May 3, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-2327
UNITED STATES OF AMERICA,
Appellee,
v.
CRISTOBAL SORIANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Cyr, Boudin and Lynch,
Circuit Judges.
William C. Dimitri with whom Dimitri & Dimitri was on brief for
appellant.
Sheldon Whitehouse, United States Attorney, with whom Margaret E.
Curran and Zechariah Chafee, Assistant United States Attorneys, were
on brief for the United States.
Per Curiam. "Cristobal Soriano," whose real name is
David De LaCruz Hiciano, was arrested with two others, Rafael
Vidal and Johana Ovando, in August 1994, after selling crack
cocaine to an undercover agent. He was charged with
conspiring to distribute drugs, 21 U.S.C. 846, and one
count each of possession with intent to distribute and
distribution, 21 U.S.C. 841(a)(1). On March 8, 1995, De
LaCruz pled guilty to all counts. The quantity of drugs
triggered a mandatory minimum ten-year sentence. 21 U.S.C.
841(b)(1)(A)(iii).
De LaCruz suffers from a terminal illness and likely
will not survive the mandatory minimum term. At sentencing
in November 1995, De LaCruz sought relief under the "safety
valve" provision, 18 U.S.C. 3553(f) and U.S.S.G 5C1.2,
which would allow him--if he met the five criteria--to avoid
the mandatory minimum and be sentenced under the guidelines.
The court calculated his guidelines range to be 87-108 months
(including probable departures), and De LaCruz asked for
several additional departures to further reduce his sentence.
The government argued that De LaCruz was ineligible for
relief under section 3553(f) because he had not made the
disclosure of information about the offenses required by
subsection (5). The court disagreed but found that De LaCruz
failed a different condition--subsection (4)--because he
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controlled the drug enterprise. The safety valve is aimed at
less culpable defendants and applies only if "the defendant
was not an organizer, leader, manager, or supervisor of
others in the offense." 18 U.S.C. 3553(f)(4). The main
issue on appeal is whether this fact-bound determination was
clear error. United States v. Montanez, No. 95-2096, slip.
op. at 10 (1st Cir. Apr. 24, 1996). The pertinent evidence
is as follows.
On August 21, 1994, an agent went to an apartment at
Cherry Street in Pawtucket, Rhode Island, and bought crack
from Vidal and another unidentified man. The agent went back
later that month to buy more. This time only Vidal was
present; he telephoned De LaCruz, who apparently had the
drugs at another location. While waiting for De LaCruz to
arrive, the agent gave Vidal $50 in marked bills.
De LaCruz arrived a short time later with Ovando and
gave the agent crack that the agent had already paid for.
Ovando explained to the agent that she and De LaCruz would be
moving to a new address and that from now on the agent should
go there if the agent wanted more drugs. The agent left.
Minutes later the defendants were arrested. The $50 that the
agent had given Vidal was found on De LaCruz.
Agents subsequently searched an apartment at Rand Street
in Central Falls, Rhode Island. This apartment was leased to
Ovando; and she and De LaCruz had been at the apartment (and
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under surveillance) on August 21 when Vidal telephoned him to
arrange the delivery. This search revealed scales, plastic
bags and other drug-trade paraphernalia and also evidence
indicating that De LaCruz also occupied or used the
apartment. In an adjoining basement, agents found a stash of
73.8 grams of crack and $3900 in cash--including $60 of the
$100 in marked bills the agent had given Vidal during the
first buy.
At sentencing De LaCruz insisted that he and Vidal were
equal partners and that Vidal also had access to the drugs
and money at Ovando's apartment. In fact Vidal's car was
registered at that address. But the district court concluded
that De LaCruz was "in charge," finding that De LaCruz stored
the drugs in the Rand Street apartment he shared with Ovando
and supplied them to Vidal, who merely arranged the sales.
Later in the hearing, the district court said:
If he wasn't the leader I don't know who was.
This is a three person operation and he was in
charge. It was his operation. What more can you
do with it? I can't, I've wrestled with it and I
can't. I'd like to give him every opportunity I
can to go back to the Dominican Republic and die
with his relatives. But he's going to have to die
in a federal penitentiary, that's what it comes to.
And this is costly. This is costly to the United
States government.
. . .
But that's the way it works. I don't have the
discretion to just throw away the guidelines or
throw away Congress' mandatory minimum sentences
and so I have to apply them. . . . I have no
choice, I have to apply the mandatory minimum which
is 120 months in prison.
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Conceivably, the district court could have come out the
other way. The probation officer recommended applying the
safety valve provision, and the prosecutor expressed some
reservation at sentencing about calling De LaCruz the
"leader." But the final determination is for the district
court, and it was rational to conclude that De LaCruz--who
held the drugs and money--was in charge. De LaCruz's equal-
partners gloss is plausible but, on appeal, he bears the
burden to show clear error and cannot prevail simply by
putting forth a reasonable alternative interpretation.
This would resolve matters entirely but for the district
court's brief comment, "[i]f he wasn't the leader I don't
know who was." In the abstract, this might imply a belief
that someone is necessarily the leader in a group sale. Such
a belief would be error, since equal partners cannot be
deemed leaders unless one or both controlled others. See
U.S.S.G. 3B1.1; United States v. Frankenhauser, 1996 WL
154266, at *11 (1st Cir. Apr. 9, 1996). We think it far more
likely that the comment was merely a way of emphasizing the
court's view that De LaCruz was in fact the leader.
De LaCruz may share this latter view because he does not
raise this issue on appeal and our review is accordingly
limited to "plain error." United States v. Olano, 113 S. Ct.
1770, 1777-79 (1993). It may be doubtful that an ambiguous
statement could qualify as plain error although we might
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still be entitled to seek clarification. But relief under
Olano still requires a miscarriage of justice or the like.
113 S. Ct. at 1779. For a reason not mentioned by either the
district court or the government, such a conclusion would be
hard to reach in this case.
Despite De LaCruz' attempt to exculpate Ovando, her own
role in the August 24 sale indicates that she played a minor
role in the transaction. Indeed, Ovando herself pleaded
guilty and De LaCruz told his probation officer that he was
"sorry for getting Johana Ovando implicated in something that
reaped her no benefit." If he did not lead Vidal, De LaCruz
certainly appears to have led Ovando. See United States v.
Ramirez, 948 F.2d 66, 67 (1st Cir. 1991) (husband deemed
leader where wife a minor participant).
This is a distressing case. The offenses underlying the
judgment are serious, but few would think that they warranted
having the defendant die in prison rather than in the care of
his family in his own country. But given the mandatory
minimum prescribed by Congress, it appears that De LaCruz'
only avenue for relief is executive clemency.
Affirmed.
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