United States v. Prada Cordero

• Court: Court of Appeals for the First Circuit
• Decided: April 12, 1996
• Docket: 95-2130
• Status: Published

Opinion

USCA1 Opinion

April 12, 1996        [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 95-2130


UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               HUMBERTO PRADA CORDERO,



                                Defendant, Appellant.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [HON. HECTOR M. LAFFITTE, U.S. DISTRICT JUDGE]
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                              _________________________



                                        Before



                                Selya, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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Ramon Garcia on brief for appellant.
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               Guillermo Gil,  United  States  Attorney,  Jos   A.  Quiles-
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          Espinosa,   Senior  Litigation   Counsel,  and   Warren  V zquez,
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          Assistant United States Attorney, on brief for the United States.



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Per  Curiam.   A petit  jury found  defendant-appellant
                    Per  Curiam.
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          Humberto Prada  Cordero (Prada)  guilty, in absentia,1  of aiding
                                                   __ ________



          and  abetting the  possession,  with intent  to deliver,  of just



          under  one kilogram  of cocaine.   The  district court  imposed a



          lengthy  incarcerative sentence.   Prada  appeals.   We summarily



          affirm.



                                          I
                                          I



                    A criminal defendant who  essays a claim of evidentiary



          insufficiency must scramble across rocky terrain.  As long as the



          proof  presented, taken in the light most amiable to the verdict,



          suffices  to allow a rational jury to find each essential element



          of the offense of conviction beyond a reasonable doubt, the claim



          fails.  See United States v. Olbres, 61 F.3d 967, 970 (1st Cir.),
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          cert.  denied, 116 S.Ct. 522 (1995); United States v. Gifford, 17
          _____  ______                        _____________    _______



          F.3d 462, 467 (1st Cir. 1994).   In other words, if the aggregate



          evidence, examined in the required light, justifies a judgment of



          conviction, "it need not rule out other hypotheses more congenial



          to a finding of innocence."  Gifford, 17 F.3d at 467.
                                       _______



                    In applying  these criteria, all  the evidence,  direct



          and  circumstantial,  must   be  viewed  from   the  government's



          perspective, and the viewer must credit all reasonable inferences



          consistent with the  verdict.   See United States  v. Taylor,  54
                                          ___ _____________     ______



          F.3d 967, 974 (1st Cir. 1995); United States v. O'Brien, 14  F.3d
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          703, 706 (1st Cir.  1994).  Phrased another way, "the trial judge

                              
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               1The appellant  fled midway through  his trial.   The  trial

          continued in his absence.   On appeal, he does  not challenge the

          district court's decision to proceed.



                                          3



must resolve all evidentiary  conflicts and credibility questions



          in  the prosecution's  favor; and,  moreover, as  among competing



          inferences,  two or more of  which are plausible,  the judge must



          choose  the inference that best  fits the prosecution's theory of



          guilt."  Olbres, 61 F.3d at 970.
                   ______



                    The appellant's insufficiency  claim cannot pass muster



          under these straightforward rules.   An overview of the  crime is



          set forth in United States v. Rullan-Rivera, 60 F.3d 16 (1st Cir.
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          1995),  in which  we affirmed  the conviction  of one  of Prada's



          codefendants.    The record  on  appeal makes  pellucid  that the



          appellant, at a bare minimum, recruited  Erasto Miranda-Rodriguez



          (Miranda) as a  courier, and determined the amount  to be paid to



          this  somewhat reluctant dragon for  his services in the smuggle.



          All  incoming calls from Miranda  were routed to  Prada and, when



          the day arrived on which the cocaine was to be transported to the



          mainland, Prada personally delivered it to Miranda, urged him on,



          and accompanied him to  the airport.  This, and  other, evidence,



          if credited by the jury    as it plainly was   left no reasonable



          doubt but that the appellant associated himself with the  overall



          venture, participated in it  as an enterprise he wished  to bring



          to  fruition, and endeavored by  his actions to  make it succeed.



          No  more is  exigible  to sustain  a  conviction for  aiding  and



          abetting.  See Nye &  Nissen v. United States, 336 U.S.  613, 619
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          (1949); see also 18 U.S.C.   2.
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                                          II
                                          II



                    The  appellant  also  challenges  the  district court's


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calculation  of  the  guideline  sentencing range  (GSR)  in  two



          respects.  Both sorties are unavailing.



                    1.   The appellant claims  that he was  not a principal



          participant  in the  offense of  conviction, and  that  the lower



          court erred in designating him as a "manager" or "supervisor" and



          increasing   his  offense   level  accordingly.     See  U.S.S.G.
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           3B1.1(c).  We discern no error.



                    Absent  a mistake of  law   and  we see none  here   we



          review  a   district  court's   factual  findings   concerning  a



          defendant's  role in  the offense  for clear  error.   See United
                                                                 ___ ______



          States  v. Akitoye,  923 F.2d  221, 227  (1st Cir.  1991); United
          ______     _______                                         ______



          States v. Ocasio, 914  F.2d 330, 333  (1st Cir. 1990).   Although
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          this  is  not an  insurmountable  barrier, it  is  nevertheless a



          daunting one.  Debates over a defendant's role in the offense are



          fact-based  and, therefore, "will almost always be won or lost in



          the district court."   United States v. Graciani, 61  F.3d 70, 75
                                 _____________    ________



          (1st  Cir.  1995).   There is  no  justification for  a different



          result here.



                    We  will not  belabor the obvious.   See,  e.g., United
                                                         ___   ____  ______



          States  v.  Ruiz-Garcia,  886  F.2d  474,  477  (1st  Cir.  1989)
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          (warning, in a sentencing appeal, that an appellate  court should



          not "wast[e]  overtaxed judicial resources razing  castles in the



          air").    In determining  whether  the  government satisfied  its



          burden of proving the appellant's liability for a two level role-



          in-the-offense adjustment, the sentencing court was not obligated



          to  accept   the  appellant's  self-interested   account  of  his


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involvement as a mere  courier.  See United States  v. Paz-Uribe,
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          891 F.2d 396, 399  (1st Cir.), cert. denied, 495 U.S. 951 (1990).
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          The record  strongly suggests that,  in this case,  the appellant



          was  Miranda's  immediate  supervisor:     he  persuaded  him  to



          undertake the  journey, authorized his  compensation, brought him



          the contraband, urged him  to go forward, accompanied him  to the



          airport, and, presumably    based on the appellant's  own (nearly



          identical) itinerary and tickets    planned personally to oversee



          the contraband's  safe arrival.2  These  facts adequately support



          the district court's  assessment of the  appellant's role in  the



          offense.  See, e.g.,  Akitoye, 923 F.2d at 227; United  States v.
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          Diaz-Villafane, 874 F.2d 43, 48-49 (1st Cir.), cert.  denied, 493
          ______________                                 _____  ______



          U.S. 862 (1989).



                    2.  The appellant also  assails the district court  for



          refusing  to  grant  a  downward  adjustment  for  acceptance  of



          responsibility.  See U.S.S.G.   3E1.1.  This is merely  sound and
                           ___



          fury, signifying  little.   The appellant steadfastly  denied his



          guilt,  fled in  mid-trial  when matters  did  not go  well,  and



          continued  to minimize his involvement  in the affair  up to (and



          including)  the time of sentencing.  Thus, the district court had



          a  plausible basis  for  concluding that  the  appellant had  not



          forthrightly accepted responsibility.



                    We  need go  no further.    As we  wrote on  an earlier

                              
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               2The appellant and Miranda were both scheduled to take Delta

          Flight No. 189 from  Carolina, Puerto Rico, to  Atlanta, Georgia.

          Their  tickets  had been  purchased  simultaneously  at the  same

          travel agency.


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occasion, "[t]he guidelines do not require a sentencing judge  to



          play  the ostrich,  burying his  head in  the sand,  struthiously



          accepting every allocution at face value, and ignoring  the stark



          reality of events."  United States v. Royer, 895 F.2d 28, 30 (1st
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          Cir. 1990).  The discount for acceptance of responsibility is not



          automatic;  achieving  it   "necessitates  candor  and  authentic



          remorse     not  merely  a  pat  recital  of  the  vocabulary  of



          contrition."    Id.    The  district  court's  finding  that  the
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          appellant did not meet  this standard easily survives clear-error



          review.


Affirmed.  See 1st Cir. R.27.1.
                    Affirmed.  See 1st Cir. R.27.1.
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