United States Court of Appeals
For the First Circuit
No. 07-1931
UNITED STATES OF AMERICA,
Appellee,
v.
RODRIGO CAMPUSANO,
Defendant, Appellant.
____________________
No. 07-2442
UNITED STATES OF AMERICA,
Appellee,
v.
JAIME PINILLOS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Siler* and Howard,
Circuit Judges.
Johnny Rivera-Gonzalez, by appointment of the court, for
appellant Rodrigo Campusano.
Angela G. Lehman, by appointment of the court, for appellant
Jaime Pinillos.
*
Of the Sixth Circuit, sitting by designation.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee Rodrigo Campuzano.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief for appellee Jaime Pinillos.
February 13, 2009
BOUDIN, Circuit Judge. Jaime Pinillos and Rodrigo
Campusano were tried together in the district court for drug
offenses and convicted. The convictions were upheld, United States
v. Pinillos-Prieto, 419 F.3d 61 (1st Cir. 2005), but both cases
were remanded for resentencing in light of United States v. Booker,
543 U.S. 220 (2005). Both men have separately appealed from their
reinstated sentences and we resolve both appeals in this decision.
Early in 2001, Pinillos met in Colombia with Nelson
"Rafa" Rodriguez, who he understood to be a drug dealer; unknown to
Pinillos, Rafa was an experienced government informant. After the
initial contact, Pinillos called Rafa from Miami, saying that he
had a customer who wanted to buy 100 kilograms of cocaine, and
could afford the purchase price--approximately $1.4 million, or
$13,500 per kilo.
Rafa arranged to meet Pinillos at a bakery in Isla Verde,
Puerto Rico, to finalize the sale of the drugs. On July 9, 2001,
both men met at the bakery; Rafa was joined by Nataya "Princesa"
Posada, a fellow informant posing as the owner of the drugs, and
Special Agent Anthony Toro-Zambrana ("Toro") of the Puerto Rican
Department of Justice, pretending to be Princesa's bodyguard.
Pinillos had brought two companions, one being Campusano.
Pinillos alone approached Rafa, and began negotiating the
terms of the exchange. Pinillos informed the group that "his
friends" wanted to sample one kilo before going forward with the
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purchase. Rafa refused, offering instead to sell the group an
initial twenty-five kilo package. Negotiations then broke off but
resumed later that day between Pinillos, Campusano, Rafa and Toro;
eventually, the parties agreed on a complex scheme to make a
transfer of cash for the package while protecting both sides.
Subsequently, Pinillos met Rafa and Toro at a parking
lot, assuring them that he had seen the money needed to complete
the transaction. Pinillos was going to test one to five kilos as
a sample before completing the transaction. However, Toro grew
nervous, and after Campusano arrived at the parking lot on foot,
rather than in a car as the parties had agreed, he called nearby
agents who arrested Pinillos and Campusano.
Pinillos, Campusano and Nolgie Rodriguez (the other man
who had accompanied them to the bakery meeting) were convicted on
two counts--conspiracy to possess with intent to distribute five or
more kilograms of cocaine, 21 U.S.C. § 846 (2006), and aiding and
abetting each other, in attempting to possess with intent to
distribute five or more kilograms of cocaine, id. § 841(a)(1), 18
U.S.C. § 2(a) (2006).
At sentencing, the trial judge found--over defendants'
objections--that each defendant was responsible for 100 kilograms
of cocaine, triggering an initial offense level of 36. Pinillos
and Campusano received two-level enhancements for obstruction of
justice under U.S.S.G. § 3C1.1 for perjuring themselves. Both were
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then sentenced to 235 months on each count, to be served
concurrently.
While their appeals were pending, Booker altered the
sentencing landscape by enlarging the trial judge's authority to
vary from the guidelines and, while upholding the convictions, we
remanded for resentencing. A revised PSR was filed and Pinillos
sought a downward departure based on mental illness. The trial
court denied the defendants' objections to the PSRs and the motion
for downward departure, and the judge re-sentenced both defendants
on the same terms as before.
In the new appeals from the sentence, both defendants
argue that they never intended to buy one hundred kilos and that
they lacked the financial capacity to do so. The trial court found
that the conspiracy and attempt extended to one hundred kilos and
that the defendants had not shown that they lacked the capacity to
carry through.1 Review of these factual findings is for clear
error. United States v. Eke, 117 F.3d 19, 22 (1st Cir. 1997).
Based on Rafa's testimony as to the telephone call, the
district judge could reasonably find that the initial bargain was
for one hundred kilos; and, although the situation was perhaps
1
Under settled law, the government bears the burden of showing
quantity under the guidelines by a preponderance of the evidence,
United States v. Nieves, 322 F.3d 51, 54 (1st Cir. 2003), and the
defendants bear the burden of showing that that they lacked the
financial capacity to purchase that quantity. See U.S.S.G. 2D1.1,
n. 12.
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ambiguous, it was surely not clear error to conclude that the later
arrangements for smaller amounts were merely part of the intended
delivery. Rafa was asked on cross-examination whether the
negotiations were really about one, rather than one hundred kilos
of cocaine. He responded:
No, the negotiation[s] were about 100 kilos of
cocaine. . . .You're talking about when we
were talking about one kilo or five kilos or
25 kilos. It's a way to fractionalize the
deal because nobody is going to bring down a
hundred-kilo deal all at once. You have to do
it first a kilo at a time or five or 25. And
really, when they're talking about a kilo
they're talking about . . . . [a] sample of
the cocaine to see what the quality of the
merchandise was like. . . .
Thus the court was not obliged to agree that Pinillos'
initial agreement to purchase one hundred kilos was "mere puffery"
nor that the later discussions limited the scope of the proposed
transaction. It is commonplace that "where there is more than one
plausible view of the circumstances, the sentencing court's choice
among supportable alternatives cannot be clearly erroneous." United
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) (citations
omitted).
As for Campusano, there is no direct proof that Pinillos
and he discussed the one hundred kilo figure; but there is some
indication that Campusano understood that a large transaction was
contemplated and that 25 kilos was to be the initial delivery. The
latter would likely be enough: "[a] defendant who conspires to
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transport for distribution a large quantity of drugs, but happens
not to know the precise amount, pretty much takes his chances that
the amount actually involved will be quite large." United States
v. De La Cruz, 996 F.2d 1307, 1314 (1st Cir. 1993).
In all events, Campusano does not claim on appeal that he
was unfamiliar with the one hundred kilo figure. Instead, his
argument, which Pinillos also makes, is that there is no evidence
that they had the resources to finance a 100 kilo transaction. We
have reviewed the testimony and pre-sentence report with some care
and are left uncertain how much Campusano was shown to have known;
but we are not disposed to overturn a sentence on a ground raised
neither at sentencing or on appeal.
The guidelines do allow the defense to show that whatever
their commitment, they lacked the resources to purchase the agreed
upon amount, U.S.S.G. § 2D1.1, n.12, and defendants say that the
government never seized the funds that would be associated with such
a large purchase. Indeed, they say that they never had the
resources to buy even a single kilo. The question, however, is
whether they proved that the transaction could not have been
accomplished.
Here, Pinillos himself proposed the one hundred kilo
figure and told Rafa and Toro that he had seen the money for the
upcoming purchase. Further, the defendants having the burden,
United States v. Barnes, 244 F.3d 172, 177 (1st Cir. 2001), the
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district court did not have to credit their denials of capacity to
pay, and in any event Rodriguez was the supposed ultimate purchaser
and there was certainly no attempt made by either defendant to offer
any evidence with respect to his finances.
Both defendants contend lower quantities should have been
adopted because the government was guilty of entrapment but, in this
context, they are in fact alleging what we call "sentencing factor
manipulation." This occurs "when 'a defendant, although predisposed
to commit a minor or lesser offense, is entrapped in committing a
greater offense subject to greater punishment.'" United States v.
Villafane-Jimenez, 410 F.3d 74, 86-87 (1st Cir. 2005) (citations
omitted).
Since Pinillos proposed the one hundred kilo figure, this
is hardly a case in which the government pressed in the first
instance for a figure greatly exceeding what was sought. See United
States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993). The defendants
say that the government offered the cocaine at the below-market
price of $13,500 per kilo to entice a larger purchase but a low
price is not itself decisive, United States v. Hulett, 22 F.3d 779,
782 (8th Cir. 1994), and the defendants offered no evidence of a
supposed higher market price.
Although it appears that at the bakery the defendants did
ask for a smaller delivery, the district judge was free to read the
request in context as reflecting defendants' aroused suspicion as
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to whether the sellers might be policemen and as an effort to
segment the larger transaction to limit liability. If the facts are
so read, this is hardly a matter of enticing defendants to commit
an offense to which they were not predisposed, let alone the
"extraordinary misconduct" which the doctrine seeks to prevent.
United States v. Montoya, 62 F.3d 1, 3-4 (1st Cir. 1995) (internal
quotation marks and citation omitted).
Defendants both challenge their two-level sentence
enhancement for obstruction of justice based on their testimony at
trial. See U.S.S.G. § 3C1.1. It is not clear that these arguments
were preserved but in any case they are without merit. Material and
deliberately false testimony at trial is a standard basis for the
enhancement, U.S.S.G. § 3C1.1 & n.4; United States v. Dunnigan, 507
U.S. 87, 92-94 (1993), so long as the district court finds the
specific elements of perjury. United States v. Gobbi, 471 F.3d 302,
314 (1st Cir. 2006).
Here, the district court made the necessary specific
findings and they are amply supported. Pinillos testified that he
was not a drug dealer at all, and instead thought that he and Rafa
were discussing the sale of computers. As for Campusano, he
testified that he was in Puerto Rico sightseeing and knew nothing
about the drug transaction. Given the guilty verdict, these were
central and deliberate falsehoods. Compare United States v.
Akitoye, 923 F.2d 221, 228 (1st Cir. 1991).
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The defendants' last joint objection is to the
reasonableness of the sentence under Gall v. United States, 128 S.
Ct. 586 (2007); Campusano also asserts that he was entitled to a
two-level reduction for having a minor role in the offense. See
U.S.S.G. § 3B1.2. Pinillos also argues in less than a paragraph
that his mental illness vitiates the sentencing court's finding of
willfulness as to the perjury that was the predicate for the
obstruction of justice enhancement.
These claims are without merit (or, in the case of the
mental illness claim, simply undeveloped, e.g., Esso Standard Oil
Co. v. Monroig-Zayas, 445 F.3d 13, 18 n.1 (1st Cir. 2006)), and we
mention them only to show that they have not been overlooked. The
sentences are very substantial but they were lawfully imposed, they
fall within the guideline range and there is no error.
Affirmed.
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