United States v. de la Cruz

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 05-2210

UNITED STATES,

Appellee,

v.

PLUTARCO DE LA CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.

Alexander Zeno on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, and Rosa Emilia
Rodríguez-Velez, United States Attorney, on brief for appellee.

December 19, 2007
 Per Curiam. Defendant-appellant Plutarco de la Cruz

pled guilty to possessing marijuana with intent to distribute

and conspiring to import marijuana into the United States after

being intercepted with six others in a vessel off the coast of

Puerto Rico carrying approximately 2,500 kilograms of

marijuana. The defendant requested a downward adjustment in

his federal sentencing guidelines offense level, arguing that

he had been only a minor participant in the offenses. The

district court denied the adjustment and, after several days of

sentencing hearings in which the defendant testified, granted

him a "safety valve" adjustment. The court sentenced the

defendant to 70 months in prison (the bottom of the applicable

guideline imprisonment range).

On appeal, the defendant raises five issues. Because

we find none of them to have merit, we summarily affirm his

conviction and sentence.

I. Guilty Plea

The defendant argues that he is entitled to specific

performance of the government's alleged initial "partial

oral/written agreement" pursuant to which he and his co-defendants

were permitted to plead guilty while reserving their rights to

appeal from the denial of their motion to suppress. The defendant

concedes in his brief, however, that he "pleaded guilty afterwards,

not based on the unfulfilled promise of the prosecutor."

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Appellant's Brief at 30. Even assuming that at the time of the

initial change-of-plea hearing in October of 2004 there existed an

"informal agreement" that the defendant would be permitted to plead

guilty without waiving the right to appeal from the denial of the

suppression motion, he does not argue that the actual plea, entered

three months later, was pursuant to such an agreement. His "plea

was thus in no sense the product of governmental deception; it

rested on no 'unfulfilled promise.'" Mabry v. Johnson, 467 U.S.

504, 510 (1984). Consequently, the defendant is not entitled to

specific performance of the alleged initial "partial oral/written

agreement."

II. Role in the Offense

The defendant claims that the district court erred in

denying his request for a two-level reduction for his minor role in

the offenses of conviction. "[A] defendant who aspires to be

classified as a minor participant bears the burden of proving that

he is both (i) less culpable than most other participants in the

offenses of conviction, and (ii) less culpable than the average

miscreant involved in offenses of the same genre." United States v.

Sanchez, 354 F.3d 70, 74 (1st Cir. 2004). "Review of the decision

to deny a downward adjustment for minor role is for clear error."

United States v. Morales-Madera, 352 F.3d 1, 14 (1st Cir. 2003).

"If the record supports at least two permissible inferences, the

factfinder's choice between or among them cannot be clearly

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erroneous. Accordingly, we rarely reverse a district court's

decision regarding whether to apply a minor role adjustment."

United States v. Bravo, 489 F.3d 1, 11 (1st Cir.), cert. denied,

128 S.Ct. 344 (2007).

In determining that the defendant was not a minor

participant, the sentencing court relied upon the defendant's own

testimony that 1) he had been given a cell phone and assigned

responsibility for making the contact with the intended recipient

of the drugs when the vessel reached Puerto Rico, and 2) that he

had originally been recruited to participate in the drug smuggling

scheme because of his familiarity with the coastline of the

Dominican Republic, the original planned destination.

The defendant maintains in his brief that "[t]here is no

factual controversy" regarding the role in the offense and that the

issue he raises "turns merely on whether or not [Plutarco's

admitted] conduct can be considered minimal, minor or average." In

this regard, he argues that the court erred in relying upon the

second factor -- his knowledge of the Dominican coastline. Because

the drugs were brought into the United States and the boat never

traveled to the Dominican Republic, he argues that the second

factor was irrelevant.

We disagree. The court relied upon the fact that the

defendant "was hired initially as the man that was going to

navigate the boat through the waters of Santo Domingo." Although

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the boat did not end up traveling to the Dominican Republic, it

does not appear clearly erroneous for the court to have inferred

that a person chosen to navigate the boat into the port of arrival

was also a person charged with responsibility for other important

tasks.

The defendant also argues that his role in the offenses

should have been assessed in the context of the "whole scenario,"

and in comparison with the roles of "the sellers and buyers of the

shipment" and the distributors in the United States. He contends

that his role was minor because it was limited "to aid[ing] in the

transportation of drugs from one point to the other." However,

"role-in-the-offense adjustments depend . . . on comparing each

offender's actions and relative culpability with the elements of

the offense." United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.

1990). Here, the defendant was not charged with distribution of

the drugs. He was charged with possession with intent to

distribute and with conspiring to import drugs. Therefore, he "had

a hand in each of the essential elements of the offense of

conviction," id., and the district court did not clearly err in

failing to compare his role with unidentified purchasers, sellers,

and distributors of the marijuana.

III. Failure to Depart

The defendant claims that the sentencing court erred in

not granting him a downward departure on the ground of duress, as

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was granted to several of his co-defendants. He testified at his

sentencing hearing that when he learned that the drugs were to be

delivered to Puerto Rico instead of the Dominican Republic, he

wanted to abandon the venture, but felt that he "had no alternative

but to get in the boat."

The defendant's failure to seek a downward departure on

this basis in the district court forecloses our consideration of

the issue. See United States v. Morales-Madera, 352 F.3d 1, 14 (1st

Cir. 2003). Moreover, even if the court had denied a request by

the defendant for a departure on this ground, "on appeal, we only

have jurisdiction to review if 'the sentencing court's failure to

depart did not represent an exercise of factfinding or discretion,

but was instead the product of the court's miscalculation about

whether it possessed the authority to depart.'" Bravo, 489 F.3d at

12-13. Given that the court granted downward departures for duress

for some co-defendants, it was clearly aware of its authority to

depart on that basis.

IV. Booker Error

The defendant argues that United States v. Booker, 543

U.S. 220 (2005), prohibited the sentencing court from increasing

his sentence based on judicial findings of fact, including role in

the offense, and that such determinations must be made by a jury.

As an initial matter, the court did not increase the defendant's

sentence based on judicial findings of fact regarding his role in

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the offense; it merely declined to reduce his sentence on that

basis. Moreover, where as in this case the sentence does not

exceed the statutory maximum for the offenses to which defendant

pled guilty, this court has held that "[u]nder Booker, a judge may

do such fact finding in determining the Guidelines range. Nothing

in Booker requires submission of such facts to a jury so long as

the Guidelines are not mandatory." United States v. Antonakopoulos,

399 F.3d 68, 80 (1st Cir. 2005). The sentencing court applied the

advisory guidelines and there was no Booker error.

V. Judicial Bias

The defendant claims judicial bias by the judge who

sentenced him and seeks resentencing before a new judge. We review

for abuse of discretion the refusal of a trial judge to recuse

himself. United States v. Ayala, 289 F.3d 16, 27 (1st Cir. 2002).

"[D]isqualification is appropriate when 'the facts asserted provide

what an objective, knowledgeable member of the public would find to

be a reasonable basis for doubting the judge's impartiality.'" Id.

(citation omitted). Here, the issue of bias was raised in a motion

filed by defense counsel on April 1, 2005, to withdraw from

representing the defendant. The motion cited as "evidence" of

potential bias the judge's comments critical of the attorney's

performance during the March 31, 2005 sentencing hearing.

[J]udicial remarks during the course of trial
that are critical or disapproving of, or even
hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or

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 partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible.

Liteky v. United States, 510 U.S. 540, 555 (1994). The defendant

has not alleged an extrajudicial source from which the alleged bias

was derived. The transcript of the sentencing hearing does not

reveal "such a high degree of favoritism or antagonism as to make

fair judgment impossible." Id. The defendant's bias claim relies

largely upon the district court's tone of voice rather than the

words themselves. At bottom, then, his claim relies upon

"expressions of impatience, dissatisfaction, annoyance, and even

anger," which the Supreme Court has ruled do not establish bias or

partiality. Id. at 555-56. When the sentencing hearing resumed on

April 4, 2005, the court specifically denied any animus toward

defense counsel and explained that it was concerned about the lack

of legal basis for some of the arguments made by counsel. At this

point, counsel for the defendant confirmed that he did not feel

that the court had been "ironic" with him during that day's

hearing.

The other grounds on which the defendant rests his

present claim of judicial bias implicate judicial rulings in the

case, including the denial of the defendant's request for a two-

level reduction for a minor role in the offenses. It is settled

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that "judicial rulings alone almost never constitute a valid basis

for a bias or partiality motion. . . . Almost invariably, they are

proper grounds for appeal, not for recusal." Id. at 555. Such is

the case here, where the rulings neither show a reliance upon an

extrajudicial source nor display the requisite "deep-seated

favoritism or antagonism that would make fair judgment impossible."

Id. Instead, the transcripts of the sentencing hearings reveal

that the district court went to great lengths to ensure fairness in

the defendant's sentencing.

The conviction and sentence are affirmed. See 1st Cir. R.

27(c).

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