United States Court of Appeals
For the First Circuit
No. 04-1258
UNITED STATES,
Appellee,
v.
CARLOS M. ESCOBAR-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Rafael Anglada-López for appellant.
Judith Vargas, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, and Nelson Pérez-Sosa and
Thomas F. Klumper, Assistant United States Attorneys, were on
brief for appellee.
July 7, 2006
CAMPBELL, Senior Circuit Judge. Defendant-appellant
Carlos M. Escobar-Figueroa (hereinafter "Escobar") appeals from his
conviction and sentence in the United States District Court for the
District of Puerto Rico on a charge of conspiracy to possess with
intent to distribute cocaine, cocaine base ("crack"), and heroin.
He raises four issues on appeal: (1) whether the evidence was
sufficient to support the jury's convicting him as a participant in
a single rather than multiple drug conspiracies; (2) whether the
district court erred, when sentencing, in not departing downward on
the ground Escobar was a minor participant in the conspiracy, and
in adding a two-level enhancement for possession of a firearm; (3)
whether the district court erred in sentencing him without finding
the specific drug amounts for which he was personally responsible;
and (4) whether his case should be remanded to the district court
for resentencing under United States v. Booker, 543 U.S. 220
(2005). We affirm Escobar's conviction and sentence.
I. Background and Facts
On October 4, 2002, a grand jury indicted Escobar and
forty-two others. Escobar and his co-defendants were charged in
Count One with a conspiracy to possess with the intent to
distribute and to distribute five or more kilograms of cocaine,
fifty or more grams of crack, and/or one or more kilograms of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Escobar
pled not guilty, and, on August 5, 2003, a jury trial commenced
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involving, besides Escobar, five co-defendants, all or most of the
others having pled guilty. Trial lasted thirty-one days and ended
in findings of guilty as to the defendants on September 29, 2003.
Responding to questions in a special verdict form provided by the
court, the jury confirmed that the conspiracy as charged in Count
One distributed and/or intended to distribute cocaine in the
quantity of five (5) kilograms or more, heroin in the quantity of
one (1) kilogram or more, and crack in the quantity of fifty (50)
grams or more. The court denied Escobar's motion for judgment of
acquittal. Following his sentence on January 23, 2004, Escobar
filed this timely appeal on January 28 of that year.
A. The Evidence
The evidence at trial showed that from at least 1993 to
approximately 2002, Jose Anibal Davila-Lopez, a/k/a Jose Cabezon
("Cabezon"), was the leader and organizer of a drug trafficking
organization know as Las Abispas. In the Guayama and Salinas areas
of Puerto Rico, Cabezon rented a number of drug points to Las
Abispas members, all of whom answered to him. Escobar was one such
member. Different members sold many different kinds of drugs,
including cocaine, crack, heroin, and marijuana. Las Abispas
sellers received drugs from co-defendants Heriberto Ofray-Campos
("Ofray"), Wilson Mendoza-Vasquez ("Mendoza"), and Modesto Zaragoza
Lasa ("Zaragoza Lasa"), as well as from cooperating witness Abdul
Mendoza-Lebron ("Mendoza-Lebron").
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Among the drug points operated by Las Abispas were two at
La Puenta De Jobos Ward in Guayama, one in the Santa Ana quarter,
managed by Dennys Cruz-Pereira, and one in the Miramar quarter, run
by Escobar and his brother. The Miramar drug point sold primarily
crack. Escobar and his brother would buy cocaine and make it into
crack or buy crack from Las Abispas's sources, including from Ofray
and Mendoza, and cooperating witness Mendoza-Lebron.
Escobar played an active role in the operation of the
Miramar drug point, buying and preparing drugs for the point,
pricing the drugs, and maintaining the proceeds from the point.
Mendoza-Lebron testified that Escobar stashed drugs and weapons for
him. He also testified to selling an eighth of a kilogram of crack
per week to Escobar over a period which, from Mendoza-Lebron's
other testimony, could be inferred to have lasted from 1994/1995 to
1999. Mendoza-Lebron testified that Escobar would sometimes sell
crack to co-defendant Cruz-Pereira. The government put in evidence
a tape-recorded conversation between Escobar and a government
informant, Angel Lugo-Villodas, in which Escobar said he was
waiting for the cocaine to make the crack and bragged to the
informant that he had better crack than his brother and Cruz-
Pereira and Mendoza. Lugo-Villodas subsequently bought vials of
crack from Escobar.
There was also testimony from several Puerto Rico police
officers who had been involved in undercover purchases of drugs
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from Escobar and/or observed several drug transactions being
conducted in front of Escobar's residence. On September 29, 1998,
undercover officer Edwin Rosas Ferrer bought several small ziplock
bags of cocaine from Escobar at the drug point. On or about August
14, 2002, officer Carlos De Jesus conducted surveillance at the
drug point. He observed several drug transactions taking place in
front of Escobar's residence. The Puerto Rico Police Department
thereafter obtained a warrant to search the residence. Drugs and
$1,093 were seized from Escobar's residence. After waiving his
Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444 (1966),
Escobar admitted the drugs belonged to him and the money came from
drug proceeds.
B. Escobar's Sentencing
Following conviction, and prior to sentencing, Escobar
received his presentence investigation report ("PSI" or "Report")
on December 10, 2003. In describing the drug conspiracy for which
Escobar was convicted, the Report on the cover page termed it as
being a conspiracy to possess and distribute "not less than one
hundred and fifty (150) kilograms of cocaine," whereas, in fact,
the conspiracy charged in the indictment and later confirmed in the
jury's special verdict finding was one to possess and distribute
"five or more kilograms of cocaine, fifty grams or more of cocaine
base, and/or one kilogram or more of heroin." The PSI correctly
described the charged offense in its discussion of the charge and
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conviction but used the 150 kilograms of cocaine standard in
computing a proposed guidelines sentence. In determining that
sentence, the PSI calculated: 1) a base offense level of thirty-
eight (38) under USSG § 2D1.1(c) (the PSI expressly derived this
offense level from its unexplained supposition that the offense
involved not less than one hundred fifty (150) kilograms of
cocaine); 2) a two-level enhancement for possession of firearms
under USSG § 2D1.1(b)(1); and 3) a two-level enhancement for
managerial or supervisory role in the offense under USSG §
3B1.1(c). These figures added up to a total offense level of
forty-two (42). The total offense level, along with a criminal
history category of I, resulted in a proposed guideline sentencing
range of 360 months' imprisonment to life.1
1
Where the figure of 150 kilograms of cocaine came from is not
entirely clear. The amounts charged in the indictment as objects
of the conspiracy were five or more kilograms of cocaine, fifty or
more grams of crack, and/or one kilogram or more of heroin. The
special jury finding confirmed a finding of these amounts. (The
minimum amounts in total, if used as the basis for sentencing,
would have produced a base offense level of 34. USSG § 2D1.1(c).)
The PSI did not discuss the trial evidence insofar as it related to
Escobar's involvement with particular drugs and drug amounts. No
trial evidence has been called to our attention showing that
Escobar dealt specifically with 150 kilograms of cocaine. In fact,
most all of Escobar's dealings were with crack. The trial
testimony of the informant, Mendoza-Lebron, was that Escobar had
bought from him, weekly, 1/8 of a kilogram of crack for a period
that would have been four or more years. If Escobar had weekly
received 1/8 of a kilogram of crack for no more than twelve weeks,
this amount, if found by the court, would have added up to 1.5
kilograms of crack, triggering a guidelines offense level of 38.
Id. Thus, a base offense level of 38 was supported in the record,
albeit not on the basis of the drug (cocaine) and quantity (150
kilograms) stated on the cover of the PSI and used to calculate the
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At Escobar's sentencing hearing, held on January 23,
2004, the district court began by asking, "Counsel, have you read
the pre-sentence report?" to which counsel for Escobar replied,
"Yes, Your Honor." The court then addressed defendant, asking,
"Mr. Escobar, are you aware of the contents of the pre-sentence
report?" Defendant replied, "Yes," and also acknowledged his
attorney had translated to him the information contained in the
report.
The court asked next, "Is there anything that needs to be
corrected at the time as to the information in the report?"
Escobar's counsel at first replied, "Yes, Your Honor, we did file
an objection as to some information--."2 To this the court
proposed guidelines range. Escobar's counsel did not question the
drug and drug level set forth in the PSI, which the judge later
used also as the basis for sentencing. At the beginning of the
sentencing hearing, the district court asked Escobar if there was
anything in the PSI that needed correction. His counsel, who,
having represented Escobar at trial, was familiar with the evidence
against his client, replied that nothing in the report needed
correction, except for removal of the two-level enhancement for a
managerial or supervisory role. When the court announced it would
remove from its calculations the PSI's two-level supervisory role
enhancement, Escobar's counsel said, "Very well . . . [t]hat would
be all as to objections." In later announcing its sentence, the
district court expressly relied upon a base offense level of 38,
stating "the offense or [sic] conviction involved more than one
hundred and fifty kilograms of cocaine, that is having done the
equivalency factors" (emphasis supplied). The latter remarks
suggests the judge may have had in mind the equivalency between 150
kilograms of cocaine and 1.5 kilograms of crack, as set out in the
USSG § 2D1.1(c).
2
Escobar had earlier filed with the U.S. Probation Officer an
objection to the imposition of a two-level enhancement for his
having had a managerial role in the offense.
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reiterated, "Any corrections, prior to getting to the objections,
any corrections that need--." Escobar's counsel said, "No, no
corrections at this time, Your Honor," and the court then asked
Escobar himself, "Is there anything in the report you wish me to
correct," to which Escobar responded, "No." Like questions were
put by the court to government counsel, similarly evoking negative
answers.
The court then turned to Escobar's counsel, saying,
"Counsel, you do have an objection to the pre-sentence
calculations?" Counsel replied, "Right, that is correct . . . .
Our objection is based on the fact that the pre-sentence report
indicates that my client was an organizer, or leader, or manager or
supervisor." To this the court replied, "Objection is sustained,
granted. I will not follow the recommendation of the probation
officer for a two-level enhancement." Escobar's counsel then
responded: "Very well, Your Honor. That would be all as to the
objections."
The court then enquired, "Is there anything you [counsel]
would like to state to the court on behalf of your client before I
pronounce sentence?"
Escobar's counsel responded with a plea for a sentence at
"the lower end of the guidelines," citing Escobar's youth, his
father's absence, his residence in a very poor area of Guayama, and
his lack of early guidance. Counsel ended by saying, "That's the
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only request that we make, Your Honor, that he be sentenced as to
the lower end of the guidelines applicable in this case."
The court then heard from Escobar, who asked for
forgiveness from his wife and mother for having failed them.
Thereafter, government counsel argued against any
variation from the findings in the pre-sentence report. She
pointed out there was evidence Escobar was an owner of a drug
point, making him a manager or a leader of one of the points within
the conspiracy. The government urged that Escobar "be sentenced
according to the findings in the pre-sentence report . . . at a
total offense level of forty-two, including a two level
enhancement, which would put the defendant within the guidelines of
three hundred and sixty months to life."
After hearing from counsel, the district court explained
at some length why it was declining to grant the two-point
leadership enhancement. The court noted that although the
defendant was co-owner of the drug point with his brother, "he was
acting more of [sic] a runner at the point . . . . It was more his
brother, I think, who was . . . in active participation as the
leader at that point than this defendant." The court went on to
say there was no evidence of other individuals the brothers were
supervising or over whom control was being exercised, and the court
believed Escobar's brother had more "decision-making" authority.
The court concluded, "So, really, for my recollection of the
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evidence in this case, it would seem to me that he doesn't fall
within the parameters of the commentary and that's why I'm not
inclined to grant or go along with the probation officer's
recommended enhancement for the two-level increase pursuant to
guideline 3B1.1(c)."
After his above ruling denying the two-level increase,
the court sentenced Escobar with the following explanation:
On September 29, 2003, defendant Carlos Manuel Escobar
Figueroa was found guilty by jury trial in Criminal Case
02-393, which charges a violation of Title 21, United
States Codes, Section 846. Based on guideline 2D1.1C a
base offense level of thirty or thirty-eight or thirty
[sic] is determined as the offense or [sic] conviction
involved more than one hundred and fifty kilograms of
cocaine, that is having done the equivalency factors.
Since the defendant had possession of a firearm within
the conspiracy, a two level enhancement is warranted
pursuant to guideline 2D1.1B. There are no other
applicable guideline adjustments. Based on a total
offense level of forty and a criminal history category of
one, the guideline imprisonment range in this particular
offense is from two hundred and ninety-two to three
hundred and sixty-five months with a fine range of
twenty-five thousand to four million dollars plus a
supervised release term of at least five years.
Therefore, it is the judgment of this court that the
defendant is hereby committed to the custody of the
Bureau of Prisons to be imprisoned for a term of two
hundred and ninety-two months. Upon release from
confinement you shall be placed on supervised release for
a term of five years . . . .
C. Post-Sentencing Proceedings
The above events end the story of Escobar's own
sentencing. Judgment was entered on January 23, 2004. He filed a
timely appeal to this court less than a week thereafter. Escobar's
five co-defendants were, however, not sentenced at this time.
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Instead, they were sentenced several months later, after which
Escobar filed, unsuccessfully, towards the end of 2004 and the
beginning of 2005, two new trial motions alleging that he had not
been fairly sentenced. Underlying Escobar's complaint was an order
the district court had issued on March 9, 2004, directing the
government to "put the Court in a position to be able to
individualize the amount of drugs attributable or foreseeable to
each defendant based on the record and on the evidence presented
during the trial," in keeping with the "new jurisprudence" in
United States v. Colon-Solis, 354 F.3d 101 (1st Cir. 2004), a
decision handed down two weeks before Escobar's January sentencing
but apparently not yet known to the judge and Escobar's counsel at
Escobar's sentencing.
The United States responded to the court's request on
July 29, 2004, tendering information from the trial record bearing
upon the different co-defendants' drug amounts. The government's
response also included drug information about Escobar (even though
he had already been sentenced), noting in particular Mendoza-
Lebron's testimony of having furnished Escobar 1/8 of a kilogram of
crack on a weekly basis over the period of their long relationship.
As noted, Escobar subsequently filed, on November 13,
2004 and February 7, 2005, two motions for new trial, citing to the
First Circuit's holding in Colon-Solis and alleging error in the
court's failure to have made an individualized finding as to the
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drug amounts in his own case. The court denied both motions in
electronic orders without comment. It is unclear whether the court
rejected the motions on the merits or because they were untimely
filed. See Fed. R. Crim. P. 35(a) (requiring a defendant to file
any motion contesting his sentence within seven (7) days after
sentencing). Though Escobar cited Fed. R. Crim. P. 33(b)(1), which
provides a three-year window for a motion for a new trial on the
basis of newly discovered evidence, the court's attention to Colon-
Solis in the sentencing of the five co-defendants was scarcely
newly discovered evidence. In any case, Escobar did not appeal to
this court from the denial of his two post-sentence motions for a
new trial, hence those motions are not now before us.
Unlike Escobar, who was sentenced prior to the court's
March 9, 2004 order and prior to Booker, Escobar's co-defendants
were all sentenced after the court's March 9, 2004 order and after
the Supreme Court's decision in Booker. Although not part of the
record of Escobar's proceedings, we note that Ofray was apparently
sentenced to 200 months. Ofray's aide, Pedro Jose Diaz-Clavell,
was sentenced to 151 months. Cruz-Pereira was sentenced to 216
months. Zaragoza-Lasa was sentenced to 300 months. A fifth co-
defendant, Mizaury Lopez-Soto, was sentenced to 480 months. In all
cases except that of Lopez-Soto, the court imposed sentences within
the guideline range, based upon drug quantities found to be
somewhat lower than Escobar's. In the case of Lopez-Soto, however,
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the court went far above the guideline range because, it stated,
the recommended guideline sentence did not reflect the seriousness
of the offense.
D. Letters Filed Pursuant to Fed. R. App. P. 28(j)
When it was disputed by counsel during appellate argument
whether the district court had, in fact, made an individualized
finding of drug quantity as to Escobar, the parties were directed
to agree and notify us as to whether this was done, and if so,
where such a finding could be found in the trial record. Letters
purporting to answer our inquiry have since been filed, expressly
indicating the parties were unable to agree on the matter, but, for
all practical purposes, underscoring what the sentencing transcript
shows -- that no individualized drug quantity finding as such was
made by the court.
II. Discussion
A. Insufficient Evidence of Single Conspiracy
Escobar argues there was insufficient evidence of a
single drug conspiracy, as alleged in Count One, the sole count for
which he was tried. He says the evidence shows multiple
conspiracies and failed, moreover, to show a direct connection
between him and some of his co-defendants. He also contends that
there was insufficient evidence to demonstrate the accomplishment
of a common goal or plan.
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As a preliminary matter, the government responds that
Escobar's multiple-conspiracy argument is insufficiently developed
for us to take note of it and hence has been waived by Escobar.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
While the government may have some basis for this contention, we
need not resolve it, as we find the multi-conspiracy argument to be
without merit in any event.
Whether a single conspiracy exists is a question of fact
for the jury. United States v. Portela, 167 F.3d 687, 696 (1st
Cir. 1999); United States v. LiCausi, 167 F.3d 36, 45 (1st Cir.
1999). The jury's finding of a single conspiracy is subject to
review for evidentiary sufficiency, United States v. David, 940
F.2d 722, 732 (1st Cir. 1991), and the evidence is taken in the
light most favorable to the verdict, id. at 730.
A conspiracy constitutes an agreement to do an unlawful
act. Ianelli v. United States, 420 U.S. 770, 777 (1975). A jury's
finding of a single conspiracy will be supported if the evidence
demonstrates that all of the alleged co-conspirators directed their
efforts towards the accomplishment of a common goal or overall
plan. United States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984).
"[E]ach coconspirator need not know of or have contact with all
other members, nor must they know all of the details of the
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conspiracy or participate in every act in furtherance of it."
United States v. Martinez-Medina, 279 F.3d 105, 113 (1st Cir.
2002). "The jury may infer an agreement circumstantially by
evidence of, inter alia, a common purpose (such as a purpose to
sell illicit drugs), overlap of participants, and interdependence
of various elements in the overall plan." Id. at 113-14.
Here the conspiratorial unit was the Las Abispas
organization headed by Cabezon, which trafficked in a variety of
drugs. There was evidence it operated a number of drug points,
especially in Guayama and Salinas. Cabezon, according to the
evidence, rented out the drug points to Las Abispas members, who
answered to him alone. Escobar and his brother operated the
Miramar drug point, under the control of Cabezon and his Las
Abispas organization. Escobar and/or his brother bought drugs from
sources which also supplied other Las Abispas co-defendants.
Escobar sold crack to co-defendant Cruz-Pereira, a Las Abispas
member who operated another drug point for Las Abispas. Escobar
stashed drugs and weapons for one of Las Abispas's suppliers,
Mendoza-Lebron. There was ample evidence of Escobar's selling of
crack at the Miramar drug point, including from and outside his own
residence. The evidence is thus consistent with Escobar's
participation in a single drug conspiracy defined by the Las
Abispas organization to which he belonged.
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It is immaterial there was no proof of a direct
connection between Escobar and every one of his co-defendants
standing trial. A single conspiracy can exist even where there is
no personal contact among some of the individual participants; the
fact that every defendant did not participate in every transaction
necessary to fulfill the common aim does not transform a single
ongoing scheme into multiple conspiracies. United States v. Vega-
Figueroa, 234 F.3d 744, 753 (1st Cir. 2000) (citation omitted).
Moreover, "[t]he government need not show that every person
indicted was a member of the conspiracy." Martinez-Medina, 279
F.3d at 113. The evidence presented here would have allowed a
reasonable jury to conclude, as it did, that Escobar was involved
in a single illegal enterprise having as its common purpose the
selling of illegal drugs.
We find no merit in the multiple conspiracy contention.
B. Sentencing Considerations
Escobar argues that the district court erred at
sentencing when it failed sua sponte to provide a two-level
downward adjustment for his allegedly minor role in the offense
pursuant to USSG § 3B1.2; added a two-level enhancement for
possession of a firearm pursuant to USSG § 2D1.1(b)(1); and failed
to make an individualized finding of a specific drug quantity.
Finally, Escobar argues that, under Booker, his sentence should be
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vacated and his case remanded for resentencing under the newly
advisory sentencing guidelines.
i. Minor Participant
Escobar argues that, under the sentencing guidelines, the
court should, on its own, have afforded him a two-level downward
adjustment, as he was a "minor participant in any criminal
activity." USSG § 3B1.2(b). Escobar, however, never asserted he
was entitled to this downward adjustment at the sentencing hearing,
even though his counsel was invited by the court to offer
corrections and objections to the pre-sentence calculations in the
PSI, which recommended a guidelines sentence that did not include
this adjustment. Instead, on two occasions, Escobar's counsel
affirmatively expressed satisfaction with the PSI. The district
court sentenced Escobar in accordance with the PSI's sentencing
calculations, omitting only the PSI's recommended two-level
leadership enhancement, and Escobar at no time mentioned or took
exception to omission of the minor participant downward adjustment.
He waived, therefore, the right to insist upon receiving this
benefit. See United States v. Morales-Madera, 352 F.3d 1, 14 (1st
Cir. 2003) (defendant did not argue for adjustment at sentencing
and did not object to its omission from the PSR, hence the argument
was abandoned).
Even assuming arguendo that failure to raise the claim
were a forfeiture, not a waiver, it would still fail on plain error
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review. "A defendant has the burden of proving he merits a
downward departure adjustment in the offense level." United States
v. Ortiz, 966 F.2d 707, 717 (1st Cir. 1992) "The test is even more
demanding on plain error review; the defendant must show, in
effect, that the status for which he argues is 'the only one
rationally supported by the record below.'" United States v.
Martinez-Vargas, 321 F.3d 245, 250 (1st Cir. 2003) (citation
omitted). Escobar contends that his "conduct was one of a street
pusher for Splenda bag size crack." The evidence shows, however,
that for a lengthy period he was also the co-owner of a drug point.
He purchased and prepared drugs for resale, supplied drugs to other
co-conspirators and decided the price scheme for the sale of drugs.
He then kept the proceeds from the transactions. Thus it was
scarcely error, let alone plain error, for the court not to give a
downward adjustment on "minor participant" grounds.
ii. Weapons Enhancement
The court followed the recommendation of the PSI by
adding two points to Escobar's offense level under USSG §
2D1.1(b)(1), which provides that the sentencing judge can increase
the offense level by two levels "[i]f a dangerous weapon (including
a firearm) was possessed." Again, Escobar failed to object to this
enhancement either after sentence was pronounced or, earlier, when
expressly invited by the district court to offer any corrections
and objections to the PSI. His attorney objected to the two-point
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supervisory role enhancement but not to the weapons enhancement.
Indeed, as already mentioned, the attorney said on two occasions
that the objected-to supervisory enhancement was the only item in
the PSI he took exception to. Escobar therefore cannot raise the
issue on appeal. See United States v. Benjamin, 30 F.3d 196, 197
(1st Cir. 1996) (sentencing challenge should not be addressed for
the first time on appeal). And supposing arguendo the issue were
open on appeal, we would review only for plain error. Id. There
was, however, adequate evidence to allow the court to impose the
weapons enhancement without committing error, plain or otherwise.
"The comment to this section states that the enhancement applies if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense." United States v. Nelson-
Rodriguez, 319 F.3d 12, 58 (1st Cir. 2003). Escobar denies there
is evidence in the record that he actually or constructively
possessed a firearm. The government, however, points to evidence
that Escobar concealed weapons for a co-conspirator and possessed
a firearm as part of his drug trafficking activities. Cooperating
witness Mendoza-Lebron testified that Escobar concealed weapons and
drugs for him between approximately 1994 and 1999. He testified
that when someone had shot at Escobar's brother, Escobar and his
brother both possessed weapons of their own. Thus we reject
Escobar's assertion that the weapons enhancement was improperly
added in computing his sentence.
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iii. Drug Quantity
Escobar argues that the district court erred by not
making an individualized finding as to drug amounts attributable to
or foreseeable by himself in keeping with Colon-Solis. Instead,
the court, without explanation of its own or in the PSI, imposed a
guidelines sentence calculated on a drug amount of 150 kilograms of
cocaine. The PSI, inaccurately it would seem, had described this
as the drug with which Escobar was involved; the court, when
sentencing Escobar, said without explanation that the "offense or
[sic] conviction involved more than one hundred and fifty kilograms
of cocaine, that is having done the equivalency factors." One
hundred and fifty kilograms of cocaine is more than the minimum
amount (five or more kilograms) charged in the indictment and found
by the jury. While the "or more" wording of the indictment would
make it perfectly permissible to conclude on the basis of competent
evidence that Escobar or his co-defendants were dealing with more
cocaine than the alleged minimum, no evidence of cocaine-dealing by
Escobar in the amount of 150 kilograms has been brought to our
attention. The trial evidence as to Escobar's drug involvement
related almost exclusively to crack, not cocaine. However, the
evidence of record easily supports a finding that Escobar's crack
dealings involved amounts of crack well in excess of that needed to
reach the 38 base offense level called for by 150 kilograms of
cocaine. See supra note 1.
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Colon-Solis, a case this Circuit handed down on January
8, 2004, two weeks prior to Escobar's sentencing hearing, stands
for the proposition that even when a defendant admits that the
conspiracy to which he belonged handled drug quantities sufficient
to trigger a statutory mandatory minimum sentence, he is not
automatically subject to that mandatory minimum without a further
finding that the triggering amounts were specifically attributable
to, or foreseeable by, him. 354 F.3d at 103-04.3 In Colon-Solis,
the defendant entered a straight guilty plea to a conspiracy
involving more than five kilograms of cocaine. At sentencing, the
district court found that Colon-Solis was responsible for five or
more kilograms of cocaine, based solely on his plea to the
conspiracy charge, even though the defendant sought to show that he
was not personally on notice of or connected with such large
amounts. This court found that the district court was in error,
without further inquiry, automatically to attribute the full amount
of drugs attributed to the conspiracy to the defendant and vacated
the sentence. Id. at 103.
As with his other two sentencing objections, Escobar has
arguably waived his present Colon-Solis argument, his counsel
3
We have since indicated that the same drug quantity analysis
prescribed in Colon-Solis is applicable for guidelines sentencing
purposes, not just for the purpose of ascertaining application of
mandatory minimums. See United States v. Pizarro-Berrios, 448 F.3d
1, 4 (1st Cir. 2006); United States v. Rodriguez-Gonzalez, 433 F.3d
165, 168 (1st Cir. 2005).
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having affirmatively stated to the district court at the sentencing
hearing, on two occasions, that (apart from the two-level
leadership enhancement) he found nothing to correct in, and had no
objection to, the PSI, which, in its calculation of the proposed
guidelines sentence, adopted 38 as the base offense level, based
upon the supposition that Escobar had been convicted of involvement
with 150 kilograms of cocaine. The court then announced a sentence
adopting the PSI's premises (i.e., 150 kilograms of cocaine) and
calculations (except for the two-level leadership enhancement), and
nothing further was ever said by or for Escobar to dispute those
calculations. United States v. Vega, 398 F.3d 149, 152 (1st Cir.
2005).
But even were we to review Escobar's Colon-Solis claim on
appeal, it would be unavailing. As the district court subsequently
recognized when sentencing the co-defendants, an individualized
drug quantity finding should be made for each defendant, but, in
the absence of an objection to the omission of such a finding, a
reversal is warranted only if the preconditions for a finding of
plain error exist.4 We must ask if the errors that occurred
4
The use in the PSI of 150 kilograms of cocaine, coupled with
a total absence of any explanation of where that amount came from
and how it related to Escobar, reflects poorly on the PSI.
Regardless of awareness of Colon-Solis, the PSI should have
contained a reasonably detailed narrative as to Escobar's drug
involvement instead of just a generalized discussion of the
conspiracy as a whole that made no mention of specific drug
quantities at all. See Fed. R. Crim. P. 32(c)(2) ("The presentence
report shall contain . . . a statement of the circumstances of the
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affected Escobar's substantial rights and if they constituted a
miscarriage of justice. United States v. Olano, 507 U.S. 725, 736
(1993). On the specific facts presented here, we think not.
The trial testimony of Mendoza-Lebron that Escobar was
involved in the sale of 1/8 kilogram of crack on a weekly basis
between 1994 and 1999 provides evidence of a quantity of crack
considerably more than sufficient to justify a base offense level
of 38. See supra note 1. And there is no alternative evidence in
Escobar's case plausibly suggesting a lesser drug amount. Escobar
disputes Mendoza-Lebron's testimony but does not point to any part
of the record where we may find evidence contradicting it.5
offense and circumstances affecting the defendant's behavior").
5
In a January 31, 2006 letter written in response to the
government's 28j letter, Escobar's counsel asked us to review
Mendoza-Lebron's testimony and stated "[t]he Defendant-Appellant
respectfully submits that the trial testimony of co-conspirator,
confidential witness Abdul Mendoza-Lebron cannot be construed as he
[sic] having testified that 'defendant sold 1/8 kilograms of crack
on a weekly basis between 1994 and 1999 at the drug point.'" But
while Mendoza-Lebron professed uncertainty about whether his drug
dealing relationship with the Escobar brothers began in 1994 or
1995, he stated unequivocally in his testimony that it began at
least by 1995:
Q: You have stated that you started dealing with drugs in
1994?
A: Yes.
Q: And you also stated that Carlos M. Escobar started
with you that year also?
A: He started, he would deal when I started supplying to
him.
Q: In 1994?
A: That I know of, the ones dealing were he and his
brother. I can't say whether it was in '94 or '95.
-23-
Escobar argues that the lower sentences given
subsequently to his co-defendants after the court requested the
government to provide individualized information as to each
demonstrates a fundamental unfairness in his own sentence. But we
have read the transcripts of the district court's later sentencings
of Escobar's co-defendants and find that, in their cases, the court
based the offense level on the individualized evidence of drug type
and quantity furnished by the various government witnesses at trial
-- a process which, had it been expressly applied to Escobar, would
almost surely have resulted in the very same sentence he received.
Indeed, it seems likely the court and Escobar's counsel did rely
upon their knowledge of the evidence of Escobar's extensive crack
dealing, given the judge's reference in sentencing to having done
the equivalency factors. See supra note 1. It is true that Ofray,
the main cocaine supplier from the Guayama area, was sentenced to
only 200 months based on an offense level of 34, plus two points
for weapons possession, but Ofray's lower figure was based on the
Trial Transcript, August 13, 2003, p. 635, cross-examination of
Mendoza-Lebron. Mendoza-Lebron testified that, "on a weekly basis
we would sell about an eighth [of crack] out of that drug point."
He said, "I sold Jovanni [Escobar's brother] an eighth. I would
give one to Carly [Escobar] and then they would sell to me, and
they would sell me one at the drug point . . . . I would give
Jovanni an eighth, an eighth to Carly and an eighth that was mine."
Thus it could be inferred that Escobar was involved in weekly sales
over at least a four-year period, adding up, literally, to over 200
such sales. Yet even if Mendoza-Lebron's sales of 1/8 kilograms of
crack weekly to Escobar had occurred only 12 times between the
period 1994/5-1999, the total amount of that drug attributable to
Escobar would afford a base offense level of 38.
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fact that, while he dealt in both cocaine and crack, the court
elected to base its calculations on the former drug, acknowledging
that it was being conservative. While the testimony of the
frequency of Mendoza-Lebron's cocaine transactions with Ofray was
similar to his crack transactions with Escobar, the difference in
drug type between cocaine and crack resulted in a lesser offense
level. The court, to be sure, might have arrived at a greater
offense level by adding in Ofray's additional drug dealings, but it
consciously elected not to do so. No such choice as between
different drugs existed in Escobar's case.
Thus, had the court made an individualized assessment
based on the government's drug quantity information later furnished
for Escobar, his offense level, based on his almost exclusively
crack dealings, would almost certainly have been no less than 38,
the same as it was. In the information subsequently furnished in
response to the district court's March 9, 2004 order (issued after
Escobar's sentence and judgment on January 23, 2004), the
government made reference to the trial evidence relative to
Escobar, as well as to his unsentenced colleagues, stating that,
according to Mendoza-Lebron's testimony, 1/8 kilogram of crack had
been sold weekly to Escobar by Mendoza-Lebron and implicating a
period of time that appears to have been at least four years. As
we have already noted, it would have taken no more than 12 such
weekly sales to reach 1.5 kilograms of crack, a drug quantity
-25-
calling for a base offense level of 38, the level the court used in
sentencing Escobar. Hence, even if the district court had
expressly followed the Colon-Solis requirement, it is hard to see
any ready basis for Escobar to be assigned a lesser offense level
than that adopted. We can see little reason, therefore, to believe
that the errors at Escobar's sentencing affected his substantial
rights or, more to the point, constituted a miscarriage of justice.
The evidence of drug quantity appearing in the record as directly
attributable to Escobar made it highly unlikely that a lower
offense level would have resulted from an individualized finding of
the amount of crack attributable to, or foreseeable by, Escobar.
Vega, 398 F.3d at 152. Accordingly, we do not find plain error.
iv. Booker
Finally we turn to the question of Booker remand.
Escobar argues that there is a reasonable probability that the
district court would impose a lesser sentence on remand. He claims
that because of the lesser sentences given post-Booker to some of
his co-defendants, there is a reasonable probability that he too
would get a lower sentence on remand, particularly because he was
a first offender who was in his teens at the time, at least, of the
very beginning of the conspiracy. Because Escobar did not preserve
a Booker argument at the district level, we review for plain
-26-
error.6 The first two prongs of the plain error standard are
satisfied whenever, as here, a defendant's sentence was imposed by
reference to a mandatory system of federal sentencing guidelines.
United States v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005).
To meet the third prong of the plain error test, "ordinarily the
defendant must point to circumstances creating a reasonable
probability that the district court would impose a different
sentence more favorable to the defendant under the new 'advisory
Guidelines' Booker regime." Id. at 75. A defendant cannot satisfy
the third prong by a "mere assertion that the court might have
given [him] a more favorable sentence." Id. at 80. A defendant
must show, "either in the existing record or by plausible proffer,"
that "there is a reasonable indication that the district judge
might well have reached a different result under advisory
guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005). If a district court made statements suggesting that it
would have been inclined to impose a lesser sentence but was
restricted by the mandatory guidelines, that indicates a reasonable
6
We note that Escobar, while acknowledging the appropriate
standard of review, also makes a glancing argument that he may have
preserved a Booker-type error by requesting downward departure for
his age and objecting to the role in the offense increase
recommended in the PSI. In order to preserve a Booker error,
however, he would have had to argue an error under Apprendi v. New
Jersey, 530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296
(2004), or that the Guidelines were unconstitutional. United
States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005). Escobar
did not do so here.
-27-
probability that the defendant's sentence was affected by a Booker
error. Antonakopoulos, 399 F.3d at 81; Heldeman, 402 F.3d at 224.
Though the district court sentenced Escobar at the low
end of the guideline range, that alone is not indicative of a
reasonable probability that the court would give a different
sentence on remand. United States v. Kornegay, 410 F.3d 89, 99-100
(1st Cir. 2005) (the fact that the court sentences a defendant "to
the low end of the applicable Guideline range is not, by itself,
sufficient to show a reasonable probability of a lesser sentence
under the advisory system"). Prior to sentencing, the district
court had a chance to rule on Escobar's motion for downward
departure under USSG §§ 5H1.1 (age) and 5K2.0 (general departure)
but denied that request. It made no mention at the sentencing
hearing of feeling constrained by the guidelines from administering
a lower sentence. The court likewise did not suggest that it felt
the guidelines sentence was too harsh. Further, when given the
chance to sentence Escobar's co-defendants under the newly advisory
guidelines, the district court did not sentence below the guideline
range for any of them and in fact gave one co-defendant a much
higher sentence than the guideline range, thus suggesting that the
district court was not inclined to give any of the defendants lower
sentences under the new Booker regime.
To the extent that Escobar argues that the disparity
between his sentence and those of his subsequently sentenced co-
-28-
defendants is unwarranted under 18 U.S.C. § 3553(a)(6),7 we note
that each of the defendants was sentenced on the basis of findings
of drug quantity which varied from defendant to defendant. Each
defendant was thus not identically situated such that disparity
among their sentences could be considered unwarranted. Without
indicia that the district court, freed from absolute guideline
constraints, was likely to have imposed a lesser sentence, we can
see no reason to remand. Affirmed.
7
We question whether Escobar has successfully raised this
argument as he discusses the issue of disparity directly only in
his reply brief. See United States v. Torres, 162 F.3d 6, 11 (1st
Cir. 1998) (party may not raise an argument for the first time in
a reply brief).
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