United States Court of Appeals For the First Circuit
No. 18-1418
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID LÓPEZ, a/k/a CILINDRO, a/k/a VILLANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
Michael M. Brownlee and The Brownlee Law Firm, P.A., on brief for appellant. Andrew E. Lelling, United States Attorney, and Randall E. Kromm, Assistant United States Attorney, on brief for appellee.
April 30, 2020 SELYA, Circuit Judge. The backdrop for this sentencing
appeal is the government's relentless pursuit of a notorious
criminal gang, famously known as MS-13. The appeal itself requires
us to answer a question of first impression in this circuit: when
a defendant is convicted of racketeering conspiracy under the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. § 1962(d), does the imposition of a role-in-the-offense
enhancement, see USSG §3B1.1, depend upon the defendant's role in
the racketeering enterprise as a whole or, instead, upon his role
in the discrete acts of racketeering activity that underpin the
RICO conviction? We conclude that such an enhancement is dependent
upon the defendant's role in the criminal enterprise as a whole.
We further conclude that the court below supportably found that
defendant-appellant David López occupied a managerial or
supervisory role in the racketeering enterprise involved here.
Accordingly, we affirm the challenged sentence.
I. BACKGROUND
"Because this appeal follows a guilty plea, we draw the
facts from . . . the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the transcript of the disposition hearing." United States v.
Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). The MS-13 street
gang is a Salvadorian-based, transnational criminal enterprise
with a pervasive foothold in the United States, where it operates
- 2 - a myriad of subgroups, called "cliques," in no fewer than forty-
six states. MS-13 cliques hold meetings at which, among other
things, they collect dues, plan criminal exploits, and hash out
membership issues. Each clique typically has two chieftains: a
"First Word," who is responsible for organizing and directing the
clique, and a "Second Word," who serves as the First Word's alter
ego and assumes those duties in the First Word's absence.
There is also what amounts to a caste system within each
clique. Members, known as "homeboys," are on the upper rungs of
the hierarchy. According to the government, an aspirant usually
must "participate in the killing of a rival gang member or
suspected informant" to achieve that status. Prospective members,
called "paros," are allowed to "hang around" with members. Paros
who are deemed to be adequately trustworthy are promoted to
"chequeos," a status that affords them increased access to members.
In 2013 and 2014, several young chequeos and paros,
including the appellant, began forming a new MS-13 clique in
Chelsea, Massachusetts. This group, though, was without a leader.
In the spring of 2014, centralized MS-13 command staff sent Rafael
Leoner-Aguirre (Leoner), a homeboy, from Michigan to Massachusetts
to organize the fledgling Chelsea group into a sanctioned clique.
The appellant proved to be an active and trustworthy disciple, and
he was promoted to chequeo as the clique evolved under Leoner's
direction.
- 3 - In April of 2014, federal authorities arrested Leoner
and charged him with attacking members of a rival gang. See United
States v. Leoner-Aguirre, 939 F.3d 310, 313-14 (1st Cir. 2019),
cert. denied, 140 S. Ct. 820 (2020). Notwithstanding his
immurement, the Chelsea clique continued to regard Leoner as its
First Word. Meanwhile, the appellant took over as the de facto
leader of the clique on the streets, directing the clique's illicit
activities with Leoner's oversight.
On May 29, 2014, the appellant and a fellow clique
member, Daniel Menjivar, attacked a member of a rival gang, Denys
Perdomo Rodriguez (Perdomo), at a bus stop in Chelsea. Menjivar
initiated the attack, stabbing Perdomo repeatedly. As Perdomo lay
bleeding on the ground, the appellant shot him several times.
Although grievously wounded, Perdomo survived.
Menjivar was subsequently arrested for his role in the
Perdomo affair. Upon learning of Menjivar's arrest, the appellant
fled to New Jersey. Once there, he was promoted to homeboy for
his part in the assault on Perdomo.
We fast-forward to April of 2015. Around that time, the
authorities learned that the Chelsea clique was planning to kill
one of its own members, CW-2, premised on the mistaken belief that
he was then a police informant. The investigators also learned of
the clique's efforts to bring the appellant back from New Jersey
to carry out the murder. In seeming confirmation of this
- 4 - intelligence, investigators spotted the appellant seated in a car
near CW-2's home on April 27. He was accompanied by another clique
member and a government cooperator (CW-1). In a conversation
recorded at that time, the appellant indicated that the clique had
the "go ahead" to kill CW-2 and proposed alternative methods for
carrying out the slaying (such as cutting his throat or strangling
him with a wire).
On April 28, CW-2 — who by then had begun cooperating
with the government — testified before a federal grand jury as
part of its probe into MS-13. That same day, ongoing surveillance
recorded a conversation between the appellant and another clique
member, memorializing their attempts to find and murder CW-2.
In due course, the grand jury handed up a nineteen-count
fifth superseding indictment charging sixty-one MS-13 associates
(including the appellant) with a golconda of racketeering
activities, firearms and drug offenses, and sundry other crimes.
Pertinently, the grand jury charged the appellant with conspiracy
to conduct enterprise affairs through a pattern of racketeering
activity, in violation of 18 U.S.C. § 1962(d). The indictment
listed a number of specific racketeering acts undergirding the
broader conspiracy. With respect to the appellant, the specified
acts were the attack on Perdomo and the planned execution of
CW-2.
- 5 - Although he initially maintained his innocence, the
appellant changed his plea to the sole count against him shortly
before his scheduled trial. The district court accepted his guilty
plea. The court then ordered the preparation of a PSI Report
which, when received, led to a wrangle over a recommended three-
level role-in-the-offense enhancement under USSG §3B1.1(b).
The appellant objected to the PSI Report's application
of the role enhancement and, relatedly, to its calculation of the
guideline sentencing range (GSR). He asserted that the government
had not established that he was a manager or supervisor with
respect to the assault on Perdomo because he was only a chequeo,
not a homeboy, when that assault occurred. Therefore, the PSI
Report had artificially inflated both his total offense level and
GSR.
In its sentencing memorandum, the government agreed with
the probation officer's conclusion that a three-level enhancement
for the appellant's role in the offense was warranted. It
disagreed, though, with the probation officer's methodology for
arriving at the enhancement. The probation officer had analyzed
the appellant's role in each of the predicate racketeering acts
separately and concluded that the enhancement only applied to the
plot to murder CW-2. The government countered that the role
enhancement should apply across the board based on the appellant's
managerial role in the overall conspiracy.
- 6 - At the disposition hearing, the court acknowledged the
appellant's objection to the conclusion that he "was a manager or
supervisor." The court proceeded to overrule this objection
because the unchallenged portions of the PSI Report adumbrated
facts sufficient to support a finding that the appellant had acted
as a manager or supervisor of the clique as a whole. The court
also acknowledged that the government had raised a "subsidiary
issue" concerning how the relevant guideline provision should be
construed and applied. Even so, the court was content to say that
the appellant was a manager or supervisor of the enterprise as a
whole and, thus, it effectively adopted the government's
interpretation of the relevant guideline. The appellant objected,
noting that if his interpretation of the relevant guideline were
to be employed, both the offense level and the corresponding GSR
would be reduced.
After hearing arguments of counsel and the appellant's
allocution, the court imposed the statutory maximum sentence of
240 months. See 18 U.S.C. § 1963(a). This timely appeal followed.
II. ANALYSIS
"Appellate review of a criminal defendant's claims of
sentencing error involves a two-step pavane." United States v.
Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). Under this
framework, we first examine any claims of procedural error. See
United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017).
- 7 - When examining such claims, we evaluate the district court's
interpretation and application of the sentencing guidelines de
novo. See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st
Cir. 2015). "If the sentence passes procedural muster, we then
address any challenge to its substantive reasonableness." Matos-
de-Jesús, 856 F.3d at 177. Here, however, the appellant does not
challenge the substantive reasonableness of his sentence.
With this framework in mind, we tackle the appellant's
contention that his sentence was procedurally unreasonable because
the district court misinterpreted the sentencing guidelines when
calculating his total offense level. His principal claim of error,
which engenders de novo review, poses a question of first
impression in this circuit: when a defendant is convicted of
racketeering conspiracy under RICO, does the imposition of a role-
in-the-offense enhancement depend upon the defendant's role in the
racketeering enterprise as a whole or, instead, upon his role in
the discrete acts of racketeering activity that underpin the RICO
conviction? Answering this question requires us to explore the
interplay between USSG §2E1.1 and USSG §3B1.1.
Section 2E1.1 provides a roadmap for calculating the
offense level applicable to an offender convicted of RICO
conspiracy. Specifically, it states that a defendant's base
offense level should be the greater of nineteen or "the offense
level applicable to the underlying racketeering activity." USSG
- 8 - §2E1.1. This offense level may be adjusted upward if the defendant
qualifies for one or more of various sentencing enhancements. See
USSG §2E1.1 cmt. n.1.
In the case at hand, the district court determined that
the appellant qualified for a role-in-the-offense enhancement
under section 3B1.1(b), which provides for a three-level upward
adjustment "[i]f the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive." There is
an open question, though, as to how the foundation for the
enhancement should be laid. Application Note 1, appended to
section 2E1.1, furnishes some direction for resolving this
quandary. That note states:
Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2). Use whichever subsection results in the greater offense level.
Relying on this language and advice from the Sentencing
Commission's Office of Education and Practices (OEP), the
probation officer examined the predicate acts underpinning the
RICO conspiracy conviction (the attack on Perdomo and the planned
attack on CW-2) independently to determine the applicability of
- 9 - the putative role-in-the-offense enhancement. The district court
was not so sanguine, observing that such an approach would lead to
anomalous results: it "would actually put a person in a better
position if [he was] a leader of a racketeering conspiracy but
didn't personally participate in the individual acts or each of
those acts involved five or fewer people." Thus, the court
expressed its general agreement with the approach adopted by the
Second and Seventh Circuits — an approach that assays a defendant's
role in the overarching conspiracy to determine the applicability
of any role-in-the-offense enhancement. See United States v.
Ivezaj, 568 F.3d 88, 99-100 (2d Cir. 2009); United States v.
Damico, 99 F.3d 1431, 1437-38 (7th Cir. 1996).
Although the court suggested that it would not
definitively decide which interpretive approach was correct, it
used the approach employed by the Second and Seventh Circuits to
calculate the appellant's GSR. It found that the appellant was a
manager or supervisor of the criminal enterprise as a whole and
applied the three-level enhancement solely on that basis.
According to the appellant, the district court's suggestion that
it did not have to resolve this dispute about the proper
interpretation of section 2E1.1 was procedural error because the
two approaches resulted in different GSRs. Since the district
court effectively adopted the government's interpretation of the
relevant guideline and effectively rejected the appellant's
- 10 - interpretation, the claim of procedural error is properly before
us.
In this court, as below, the appellant urges us to adopt
the interpretive modality fashioned by the probation officer. He
submits that the plain language of Application Note 1 mandates
that a role-in-the-offense enhancement must be calibrated
according to a RICO defendant's role in the particular predicate
acts underlying the charged conspiracy. The fact that the OEP
endorsed this methodology, the appellant says, is a compelling
indication that this is the better approach.
The government demurs, relying heavily on the Seventh
Circuit's decision in Damico. There, Damico — having been
convicted of RICO conspiracy — assigned error to the district
court's application of a four-level enhancement under USSG
§3B1.1(a) based upon his role in the RICO enterprise as a whole.
See Damico, 99 F.3d at 1435. Much like the appellant, Damico
pinned his hopes on Application Note 1. See id. at 1435-36. The
Seventh Circuit rejected Damico's argument, noting that it failed
to "account for the fact that section 2E1.1's sole purpose is to
establish the base offense level for a RICO offense, not the
adjusted offense level." Id. at 1437 (emphasis in original).
Consequently, the court interpreted Application Note 1 as
requiring that the underlying offenses be treated separately only
for the purpose of determining the base offense level applicable
- 11 - to the overarching RICO conspiracy. See id. In a nutshell, the
court held "that the predicate-by-predicate approach of
Application Note 1 applies . . . only for the purpose of
establishing a RICO defendant's base offense level, and not for
the purpose of applying the Chapter Three adjustments." Id. at
1438.
We find the reasoning in Damico persuasive. The weight
of the appellant's attempt to walk a tightrope between the RICO
conspiracy conviction itself and the underlying predicate acts is
more than Application Note 1 can bear. Recognizing as much, other
circuits have declined defendants' invitations to place their
imprimatur on such an exercise in funambulism. Indeed, every court
of appeals that has spoken to the issue has followed Damico's
lead.1 See Ivezaj, 568 F.3d at 99-100; United States v. Yeager,
210 F.3d 1315, 1317 (11th Cir. 2000) (per curiam); United States
v. Coon, 187 F.3d 888, 899 (8th Cir. 1999).
A salient reason for this unanimity is that the Damico
approach fits seamlessly with an important policy concern
undergirding the RICO statute. When Congress enacted RICO in 1970,
1 The OEP guidance to which the appellant adverts is not a significant counterweight to this unbroken chain of authority. The OEP guidance is merely advisory and not binding upon the courts. Cf. United States v. Carrozza, 4 F.3d 70, 78 n.6 (1st Cir. 1993) (explaining that instructions published by Sentencing Commission in informational booklet are not meant to bind the courts or the parties in any given case).
- 12 - it was particularly concerned with bringing to justice leaders of
organized crime syndicates (such as the Mafia and La Cosa Nostra),
who were often able to avoid prosecution and "flout the best
efforts of . . . law enforcement and judicial authorities" by
hiding behind underlings. 116 Cong. Rec. 970 (1970). In light of
this policy, it seems right as rain to conclude that a defendant's
role in the overarching conspiracy, rather than his role in
discrete predicate acts, constitutes the critical benchmark for
determining whether a role-in-the-offense enhancement is warranted
under section 3B1.1.
To seal the deal, the text of Application Note 1 directs
courts to apply Chapter 3 adjustments — including enhancements for
a defendant's role in the offense — "to both (a)(1) and (a)(2)."
USSG §2E1.1 cmt. n.1 (emphasis supplied). Subsection (a)(1),
though, does not require an examination of the defendant's
underlying racketeering activities but, rather, simply assigns a
base offense level of nineteen. In considering the applicability
of a role-in-the-offense enhancement to this base offense level,
a court must look to the defendant's role in an enterprise as a
whole. It would defy common sense to take a different tack with
respect to subsection (a)(2) and examine individual predicates
instead of the enterprise as a whole.
Should more be needed — and we doubt that it is — the
approach advanced by the appellant would lead to incongruous
- 13 - results. If, say, the application of a role-in-the-offense
enhancement depended upon assessing individual predicate acts in
a vacuum, a defendant who served as the kingpin of even the most
sprawling criminal enterprise could nonetheless escape a role-in-
the-offense enhancement simply because each of the predicate acts
underlying his conviction involved fewer than five participants
and was not otherwise extensive. See Ivezaj, 568 F.3d at 99;
Damico, 99 F.3d at 1437. We agree with the Second Circuit that
"it makes little sense to allow a defendant who acts in a
leadership capacity in a wide-ranging criminal enterprise to have
his offense level adjusted on the basis of his participation in
discrete racketeering acts." Ivezaj, 568 F.3d at 99.
To prattle on about this issue would serve no useful
purpose. We hold that when a defendant is convicted of
racketeering conspiracy under 18 U.S.C. § 1962(d), the imposition
of a role-in-the-offense enhancement under USSG §3B1.1(b) depends
upon his role in the racketeering enterprise as a whole, not upon
his role in the discrete predicate acts that underpin the charged
conspiracy.
This does not end our odyssey. The appellant argues, in
the alternative, that even if we accept the approach endorsed by
Damico and its progeny — as we do — the district court's conclusion
that he served as a manager or supervisor of the overarching RICO
- 14 - enterprise lacked record support.2 It is to this argument that we
now turn.
This claim of error is waived. After all, the appellant
never raised it in his opening brief on appeal — and it is settled
beyond hope of contradiction that arguments not made in an
appellant's opening brief are deemed abandoned. See, e.g., United
States v. Fraser, 388 F.3d 371, 377 (1st Cir. 2004) (per curiam);
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990). And
even though the appellant challenged the sufficiency of the
district court's factual findings regarding his role in the overall
enterprise in his reply brief, that was too little and too late.
By then, the claim of error had been waived.
Waiver aside, the claim of error lacks force. It hinges
on the supportability of the district court's factual findings,
but the appellant must pass over a higher-than-usual hurdle in
order to set aside those findings. We explain briefly.
To begin, the appellant does not question that the
racketeering enterprise (the clique), taken as a whole, involved
five or more participants. Instead, he trains his fire on the
2 As part of this argument, the appellant alleges that "the district court never made a finding regarding" the appellant's role in the enterprise as a whole. This allegation is belied by the record, as the court unequivocally stated that it was "easily satisfied" that the appellant was "a de facto manager" of the enterprise, given that he was "the only homeboy in the clique who was on the streets" during the pertinent time frame.
- 15 - district court's factual finding that he was a manager or
supervisor within the hierarchy of the clique. But there is a
rub: he did not object below to the district court's factual
finding that he occupied such a managerial or supervisory role.3
We therefore review his claim exclusively for plain error. See
United States v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir.), cert.
denied, 140 S. Ct. 388 (2019); United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001).
Review for plain error is not appellant-friendly. It
"entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Duarte,
246 F.3d at 60. The proponent of plain error must carry the burden
of establishing each of these four elements. See Miranda-Díaz,
942 F.3d at 39.
In this instance, the district court relied upon the
facts disclosed in an unchallenged paragraph of the PSI Report.4
3 To be sure, the appellant objected to construing the relevant guideline in a way that made his role vis-à-vis the racketeering enterprise a critical determinant in the enhancement calculus. This objection, though, raised a claim of legal error, separate and apart from the claim of factual error that he now advances. 4 Although the appellant did object to certain portions of the PSI Report, the district court did not rely on those disputed
- 16 - It is well-established that facts limned in uncontested portions
of a PSI Report are "ordinarily 'considered reliable evidence for
sentencing purposes.'" United States v. Carbajal-Váldez, 874 F.3d
778, 783 (1st Cir. 2017) (quoting United States v. Morillo, 8 F.3d
864, 872 (1st Cir. 1993)), cert. denied, 138 S. Ct. 2586 (2018).
So it is here.
The facts gleaned from this undisputed paragraph in the
PSI Report adequately support the district court's description of
the appellant's role in the clique. Taking those facts as true,
the court had a solid foundation for finding that the appellant
served as a "de facto manager" of the clique after the
incarceration of the clique's First Word in April of 2014 and acted
in that capacity through the commission of the racketeering acts
described in the count of conviction.
Although the appellant was not in full command of the
clique — Leoner, even though imprisoned, remained the First Word
— it does not follow that the appellant was ineligible for a role-
in-the-offense enhancement under section 3B1.1(b). See United
States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993). We have made
pellucid that "[a] defendant need not be the highest ranking member
of a criminal troupe in order to be a manager or supervisor" of
that troupe. Id. Such an interpretation is entirely consistent
paragraphs in finding that the appellant acted in a managerial or supervisory capacity vis-à-vis the clique.
- 17 - with the text of the relevant guideline: section 3B1.1 underscores
that the managerial role enhancement, "as opposed to other upward
role-in-the-offense adjustments, appl[ies] to defendants who were
managers or supervisors, but not organizers or leaders." Id.
(emphasis in original); see USSG §3B1.1(b).
Given the factual support made manifest in the record,
we discern no clear or obvious error in the challenged ruling.
Consequently, we hold that the district court's factual finding
that the appellant played a managerial or supervisory role in the
RICO conspiracy was not plainly erroneous. The role-in-the-
offense enhancement was, therefore, appropriate.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
- 18 -