USCA1 Opinion
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No. 95-1908
UNITED STATES OF AMERICA,
Appellee,
v.
CEFERINO CRUZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
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Before
Selya, Acting Chief Judge,*
Bownes, Senior Circuit Judge,
Boudin, Stahl and Lynch,
Circuit Judges.
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Diana L. Maldonado, Federal Defender Office, on brief for
appellant.
Donald K. Stern, United States Attorney, Carole S. Schwartz
and Kevin P. McGrath, Assistant United States Attorneys, on brief
for appellee.
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July 28, 1997
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OPINION EN BANC
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*Chief Judge Torruella did not participate in this proceeding.
SELYA, Acting Chief Judge. This appeal involves a
solitary issue: the propriety vel non of the sentencing court's
decision to enhance the defendant's offense level (and, therefore,
increase the ensuing sentence) by reason of what the court deemed
to be the defendant's aggravating role in the offense of
conviction. See USSG S3B1.1(c).
The appeal was originally argued to a panel of this
court. On April 30, 1997, the panel, by a two-to-one vote,
determined that the sentencing court had committed clear error in
its application of the role-in-the-offense guideline. Because
role-in-the-offense determinations are a frequent source of
appellate litigation, and because the panel decision seemed out of
line with our customary approach to such determinations (and,
therefore, likely to create confusion in future cases), we elected
to reconsider the matter en banc. To that end, we withdrew the
panel opinion and solicited supplemental briefs from the parties.
We now uphold the district court's application of the USSG
S3B1.1(c).
We cull the facts from the plea colloquy, the presentence
investigation report (PSI Report), and the transcript of the
sentencing hearing. See United States v. Tejada-Beltran, 50 F.3d
105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d 50, 51
(1st Cir. 1991). In conducting this tamisage, we are mindful that
a sentencing court may consider facts contained in the PSI Report
as reliable evidence. See United States v. Morillo, 8 F.3d 864,
872 (1st Cir. 1993). Moreover, for sentencing purposes the court
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may rely upon evidence adduced at a coconspirator's trial as long
as the defendant receives notice prior to its use and has the
opportunity to challenge its reliability. See United States v.
McCarthy, 961 F.2d 972, 979 (1st Cir. 1992); United States v.
Berzon, 941 F.2d 8, 19 (1st Cir. 1991). Of course, this court may
also consider facts which have been established by these methods.
On July 28, 1994, the defendant, Ceferino Cruz, greeted
Pam Mersky, an undercover Drug Enforcement Administration (DEA)
agent, as she entered La Tambora, a restaurant in Lawrence,
Massachusetts, which Cruz owned and operated. The defendant had
met Mersky one week earlier when he sold her 30.7 grams of crack
cocaine and a handgun. Alejandro Vega, later indicted as a
coconspirator, approached Mersky inside the restaurant. Mersky
told him that she wanted to buy crack cocaine. Vega initially
feigned ignorance, but Mersky persisted. When she stated that the
defendant previously had supplied her with crack, Vega engaged the
defendant in a private conversation and thereafter told Mersky to
come back in 45 minutes.
Mersky returned to La Tambora to find Vega, but not the
defendant, present. A few minutes later Jeanette Marquez joined
Here, as the panel acknowledged, the PSI Report furnished the
defendant the advance notice that our case law requires. At any
rate, the facts which are critical to a proper resolution of this
appeal derive directly from the PSI Report and the proceedings in
which this defendant was personally involved.
This purchase took place at La Tambora, as did several earlier
purchases of drugs, firearms, and ammunition effectuated by a
confidential DEA informant.
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them. Vega introduced Marquez as the defendant's girlfriend.
Marquez (who was 14 years old and pregnant) wore a necklace
showcasing the defendant's first name. Marquez delivered the crack
cocaine to Mersky, and Mersky paid Vega for it. She then told Vega
that she wanted to purchase a gun. Vega replied that "he" didn't
realize that Mersky wanted a gun, too. In context, a factfinder
reasonably could believe that the pronoun "he" referred to Cruz.
In any event, Vega promised to contact Mersky after making further
inquiries.
Later that afternoon Vega told Mersky that he would sell
her a gun. Mersky met Vega a few blocks away from the restaurant
and they walked to La Tambora together. Once inside, Vega
conversed privately with the defendant and thereafter handed Mersky
a bag containing a gun. The gun was frigid, suggesting that it had
just been removed from a freezer or other cold storage.
Two subsequent events complete the picture. On August 3,
Vega consulted the defendant before providing Mersky with bullets.
On August 16, after Mersky expressed an interest in acquiring more
crack and more firepower, Vega stated that guns were available
immediately but that the crack had to be delivered. The pair
strolled to La Tambora. Vega told Mersky to go behind the food
counter. Marquez hailed the defendant. He appeared, saw Vega and
Mersky, together, walked away without engaging in any conversation,
and returned moments later with a bag containing two guns. The
defendant handed the bag to Vega who, in turn, handed it to Mersky.
She then inspected both weapons and purchased one of them.
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Mersky and Vega then waited for the crack. When the
courier (Sixto Garcia) arrived, he nodded to them, but met
privately with Cruz. Mersky and Vega walked behind the food
counter; Garcia handed Cruz a plastic bag containing the crack
cocaine; Cruz gave the bag to Mersky; and Mersky, in turn, paid
Vega for it.
Cruz was indicted and convicted on charges of conspiracy
to possess cocaine base (i.e., crack cocaine) with intent to
distribute, see 21 U.S.C. S 846, and conspiracy to sell firearms
illegally, see 18 U.S.C. S 922(a)(1)(A). The drug offense drove
the sentencing calculus. The PSI Report urged, inter alia, a two-
level upward adjustment for the defendant's leadership role. See
USSG S3B1.1(c). In calculating the guideline sentencing range
(GSR), the district court accepted this suggestion (overriding the
prosecutor's contrary recommendation) and increased the defendant's
offense level accordingly. This adjustment, together with other
computations (none of which is challenged here), yielded a GSR of
135 to 168 months. The lower court then imposed an incarcerative
sentence of 165 months. It is undisputed that, absent the role-in-
the-offense adjustment, the GSR (and presumably the sentence) would
have been less onerous.
The determination of an individual's role in committing
an offense is necessarily fact-specific. See United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995). Accordingly, appellate
Under the applicable grouping rules, the counts of conviction
are treated as separate units. See USSG S3D1.2.
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review must be conducted with considerable deference. Absent an
error of law and it is not seriously suggested that such an error
infected the sentencing process in this case the sentencing
court's determinations are to be set aside only for clear error.
See id.
Role-in-the-offense adjustments address concerns of
relative responsibility. See USSG S3B1.1(c), comment. (backg'd).
In this vein, the guideline provides, among other things, that "if
the defendant was an organizer, leader, manager, or supervisor in
any criminal activity" involving one to three other participants,
the offense level should be increased by two levels. USSG
S3B1.1(c). Such an increase is justified if the sentencing court
supportably finds that (1) the criminal enterprise involved at
least two complicit participants (of whom the defendant may be
counted as one), and (2) the defendant, in committing the offense,
exercised control over, organized, or was otherwise responsible for
superintending the activities of, at least one of those other
persons. See Morillo, 8 F.3d at 872; United States v. Savoie, 985
F.2d 612, 616 (1st Cir. 1993); United States v. Akitoye, 923 F.2d
221, 227 (1st Cir. 1991). The government bears the burden of
proving that a defendant qualifies for an upward role-in-the-
The fact that the government had agreed not to request the
enhancement, and did not do so, does not compress the district
court's discretion. The sentencing judge has the ultimate
responsibility for the sentence and may decide to pursue matters in
the teeth of an agreement by both sides to go in a different
direction. See United States v. Vaknin, 112 F.3d 579, 585 (1st
Cir. 1997).
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offense adjustment, and must carry that burden by a preponderance
of the evidence. See United States v. Voccola, 99 F.3d 37, 44
(1st Cir. 1996); United States v. Ortiz, 966 F.2d 707, 717 (1st
Cir. 1992).
In this instance, we think that the evidence, viewed as
a whole, supports the district court's finding. The record
suggests that Cruz was at the center of a well-organized series of
drug and weapon sales, conducted at or through the restaurant that
he owned and operated. The evidence also suggests that Cruz
involved various individuals not only as facilitators but also as
go-betweens in an effort to limit his own apparent involvement.
This pattern is familiar in many sophisticated but illegal
transactions. See, e.g., United States v. Catlett, 97 F.3d 565,
569-70 (D.C. Cir. 1996); United States v. Evans, 92 F.3d 540, 541-
42 (7th Cir.), cert. denied, 117 S. Ct. 537 (1996).
The district judge made a specific finding that Cruz was
"the motivating principal in this drug distribution scheme" and
that he was a manager vis-a-vis both Vega and Marquez. Leaving
Vega aside, if Cruz supervised Marquez in connection with the July
28 transaction, that incident alone would provide an adequate basis
for the enhancement. See Voccola, 99 F.3d at 43-44 (explaining
that a single directed transaction is enough to confer organizer or
manager status); see also USSG S3B1.1, comment. (n.2). And the
district court's finding is sustainable in that regard. After all,
a defendant's role in the offense can be proved wholly by
circumstantial evidence and the circumstances here adequately
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support the inferences that the district court drew from them.
In particular, the court's specific determinations that
Cruz, age 44, "provided the impetus for the crime," "supplied the
product," and, in the bargain, exercised dominance over his 14-
year-old paramour in regard to the July 28 transaction, while not
unarguable, pass muster under the clearly erroneous standard. Cruz
had been enmeshed in trafficking with Mersky earlier. He owned La
Tambora, the locus around which the illicit activity pirouetted.
Moreover, Cruz was probably the "he" referred to by Vega as not
knowing that Mersky wanted a gun "too." The preponderance standard
obtains during the sentencing phase of a criminal case and the odds
are certainly better than even that Marquez, 14 years old and
pregnant, was acting at someone else's direction in serving as the
transporter in a multi-party drug transaction. We think that most
people would say that, as between Cruz and Vega, the strong
likelihood is that Marquez acted at the direction of her much older
boyfriend. Surely, a reasonable trier could conclude that this
deduction is more likely true than not. Thus, the district court's
appraisal that Cruz oversaw Marquez meets the preponderance test
because of its logical force and inherent probability.
Despite the lessened burden of proof "fair
preponderance" rather than "beyond reasonable doubt" and the
deferential standard of review which pertain here, we recognize
Even if Vega and Cruz jointly controlled Marquez, Cruz would
still be a manager under the guidelines. See USSG S3B1.1, comment.
(n.4).
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that whether Cruz might be deemed an organizer or manager is a
close question. Yet it would not profit us to dwell on the
inferences that the defendant would have us draw from the predicate
facts. While those inferences are rational and the scenario to
which they lead is possible, the trial judge eschewed them in favor
of different, equally permissible inferences, leading to a
different scenario a scenario that depicts the defendant as a
manager. In sentencing, as elsewhere in the law, when competing
inferences plausibly can be drawn from a set of facts, the
factfinder's choice between them cannot be clearly erroneous. See
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
We need go no further. In the circumstances at bar, the
determination of the defendant's role in the offense is fact-
specific, and the facts of record reasonably can be interpreted to
attribute managerial status, more likely than not, to him. That
ends the matter: close, factbound questions are grist for the
district court's mill, not for second-guessing by appellate judges
perusing a cold record.
Affirmed.
Bownes, Senior Circuit Judge. (dissenting). I dissent
from the en banc opinion because I continue to think that the
original panel opinion was correct.
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