United States Court of Appeals
For the First Circuit
No. 02-1994
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT RODRIGUEZ, A/K/A DOMINICAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Melvin Norris, with whom Richard J. Farrell, Jr. was on brief,
for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.
July 21, 2003
SELYA, Circuit Judge. The primary question in this
appeal is whether the district court abused its discretion in
refusing to grant an evidentiary hearing before imposing sentence.
The secondary question is whether the district court erred in
enhancing the appellant's offense level for an attempted
obstruction of justice. Finding no cognizable error, we affirm.
Defendant-appellant Robert Rodriguez pleaded guilty to
distribution of a substance containing cocaine base and conspiracy
to commit that offense. See 21 U.S.C. §§ 841(a), 846.
Accordingly, we glean the relevant facts from the change-of-plea
colloquy, the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Dietz, 950 F.2d 50, 55 (1st Cir. 1991).
The record reveals that the appellant participated in at
least eleven drug sales to undercover agents, involving a total of
62.88 grams of crack cocaine. He was arrested on December 9, 1999,
and immediately detained. Considerable skirmishing ensued (none of
which is relevant here). Suffice it to say that, on April 19,
2002, the appellant changed his plea, and the district court
ordered a PSI Report. When prepared, that report suggested, inter
alia, that the appellant was a leader or organizer of the drug-
trafficking enterprise. See USSG §3B1.1(a) (providing for an
upward role-in-the-offense adjustment if a defendant "was an
-2-
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive").
In an effort to extricate himself from this looming hole,
the appellant procured a letter from a fellow inmate, Junior
Santana.1 That letter, written in Spanish and translated into
English by yet another prisoner, read:
I Junior Santana. Please I would like you
people to know that I never meet Robert
Rodriguez. What Marisela Segura and Javier
Rivera what they are talking about Robert
Rodriguez are all lies. Because I know that
the situation is like that. Marisela and
Javier are both lovers. And always done
everything together. I Santana agree to speak
the truth and also state the truth.
The appellant submitted these materials along with his
objections to the PSI Report. Both the letter and the translation
were signed by Santana and notarized by a correctional official.
At a status conference, the court, without objection, authorized
the government to interview Santana (who by then had been
transferred to a penitentiary in Ohio). A government agent did so
and reported that Santana had repudiated the letter. According to
1
This was not the appellant's only effort to influence the
sentencing process. The PSI Report indicates that he submitted a
letter to the government containing a statement that he attributed
to a coconspirator (Rivera). That statement was to the effect that
he (Rivera) had falsely implicated the appellant. When confronted
with the statement, Rivera repudiated it. He said that the
appellant had dictated the statement but that he had refused to
sign it because the statement "was not true." The probation
officer concluded that this incident did not obstruct justice
because the government realized all along the bogus nature of the
statement.
-3-
the ensuing proffer, the appellant had sought out Santana several
times, pressured him to write a (false) account that would put the
appellant in a favorable light, and obtained the letter as a
result. Based on this recantation, the government urged the court
not only to dismiss the letter's allegations but also to find that
it represented an attempt by the appellant to obstruct justice by
suborning perjury. See USSG §3C1.1, cmt. (n.4(b)).
The appellant's attorney then sought to interview
Santana. Santana's lawyer refused to allow such an audience. The
appellant responded to this refusal by moving for (i) a continuance
to investigate the issues raised by the government's proffer, and
(ii) an evidentiary hearing. The district court granted the
continuance but refused to sanction an evidentiary hearing. In his
sentencing memorandum, defense counsel reiterated the request for
an evidentiary hearing to test the truthfulness of Santana's
statements and the government's conflicting proffer. The court
remained resolute, and no evidentiary hearing was ever held.
On August 2, 2002, the district court convened the
disposition hearing. The court, inter alia, accepted the
government's contention that the submission of the Santana letter
constituted an attempt to obstruct justice and ratcheted the
appellant's offense level upward by two levels for obstruction of
justice. See USSG §3C1.1, cmt. (n.4(b)). The court also (i)
prescribed a four-level upward adjustment because of the
-4-
appellant's leadership role in a criminal activity involving five
or more participants, id. §3B1.1(a); (ii) factored in a two-level
reduction for acceptance of responsibility, id. §3E1.1(a); and
(iii) held the appellant accountable for 62.88 grams of crack
cocaine (not the 500+ grams for which the government sought to hold
him responsible). These subsidiary findings yielded a total
offense level of 36. Because the appellant was a first offender
(Criminal History Category I), the guideline sentencing range was
188-235 months. See id. ch. 5, Pt.A (sentencing table). The court
chose the low end of the range and imposed a 188-month
incarcerative term. This appeal followed.
The appellant's main argument is that, given the salience
of the Santana letter, the sentencing court should have granted his
motion for an evidentiary hearing before finding that the letter
was both false and submitted for the purpose of distorting the
sentencing calculus. In his view, the letter was important to his
defense in three key respects. First, by casting doubt upon what
two of his cohorts, Rivera and Segura, had told the probation
officer, it might have reduced the drug quantity for which he was
held accountable. Second, the letter, by attacking the veracity of
Rivera and Segura, tended to support his contention that he was not
a leader or organizer of the criminal activity. He adds,
relatedly, that without this upward role-in-the-offense adjustment,
he might have been eligible for a lessened sentence under the so-
-5-
called safety valve, 18 U.S.C. § 3553(f). Third — and most
important — had the court credited the letter, it would not have
elevated his offense level (and, thus, effectively increased his
sentence) for obstruction of justice.
This appraisal vastly overstates the potential impact of
the Santana letter. From what we can tell, that letter, even if
credited, would have had no material effect on the issue of drug
quantity — an issue that the sentencing court resolved favorably to
the appellant. The same holds true for role in the offense, as the
uncontested portions of the facts limned in the PSI Report
abundantly justified that adjustment. And that adjustment rendered
the appellant ineligible for the safety valve. See 18 U.S.C. §
3553(f)(4); USSG §5C1.2(a)(4). In practical terms, then, the
sentencing court's rejection of the Santana letter affected only
the enhancement for obstruction of justice. We frame our inquiry
accordingly.
It is a familiar rule that a criminal defendant, about to
be sentenced, is not entitled to an evidentiary hearing on demand.
United States v. Williams, 10 F.3d 910, 915 (1st Cir. 1993); United
States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992); United
States v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987). Faced with
a timely request for such a hearing, the court must consider the
totality of the circumstances and assess the likely utility of a
hearing in that light. See United States v. Bradshaw, 281 F.3d
-6-
278, 291 (1st Cir. 2002); United States v. Zannino, 895 F.2d 1, 6
(1st Cir. 1990). Given the dimensions of this approach, it is not
surprising that a sentencing court's decision to deny an
evidentiary hearing is reviewed only for abuse of discretion.
United States v. McAndrews, 12 F.3d 273, 279-80 (1st Cir. 1993).
Although the question is close, we see no abuse of
discretion here. The district court examined Santana's letter with
care. It noted that the letter was conclusory in nature and
determined that it lacked probative value. This determination is
buttressed by other aspects of the record; the essence of the
Santana letter was contradicted by the appellant's own statements
to the probation officer and by various proffers incorporated in
the PSI Report. Although the letter intimated that Rivera and
Segura had fabricated a tale about the appellant, it gave no
plausible reason for them to have done so. Moreover, the appellant
had admitted his involvement with these individuals to the
probation officer, having confessed that he had supplied them with
approximately twenty rocks of cocaine on each of four separate
occasions. The court, therefore, had ample reason to discount the
allegations contained in the Santana letter.
The principal thrust of the appellant's argument seems to
be that the information from the government upon which the district
court relied in finding Santana's letter false lacked sufficient
indicia of reliability. He contends that the court erred in
-7-
accepting the government's proffer, which amounted to the
representations of an Assistant United States Attorney (AUSA)
purporting to summarize the interview in which Santana allegedly
repudiated the letter. We believe that it was within the
sentencing court's discretion to rely on the AUSA's
representations.
During the sentencing phase of a criminal case, the
Federal Rules of Evidence do not apply. United States v. Robinson,
144 F.3d 104, 108 (1st Cir. 1998); United States v. Gonzalez-
Vasquez, 34 F.3d 19, 25 (1st Cir. 1994). Similarly, "a defendant's
Sixth Amendment right to confront the witness against him does not
attach during the sentencing phase." Tardiff, 969 F.2d at 1287.
In light of these principles, the sentencing court has broad
discretion to accept hearsay evidence at sentencing so long as the
court supportably concludes that the information has sufficient
indicia of trustworthiness to warrant a finding of probable
accuracy. See id.; United States v. Zuleta-Alvarez, 922 F.2d 33,
36-37 (1st Cir. 1990); see also USSG §6A1.3(a).
This legal framework is controlling here. Even though
the government could have done a better job of producing a verbatim
record of Santana's interview,2 the court acted within the realm of
2
In future cases, the government would do well to make a more
focused evidentiary showing. For example, it could easily have
provided a transcript, a signed statement, an affidavit from the
witness, or a declaration from the agent who actually interviewed
the witness.
-8-
its discretion in accepting the government's version of the
substance of that interview. After all, the AUSA's proffer had all
the earmarks of reliability and the record before us contains
nothing that remotely suggests the contrary. We conclude,
therefore, that the sentencing court's handling of the Santana
letter was acceptable. Accordingly, the court did not abuse its
discretion in denying the appellant's request for an evidentiary
hearing.
The appellant's fallback position is that, in all events,
the lower court erred in using the letter as a vehicle for an
obstruction of justice enhancement. In imposing an obstruction of
justice enhancement, the sentencing court must find that "the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of
conviction . . . ." USSG §3C1.1(A). The government has the burden
of proving, by a preponderance of the evidence, that such an
obstruction occurred. United States v. Aymelek, 926 F.2d 64, 67-68
(1st Cir. 1991).
We review the sentencing court's factbound determination
that an obstruction of justice occurred for clear error. Id. at
68. In this instance, the court found that the appellant had
pressured Santana to sign a false letter and had submitted the
-9-
document to the probation officer in an abortive attempt to game
the sentencing process. This finding is fully supportable.
We will not belabor the obvious. The AUSA's proffer,
though uncorroborated, was thorough and replete with details. In
contrast, the Santana letter not only contradicted the appellant's
original version of events but also provided little or no
supporting detail to back its outlandish claims. The appellant's
motive in procuring the letter and submitting it to the court was
plainly to influence the contours of his sentence. And in
assessing culpability, the sentencing court reasonably could have
taken into account the appellant's earlier attempt at a similar
subterfuge, see supra note 1, in which he unsuccessfully tried to
pressure Rivera into signing a false exculpatory statement.
The fact that the district court could have placed a less
sinister interpretation on the submission of the Santana letter is
of no consolation to the appellant.3 "Where there is more than one
plausible view of the circumstances, the sentencing court's choice
among supportable alternatives cannot be clearly erroneous."
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990); accord
United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.
3
For what it may be worth, we note that notwithstanding the
obstruction of justice finding the sentencing court granted the
appellant a downward adjustment for acceptance of responsibility.
See USSG §3E1.1 (explaining that acceptance of responsibility and
obstruction of justice adjustments can simultaneously be allowed in
rare instances).
-10-
1990). Consequently, there is no principled way that we can
disturb the district court's closely reasoned finding that the
appellant obstructed justice by inducing Santana to write and sign
a letter that he (the appellant) knew was false. It follows that
the district court had no choice but to impose a two-level
enhancement. See United States v. Austin, 948 F.2d 783, 788 (1st
Cir. 1991); see also USSG §3C1.1, cmt. (n.4(b)).
We need go no further. A criminal defendant has no
absolute or presumptive right to insist that the sentencing court
take testimony on every fact germane to sentencing. In light of
the record as a whole, the district court's explicit findings, and
the generous standard of review, we conclude that the court did not
abuse its discretion in denying the appellant's request for an
evidentiary hearing. We likewise conclude that the court did not
err in enhancing the applicable offense level for obstruction of
justice.
Affirmed.
-11-