  group.
            The PSI  made no reference to that  admission and we have not
            relied on it in determining that the district court's factual
            findings are supported by the evidence.

                                         -10-

U.S.S.G.    3B1.1, comment.  (n.3); United States  v. Sostre,
                                                _____________     ______

            No. 91-1918, slip op. at 12 (1st Cir., June 29, 1992); United
                                                                   ______

            States v. Sabatino, 943 F.2d 94,  101 (1st Cir. 1991).  It is
            ______    ________

            not  necessary that  the court  find evidence  of all  of the

            factors before enhancing a  defendant's sentence for his role

            as a leader or organizer.  United States v. Preakos, 907 F.2d
                                       _____________    _______

            7, 9 (1st Cir. 1990).

                      The  district  court's   findings  that   appellant

            purchased  airline tickets  and instructed  the co-defendants

            regarding  the transportation  of  the drugs  focused on  the

            appropriate factors.  See United States v. Panet-Collazo, 960
                                  ___ _____________    _____________

            F.2d  at 261.   From  these factual  findings, and  given the

            trial testimony  summarized above, it was  reasonable for the

            district   court  to   infer  that   appellant  exercised   a

            significant degree of decision-making authority in organizing

            the transportation of the drugs and exercised control over at

            least some of his co-conspirators.

                      In  light  of   these  reasonable  inferences,  the

            district court's decision to enhance appellant's sentence for

            his  role in the  offense as an  organizer or  leader was not

            clearly erroneous.  See United States v. Preakos, 907 F.2d at
                                ___ _____________    _______

            9-10  (enhancement  not  clearly  erroneous  where  defendant

            "exercised a  high  degree of  decision-making  authority  in

            organizing  a number  of  cocaine shipments  from Florida  to

            Maine" and "directed [his  distributors] with regard to their

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role  in the  various cocaine  shipments"); United  States v.
                                                        ______________

            Ortiz,  878 F.2d  125, 127  (3d  Cir. 1989)  (concluding that
            _____

            enhancement not  clearly erroneous where  defendant "made the

            decision regarding  the place, the quantity and  the price to

            be paid for  the cocaine" and "gave directions to some of the

            others  involved  in  the  transaction");  United  States  v.
                                                       ______________

            Castro,  908   F.2d  85,   90  (6th  Cir.   1990)  (upholding
            ______

            enhancement   where   defendant  directed   co-defendants  to

            transport drugs);  cf. United States v.  Sostre, No. 91-1918,
                               ___ _____________     ______

            slip op.  at 13-14  (finding that enhancement  for managerial

            role in the offense was clearly erroneous where defendant was

            merely a "steerer," directing buyers  to sellers, but did not

            exercise  control  over  any of  the  co-defendants);  United
                                                                   ______

            States  v.  Fuller,  897  F.2d 1217,  1221  (1st  Cir.  1990)
            ______      ______

            (finding that enhancement for  defendant's role in offense of

            "organizer,   leader,  manager  or  supervisor"  was  clearly

            erroneous where  defendant did  not exercise control  over or

            organize others in the commission of the offense).

                      At  his  sentencing hearing,  appellant  offered an

            alternative  interpretation of the  facts.  He  argued that a

            leader or organizer would not purchase airline tickets or put

            his name on luggage filled with cash since such a person does

            not want to be identified.  Appellant asserted, instead, that

            he was paid $1,000  to purchase the airline tickets  and that

            the drugs were to be delivered  to someone else, to whom they

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belonged.  In other  words, appellant took the  position that

            he was  working for someone else  who was the  true leader or

            organizer and that  appellant's limited responsibilities were

            insufficient to make  him a leader  or organizer.   Appellant

            did not offer  to submit any evidence  as to the  identity of

            his alleged boss  or the  payment of $1,000  although he  was

            given  numerous  opportunities  to  make  such  an  offer  in

            response to the PSI and at his sentencing hearing.2

                      Appellant's  argument that  his role  in purchasing

            tickets and the presence of his name on the tag  on a luggage

            full of  cash imply that he was not a leader or organizer may

            be reasonable.   However, the district court's interpretation

            of the evidence as  indicating a leadership role on  the part

            of appellant  is also  reasonable.   "The district  court was

            entitled to  choose between these  reasonable interpretations

            of the evidence."   United States v. Iguaran-Palmar, 926 F.2d
                                _____________    ______________

            7,  11 (1st  Cir. 1991).   "Where  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,  574  (1985);  United  States v.  Diaz-
            ____                                 ______________     _____

            Villafane, 874 F.2d at 49.
            _________

____________________

            2.  Even if the appellant had identified a co-conspirator who
            was above himself  in the  chain of command,  this would  not
            preclude a  finding that  the appellant  was an  organizer or
            leader.  To be an  organizer or leader within the meaning  of
            U.S.S.G.      3B1.1(a),  it  is  not   necessary  to  be  the
            participant most  involved in the commission  of the offense.
            United States v. Ortiz, 878 F.2d 125 (3d Cir. 1989).
            _____________    _____

                                         -13-

Regardless whether we  would have reached the  same

            conclusion about appellant's  role in the offense as  did the

            district  court,  we are  mindful of  our  duty to  "give due

            deference  to  the   district  court's  application   of  the

            guidelines to the facts."  18 U.S.C.   3742(e); United States
                                                            _____________

            v.  Veilleux, 949  F.2d 522,  524 (1st  Cir. 1991);  see also
                ________                                         ___ ____

            United  States  v. Dietz,  950 F.2d  50,  52 (1st  Cir. 1991)
            ______________     _____

            ("Because role-in-the-offense  determinations are necessarily

            fact-specific,  'considerable respect [must]  be paid  to the

            views of the nisi prius court.'" (citation omitted)).

                                   III.  CONCLUSION
                                         __________

                      The district court's  determination that  appellant

            was an organizer or  leader within the meaning of  U.S.S.G.  

            3B1.1(a) focused  on the appropriate enhancement  factors and

            is  supported by  the record.   We find  no clear  error and,

            therefore,  summarily affirm  pursuant  to 1st  Cir. Loc.  R.

            27.1.

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