United States v. Garcia

• Court: Court of Appeals for the First Circuit
• Decided: May 1, 1997
• Docket: 95-1908
• Status: Published

Opinion

USCA1 Opinion

_________________________


          No. 95-1908


                              UNITED STATES OF AMERICA,


                                      Appellee,


                                         v.


                                   CEFERINO CRUZ,


                                Defendant, Appellant.


                             __________________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                   [Hon. Richard G. Stearns, U.S. District Judge]


                             __________________________


                                       Before


                             Selya, Acting Chief Judge,*


                            Bownes, Senior Circuit Judge,


                              Boudin, Stahl and Lynch,


                                   Circuit Judges.


                             __________________________


               Diana 
                     L. 
                        Maldonado, Federal Defender Office, on brief for

          appellant.

               Donald 
                      K. 
                         Stern, United States Attorney, Carole 
                                                               S. 
                                                                   Schwartz

          and Kevin P. McGrath, Assistant United States Attorneys, on brief

          for appellee.

                             __________________________

                                    July 28, 1997

                             __________________________


                                   OPINION EN BANC

                             __________________________


          __________________________



*Chief Judge Torruella did not participate in this proceeding. 



SELYA, Acting  
                                   Chief  
                                         Judge. This appeal involves a


          solitary issue: the propriety  vel non of the sentencing court's


          decision to enhance the defendant's offense level (and, therefore,


          increase the ensuing sentence) by reason of what the court deemed


          to be the defendant's aggravating role in the offense of


          conviction.  See USSG S3B1.1(c).


                    The appeal was originally argued to a panel of this


          court. On April 30, 1997, the panel, by a two-to-one vote,


          determined that the sentencing court had committed clear error in


          its application of the role-in-the-offense guideline. Because


          role-in-the-offense determinations are a frequent source of


          appellate litigation, and because the panel decision seemed out of


          line with our customary approach to such determinations (and,


          therefore, likely to create confusion in future cases), we elected


          to reconsider the matter en banc. To that end, we withdrew the


          panel opinion and solicited supplemental briefs from the parties.


          We now uphold the district court's application of the USSG


          S3B1.1(c).


                    We cull the facts from the plea colloquy, the presentence


          investigation report (PSI Report), and the transcript of the


          sentencing hearing.  See United States v. Tejada-Beltran, 50 F.3d


          105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d 50, 51


          (1st Cir. 1991). In conducting this tamisage, we are mindful that


          a sentencing court may consider facts contained in the PSI Report


          as reliable evidence.  See United 
                                            States v. Morillo, 8 F.3d 864,


          872 (1st Cir. 1993). Moreover, for sentencing purposes the court


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may rely upon evidence adduced at a coconspirator's trial as long


          as the defendant receives notice prior to its use and has the


          opportunity to challenge its reliability.   See United 
                                                                 States v.


          McCarthy, 961 F.2d 972, 979 (1st Cir. 1992);    United 
                                                                 States v.


          Berzon, 941 F.2d 8, 19 (1st Cir. 1991). Of course, this court may


          also consider facts which have been established by these methods.


                    On July 28, 1994, the defendant, Ceferino Cruz, greeted


          Pam Mersky, an undercover Drug Enforcement Administration (DEA)


          agent, as she entered La Tambora, a restaurant in Lawrence,


          Massachusetts, which Cruz owned and operated. The defendant had


          met Mersky one week earlier when he sold her 30.7 grams of crack


          cocaine and a handgun.   Alejandro Vega, later indicted as a


          coconspirator, approached Mersky inside the restaurant. Mersky


          told him that she wanted to buy crack cocaine. Vega initially


          feigned ignorance, but Mersky persisted. When she stated that the


          defendant previously had supplied her with crack, Vega engaged the


          defendant in a private conversation and thereafter told Mersky to


          come back in 45 minutes.


                    Mersky returned to La Tambora to find Vega, but not the


          defendant, present. A few minutes later Jeanette Marquez joined


Here, as the panel acknowledged, the PSI Report furnished the

          defendant the advance notice that our case law requires. At any

          rate, the facts which are critical to a proper resolution of this

          appeal derive directly from the PSI Report and the proceedings in

          which this defendant was personally involved.


               This purchase took place at La Tambora, as did several earlier

          purchases of drugs, firearms, and ammunition effectuated by a

          confidential DEA informant.


                                          4



them. Vega introduced Marquez as the defendant's girlfriend.


          Marquez (who was 14 years old and pregnant) wore a necklace


          showcasing the defendant's first name. Marquez delivered the crack


          cocaine to Mersky, and Mersky paid Vega for it. She then told Vega


          that she wanted to purchase a gun. Vega replied that "he" didn't


          realize that Mersky wanted a gun, too. In context, a factfinder


          reasonably could believe that the pronoun "he" referred to Cruz.


          In any event, Vega promised to contact Mersky after making further


          inquiries.


                    Later that afternoon Vega told Mersky that he would sell


          her a gun. Mersky met Vega a few blocks away from the restaurant


          and they walked to La Tambora together. Once inside, Vega


          conversed privately with the defendant and thereafter handed Mersky


          a bag containing a gun. The gun was frigid, suggesting that it had


          just been removed from a freezer or other cold storage.


                    Two subsequent events complete the picture. On August 3,


          Vega consulted the defendant before providing Mersky with bullets.


          On August 16, after Mersky expressed an interest in acquiring more


          crack and more firepower, Vega stated that guns were available


          immediately but that the crack had to be delivered. The pair


          strolled to La Tambora. Vega told Mersky to go behind the food


          counter. Marquez hailed the defendant. He appeared, saw Vega and


          Mersky, together, walked away without engaging in any conversation,


          and returned moments later with a bag containing two guns. The


          defendant handed the bag to Vega who, in turn, handed it to Mersky.


          She then inspected both weapons and purchased one of them.


5



Mersky and Vega then waited for the crack. When the


          courier (Sixto Garcia) arrived, he nodded to them, but met


          privately with Cruz. Mersky and Vega walked behind the food


          counter; Garcia handed Cruz a plastic bag containing the crack


          cocaine; Cruz gave the bag to Mersky; and Mersky, in turn, paid


          Vega for it.


                    Cruz was indicted and convicted on charges of conspiracy


          to possess cocaine base (i.e., crack cocaine) with intent to


          distribute, see 21 U.S.C. S 846, and conspiracy to sell firearms


          illegally, see 18 U.S.C. S 922(a)(1)(A). The drug offense drove


          the sentencing calculus. The PSI Report urged, inter alia, a two-


          level upward adjustment for the defendant's leadership role.  See


          USSG S3B1.1(c). In calculating the guideline sentencing range


          (GSR), the district court accepted this suggestion (overriding the


          prosecutor's contrary recommendation) and increased the defendant's


          offense level accordingly. This adjustment, together with other


          computations (none of which is challenged here), yielded a GSR of


          135 to 168 months. The lower court then imposed an incarcerative


          sentence of 165 months. It is undisputed that, absent the role-in-


          the-offense adjustment, the GSR (and presumably the sentence) would


          have been less onerous.


                    The determination of an individual's role in committing


          an offense is necessarily fact-specific.    See United 
                                                                 States v.


          Graciani, 61 F.3d 70, 75 (1st Cir. 1995). Accordingly, appellate


Under the applicable grouping rules, the counts of conviction

          are treated as separate units.  See USSG S3D1.2.


                                          6



review must be conducted with considerable deference. Absent an


          error of law 
                        and it is not seriously suggested that such an error


          infected the sentencing process in this case      the sentencing


          court's determinations are to be set aside only for clear error.


          See id.


                    Role-in-the-offense adjustments address concerns of


          relative responsibility.  See USSG S3B1.1(c), comment. (backg'd).


          In this vein, the guideline provides, among other things, that "if


          the defendant was an organizer, leader, manager, or supervisor in


          any criminal activity" involving one to three other participants,


          the offense level should be increased by two levels. USSG


          S3B1.1(c). Such an increase is justified if the sentencing court


          supportably finds that (1) the criminal enterprise involved at


          least two complicit participants (of whom the defendant may be


          counted as one), and (2) the defendant, in committing the offense,


          exercised control over, organized, or was otherwise responsible for


          superintending the activities of, at least one of those other


          persons. See 
                       Morillo, 8 F.3d at 872; 
                                               United States
                                                             v. 
                                                                Savoie, 985


          F.2d 612, 616 (1st Cir. 1993); United States v. Akitoye, 923 F.2d


          221, 227 (1st Cir. 1991). The government bears the burden of


          proving that a defendant qualifies for an upward role-in-the-


The fact that the government had agreed not to request the

          enhancement, and did not do so, does not compress the district

          court's discretion. The sentencing judge has the ultimate

          responsibility for the sentence and may decide to pursue matters in

          the teeth of an agreement by both sides to go in a different

          direction.  See United 
                                 States v.  Vaknin, 112 F.3d 579, 585 (1st

          Cir. 1997).


                                          7



offense adjustment, and must carry that burden by a preponderance


          of the evidence.  See  United 
                                         States v. Voccola, 99 F.3d 37, 44


          (1st Cir. 1996); United 
                                  States v.  Ortiz, 966 F.2d 707, 717 (1st


          Cir. 1992).


                    In this instance, we think that the evidence, viewed as


          a whole, supports the district court's finding. The record


          suggests that Cruz was at the center of a well-organized series of


          drug and weapon sales, conducted at or through the restaurant that


          he owned and operated. The evidence also suggests that Cruz


          involved various individuals not only as facilitators but also as


          go-betweens in an effort to limit his own apparent involvement.


          This pattern is familiar in many sophisticated but illegal


          transactions.  See, e.g., United 
                                           States v. Catlett, 97 F.3d 565,


          569-70 (D.C. Cir. 1996); 
                                  United States
                                                v. 
                                                   Evans, 92 F.3d 540, 541-


          42 (7th Cir.), cert. denied, 117 S. Ct. 537 (1996).


                    The district judge made a specific finding that Cruz was


          "the motivating principal in this drug distribution scheme" and


          that he was a manager vis-a-vis both Vega and Marquez. Leaving


          Vega aside, if Cruz supervised Marquez in connection with the July


          28 transaction, that incident alone would provide an adequate basis


          for the enhancement.  See  Voccola, 99 F.3d at 43-44 (explaining


          that a single directed transaction is enough to confer organizer or


          manager status); see also USSG S3B1.1, comment. (n.2). And the


          district court's finding is sustainable in that regard. After all,


          a defendant's role in the offense can be proved wholly by


          circumstantial evidence and the circumstances here adequately


8



support the inferences that the district court drew from them.


                    In particular, the court's specific determinations that


          Cruz, age 44, "provided the impetus for the crime," "supplied the


          product," and, in the bargain, exercised dominance over his 14-


          year-old paramour in regard to the July 28 transaction, while not


          unarguable, pass muster under the clearly erroneous standard. Cruz


          had been enmeshed in trafficking with Mersky earlier. He owned La


          Tambora, the locus around which the illicit activity pirouetted.


          Moreover, Cruz was probably the "he" referred to by Vega as not


          knowing that Mersky wanted a gun "too." The preponderance standard


          obtains during the sentencing phase of a criminal case and the odds


          are certainly better than even that Marquez, 14 years old and


          pregnant, was acting at someone else's direction in serving as the


          transporter in a multi-party drug transaction. We think that most


          people would say that, as between Cruz and Vega, the strong


          likelihood is that Marquez acted at the direction of her much older


          boyfriend. Surely, a reasonable trier could conclude that this


          deduction is more likely true than not. Thus, the district court's


          appraisal that Cruz oversaw Marquez meets the preponderance test


          because of its logical force and inherent probability. 


                    Despite the lessened burden of proof            "fair


          preponderance" rather than "beyond reasonable doubt"     and the


          deferential standard of review which pertain here, we recognize


Even if Vega and Cruz jointly controlled Marquez, Cruz would

          still be a manager under the guidelines. 
                                                  See USSG S3B1.1, comment.

          (n.4).


                                          9



that whether Cruz might be deemed an organizer or manager is a


          close question. Yet it would not profit us to dwell on the


          inferences that the defendant would have us draw from the predicate


          facts. While those inferences are rational and the scenario to


          which they lead is possible, the trial judge eschewed them in favor


          of different, equally permissible inferences, leading to a


          different scenario   a scenario that depicts the defendant as a


          manager. In sentencing, as elsewhere in the law, when competing


          inferences plausibly can be drawn from a set of facts, the


          factfinder's choice between them cannot be clearly erroneous. See


          United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).


                    We need go no further. In the circumstances at bar, the


          determination of the defendant's role in the offense is fact-


          specific, and the facts of record reasonably can be interpreted to


          attribute managerial status, more likely than not, to him. That


          ends the matter: close, factbound questions are grist for the


          district court's mill, not for second-guessing by appellate judges


          perusing a cold record.


Affirmed.


Bownes, Senior 
                                   Circuit 
                                           Judge. (dissenting). I dissent


          from the en banc opinion because I continue to think that the


          original panel opinion was correct.


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