United States v. Gonzalez-Velez

587 F.3d 494, 2009 WL 4068606

• Court: Court of Appeals for the First Circuit
• Decided: November 25, 2009
• Docket: 07-2277
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 07-2277

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL A. GONZÁLEZ-VÉLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. Senior District Judge]

Before

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

María H. Sandoval, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief for appellee.

November ##, 2009 TORRUELLA, Circuit Judge. In this appeal, defendant-

appellant Rafael A. González-Vélez ("González-Vélez") challenges

his sentence following his conviction for participating in a

conspiracy to distribute narcotics. The 135-month sentence

currently on appeal was imposed on re-sentencing after a previous

decision by this court, in which we affirmed the appellant's

conviction but vacated his sentence due to the sentencing court's

failure to make an individualized drug quantity determination. See

United States v. González-Vélez, 466 F.3d 27 (1st Cir. 2006).

After careful consideration, we affirm the appellant's new

sentence.

I. Background

As discussed in our prior opinion, the facts underlying

this appeal arise from an investigation of the drug point known as

"Las Malvinas" in the Luis Lloréns Torres housing project in Puerto

Rico. José Luis Rivera González, a/k/a "Luis Lloréns," ("Luis

Lloréns") ran the drug point from 2000 until his death in 2002.

The FBI and the Puerto Rico Police Department ("PRPD") investigated

the drug point between the summer of 2001 and October 2002. The

investigation resulted in a grand jury indictment against nine

individuals, including the appellant. González-Vélez was charged

with one count of conspiracy to distribute controlled substances,

including powder cocaine, cocaine base, heroin, and marijuana, in

violation of 21 U.S.C. § 846. González-Vélez's role in the charged

-2- conspiracy was that of a wholesale supplier of drugs, particularly

powder cocaine, to the drug point.

González-Vélez was tried jointly with José A. Ramos-

Romero ("Ramos"), a processor of drugs at Las Malvinas. In

addition to asking the jury to render a verdict as to the

defendants' participation in the conspiracy, the judge also gave

the jury a special verdict form asking it to decide whether or not

the amount of cocaine involved in the conspiracy was at least five

kilograms. The jury found González-Vélez and Ramos guilty of

conspiracy, and also found that the amount of cocaine in the

conspiracy was at least five kilograms.

On December 23, 2004, the district court held a

sentencing hearing for González-Vélez. The Pre-Sentence Report

("PSR") recommended a Base Offense Level ("BOL") of 32, based on

the jury's finding that the drug quantity in the conspiracy was at

least five kilograms. The district court adopted this reasoning

and assigned a BOL of 32. González-Vélez had argued to the court

that it needed to make an individualized drug quantity

determination, but the court concluded that drug quantity was a

matter reserved to the jury, and that the jury had rendered a

sufficient finding.

González-Vélez also objected to the PSR on the ground

that he was entitled to a downward adjustment for acceptance of

responsibility under U.S.S.G. § 3E.1. After the verdict and before

-3- the December 23, 2004 sentencing hearing, González-Vélez had

submitted to the court a written statement admitting to

participating in the sale of drugs at the Lloréns Torres housing

project, stating that he was sorry for the damage he had done to

society and to his family, and explaining that he had gone to trial

only because the drug amount with which he was being charged

overstated his role in the conspiracy. The probation officer who

prepared the PSR recommended that the adjustment not be granted

because González-Vélez had gone to trial and because González-Vélez

had indicated in an interview with the probation officer that he

thought the government had a weak case. The court accepted the

probation officer's view and denied the adjustment, noting that

González-Vélez "went to trial at his own choice, with adequate

counsel," and saying that it would not "take into consideration"

the fact that the pre-trial plea negotiations were "not fruitful."

Based on a BOL of 32 and a criminal history category of I, the

applicable Sentencing Guidelines sentence range ("GSR") was

calculated to be 121 to 151 months' imprisonment; the court

sentenced González-Vélez to 135 months. González-Vélez timely

appealed.

In his first appeal, González-Vélez challenged both his

conviction and his sentence. In challenging his conviction,

González-Vélez argued, inter alia, that the judge erred in asking

the jury to render a special verdict as to the conspiracy-wide

-4- cocaine amount. Instead, González-Vélez argued, the judge should

have asked the jury to render special verdicts as to the amount of

cocaine each defendant handled individually. González-Vélez did

not challenge the jury's finding that the conspiracy involved at

least five kilograms of cocaine. In challenging his sentence,

González-Vélez argued that the district court should have made an

individualized drug quantity determination for sentencing purposes.

In our decision in González-Velez's first appeal, we

upheld his conviction, but vacated the sentence and remanded the

case for re-sentencing. As to the conviction for conspiracy, we

held that the court's instruction to the jury to find the

conspiracy-wide amount of cocaine did not constitute error because

the conspiracy-wide amount was a factor in sentencing, rather than

a factor in conviction.1 González-Vélez, 466 F.3d at 36. As to

the sentence, however, we held that the district court's failure to

make an individualized finding as to drug quantity was reversible

error. Id. at 38. We noted that in a conspiracy case, the

district court can rely on the conspiracy-wide drug quantity

determination, rather than an individualized drug quantity

determination, for the "statutory maximum penalty." Id. at 36

(emphasis added). Specifically, we noted that any sentence longer

1 González-Vélez also challenged his conviction on the ground that there was insufficient evidence of his participation in the conspiracy. We rejected this argument, noting that there was abundant evidence in the record of González-Vélez's participation in the conspiracy. Id. at 37-38.

-5- than the maximum corresponding to the conspiracy-wide amount could

trigger review under Apprendi v. New Jersey, 530 U.S. 466 (2000),

and Blakely v. Washington, 542 U.S. 296 (2004), which require a

jury to make an individualized factual finding for any element that

increases a sentence beyond the statutory maximum. González-Vélez,

466 F.3d at 36-37. In González-Vélez's case, however, the

sentencing court relied on the jury's conspiracy-wide drug quantity

determination to calculate the actual sentence (by using the

conspiracy-wide quantity to compute the BOL), rather than the

maximum sentence. We found that this contravened our holding in

United States v. Colón-Solís that "when a district court determines

drug quantity for the purpose of sentencing a defendant convicted

of participating in a drug trafficking conspiracy, the court is

required to make an individualized finding as to drug amounts

attributable to, or foreseeable by, that defendant." United States

v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004), quoted in

González-Vélez, 466 F.3d at 38. In reaching this conclusion, we

further specified that "all of the drugs in a conspiracy may not be

automatically assigned to an individual defendant." Id. (emphasis

added) (citing United States v. Sepúlveda, 15 F.3d 1161, 1197 (1st

Cir. 1993)).

Because of the sentencing error, we remanded the matter

of González-Vélez's sentence "for an individualized determination

of drug quantity attributable to [González-Vélez]." Id. at 41.

-6- However, "[w]ith respect to all other matters, we affirm[ed] the

district court." Id. (emphasis added).

Upon remand for re-sentencing, the district court held a

pre-sentence hearing on March 27, 2007, where new evidence bearing

on drug quantity was presented, followed by a sentencing hearing on

July 12, 2007, where legal arguments were made and a new sentence

rendered by the court. The same judge who had presided over

González-Vélez's criminal trial also presided over the new round of

pre-sentence and sentencing hearings. At the pre-sentence hearing,

the court advised González-Vélez that the case had been remanded by

the appeals court for the sole purpose of making an individualized

drug quantity determination and that the prior objections to the

PSR had been addressed at the original sentencing hearing.

González-Vélez nevertheless renewed his request for a two-level

downward adjustment for acceptance of responsibility. The court

ultimately concluded, based on its examination of the sentencing

memoranda and the evidence presented during the trial and the

various sentencing hearings, that González-Vélez "handled,

anticipated handling, or could reasonably foresee the possession

with intent to distribute of more than five but less than 15 kilos

of cocaine," and explained its reasons for the determination. As

before, that determination corresponded with a BOL of 32, which in

turn resulted in a GSR of 121 to 151 months' imprisonment. The

-7- court again selected the 135-month sentence previously imposed.

González-Vélez now appeals this sentence.

As González-Vélez's main argument on appeal challenges

the district court's individualized drug quantity determination for

sentencing purposes, we summarize the evidence in the record

relevant thereto.

A. Testimony of Ángel Obregón

One of the government's key witnesses at both González-

Vélez's criminal trial and at the pre-sentence hearing was Ángel

Obregón ("Obregón"). Obregón testified at the March 27, 2007 pre-

sentence hearing that he worked under Luis Lloréns at Las Malvinas.

Obregón testified about drug sales at Las Malvinas in various

proceedings: before the Grand Jury in 2003, at González-Vélez's

criminal trial, and at the March 27, 2007 pre-sentence hearing. At

the criminal trial and before the grand jury, Obregón indicated

that there were at least four retail drug sellers at the drug

point. Obregón also testified at the trial that Luis Lloréns told

him that the drug point sold 1/8 kg of cocaine per week. Obregón

testified at the pre-sentence hearing that he saw González-Vélez at

the drug point "almost everyday," and that whenever González-Vélez

came to the drug point, Luis Lloréns would pay González-Vélez with

money from drug sales at the drug point.

Obregón testified about González-Vélez's cocaine sales to

Luis Lloréns a total of six times in various proceedings. On each

-8- occasion he was asked in what quantity González-Vélez sold cocaine

to Luis Lloréns. On the first occasion, before the Grand Jury in

2003, Obregón said González-Vélez provided one-eighth kilogram

quantities ("eighths"). However, in later proceedings, Obregón

testified that González-Vélez supplied cocaine in both eighths and

one-half kilogram ("half") quantities. Furthermore, at the

criminal trial, Obregón admitted that he did not know the

difference between an eighth, a half, and one kilogram of cocaine.

Obregón also gave inconsistent testimony about how many times he

saw González-Vélez sell cocaine to Luis Lloréns. At the trial,

Obregón initially said he did not remember how many sales he

witnessed. Later, he said he saw more than 10 sales. Later still,

he testified that he had only seen González-Vélez sell drugs "a

couple of times."

At the March 27, 2007 pre-sentence hearing, on cross-

examination by González-Vélez's counsel, Obregón admitted that he

had an extensive history of violent crimes and that he was

cooperating with the government. Defense counsel also challenged

Obregón's credibility by pointing out that at the trial, Obregón

said he did not know the difference between one eighth, one half,

and one kilogram. Obregón responded that he did know that an

eighth of a kilogram is less than one kilogram. Obregón was also

unable to correctly calculate his age, claiming he was 15 or 16 in

1998 but that he was only 22 as of March 27, 2007.

-9- B. Testimony of Héctor Luis Rivera-González

Héctor Luis Rivera-González ("Rivera-González") was the

nephew of Luis Lloréns. He testified at the March 27, 2007 pre-

sentence hearing that he worked as a drug peddler at the drug point

for a total of 32 days, from April 8, 2002 until he was arrested

for robbery on May 10, 2002. Rivera-González testified that while

he worked at the drug point, it was open every day and that it sold

cocaine, crack, heroin, and marijuana. He identified González-

Vélez as a wholesale supplier of drugs to the Las Malvinas drug

point. Rivera-González said that González-Vélez sold cocaine to

Luis Lloréns on credit. Rivera-González also said he saw González-

Vélez at the drug point twice a week.

Rivera-González provided certain details about the

packaging of cocaine. The government asked him, "specifically

referring to cocaine, powder cocaine," how cocaine was packaged and

sold. Rivera-González testified that Luis Lloréns would give him

"packages" of powder cocaine containing 25 "baggies" each, which

would retail for $5 per "baggie." Rivera-González testified that

he sold "five, six, or seven" "packages" worth of cocaine per week.

After asking Rivera-González about the packaging of cocaine, the

government asked, "[W]hen you would sell cocaine at that drug

point, were you the only seller selling for your uncle at that drug

point at the time?" Rivera-González said that he was not the only

-10- seller, and that "three or four" other people "would sell for" Luis

Lloréns at the drug point.

C. Testimony of FBI Special Agent William Ortiz and Puerto Rico Police Agent Héctor A. Orta-González.

FBI Special Agent William Ortiz ("Ortiz") and Puerto Rico

Police Agent Héctor A. Orta-González ("Orta-González") testified at

the March 27, 2007 pre-sentence hearing. Both agents participated

in the investigation into drug sales at Las Malvinas. Agent Ortiz

testified that González-Vélez was one of four wholesale drug

suppliers to Las Malvinas. Both agents testified that they

frequently observed González-Vélez at the drug point. On cross-

examination, both agents conceded that González-Vélez did not

appear at all in the 730 hours of surveillance tape the FBI took at

the drug point. However, Agent Orta testified that González-Vélez

would always enter the drug point through the rear entrance, where

there were no surveillance cameras.

D. Recording By Jesús Samuel Matías-Cruz

Agent Orta also testified about the contents of a

recording secretly made by Jesús Samuel Matías-Cruz ("Matías-

Cruz"), who worked for Luis Lloréns at the drug point.2 In the

recording, González-Vélez can be heard talking with Luis Lloréns

about the packaging and processing of cocaine, as well as about

when Luis Lloréns would pay González-Vélez for cocaine the latter

2 The recording itself was also part of the record before the sentencing court.

-11- had supplied. González-Vélez is also overheard saying that a pot

that was being used by one of Luis Lloréns's workers to "cook"

crack cocaine had broken.

E. Other Evidence

The judge heard González-Vélez's allocution at the

March 27, 2007 sentencing hearing. González-Vélez stated that he

had always intended to plead guilty to the conspiracy charge, but

that he went to trial on the advice of his trial counsel because he

could not reach an agreement with the prosecution on the amount of

drugs he handled. In order to explain his presence at Las Malvinas

during the period of the investigation, González-Vélez introduced

into evidence a certificate from the Puerto Rico Department of

Housing and Public Administration showing that he was a resident of

the Lloréns Torres housing project from 1999 until 2003.

F. Defendant's Sentencing Memo

On April 30, 2007, prior to the sentencing hearing,

González-Vélez filed a sentencing memorandum with the court.3

González-Vélez argued that the proper amount of cocaine that could

be attributed to him for sentencing purposes was one and five-

sixteenth (15/16) kilograms. He reached this number by multiplying

one-eighth of a kilogram -- the lowest amount that Obregón

testified to seeing González-Vélez sell to Luis Lloréns -- by ten

3 González-Vélez submitted a second sentencing memorandum on May 22, 2007 that expanded on the facts presented in the first memo and provided additional legal arguments.

-12- -- the maximum number of times Obregón said González-Vélez sold

cocaine to Luis Lloréns -- and then adding the one-sixteenth of a

kilogram amount mentioned in the recording by Matías-Cruz. Based

on this figure, González-Vélez argued that his BOL should be 26.

G. The District Court's Sentence

The district court held the sentencing hearing on

July 13, 2007, wherein it recognized its obligation, pursuant to

this Court's mandate, "to make an individualized finding as to the

amount of drugs attributable to [González-Vélez] in the instant

offense of conviction." The district court then stated its

determination that González-Vélez "handled, anticipated handling,

or could reasonably foresee the possession with intent to

distribute . . . more than five but less than 15 kilos of cocaine,"

and proceeded to recount its reasons for that determination. The

court first noted that evidence obtained from the drug point

indicated that each "baggie" of cocaine sold at the point contained

one-tenth of a gram of cocaine. Rivera-González testified that

each "package" contained twenty five "baggies," meaning that each

package contained 2.5 grams of cocaine. Based on Rivera-González's

testimony that he sold from five to seven "packages" per day, the

district court concluded that "even using a conservative figure

[Rivera-González] would distribute at least 35 packages a week,"

for a total of 87.5 grams of cocaine. However, the court also

noted that both Rivera-González and Obregón testified that there

-13- were four to five sellers at the point. Thus, the court held that

the "evidence presented certainly corroborates the testimony of

both [Rivera-González] and Obregón that at least one eighth [of a

kilogram, or 125 grams] of cocaine was sold" per week at the drug

point.

The court then recounted the testimony of Agents Orta and

Ortiz that they both observed González-Vélez at the drug point on

multiple occasions during the course of their investigation, which

began in the summer of 2001 and was continuing until at least

August of 2002. The court also relied on the recording by Matías-

Cruz, in which González-Vélez is heard discussing retail drug sales

and the breaking of the pot that was being used to cook crack

cocaine. The court noted that González-Vélez is heard saying that

he was waiting to be paid for an eighth of cocaine he had sold to

Luis Lloréns. Based on this evidence, the court found that

González-Vélez "knew . . . the amount of drugs being distributed

and/or could reasonably foresee that those amounts were being sold

at the drug point supplied by him." In reaching its conclusion,

the court also found that González-Vélez "had extensive knowledge

of the drug trafficking activities that took place at the Las

Malvinas drug point."

In determining the proper guideline range, the court

stated:

[T]he applicable case law indicates that in a drug conspiracy the applicable statutory

-14- maximum imprisonment term is derived from a conspiracy-wide perspective. That does not mean that the Defendant must have personally handled the drugs for which he is being held responsible. He could be held responsible for relevant conduct, which could include the acts of other conspiracy members, as long as their conduct was reasonably foreseeable for the Defendant.

Based on its finding that González-Vélez knew how much cocaine was

being sold at Las Malvinas, the court held that "if at least one

eighth of cocaine was sold every week during the ten month

conspiracy . . . [González-Vélez] should be held responsible for at

least five but not more than 15 kilos of cocaine." When combined

with a Criminal History Category of I, the court explained, this

amount of cocaine triggered a BOL of 32 and a corresponding GSR of

121 to 151 months.

The court then said that it had "reviewed the applicable

guideline adjustments" and "considered the other sentencing factors

set forth in [18 U.S.C. § 3553(a)]." The court also stated that it

found the Pre-Sentence Report (PSR) to have "adequately applied the

Guideline computations and satisfactorily reflect[ed] components of

[the] offense." The court had previously held, at the March 27,

2007 hearing, that since the PSR had not changed since the original

sentence was handed down, any objections to the original report

that had already been ruled on were "taken care of and ruled upon

by the Court." Ultimately, the court sentenced González-Vélez, as

before, to 131 months.

-15- II. Discussion

González-Vélez makes two main arguments on appeal.

First, he argues that the district court committed reversible error

in its drug quantity determination because the evidence does not

support attributing five kilograms of cocaine to him. Second,

González-Vélez argues that the district court erred in failing to

state its reasons for denying his request for a 2-level reduction

for acceptance of responsibility.4 González-Vélez does not

challenge the jury's original finding that the conspiracy as a

whole involved at least five kilograms of cocaine.

4 González-Vélez makes two additional arguments, neither of which merits serious consideration.

First, he argues that the district court violated 18 U.S.C. § 3553(c)(1) by failing to explain why it chose a BOL of 32. However, 18 U.S.C. § 3553(c)(1) does not require the court to explain why it chose an offense level. Rather, once a court has determined a GSR based on the offense level, if the sentence range exceeds 24 months, § 3553(c)(1) requires the court to explain why it chose a particular sentence. Thus, 18 U.S.C. § 3553(c)(1) does not come into play until after a decision is made on the appropriate offense level.

Second, González-Vélez argues that the district court committed a "technical violation" by not stating in Section IV(B) of the Statement of Reasons why it chose to impose a sentence in the middle of the guideline range, and that this violation constitutes reversible error. González-Vélez does not indicate how he was prejudiced by this supposed "technical violation" in any way. Nor does he provide any support for his argument that this constitutes reversible error. We therefore treat this argument as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.").

-16- A. Applicable Law and Standard of Review

A trial court's "approximation of drug quantity will be

upheld 'as long as it represents a reasoned estimate of quantity.'"

United States v. Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)

(quoting United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995)).

Such a determination need only be supported by a preponderance of

the evidence. Sepúlveda, 15 F.3d at 1198. Moreover, the drug

quantity determination "is not required to be an exact

determination but rather only a reasoned estimate." United States

v. Rodríguez, 525 F.3d 85, 107 (1st Cir. 2008).

However, as we explained in González-Vélez's previous

appeal, in a conspiracy case, the sentencing court cannot

automatically assign the conspiracy-wide amount to a defendant.

See González-Vélez, 466 F.3d at 38. Rather, the sentencing court

must make "an individualized finding as to drug amounts

attributable to, or foreseeable by, that defendant." Id. (quoting

Colón-Solís, 354 F.3d at 103). When determining the amount of

drugs attributable to a defendant for sentencing purposes, the

district court may examine the charged conduct plus the "relevant

uncharged conduct." United States v. García, 954 F.2d 12, 15 (1st

Cir. 1992) (internal citations omitted) (emphasis added).

"Relevant" uncharged conduct is conduct that is "reasonably

foreseeable by the defendant and committed in furtherance of the

conspiracy." Id. "'Thus, each co-conspirator is responsible not

-17- only for the drugs he actually handled but also for the full amount

of drugs that he could reasonably have anticipated would be within

the ambit of the conspiracy.'" Rodríguez, 525 F.3d at 107 (quoting

United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004)).

We review the sentencing court's interpretation of the

sentencing guideline de novo and its determination of facts for

clear error. United States v. Sicher, 576 F.3d 64, 70 (1st Cir.

2009). The application of the guidelines is reviewed on a "sliding

scale" between de novo review and clear error review "depending on

whether the trial judge's conclusion is more law-oriented or more

fact-driven." Id. n.6. Here, the application of the relevant

sentencing guideline requires a drug quantity determination, which

is a purely factual issue; therefore, it may only be set aside if

it is clearly erroneous. United States v. Olivero, 552 F.3d 34, 38

(1st Cir. 2009); see also Santos, 357 F.3d at 141; United States v.

Sklar, 920 F.2d 107, 110-11 (1st Cir. 1990). Under the clear error

standard, "[w]here there are two permissible views of the evidence,

the factfinder's choice between them cannot be clearly erroneous."

Tsoulas v. Liberty Life Assur. Co., 454 F.3d 69, 76 (1st Cir. 2006)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).

B. Drug Quantity Determination

In González-Vélez's previous appeal, this court vacated

his sentence and remanded to the district court with instructions

to make an individualized finding as to whether he either "handled

-18- [or] anticipated handling" five kilograms of cocaine or could

"reasonably foresee" that the conspiracy would handle that amount.

González-Vélez, 466 F.3d at 38. In the instant appeal, González-

Vélez argues that the district court again failed to properly carry

out this obligation, and thus, clearly erred in basing his sentence

on the five kilogram conspiracy-wide amount. First, González-Vélez

argues that the district court improperly relied upon the testimony

of Obregón and Rivera-González in determining drug quantity, as

these witnesses lacked credibility. Second, he argues that the

court erred in its calculations underlying its drug quantity

determination. In particular, he argues that the court erred in

calculating both the drug amount he personally handled and the

amount of cocaine sold at Las Malvinas each week. Finally, he

argues that the district court wrongly concluded that he could

reasonably foresee the full amount of cocaine distributed by the

conspiracy. We address these arguments in turn.

1. Credibility of Obregón and Rivera-González

First, González-Vélez argues that the district court

erred in relying on the testimony of Obregón and Rivera-González as

the basis for its drug quantity determination because they were

unreliable witnesses. González-Vélez points out that Obregón gave

inconsistent testimony both as to the number of times González-

Vélez sold cocaine to Luis Lloréns and as to the amount of cocaine

involved in each sale. González-Vélez also argues that Obregón

-19- lacked the intellectual capacity to be a reliable witness, as

manifested by his inability to calculate his own age. Furthermore,

González-Vélez argues that Obregón had a motive to lie because he

was a cooperating witness facing charges for involvement in the

conspiracy, and that he was receiving payment for his testimony.

Finally, González-Vélez points to Obregón's extensive criminal

history.

As for Rivera-González, González-Vélez points out that

Rivera-González's testimony is based on his selling drugs at the

drug point for only 32 days. Moreover, Rivera-González only

personally observed one sale by González-Vélez to Luis Lloréns; all

of his other knowledge was hearsay testimony based on what Luis

Lloréns, who died in 2002, purportedly told him.

A district court has broad discretion to make credibility

judgments relevant to sentencing. See, e.g., Huddleston, 194 F.3d

at 224; Webster, 54 F.3d at 5. We will overturn a district court's

credibility determination only if "we have a definite and firm

conviction that a mistake has been committed." United States v.

Jones, 187 F.3d 210, 214 (1st Cir. 1999) (internal quotation marks

omitted). A mistake may have been made if "[d]ocuments or

objective evidence . . . contradict the witness's story," or if the

story is "'so internally inconsistent or implausible on its face

that a reasonable fact-finder would not credit it.'" United States

-20- v. Henderson, 463 F.3d 27, 32 (1st Cir. 2006) (quoting Anderson,

470 U.S. at 575).

We find that "[w]ithin wide limits, not exceeded here, it

was the exclusive role of the trial court to decide the weight to

give [Obregón and Rivera-González's] testimony and whether to use

it as the basis of its drug quantity determination." Rodríguez,

525 F.3d at 108 (holding that sentencing court did not clearly err

in relying on testimony of witness who was "not especially exact in

his description of dates, times, weights, and numbers"). We

acknowledge that there are some internal inconsistencies in the

testimonies as to the number of times González-Vélez sold cocaine

and the amount of cocaine González-Vélez sold each time. In

particular, we note Obregón's inconsistent testimony about the

quantity of drugs González-Vélez sold to Luis Lloréns. However,

the judge, as the finder of fact at sentencing, was free to

disregard inconsistent portions of the testimony and credit the

relevant credible portions. See United States v. Lara, 181 F.3d

183, 204 (1st Cir. 1999) (stating that fact-finders "are not

required to discard testimony that appears to contain internal

inconsistencies, but may credit parts of a witness's testimony and

disregard other potentially contradictory portions").

There is, moreover, a further distinction here. The

sentence in this case was not based on the amount of cocaine

González-Vélez individually handled. Rather, the sentence was

-21- based on González-Vélez's ability to foresee the conspiracy-wide

amount of cocaine. With respect to this aspect of the case,

Obregón's and Rivera-González's testimonies are generally

consistent, are not implausible on their face, and are not

contradicted by the other evidence in the record. Both witnesses

testified to seeing González-Vélez at the drug point frequently,

and this testimony was corroborated by Agents Ortiz and Orta. Both

witnesses also testified that González-Vélez sold cocaine on credit

to Luis Lloréns, which is something that González-Vélez himself

admits. Furthermore, as we discuss in more detail below, Obregón

and Rivera-González corroborated each other's testimony about the

amount of cocaine retailed at Las Malvinas. Because the testimony

of Obregón and Rivera-González was consistent as to the two

important factors in González-Vélez's sentence -- the conspiracy-

wide amount, and the fact that González-Vélez could foresee that

amount -- we do not find the trial court's reliance on their

testimony to be "unreasonable." See Huddleston, 194 F.3d at 224

(holding that "[n]otwithstanding some minor discrepancies in

[witness's] testimony, 'we do not think it unreasonable . . . to

believe that the testimony of a man experienced in drug deals was

sufficient to establish an appropriate drug quantity'" (quoting

United States v. Natanel, 938 F.2d 302, 312-13 (1st Cir. 1991)).

-22- 2. Calculations Underlying Drug Quantity Determination

González-Vélez next argues that even if the district

court properly credited Obregón's testimony, it was obligated to

calculate the drug quantity attributable to González-Vélez using

the lowest amount that Obregón said González-Vélez sold per

transaction -- which was one-eighth of a kilogram. González-Vélez

relies on the Third Circuit's decision in United States v. Miele,

989 F.2d 659 (3d Cir. 1993), in which that court remanded the case

for re-sentencing because of the lower court's failure to explain

why, when deciding the defendant's sentence, it chose to rely on

the larger of two drug quantities testified to by a witness. In

the present case, González-Vélez argues, the district court should

have multiplied one-eighth of a kilogram by the number of times

González-Vélez sold cocaine and then added the one-sixteenth of a

kilogram referenced in the recording by Matías-Cruz. This would

yield one and five sixteenth (15/16) kilograms, not five, and result

in a BOL of only 26 instead of 32.

We need not reach this issue because the district court

did not base its drug quantity determination on the amount of

cocaine that González-Vélez personally handled. Instead, the court

arrived at the five kilogram figure based on its determination that

the minimum total amount of cocaine sold at the Las Malvinas drug

point in the course of the conspiracy was five kilograms. Because,

as explained below, we find no clear error in the district court's

-23- determination that González-Vélez could foresee that five kilograms

of cocaine were involved in the conspiracy, we need not concern

ourselves with how much cocaine González-Vélez personally supplied

to the operation. We need not address Miele because Miele deals

with a drug quantity determination that was based on what the

defendant personally handled, rather than on what the defendant

could foresee. 989 F.2d at 666.

González-Vélez also argues that the district court

performed "shoddy arithmetic" in calculating that the drug point

sold an eighth of a kilogram of cocaine per week. First, González-

Vélez argues that the district court incorrectly calculated the

amount of cocaine individually sold by Rivera-González. The court

noted that according to evidence seized at the drug point, a gram

of cocaine would be packaged into ten $10 bags of cocaine, meaning

that each $10 bag would contain a tenth of a gram. However,

Rivera-González testified that the "baggies" he sold retailed for

$5. Therefore, González-Vélez argues, each of the "baggies"

Rivera-González sold must have contained one twentieth of a gram,

not one tenth. Thus, if each "package" contained 25 "baggies" and

Rivera-González sold between 35 and 49 packages per week, then

Rivera-González himself sold between 43.75 and 61.25 grams of

cocaine per week, far less than the minimum of 87.5 grams that the

court calculated.

-24- González-Vélez then notes that the district court reached

its figure of one eighth of a kilogram sold per week by multiplying

the amount of cocaine Rivera-González sold by the number of retail

sellers that Rivera-González said were working at the drug point.

González-Vélez argues, however, that doing so was clearly erroneous

because Rivera-González did not explicitly state at the March 27,

2007 sentencing hearing that the other sellers sold powder cocaine.

It is undisputed that the drug point sold heroin, crack, and

marijuana as well as cocaine. González-Vélez argues that because

Rivera-González did not clearly state that the other sellers sold

cocaine, the district court was obligated to calculate total

cocaine sales assuming that Rivera-González was the only person at

the drug point who sold powder cocaine. This would mean that there

were weekly sales of only 61.25 grams of cocaine, which is roughly

one sixteenth of a kilogram rather than one eighth.

We find no clear error in the district court's

determination that the drug point sold an eighth of a kilogram of

cocaine per week. González-Vélez's argument hinges on the fact

that Rivera-González did not explicitly state at the March 27, 2007

hearing that the other sellers at Las Malvinas sold cocaine.

However, it is clear from the record that the government's

examination of Rivera-González at that hearing explicitly focused

on cocaine. At no point in his testimony did Rivera-González

suggest that he was the only seller of powder cocaine. In

-25- addition, there is no evidence to indicate that the other sellers

did not sell cocaine, or to indicate that they sold substantially

less cocaine than Rivera-González. It is therefore reasonable to

interpret Rivera-González's testimony as indicating that the other

sellers sold cocaine in similar quantities. Thus, even using

González-Vélez's figure of between 43.75 and 61.25 grams sold by

Rivera-González, it was not unreasonable for the court to conclude

that all four sellers combined sold at least 125 grams per week.

Moreover, the 125 gram figure was corroborated by Obregón's

testimony. Finally, we note that the district court's calculation

is consistent with the jury's finding that the overall conspiracy

involved at least five kilograms of cocaine, although the jury's

finding was insufficient alone to determine the amount reasonably

foreseable. Given that the district court's calculation of 125

grams per week was a perfectly "permissible view[] of the

evidence," we cannot say that it was "clearly erroneous," and hence

we will not overturn the district court's finding. See Tsoulas,

454 F.3d at 76.

There is another, essentially independent point. As we

discuss below, the district court ultimately concluded that

González-Vélez could reasonably foresee the total amount of cocaine

involved in the conspiracy. Thus, the quantity of cocaine that is

relevant in this case is the total quantity of cocaine, not merely

the amount retailed at Las Malvinas in powder form. The jury in

-26- González-Vélez's criminal trial found that the conspiracy-wide

amount of cocaine was at least five kilograms, and this finding has

never been questioned in either of González-Vélez's appeals.

Therefore, even if the district court erred in its calculation of

how much powder cocaine was sold per week, and we do not believe it

did, we would still uphold the sentence so long as we found that

the district court correctly attributed the conspiracy-wide amount

to González-Vélez. As discussed below, we find that the court was

correct.

3. Attribution of Conspiracy-Wide Amount to González- Vélez

Finally, González-Vélez argues that attributing the full

conspiracy-wide amount of five or more kilograms of cocaine to him

was clearly erroneous as it was not established that the

conspiracy-wide amount was foreseeable by him. The district court

based its determination that González-Vélez could reasonably

foresee five or more kilograms on two primary factors. First, the

court noted that González-Vélez was frequently seen at or near the

Las Malvinas drug point. Second, the court noted that in the

recording made by Matías-Cruz, González-Vélez could be overheard

asking Luis Lloréns about cocaine sales and discussing the pot that

broke while "Joey Oreja" was using it to cook crack.

González-Vélez does not dispute that he was occasionally

present at or near the drug point or that he talked to people at

the drug point. However, he argues that his mere presence at Las

-27- Malvinas cannot be used to tie him to drug sales. He notes that he

had lawful reasons for being at Las Malvinas, as he lived in the

Lloréns Torres housing project. He was also a friend of Luis

Lloréns and other persons involved with Las Malvinas, and at one

point was also romantically pursuing a woman who lived in the area.

Therefore, he argues, his presence at the drug point cannot be

considered "relevant conduct," García, 954 F.2d at 15, for the

purposes of sentencing.

improperly used his presence at Las Malvinas to tie him to retail

drug sales, which were beyond the scope of his role in the

conspiracy as a wholesale drug seller. Although his brief is

unclear, González-Vélez appears to argue that where a sentence

depends on quantity, a person charged for a particular role in a

conspiracy can only be sentenced for the conspiracy-wide quantity

if he had a supervisory role or had multiple roles in the

conspiracy. He makes this argument by attempting to distinguish

his case from other cases in which this court has upheld the

attribution of conspiracy-wide amounts to defendants who had

multiple roles or high-level roles in a conspiracy. See United

States v. Pizarro-Berríos, 448 F.3d 1, 8-9 (1st Cir. 2006) (court

attributed full amount of financial loss in a credit card fraud

scheme to defendant who was both a purchaser of merchandise for the

scheme and a bodyguard for one of the scheme's leaders); United

-28- States v. Rodríguez, 162 F.3d 135, 140, 149 (1st Cir. 1998) (court

attributed full amount of crack cocaine in conspiracy to defendant

who controlled the drug point at which the narcotics were

distributed). Here, González-Vélez does not dispute that he was at

times present at Las Malvinas for illegal activity. However, he

argues that there is no evidence that he participated in retail

sales at Las Malvinas or that he could reasonably foresee the

quantity of cocaine sold there. He notes that in 730 hours of

videotape collected by the FBI, he was never seen at the drug point

at all, much less seen retailing drugs. He admits that he went to

the drug point to collect money, but he argues that this was

because he sold cocaine to Luis Lloréns on credit and had to go to

the drug point to be paid. González-Vélez argues that this

arrangement also explains why he was recorded asking Luis Lloréns

how much money Luis Lloréns could make from selling cocaine on the

street, and asking, "[W]here are my Washingtons?"5

Since his sole role in the conspiracy was as a

wholesaler, González-Vélez argues that he cannot be sentenced for

the full five kilograms of cocaine unless he either personally

supplied or conspired to supply that amount to the drug point. The

government conceded at the sentencing hearing that it could

directly attribute less than two kilograms of cocaine to González-

Vélez. Furthermore, the testimony of various government witnesses

5 A slang term for $1 bills.

-29- indicated that there were at least three other suppliers, and there

was no evidence that González-Vélez conspired with them.

Therefore, González-Vélez argues, the district court should have

determined the amount attributable to him by dividing five

kilograms by the total number of suppliers to the point.

We find no error, let alone clear error, in the district

court's finding that "[i]t is evident that [González-Vélez] knew

. . . and/or could reasonably foresee" that at least five kilograms

of cocaine would be sold at Las Malvinas. We acknowledge that

González-Vélez was sometimes present at Las Malvinas for lawful

purposes, that there is no evidence of cooperation between him and

the other suppliers to Las Malvinas, and that there is no evidence

he was involved in retail sales at the point. Nevertheless, the

evidence relied on by the district court is clearly sufficient to

support the court's conclusion that González-Vélez "had extensive

knowledge of the drug trafficking activities that took place at

[Las Malvinas]." The district court noted that González-Vélez was

frequently seen at Las Malvinas, that he sold cocaine to Luis

Lloréns on credit, and that he was recorded "discussing the

intricacies of the drug trade." In light of this evidence, we find

no error in the district court's conclusion.

That González-Vélez's only role in the conspiracy was as

a wholesale supplier, as opposed to a retailer, is of little

importance to this case. In a drug distribution case, "the

-30- quantity of drugs attributable to [a defendant] for sentencing

purposes . . . [is] bounded initially by the sum of the charged

conduct . . . plus his relevant uncharged conduct." United States

v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990) (emphasis added). In

this case, the conspiracy charged was a conspiracy to distribute

drugs at Las Malvinas, rather than to Las Malvinas. Thus, retail

drug sales could clearly be relevant uncharged conduct for the

purposes of the drug quantity determination. What matters in this

case is whether the retail sales were "acts that were reasonably

foreseeable" by González-Vélez "in furtherance of the conspiracy"

to distribute drugs at Las Malvinas. Sepúlveda, 15 F.3d at 1197.

Because we find no error in the district court's determination that

the retail sales were acts reasonably foreseeable by González-Vélez

in furtherance of the conspiracy, we find no error in the

attribution of the full five kilograms of cocaine to González-

Vélez.6 We therefore affirm the district court's calculation of a

BOL of 32.

6 Moreover, contrary to González-Vélez's argument, this court has never held that a quantity attributable to a conspiracy member is dependent on either the number of roles he had or the supervisory nature of his role. The cases on which González-Vélez relies to support this proposition, if properly read, do not help him. In Pizarro-Berríos, we did not hold the defendant responsible for the conspiracy-wide financial damages merely because he had multiple roles; rather, we held that because the defendant was a friend of one of the heads of the scheme and served as his bodyguard, the defendant was in a position to know how much money was being stolen. 448 F.3d at 8-9. In Rodríguez, defendant Rodríguez's role as controller of the drug point made it clear that he could foresee how much crack was sold there. 162 F.3d at 140, 149.

-31- C. Denial of the 2-Level Reduction for Acceptance of Responsibility

González-Vélez argues that the district court committed

reversible error by failing to explain why it denied his request

for a two-level reduction in his offense level for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. González-Vélez argues

that his eligibility for the reduction was a disputed issue of

fact, and hence that the district court violated Fed. R. Crim. P.

32(i)(3)(B) by failing to rule on his request.7

Under Fed. R. Crim. P. 32(i)(3)(B), the sentencing court

must, for any disputed matter, "rule on the dispute or determine

that a ruling is unnecessary." We review a district court's

compliance with Fed. R. Crim. P. 32 de novo, and will remand if an

error occurred that was not harmless. United States v.

Guadalupe-Rivera, 501 F.3d 17, 22 (1st Cir. 2007). We review a

district court's judgment about acceptance of responsibility for

clear error. United States v. Deppe, 509 F.3d 54, 60 (1st Cir.

2007).

7 González-Vélez also argues that the alleged failure to rule on the acceptance of responsibility issue violates 18 U.S.C. § 3553(c)(1). We need not address this argument in detail because 18 U.S.C. § 3553(c)(1) does not apply to rulings on acceptance of responsibility under U.S.S.G. § 3E1.1. Section 3553(c)(1) applies to the court's choice of a sentence within a guideline range. See supra n.4. In contrast, U.S.S.G. § 3E1.1 affects the offense level, from which the GSR is calculated. Thus, 18 U.S.C. § 3553(c)(1) does not come into play until after a decision is made on the appropriate offense level.

-32- Here, we find no error in the district court's compliance

with Fed. R. Crim. P. 32(i)(3)(B). The PSR before the district

court upon remand for re-sentencing was the same report that was

used in González-Vélez's original sentencing. At the March 27,

2007 pre-sentence hearing, the court stated that because the PSR

was "the same as the last time . . . any objections that were made

at the last time and taken care of . . . were taken care of and

ruled upon by the Court." The court then allowed González-Vélez's

counsel to present her objections again, "if she feels it's

necessary." In response, González-Vélez's counsel stated that she

and her client "renew[ed] [their] request for granting points [sic]

for acceptance of responsibility."

It is clear that the request for a reduction at the

March 27, 2007 hearing was not a new objection, but rather a

reiteration of a previous objection. Therefore, it was correct for

the district court to rest on its previous resolution of this

issue. Moreover, the district court properly complied with Fed.

R. Crim. P. 32(i)(B)(3) when it addressed the responsibility issue

at the original sentencing hearing. At that hearing, the court had

noted that González-Vélez "went to trial at his own choice, with

adequate counsel." González-Vélez had argued that the fact that he

went to trial should not be held against him, because he could not

reach an agreement with the prosecutor regarding drug quantity.

However, the court had said that it would not "take into

-33- consideration" the fact that the pre-trial plea negotiations were

"not fruitful." As we note below, a criminal defendant's choice to

go to trial weighs very heavily against granting a downward

adjustment for acceptance of responsibility; only in rare

circumstances can the defendant overcome this effect, and the

failure of plea negotiations is generally not such a circumstance.

In light of this reality, we find the district court's discussion

of the responsibility issue at the original hearing sufficient for

the purposes of Rule 32(i)(B)(3). Because the district court had

already ruled on the responsibility issue in compliance with Rule

32(i)(B)(3) at the original sentencing hearing, we find no error in

the district court's decision not to address the issue again at the

March 27, 2007 pre-sentence hearing.

III. Conclusion

For the reasons stated above, we affirm the district

court's sentence.

Affirmed.

-34-