United States v. Rivera-Rodriguez

United States Court of Appeals
For the First Circuit

No. 04-1009

UNITED STATES OF AMERICA,

Appellee,

v.

OMAR RIVERA-RODRÍGUEZ,

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

Torruella and Lynch, Circuit Judges,
and Lisi,* District Judge.

Lisa Aidlin, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.

May 31, 2007

*
Of the District of Rhode Island, sitting by designation.
 LISI, Chief District Judge. Defendant-appellant Omar Rivera-

Rodríguez (“Rivera-Rodríguez”) appeals from his sentence of 121

months imprisonment for conspiracy to possess with intent to

distribute controlled substances in violation of 21 U.S.C. §§ 846

and 841(a)(1). Finding his assignments of error to be without

merit, we affirm Rivera-Rodríguez’s sentence.

I.

Rivera-Rodríguez was a member of a drug-trafficking

organization that sold cocaine, crack cocaine, heroin, and

marijuana at “drug points” in and around Guayama, Puerto Rico. On

September 26, 2002, following a two-year investigation by federal

and local law enforcement agencies, a federal grand jury returned

a two-count indictment against Rivera-Rodríguez and forty-two co-

defendants. Count One of the indictment alleged that from

approximately April 28, 1993, to September 26, 2002, the defendants

conspired to possess with intent to distribute controlled

substances in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A).1

According to the indictment, Rivera-Rodríguez supplied heroin

and cocaine to the drug-trafficking organization. He is one of

only two suppliers identified in the indictment. At a detention

hearing on October 11, 2002, the government described Rivera-

1
Count Two (a property forfeiture charge) was dismissed as to
Rivera-Rodríguez and, consequently, is not a subject of this
appeal.

-2-
Rodríguez’s role in the conspiracy as “significant.” When asked

about the quantity of drugs he had supplied to the organization at

any given time, the government responded that:

[Rivera-Rodríguez] has been involved since approximately
1992 or 1993 and . . . he has supplied kilogram
quantities, perhaps not one kilo each time there’s a drug
transaction, perhaps half a kilo quantities, perhaps
quarter of a kilo or eighth of a kilo quantities. But
we’re not talking grams here. We’re talking kilo or
portion of kilo quantities of both cocaine and heroin.

At a bail review hearing on January 29, 2003, the government

again characterized Rivera-Rodríguez’s role in the conspiracy as

“substantial” and “significant.” The government described Rivera-

Rodríguez as a “major cocaine supplier” and informed the magistrate

judge that it had three or four witnesses who had provided

information that Rivera-Rodríguez was a “main supplier to the

organization.” The government indicated that Rivera-Rodríguez was

“involved in the upper echelons of the organization,” and that he

had delegated authority to others to make transactions on his

behalf. The government also introduced an organizational chart and

asserted that Rivera-Rodríguez acted as the “right hand” of the

leader of the organization.

On July 15, 2003, Rivera-Rodríguez pleaded guilty pursuant to

a plea agreement with the government. The parties agreed that

Rivera-Rodríguez would be held responsible for 3.5 to 5 kilograms

of cocaine, which yielded a base offense level of 30 under U.S.S.G.

§ 2D1.1(c)(5). The parties also stipulated that Rivera-Rodríguez

-3-
would receive a two-level increase for his role in the offense as

“an organizer, leader, manager, or supervisor” pursuant to U.S.S.G.

§ 3B1.1(c), and a two-level decrease for his acceptance of

responsibility under U.S.S.G. § 3E1.1.

The parties anticipated a Criminal History Category of I,

making the applicable sentencing range 97 to 121 months. Although

the plea agreement warned Rivera-Rodríguez that his sentence was

“within the sound discretion of the sentencing judge,” the parties

agreed that the government would recommend 121 months of

incarceration, while Rivera-Rodríguez would request 97 months.

The presentence report (“PSR”) adopted the guideline

calculations agreed to by the parties in the plea agreement.2 The

PSR described Rivera-Rodríguez as “the cocaine and marihuana

supplier to the organization.” Notably, the PSR stated that, as

one of the suppliers to the drug-trafficking organization, Rivera-

Rodríguez was “more culpable” than those members of the conspiracy

who sold the narcotics. The PSR also noted that under the terms of

the plea agreement, Rivera-Rodríguez had “pled guilty in exchange

for the stipulation of a lesser drug amount.”

At the sentencing hearing on November 7, 2003, the court

accepted the guideline calculations agreed to by the parties and

2
Although not contemplated in the plea agreement, the PSR
also included a two-level increase to Rivera-Rodríguez’s base
offense level for possession of a firearm under U.S.S.G. §
2D1.1(b)(1). Rivera-Rodríguez objected, however, and the
enhancement was eventually removed from the PSR.

-4-
adopted by the PSR. Defense counsel asked the court to sentence

Rivera-Rodríguez to the low-end of the guideline range, or 97

months. In support of this request for a sentence at the low-end

of the guideline range, defense counsel noted that Rivera-Rodríguez

had a long-term, stable marriage and a six-year-old daughter.

Counsel also argued that, despite having only a ninth grade

education, Rivera-Rodríguez had worked as a land surveyor, and had

owned and operated a small grocery store since 2000. Defense

counsel informed the court that she had information that a witness

at the trial of several of Rivera-Rodríguez’s co-defendants had

“testified to the fact that after [Rivera-Rodríguez] engaged in his

[grocery] business, he withdrew from the conspiracy.”

In arguing for the low-end of the guideline range, defense

counsel also asserted that the pre-trial discovery provided by the

government showed that Rivera-Rodríguez was only a “peripheral

supplier.” Defense counsel stated that “the evidence against

[Rivera-Rodríguez] consisted of two or three witnesses saying that

he had supplied 8ths and 4ths [of a kilogram], and that is the

reason why the quantity of 3.5 to 5 kilograms of cocaine was

stipulated [to] in the plea agreement.”

In closing, defense counsel observed that Rivera-Rodríguez was

a first-time offender and had shown a willingness to rehabilitate.

She also noted that he “was one of the first defendants to come

forward and accept his responsibility.” Accordingly, defense

-5-
counsel asked the court to consider a sentence at the low-end of

the guideline range.

The government, on the other hand, asked the court to sentence

Rivera-Rodríguez to the high-end of the guideline range. The

government stated:

As [y]our Honor knows well, having presided over the
[two] month trial [of several co-defendants], there were
numerous drug points, between Guayama and Salinas, at
least ten. The drugs had to come from somewhere, [y]our
Honor, I believe the court heard testimony that there
were numerous sources, one being one of the defendants
that stood trial and one being the man that stands here
before you. . . . I submit that the testimony, [pre-trial
discovery], and all [of] the evidence that the government
has and presented at trial indicates that were this
defendant to go to trial, the government would be seeking
a [base offense] level [of] 38 to start with. In this
case we are seeking a much lower amount.

There were quantities frankly beyond the amount
stipulated in the plea agreement and I submit that the
government is bound by the plea agreement to recommend a
maximum of 121 months . . . I would ask the court to
impose the sentence that the government now recommends.

Defense counsel countered that the quantity of drugs that had been

stipulated to in the plea agreement was based on the pre-trial

discovery she had received from the government.

The court imposed a 121-month sentence, stating that it had

“taken into consideration all of the elements in the presentence

report[,] including the nature of the offense and all [of] the

testimony that the court received . . . in the course of trial.”

Defense counsel objected, asking the court to reconsider in light

of the court’s reliance on trial testimony. The court explained:

-6-
 I said in the nature of the offense and my recollection
of the testimony at trial. You are talking about 8ths
and quarters, that was for a long time that cocaine was
being supplied. So the amount of 3.5 from the evidence
that I recall, is more than, I would say more than
generous.

Defense counsel responded:

But the question is as it pertains to him. I was not
privy to that information and I don’t think it is fair
that I am standing here requesting . . . the . . . lower
end of the guideline [range] and then not have that
information to be able to refute that. I am sure there
were other suppliers in the indictment.

The court declined to reconsider:

Counsel, the sentence at the lower or upper end of the
guideline range is discretionary. Taking into
consideration the presentence report, the position of
this defendant within the organizational chart which you
knew, you had, [and] all [of] the evidence that I have
before me. I am exercising my discretion and sentencing
[Rivera-Rodríguez] to the upper end.

Defense counsel expressed her concern that the court was not

taking into consideration Rivera-Rodríguez’s employment history or

status as a first-time offender. The court noted, however, that

“one of the main purposes of sentencing considerations now under

this Congress, under these sentencing guidelines[,] is deterrence

and punishment,” and explained that the court had considered the

factors cited by defense counsel “by not doing [its] own sentencing

guideline calculation and imposing a much higher guideline [sic]

based on the evidence that [it had].”

II.

Rivera-Rodríguez assigns three errors on appeal. First, he

-7-
contends that the district court erred by failing to give him

notice that the court intended to rely on testimony from his co-

defendants’ trial in deciding where to sentence him within the

guideline range. Second, Rivera-Rodríguez argues that the

government breached its plea agreement with him by urging the court

to impose a higher sentence than that which the government agreed

to recommend, and by arguing that he was responsible for a quantity

of cocaine greater than the amount stipulated. Finally, Rivera-

Rodríguez claims that the court erred by imposing a two-level

increase for his role in the offense pursuant to U.S.S.G. §

3B1.1(c), and asks that his case be remanded to the district court

for resentencing under United States v. Booker, 543 U.S. 220

(2005). We will address each argument in turn.

A. Notice

In arriving at an appropriate sentence, a district court

enjoys “broad discretion in the information it may receive and

consider regarding [a] defendant and his conduct.” United States

v. Curran, 926 F.2d 59, 61 (1st Cir. 1991) (citations omitted); see

18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate

sentence.”). In exercising this discretion, the district court is

free to consider information from a trial proceeding at which the

-8-
defendant was not present. See United States v. Rios, 893 F.2d

479, 481 (2d Cir. 1990) (citing United States v. Romano, 825 F.2d

725, 728 (2d Cir. 1987)); see also United States v. Blackwell, 49

F.3d 1232, 1236 (7th Cir. 1995) (collecting cases). It is well

established, however, “that a convicted defendant has the right to

be sentenced on the basis of accurate and reliable information, and

that implicit in this right is the opportunity to rebut the

government’s evidence and the information in the presentence

report.” Blackwell, 49 F.3d at 1235 (citation omitted). The

Supreme Court has explained that Fed. R. Crim. P. 32, which

addresses sentencing and judgment, “contemplates full adversary

testing of the issues relevant to a [g]uidelines sentence and

mandates that the parties be given ‘an opportunity to comment upon

the probation officer’s determination and on other matters relating

to the appropriate sentence.’” Burns v. United States, 501 U.S.

129, 135 (1991) (quoting Fed. R. Crim. P. 32).

In United States v. Berzon, 941 F.2d 8 (1st Cir. 1991), we

emphasized “that a defendant must be provided with a meaningful

opportunity to comment on the factual information on which his or

her sentence is based.” Id. at 10. At issue was defendant Robert

Berzon’s claim that the district court had based its upward

adjustment of his base offense level on testimony from a co-

defendant’s sentencing hearing that neither Berzon nor his attorney

had attended. The testimony offered new and substantial

-9-
information about Berzon’s role in the offense as a leader or

organizer under U.S.S.G. § 3B1.1(c). Berzon contended, however,

that he had no knowledge of the damaging testimony at the time of

his own sentencing. In finding that a defendant must be provided

with notice before such information is considered, we concluded

that “a defendant may not be placed in a position where, because of

his ignorance of the information being used against him, he is

effectively denied an opportunity to comment on or otherwise

challenge material information considered by the district court.”

Id. at 21; see Burns, 501 U.S. at 136 (“‘Th[e] right to be heard

has little reality or worth unless one is informed’ that a decision

is contemplated.”) (quoting Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950)).

Because it was unclear from the record, however, whether the

district court had considered the undisclosed information, we

remanded the case to the original sentencing judge with directions

that he indicate whether he had materially relied on this

information in sentencing Berzon. Berzon, 941 F.2d at 10. If the

sentencing judge answered affirmatively, we ordered that Berzon’s

sentence be vacated, and Berzon be resentenced by a different

district judge. Id.

On appeal, Rivera-Rodríguez relies heavily on this court’s

decision in Berzon, arguing that Berzon requires us to vacate his

sentence and remand for resentencing. According to Rivera-

-10-
Rodríguez, the district court erred when it failed to notify him

that it would rely on testimony from his co-defendants’ trial in

deciding where to sentence him within the guideline range. He

claims that he had no knowledge of the prior trial testimony and

argues that he was blind-sided by the contention that he was a

significant supplier of drugs to the conspiracy. As a result,

Rivera-Rodríguez argues that he was denied the opportunity to

challenge and rebut the court’s reliance on such information in

violation of Fed. R. Crim. P. 32 and his right to due process under

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution.3

Rivera-Rodríguez’s reliance on Berzon, however, is misplaced.

One of our concerns in Berzon was that the undisclosed testimony at

issue contained new and significant information about Berzon’s role

in the offense - information that was nowhere in the record and

which Berzon had no opportunity to challenge. Id. at 17. The same

can not be said here. At the sentencing hearing on November 7,

2003, defense counsel argued that her client was a “peripheral

supplier,” who had only supplied “8ths and 4ths” of a kilogram of

cocaine. The court, however, was not persuaded. In imposing a

sentence of 121 months, the sentencing judge made a general, and

3
Although Rivera-Rodríguez relies, in part, on the due
process clause of the Fourteenth Amendment, we note that the
Fourteenth Amendment applies only to the states. Bolling v.
Sharpe, 347 U.S. 497, 498-99 (1954).

-11-
somewhat vague, reference to “all [of] the testimony that the court

received . . . in the course of trial.” When defense counsel

objected to this remark, the court clarified:

I said in the nature of the offense and my recollection
of the testimony at trial. You are talking about 8ths
and quarters, that was for a long time that cocaine was
being supplied. So the amount of 3.5 from the evidence
that I recall, is more than, I would say more than
generous.

Based on this exchange, it is clear that the district court

mentioned the testimony it had heard at trial to emphasize that the

court was familiar with both the length of time the conspiracy had

operated and the quantity of drugs that had been involved. By

doing so, the sentencing judge was responding to defense counsel’s

argument that her client was a “peripheral supplier,” who had

supplied only small amounts of cocaine.

This information was hardly new to Rivera-Rodríguez and his

counsel. See id. (requiring notice when a court expects to

consider “new information” from a separate proceeding). The length

of the conspiracy and quantity of drugs involved were set forth in

the indictment, plea agreement, and PSR. The PSR noted that under

the terms of the plea agreement, Rivera-Rodríguez had “pled guilty

in exchange for the stipulation of a lesser drug amount.” Indeed,

this information was at the heart of the government’s argument that

Rivera-Rodríguez was a “significant” supplier of cocaine. At his

detention hearing, three days after Rivera-Rodríguez was arrested,

the government was asked about the quantity of drugs Rivera-

-12-
Rodríguez had supplied at any given time. The government responded

that:

[Rivera-Rodríguez] has been involved since approximately
1992 or 1993 and . . . he has supplied kilogram
quantities, perhaps not one kilo each time there’s a drug
transaction, perhaps half a kilo quantities, perhaps
quarter of a kilo or eighth of a kilo quantities. But
we’re not talking grams here. We’re talking kilo or
portion of kilo quantities of both cocaine and heroin.

Notably, this is the same type of information that the court would

later rely on at Rivera-Rodríguez’s sentencing. Any factual

information from the trial to which the court may have been

referring, therefore, was neither new nor absent from the record.

Furthermore, we are not persuaded by Rivera-Rodríguez’s claim

that he did not have a meaningful opportunity to respond to such

information. Although Rivera-Rodríguez contends that he was blind-

sided by the assertion that he was a “significant” supplier, the

government consistently maintained, throughout the proceedings

below, that Rivera-Rodríguez was a “main supplier to the

organization.” At the bail review hearing on January 29, 2003, the

government referred to Rivera-Rodríguez as a “major cocaine

supplier.” In fact, even as early as the detention hearing on

October 11, 2002, the government had described his role as a

supplier to the organization as “significant.”

At the sentencing hearing, defense counsel anticipated this

argument from the government, stating that she was “sure the

government [was] going to get up and say [her client] was one of

-13-
the main suppliers.” In an attempt to counter this claim, defense

counsel argued that her client was only a “peripheral supplier,”

minimizing the quantity of drugs that Rivera-Rodríguez had

supplied. Thus, Rivera-Rodríguez clearly was on notice that this

information was at issue during his sentencing, and he was given an

opportunity to rebut it.

Moreover, there is no indication from the record that the

sentencing judge materially relied on any undisclosed testimony in

deciding where to sentence Rivera-Rodríguez within the guideline

range. Id. at 10. In imposing a sentence at the high-end of the

guideline range, the district court stated that it had “taken into

consideration all of the elements in the presentence report[,]

including the nature of the offense and all [of] the testimony that

the court received . . . in the course of trial.” After defense

counsel challenged the court’s reliance on the trial testimony, the

court corrected her:

Counsel, the sentence at the lower or upper end of the
guideline range is discretionary. Taking into
consideration the presentence report, the position of
this defendant within the organizational chart which you
knew, you had, [and] all [of] the evidence that I have
before me. I am exercising my discretion and sentencing
[Rivera-Rodríguez] to the upper end.

Despite Rivera-Rodríguez’s arguments to the contrary, it is clear

from these comments that the district court did not materially rely

on any specific testimony from the trial. Instead, as discussed

above, the court made a general reference to the trial for the

-14-
limited purpose of highlighting the length of the conspiracy and

the amount of drugs involved. See United States v. Fuentes-Moreno,

895 F.2d 24, 26 (1st Cir. 1990) (finding no error in district

court’s “general reference” to the trial of Fuentes-Moreno’s co-

defendants in imposing sentence). Although the court mentioned

trial testimony in deciding where to sentence Rivera-Rodríguez

within the guideline range, the sentencing judge relied on record

evidence, i.e., evidence that Rivera-Rodríguez was well aware of

and had an opportunity to challenge and rebut at his sentencing.

Accordingly, under these circumstances, we find no error.

B. Plea Agreement

Rivera-Rodríguez also argues that the government breached the

plea agreement between the parties by urging the district court to

impose a higher sentence than that which the government agreed to

recommend, and by arguing that he was responsible for a quantity of

cocaine greater than the amount stipulated. Specifically, Rivera-

Rodríguez claims that the government breached the plea agreement by

asking the court to find a base offense level of 38, as opposed to

the level 30 contemplated by the agreement, and by stating that

“[t]here were quantities [of cocaine] frankly beyond the amount

stipulated [to] in the plea agreement . . . .” Again, however, we

disagree.

The plea agreement between the parties stipulated that Rivera-

Rodríguez would be held responsible for 3.5 to 5 kilograms of

-15-
cocaine, yielding a base offense level of 30 under U.S.S.G. §

2D1.1(c)(5). The parties assumed that Rivera-Rodríguez would be

found to have a Criminal History Category of I, making the

applicable guideline range 97 to 121 months. Although the plea

agreement warned Rivera-Rodríguez that his sentence was “within the

sound discretion of the sentencing judge,” the agreement provided

that the government would recommend 121 months of imprisonment,

while Rivera-Rodríguez would request 97 months.

Following defense counsel’s argument for the low-end of the

guideline range at the sentencing hearing, the government “ask[ed]

the court to impose the higher end of the sentencing guidelines,

that being 121 months . . . .” In support of this request, the

government referred to the two-month trial of Rivera-Rodríguez’s

co-defendants, and stated that:

all [of] the evidence that the government has and
presented at trial indicates that were this defendant to
go to trial, the government would be seeking a [base
offense] level [of] 38 to start with. In this case we
are seeking a much lower amount.

There were quantities frankly beyond the amount
stipulated in the plea agreement and I submit that the
government is bound by the plea agreement to recommend a
maximum of 121 months . . . . I would ask the court to
impose the sentence that the government now recommends.
(emphasis supplied).

Ordinarily, whether the government has breached its plea

agreement with a defendant is a question of law and our review is

plenary. See United States v. Doe, 233 F.3d 642, 643-44 (1st Cir.

2000) (citing United States v. Clark, 55 F.3d 9, 11 (1st Cir.

-16-
1995)); United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).

Where as here, however, the “defendant has knowledge of conduct

ostensibly amounting to a breach of a plea agreement, yet does not

bring that breach to the attention of the sentencing court, we

review only for plain error.” United States v. Saxena, 229 F.3d 1,

5 (1st Cir. 2000). Thus, we consider whether: (1) there was error,

(2) it was plain, (3) the error affected the defendant’s

substantial rights, and (4) the error adversely impacted the

fairness, integrity, or public reputation of judicial proceedings.

United States v. Olano, 507 U.S. 725, 732 (1993); Saxena, 229 F.3d

at 5.

“[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of

the inducement or consideration, such promise must be fulfilled.”

Santobello v. New York, 404 U.S. 257, 262 (1971); see United States

v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002); Saxena, 229 F.3d at 5-

6. Because defendants must ultimately waive fundamental rights as

a result of entering into any plea agreement, “we hold prosecutors

engaging in plea bargaining to ‘the most meticulous standards of

both promise and performance.’” Riggs, 287 F.3d at 224 (quoting

United States v. Velez Carrero, 77 F.3d 11, 11 (1st Cir. 1996)).

This requirement prohibits, therefore, “not only explicit

repudiation of the government’s assurances, but must in the

interests of fairness be read to forbid end-runs around them.”

-17-
United States v. Voccola, 600 F.Supp. 1534, 1537 (D.R.I. 1985),

quoted in United States v. Frazier, 340 F.3d 5, 10 (1st Cir. 2003);

Saxena, 229 F.3d at 6; Canada, 960 F.2d at 269.

The plea agreement expressly provided that the government

would recommend a sentence at the high-end of the guideline range.

This is exactly what it did. The government asked the court to

impose a sentence of 121 months, not once, but twice during the

course of its argument. Cf. Canada, 960 F.2d at 268 (finding that

although “the Assistant United States Attorney informed the court

of the plea agreement and noted the existence therein of the

government’s promise to recommend only 36 months of incarceration,

she never herself affirmatively recommended a 36 month sentence”)

(emphasis supplied). Indeed, the government indicated that it was

“bound by the plea agreement to recommend a maximum of 121 months.”

Thus, the government did not technically violate the terms of the

plea agreement. See Frazier, 340 F.3d at 12.

The government, however, “cannot rely on mere technical

compliance, and adherence to the terms of a plea agreement

‘requires more than lip service on a prosecutor’s part.’” Id.

(quoting Saxena, 229 F.3d at 6). Although the government

recommended a sentence of 121 months, it also informed the court

that if the government had been forced to go to trial it would have

sought a base offense level of 38. Moreover, as noted, the

government stated that “[t]here were quantities [of cocaine]

-18-
frankly beyond the amount stipulated [to] in the plea agreement.”

Rivera-Rodríguez, therefore, argues that the government violated

the spirit, if not the letter, of the plea agreement.

Although the government’s conduct here is somewhat troubling,

we do not believe that these statements rise to the level of plain

error. Despite the government’s statement that it would seek a

base offense level of 38 if it were forced to go to trial, the

government reiterated that under the circumstances, it was “seeking

a much lower amount.” Furthermore, having explicitly stated that

it was recommending a sentence at the high-end of the guideline

range, the government was free to offer reasons in support of that

recommendation. See United States v. Queensborough, 227 F.3d 149,

157 (3rd Cir. 2000). Thus, the government argued that Rivera-

Rodríguez was a significant supplier of cocaine, and that “[t]here

were quantities frankly beyond the amount stipulated [to] in the

plea agreement.” It offered these reasons in response to defense

counsel’s argument that her client was a peripheral supplier, and

in support of the government’s request for a sentence at the high-

end of the guideline range. Accordingly, under these

circumstances, we can not say that the government’s conduct at

Rivera-Rodríguez’s sentencing rises to the level of plain error.

C. Role Enhancement and Booker Remand

Finally, Rivera-Rodríguez argues that the district court erred

by imposing a two-level increase for his role in the offense

-19-
pursuant to U.S.S.G. § 3B1.1(c). Although he concedes that he

stipulated to his role in the offense as an “organizer, leader,

manager, or supervisor,” Rivera-Rodríguez contends that there was

insufficient evidence in the record to support the sentencing

judge’s determination that the enhancement was warranted.4

Additionally, Rivera-Rodríguez asks that his case be remanded to

the district court for resentencing under United States v. Booker,

543 U.S. 220 (2005), on the ground that there is a reasonable

probability of a lower sentence under an advisory guidelines

system. These arguments may be quickly dispatched.

1. Role Enhancement

At the bail review hearing on January 29, 2003, the government

indicated that Rivera-Rodríguez was “involved in the upper echelons

of the [drug-trafficking] organization,” and had delegated

authority to others to make transactions on his behalf. The

government also introduced an organizational chart of the

conspiracy and asserted that Rivera-Rodríguez had acted as the

“right hand” of the leader of the organization. According to the

4
Rivera-Rodríguez also argues that the court erred by
imposing a two-level increase in his base offense level under
U.S.S.G. § 3B1.1(c), without proof beyond a reasonable doubt, in
violation of Blakely v. Washington, 542 U.S. 296 (2004). This
argument, however, is clearly baseless. See United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005) (“The error is not
that a judge (by a preponderance of the evidence) determined facts
under the Guidelines which increased a sentence beyond that
authorized by the jury verdict or an admission by the defendant;
the error is only that the judge did so in a mandatory Guidelines
system.”).

-20-
plea agreement, therefore, Rivera-Rodríguez received a two-level

increase in his base offense level for his role in the offense as

an “organizer, leader, manager, or supervisor” pursuant to U.S.S.G.

§ 3B1.1(c). At the sentencing hearing, the district court accepted

this stipulation and applied the enhancement without making

specific findings to support its conclusion. Rivera-Rodríguez did

not object. On appeal, Rivera-Rodríguez now argues that there was

no factual basis for his enhancement under U.S.S.G. § 3B1.1(c).

Where a defendant fails to object in the district court to a

sentencing enhancement, we review that enhancement only for plain

error. See United States v. Torres-Velazquez, 480 F.3d 100, 103

(1st Cir. 2007). Ordinarily, defendants should be held to the

terms of a plea agreement that they knowingly and voluntarily

accept. United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001).

A plea agreement is akin to a contract, “binding upon the

prosecution and the defense alike.” Id. (citing United States v.

Ortiz-Santiago, 211 F.3d 146, 151 (1st Cir. 2000). Thus, although

stipulations are normally not binding on a district court, should

the court decide to accept and act upon a stipulation for

sentencing purposes, the parties will usually be firmly bound. Id.

at 28. We have acknowledged that:

[t]his general rule will apply when, for example, a
defendant stipulates to a matter of fact or to the
applicability of a sentencing guideline (the legal
meaning of which is pellucid) to the unique facts of her
case. After all, the defendant knows what she has done,
and has little cause for complaint if the district court

-21-
 takes her at her word.

Id. “To hold anything else would be to reduce stipulations to mere

inconsequential gestures.” United States v. Sandles, 80 F.3d 1145,

1148 (7th Cir. 1996). Moreover, even if Rivera-Rodríguez were not

bound by his stipulation, we note that the record clearly supports

the district court’s determination. See United States v. García-

Morales, 382 F.3d 12, 20 (1st Cir. 2004); United States v. Medina,

167 F.3d 77, 80 (1st Cir. 1999). Accordingly, the court’s two-

level enhancement under U.S.S.G. § 3B1.1(c) was not in error.

2. Booker Remand

Finally, Rivera-Rodríguez contends that his case should be

remanded to the district court for resentencing under Booker, on

the ground that there is a reasonable probability of a lower

sentence under an advisory guidelines system. Rivera-Rodríguez

concedes, however, that he did not preserve his claim under Booker;

we therefore review only for plain error. See United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

In support of his claim, Rivera-Rodríguez makes three

arguments. First, he argues that the district court should not

have relied solely on the guideline goals of deterrence and

punishment, when under 18 U.S.C. § 3553(a), a number of other

factors must now be considered in setting the appropriate sentence.

Second, he asserts that the sentencing judge would not have relied

on testimony from the trial of Rivera-Rodríguez’s co-defendants if

-22-
he had known that his sentencing findings had to be supported by

proof beyond a reasonable doubt. Third, Rivera-Rodríguez argues

that, under an advisory guidelines system, the district court is

now free to consider personal characteristics and other mitigating

factors that militate toward a more lenient sentence.

Rivera-Rodríguez, however, “has not shown a reasonable

probability - not even a possibility - that the district court

would have imposed a different (more lenient) sentence had it

understood that the sentencing guidelines were advisory rather than

mandatory.” United States v. González-Mercado, 402 F.3d 294, 303

(1st Cir. 2005). Pre-Booker, a district court was free to consider

all of the factors listed in § 3553(a) in determining an

appropriate sentence within the applicable guideline range. The

district court, here, noted that two of those factors, deterrence

and punishment, were significant factors to be considered. The

court’s emphasis on deterrence and punishment, however, does not

mean that it did not consider the other enumerated factors in

arriving at the appropriate sentence. In this instance, it only

means that the court believed that deterrence and punishment were

particularly relevant in Rivera-Rodríguez’s circumstances.

Rivera-Rodríguez’s second argument, that the district court

would not have relied on testimony from the trial of Rivera-

Rodríguez’s co-defendants had it known that its sentencing findings

had to be supported by proof beyond a reasonable doubt, is based on

-23-
a false assumption: post-Booker, a district court’s sentencing

findings need not be supported by proof beyond a reasonable doubt.

See Antonakopoulos, 399 F.3d at 75 (“The error is not that a judge

(by a preponderance of the evidence) determined facts under the

Guidelines which increased a sentence beyond that authorized by the

jury verdict or an admission by the defendant; the error is only

that the judge did so in a mandatory Guidelines system.”).

Rivera-Rodríguez’s third argument fails as well. Pre-Booker,

a district court had discretion to consider a defendant’s personal

characteristics in deciding where to sentence the defendant within

the guideline range. See, e.g., U.S.S.G. § 5H1.1-12. Indeed,

defense counsel argued at the sentencing hearing that Rivera-

Rodríguez was a first time offender, had a stable marriage and a

substantial job history, voluntarily abandoned the conspiracy well

before his arrest, and had undertaken rehabilitation efforts in

prison. The district court, however, was not persuaded. Given

that the court sentenced Rivera-Rodríguez to the high-end of the

guideline range, it is likely that the court would impose the same

sentence under an advisory system. See González-Mercado, 402 F.3d

at 304 (“When, under a mandatory guidelines regime, a sentencing

court has elected to sentence the defendant substantially above the

bottom of the range, that is a telling indication that the court,

if acting under an advisory guidelines regime, would in all

likelihood have imposed the same sentence.”). Accordingly, we find

-24-
that Rivera-Rodríguez has failed to show a reasonable probability

of a more lenient sentence on remand.5

III.

For the reasons set forth above, we affirm Rivera-Rodríguez’s

sentence.

Affirmed.

5
Rivera-Rodríguez also argues that his deteriorating mental
health condition post-sentencing supports a reasonable probability
of a lower sentence on remand. Appellate counsel raised this issue
for the first time in her reply brief, but offered no specific
information about Rivera-Rodríguez’s condition. Where an issue is
raised only in a cursory manner, it is waived. See, e.g., United
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494
U.S. 1082 (1990).

-25-