United States v. Martinez

Opinion

USCA1 Opinion

January 25, 1994      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1100

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   RUBEN MARTINEZ,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                              Torruella, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                                Stahl, Circuit Judge.
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               Arthur R. Silen, by Appointment of the Court, for appellant.
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               Margaret E.  Curran, Assistant United States  Attorney, with
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          whom  Edwin  J. Gale,  United  States  Attorney,  and  Gerard  B.
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          Sullivan, Assistant  United States  Attorney, were  on brief  for
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          appellee.

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Per Curiam.  Defendant Rub n Mart nez pleaded guilty to
                    Per Curiam
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          two counts of conspiring to distribute cocaine in violation of 21

          U.S.C.   846 and three  counts of distributing or possessing with

          the  intent  to  distribute  cocaine in  violation  of  21 U.S.C.

             841(a)(1) & 18  U.S.C.   2(a).  On January 7, 1993, the United

          States District Court for the District  of Rhode Island sentenced

          Mart nez to  five concurrent terms  of 51 months in  prison, five

          years  of  supervised  release,  including  a  special  condition

          relating  to deportation, and the required assessments.  Mart nez

          challenges  his sentence  because  it  was based  in  part on  an

          allegedly erroneous  finding that he  was a  leader or  organizer

          under  United States  Sentencing  Guidelines     3B1.1(c).1    We

          affirm.

                                    I.  BACKGROUND
                                    I.  BACKGROUND

                    According to  the Pre-Sentence  Report ("PSR") and  the

          transcript of the sentencing hearing, see United States v. Reyes,
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          3 F.3d  29, 29-30  (1st Cir. 1993)  (stating that  upon a  guilty

          plea, the relevant  facts should  be taken from  the PSR and  the

          sentencing transcript); United States v. Castellone, 985 F.2d 21,
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          22  (1st  Cir.  1993)  (same),  Drug  Enforcement  Administration

          ("DEA") Special  Agent  Russell  Holske  purchased  cocaine  from

          defendant  Mart nez  on  three   separate  occasions  during   an

          undercover investigation in April  through July of 1992.   Holske

          made his  first purchase on April  1, 1992, buying 27.7  grams of

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          1   All  citations refer  to the  1992 version of  the Sentencing
          Guidelines which were in effect at the time of the sentencing.

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cocaine from  Mart nez for  $900.  On  that occasion,  Holske met

          with Mart nez who  then made a phone call because he did not have

          the  drugs  with  him.    Shortly  thereafter,  codefendant  Juan

          Ituribides  arrived with the  cocaine and  handed it  to Mart nez

          who, in turn, handed it to Holske.

                    Two  days later, Holske purchased 50.5 grams of cocaine

          from Mart nez for  $1750.  As in the  first transaction, Mart nez

          made a  phone call before  the drugs were delivered;  however, on

          the second  occasion, codefendant El as Ventura  Morales, instead

          of  codefendant  Ituribides,  actually  brought  the  cocaine  to

          Mart nez.

                    On July 17, 1992, Agent Holske negotiated with Mart nez

          for the  purchase of "Two Big  Eights" (9 ounces) of  cocaine for

          $8000.   After  Holske  and  Mart nez met,  they  were joined  by

          Morales.  The three then moved  to a new location where  Mart nez

          showed Holske a small sample of cocaine in exchange for a look at

          the money Holske brought.   Morales left and then returned twenty

          to  thirty minutes  later  at  which  point DEA  agents  arrested

          Mart nez and Morales and seized 223.4 grams of cocaine.

                    Mart nez  contests this version  of events.   He claims

          that he was not the source or supplier of the cocaine but instead

          merely  an intermediary who  was offered money  by a confidential

          informant to assist in the sale.  During the first sale, Mart nez

          contends, Ituribides supplied the cocaine and collected the money

          for the deal while Mart nez  only assisted by passing the cocaine

          to Holske.   For the other two purchases, Mart nez claims that he

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was approached  by the confidential  informant and asked  for the

          whereabouts  of   Ituribides.    On  those   occasions,  Mart nez

          contends, Morales intervened  in the discussion and  arranged the

          drug deals.   According  to Mart nez, his  only role was  to wait

          with the informant while Morales went to get the cocaine.

                   II.  ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE
                   II.  ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE

                    In calculating  Mart nez' sentence, the  district court

          imposed a two level enhancement  for being a leader and organizer

          pursuant to  U.S.S.G.    3B1.1(c).2   Mart nez  claims the  court

          erred because the presentence  report contains insufficient facts

          necessary to support  a finding that Mart nez  organized, managed

          or directed the  activities of his codefendants in committing the

          charged offenses.

                    We  review the district  court's "role in  the offense"

          determination for clear  error.   United States  v. Schultz,  970
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          F.2d 960, 963-64 (1st  Cir. 1992), cert. denied, 113 S.  Ct. 1020
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          (1993); United  States v. Veilleux,  949 F.2d 522, 524  (1st Cir.
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          1991).   A leadership  role  enhancement is  warranted where  the

          defendant has  exercised control  or directed  the actions  of at

          least one other  person in committing the crime.   The sentencing

          court  can take  into account  such  factors as  the exercise  of

          decision  making authority  and the  degree  of participation  in
                              
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          2  U.S.S.G.    3B1.1(c) provides for an  increase in the  offense
          level:

                      If  the   defendant  was   an  organizer,
                      leader,  manager,  or supervisor  in  any
                      criminal activity other than described in
                      (a) or (b), . . . 

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planning or  organizing the  offense.   U.S.S.G.    3B1.1 comment

          note 3; Schultz, 970 F.2d at 964; United States v. Panet-Collazo,
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          960 F.2d 256, 261  (1st Cir. 1992), cert. denied, 113  S. Ct. 220
                                              ____  ______

          (1992).

                    The evidence  from the PSR is sufficient to support the

          sentencing  judge's determination that Mart nez "was a leader and

          organizer of this little business  [to sell cocaine] that he had"

          and  that  Mart nez "had  working  for  him Ventura  Morales  and

          Interpediz [sic]."   According to the  PSR, Holske purchased  the

          cocaine  "from" Mart nez or "negotiated with" Mart nez during all

          three of  the drug transactions.   During  the July  transaction,

          Mart nez "arranged  to be  met" at a  certain location  and later

          displayed  a sample  of cocaine  for Holske.   On  two occasions,

          Mart nez first met  with Holske and then placed  a telephone call

          after which the cocaine was delivered.  When considered together,

          this  evidence  is sufficient  for  the  judge  to conclude  that

          Mart nez   arranged  and  planned  each  sale  and  directed  the

          activities  of his  codefendants  who  served  as  assistants  or

          couriers for Mart nez' operation.

                    Mart nez insists  that the evidence  in the PSR  is, at

          most,  only  sufficient to  support  a  finding  that he  was  an

          intermediary.  There is nothing, Mart nez claims, to show he gave

          any  orders  or  directions  to  anyone  or  otherwise  exercised

          decision making authority.   He further asserts that  there is no

          evidence,  beyond  the  bald  statement  that  Holske  "purchased

          cocaine" or "negotiated" with Mart nez, to support the conclusion

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that Mart nez set terms and conditions, made the arrangements, or

          profited from the sale.

                    While  the  actions  reported in  the  PSR  (making the

          initial  contact with the  buyer and  placing phone  calls before

          each  drug  delivery)  may   be  consistent  with  those  of   an

          intermediary,  they  are also  consistent with  those taken  by a

          leader or organizer.  When  we factor in Holske's statements that

          Mart nez  "negotiated"   the  deal  and  "arranged"  the  meeting

          location, we  find ample support for the  court's inferences that

          Mart nez was making decisions about  terms and conditions when he

          met with  Holske, and  exercising control  over his  codefendants

          when he made the telephone calls.  "'Where    there    are    two

          permissible  views  of  the  evidence,  the  factfinder's  choice

          between them cannot be  clearly erroneous.'"  Veilleux, 949  F.2d
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          at 525 (quoting  Anderson v. City of Bessemer City, 470 U.S. 564,
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          574  (1985)).  The sentencing judge, in fact, explicitly rejected

          Mart nez'  alternative  version  of events  when  he  stated that

          Mart nez had not been "completely  candid with the Court nor with

          the Probation  Counsellor trying to  give the impression  that he

          was really working for somebody else, but he wasn't."

                    Mart nez also claims  that the sentencing  judge failed

          to  make  reasonably  specific factual  findings  to  support the

          upward adjustment.  This objection is groundless.  The sentencing

          court's explicit  rejection of  Mart nez' alternative  version of

          events,  together with its statements that, based on the evidence

          in the  PSR, Mart nez was  a leader of  his own business  to sell

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cocaine,3  constitutes specific  factual  findings which  support

          the upward adjustment.  See Schultz,  970 F.2d at 963 n.7; United
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          States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58  (1st Cir.
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          1991).   As we discuss  below, any objections to  the evidentiary

          basis for the court's specific factual findings are waived.
          _____

                        III.  OTHER OBJECTIONS TO THE SENTENCE
                        III.  OTHER OBJECTIONS TO THE SENTENCE

                    Mart nez  claims  that the  sentencing  judge erred  by

          relying upon information outside his own PSR to determine whether

          he was a leader and organizer.  During sentencing, the judge did,

          in fact,  explicitly base  his findings  partly upon  information

          contained in  the PSR's  of Mart nez'  codefendants, Morales  and

          Ituribides.   Mart nez'  counsel, however,  failed  to voice  any
                              
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          3  At the sentencing hearing, the sentencing judge stated:

                      I'm satisfied  from the evidence  in this
                      matter  presented from  all the  material
                      that I've  been  privy to  not only  from
                      this  presentence  report  but  from  the
                      presentence report involving  Morales and
                      Interpediz  that  this  Defendant  was  a
                      leader, an organizer.   He was akin  to a
                      self-employed,      independent     sales
                      representative.   I'm  satisfied that  he
                      didn't own  the  cocaine, but  he was  in
                      business for himself  selling cocaine and
                      he  was going  to  earn a  commission for
                      selling that  cocaine and he  had working
                      for him  Ventura Morales  and Interpediz.
                      As a matter of fact,  Interpediz was only
                      involved in one  instance for a pittance,
                      about $40  was going  to be  his pay  for
                      simply going  to the  source and  getting
                      the  cocaine  and   bringing  it  to  the
                      designated place and  Morales was serving
                      in the same  function.  So  the Defendant
                      clearly  was a  leader  and organizer  of
                      this little business that he had.  So the
                      Probation Office  was correct  in tacking
                      on two points in this case.

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objections to this  at the hearing.  Consequently,  the issue has

          not been  preserved for appeal  unless there are  some "unusually

          compelling circumstances."   United States v.  Ocasio-Rivera, 991
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          F.2d 1, 3 (1st Cir. 1993).  This exception mainly applies where a

          correction  of the  alleged error  would  ensure the  defendant's

          success and thus prevent a miscarriage of justice.  Id.  Mart nez
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          fails  to point out  any circumstances, compelling  or otherwise,

          that  would be  sufficient to  overcome  his procedural  default.

          Given the  sufficiency of the  evidence in Mart nez' own  PSR and

          given  that  the  judge,  in  making  a  "role  in  the  offense"

          determination  for Mart nez, had  to take into  consideration the

          relative roles of  all the codefendants anyway,4 we are convinced

          that no miscarriage of justice has occurred in this case.

                    Mart nez   also  challenges   the  sentencing   judge's

          decision to  grant only  a two level,  instead of a  three level,

          decrease   in  his   base  offense   level   for  acceptance   of

          responsibility  pursuant to U.S.S.G.   3E1.1(b)(2).  He concedes,

          however, that  he did not raise this  objection during sentencing

          and  that "under the  'plain error' rule, he  will not succeed on

          this point alone."   As we have decided all  other issues against

          the defendant,  according to  his own  admission, we must  decide
                              
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          4   According to the prosecution, prior  to Mart nez' sentencing,
          the  district court  had  already determined  that  at least  one
          codefendant, Ituribides,  was merely  a courier  and had  awarded
          Ituribides  a downward  adjustment  for  playing  a  minor  role.
          Defense  counsel  also  referred  to  this  at  the  hearing  and
          cautioned the judge that such  a finding did not necessarily mean
          that  Mart nez was  a leader  and organizer.   The issue  of what
          roles were played  by Mart nez' codefendants was  thus brought to
          the judge's attention before his ruling.

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this one against him as well.

                    Affirmed.
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