United States Court of Appeals
For the First Circuit
No. 05-2632
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE A. VÁZQUEZ-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.
Héctor L. Ramos-Vega, Research & Writing Specialist, Federal
Public Defender's Office, with whom Joseph C. Laws, Jr., Federal
Public Defender, were on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Senior
Appellate Attorney, with whom H.S. García, United States Attorney,
and Germán A. Rieckehoff, Assistant United States Attorney, were
on brief, for appellee.
December 12, 2006
*
Of the Sixth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Jorge A. Vázquez-Rivera
("Vázquez") was convicted of one count of conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846. The district court
sentenced Vázquez to 210 months in prison. Vázquez appealed, and
we remanded his case for re-sentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005). United States v. Vázquez-
Rivera, 407 F.3d 476 (1st Cir. 2005). On remand, the district
court again sentenced Vázquez to 210 months in prison. Vázquez now
appeals this sentence. After careful consideration, we affirm.
I. Background
On June 16, 1999, Vázquez and four other persons were
indicted on charges of conspiracy to distribute cocaine. Vázquez
voluntarily surrendered to the police on July 28, 1999. All of
Vázquez's co-defendants pled guilty pursuant to plea agreements and
received sentences ranging from 24 to 120 months in prison.
Vázquez contested the charges against him. At trial, various
prosecution witnesses testified as to the amounts of cocaine which
they had sold or observed being sold to Vázquez. Witnesses also
testified as to the presence of weapons at the drug point that
Vázquez administered. After a jury trial, Vázquez was convicted on
the sole count of conspiracy to distribute cocaine. The court
sentenced Vázquez to 210 months in prison based, in part, on the
mandatory nature of the Sentencing Guidelines.
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Vázquez appealed his conviction and his sentence to this
Court. We affirmed Vázquez's conviction, but remanded his case to
the district court for resentencing on the ground that his original
sentence was pronounced in violation of Booker. Vázquez-Rivera,
407 F.3d 476.
Prior to resentencing, Vázquez submitted a sentencing
memorandum to the district court. In the memorandum, he argued
that the evidence supported neither the drug quantity that the pre-
sentence report attributed to him nor the finding in the pre-
sentence report that he could have foreseen the involvement of a
weapon in the conspiracy to distribute cocaine. Vázquez also
argued that the court should deviate from the Sentencing Guidelines
range to reduce sentencing disparities between him and his co-
defendants. Lastly, Vázquez suggested that the nature of his
offense and his personal characteristics warranted a sentence below
the Guidelines range.
The court held a sentencing hearing for Vázquez on
September 30, 2005. During the hearing, the court stated:
We are not in agreement with the grounds put
forth whereby we should depart from a
Guidelines sentence in this case. Let me
state for the record that this court, this
Judge, that it will generally heed to the
Guidelines in imposing criminal punishment.
No doubt some criminal defendants will be
disappointed by this result, yet in the long
run such an approach may be the best way to
develop a fair and consistent sentencing
scheme around the country for the benefit of
defendants, victims and the public. The
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Congressional view of how to structure that
sentencing will surely be informed by how
judges conform to the new advisory guideline
system. If that discretion is exercised
responsibly Congress may be inclined to give
judges greater flexibility under a new
sentencing system. On the other hand if that
discretion is abused by sentences that thwart
Congressional objectives, Congress has ample
reason to deny us that flexibility. The
course, in my opinion today, is to faithfully
implement the Congressional purposes
underlying the sentences format by following
the Guidelines in all but unusual cases. I
find that this is not an unusual case and that
the application of the Guidelines are
reasonable in this case.
The court then sentenced Vázquez to 210 months in prison. Vázquez
now appeals from this sentence.
II. Discussion
Vázquez contests his sentence on two grounds. First,
Vázquez argues that the evidence at trial was insufficient to
support various aspects of his sentence. Second, Vázquez contends
that his sentence is procedurally defective because the sentencing
court failed to adequately explain his sentence and is
substantively unreasonable because the court gave improper weight
to the Sentencing Guidelines.
A. Sufficiency of the Evidence
Vázquez's first argument is that the evidence presented
at trial was insufficient to support either the individualized drug
quantity or the involvement of weapons that were used to determine
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his sentence.1 We review a sentencing court's findings of fact for
clear error and their conclusions of law de novo. United States v.
Antonakopoulos, 399 F.3d 68, 82 (1st Cir. 2005).
1. Drug Quantity
Vázquez contends that the court erred in calculating the
quantity of drugs personally attributable to him for sentencing
purposes. In Derman v. United States, 298 F.3d 34, 43 (1st Cir.
2002), we held that:
[o]nce the jury has determined that the
conspiracy involved a type and quantity of
drugs sufficient to justify a sentence above
the default statutory maximum and has found a
particular defendant guilty of participation
in the conspiracy, the judge lawfully may
determine the drug quantity attributable to
that defendant and sentence him accordingly.
The judge may determine the drug quantity by a preponderance of the
evidence. United States v. Santos, 357 F.3d 136, 140 (1st Cir.
2004).
Vázquez concedes that the sentencing court had the
following testimony. First, Edwin Meléndez-Negrón testified that
on "approximately" 20 occasions, he either sold or purchased one
kilogram of cocaine to or from Vázquez. Second, Alberto Negrón-
1
Vázquez also states that he challenges the sentencing
enhancement for his role as supervisor in the drug conspiracy.
However, beyond this statement, he provides no additional reasoning
or argument why this was error. As such, we decline to address the
argument. United States v. Soto-Beníquez, 356 F.3d 1, 31 (1st Cir.
2003) ("Because this argument is made in a perfunctory manner,
unaccompanied by any effort at developed argumentation, it has been
waived.").
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Constantino testified that he had sold "some kilos" to Vázquez's
brother, which were, in fact, destined for Vázquez himself. Third,
José Borrero Feliciano testified that the Ceiba drug point, which
Vázquez managed, sold "an eighth" of cocaine on a daily basis.
Vázquez argues that because some of these witnesses prefaced their
calculations with the word "around" or "approximately," their
testimony is inherently unreliable. However, we have said
previously that a sentencing court need not determine an exact
amount of drugs, but may instead make a "reasoned estimate" of the
drug quantity attributable to the defendant. United States v.
Huddleston, 194 F.3d 214, 224 (1st Cir. 1999). Given this
testimony, we conclude that the court had ample evidence on which
to base its conclusion that at least five kilograms of cocaine were
attributable to Vázquez.
2. Weapons in the Conspiracy
Vázquez also argues that the court had insufficient
evidence to support the enhancement under U.S.S.G. § 2D1.1(b)(1)
for possession of a "dangerous weapon (including a firearm)." We
have held that a defendant charged with conspiracy is accountable
for all "'reasonably foreseeable' conduct undertaken by others" in
furtherance of the conspiracy. United States v. Bianco, 922 F.2d
910, 912 (1st Cir. 1991). Thus, to determine whether the
sentencing enhancement for possession of a dangerous weapon can be
imposed, the sentencing court may consider not only whether Vázquez
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personally possessed a dangerous weapon, but also whether "it was
reasonably foreseeable that a co-conspirator would possess a gun in
furtherance of the [conspiracy to distribute cocaine]." United
States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004).
The sentencing court had the following evidence about the
involvement of firearms in the conspiracy. First, Alberto Negrón-
Constantino testified that he sold firearms to "Hiram," who was a
runner for the drug point managed by Vázquez. Second, Alexander
Figueroa testified that he gave a shotgun to the person in charge
of storing firearms at the drug point. Third, David Sánchez Ortiz,
who sold drugs to Vázquez through his brother, testified that he
regularly carried a firearm for protection. Lastly, Edwin
Meléndez-Negrón, who purchased cocaine from Vázquez, testified that
he also carried a firearm for protection.
We find that this is sufficient evidence to establish the
use of firearms to further the conspiracy to distribute cocaine.
Further, we believe that the evidence presented is sufficient to
allow an inference that Vázquez, who was the manager of the drug
point, was likely aware or could have foreseen that many of the
people who worked for him carried or used firearms. As we have
noted before, "a defendant's awareness of the inner workings of a
conspiracy in which he is participating . . . frequently will
suffice to prove the defendant's ability to foresee the acts of
coconspirators." United States v. LaCroix, 28 F.3d 223, 229 (1st
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Cir. 1994). As Vázquez has conceded, testimony at trial showed
that Vázquez "allegedly exercised decision making authority to
facilitate the delivery of narcotics, was in charge of buying,
processing, and distributing the narcotics to the peddlers, and he
would be responsible for retrieving the proceeds, verifying the
status of the inventory and supervising the day-to-day operation of
the drug point." Appellant's Br. 10. Given Vázquez's intimate
involvement in the operations of the drug point, the court did not
err in concluding that Vázquez could have foreseen that many of his
employees and suppliers were armed.
B. Reasonableness of the Sentence
Next, Vázquez argues that his sentence is procedurally
and substantively flawed. He first argues that the sentencing
court inadequately explained its justification for his sentence as
required by 18 U.S.C. § 3553(c). Vázquez alternatively argues that
even if the district court complied with § 3553(c), it gave undue
weight to the Sentencing Guidelines in determining his sentence.
We review sentences for reasonableness. United States v. Booker,
543 U.S. 220, 260-63 (2005); see also Antonakopoulos, 399 F.3d at
76.
1. Justification for the Sentence
Vázquez claims that the court did not adequately explain
the reasoning behind his sentence as required by 18 U.S.C. § 3553
(c). We said in United States v. Jiménez-Beltre that "it is
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important for us to have the district court's reasons for its
sentence"; however, the reasons need not be explicit: "[A] court's
reasoning can often be inferred by comparing what was argued by the
parties or contained in the pre-sentence report with what the judge
did." 440 F.3d 514, 519 (1st Cir. 2006);see also United States v.
Navedo-Concepción, 450 F.3d 54, 57 (1st Cir. 2006) ("The more
obvious the reasons for a [sentencing] choice, the less that needs
to be explained."). Although the court did not specifically reject
Vázquez's arguments during the pronouncement of the sentence, it
did explain that it had found by a preponderance of the evidence
that at least five kilograms of cocaine could be attributed to
Vázquez, that a weapon was foreseeable, and that it considered
every one of the factors enumerated in § 3553(a) that it is
required to consider. The court further stated that it was basing
its sentence on the fact that
[D]efendant was a runner or administrator of a
drug point, he had decision making authority
to facilitate the delivery of narcotics, was
in charge of buying, processing, and
distributing drugs at the drug point. He was
also responsible for supervising the
operations of the drug point. Moreover there
were people who participated in this
conspiracy that possessed, carried, used and
brandished firearms and defendant was aware of
the same.
In addition, prior to the pronouncement of sentence, the
court specifically stated that it did not agree with Vázquez's
disparity argument because plea bargains were "very valuable for
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the system." Given these explanations, we find it easy to infer
that the sentencing court did not find Vázquez's arguments
regarding sentencing disparities or the sufficiency of the evidence
persuasive and that it thought that a sentence based on the
Guidelines recommendation was warranted. Accordingly, we find the
sentencing court's reasoning to be sufficient to comply with 18
U.S.C. § 3553(c) and to provide us with a base to analyze Vázquez's
other claims.
C. Consideration of Sentencing Factors
The crux of Vázquez's argument regarding sentencing is
that, had the sentencing court not treated the Sentencing
Guidelines as applicable in all but unusual cases, it would have
been free to give more weight to other sentencing factors, namely
sentencing disparity. As an initial matter, we think it necessary
to point out that the sentencing court misconstrued the role of the
Sentencing Guidelines. As we stated in Jiménez-Beltre, "[a]lthough
making the guidelines 'presumptive' or 'per se reasonable' does not
make them mandatory, it tends in that direction." 440 F.3d at 518.
By stating that it will "heed" to the Sentencing Guidelines, the
sentencing court in the present case appeared to treat the
Sentencing Guidelines as presumptively applicable. By stating that
it would apply the Guidelines in all but "unusual cases," the
court's language arguably went even further than the language at
issue in Navedo-Concepción, 450 F.3d at 57, that we described as a
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modest variance from Jiménez-Beltre. Our holding in Jiménez-Beltre
makes it clear that a case need not be unusual for a sentencing
court to consider the other factors in 18 U.S.C. § 3353(a).
Our review of Vázquez's sentence, however, is for
reasonableness. Considering the substantial weight of the
Sentencing Guidelines and the § 3553(a) factors, we do not find
that his sentence was unreasonable. Vázquez suggests that had the
sentencing court not construed the Guidelines as applicable in all
but unusual cases, it would have been free to consider his
suggestion of a lower sentence to reduce sentencing disparities.
Under 18 U.S.C. § 3553(a)(6), the sentencing court is obliged to
consider "the need to avoid unwarranted sentence disparities" among
similarly situated defendants (emphasis added). Vázquez argues
that the sentence he received is unwarranted because it punishes
his decision to contest the charges against him rather than enter
into a plea bargain.
It is well established that the plea bargaining system
does not impermissibly punish a defendant's choice to go to trial
rather than to plead guilty: "The legitimacy of the practice of
'plea bargaining,' . . . has not been doubted and where 'properly
administered' it is to be 'encouraged' as an 'essential' and
'desirable' 'component of the administration of justice.'" Chaffin
v. Stynchcombe, 412 U.S. 17, 31 n.18 (1973) (quoting Santobello v.
New York, 404 U.S. 257, 260-61 (1971)). In United States v. Yeje-
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Cabrera, we held that "a defendant simply has no right to a
sentence, after trial, that is as lenient as a sentence he could
have had earlier in a plea bargain." 430 F.3d 1, 26-27 (1st Cir.
2005); see also United States v. Rodríguez, 162 F.3d 135, 152 (1st
Cir. 1998) (stating that plea bargains lead to "sentencing
disparity for the defendants who chose to put the government to its
burden in proving its case. Nevertheless, the law allows the
government to do this, even if it results in sentences of such
disparity as would strike many as unfair."). Although a district
court may consider disparities among co-defendants in determining
a sentence, we do not find Vázquez's sentence to be unreasonable
simply because his co-defendants agreed to help the government in
exchange for reduced sentences. See United States v. Thurston, 456
F.3d 211, 216-17 (1st Cir. 2006) (noting that a defendant who
chooses to enter into a plea bargain is not similarly situated to
a defendant who contests the charges); see also Navedo-Concepción,
450 F.3d at 60 ("The district judge was not required to reduce [the
appellant's] sentence simply because he--unlike the other
defendants--chose to go to trial"). Further, the fact that Vázquez
was gainfully employed and is now married, as he notes in his brief
on appeal, simply makes his participation in this conspiracy all
the more unfortunate; however, this fact does not make his
sentence, already at the lower end of the Guidelines range,
unreasonable. Thus, given the Sentencing Guidelines
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recommendation, to which we attach substantial weight, and the
absence of any § 3553(a) factors militating in favor of a lower
sentence, we conclude that the sentence that the court imposed on
Vázquez was reasonable.
III. Conclusion
For the foregoing reasons, we affirm the district court.
Affirmed.
(Concurring opinion follows.)
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HOWARD, Circuit Judge, concurring in the judgment. I
agree with the lead opinion that the sentence imposed in this case
is reasonable. I don't agree that the district judge "misconstrued
the role of the Sentencing Guidelines" by stating that it would
"heed" to the guidelines in all but "unusual cases." Ante at 10.
This formulation is not inconsistent with our recognition in
Jiménez-Beltre that the Guidelines are an "important" factor in
sentencing and provide the starting point for constructing a
reasonable sentence. See 440 F.3d at 518-19; see also 440 F.3d at
522 (Howard J., concurring in part and concurring in the judgment)
(the guidelines "in the ususal case" express Congress's view on the
purposes of federal sentencing).
District courts will inevitably approach sentencing
differently post-Booker. Indeed, the legitimacy of a range of
approaches is implicit in Booker's grant of added discretion to
sentencing judges. So long as the sentence is reasonable and the
approach is not unlawful, the appellate task is complete. See
United States v. Buchanan, 449 F.3d 731, 741 (6th Cir. 2006)
(Sutton, J., concurring).
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