United States Court of Appeals
For the First Circuit
No. 07-2423
UNITED STATES OF AMERICA,
Appellee,
v.
HERIBERTO ARROYO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Schwarzer,* District Judge.
Robert L. Sheketoff for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.
October 27, 2008
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Circuit Judge. Heriberto Arroyo, formerly a
police officer in the city of Worcester, Massachusetts, was
convicted by a jury on two different drug conspiracy counts. On
this appeal, he challenges his sentence on two grounds, one legal
and one mostly factual. Since the latter turns in part on
sufficiency of the evidence, we recite the evidence in the light
most favorable to the government. United States v. David, 940 F.2d
722, 732-33 (1st Cir. 1991), cert. denied, 504 U.S. 955 (1992).
Thomas Vigliatura, an amateur bodybuilder and owner of T
Vig's Sports Supplements, ran a drug ring from the T Vig's store
and out of his home in Worcester. Arroyo, then a police officer,
purchased GHB and GBL for personal use and to provide to friends.
GHB (gamma-hydroxybutyric acid) is a regulated drug with limited
medical uses that is sold illegally for its euphoric and body-
building qualities. GBL (gamma butyrolactone) is an associated
drug that converts to GHB on ingestion.
Arroyo also purchased cocaine from Vigliatura and used it
with him. In addition, Arroyo at various times possessed both
cocaine and ecstasy (an illegal euphoric drug) and used the drugs
with various other individuals. In July 2005, both Arroyo and
Vigliatura were indicted, with several others, in a multi-count
federal indictment; two of the counts named Arroyo.
Count I charged Arroyo, Vigliatura and two other
defendants with conspiring to distribute, and to possess with
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intent to distribute, GHB and GBL in and around Worcester, in
Massachusetts, and elsewhere from around summer 2000 to around
summer 2004. Count II charged Arroyo, Vigliatura and one of the
other count I defendants with conspiring to possess cocaine and
ecstasy in Massachusetts and elsewhere during the same time period.
Both counts charged violations of 21 U.S.C. § 846 (2006), which
criminalizes drug conspiracies.
At trial, the government offered evidence from
Vigliatura's former girlfriend as to Vigliatura's sale of GHB and
GBL to Arroyo, Arroyo's social use of GHB and GBL and cocaine, and
Arroyo's supply of the drugs to others. Additional witnesses told
of Arroyo's possession of cocaine or ecstasy or both on various
occasions; one witness (a Vigliatura customer and later a
distributor of GHB and GBL) had seen Arroyo at Vigliatura's office
with a bag of white powder and a scale and testified that
Vigliatura had told the witness that Arroyo was there "to measure
up some cocaine."
The jury convicted on count I only as to the lesser
included offense of conspiracy to possess GHB and GBL; the jury
also convicted on count II, which was already limited to
possession. The district court, rejecting a defense claim at
sentencing that only one conspiracy existed, sentenced Arroyo to
nine months in prison on each of the two counts of conviction to be
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served concurrently, a year of supervised release, and on each
count a $1,000 fine and a $25 special assessment--both mandatory.
The guideline sentencing range for the two possession
conspiracies taken together, see U.S.S.G. § 3D1.2(b), keyed to
cocaine as the most serious drug, id. § 2D2.1, would have been zero
to six months (because Arroyo had no prior criminal convictions).
Id. ch. 5, pt. A (sentencing table). The district court rejected
possible adjustments to the offense level but chose to depart
upward from the guideline sentence, justifying the departure on two
grounds: first, because Arroyo was a police officer, and second,
because the quantity of drugs and other circumstances indicated
that Arroyo had intended to share the drugs with others.
On appeal, Arroyo's main challenge is to the decision to
impose a non-guideline sentence based in part on Arroyo's
occupation as a police officer.1 The gist of the argument is that
it is irrational, thus certainly unreasonable, and a violation of
his substantive due process and equal protection rights under the
Constitution to give Arroyo a higher sentence based on his
occupation. Some judges, Arroyo adds, might well have given a
police officer a sentence below the guideline range, citing the
tensions of police work.
1
To the extent that the district court relied upon the sharing
of the drugs, Arroyo makes no objection. In fact, the guideline
commentary suggests that supplying drugs to others may warrant a
departure. See U.S.S.G. § 2D2.1 cmt. n. 1.
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Arroyo says that his constitutional challenge should be
reviewed de novo, while the government says that review should be
for plain error since he made no constitutional claim below. It
does not matter in this instance. The district judge's
determination was not irrational. And, apart from any
constitutional constraint or legal infirmity, a non-guideline
sentence is tested primarily under a generous abuse of discretion
standard, Gall v. United States, 128 S. Ct. 586, 591 (2007), which
the sentence meets.
The guidelines identify various sentencing facts and
factors, some of which are encouraged or discouraged bases for
adjusting a sentence, e.g., U.S.S.G. §§ 5H1.2, 5H1.7; others may be
forbidden, e.g., id. § 5H1.10; still others require adjustments up
or down in calculating the guideline range, see, e.g., id. § 3A1.1.
Pertinently the guidelines say that education and vocational skills
are "not ordinarily relevant" except where a defendant used special
skills or abused a position of trust, see id. §§ 3B1.3, 5H1.2.
Here, the district court did not find either a special
skills or abuse of a position of trust adjustment appropriate;
Arroyo suggests that any other consideration of occupation is
irrational. But even without abuse of authority or special skills,
the district court plausibly found that in this instance the very
bad example set by having a police officer buying and making
available illegal drugs enhanced the seriousness of the crime.
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That judgment is not irrational. Indeed, the judge is expected to
consider the history and characteristics of the defendant and the
need for the sentence to reflect the seriousness of the offense and
promote respect for the law. See 18 U.S.C. § 3553(a) (2006).
The district judge did not adopt an abstract general rule
that every police officer who commits a crime gets a higher
sentence. Arroyo had in fact worn his uniform for some of the
purchases, and some of those who obtained drugs from him socially
knew his position and could have deemed his furnishing of the drugs
as trivializing the seriousness of the offense--enhancing a risk
already present where use is recreational and liable to be brushed
off as nothing to worry about.
Nor did "occupation" stand alone in the district court's
calculus. The district judge mentioned the quantity of drugs--this
was certainly not a case of one-time use or use during a brief
period--and also the fact that Arroyo did not merely possess the
drugs but made them available to others, even if he did not take
payment for them. So not only was Arroyo's occupation plausibly an
aggravating factor, but it was only one of several related
circumstances that seemed to the judge to take this out of the mine
run of cases where the conviction is for simple possession.
Arroyo may be right that other judges might choose to
reduce the sentence for a police officer; he cites us to United
States v. Mays, 470 F. Supp. 642 (S.D. Tex. 1979), where a court
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refused to incarcerate two police officers who were convicted of
killing a criminal suspect after a high speed car chase. Yet the
possibility that a fact or factor like occupation cuts one way in
one case and a different way in another means nothing, so long as
a different context makes that sensible.
It is perhaps more troubling that on exactly the same
facts another judge might have chosen not to impose an above
guideline sentence. Yet this merely shows that rational judges can
give somewhat different weight to the myriad incommensurable
factors that may bear on sentencing. Perfect equality in result
could be achieved only by rigidly binding guidelines and tight
review--an approach with its own costs and one firmly rejected by
the Supreme Court in a set of recent cases.2
Arroyo's independent second attack on the sentence is
that the two separate conspiracies for which he was convicted were
really one, and therefore it violated the Double Jeopardy Clause of
the Constitution to sentence him for both convictions.3 See United
States v. Shea, 211 F.3d 658, 673 (1st Cir. 2000), cert. denied,
2
See Gall, 128 S. Ct. 586; Kimbrough v. United States, 128 S.
Ct. 558 (2007); Rita v. United States, 127 S. Ct. 2456 (2007);
United States v. Booker, 543 U.S. 220 (2005).
3
Arroyo's brief says that it was erroneous to impose sentences
for both counts, "and one of the convictions should be vacated,"
but counsel at oral argument stated that his "real double jeopardy
argument is you can't double sentence for this," and there is no
indication that he challenged the second conviction on double
jeopardy grounds in the district court.
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531 U.S. 1154 (2001). Little of consequence turns on this issue
since the sentences were concurrent save for the double fine
($1,000 on each count) and assessment ($25 on each count), and the
fine could easily have been the same if the conduct for the two
conspiracies were included in a single count.
Arroyo is still entitled to review on his single
conspiracy claim, cf. Rutledge v. United States, 517 U.S. 292, 302-
03 (1996), but the relatively short argument in his brief pivots on
this single, conclusory argument:
The drug activity, possession of GHB, ecstasy,
and cocaine, occurred during the same time
frame, in the same district, among the same
crowd (including three of the same named and
indicted core co-conspirators), for the same
purpose (to party), using the same means
(sharing). The evidence used to prove the
"conspiracies" was virtually identical.
This is the whole argument apart from citation to and quotation
from general case law dealing with the question of one versus
several conspiracies and a truncated version of the evidence
presented in the fact section of the brief.
A defendant arguing for one rather than two conspiracies
is ordinarily arguing that a reasonable fact finder could only
conceive the pattern of events in a single way. David, 940 F.2d at
732-33. Drug conspiracies are rarely express and are usually
inferred from an assemblage of conduct recounted through various
witnesses. To support a single conspiracy argument would normally
take a meticulous assembly of evidence (taken favorably to the
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verdict) and its association with different conspiracy factors.
Nothing like that is attempted by Arroyo in this case.
The government says that the issue has been forfeited
because Arroyo was convicted by the jury (under a beyond a
reasonable doubt standard) of two conspiracies, did not present
this one conspiracy argument to the jury, and made it only to the
sentencing judge--who employs a preponderance standard, United
States v. Anderson, 452 F.3d 87, 92 n.3 (1st Cir. 2006). We need
not resolve this objection, for Arroyo has not made an argument
sufficiently complete to counter the government's position.
The government's brief conceded that the two conspiracy
finding was a close call, but it argued in detail that the
conspiracies differed as to the drugs and the likely geographic
scope of the activities; that evidence indicated an overlap but not
complete identity of conspirators; and that some of the incidents
related only to one of the two supposedly separate conspiracies.
The argument may be forced but is not frivolous, especially because
assigning different conspiracy labels to complex overlapping drug
activities is an imprecise art. See David, 940 F.2d at 732-35.
In scanting the issue in his opening brief and forgoing
a reply, Arroyo's able and experienced counsel doubtless concluded
that a $25 stake did not warrant detracting from Arroyo's main
attack on the use of his occupation to increase the jail time
imposed. Having concluded that the district judge's two
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conspiracies determination is colorable, we think that Arroyo's
summary argument against it is satisfied by a summary disposition,
there being no conceivable threat of injustice.
Affirmed.
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