UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1221
UNITED STATES,
Appellee,
v.
LUIS E. OVALLE-MARQUEZ,
Defendant - Appellant.
No. 93-1458
UNITED STATES,
Appellee,
v.
MIGUEL A. RIVERA-SANTIAGO,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Carter,* District Judge.
* Of the District of Maine, sitting by designation.
Beverly P. Myrberg for appellant Luis E. Ovalle-M rquez.
H. Manuel Hern ndez, by Appointment of the Court, for
appellant Miguel A. Rivera-Santiago.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, was on brief for
appellee.
September 29, 1994
-2-
TORRUELLA, Circuit Judge. A grand jury returned a
seven-count indictment charging nine defendants, including
appellants Luis Enrique Ovalle-M rquez ("Ovalle") and Miguel A.
Rivera- Santiago ("Rivera"), with offenses related to the
importation of cocaine, and possession of cocaine with the intent
to distribute. A trial was held and the jury returned guilty
verdicts against Ovalle and Rivera on four of the counts.
Pursuant to the applicable sentencing guidelines, the district
court then sentenced both Ovalle and Rivera to terms of life
imprisonment. Ovalle and Rivera now appeal, challenging both
their convictions and their sentences on a variety of grounds.
We affirm.
I. BACKGROUND
A. Facts
The testimony and other evidence properly introduced at
trial, viewed in the light most favorable to the verdicts,
established the following facts. See United States v. Rivera-
Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492
U.S. 910 (1989).
A paid government confidential informant, Willie
Linder, alerted special agents of the Drug Enforcement
Administration ("DEA") to a drug trafficking operation in the
Lajas/Cabo Rojo area of Puerto Rico. Linder, a German citizen,
is a fisherman who has lived in Puerto Rico since 1960.
On November 27, 1991, Linder met with Ovalle, Rivera,
co-defendants Sergio Monteagudo-Mart nez ("Monteagudo"), and
-3-
Humberto Artunduaga-Alvarado in Las Cuebas, Puerto Rico.
(Monteagudo entered into a plea agreement with the government and
testified for the prosecution). At this meeting, these
individuals planned to import approximately 800 kilograms of
cocaine (approximately 22 bales), which was to be first
airdropped in waters off the coast of the Dominican Republic, and
then brought into Puerto Rico. The meeting's participants
planned to use two vessels - Linder would captain his own boat,
and Monteagudo would captain the other boat. These vessels would
depart from Puerto Rico for a location off the coast of Punta
Espada, Dominican Republic, where, with the help of some other
people unknown to them, they would load the cocaine onto the
vessels. Tentatively, they scheduled the smuggling venture for
sometime between December 8-13, 1991.
On November 29, 1991, Ovalle and Artunduaga delivered
$1000 to Linder for the purpose of enabling Linder to repair his
boat. Thereafter, and up until December 9, Ovalle and Artunduaga
sporadically met with Linder to inquire about the status of the
repairs to his boat, and to provide Linder with additional money
to complete the repairs.
Rivera apparently became suspicious of Linder, and the
defendants did not then include Linder in the smuggling operation
planned for early December. On or about December 7, 1991,
Ovalle, Rivera and Monteagudo, as well as others, met to finalize
the plans for the smuggling operation, without Linder's help. At
this December 7 meeting, Rivera gave Monteagudo two firearms, a
-4-
.38 caliber revolver and a .22 caliber pistol. Ovalle loaded the
firearms for Monteagudo.
On December 9, 1991, Monteagudo, co-defendant Santos
Victor Chala-Ramos ("Chala"), and two other men from the
Dominican Republic, picked up 21 bales, containing approximately
800 kilograms of cocaine, off the coast of Santo Domingo,
Dominican Republic, after giving a pre-arranged signal to a plane
flying nearby. Because one of the boats that Monteagudo had
planned to use to pick up the cocaine was damaged, he decided to
take one boat with 11 bales of cocaine, and leave 10 bales of
cocaine hidden on a nearby beach, guarded by the two man crew of
the damaged boat.
On December 11, 1991, Monteagudo proceeded to import 11
of the 21 bales of cocaine into Puerto Rico. Unknown persons,
however, began to pursue Monteagudo's boat, and Monteagudo and
the other Dominican man on board (known to Monteagudo as
"Queque"), threw seven bales into the water in an attempt to halt
the pursuit and minimize the loss of the entire load. Monteagudo
eventually delivered the remaining four bales to Ovalle and
Rivera.
The defendants then arranged to import the rest of the
cocaine that had been left behind in the Dominican Republic. On
December 12, Ovalle and Rivera met with Linder to survey areas,
including Playita Rosada in La Parguera, Puerto Rico for possible
landing sites to import the additional cocaine.
On December 13, Ovalle, Rivera and Artunduaga met with
-5-
Linder at his home to obtain his help in importing the other ten
bales of cocaine. Linder was instructed to meet with Ovalle in
Ponce for further instructions. Linder then met with Ovalle and
another man as arranged. The men then went to Rivera's home,
where Linder left his car, and Rivera, Ovalle, Linder and the
other man then proceeded to a pier in Ponce. Monteagudo met them
there, and Monteagudo and Linder then departed in a boat for
Lajas, Puerto Rico. Sometime during the day, Linder contacted
DEA agents and advised them of the planned venture.
On December 14, Monteagudo and Linder departed Puerto
Rico to a rendezvous point near Saona, Dominican Republic, where
they were assisted by several Dominican men in the loading of the
remaining ten bales of cocaine (372 kilograms). On the following
day, Monteagudo and Linder returned to Playita Rosada, where DEA
agents seized the cocaine and arrested Monteagudo. DEA agents
subsequently arrested Ovalle and Rivera.
B. Procedural Background
On June 3, 1992, a grand jury returned a second
superseding seven count indictment against Ovalle and Rivera, and
seven other defendants. Counts One and Two of the indictment
charged the defendants with conspiring to import, and possess
with the intent to distribute, approximately 800 kilograms of
cocaine from November 27 to December 17, 1991, in violation of 21
U.S.C. 841(a)(1), 846, 952(a) and 963. Count Three charged
the defendants with aiding and abetting the importation of
approximately 418 kilograms of cocaine on December 11, 1991 in
-6-
violation of 21 U.S.C. 952(a) and 18 U.S.C. 2. Count Four
charged the defendants with aiding and abetting the possession
with intent to distribute approximately 150 kilograms of cocaine
on December 11, 1991, in violation of 21 U.S.C. 841(a)(1) and
18 U.S.C. 2. Counts Five and Six charged the defendants with
aiding and abetting the importation, and possession with intent
to distribute, 372 kilograms of cocaine on December 15, 1991, in
violation of 21 U.S.C. 841(a)(1) and 952(a), and 18 U.S.C. 2.
Count Seven charged the defendants with aiding and abetting the
use and carrying of firearms in relation to a drug offense, in
violation of 18 U.S.C. 924(c)(1).
The trial commenced on August 25, 1992, and the jury
returned guilty verdicts against Ovalle and Rivera on Counts One,
Two, Five and Six. The jury acquitted all of the defendants,
including Ovalle and Rivera, of the charges in Counts Three, Four
and Seven.
On January 22, 1993, the court held a sentencing
hearing and determined that Ovalle's total offense level was 46,
and that his Criminal History Category was I, therefore making
his guideline sentencing range life imprisonment. The court then
sentenced Ovalle to four concurrent sentences of life
imprisonment.
At a sentencing hearing on April 2, 1993, the court
determined that Rivera's total offense level was 47, and that his
Criminal History Category was I, which also mandated a sentencing
guideline range of life imprisonment. The court then sentenced
-7-
Rivera to four concurrent sentences of life imprisonment.
Rivera and Ovalle now allege a number of grounds to
challenge both their convictions and sentences.
-8-
II. DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION?
Rivera contends that the district court improperly
limited his counsel's cross-examination of two government
witnesses, and that this denied Rivera his Sixth Amendment right
to confront adverse witnesses. The Confrontation Clause of the
Sixth Amendment guarantees an accused in a criminal proceeding
the right "to be confronted with the witnesses against him."
U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678
(1986); United States v. Alvarez, 987 F.2d 77, 82 (1st Cir.),
cert. denied, 114 S. Ct. 147 (1993). The Confrontation Clause
secures an accused the right to cross-examine adverse witnesses
in order to test "the believability of a witness and the truth of
his testimony." United States v. Carty, 993 F.2d 1005, 1009 (1st
Cir. 1993) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974));
Alvarez, 987 F.2d at 82 (citations omitted). The right to cross-
examine an adverse witness, however, is not unlimited. United
States v. Corgain, 5 F.3d 5, 8 (1st Cir. 1993); Carty, 993 F.2d
at 1009; Alvarez, 987 F.2d at 82.
[T]rial judges retain wide latitude
insofar as the Confrontation Clause is
concerned to impose reasonable limits on
such cross-examination based on concerns
about, among other things, harassment,
prejudice, confusion of the issues, the
witness' safety, or interrogation that is
repetitive or only marginally relevant.
Van Arsdall, 475 U.S. at 679; see also Carty, 993 F.2d at 1010;
Alvarez, 987 F.2d at 82; United States v. Moore, 923 F.2d 910,
913 (1st Cir. 1991).
We review a trial court's decision to limit cross-
-9-
examination under an abuse of discretion standard. Carty, 993
F.2d at 1011; United States v. Twomey, 806 F.2d 1136, 1140 (1st
Cir. 1986).
In order to establish that the trial
judge abused his discretion in limiting
cross-examination, the defendant must
show that the restrictions imposed were
clearly prejudicial. . . . An abuse of
discretion has occurred only if the jury
is left without "sufficient information
concerning formative events to make a
'discriminating appraisal' of a witness's
motives and bias."
Twomey, 806 F.2d at 1140 (quoting United States v. Campbell, 426
F.2d 547, 550 (2d Cir. 1970)) (internal citations omitted).
Rivera has made no such showing.
Rivera contends that his right to cross-examine adverse
witnesses was unfairly restricted on four occasions. First,
Rivera argues that he was not fully permitted to cross-examine
the confidential informant, Linder, regarding whether Linder had
ever been a member of "Hitler's Youth League," or a member of the
French Foreign Legion, an organization known for being soldiers
of fortune. Rivera claims that this testimony was relevant in
order to show that Linder was familiar with guns, and that Linder
was a mercenary willing to do anything for money.
With respect to Linder's alleged membership in Hitler's
Youth League, Rivera's counsel failed to establish any foundation
showing how this line of questioning would establish that Linder
was familiar with guns. The record indicates that after the
trial judge very patiently informed counsel that he needed to
establish the relevance of this question, and that he needed to
-10-
lay some sort of foundation for this question, Rivera's counsel
did not pursue this specific line of questioning. Thus, counsel,
and not the court, effectively cut off his own cross-examination.
Moreover, the fact that Linder may have been a member of Hitler's
Youth League when he was 9 years old was of virtually no
relevance to this case, and the trial judge would have acted well
within his discretion in not permitting this line of questioning.
With respect to Linder's membership in the French Foreign Legion,
the record shows that Rivera's counsel was able to cross-examine
Linder adequately, and that Linder admitted that he learned about
guns while in the French Foreign Legion, and that he was paid for
serving in this organization.1
Second, Rivera contends that the court improperly
limited his cross-examination of Monteagudo with respect to his
attempts to cast doubt on Monteagudo's veracity and objectivity.
Rivera's counsel asked Monteagudo about the true name of
"Queque," the man who had accompanied Monteagudo when he
attempted to smuggle the eleven bales of cocaine into Puerto Rico
1 Rivera claims that he was prejudiced by the fact that he was
only able to pursue his cross-examination regarding Linder's
involvement in the French Foreign Legion after being "required to
fully explain the basis of this line of questioning, within ear
shot of the witness, thereby revealing his defense strategy . .
." After examining the record, we find Rivera's allegation that
the trial court somehow required him to disclose his defense
strategy within hearing distance of the witness to be
preposterous. Moreover, if Rivera's counsel was worried that the
witness would overhear him explain the basis of his line of
questioning, counsel should have kept his voice down, or
requested that the witness be repositioned during the sidebar
conference.
-11-
on December 11,2 and the true name of Monteagudo's wife, in an
attempt to show that "Queque" and his wife were cousins, and that
Monteagudo had a reason to steal part of the shipment of cocaine
with "Queque."
Defense Counsel: Okay, So you were
traveling with this fellow Queque and
he's Dominican like you; yes or no?
Monteagudo: Yes, sir.
Defense Counsel: And who is a friend of
yours?
Monteagudo: Yes, sir.
Defense Counsel: And whose real name is
Nelson Mota; yes or no?
Monteagudo: I don't know his true name.
Defense Counsel: Your wife's name is
Iris Mota; isn't it?
Prosecutor: We have an objection.
A lengthy sidebar conference was then held, and the district
court stated that defense counsel could ask Monteagudo if he knew
what "Queque's" true name was, but that counsel could not
interject Nelson Mota's name into the question unless he had some
good faith basis to show that "Queque's" true name was in fact
Nelson Mota. Defense counsel stated that his investigation
showed that "Queque's" true name was Nelson Mota, but counsel was
not able to point to any specific fact, or to specifically
identify any potential witness who would be able to support the
2 In the indictment, "Queque" was identified as co-defendant
Carlos Cruz-Santiago, and he remained a fugitive throughout the
proceedings.
-12-
conclusion of his supposed investigation. The district court
then refused to permit Rivera's counsel to pursue the line of
questioning which expressly linked the name of Nelson Mota to
"Queque."
The district court did not abuse its discretion in
determining that Rivera's counsel had failed to establish a good
faith basis to warrant further inquiry regarding the true name of
"Queque." See, e.g., Carty, 993 F.2d at 1010; Rivera-Santiago,
872 F.2d at 1085. While the purpose of cross-examination is to
impeach the credibility of a witness, the basis for the
impeachment cannot be speculation and innuendo with no
evidentiary foundation. Rivera-Santiago, 872 F.2d at 1085.
There was simply no evidentiary basis for defense counsel's
theory that "Queque" and Monteagudo's wife, Iris Mota, were
related. Nor was there any substantiated basis showing that,
based on this alleged relationship, Monteagudo and "Queque"
collaborated to steal some of the cocaine.
The third alleged instance of the court improperly
curtailing cross-examination involved defense counsel's
questioning of Monteagudo regarding the terms of his plea
agreement with the government. Specifically, Rivera's counsel
asked Monteagudo if when he entered into the plea agreement, the
government told him that if he cooperated there was the
possibility that he could go free without serving any jail time
at all. Monteagudo replied no. Rivera's counsel then asked him
if he otherwise knew that there was a possibility he could go
-13-
free if he entered into a plea agreement. The government
objected, and the court sustained the objection, stating that
Monteagudo had just testified that he had not been told that.
A review of the record makes it clear that the jury was
well aware of the fact that Monteagudo had entered into a plea
agreement with the government, and that he would receive
favorable treatment in exchange for his testimony. On direct
examination, Monteagudo stated that he had entered into a plea
agreement with the government, and the agreement was admitted
into evidence. The jury could therefore see precisely what
benefits Monteagudo was given in exchange for his cooperation.
On cross-examination, Monteagudo also stated that he knew he was
facing a sentence of 15 years to life when he decided to
cooperate with the government. This evidence provided the jury
with sufficient information to make a discriminating appraisal of
Monteagudo's motives and biases.3 See, e.g., Twomey, 806 F.2d
3 After the court excluded the question of Rivera's counsel, the
court stated that it would instruct the jury regarding the plea
agreement. In its final charge, the court explained the
circumstances surrounding the testimony of a co-defendant who had
pled guilty. The court stated:
In this case, there has been testimony
from a government witness who pled guilty
after entering into an agreement with the
government to testify. There is evidence
that the government agreed to dismiss
some charges against the witness in
exchange for the witness' agreement to
plead guilty and testify at this trial
against the defendants.
The government also promised to bring the
witness' cooperation to the attention of
the sentencing court, and you all heard
-14-
at 1139-40.
As a fourth ground, Rivera claims that the court
improperly cut off his cross-examination of Monteagudo regarding
his understanding of his oath to tell the truth. The court
sustained an objection by the prosecutor regarding whether
Monteagudo knew that he was suppose to tell the truth. The
record shows that Rivera's counsel had previously made several
references to the fact that Monteagudo was under oath and that he
had an obligation to tell the truth. On the occasion that the
court sustained the objection, it acted well within its
discretion by cutting off repetitive questioning.
As a final matter, we have reviewed the entire cross-
that. The government is permitted to
enter into this kind of plea agreement.
You in turn may accept the testimony of
such a witness and convict the defendants
on the basis of this testimony alone, if
it convinces you of the defendants' guilt
beyond a reasonable doubt. However, you
should bear in mind that a witness who
has entered into such an agreement has
an interest in this case different than
the ordinary witness. A witness who
realizes that he may be able to obtain
his own freedom or receive a lighter
sentence by giving testimony favorable to
the prosecution has a motive to testify
falsely. Therefore, you must examine the
testimony with caution and weigh it with
great care and if after scrutinizing his
testimony you decide to accept it you may
give it whatever weight, if any, you find
it deserves.
We do not believe that the court improperly limited cross-
examination regarding the plea agreement. Moreover, in light of
this final instruction, we do not believe that Rivera has grounds
to complain that any limitation on cross-examination in that
regard prejudiced his ability to attack Monteagudo's credibility.
-15-
examination of both Linder and Monteagudo. The cross-examination
of each witness was thorough, and we believe that the jury had
sufficient information regarding the witnesses' motives and
biases to judge the credibility of the witnesses and the
truthfulness of their testimony.
III. PROSECUTORIAL MISCONDUCT?
Rivera and Ovalle both claim that the prosecutor
engaged in misconduct by improperly tying the defendants to a
conspiracy with Colombian ties, despite the lack of evidence of
any such international drug ring. Specifically, Rivera and
Ovalle claim that references in the prosecutor's closing argument
to certain testimony by Monteagudo were improper. The prosecutor
stated:
This is a well organized conspiracy. And
from where you can reason that? You
remember November 27, the planning. From
where that cocaine was coming? From
Colombia, South America. Therefore, you
can reasonably infer that some of these
defendants have contacts in Colombia,
because otherwise who would call them to
bring and to make the airdrop . . . .
This is an organization. It's a
conspiracy not only in Puerto Rico, but
also in Colombia.
The prosecutor also argued:
It's the fact that when Sergio Monteagudo
communicated with the plane using this
code the plane responded. He knew what
that man at the sea was talking about.
Therefore, someone in the conspiracy
contacted back to Colombia and say to the
plane or some person: Hey, the code for
the load, the air drop of the cocaine,
that the code is "Leandro" and "Matilde."
-16-
Rivera and Ovalle suggest that the remarks were intended to
inflame the passions of the jury, members of which are bombarded
daily with superheated rhetoric of the government's war on drugs,
and the prominent role that Colombia plays as a principal source
of drugs. To warrant reversal of a conviction on the grounds
of a prosecutor's improper jury argument, a court must find that
the prosecutor's remarks were both inappropriate and harmful.
See United States v. Young, 470 U.S. 1, 11-12 (1985). Arguments
which urge a jury to act in any capacity other than as the
impartial arbiter of the facts in the case before it, such as
arguments that serve no purpose other than to inflame the
passions and prejudices of the jury, are improper. United States
v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot v.
United States, 3 F.3d 525, 527 (1st Cir. 1993).
We do not believe that the prosecutor's remarks in his
closing were improper. During the trial, Monteagudo testified
that Ovalle had told him that the cocaine was coming from
Colombia, and this was an admissible hearsay statement of a co-
conspirator.4 See Fed. R. Evid. 801(d)(2)(E). In his closing
4 Defense counsel argues that the court erred in admitting
Monteagudo's testimony that Ovalle had told him the cocaine was
coming from Colombia. Defense counsel had previously objected
that Monteagudo could not testify that he knew that the cocaine
was coming from Colombia unless he in fact had such personal
knowledge. The court effectively sustained this objection and
Monteagudo did not testify that he had personal knowledge that
the cocaine was coming from Colombia. Rather, Monteagudo then
testified that he only had second hand knowledge that the cocaine
came from Colombia based on Ovalle's statement to him, and
defense counsel did not object to this testimony. Any error in
the admission of the evidence was not preserved for appeal. See
United States v. Rosales, 19 F.3d 763, 765 (1st Cir. 1994). Our
-17-
argument, the prosecutor then did what he was entitled to do --
ask the jury to draw warrantable inferences from the evidence
admitted during trial -- that the conspiracy was importing
cocaine from Colombia into Puerto Rico. United States v.
Tajeddini, 996 F.2d 1278, 1283 (1st Cir. 1993) (citations
omitted); see also United States v. Moreno, 947 F.2d 7, 8 (1st
Cir. 1991); United States v. Abello-Silva, 948 F.2d 1168, 1182
(10th Cir. 1991), cert. denied, 113 S. Ct. 107 (1992). The jury
thus had a complete view of the conspiracy's efforts to import
cocaine -- conspirators picked up cocaine in Colombia, airdropped
it to waiting associates off the coast of the Dominican Republic,
who then transported the cocaine by boat into Puerto Rico.
Despite the contentions of Ovalle and Rivera to the contrary, the
prosecutor's remarks were not the type, and did not approach the
level, of rhetoric we have previously found to be improper
because it served no other purpose but to inflame the passions
and prejudices of the jury. See, e.g., Arrieta-Agressot, 3 F.3d
at 527 (finding that prosecutor's remarks which urged jury to
consider case as a battle in the war against drugs and defendants
as enemy soldiers, and remarks which referred to the corruption
of "our society" and the poisoning of "our children,"
standard of review under the circumstances is therefore "plain
error," and we will reverse only if the error "seriously affected
the fairness, integrity, or public reputation of [the] judicial
proceeding." Id. (citations omitted). We answer the underlying
question -- did the court err in admitting the evidence -- in the
negative. We do not believe that the prejudice associated with
admitting Ovalle's statement outweighed the relevance of that
evidence, and the court did not abuse its discretion in admitting
that statement.
-18-
inflammatory and not permissible argument); United States v.
Machor, 879 F.2d 945, 955-56 (1st Cir. 1989) (finding
prosecutor's remarks in closing statement that cocaine was
"poisoning our community and our kids die because of this" was
inappropriate), cert. denied, 493 U.S. 1081 (1990).5
IV. INEFFECTIVE ASSISTANCE OF COUNSEL?
Rivera claims on appeal that he was deprived of
effective assistance of counsel at trial, because of an alleged
conflict of interest based on the relationship between his
attorney and the attorney who represented Monteagudo, who was one
of the main government witnesses during the trial. Rivera's
attempt to raise this claim for the first time here on appeal is
ill-timed. "[A] fact-specific claim of ineffective legal
assistance cannot be raised initially on direct review of a
criminal conviction, but must originally be presented to the
district court." United States v. Hunnewell, 891 F.2d 955, 956
5 Ovalle and Rivera argue that there was a continuing pattern of
prosecutorial misconduct in this case due to the government's
endless objections during cross-examination, derogatory comments
about defense counsel in front of the jury, demeaning lectures to
defense counsel, and other abusive tactics which deprived
defendants of a fair trial. Specifically, they point to an
incident where the prosecutor allegedly improperly vouched for
the credibility of a government witness by stating that the
witness was telling the truth. We have reviewed the record with
respect to this instance, and after considering the prosecutor's
alleged indiscretion in the context of an awkward colloquy
following defense counsel's question regarding whether the
witness understood he had an obligation to tell the truth, and
the court's subsequent instruction that it was up to the jury to
determine if the witness was telling the truth, we do not believe
that there was any prejudicial error. Additionally, we have
reviewed the entire record with a view for the other alleged
improprieties, and we do not believe that there was a continuing
pattern of prosecutorial misconduct.
-19-
(1st Cir. 1989) (quoting United States v. Costa, 890 F.2d 480,
482-83 (1st Cir. 1989)) (other citations omitted). Rivera did
not present a claim to the district court showing that this
conflict of interest deprived him of effective legal assistance.
Additionally, the record is not developed enough as a factual
matter to enable us to consider this issue. See, e.g., Costa,
890 F.2d at 483. We therefore reject Rivera's claim as
premature, but do so without prejudice to Rivera's right to bring
such a claim under 28 U.S.C. 2255.
V. SENTENCING ISSUES
A. Standard of Review
Ovalle and Rivera challenge the district court's
application of the sentencing guidelines in determining their
sentences on a number of grounds. When we review a district
court's application of a sentencing guideline, we utilize a
bifurcated process. First, we review the guideline's legal
meaning and scope de novo. United States v. Brewster, 1 F.3d 51,
54 (1st Cir. 1993) (citing United States v. St. Cyr, 977 F.2d
698, 701 (1st Cir. 1992)). Next, we review the court's
factfinding for clear error, giving due deference to the court's
application of the guidelines to the facts. 18 U.S.C. 3742(e);
Brewster, 1 F.3d at 54 (citing St. Cyr, 977 F.2d at 701). We
also note that factbound matters related to sentencing need only
be supported by a preponderance of the evidence. United States
v. Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992) (citations
omitted).
-20-
B. Rivera's Sentencing Challenges
Rivera was convicted of four drug related charges. At
sentencing, the court accepted the Presentence Report's ("PSR")
analysis that because Rivera was convicted of conspiracy to
import approximately 800 kilograms of cocaine, and conspiracy to
possess with the intent to distribute approximately 800 kilograms
of cocaine, the appropriate sentencing guideline was 2Dl.1.6
The base offense level ("BOL") is determined by 2D1.1(c)(2),
which is based on the total amount of controlled substances
involved. Because the offenses involved 800 kilograms of
cocaine, the BOL was determined to be 40.7
The court then enhanced the BOL by applying several
upward adjustments, over Rivera's objections. The court applied
a two level enhancement, pursuant to U.S.S.G. 2D1.1(b)(1),
because the court found that Rivera possessed firearms during the
commission of the offense. Pursuant to 3Bl.1(b), the court
increased the BOL by three because it found that Rivera was a
supervisor in a criminal activity involving five or more
participants. The court also made an upward adjustment of two,
under U.S.S.G. 3C1.1, based on its finding that Rivera
obstructed justice by perjuring himself, and attempting to coax a
co-defendant into providing false information to a probation
6 All references to the Sentencing Guidelines are to the 1992
guidelines, which were in effect at the time the court sentenced
Rivera and Ovalle.
7 Pursuant to 3D1.2(d), counts one, two, five and six were
grouped together into a combined offense level because the counts
involve the same general type of offense.
-21-
officer. The court determined that the total offense level was
47, and because Rivera's Criminal History Category was I, he
therefore faced a guideline sentencing range of life
imprisonment. The court then sentenced Rivera to serve
concurrent terms of life imprisonment as to the four counts.
-22-
1. The District Court's Finding Regarding the
Quantity of Drugs
The district court determined Rivera's BOL on the basis
of his and his co-conspirators' conduct, and the total amount of
drugs involved in the conspiracy, approximately 800 kilograms of
cocaine. The court rejected Rivera's contention that it should
decrease the relevant quantity of cocaine to 372 kilograms
because Rivera was acquitted on the substantive charges of
importing and possessing 418 kilograms of the 800 kilograms of
cocaine involved in the case.8 The court stated:
[I]n any event, on the preponderance of
the evidence the Court finds that this
defendant had jointly undertaken this
criminal activity and is held accountable
of the conduct of others. And that he
was found guilty by the jury on eight
hundred kilos [in] the Count charged.
And so that the Court finds that -- rules
that it's not going to lessen by two
points the three hundred and seventy-two
kilo amount under the relevant conduct
issue.
When a defendant has been convicted of a drug related
offense, a key factor in constructing the defendant's sentence is
the quantity of narcotics attributable to him, a factor which is
determined by looking at the sum of the charged conduct of which
8 Rivera argues that in denying each of Rivera's objections to
his sentence, the court incorrectly believed that its hands were
tied and that the court believed that it was required as a matter
of law to reject Rivera's contentions. Other than making this
general allegation, however, Rivera does not point to any
specific instances. Moreover, we do not read the record this
way, and do not believe that the court incorrectly interpreted
its legal authority with respect to the various sentencing
issues.
-23-
the defendant was convicted, plus his "relevant" conduct. See
United States v. Garc a, 954 F.2d 12, 15 (1st Cir. 1992)
(citations omitted); see also United States v. Innamorati, 996
F.2d 456, 488 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993);
U.S.S.G. 2D1.1. The court determines the drug quantity by
looking at all acts "that were part of the same course of conduct
or common scheme or plan as the offense of conviction." U.S.S.G.
1B1.3(a)(2); Garc a, 954 F.2d at 15; United States v. Mak, 926
F.2d 112, 113 (1st Cir. 1991). In the case of jointly undertaken
criminal activity, such as a conspiracy, a defendant is
accountable for "all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal
activity, that occurred during the commission of the offense of
conviction, [or] in preparation for that offense . . . . "
U.S.S.G. 1B1.3(a)(1)(B); see Innamorati, 996 F.2d at 488. A
court's determination regarding the amount of drugs involved in
an offense will only be set aside on appeal if it is clearly
erroneous. See Innamorati, 996 F.2d at 489.
The jury convicted Rivera of Counts One and Two, which
charged Rivera with conspiracy to import, and to possess, 800
kilograms of cocaine. At sentencing, the court seemingly looked
to U.S.S.G. 1B1.3(a)(1)(B) and found that Rivera, and his
cohorts, had jointly undertaken this criminal activity, and
Rivera was accountable for the other's conduct in attempting to
import and possess all 800 kilograms of cocaine. The court's
finding was supported by evidence introduced at trial. Both
-24-
Linder and Monteagudo testified that they met with Rivera,
Ovalle, and another co-defendant on November 27, 1991, and that
at this meeting they planned to import into Puerto Rico, 22 bales
of cocaine (800 kilograms) which were to be airdropped off the
coast of the Dominican Republic. Testimony by Monteagudo showed
that the original scheme to import the cocaine did not proceed
precisely according to plan, because of boat problems and a
pursuit by unknown individuals who unexpectedly chased the
conspirators in their boat on December 11, forcing them to dump
some of the cocaine overboard. Testimony by Linder and
Monteagudo indicated that Rivera and Ovalle then helped to
salvage the original plan and adapt it - by calling Linder into
service and helping him obtain a boat, so that Linder and
Monteagudo could go to the Dominican Republic, and pick up and
import the rest of the cocaine. Thus, the court did not err by
implicitly concluding that Rivera helped plan the logistics of
the scheme to import the entire 800 kilograms, and therefore the
subsequent acts by his co-conspirators to execute this scheme
were in furtherance of, and reasonably foreseeable in connection
with, the jointly undertaken felonious plan.
Rivera contends that the verdicts regarding the
substantive drug charges should guide the court in determining
the correct quantity of cocaine instead of the conspiracy
charges. The operative indictment grouped all of the cocaine
involved in the December 11, 1991 and the December 15, 1991
shipments of cocaine together (800 kilograms) in Count One and
-25-
Two, the conspiracy charges. The indictment then broke down the
substantive charges into the two distinct shipments of cocaine
that the defendants had allegedly attempted to import and
possess. The jury only convicted Rivera of the substantive
charges related to the December 15 shipment, involving 372
kilograms of cocaine (Counts Five and Six), and acquitted Rivera,
and all of his co-defendants, with respect to the December 11,
1991 shipment, involving 418 kilograms of cocaine (Counts Three
and Four). Therefore, Rivera contends that it was improper for
the court to include the amount of cocaine involved in the
charges of which he was acquitted, in determining his BOL.
The fact that Rivera was acquitted of the substantive
charges involving the 418 kilograms of cocaine does not mean,
however, that the court could not consider that conduct as
"relevant conduct." When determining relevant conduct, a
sentencing court may consider acts which were not charged, as
well as the facts underlying a prior acquittal when these facts
"appear reliable." Garc a, 954 F.2d at 15; United States v.
Mocciola, 891 F.2d 13, 17 (1st Cir. 1989) (citation omitted); see
also United States v. Weston, 960 F.2d 212, 218 (1st Cir. 1992)
(stating in dicta that an acquittal is not always conclusive on
an issue for sentencing purposes due to differing standards of
proof). As we have previously noted, testimony by both Linder
and Monteagudo indicated that Rivera planned to import 800
kilograms of cocaine, including the 418 kilograms of cocaine
which was the basis for Counts Three and Four. There was no
-26-
clear error in the court's decision to credit the testimony of
Linder and Monteagudo at sentencing, and then consider Rivera's
conduct with respect to the 800 kilograms of cocaine, when the
court determined Rivera's BOL. See, e.g., Innamorati, 996 F.2d
at 489; Garc a, 954 F.2d at 16; United States v. Sklar, 920 F.2d
107, 110 (1st Cir. 1990).
2. The Firearm Enhancement
Rivera makes a similar challenge to the court's
decision to enhance his sentence pursuant to U.S.S.G. 2D1.1,
because the court found that a firearm was possessed during the
commission of the drug offenses. Rivera argues that the
testimonial evidence linking him and his co-defendants to a
firearm was extremely weak, especially in light of the fact that
no firearm was ever found. Additionally, because the jury
acquitted Rivera and his co-defendants of Count Seven, which
charged them with aiding and abetting the carrying of a firearm
in relation to the commission of the offense, Rivera contends
that there was no basis for the court to enhance his sentence.
U.S.S.G. 2D1.1(b)(1) directs a sentencing court to
enhance a defendant's BOL if a dangerous weapon, including a
firearm, was possessed. The commentary to 2D1.1 states that
the sentencing court should impose the enhancement "if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. 2D1.1 comment (n.3);
United States v. Castillo, 979 F.2d 8, 10 (1st Cir. 1992);
Corcimiglia, 967 F.2d at 727. The First Circuit has followed
-27-
this "clearly improbable" standard. Corcimiglia, 967 F.2d at
726; United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990).
We have found that:
when the weapon's location makes it
readily available to protect either the
participants themselves during the
commission of the illegal activity or the
drugs and cash involved in the drug
business, there will be sufficient
evidence to connect the weapons to the
offense conduct . . . .
Corcimiglia, 967 F.2d at 727; see also Castillo, 979 F.2d at 10.
The defendant then has the burden to come forward with evidence
demonstrating the existence of special circumstances that would
render it "clearly improbable" that the weapon's presence has a
connection to the narcotics trafficking. Castillo, 979 F.2d at
10;
Corcimiglia, 967 F.2d at 727-28.
As we have previously discussed, the court is entitled
to consider "relevant" conduct at sentencing, and this may
include conduct which was the basis for charges that the
defendant was acquitted of, as long as the evidence which
establishes that conduct was reliable. Mocciola, 891 F.2d at 16-
17. The court considered such relevant conduct here when it
decided to apply the U.S.S.G. 2D1.1 enhancement. The court
found:
There's no question in my mind that there
was a gun there. Willie, the
Confidential Informant, talked about it.
Talked about taking the bullets out. Try
to make it inoperable. And then we have
Monteagudo who said that he received two
guns, as a matter of fact, from this
-28-
defendant. And there is a gun.
The court then acknowledged that Rivera had been acquitted of the
firearms charge, but stated that because the court had found that
guns were possessed in connection with the narcotics
transactions, and Rivera did not convince the court that it was
clearly improbable that the gun would have been used in
connection with these narcotic transactions, it was going to
apply the enhancement.
The court's finding was supported by evidence in the
record and was not clearly erroneous. Monteagudo testified that
on December 7, at a meeting with Rivera, Ovalle, and others, to
finalize the plans for the smuggling operation, Rivera gave
Monteagudo two firearms, a .38 caliber revolver and a .22 caliber
pistol. It was certainly reasonable for the court to conclude
that Rivera had given the two firearms to Monteagudo, who was
about to leave on his foray to pick up 800 kilograms of cocaine,
to facilitate this smuggling plan. With the guns, Monteagudo
could protect himself, and his co-conspirators, as well as the
large quantity of cocaine they were to pick up. Additionally,
Linder testified that Monteagudo had in fact brought a .22
caliber pistol with them on December 15, when he and Monteagudo
went to the Dominican Republic to pick up the remaining ten bales
of cocaine and bring the cocaine to Puerto Rico. Thus, absent
circumstances showing that it was clearly improbable that the
firearms were connected to the drug offense, there was sufficient
evidence to support the enhancement. Rivera has not claimed that
-29-
any such special circumstances existed. The court therefore
properly applied the U.S.S.G. 2D1.1 enhancement.
3. The Supervisory and Managerial Role Enhancement
The Supervisory and Managerial Role Enhancement
Rivera challenges the three-level enhancement for
playing a supervisory role which the court imposed pursuant to
U.S.S.G. 3B1.1(b), claiming that the evidence demonstrated he
was an underling, who merely followed orders in this
organization. The court found that "the defendant's role is of a
manager/supervisor and it has been adequately supported by this
record." We review this role-in-the-offense ruling for clear
error. United States v. Judusingh, 12 F.3d 1162, 1169 (1st Cir.
1994) (citation omitted); United States v. Rodr guez Alvarado,
985 F.2d 15, 19 (1st Cir. 1993) (citations omitted).
A three-level enhancement under U.S.S.G. 3B1.1(b) is
appropriate if the government shows that the defendant 1) was a
manager or supervisor of the criminal activity (but not a leader
or organizer); and 2) the criminal activity involved five or more
participants or was otherwise extensive. Rodr guez Alvarado, 985
F.2d at 20. The terms "manager" and "supervisor" are not defined
in the guidelines. A court can find that a defendant is a
manager or supervisor where he "exercised some degree of control
over others involved in the commission of the crime or he [was]
responsible for organizing others for the purpose of carrying out
the crime." See Rodr guez Alvarado, 985 F.2d at 20 (quoting
United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)).
The court did not err in finding that Rivera played a
-30-
managerial or supervisory role in the drug smuggling operation.
The record supports the conclusion that Rivera played a
predominant role in planning and organizing the logistics of this
criminal operation: 1) Rivera was present at the November 27
planning meeting; 2) Rivera gave Ovalle and Linder instructions
with respect to making sure Linder's boat was available to import
the cocaine; 3) Rivera initially became suspicious of Linder, and
then held a meeting where it was decided that Linder would be cut
out of the initial attempt to import the cocaine; 4) Rivera
procured another boat to be used by his cohorts in the initial
attempt to import the 800 kilograms of cocaine; 5) Rivera
provided Monteagudo with two firearms to be used during the drug
smuggling operations; and 6) Rivera, along with Ovalle, met with
Linder with respect to the logistics of importing the remaining
cocaine which had been left behind in the Dominican Republic.
There is also no dispute that more than five individuals were
involved in the drug smuggling plan. The court properly applied
the U.S.S.G. 3B1.1(b) enhancement.
4. The Obstruction of Justice Enhancement
The government requested that the court enhance
Rivera's sentence pursuant to U.S.S.G. 3C1.1, based on Rivera's
obstruction of justice. The government based this request on two
factors: 1) that Rivera had provided a false statement to the
probation officer at a presentence interview to the effect that
he was not involved in the November 27 planning meeting, when
evidence presented at trial showed that Rivera was in fact
-31-
present and actively participated in this meeting; and 2) after
being found guilty, Rivera sent a letter to co-defendant Chala
instructing him to provide false information to the probation
officer to the effect that Monteagudo had misled Chala, that
Chala was unaware of the plan to pick up the cocaine that was to
be airdropped off the coast of the Dominican Republic, and that
none of the defendants had anything to do with this smuggling
operation. At sentencing, the court found that:
Well, I read the letter and the -- and
unfortunately there are parts of it that
I read and said well this could be an
individual writing to another individual
saying to him that, you know, they're not
guilty. And remember -- and just
reminding him of the fact that they're
not guilty and that they have nothing to
do with it. Unfortunately, the letter
goes beyond that. There's instructions.
Actual instructions as to what to tell
people and just to -- . . .
And besides that there is another matter
of the perjury.
The court then applied the two level enhancement for obstruction
of justice.
United States Sentencing Guidelines 3C1.1 provides
that "if the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the
instant offense, increase the offense level by 2 levels." The
enhancement applies where a defendant provides "materially false
information to a probation officer in respect to a presentence or
other investigation for the court." U.S.S.G. 3C1.1, commentary
n.3(h); See United States v. Olea, 987 F.2d 874, 877 (1st Cir.
-32-
1993). The enhancement also applies where a defendant commits,
suborns or attempts to suborn perjury. U.S.S.G. 3C1.1,
commentary n.3(b); See United States v. Gonz les, 12 F.3d 298,
299 (1st Cir. 1993) (finding that the obstruction of justice
enhancement was warranted where the defendant attempted to coax
an acquaintance into bearing false witness about a matter
material to the case). The test for materiality of an alleged
perjured matter is not a stringent one, and the term is defined
to include any "fact, statement, or information that, if
believed, would tend to influence or affect the issue under
determination." U.S.S.G. 3C1.1, commentary n.5; United States
v. St. Cyr, 977 F.2d 698, 705 (1st Cir. 1992).
We review a court's factual findings with respect to an
obstruction of justice enhancement for clear error. See
Gonz les, 12 F.3d at 299; Weston, 960 F.2d at 220. The court
found that Rivera had perjured himself during the presentence
interview with the probation officer. The court would have been
justified in applying the enhancement based on this finding
alone, because Rivera's prevarication regarding his role in the
smuggling plan was material, in that it could have influenced the
probation officer's investigation, and ultimately affected his
determination of Rivera's offense level.
Additionally, the court heard testimony and argument
regarding the letter Rivera sent to Chala, and implicitly found
that the letter was authentic, that Chala had received it, and
that Rivera's letter specifically instructed Chala to lie to the
-33-
probation officer. Statements Chala would make to the probation
officer regarding what occurred during the drug smuggling
operation, and statements attempting to portray Monteagudo as the
sole wrongdoer, were material in that they could have influenced
or affected various sentencing issues related to the
determination of offense levels, such as relevant conduct and
various defendants' roles in the offense. See, e.g., Olea, 987
F.2d at 877 (defendant's statements that he was an unwitting dupe
and that he had nothing to do with two drug sales were material
for purposes of U.S.S.G. 3C1.1 because they would tend to
influence or affect the calculation of his base offense level).
This finding therefore also supports the application of the
enhancement. See, e.g., St. Cyr, 977 F.2d at 705 (stating that
presentence reports are an important ingredient of the sentencing
process, and providing materially false information to a
probation officer in respect to a presentence report is culpable
and can constitute obstruction of justice even absent a showing
of actual prejudice). Rivera contends that the evidence
regarding the authenticity of the letter is so dubious that it
cannot support the application of the enhancement. That
determination, however, was for the sentencing court, and we do
not believe that the court's finding that the letter sent by
Rivera to Chala, in an attempt to get Chala to lie, was genuine,
was clearly erroneous. The court's two-level enhancement for
obstruction of justice must stand.
C. Ovalle's Sentencing Challenges
-34-
Ovalle was convicted of the same four drug related
charges as Rivera. At sentencing, the court found that the
appropriate sentencing guideline was 2Dl.1, and found that the
drug quantity attributable to Ovalle was 800 kilograms of
cocaine. The court therefore determined Ovalle's BOL to be 40.
The court then increased Ovalle's BOL by four levels pursuant to
3Bl.1(b), because it found that Ovalle was a leader or
organizer of a criminal activity involving five or more
participants. The court also enhanced Ovalle's BOL by applying a
two level enhancement pursuant to U.S.S.G. 2D1.1(b)(1), because
the court found that Ovalle possessed firearms during the
commission of the offense. The court determined that the total
offense level was 46, and because Ovalle's Criminal History
Category was I, he therefore faced a guideline sentencing range
of life imprisonment.
1. Were the Required Findings Made?
Ovalle contends that the district court failed to make
the necessary findings at sentencing as required by Fed. R. Crim.
P. 32(c)(3)(D). Prior to the imposition of his sentence, Ovalle
contended that the PSR was incorrect in that: 1) the offense
level of forty (40) based upon the total quantity of drugs
involved (800 kilograms) was incorrect because Ovalle was only
convicted of possessing 372 kilograms, and the offense level
should therefore only be thirty-eight (38); 2) the four level
enhancement based upon Ovalle's role as an organizer or leader of
a criminal activity was incorrect because the evidence did not
-35-
establish that he played such a role; and 3) the two level
enhancement for possession of firearms was improper because
Ovalle never possessed a firearm. Ovalle contends that the
quantity of cocaine that was involved, what role he played in the
conspiracy, and whether he possessed a firearm, were unresolved
factual matters in controversy prior to sentencing, and the court
failed to make any findings with respect to these matters prior
to sentencing him.
When a defendant claims that the PSR contains factual
inaccuracies, the district court must make a finding concerning
the allegation, or make a determination that no finding is
necessary because the court will not take the matter into account
at sentencing. Fed. R. Crim. P. 32(c)(3)(D);9 United States v.
Savoie, 985 F.2d 612, 620 (1st Cir. 1993); United States v.
Gerante, 891 F.2d 364, 366-67 (1st Cir. 1989). "This protocol
serves the dual purpose of protecting the defendant's due process
rights and supplying a clear record for future proceedings . . .
." Savoie, 985 F.2d at 620; Gerante, 891 F.2d at 367. While we
9 Fed. R. Crim. P. 32(c)(3)(D) provides in pertinent part:
If the comments of the defendant and the
defendant's counsel or testimony or other
information introduced by them allege any
factual inaccuracy in the presentence
investigation report or the summary of
the report or part thereof, the court
shall, as to each matter controverted,
make (i) a finding as to the allegation,
or (ii) a determination that no such
finding is necessary because the matter
controverted will not be taken into
account in sentencing.
-36-
have insisted on strict compliance with this rule, we have also
found that a court "lawfully may make implicit findings with
regard to sentencing matters, incorporating by reference suitably
detailed suggestions limned in the [Presentence report] or
advanced by a party." United States v. Tavano, 12 F.3d 301, 307
(1st Cir. 1993) (citations omitted); see United States v. Cruz,
981 F.2d 613, 619 (1st Cir. 1992); United States v. Wells Metal
Finishing, Inc., 922 F.2d 54, 58 (1st Cir. 1991).
In the present case, after Ovalle had raised his
contentions with respect to the PSR, the court heard argument
from both parties regarding the appropriate offense level and
what increases in the offense level were warranted. The court
then stated:
Allright. The Court has heard comments
and arguments of counsel and has offered
an opportunity of the defendant to
address the Court with respect to
sentencing.
It is the judgment, therefore, the Court
finds that on September the 4th, 1992,
the defendant Luis Enrique Ovalle M rquez
was found guilty by a jury trial as to
counts One, Two, Five and Six of
Indictment number - Criminal Indictment
Number 91-397.
Based on Guideline 2D1.1 and the amount
of cocaine involved in the offense
committed a base level of forty (40) was
determined. Since the firearm was
possessed during the commission of the
instant offense an increase of two levels
is warranted. As the defendant is
perceived as having been an organizer or
leader in the overall criminal activity,
the base offense level is increased by
four levels pursuant to Section 3B1.1.
-37-
Incidentally, for purposes of the record
that is my finding with respect to your
arguments.
Based on this record, the court therefore adopted the PSR's
recommendations and implicitly found that Ovalle possessed 800
kilograms of cocaine, Ovalle possessed the firearm during the
commission of the offense, and Ovalle was an organizer or leader
in the criminal activity. The court therefore made the necessary
findings in order to adequately comply with Fed. R. Crim. P.
32(c)(3)(D).10
10 Ovalle also claims that his procedural due process rights
were violated by the court's failure to hear his objections to
the PSR. Ovalle failed to raise his objections to the PSR in the
manner required by District of Puerto Rico Local Rule 418. Local
Rule 418.4 provides that "[n]ot later than ten (10) days after
disclosure of the Presentence Investigation Report, the attorney
for the government and the attorney for the defendant . . . shall
each file with the Court a written statement of objections to any
material facts, sentencing classifications, sentencing guidelines
ranges, policy statements, sentencing options . . . contained in
or omitted [from] the Presentence Investigation Report. Such
objections, if any, shall specify with particularity the facts
and applications contested. Any objection not presented in this
fashion may not be raised by any party and will not be considered
by the sentencing judge at the sentencing hearing." (emphasis
added). Ovalle's counsel only submitted his objections to the
probation officer, and he failed to submit his objections to the
court. At sentencing, the district court initially stated that
because Ovalle had failed to comply with the local rule, the
court would not entertain his objections to the PSR. Despite
Ovalle's procedural failure and the court's statement, however,
the record shows that the court then permitted Ovalle to advance
his objections as arguments to mitigate his sentence. The court
then made findings and imposed Ovalle's sentence. Because Ovalle
had ample opportunity to challenged the PSR's recommendations,
and the court heard and considered Ovalle's contentions regarding
sentencing, we do not believe that he was deprived of due
process. See United States v. Romano, 825 F.2d 725, 729-30 (2d
Cir. 1987); cf. United States v. Curran, 926 F.2d 59, 62 (1st
Cir. 1991) (stating in dicta that district court has broad
discretion to determine the appropriate procedure for availing
the defendant of an opportunity to challenge the accuracy of
presentence information presented to the district court); United
-38-
2. Challenges to the Enhancements
Ovalle claims that the court erred in determining his
sentence by ruling against him with respect to his three
sentencing challenges. With respect to Ovalle's first challenge,
a four level increase in a defendant's BOL is appropriate where
"the defendant was an organizer or leader of a criminal activity
that involved five or more participants . . . " U.S.S.G.
3B1.1(a); See United States v. Sabatino, 943 F.2d 94, 101 (1st
Cir. 1991); United States v. McDowell, 918 F.2d 1004, 1011 (1st
Cir. 1990). The application notes to U.S.S.G. 3B1.1 list seven
nonexclusive factors which the court should consider when
considering whether a defendant played a leadership or
organizational role as compared to a managerial or supervisory
role. These factors include "the exercise of decision making
authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and
authority exercised over others." U.S.S.G. 3B1.1, commentary
n.3; Sabatino, 943 F.2d at 101. The sentencing court found that
Rivera played a leadership or organizational role in this drug
States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (holding
that government's failure to provide defendant with pre-trial
notice that it would seek an enhanced sentence pursuant to the
Armed Career Criminal Act did not violate defendant's procedural
due process rights where the defendant had the opportunity to
contest the record prior to sentencing), cert. denied, 498 U.S.
1015 (1990).
-39-
smuggling operation, and then enhanced his sentence. The court
did not err.
The evidence in the record supports the conclusion that
Ovalle orchestrated and organized the logistics of the smuggling
plan. The record reasonably indicated that Ovalle was the
individual who had the closest links to the source of the
cocaine. Ovalle told Monteagudo that the cocaine was coming from
Colombia, and it was Ovalle who was privy to the code that would
be utilized to communicate with the plane that was coming from
Colombia to make the airdrop. After Monteagudo reported to
Ovalle and Rivera that he had been forced to throw seven bales of
cocaine overboard because his boat had been pursued by unknown
individuals, Ovalle took Monteagudo to a pay phone where Ovalle
called a person, who was reasonably presumed to be a higher-up,
and had Monteagudo explain what had happened to the cocaine.
Additionally, the evidence indicated that Ovalle was involved in
all planning stages of the operation, and that Ovalle directed
the actions of both Linder and Monteagudo, as well as other co-
conspirators. Ovalle also financed various portions of the
operation, such as providing money to Linder to repair his boat.
These factors all suggest that Ovalle was a leader and organizer
of the smuggling operation, and the court did not err in
enhancing Ovalle's BOL by four levels.
Ovalle's contentions with respect to the court's
determination of the quantity of cocaine involved, and its
enhancement based on the presence of a firearm, are analogous to
-40-
Rivera's challenges, which we have previously addressed. We will
not rehash those discussions. Rather, we have reviewed the
record and there is ample evidence to support the court's
findings that Ovalle was responsible for 800 kilograms of
cocaine, and that he possessed a firearm in connection with the
drug offense. The court's sentencing determinations were not
clearly erroneous.
For the foregoing reasons, the decision of the district
court is affirmed.
-41-