United States Court of Appeals
For the First Circuit
No. 07-2697
UNITED STATES OF AMERICA,
Appellee,
v.
REY FRANCISCO QUIÑONES-MEDINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Selya, and Stahl, Circuit Judges.
Lydia Lizarribar-Masini on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), and Marshal D. Morgan, Assistant United States Attorney,
on brief for appellee.
January 12, 2009
SELYA, Circuit Judge. Defendant-appellant Rey Francisco
Quiñones-Medina urges us to vacate the sentence imposed following
his conviction on one count of possessing with intent to distribute
a kilogram of cocaine and one count of conspiring to possess with
intent to distribute five or more kilograms of cocaine. See 21
U.S.C. §§ 841(a)(1), 846. The appellant advances four claims of
sentencing error, which involve (i) the district court's refusal to
afford him a mitigating role adjustment; (ii) its application of an
offense-level enhancement for possession of a firearm during the
commission of a drug-trafficking offense; (iii) its denial of a
downward departure based on diminished mental capacity and,
relatedly, its refusal to order a psychiatric evaluation; and (iv)
its synthesis of the factors enumerated in 18 U.S.C. § 3553(a) when
imposing sentence. Concluding, as we do, that this gallimaufry of
claims lacks merit, we affirm.
There is no need to rehearse the background facts in
great detail. Suffice it to say that the government proved at
trial that the appellant and a coconspirator, Héctor Rivera-Quiles,
agreed to sell a multi-kilogram load of cocaine. Unbeknownst to
them, the prospective purchaser proved to be an undercover law
enforcement agent, Pablo Rivera. When the coconspirators delivered
one kilogram of cocaine as a first installment, the government
sprung the trap.
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In due course, the appellant was indicted, tried,
convicted, and sentenced. That series of events forms the factual
backdrop against which the appellant's claims of sentencing error
arise.
Since the Supreme Court's landmark decision in United
States v. Booker, 543 U.S. 220, 245-46 (2005), federal criminal
sentencing has fallen into a familiar procedural paradigm:
In constructing a sentence under an advisory
guidelines regime, a sentencing court
ordinarily should begin by calculating the
applicable guideline sentencing range; then
determine whether or not any departures are in
order; then mull the factors delineated in 18
U.S.C. § 3553(a) as well as any other relevant
considerations; and, finally, determine what
sentence, whether within, above, or below the
guideline sentencing range, appears
appropriate.
United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006); see
also United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir.
2006) (en banc).
In the case at hand, the appellant finds no fault with
most of the district court's guideline computations. He does,
however, challenge two decisions anent offense-level adjustments —
one withheld and one applied — that factored into the construction
of the guideline sentencing range (GSR). In the interest of
expediency, we bypass the uncontroversial steps in the sentencing
pavane and proceed directly to these two claims of error.
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The first deals with the appellant's role in the offense.
Subject to certain conditions, a defendant's total offense level
(and, thus, his GSR) may be adjusted, up or down, if his role in
the offense of conviction is more or less significant than the
norm. The appellant's asseverational array implicates one such
adjustment: upon a finding that "the defendant was a minor
participant in [the relevant] criminal activity," the guidelines
authorize the sentencing court to decrease the offense level by two
levels. USSG §3B1.2(b).
A defendant who seeks a downward adjustment due to an
ostensibly mitigating role in the offense of conviction bears the
burden of proving his entitlement to that reduction. United States
v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005). He must carry
that burden by a fair preponderance of the evidence. United States
v. Teeter, 257 F.3d 14, 30 (1st Cir. 2001). When a defendant seeks
a downward adjustment for a minor role, the necessary showing
entails proof both that he is less culpable than most of those with
whom he collogued and that he is less culpable than the mine-run of
other miscreants who have committed similar crimes. United States
v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).
Appellate review of such decisions is for the most part
deferential. Determining the nature of a defendant's role is a
fact-specific enterprise. Consequently, we review a district
court's resolution of the facts relative to a minor role adjustment
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for clear error, applications of law to those raw facts somewhat
less deferentially, and purely legal questions de novo. It follows
inexorably that, absent an error of law, battles over where a
particular defendant falls along the role-in-the-offense continuum
"will almost always be won or lost in the district court." United
States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).
Before us, the appellant labors to portray himself as a
simple courier who was participating in his first drug transaction.
This self-portrait has a dubious provenance.
The record indicates that the appellant met Rivera (the
undercover agent) on August 5, 2004. He was introduced to the
agent as an "associate" of Rivera-Quiles's. From that point
forward, he played an active role in the cocaine-sale negotiations.
In that capacity, he attended at least two face-to-face meetings
with the putative purchaser, during which the participants
discussed not only the planned sale of five kilograms of cocaine
but also the possible transport of even larger quantities of
contraband from St. Thomas to Puerto Rico.
There was more. The appellant's failure to appear with
the drugs on the appointed date temporarily sidetracked the planned
sale and sparked further negotiations. These negotiations resulted
in a scheduled two-stage transaction, which would begin with the
delivery of one kilogram of cocaine and payment for that delivery.
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After that, the remaining four kilograms were to be produced and
paid for.
The revised plan was set in motion. It was the appellant
who made the first-stage delivery, traveling separately from his
coconspirator (who was also present). The men were caught red-
handed and arrested on the spot.
These facts support a reasonable inference that the
appellant was more than a simple courier; they support an inference
of full-fledged participation. Because that is so, we cannot say
either that the appellant carried his burden of proving that he
played only a minor part in the criminal activity or that the
district court clearly erred in refusing to grant him a mitigating
role adjustment.
We add that, even if the appellant were accurate in
classifying himself as a courier, that classification is not a
talisman that automatically opens a pathway to a minor role
adjustment. See, e.g., Mateo-Espejo, 426 F.3d at 512; United
States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir. 1989). Some
couriers may be fringe participants in a drug-trafficking scheme,
but others may be more central to the plot. Within wide limits,
the decision as to the degree of centrality is best left to the
sentencing court. See Ocasio, 914 F.2d at 333. At any rate, these
limits were not exceeded here: the evidence as to the appellant's
level of responsibility and participation, objectively scrutinized,
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does not suggest that the appellant was substantially less culpable
than either his coconspirator or the archetypical drug trafficker.
We turn next to the district court's application of a
two-level weapons enhancement. "If a dangerous weapon (including
a firearm) was possessed" during the course of a drug-trafficking
offense, whether by the defendant or by a coconspirator, the
sentencing guidelines authorize a two-level increase in the
defendant's offense level. USSG §2D1.1(b)(1). To warrant the
enhancement the presence of the weapon must have been known to, or
reasonably foreseeable to, the defendant. See id. §1B1.3(a)(1)(B);
see also United States v. Ortiz-Torres, 449 F.3d 61, 77 (1st Cir.
2006); United States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004);
United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991). We
review a sentencing court's fact-based determination that such an
increase is warranted for clear error. United States v. Sostre,
967 F.2d 728, 731 (1st Cir. 1992).
Where a firearm has been found at the scene during a drug
deal, the enhancement should apply "'unless it is clearly
improbable that the weapon was connected with the offense.'"
United States v. Sandoval, 204 F.3d 283, 287 (1st Cir. 2000)
(quoting USSG §2D1.1, cmt. n.3). That connection may be, among
other things, the weapon's utility for protection of the drugs, the
trafficking operation, or the proceeds of the operation. See
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United States v. Castillo, 979 F.2d 8, 10 (1st Cir. 1992); United
States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992).
In this instance, the sentencing court supportably could
find that the appellant and Rivera-Quiles conspired to sell five
kilograms of cocaine for $80,000 in a two-stage transaction. They
arrived at the agreed rendezvous point for the first stage in
separate cars, but parked within fifteen feet of each other. They
were arrested on the spot and, in an ensuing search of Rivera-
Quiles's car, agents discovered a loaded and easily accessible
handgun under a floor mat. Given the substantial value of the
contraband and the risks inherent in dealing with a little-known
purchaser, we discern no clear error in the district court's
finding that the appellant either knew or reasonably should have
foreseen that his coconspirator would be armed.
We are unpersuaded by the appellant's self-serving
assurance that he was purposely kept in the dark about "the
possession, knowledge or foreseeability of a weapon for the drug
transaction." To corroborate this assurance, he points to Rivera-
Quiles's statement that he possessed the gun "[j]ust in case I
needed it for something, you know how things are on the street."
Viewed in context, that statement is cold comfort to the appellant.
First and foremost, the statement is consistent with the
sentencing court's rationale. After all, one of the things that
happens "on the street" is the theft of drugs during the course of
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illicit trafficking. See, e.g., United States v. Beasley, 442 F.3d
386, 388 (6th Cir. 2006); Chia v. Cambra, 360 F.3d 997, 1013 (9th
Cir. 2004); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002). One is reminded of the drollery, sometimes attributed to P.
G. Wodehouse, that "[t]here is no honor among thieves."
In any event, even the appellant's interpretation of the
statement does not provide him with a safe harbor. The presence of
an alternative basis for the possession of a weapon does not render
a finding of a protection-related purpose clearly erroneous. See
Corcimiglia, 967 F.2d at 727; United States v. Almonte, 952 F.2d
20, 25 (1st Cir. 1991).
That puts an end to the appellant's assault on the
construction of the GSR. His next contention posits that the
sentencing court, having constructed the GSR, mishandled his
assertion of diminished mental capacity. This assignment of error
has two sub-parts. We discuss them sequentially.
The appellant's initial premise, though garbled, seems to
be that the district court erred in refusing to depart downward
from the GSR based on his diminished mental capacity. See USSG
§5K2.13. This is a non-starter: the decision to depart on that
ground is discretionary, and appellate courts ordinarily lack
jurisdiction to consider an appeal from the denial of a
discretionary departure. See, e.g., United States v. Saldana, 109
F.3d 100, 103 (1st Cir. 1997); United States v. Pierro, 32 F.3d
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611, 619 (1st Cir. 1994); United States v. Amparo, 961 F.2d 288,
292 (1st Cir. 1992).
To be sure, this rule — like virtually every general rule
— admits of an occasional exception. The exception that is of
possible concern here holds that appellate jurisdiction will lie to
test the sentencing court's purported failure to recognize that it
possessed the authority to depart. See Amparo, 961 F.2d at 292.
The record, however, supplies no hint that the district court
misunderstood its authority, so that exception does not pertain.
Consequently, we lack jurisdiction to consider the appellant's
argument that the district court should have departed downward on
the basis of his diminished mental capacity.
Relatedly, the appellant complains that the court erred
by refusing to enable him to obtain a psychiatric evaluation
incident to sentencing. The procedural underpinnings of this
plaint are obscure. We have tried to reconstruct them.
As an indigent, the appellant was entitled to the
benefits of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.
These benefits include court-appointed counsel, id. § 3006A(b), and
reasonable access to needed ancillary resources, id. § 3006A(e)(1).
Such resources include, when appropriate, funds for the services of
psychiatric experts. See, e.g., United States v. Mastera, 435 F.3d
56, 62-63 (1st Cir. 2006).
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The CJA applies in this case, and the appellant is
represented by court-appointed counsel. Given this circumstance,
we interpret this facet of his assignment of error as a claim that
the sentencing court erred in not allowing him funds to hire a
mental-health professional to assess his competency.1 So viewed,
we have jurisdiction over the claim.
The CJA does not afford access to psychiatric experts on
demand. Thus, a trial court "is not required to grant every motion
questioning an accused's competency." United States v. Pellerito,
878 F.2d 1535, 1544 (1st Cir. 1989). We review the denial of a
request to fund a psychiatric or psychological evaluation for abuse
of discretion. United States v. Manning, 79 F.3d 212, 218 (1st
Cir. 1996). When medical evidence suggesting diminished mental
capacity is either weak or not present at all, a psychiatric expert
need not be provided. See, e.g., Mastera, 435 F.3d at 63
(upholding denial of funds for psychological expert where defendant
did not provide a sufficient evidentiary predicate to sentencing
court).
1
We think it important to note that the appellant was never
denied psychiatric treatment, indeed, he was treated regularly by
mental-health professionals from both the State Insurance Fund and
his place of incarceration. He has not alleged any inadequacy in
care. Nor did he question his own competency either before or
during trial. The potential relevance of his anxiety,
somnambulism, and bouts with depression relates exclusively to
their effect (if any) on the length of his sentence.
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We see no abuse of discretion here. The record makes
pellucid that the trial court reviewed all the relevant psychiatric
records before imposing sentence. These included the report of Dr.
Luis Humberto Negrón-Delgado (Dr. Negrón) of the State Insurance
Fund (SIF), a translated version of which was attached to the
appellant's sentencing memorandum (filed on December 5, 2006). In
finding no diminished mental capacity, the court determined that
the report confirmed a diagnosis of depression without showing how
(if at all) the condition affected the appellant's ability either
to tell right from wrong or to control his actions.
The court subsequently revisited Dr. Negrón's report when
deciding whether to appoint (or, more exactly, to authorize funds
for the defense to hire) a psychiatric expert. In an order dated
May 16, 2006, the court requested all medical records from the
Metropolitan Detention Center (MDC)2 and the SIF. At the same
time, the court informed the appellant and his lawyer that, should
they have any other pertinent information or records, they should
submit them promptly. After reviewing the collected records, the
court, in an order dated May 1, 2007, declined to authorize funds
for the defense to hire a psychiatric expert.3
2
The MDC is the correctional facility at which the appellant
was being detained.
3
There is some suggestion in the appellant's brief that the
district court precluded him from calling Dr. Negrón as a witness
at the disposition hearing. The record does not bear out that
suggestion. In any event, the appellant makes no developed
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The short of it is that the district court, on numerous
occasions, implored the appellant to show a link between his
psychological problems and some diminished mental capacity. The
appellant never did so. The court then reviewed all the available
records and found that the appellant's mental condition did not
bear materially on the sentence that he deserved. Given the
absence of a demonstrated connection between the appellant's
symptomology and the issues that were relevant to sentencing, it
was within the realm of the district court's discretion to
conclude that the appointment of a psychiatric expert most likely
would have been an exercise in futility. See, e.g., United States
v. Greenfield, 244 F.3d 158, 162 (D.C. Cir. 2001) ("A diagnosis of
depression, alone, does not establish that a defendant suffered
from significantly reduced mental capacity under §5K2.13."
(internal quotation marks omitted)).
This brings us to the appellant's fourth and final claim
of error, which involves the sentence as a whole. The district
court determined the GSR to be 151-188 months.4 Having disposed
of the appellant's objections to the court's offense-level
argumentation on this point, so any claim of error has been
abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
4
The GSR is based on an adjusted offense level of 34 and a
criminal history category of I.
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adjustments and lacking jurisdiction to consider the court's
refusal to depart, we accept that GSR.
Of course, the district court was obliged to proceed to
a consideration of the section 3553(a) factors. See United States
v. Martin, 520 F.3d 87, 91 (1st Cir. 2008); Pelletier, 469 F.3d at
203. The court did so. Then, after explicitly referring to
section 3553(a), it imposed a 151-month term of immurement (the
nadir of the GSR).
The appellant argues that, despite paying lip service to
section 3553(a), the lower court neglected to address the
statutory factors properly. Because the appellant failed to
preserve this issue below, our review is for plain error. United
States v. Turbides-Leonardo, 468 F.3d 34, 37 (1st Cir. 2006). In
the sentencing context:
Review for plain error entails four showings:
(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the
defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
The appellant relies on Martin, 520 F.3d at 91, for the
proposition that, in an advisory guidelines regime, a sentencing
court should not mechanically sentence a defendant within the GSR.
We have no quarrel with that sound proposition. We do take issue,
however, with the appellant's assertion that the court below
engaged in a "perfunctory" treatment of the section 3553(a)
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factors, thus indicating its preference for a mechanical
application of the GSR.
The imposition of sentence should not be viewed in
isolation. "While a sentencing court must consider all of the
applicable section 3553(a) factors, it is not required to address
those factors, one by one, in some sort of rote incantation when
explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006). The court's ultimate statement of
reasons need not be either lengthy or detailed. United States v.
Gilman, 478 F.3d 440, 446 (1st Cir. 2007); Turbides-Leonardo, 468
F.3d at 40. Nor should it be evaluated in a vacuum, divorced from
both context and common sense.
In this case, the district court heard and disposed of
a number of issues that were raised between the date that the
presentence report was first prepared and the date on which
sentence was imposed. In the course of this serial progression,
the court issued a number of orders reflecting its thinking about
a wide variety of sentence-related issues. Taken in the
aggregate, those orders, coupled with what the court actually said
at the disposition hearing, make it transparently clear that the
court neither applied the GSR mechanically nor gave the section
3553(a) factors short shrift. There was no error, plain or
otherwise.
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We need go no further. For the reasons elucidated
above, we affirm the appellant's conviction and sentence.
Affirmed.
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