Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2598
05-1740
UNITED STATES,
Appellee,
v.
FELIX SANTOS-RIOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Olga M. Shepard De Mari on brief for appellant.
Nelson Perez-Sosa, Assistant U.S. Attorney, and H.S. Garcia,
United States Attorney, on brief for appellee.
October 14, 2005
Per Curiam. Felix Santos-Rios appeals from his sentence
imposed following a guilty plea to both counts of an indictment
charging him and three co-defendants with conspiracy to possess
with intent to distribute cocaine, and aiding and abetting each
other to possess with intent to distribute cocaine, in violation of
21 U.S.C. 846, 841(a)(1) and 18 U.S.C. 2. The district court
granted defendant's motion pursuant to 28 U.S.C. § 2255 on the
ground that trial counsel was constitutionally ineffective
regarding her failure to pursue an appeal on Santos-Rios' behalf.
The district court's amended order in the § 2255 case vacated the
original sentence and reimposed the same sentence nunc pro tunc,
thereby restoring defendant's right to appeal. This appeal was
timely filed from the reimposed sentence.
I. Failure to Grant De Novo Sentencing
Santos-Rios argues that the procedure for reinstating his
right to appeal, vacating and reimposing the original sentence
without a hearing, violated his right to be present at sentencing.
The procedure employed by the district court "is standard practice
among federal courts." Pratt v. United States, 129 F.3d 54, 62 (1st
Cir. 1997). We specifically approved such a procedure in United
States v. Torres-Otero, 232 F.3d 24, 32 (1st Cir. 2000), holding
under similar circumstances that "the district court is not
required to engage in de novo resentencing, but may instead vacate
the initial sentence and summarily reimpose a sentencing judgment
-2-
identical in all respect to the earlier judgment except for the
date of entry." Defendant's right to be present was satisfied by
Santos-Rios' presence when the original sentence was imposed, a
sentence identical to the one that was subsequently reimposed. See
United States v. De Los Santos-Himitola, 924 F.2d 380, 383 (1st Cir.
1991).
II. Enhancement for Supervisory Role-in-the-Offense
Assuming, without deciding, that appellant raised the
issue below, we review for clear error the district court's
determination that Santos-Rios had a supervisory role in the
offense, meriting a three-level enhancement under U.S.S.G. §
3B1.1(b). See United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997).
"The government bears the burden of proving that the defendant
qualifies for this enhancement. The evidence supporting the
defendant's role in the offense may be wholly circumstantial and
the government need only prove that the defendant exercised
authority or control over another person on one occasion." United
States v. Garcia-Morales, 382 F.3d 12, 19-20 (1st Cir. 2004).
Santos-Rios argues that the district court's role-in-the-
offense enhancement was clearly erroneous because the sentencing
judge did not make specific findings of fact to support his
conclusion. However, "the district court need not make specific
findings when applying a role-in-the-offense enhancement if 'the
record clearly reflects the basis of the court's determination.'
-3-
United States v. Marrero-Ortiz, 160 F.3d 768, 779 (1st Cir. 1998)."
Id. at 20.
A three-level enhancement for a supervisory role is
appropriate "'if there is evidence that a defendant in committing
the crime, exercised control over, or was otherwise responsible for
overseeing the activities of at least one other person.'" United
States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996). The presentence
investigation report (PSR), to which defendant made no objections,
reported that according to the co-defendants' statements, "it was
[Santos-Rios'] role to line up the individuals from the Port
Authority and provide them with instructions." PSR, ¶ 11. Santos-
Rios admits that he recruited persons employed at the airport to
participate in the drug smuggling scheme. This is sufficient to
support a finding of a supervisory role in the offense. See e.g.,
United States v. Conley, 156 F.3d 78, 85 (1st Cir. 1998) (holding
that providing addresses to which package would be sent, recruiting
two persons to receive falsely addressed packages and supervising
them was sufficient to support finding that defendant was a
supervisor).
Santos-Rios' argument that co-defendant Carlos Polanco
was the real leader of the conspiracy is unavailing. "[A]
defendant need not be at the top of a criminal scheme to be a
manager or supervisor." United States v. Goldberg, 105 F.3d 770,
777 (1st Cir. 1997). The district court's determination that
-4-
Santos-Rios was a "supervisor" under §3B1.1(b) was not clearly
erroneous.
III. Blakely/Booker Error
Santos-Rios argues that he is entitled to resentencing
under Blakely v. Washington, 542 U.S. 296 (2004), because the
determination that he qualified as a "supervisor" under U.S.S.G. §
3B1.1(b), was made by the sentencing judge, not by a jury.
"Blakely claims are now viewed through the lens of United States v.
Booker, 125 S. Ct. 738 (2005)." Cirilo-Munoz v. United States, 404
F.3d 527, 532 (2005). The Blakely claim, as viewed in light of
Booker, is unavailing. This court has held that "the Sixth
Amendment is not violated simply because a judge finds sentencing
facts under the guidelines; rather, the error is only that the
judge did so pursuant to a mandatory guidelines system." United
States v. Martins, 413 F.3d 139, 152 (1st Cir. 2005).
Santos-Rios also argues that he should be resentenced
because the district court erred in sentencing him pursuant to a
mandatory guidelines system, in violation of Booker, supra. Having
failed to raise an Apprendi or Blakely claim below, or to challenge
the guidelines on Sixth Amendment grounds, Santos-Rios' claim is
subject to plain error review. Specifically, he must show that
there is a "reasonable probability that the district court would
impose a different sentence more favorable to the defendant under
-5-
the new 'advisory Guidelines' Booker regime." United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
Santos-Rios offers no developed argument in support of
such a claim, nor does the record support that claim. He received
a 155-month sentence, four months above the bottom of the
Guidelines sentencing range. The comments of the sentencing court
indicate that the court considered the long sentence that Santos-
Rios would receive under the Guidelines to be consistent with
Congress' intent to deter participation in such drug trafficking
conspiracies, and appropriate in view of the harm and suffering
that results from such drug trafficking. Santos-Rios has not met
his burden of demonstrating a reasonable probability that the court
would have imposed a more lenient sentence under an advisory
Guidelines scheme.
IV. Conditions of Supervised Release
Santos-Rios claims that the drug testing and drug
treatment conditions of his supervised release violated his right
to be present at sentencing and constituted an improper delegation
of authority to the probation officer. See Melendez-Santana,
supra. As in Melendez-Santana, the district court's failure at
Santos-Rios' sentencing hearing "to announce the drug treatment
condition . . . created a material conflict between the written and
oral sentencing orders. . . . This procedure violated [defendant's]
right to be present at sentencing." Melendez-Santana, 353 F.3d at
-6-
100. As in that case, the drug treatment condition imposed here
must be deleted from the written judgment.1
As the government concedes, the sentencing court
improperly delegated to the probation officer the authority to
determine the number of drug tests he would be subject to. See
Melendez-Santana, 353 F.3d at 101-06. Because Santos-Rios did not
object to the delegation at sentencing, however, plain error review
applies. See United States v. Padilla, 415 F.3d 211, 220 (1st Cir.
2005). And Santos-Rios has failed to demonstrate that the improper
delegation to the probation officer of authority to determine the
number of drug tests can satisfy the third or fourth elements of
the plain error test. See id. at 224. Therefore, the drug testing
conditions of supervised release withstand appellant's challenge.
We remand with directions to the district court to delete
the drug treatment requirement from the written conditions of
supervised release. In all other respects, the judgment and
sentence are affirmed. See 1st Cir. R. 27(c).
1
Appellant's argument that his right to be present was also
violated by the failure of the district court to announce the drug
testing condition at the sentencing hearing is unavailing. The
court announced the drug testing condition at sentencing.
Moreover, even if it had not, Santos-Rios had constructive notice
of that condition. See United States v. Tulloch, 380 F.3d 8, 13 (1st
Cir. 2004).
-7-