United States Court of Appeals
For the First Circuit
No. 07-2277
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL A. GONZÁLEZ-VÉLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. Senior District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
María H. Sandoval, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, were on brief for appellee.
November ##, 2009
TORRUELLA, Circuit Judge. In this appeal, defendant-
appellant Rafael A. González-Vélez ("González-Vélez") challenges
his sentence following his conviction for participating in a
conspiracy to distribute narcotics. The 135-month sentence
currently on appeal was imposed on re-sentencing after a previous
decision by this court, in which we affirmed the appellant's
conviction but vacated his sentence due to the sentencing court's
failure to make an individualized drug quantity determination. See
United States v. González-Vélez, 466 F.3d 27 (1st Cir. 2006).
After careful consideration, we affirm the appellant's new
sentence.
I. Background
As discussed in our prior opinion, the facts underlying
this appeal arise from an investigation of the drug point known as
"Las Malvinas" in the Luis Lloréns Torres housing project in Puerto
Rico. José Luis Rivera González, a/k/a "Luis Lloréns," ("Luis
Lloréns") ran the drug point from 2000 until his death in 2002.
The FBI and the Puerto Rico Police Department ("PRPD") investigated
the drug point between the summer of 2001 and October 2002. The
investigation resulted in a grand jury indictment against nine
individuals, including the appellant. González-Vélez was charged
with one count of conspiracy to distribute controlled substances,
including powder cocaine, cocaine base, heroin, and marijuana, in
violation of 21 U.S.C. § 846. González-Vélez's role in the charged
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conspiracy was that of a wholesale supplier of drugs, particularly
powder cocaine, to the drug point.
González-Vélez was tried jointly with José A. Ramos-
Romero ("Ramos"), a processor of drugs at Las Malvinas. In
addition to asking the jury to render a verdict as to the
defendants' participation in the conspiracy, the judge also gave
the jury a special verdict form asking it to decide whether or not
the amount of cocaine involved in the conspiracy was at least five
kilograms. The jury found González-Vélez and Ramos guilty of
conspiracy, and also found that the amount of cocaine in the
conspiracy was at least five kilograms.
On December 23, 2004, the district court held a
sentencing hearing for González-Vélez. The Pre-Sentence Report
("PSR") recommended a Base Offense Level ("BOL") of 32, based on
the jury's finding that the drug quantity in the conspiracy was at
least five kilograms. The district court adopted this reasoning
and assigned a BOL of 32. González-Vélez had argued to the court
that it needed to make an individualized drug quantity
determination, but the court concluded that drug quantity was a
matter reserved to the jury, and that the jury had rendered a
sufficient finding.
González-Vélez also objected to the PSR on the ground
that he was entitled to a downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E.1. After the verdict and before
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the December 23, 2004 sentencing hearing, González-Vélez had
submitted to the court a written statement admitting to
participating in the sale of drugs at the Lloréns Torres housing
project, stating that he was sorry for the damage he had done to
society and to his family, and explaining that he had gone to trial
only because the drug amount with which he was being charged
overstated his role in the conspiracy. The probation officer who
prepared the PSR recommended that the adjustment not be granted
because González-Vélez had gone to trial and because González-Vélez
had indicated in an interview with the probation officer that he
thought the government had a weak case. The court accepted the
probation officer's view and denied the adjustment, noting that
González-Vélez "went to trial at his own choice, with adequate
counsel," and saying that it would not "take into consideration"
the fact that the pre-trial plea negotiations were "not fruitful."
Based on a BOL of 32 and a criminal history category of I, the
applicable Sentencing Guidelines sentence range ("GSR") was
calculated to be 121 to 151 months' imprisonment; the court
sentenced González-Vélez to 135 months. González-Vélez timely
appealed.
In his first appeal, González-Vélez challenged both his
conviction and his sentence. In challenging his conviction,
González-Vélez argued, inter alia, that the judge erred in asking
the jury to render a special verdict as to the conspiracy-wide
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cocaine amount. Instead, González-Vélez argued, the judge should
have asked the jury to render special verdicts as to the amount of
cocaine each defendant handled individually. González-Vélez did
not challenge the jury's finding that the conspiracy involved at
least five kilograms of cocaine. In challenging his sentence,
González-Vélez argued that the district court should have made an
individualized drug quantity determination for sentencing purposes.
In our decision in González-Velez's first appeal, we
upheld his conviction, but vacated the sentence and remanded the
case for re-sentencing. As to the conviction for conspiracy, we
held that the court's instruction to the jury to find the
conspiracy-wide amount of cocaine did not constitute error because
the conspiracy-wide amount was a factor in sentencing, rather than
a factor in conviction.1 González-Vélez, 466 F.3d at 36. As to
the sentence, however, we held that the district court's failure to
make an individualized finding as to drug quantity was reversible
error. Id. at 38. We noted that in a conspiracy case, the
district court can rely on the conspiracy-wide drug quantity
determination, rather than an individualized drug quantity
determination, for the "statutory maximum penalty." Id. at 36
(emphasis added). Specifically, we noted that any sentence longer
1
González-Vélez also challenged his conviction on the ground that
there was insufficient evidence of his participation in the
conspiracy. We rejected this argument, noting that there was
abundant evidence in the record of González-Vélez's participation
in the conspiracy. Id. at 37-38.
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than the maximum corresponding to the conspiracy-wide amount could
trigger review under Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Blakely v. Washington, 542 U.S. 296 (2004), which require a
jury to make an individualized factual finding for any element that
increases a sentence beyond the statutory maximum. González-Vélez,
466 F.3d at 36-37. In González-Vélez's case, however, the
sentencing court relied on the jury's conspiracy-wide drug quantity
determination to calculate the actual sentence (by using the
conspiracy-wide quantity to compute the BOL), rather than the
maximum sentence. We found that this contravened our holding in
United States v. Colón-Solís that "when a district court determines
drug quantity for the purpose of sentencing a defendant convicted
of participating in a drug trafficking conspiracy, the court is
required to make an individualized finding as to drug amounts
attributable to, or foreseeable by, that defendant." United States
v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004), quoted in
González-Vélez, 466 F.3d at 38. In reaching this conclusion, we
further specified that "all of the drugs in a conspiracy may not be
automatically assigned to an individual defendant." Id. (emphasis
added) (citing United States v. Sepúlveda, 15 F.3d 1161, 1197 (1st
Cir. 1993)).
Because of the sentencing error, we remanded the matter
of González-Vélez's sentence "for an individualized determination
of drug quantity attributable to [González-Vélez]." Id. at 41.
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However, "[w]ith respect to all other matters, we affirm[ed] the
district court." Id. (emphasis added).
Upon remand for re-sentencing, the district court held a
pre-sentence hearing on March 27, 2007, where new evidence bearing
on drug quantity was presented, followed by a sentencing hearing on
July 12, 2007, where legal arguments were made and a new sentence
rendered by the court. The same judge who had presided over
González-Vélez's criminal trial also presided over the new round of
pre-sentence and sentencing hearings. At the pre-sentence hearing,
the court advised González-Vélez that the case had been remanded by
the appeals court for the sole purpose of making an individualized
drug quantity determination and that the prior objections to the
PSR had been addressed at the original sentencing hearing.
González-Vélez nevertheless renewed his request for a two-level
downward adjustment for acceptance of responsibility. The court
ultimately concluded, based on its examination of the sentencing
memoranda and the evidence presented during the trial and the
various sentencing hearings, that González-Vélez "handled,
anticipated handling, or could reasonably foresee the possession
with intent to distribute of more than five but less than 15 kilos
of cocaine," and explained its reasons for the determination. As
before, that determination corresponded with a BOL of 32, which in
turn resulted in a GSR of 121 to 151 months' imprisonment. The
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court again selected the 135-month sentence previously imposed.
González-Vélez now appeals this sentence.
As González-Vélez's main argument on appeal challenges
the district court's individualized drug quantity determination for
sentencing purposes, we summarize the evidence in the record
relevant thereto.
A. Testimony of Ángel Obregón
One of the government's key witnesses at both González-
Vélez's criminal trial and at the pre-sentence hearing was Ángel
Obregón ("Obregón"). Obregón testified at the March 27, 2007 pre-
sentence hearing that he worked under Luis Lloréns at Las Malvinas.
Obregón testified about drug sales at Las Malvinas in various
proceedings: before the Grand Jury in 2003, at González-Vélez's
criminal trial, and at the March 27, 2007 pre-sentence hearing. At
the criminal trial and before the grand jury, Obregón indicated
that there were at least four retail drug sellers at the drug
point. Obregón also testified at the trial that Luis Lloréns told
him that the drug point sold 1/8 kg of cocaine per week. Obregón
testified at the pre-sentence hearing that he saw González-Vélez at
the drug point "almost everyday," and that whenever González-Vélez
came to the drug point, Luis Lloréns would pay González-Vélez with
money from drug sales at the drug point.
Obregón testified about González-Vélez's cocaine sales to
Luis Lloréns a total of six times in various proceedings. On each
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occasion he was asked in what quantity González-Vélez sold cocaine
to Luis Lloréns. On the first occasion, before the Grand Jury in
2003, Obregón said González-Vélez provided one-eighth kilogram
quantities ("eighths"). However, in later proceedings, Obregón
testified that González-Vélez supplied cocaine in both eighths and
one-half kilogram ("half") quantities. Furthermore, at the
criminal trial, Obregón admitted that he did not know the
difference between an eighth, a half, and one kilogram of cocaine.
Obregón also gave inconsistent testimony about how many times he
saw González-Vélez sell cocaine to Luis Lloréns. At the trial,
Obregón initially said he did not remember how many sales he
witnessed. Later, he said he saw more than 10 sales. Later still,
he testified that he had only seen González-Vélez sell drugs "a
couple of times."
At the March 27, 2007 pre-sentence hearing, on cross-
examination by González-Vélez's counsel, Obregón admitted that he
had an extensive history of violent crimes and that he was
cooperating with the government. Defense counsel also challenged
Obregón's credibility by pointing out that at the trial, Obregón
said he did not know the difference between one eighth, one half,
and one kilogram. Obregón responded that he did know that an
eighth of a kilogram is less than one kilogram. Obregón was also
unable to correctly calculate his age, claiming he was 15 or 16 in
1998 but that he was only 22 as of March 27, 2007.
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B. Testimony of Héctor Luis Rivera-González
Héctor Luis Rivera-González ("Rivera-González") was the
nephew of Luis Lloréns. He testified at the March 27, 2007 pre-
sentence hearing that he worked as a drug peddler at the drug point
for a total of 32 days, from April 8, 2002 until he was arrested
for robbery on May 10, 2002. Rivera-González testified that while
he worked at the drug point, it was open every day and that it sold
cocaine, crack, heroin, and marijuana. He identified González-
Vélez as a wholesale supplier of drugs to the Las Malvinas drug
point. Rivera-González said that González-Vélez sold cocaine to
Luis Lloréns on credit. Rivera-González also said he saw González-
Vélez at the drug point twice a week.
Rivera-González provided certain details about the
packaging of cocaine. The government asked him, "specifically
referring to cocaine, powder cocaine," how cocaine was packaged and
sold. Rivera-González testified that Luis Lloréns would give him
"packages" of powder cocaine containing 25 "baggies" each, which
would retail for $5 per "baggie." Rivera-González testified that
he sold "five, six, or seven" "packages" worth of cocaine per week.
After asking Rivera-González about the packaging of cocaine, the
government asked, "[W]hen you would sell cocaine at that drug
point, were you the only seller selling for your uncle at that drug
point at the time?" Rivera-González said that he was not the only
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seller, and that "three or four" other people "would sell for" Luis
Lloréns at the drug point.
C. Testimony of FBI Special Agent William Ortiz and Puerto Rico
Police Agent Héctor A. Orta-González.
FBI Special Agent William Ortiz ("Ortiz") and Puerto Rico
Police Agent Héctor A. Orta-González ("Orta-González") testified at
the March 27, 2007 pre-sentence hearing. Both agents participated
in the investigation into drug sales at Las Malvinas. Agent Ortiz
testified that González-Vélez was one of four wholesale drug
suppliers to Las Malvinas. Both agents testified that they
frequently observed González-Vélez at the drug point. On cross-
examination, both agents conceded that González-Vélez did not
appear at all in the 730 hours of surveillance tape the FBI took at
the drug point. However, Agent Orta testified that González-Vélez
would always enter the drug point through the rear entrance, where
there were no surveillance cameras.
D. Recording By Jesús Samuel Matías-Cruz
Agent Orta also testified about the contents of a
recording secretly made by Jesús Samuel Matías-Cruz ("Matías-
Cruz"), who worked for Luis Lloréns at the drug point.2 In the
recording, González-Vélez can be heard talking with Luis Lloréns
about the packaging and processing of cocaine, as well as about
when Luis Lloréns would pay González-Vélez for cocaine the latter
2
The recording itself was also part of the record before the
sentencing court.
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had supplied. González-Vélez is also overheard saying that a pot
that was being used by one of Luis Lloréns's workers to "cook"
crack cocaine had broken.
E. Other Evidence
The judge heard González-Vélez's allocution at the
March 27, 2007 sentencing hearing. González-Vélez stated that he
had always intended to plead guilty to the conspiracy charge, but
that he went to trial on the advice of his trial counsel because he
could not reach an agreement with the prosecution on the amount of
drugs he handled. In order to explain his presence at Las Malvinas
during the period of the investigation, González-Vélez introduced
into evidence a certificate from the Puerto Rico Department of
Housing and Public Administration showing that he was a resident of
the Lloréns Torres housing project from 1999 until 2003.
F. Defendant's Sentencing Memo
On April 30, 2007, prior to the sentencing hearing,
González-Vélez filed a sentencing memorandum with the court.3
González-Vélez argued that the proper amount of cocaine that could
be attributed to him for sentencing purposes was one and five-
sixteenth (15/16) kilograms. He reached this number by multiplying
one-eighth of a kilogram -- the lowest amount that Obregón
testified to seeing González-Vélez sell to Luis Lloréns -- by ten
3
González-Vélez submitted a second sentencing memorandum on
May 22, 2007 that expanded on the facts presented in the first memo
and provided additional legal arguments.
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-- the maximum number of times Obregón said González-Vélez sold
cocaine to Luis Lloréns -- and then adding the one-sixteenth of a
kilogram amount mentioned in the recording by Matías-Cruz. Based
on this figure, González-Vélez argued that his BOL should be 26.
G. The District Court's Sentence
The district court held the sentencing hearing on
July 13, 2007, wherein it recognized its obligation, pursuant to
this Court's mandate, "to make an individualized finding as to the
amount of drugs attributable to [González-Vélez] in the instant
offense of conviction." The district court then stated its
determination that González-Vélez "handled, anticipated handling,
or could reasonably foresee the possession with intent to
distribute . . . more than five but less than 15 kilos of cocaine,"
and proceeded to recount its reasons for that determination. The
court first noted that evidence obtained from the drug point
indicated that each "baggie" of cocaine sold at the point contained
one-tenth of a gram of cocaine. Rivera-González testified that
each "package" contained twenty five "baggies," meaning that each
package contained 2.5 grams of cocaine. Based on Rivera-González's
testimony that he sold from five to seven "packages" per day, the
district court concluded that "even using a conservative figure
[Rivera-González] would distribute at least 35 packages a week,"
for a total of 87.5 grams of cocaine. However, the court also
noted that both Rivera-González and Obregón testified that there
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were four to five sellers at the point. Thus, the court held that
the "evidence presented certainly corroborates the testimony of
both [Rivera-González] and Obregón that at least one eighth [of a
kilogram, or 125 grams] of cocaine was sold" per week at the drug
point.
The court then recounted the testimony of Agents Orta and
Ortiz that they both observed González-Vélez at the drug point on
multiple occasions during the course of their investigation, which
began in the summer of 2001 and was continuing until at least
August of 2002. The court also relied on the recording by Matías-
Cruz, in which González-Vélez is heard discussing retail drug sales
and the breaking of the pot that was being used to cook crack
cocaine. The court noted that González-Vélez is heard saying that
he was waiting to be paid for an eighth of cocaine he had sold to
Luis Lloréns. Based on this evidence, the court found that
González-Vélez "knew . . . the amount of drugs being distributed
and/or could reasonably foresee that those amounts were being sold
at the drug point supplied by him." In reaching its conclusion,
the court also found that González-Vélez "had extensive knowledge
of the drug trafficking activities that took place at the Las
Malvinas drug point."
In determining the proper guideline range, the court
stated:
[T]he applicable case law indicates that in a
drug conspiracy the applicable statutory
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maximum imprisonment term is derived from a
conspiracy-wide perspective. That does not
mean that the Defendant must have personally
handled the drugs for which he is being held
responsible. He could be held responsible for
relevant conduct, which could include the acts
of other conspiracy members, as long as their
conduct was reasonably foreseeable for the
Defendant.
Based on its finding that González-Vélez knew how much cocaine was
being sold at Las Malvinas, the court held that "if at least one
eighth of cocaine was sold every week during the ten month
conspiracy . . . [González-Vélez] should be held responsible for at
least five but not more than 15 kilos of cocaine." When combined
with a Criminal History Category of I, the court explained, this
amount of cocaine triggered a BOL of 32 and a corresponding GSR of
121 to 151 months.
The court then said that it had "reviewed the applicable
guideline adjustments" and "considered the other sentencing factors
set forth in [18 U.S.C. § 3553(a)]." The court also stated that it
found the Pre-Sentence Report (PSR) to have "adequately applied the
Guideline computations and satisfactorily reflect[ed] components of
[the] offense." The court had previously held, at the March 27,
2007 hearing, that since the PSR had not changed since the original
sentence was handed down, any objections to the original report
that had already been ruled on were "taken care of and ruled upon
by the Court." Ultimately, the court sentenced González-Vélez, as
before, to 131 months.
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II. Discussion
González-Vélez makes two main arguments on appeal.
First, he argues that the district court committed reversible error
in its drug quantity determination because the evidence does not
support attributing five kilograms of cocaine to him. Second,
González-Vélez argues that the district court erred in failing to
state its reasons for denying his request for a 2-level reduction
for acceptance of responsibility.4 González-Vélez does not
challenge the jury's original finding that the conspiracy as a
whole involved at least five kilograms of cocaine.
4
González-Vélez makes two additional arguments, neither of which
merits serious consideration.
First, he argues that the district court violated 18 U.S.C.
§ 3553(c)(1) by failing to explain why it chose a BOL of 32.
However, 18 U.S.C. § 3553(c)(1) does not require the court to
explain why it chose an offense level. Rather, once a court has
determined a GSR based on the offense level, if the sentence range
exceeds 24 months, § 3553(c)(1) requires the court to explain why
it chose a particular sentence. Thus, 18 U.S.C. § 3553(c)(1) does
not come into play until after a decision is made on the
appropriate offense level.
Second, González-Vélez argues that the district court
committed a "technical violation" by not stating in Section IV(B)
of the Statement of Reasons why it chose to impose a sentence in
the middle of the guideline range, and that this violation
constitutes reversible error. González-Vélez does not indicate how
he was prejudiced by this supposed "technical violation" in any
way. Nor does he provide any support for his argument that this
constitutes reversible error. We therefore treat this argument as
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("It is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its
bones.").
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A. Applicable Law and Standard of Review
A trial court's "approximation of drug quantity will be
upheld 'as long as it represents a reasoned estimate of quantity.'"
United States v. Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)
(quoting United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995)).
Such a determination need only be supported by a preponderance of
the evidence. Sepúlveda, 15 F.3d at 1198. Moreover, the drug
quantity determination "is not required to be an exact
determination but rather only a reasoned estimate." United States
v. Rodríguez, 525 F.3d 85, 107 (1st Cir. 2008).
However, as we explained in González-Vélez's previous
appeal, in a conspiracy case, the sentencing court cannot
automatically assign the conspiracy-wide amount to a defendant.
See González-Vélez, 466 F.3d at 38. Rather, the sentencing court
must make "an individualized finding as to drug amounts
attributable to, or foreseeable by, that defendant." Id. (quoting
Colón-Solís, 354 F.3d at 103). When determining the amount of
drugs attributable to a defendant for sentencing purposes, the
district court may examine the charged conduct plus the "relevant
uncharged conduct." United States v. García, 954 F.2d 12, 15 (1st
Cir. 1992) (internal citations omitted) (emphasis added).
"Relevant" uncharged conduct is conduct that is "reasonably
foreseeable by the defendant and committed in furtherance of the
conspiracy." Id. "'Thus, each co-conspirator is responsible not
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only for the drugs he actually handled but also for the full amount
of drugs that he could reasonably have anticipated would be within
the ambit of the conspiracy.'" Rodríguez, 525 F.3d at 107 (quoting
United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004)).
We review the sentencing court's interpretation of the
sentencing guideline de novo and its determination of facts for
clear error. United States v. Sicher, 576 F.3d 64, 70 (1st Cir.
2009). The application of the guidelines is reviewed on a "sliding
scale" between de novo review and clear error review "depending on
whether the trial judge's conclusion is more law-oriented or more
fact-driven." Id. n.6. Here, the application of the relevant
sentencing guideline requires a drug quantity determination, which
is a purely factual issue; therefore, it may only be set aside if
it is clearly erroneous. United States v. Olivero, 552 F.3d 34, 38
(1st Cir. 2009); see also Santos, 357 F.3d at 141; United States v.
Sklar, 920 F.2d 107, 110-11 (1st Cir. 1990). Under the clear error
standard, "[w]here there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly erroneous."
Tsoulas v. Liberty Life Assur. Co., 454 F.3d 69, 76 (1st Cir. 2006)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).
B. Drug Quantity Determination
In González-Vélez's previous appeal, this court vacated
his sentence and remanded to the district court with instructions
to make an individualized finding as to whether he either "handled
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[or] anticipated handling" five kilograms of cocaine or could
"reasonably foresee" that the conspiracy would handle that amount.
González-Vélez, 466 F.3d at 38. In the instant appeal, González-
Vélez argues that the district court again failed to properly carry
out this obligation, and thus, clearly erred in basing his sentence
on the five kilogram conspiracy-wide amount. First, González-Vélez
argues that the district court improperly relied upon the testimony
of Obregón and Rivera-González in determining drug quantity, as
these witnesses lacked credibility. Second, he argues that the
court erred in its calculations underlying its drug quantity
determination. In particular, he argues that the court erred in
calculating both the drug amount he personally handled and the
amount of cocaine sold at Las Malvinas each week. Finally, he
argues that the district court wrongly concluded that he could
reasonably foresee the full amount of cocaine distributed by the
conspiracy. We address these arguments in turn.
1. Credibility of Obregón and Rivera-González
First, González-Vélez argues that the district court
erred in relying on the testimony of Obregón and Rivera-González as
the basis for its drug quantity determination because they were
unreliable witnesses. González-Vélez points out that Obregón gave
inconsistent testimony both as to the number of times González-
Vélez sold cocaine to Luis Lloréns and as to the amount of cocaine
involved in each sale. González-Vélez also argues that Obregón
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lacked the intellectual capacity to be a reliable witness, as
manifested by his inability to calculate his own age. Furthermore,
González-Vélez argues that Obregón had a motive to lie because he
was a cooperating witness facing charges for involvement in the
conspiracy, and that he was receiving payment for his testimony.
Finally, González-Vélez points to Obregón's extensive criminal
history.
As for Rivera-González, González-Vélez points out that
Rivera-González's testimony is based on his selling drugs at the
drug point for only 32 days. Moreover, Rivera-González only
personally observed one sale by González-Vélez to Luis Lloréns; all
of his other knowledge was hearsay testimony based on what Luis
Lloréns, who died in 2002, purportedly told him.
A district court has broad discretion to make credibility
judgments relevant to sentencing. See, e.g., Huddleston, 194 F.3d
at 224; Webster, 54 F.3d at 5. We will overturn a district court's
credibility determination only if "we have a definite and firm
conviction that a mistake has been committed." United States v.
Jones, 187 F.3d 210, 214 (1st Cir. 1999) (internal quotation marks
omitted). A mistake may have been made if "[d]ocuments or
objective evidence . . . contradict the witness's story," or if the
story is "'so internally inconsistent or implausible on its face
that a reasonable fact-finder would not credit it.'" United States
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v. Henderson, 463 F.3d 27, 32 (1st Cir. 2006) (quoting Anderson,
470 U.S. at 575).
We find that "[w]ithin wide limits, not exceeded here, it
was the exclusive role of the trial court to decide the weight to
give [Obregón and Rivera-González's] testimony and whether to use
it as the basis of its drug quantity determination." Rodríguez,
525 F.3d at 108 (holding that sentencing court did not clearly err
in relying on testimony of witness who was "not especially exact in
his description of dates, times, weights, and numbers"). We
acknowledge that there are some internal inconsistencies in the
testimonies as to the number of times González-Vélez sold cocaine
and the amount of cocaine González-Vélez sold each time. In
particular, we note Obregón's inconsistent testimony about the
quantity of drugs González-Vélez sold to Luis Lloréns. However,
the judge, as the finder of fact at sentencing, was free to
disregard inconsistent portions of the testimony and credit the
relevant credible portions. See United States v. Lara, 181 F.3d
183, 204 (1st Cir. 1999) (stating that fact-finders "are not
required to discard testimony that appears to contain internal
inconsistencies, but may credit parts of a witness's testimony and
disregard other potentially contradictory portions").
There is, moreover, a further distinction here. The
sentence in this case was not based on the amount of cocaine
González-Vélez individually handled. Rather, the sentence was
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based on González-Vélez's ability to foresee the conspiracy-wide
amount of cocaine. With respect to this aspect of the case,
Obregón's and Rivera-González's testimonies are generally
consistent, are not implausible on their face, and are not
contradicted by the other evidence in the record. Both witnesses
testified to seeing González-Vélez at the drug point frequently,
and this testimony was corroborated by Agents Ortiz and Orta. Both
witnesses also testified that González-Vélez sold cocaine on credit
to Luis Lloréns, which is something that González-Vélez himself
admits. Furthermore, as we discuss in more detail below, Obregón
and Rivera-González corroborated each other's testimony about the
amount of cocaine retailed at Las Malvinas. Because the testimony
of Obregón and Rivera-González was consistent as to the two
important factors in González-Vélez's sentence -- the conspiracy-
wide amount, and the fact that González-Vélez could foresee that
amount -- we do not find the trial court's reliance on their
testimony to be "unreasonable." See Huddleston, 194 F.3d at 224
(holding that "[n]otwithstanding some minor discrepancies in
[witness's] testimony, 'we do not think it unreasonable . . . to
believe that the testimony of a man experienced in drug deals was
sufficient to establish an appropriate drug quantity'" (quoting
United States v. Natanel, 938 F.2d 302, 312-13 (1st Cir. 1991)).
-22-
2. Calculations Underlying Drug Quantity Determination
González-Vélez next argues that even if the district
court properly credited Obregón's testimony, it was obligated to
calculate the drug quantity attributable to González-Vélez using
the lowest amount that Obregón said González-Vélez sold per
transaction -- which was one-eighth of a kilogram. González-Vélez
relies on the Third Circuit's decision in United States v. Miele,
989 F.2d 659 (3d Cir. 1993), in which that court remanded the case
for re-sentencing because of the lower court's failure to explain
why, when deciding the defendant's sentence, it chose to rely on
the larger of two drug quantities testified to by a witness. In
the present case, González-Vélez argues, the district court should
have multiplied one-eighth of a kilogram by the number of times
González-Vélez sold cocaine and then added the one-sixteenth of a
kilogram referenced in the recording by Matías-Cruz. This would
yield one and five sixteenth (15/16) kilograms, not five, and result
in a BOL of only 26 instead of 32.
We need not reach this issue because the district court
did not base its drug quantity determination on the amount of
cocaine that González-Vélez personally handled. Instead, the court
arrived at the five kilogram figure based on its determination that
the minimum total amount of cocaine sold at the Las Malvinas drug
point in the course of the conspiracy was five kilograms. Because,
as explained below, we find no clear error in the district court's
-23-
determination that González-Vélez could foresee that five kilograms
of cocaine were involved in the conspiracy, we need not concern
ourselves with how much cocaine González-Vélez personally supplied
to the operation. We need not address Miele because Miele deals
with a drug quantity determination that was based on what the
defendant personally handled, rather than on what the defendant
could foresee. 989 F.2d at 666.
González-Vélez also argues that the district court
performed "shoddy arithmetic" in calculating that the drug point
sold an eighth of a kilogram of cocaine per week. First, González-
Vélez argues that the district court incorrectly calculated the
amount of cocaine individually sold by Rivera-González. The court
noted that according to evidence seized at the drug point, a gram
of cocaine would be packaged into ten $10 bags of cocaine, meaning
that each $10 bag would contain a tenth of a gram. However,
Rivera-González testified that the "baggies" he sold retailed for
$5. Therefore, González-Vélez argues, each of the "baggies"
Rivera-González sold must have contained one twentieth of a gram,
not one tenth. Thus, if each "package" contained 25 "baggies" and
Rivera-González sold between 35 and 49 packages per week, then
Rivera-González himself sold between 43.75 and 61.25 grams of
cocaine per week, far less than the minimum of 87.5 grams that the
court calculated.
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González-Vélez then notes that the district court reached
its figure of one eighth of a kilogram sold per week by multiplying
the amount of cocaine Rivera-González sold by the number of retail
sellers that Rivera-González said were working at the drug point.
González-Vélez argues, however, that doing so was clearly erroneous
because Rivera-González did not explicitly state at the March 27,
2007 sentencing hearing that the other sellers sold powder cocaine.
It is undisputed that the drug point sold heroin, crack, and
marijuana as well as cocaine. González-Vélez argues that because
Rivera-González did not clearly state that the other sellers sold
cocaine, the district court was obligated to calculate total
cocaine sales assuming that Rivera-González was the only person at
the drug point who sold powder cocaine. This would mean that there
were weekly sales of only 61.25 grams of cocaine, which is roughly
one sixteenth of a kilogram rather than one eighth.
We find no clear error in the district court's
determination that the drug point sold an eighth of a kilogram of
cocaine per week. González-Vélez's argument hinges on the fact
that Rivera-González did not explicitly state at the March 27, 2007
hearing that the other sellers at Las Malvinas sold cocaine.
However, it is clear from the record that the government's
examination of Rivera-González at that hearing explicitly focused
on cocaine. At no point in his testimony did Rivera-González
suggest that he was the only seller of powder cocaine. In
-25-
addition, there is no evidence to indicate that the other sellers
did not sell cocaine, or to indicate that they sold substantially
less cocaine than Rivera-González. It is therefore reasonable to
interpret Rivera-González's testimony as indicating that the other
sellers sold cocaine in similar quantities. Thus, even using
González-Vélez's figure of between 43.75 and 61.25 grams sold by
Rivera-González, it was not unreasonable for the court to conclude
that all four sellers combined sold at least 125 grams per week.
Moreover, the 125 gram figure was corroborated by Obregón's
testimony. Finally, we note that the district court's calculation
is consistent with the jury's finding that the overall conspiracy
involved at least five kilograms of cocaine, although the jury's
finding was insufficient alone to determine the amount reasonably
foreseable. Given that the district court's calculation of 125
grams per week was a perfectly "permissible view[] of the
evidence," we cannot say that it was "clearly erroneous," and hence
we will not overturn the district court's finding. See Tsoulas,
454 F.3d at 76.
There is another, essentially independent point. As we
discuss below, the district court ultimately concluded that
González-Vélez could reasonably foresee the total amount of cocaine
involved in the conspiracy. Thus, the quantity of cocaine that is
relevant in this case is the total quantity of cocaine, not merely
the amount retailed at Las Malvinas in powder form. The jury in
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González-Vélez's criminal trial found that the conspiracy-wide
amount of cocaine was at least five kilograms, and this finding has
never been questioned in either of González-Vélez's appeals.
Therefore, even if the district court erred in its calculation of
how much powder cocaine was sold per week, and we do not believe it
did, we would still uphold the sentence so long as we found that
the district court correctly attributed the conspiracy-wide amount
to González-Vélez. As discussed below, we find that the court was
correct.
3. Attribution of Conspiracy-Wide Amount to González-
Vélez
Finally, González-Vélez argues that attributing the full
conspiracy-wide amount of five or more kilograms of cocaine to him
was clearly erroneous as it was not established that the
conspiracy-wide amount was foreseeable by him. The district court
based its determination that González-Vélez could reasonably
foresee five or more kilograms on two primary factors. First, the
court noted that González-Vélez was frequently seen at or near the
Las Malvinas drug point. Second, the court noted that in the
recording made by Matías-Cruz, González-Vélez could be overheard
asking Luis Lloréns about cocaine sales and discussing the pot that
broke while "Joey Oreja" was using it to cook crack.
González-Vélez does not dispute that he was occasionally
present at or near the drug point or that he talked to people at
the drug point. However, he argues that his mere presence at Las
-27-
Malvinas cannot be used to tie him to drug sales. He notes that he
had lawful reasons for being at Las Malvinas, as he lived in the
Lloréns Torres housing project. He was also a friend of Luis
Lloréns and other persons involved with Las Malvinas, and at one
point was also romantically pursuing a woman who lived in the area.
Therefore, he argues, his presence at the drug point cannot be
considered "relevant conduct," García, 954 F.2d at 15, for the
purposes of sentencing.
González-Vélez also argues that the district court
improperly used his presence at Las Malvinas to tie him to retail
drug sales, which were beyond the scope of his role in the
conspiracy as a wholesale drug seller. Although his brief is
unclear, González-Vélez appears to argue that where a sentence
depends on quantity, a person charged for a particular role in a
conspiracy can only be sentenced for the conspiracy-wide quantity
if he had a supervisory role or had multiple roles in the
conspiracy. He makes this argument by attempting to distinguish
his case from other cases in which this court has upheld the
attribution of conspiracy-wide amounts to defendants who had
multiple roles or high-level roles in a conspiracy. See United
States v. Pizarro-Berríos, 448 F.3d 1, 8-9 (1st Cir. 2006) (court
attributed full amount of financial loss in a credit card fraud
scheme to defendant who was both a purchaser of merchandise for the
scheme and a bodyguard for one of the scheme's leaders); United
-28-
States v. Rodríguez, 162 F.3d 135, 140, 149 (1st Cir. 1998) (court
attributed full amount of crack cocaine in conspiracy to defendant
who controlled the drug point at which the narcotics were
distributed). Here, González-Vélez does not dispute that he was at
times present at Las Malvinas for illegal activity. However, he
argues that there is no evidence that he participated in retail
sales at Las Malvinas or that he could reasonably foresee the
quantity of cocaine sold there. He notes that in 730 hours of
videotape collected by the FBI, he was never seen at the drug point
at all, much less seen retailing drugs. He admits that he went to
the drug point to collect money, but he argues that this was
because he sold cocaine to Luis Lloréns on credit and had to go to
the drug point to be paid. González-Vélez argues that this
arrangement also explains why he was recorded asking Luis Lloréns
how much money Luis Lloréns could make from selling cocaine on the
street, and asking, "[W]here are my Washingtons?"5
Since his sole role in the conspiracy was as a
wholesaler, González-Vélez argues that he cannot be sentenced for
the full five kilograms of cocaine unless he either personally
supplied or conspired to supply that amount to the drug point. The
government conceded at the sentencing hearing that it could
directly attribute less than two kilograms of cocaine to González-
Vélez. Furthermore, the testimony of various government witnesses
5
A slang term for $1 bills.
-29-
indicated that there were at least three other suppliers, and there
was no evidence that González-Vélez conspired with them.
Therefore, González-Vélez argues, the district court should have
determined the amount attributable to him by dividing five
kilograms by the total number of suppliers to the point.
We find no error, let alone clear error, in the district
court's finding that "[i]t is evident that [González-Vélez] knew
. . . and/or could reasonably foresee" that at least five kilograms
of cocaine would be sold at Las Malvinas. We acknowledge that
González-Vélez was sometimes present at Las Malvinas for lawful
purposes, that there is no evidence of cooperation between him and
the other suppliers to Las Malvinas, and that there is no evidence
he was involved in retail sales at the point. Nevertheless, the
evidence relied on by the district court is clearly sufficient to
support the court's conclusion that González-Vélez "had extensive
knowledge of the drug trafficking activities that took place at
[Las Malvinas]." The district court noted that González-Vélez was
frequently seen at Las Malvinas, that he sold cocaine to Luis
Lloréns on credit, and that he was recorded "discussing the
intricacies of the drug trade." In light of this evidence, we find
no error in the district court's conclusion.
That González-Vélez's only role in the conspiracy was as
a wholesale supplier, as opposed to a retailer, is of little
importance to this case. In a drug distribution case, "the
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quantity of drugs attributable to [a defendant] for sentencing
purposes . . . [is] bounded initially by the sum of the charged
conduct . . . plus his relevant uncharged conduct." United States
v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990) (emphasis added). In
this case, the conspiracy charged was a conspiracy to distribute
drugs at Las Malvinas, rather than to Las Malvinas. Thus, retail
drug sales could clearly be relevant uncharged conduct for the
purposes of the drug quantity determination. What matters in this
case is whether the retail sales were "acts that were reasonably
foreseeable" by González-Vélez "in furtherance of the conspiracy"
to distribute drugs at Las Malvinas. Sepúlveda, 15 F.3d at 1197.
Because we find no error in the district court's determination that
the retail sales were acts reasonably foreseeable by González-Vélez
in furtherance of the conspiracy, we find no error in the
attribution of the full five kilograms of cocaine to González-
Vélez.6 We therefore affirm the district court's calculation of a
BOL of 32.
6
Moreover, contrary to González-Vélez's argument, this court has
never held that a quantity attributable to a conspiracy member is
dependent on either the number of roles he had or the supervisory
nature of his role. The cases on which González-Vélez relies to
support this proposition, if properly read, do not help him. In
Pizarro-Berríos, we did not hold the defendant responsible for the
conspiracy-wide financial damages merely because he had multiple
roles; rather, we held that because the defendant was a friend of
one of the heads of the scheme and served as his bodyguard, the
defendant was in a position to know how much money was being
stolen. 448 F.3d at 8-9. In Rodríguez, defendant Rodríguez's role
as controller of the drug point made it clear that he could foresee
how much crack was sold there. 162 F.3d at 140, 149.
-31-
C. Denial of the 2-Level Reduction for Acceptance of Responsibility
González-Vélez argues that the district court committed
reversible error by failing to explain why it denied his request
for a two-level reduction in his offense level for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1. González-Vélez argues
that his eligibility for the reduction was a disputed issue of
fact, and hence that the district court violated Fed. R. Crim. P.
32(i)(3)(B) by failing to rule on his request.7
Under Fed. R. Crim. P. 32(i)(3)(B), the sentencing court
must, for any disputed matter, "rule on the dispute or determine
that a ruling is unnecessary." We review a district court's
compliance with Fed. R. Crim. P. 32 de novo, and will remand if an
error occurred that was not harmless. United States v.
Guadalupe-Rivera, 501 F.3d 17, 22 (1st Cir. 2007). We review a
district court's judgment about acceptance of responsibility for
clear error. United States v. Deppe, 509 F.3d 54, 60 (1st Cir.
2007).
7
González-Vélez also argues that the alleged failure to rule on
the acceptance of responsibility issue violates 18 U.S.C.
§ 3553(c)(1). We need not address this argument in detail because
18 U.S.C. § 3553(c)(1) does not apply to rulings on acceptance of
responsibility under U.S.S.G. § 3E1.1. Section 3553(c)(1) applies
to the court's choice of a sentence within a guideline range. See
supra n.4. In contrast, U.S.S.G. § 3E1.1 affects the offense
level, from which the GSR is calculated. Thus, 18 U.S.C.
§ 3553(c)(1) does not come into play until after a decision
is made on the appropriate offense level.
-32-
Here, we find no error in the district court's compliance
with Fed. R. Crim. P. 32(i)(3)(B). The PSR before the district
court upon remand for re-sentencing was the same report that was
used in González-Vélez's original sentencing. At the March 27,
2007 pre-sentence hearing, the court stated that because the PSR
was "the same as the last time . . . any objections that were made
at the last time and taken care of . . . were taken care of and
ruled upon by the Court." The court then allowed González-Vélez's
counsel to present her objections again, "if she feels it's
necessary." In response, González-Vélez's counsel stated that she
and her client "renew[ed] [their] request for granting points [sic]
for acceptance of responsibility."
It is clear that the request for a reduction at the
March 27, 2007 hearing was not a new objection, but rather a
reiteration of a previous objection. Therefore, it was correct for
the district court to rest on its previous resolution of this
issue. Moreover, the district court properly complied with Fed.
R. Crim. P. 32(i)(B)(3) when it addressed the responsibility issue
at the original sentencing hearing. At that hearing, the court had
noted that González-Vélez "went to trial at his own choice, with
adequate counsel." González-Vélez had argued that the fact that he
went to trial should not be held against him, because he could not
reach an agreement with the prosecutor regarding drug quantity.
However, the court had said that it would not "take into
-33-
consideration" the fact that the pre-trial plea negotiations were
"not fruitful." As we note below, a criminal defendant's choice to
go to trial weighs very heavily against granting a downward
adjustment for acceptance of responsibility; only in rare
circumstances can the defendant overcome this effect, and the
failure of plea negotiations is generally not such a circumstance.
In light of this reality, we find the district court's discussion
of the responsibility issue at the original hearing sufficient for
the purposes of Rule 32(i)(B)(3). Because the district court had
already ruled on the responsibility issue in compliance with Rule
32(i)(B)(3) at the original sentencing hearing, we find no error in
the district court's decision not to address the issue again at the
March 27, 2007 pre-sentence hearing.
III. Conclusion
For the reasons stated above, we affirm the district
court's sentence.
Affirmed.
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United States v. Gonzalez-Velez
Court: Court of Appeals for the First Circuit
Date filed: 2009-11-25
Citations: 587 F.3d 494
Copy CitationsCombined Opinion