United States Court of Appeals For the First Circuit
No. 22-1189
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES DE LA CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier & Fried was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
January 30, 2024 GELPÍ, Circuit Judge. Defendant James De La Cruz ("De
La Cruz") was indicted for conspiracy to distribute and to possess
with intent to distribute one kilogram or more of heroin and 400
grams or more of fentanyl as well as possession with intent to
distribute identical drugs at identical quantities. De La Cruz
pled guilty to both counts and now appeals to challenge the
substantive reasonableness of his 108-month sentence.1 Because De
La Cruz's within-the-range sentence is substantively reasonable,
we affirm.
I. BACKGROUND
A. Relevant Facts
We begin with a review of the facts leading to the
indictment. Given that this appeal follows De La Cruz's guilty
plea, we draw the facts from "the change-of-plea colloquy, the
presentence investigation report ("PSR"), and the sentencing
record." United States v. Diaz-Serrano, 77 F.4th 41, 44 (1st Cir.
2023).
1 DeLa Cruz raises additional arguments, including challenges to the constitutionality of the statute under which he was convicted by plea, in his pro se supplemental brief. Because these arguments were not raised below, they are reviewed for plain error. United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016). Given that De La Cruz did not address the plain-error test in his pro se brief, we deem these claims waived for lack of developed argumentation. See id.(holding that the defendant "waived review of his forfeited claims because he does not even attempt to meet the four-part test" for plain error).
- 2 - In September 2019, Homeland Security Investigations
("HSI") was informed by a confidential source ("CS") that De La
Cruz was in communication with a Mexican drug trafficking
organization. HSI directed the CS to set up a drug deal for the
purchase of heroin and fentanyl. To do this, the CS exchanged
text messages with an unidentified Mexican national who stated
that he would pass the CS's phone number to "his boy," a drug
courier in New York later identified as De La Cruz.
On September 23, 2019, De La Cruz called the CS to
discuss a drug purchase for ten kilograms of heroin and fentanyl.
They made several phone calls to each other over the following
days and set up an in-person meeting for October 3, 2019. On that
day, De La Cruz and the CS met in a Boston restaurant where they
agreed to exchange drug samples soon. On October 8, 2019, De La
Cruz gave the CS sample quantities of heroin and fentanyl at a
restaurant in Peabody, Massachusetts. Following this meeting, De
La Cruz and the CS continued to negotiate the specifics of the
transaction and agreed that De La Cruz would transport ten
kilograms of fentanyl and six kilograms of heroin from New York to
Massachusetts. They decided that the transaction would take place
in a hotel parking lot in Peabody, Massachusetts.
On October 21, 2019, De La Cruz and the CS exchanged
multiple phone calls to keep the latter apprised of the former's
arrival time. During these phone calls, De La Cruz told the CS
- 3 - that "his driver" would arrive in a separate vehicle. De La Cruz
and the CS met in a hotel parking lot in Peabody shortly before
2:30 p.m. The CS was previously fitted with an audio/video
recording device. De La Cruz entered the CS's vehicle where they
discussed the total weight of the drugs and prices. About ten
minutes later, a silver Mercedes Benz -- driven by Fatima Almonte
with Santos Roque ("Roque"), whom De La Cruz previously referred
to as "his driver," in the left rear passenger seat -- arrived and
parked next to the CS. Then, the CS entered the Mercedes while De
La Cruz sat on the hotel's back steps nearby.
In the Mercedes, Roque removed sixteen wrapped,
brick-shaped packages from a mechanical hide which he counted with
the CS. At that point, the CS gave a prearranged signal. Agents
moved in, arrested De La Cruz and Roque, and seized the sixteen
packages. The drugs were tested and determined to be 9,916 grams
of fentanyl and 5,833 grams of heroin. A small amount of fentanyl,
1.52 grams, was found in De La Cruz's vehicle as well.
B. Legal Proceedings
On October 22, 2019, De La Cruz and Roque were each
charged by way of complaint with one count of conspiracy to
distribute and to possess with intent to distribute one kilogram
or more of heroin and 400 grams or more of fentanyl, in violation
of 21 U.S.C. § 846, and one count of possession with intent to
distribute one kilogram or more of heroin and 400 grams or more of
- 4 - fentanyl, in violation of 21 U.S.C. § 841(a)(1). On November 20,
2019, De La Cruz was indicted on the same charges, and on May 5,
2021, he entered a straight guilty plea as to both counts.
The probation office prepared the PSR and determined
that the base offense level was 36 due to the combined converted
weight of the drugs, which was 30,636.37 kilograms. This amount
requires a statutory ten-year mandatory minimum sentence.
However, De La Cruz bypassed the mandatory minimum because he met
the safety valve criteria under 18 U.S.C. § 3553(f).2 Due to said
compliance, De La Cruz received a two-level reduction under
U.S.S.G. § 5C1.2. He also received an additional three-level
reduction for early acceptance of responsibility under U.S.S.G.
§§ 3E1.1(a)-(b). This resulted in a total offense level of 31,
and when combined with De La Cruz's criminal history category of
I, resulted in an advisory sentencing guidelines range of 108-135
months. De La Cruz did not object to the PSR.
At the sentencing hearing on October 6, 2021, the
district court noted at the outset that the advisory sentencing
guideline range was properly calculated. However, De La Cruz's
counsel requested a downwardly variant sentence of 36 months or at
least no higher than the 63 months that his co-defendant, Roque,
2The safety valve statute guarantees the benefit that courts will disregard "any statutory minimum sentence," which was done here. 18 U.S.C. § 3553(f).
- 5 - received. He drew attention to several aspects about De La Cruz:
his economic means, his limited ninth-grade education, and his
relatively scarce upbringing. De La Cruz also provided substantial
financial support to his mother who suffers from chronic health
conditions. These circumstances, De La Cruz's counsel posited,
constituted the driving forces behind De La Cruz's involvement in
the drug transaction. De La Cruz's counsel next emphasized that
he played a lesser role in the offense, essentially a middleman,
as the prices and quantities were determined by the CS and the
Mexican individual, and not him. Finally, De La Cruz's counsel
alluded to pharmaceutical executives for starting the opioid
epidemic and to a Department of Justice report to demonstrate that
a sentence above 63 months would have a marginal deterrent effect.
Considering these arguments and the sentencing factors
in 18 U.S.C. § 3553(a), the district court imposed a lower-end
sentence of 108 months of imprisonment followed by 3 years of
supervised release. The court found that De La Cruz and Roque
were not "in the same circumstance or the same situation" because
De La Cruz was the "manager" who referred to Roque as "his driver."
This employee-like reference was found to "establish a significant
difference in status with respect to the offense as a whole."
Additionally, the court factored into the imposed sentence the
"astonishing amount of fentanyl" being of "a much larger quantity"
than the court had seen and "just how dangerous this particular
- 6 - drug is." Accordingly, judgment was entered on October 8, 2021,
and De La Cruz timely appealed.
II. DISCUSSION
De La Cruz does not claim that the district court has
committed any procedural error, thus, our review is limited to the
substantive reasonableness of his 108-month sentence.3 We review
a preserved challenge to a sentence's substantive reasonableness
under an abuse-of-discretion standard.4 United States v.
Reyes-Gomez, 927 F.3d 9, 11-12 (1st Cir. 2019). Accordingly, our
review is highly deferential and "we cannot desultorily substitute
our judgment for that of the sentencing court." United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008); see also United States v.
3 See United States v. Prosperi, 686 F.3d 32, 42 (1st Cir. 2012) (stating that there are two aspects to analyzing the reasonableness of a sentence, procedural error and substantive reasonableness, and that "[i]f an appellant makes no claim of procedural error, as is the case here, we limit our review to the substantive reasonableness of the sentence"); see also Martin, 520 F.3d at 92. 4 We note that, while De La Cruz has preserved his general substantive-reasonableness challenge by advocating for a shorter sentence below, see Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020), and has also preserved the majority of his particular substantive-unreasonableness arguments by raising them below, cf. United States v. Colón-De-Jesús, 85 F.4th 15, 24-26 (1st Cir. 2023), some of the specific arguments may not have been preserved. However, because his arguments fail even under the abuse-of-discretion standard, we give him the benefit of the doubt and apply this more appellant-friendly standard of review as we consider his arguments. See United States v. Daoust, 888 F.3d 571, 575 n.2 (1st Cir. 2018) (noting that "in all events, the appellant's claim of error lacks merit under any conceivable standard of review").
- 7 - Clogston, 662 F.3d 588, 592 (1st Cir. 2011); United States v.
Taylor, 532 F.3d 68, 70 (1st Cir. 2008). A sentence is
substantively reasonable if its rationale is plausible and
resulted in a defensible outcome. United States v. De la
Cruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018). "There is no
one reasonable sentence in any given case but, rather, a universe
of reasonable sentencing outcomes." Clogston, 662 F.3d at 592.
All we must do is "simply . . . determine whether the sentence
falls within this broad universe" considering "a myriad of relevant
factors." United States v. Rivera-Morales, 961 F.3d 1, 21 (1st
Cir. 2020); see Clogston, 662 F.3d at 593. Therefore, the
defendant's burden in challenging the substantive reasonableness
of a sentence is heavy and even more so when the sentence is within
a properly calculated sentencing guideline range. De la
Cruz-Gutiérrez, 881 F.3d at 227. With this guidance, we determine
that De La Cruz has failed to meet this heavy burden.
De La Cruz argues, by piecing together various reasons
to support his only challenge to the substantive reasonableness of
his sentence, that 108 months of incarceration was greater than
necessary to achieve the stated goals of sentencing. We lay out
these lines of reasoning and address each in turn.
De La Cruz contends that his sentence is significantly
higher than the average sentence for most crimes of actual and
immediate violence. He specifically notes that those crimes are
- 8 - "serious violent crimes" because those defendants "didn't just
create a risk of death by overdose, but actually killed another
person." To prove his point, De La Cruz cites data from the United
States Sentencing Commission for defendants with a criminal
history of category I who, on average, received sentences that
were 20-89 months lower than his 108-month sentence for different
crimes than what he pled guilty to. De La Cruz also states that
he has met all the safety valve requirements under 18 U.S.C.
§ 3553(f), meaning he has truthfully provided all the information
and evidence that he had concerning the drug transaction. Thus,
De La Cruz claims that he was disproportionately punished for the
threat of harm as opposed to actual violence or harm.
This sentencing data, and De La Cruz's safety valve
eligibility, fail to assist him in carrying his heavy burden to
prove that his sentence was substantively unreasonable. Section
3553(a) lists the factors that a district court shall consider in
imposing a sentence. The district court is bound to consider "the
applicable category of offense committed" along with "the
applicable category of defendant" whereas De La Cruz only asks us
to consider the latter without the former. 18 U.S.C.
§ 3553(a)(4)(A). This illuminates the flaw in his reasoning.
Though De La Cruz characterizes his offense as some degree lesser
than the "serious violent crimes" he cites, we have recognized the
possession and distribution of fentanyl as "extremely dangerous
- 9 - based on [the drug's] potency and known lethality." United States
v. Heindenstrom, 946 F.3d 57, 65 (1st Cir. 2019) (internal
quotation omitted).
At the sentencing hearing, the district court
acknowledged the "astonishing amount of fentanyl" involved in this
transaction with the amount here consisting of a much "larger
quantity" than what the court had previously seen. The court
stated that deterrence and punishment were weighed in
consideration of the sentence "given not only the amount of drugs
but just how dangerous this particular drug is." This explanation
demonstrates that the sentencing court thoughtfully considered the
dangers of fentanyl in defensibly sentencing De La Cruz to 108
months of imprisonment. See Koon v. United States, 518 U.S. 81,
98 (1996) (highlighting that sentencing is a "traditional exercise
of discretion" which is "informed by [the sentencing court's]
vantage point and day-to-day experience in criminal sentencing").
Additionally, the sentences for other defendants with a
similar offense and criminal history category as De La Cruz further
demonstrate that De La Cruz's 108 months is a defensible outcome.
We have upheld a downwardly variant 108-month sentence for a
defendant guilty of attempted possession with intent to distribute
400 grams of fentanyl and a criminal history category of I. United
States v. Concepcion-Guliam, 62 F.4th 26, 36 (1st Cir. 2023). In
doing so, we noted that "[f]entanyl is an extremely dangerous drug,
- 10 - widely reputed to be the modern-day equivalent of the Grim Reaper."
Id. We have also upheld an upwardly variant 120-month sentence
for a defendant with a criminal history category of I who was
convicted for distribution of and possession with intent to
distribute fentanyl. United States v. Carvajal, 85 F.4th 602, 616
(1st Cir. 2023). Accordingly, we cannot say that the district
court's acceptance of the lower end of the sentencing guideline
range disproportionately punishes De La Cruz as he asserts.
Next, De La Cruz posits that he only played a low-level,
non-discretionary role in the transaction. Thus, his sentence was
harsher than necessary in two ways. First, the amount of drugs
involved in the transaction caused the sentencing guideline range
to increase, yet the drug quantity for this transaction was
determined by someone other than De La Cruz. Accordingly, the
converted weight of the drugs here was barely beyond the threshold
for a base level of 36 and if less, the base level would have been
34, resulting in a lower sentencing range. Second, a sentencing
disparity exists between him and his co-defendant, Roque.
According to De La Cruz, he and Roque essentially played similar
non-discretionary roles in the transaction where he "arrang[ed]
the mechanics of the transaction and [met] with the C[S] in
advance" and Roque ultimately delivered the drugs in the car with
the mechanical hide. Accordingly, De La Cruz maintains that his
sentence is too harsh under these circumstances.
- 11 - We disagree. First, who determined the quantity of drugs
bears no weight on the actual quantity of drugs involved in the
transaction. The fact that someone other than De La Cruz
determined the drug quantity to be sold in this instance does not
meaningfully affect the base level for his sentence. To state it
plainly, the base level was determined by the converted drug weight
that De La Cruz was accountable for.5 Second, a sentencing
disparity may only be ascertained between "two identically
situated defendants." United States v. Grullon, 996 F.3d 21, 35
(1st Cir. 2021) (citing United States v. Reyes-Santiago, 804 F.3d
453, 467 (1st Cir. 2015)); see also United States v.
González-Barbosa, 920 F.3d 125, 130-31 (1st Cir. 2019) (internal
citation omitted) (noting 18 U.S.C. § 3553(a)(6)'s aim towards
addressing national disparities amongst defendants with similar
records and permitting the avoidance of such disparities between
co-defendants). "Such cases, however, are unusual to say the
least." Grullon, 996 F.3d at 35-36 (citing Reyes-Santiago, 804
F.3d at 467). "[O]ur general rule of thumb is that a 'defendant
is not entitled to a lighter sentence merely because his
co-defendants received lighter sentences.'" United States v.
De La Cruz admitted involvement by pleading guilty and is 5
therefore accountable for the quantities of fentanyl and heroin in the unobjected PSR. See United States v. Orsini, 907 F.3d 115, 120 (1st Cir. 2018) (holding that a defendant accepts the PSR when he declines to object).
- 12 - Reyes-Rivera, 812 F.3d 79, 90 (1st Cir. 2016) (citations omitted).
"Without showing appropriate comparators," De La Cruz cannot claim
that a sentencing disparity exists between him and Roque.
González-Barbosa, 920 F.3d at 131.
The district court explained why it did not find De La
Cruz and Roque to be "in the same circumstance or the same
situation." Roque was subject to a much lower advisory sentencing
guideline range than De La Cruz. United States v. Bedini, 861
F.3d 10, 22 (1st Cir. 2017) (explaining that the defendants'
sentencing disparity claim failed, in part, because the other
defendants were "subject to lower applicable Guidelines ranges").
De La Cruz, by his own admission, referred to Roque as his driver
which "alone is enough to establish a significant difference in
status with respect to the offense as a whole." Id. (rejecting a
sentencing disparity claim, in part, because the other defendants
were junior members -- a driver and a translator -- within the
conspiracy). The district court acted well within its discretion
in finding that De La Cruz and Roque were not identically situated.
Thus, we defer to this factfinding which plausibly justified the
imposition of a higher sentence upon De La Cruz. Grullon, 996
F.3d at 36 (deferring to the sentencing judge's findings of fact).
Lastly, De La Cruz points to data from the National
Institute of Justice to demonstrate that little to no incarceration
would better protect the public from potential criminal conduct
- 13 - and that lengthy incarceration periods do little for deterrence.
He also argues that a lengthy incarceration does not promote
rehabilitation, therefore, a lesser sentence would have been
sufficient. The only question before us, however, is whether the
district court abused its discretion in sentencing De La Cruz to
108 months' imprisonment, within the properly calculated
sentencing guideline range, not whether longer or shorter
incarceration periods further the goal of deterrence. To the
former, the answer is simply no. The sentencing statute instructs
sentencing courts to consider deterrence "in determining the
particular sentence to be imposed." 18 U.S.C. § 3553(a). The
district court wove deterrence into the calculation of De La Cruz's
sentence finding that the particularly dangerous effect of
fentanyl and the quantity here deserved considerable weight.
Further, the district court explicitly stated that it considered
the § 3553 sentencing factors, and this statement is one we deem
meaningful. De la Cruz-Gutiérrez, 881 F.3d at 228. De La Cruz's
sentence is not implausible nor indefensible because he merely
disagrees with the district court's finding that a
within-the-range length would further deterrence. De La Cruz's
108-month sentence is entirely within the "universe of reasonable
and defensible sentences." Id. at 229 (citing United States v.
Torres-Landrúa, 783 F.3d 58, 69 (1st Cir. 2015)).
- 14 - III. CONCLUSION
For the foregoing reasons, the sentence imposed by the
district court is affirmed.
- 15 -