United States v. DeLaRosa

• Court: Court of Appeals for the First Circuit
• Decided: July 31, 1998
• Docket: 97-2107
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 97-2107 UNITED STATES, Appellee,

v.

JOSE DELAROSA, A/K/A JOSE ACOSTA, Defendant, Appellant.

No. 97-2246

UNITED STATES, Appellee,

JOHN DELAROSA, Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

James L. Sultan and Rankin & Sultan on brief for appellant Jose DeLaRosa. John F. Cicilline on brief for appellant John Delarosa. Margaret E. Curran, United States Attorney, and Kenneth P. Madden, Assistant United States Attorney, on brief for appellee.

July 29, 1998

Per Curiam. Co-defendants Jose Delarosa and John Delarosa challenge adjustments to their respective sentences under U.S.S.G. 3B1.1(c) on both factual and legal grounds. We conclude that the adjustments were not clearly erroneous. As to each co-defendant, there was a sufficient factual basis for the role-in-offense adjustment under 3B1.1(c). Particularly, the co-defendants pled guilty to multiple violations of 21 U.S.C. 861 and so effectively admitted that they "employ[ed], hire[d], use[d], persuade[d], induce[d], entice[d], or coerce[d]" a minor (their 15-year-old cousin) in distributing heroin. In the context of the present case (where the minor was used to conduct heroin sales), those statutory terms fairly imply leadership of a sort justifying an upward adjustment under 3B1.1. The co-defendants' respective organizational, leadership, managerial, or supervisory roles in the heroin distribution operation were amply demonstrated by the undisputed facts about the heroin sales and the plausible inferences to be drawn therefrom. We will not second-guess the district court's choice among those plausible inferences. SeeUnited States v. Garcia, 34 F.3d 6, 10 (1st Cir. 1994). We also reject the co-defendants' arguments that impermissible double-counting occurred when the district court determined the base offense level under U.S.S.G. 2D1.2 and then enhanced that level under 3B1.1. The guidelines do not expressly prohibit a 3B1.1 adjustment to a 2D1.2 base offense level, and there is no compelling reason to ban concurrent use of the two sections. See United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994). The two sections address different factors: 2D1.2 addresses drug quantity and involvement of protected individuals and locations; 3B1.1 addresses hierarchical responsibility. And the two sections do not apply in lockstep: for example, selling drugs to a minor may entail a 2D1.2 base offense level, but not necessarily a 3B1.1 role-in-offense adjustment; selling drugs through a minor may entail, as here, consequences under both 2D1.2 and 3B1.1. Accordingly, we conclude that the 3B1.1 adjustment was applied here without impermissible double-counting. SeeGarcia, 34 F.3d at 11-12 (particular offense conduct, such as use of a weapon, may be a factor both in the base offense level and also in adjusting that level to reflect a higher degree of culpability). In reaching this conclusion, we ascribe no persuasive weight to United States v. Stevenson, 6 F.3d 1262, 1269-70 (7th Cir. 1993). Turning to the matter of criminal history, we cannot say, on the record presented for our review, that the district court was required to treat four of co-defendant Jose Delarosa's juvenile offenses as "related" for the purpose of calculating his criminal history points. Even though like sentences were imposed at the same time for all four offenses, there was no "persuasive indicium of formal consolidation." United States v. Correa, 114 F.3d 314, 317 (1st Cir. 1997). The claim that two of the four sentences may have been excessive is not cognizable in the context of this appeal, and, in any event, does not prove that the four offenses were formally consolidated. Finally, we are left with the failure-to-depart claim. It is evident to us from the district court's remarks ("even if I had [the authority to depart], I wouldn't because of the aggravating factors in this case") that the court rejected on discretionary grounds co-defendant John Delarosa's plea for a downward departure. Accordingly, we lack jurisdiction to review that decision. See United States v. Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996). Affirmed. See 1st Cir. Loc. R. 27.1.