United States v. De-La-Cruz-Gutierrez

United States Court of Appeals
For the First Circuit

No. 16-2350

UNITED STATES OF AMERICA,

Appellee,

v.

ADOLFO DE LA CRUZ-GUTIÉRREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

George F. Gormley, Stephen Super and George F. Gormley, P.C.,
on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.

January 31, 2018
 TORRUELLA, Circuit Judge. Defendant-appellant Adolfo

De la Cruz-Gutiérrez ("De la Cruz") pled guilty to possession with

intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and importation

of five kilograms or more of cocaine into the United States, in

violation of 21 U.S.C. §§ 952(a), 960(a)(1) and (b)(1)(B). The

district court sentenced him to a 120-month term of imprisonment,

in the middle of his United States Sentencing Guidelines

("U.S.S.G." or "Guidelines") imprisonment range. De la Cruz now

appeals, challenging the district court's denial of a mitigating

role adjustment under U.S.S.G. § 3B1.2, and the substantive

reasonableness of his sentence. After careful consideration, we

affirm.

I. Factual Background

Because De la Cruz pled guilty, our discussion of the

relevant facts draws from the change-of-plea colloquy, the

unchallenged portions of the Presentence Investigation Report

("PSR"), and the transcript of the sentencing hearing. See United

States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).

On January 7, 2016, Border Patrol agents responded to

information they had received regarding drug-smuggling activity at

a beach in Isabela, Puerto Rico. There, the agents discovered an

abandoned twenty-two-foot fiberglass vessel with a single sixty

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horsepower outboard motor. In close proximity to the vessel, the

agents observed De la Cruz, a Venezuelan national and resident of

the Dominican Republic, who had worked for several years as a

fisherman, attempting to flee the scene. The agents detained De

la Cruz and searched the backpack he was carrying, which revealed

two cell phones, a global positioning system ("GPS"), and cocaine.

Agents from several law enforcement agencies searched the beach

and found five bales of cocaine hidden in the nearby brush,

weighing 153.78 kilograms in total. Its estimated value was

$10,848,859.74. During a post-arrest interview, De la Cruz

admitted that he traveled from the Dominican Republic to Puerto

Rico to smuggle the cocaine. According to De la Cruz, he traveled

with two other individuals (one of them known as "Tin"),1 all three

individuals took turns navigating the vessel,2 and he was offered

$20,000 for his role in the trip.

1 The two individuals allegedly traveling with De la Cruz were
not apprehended. De la Cruz told law enforcement that both of
them drowned during the trip from the Dominican Republic to Puerto
Rico. The record is devoid of any evidence corroborating De la
Cruz's statement.
2 In this interview, De la Cruz stated that he had been hired as
a captain. When faced with the possibility of receiving a two-
level sentencing enhancement for his role as a captain under
U.S.S.G. § 2D1.1(b)(3)(C), De la Cruz recanted his prior statement
and, instead, claimed that Tin was the captain, and that he had
recruited De la Cruz "to engage in any task required of him."

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 De la Cruz was indicted on January 13, 2016, for

possession with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and

importation of five kilograms or more of cocaine into the United

States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and

(b)(1)(B). De la Cruz pled guilty to both counts of the indictment.

After a series of procedural events -- including the issuance of

a PSR, De la Cruz's objections to some aspects of the PSR, the

issuance of an amended PSR and an addendum to the PSR, as well as

De la Cruz's filing a sentencing memorandum3 -- De la Cruz filed a

motion requesting that the district court grant him a three-level

reduction for his role in the offense.4 In his motion, De la Cruz

alleged that he was entitled to a three-level reduction under

U.S.S.G. § 3B1.2 -- as opposed to the two-level reduction the

probation officer had proposed in the amended PSR -- because his

participation in the criminal activity was less than that of a

minor participant (although not minimal). The government

responded that it would defer to the court's discretion because,

"based on the totality of the evidence collected at the scene and

3 Because, in general, these issues are not relevant to the
present appeal, we do not delve into them.
4 De la Cruz's motion included another issue not relevant to this
appeal.

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the post arrest statements of [De la Cruz, it did] not have enough

information to determine if [De la Cruz] was a minor participant

in the smuggling venture." On October 6, 2016, the district court

denied De la Cruz's motion as to the mitigating role adjustment.

The court determined that De la Cruz was not even eligible for the

two-level minor role reduction that the probation officer had

recommended. In essence, the district court concluded that the

record before it contained "no factual basis to justify classifying

[De la Cruz] as a minor participant versus the participation of

the other two persons who he claims accompanied him in the

smuggling venture." To the contrary, according to the court, the

record reflected that all three participants, including De la Cruz,

were no "ordinary mules but, rather, persons of trust within the

organization."

The sentencing hearing took place on October 13, 2016.

There, De la Cruz renewed his request for a mitigating role

adjustment. After the district court stated that it would not

award the adjustment, De la Cruz argued for a downwardly variant

sentence "to what would have been [his] sentence had the Court

granted the role adjustment." The district court then calculated

De la Cruz's Guidelines sentencing range ("GSR"). It determined

that De la Cruz's base offense level was thirty-six under U.S.S.G.

§ 2D1.1(c)(2) because the offense involved "the possession and

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importation of at least 150 kilograms but less than 450 kilograms

of cocaine." The court granted a two-level reduction because De

la Cruz complied with the provisions in 18 U.S.C. §§ 3553(f)(1)-(5)

and U.S.S.G. §§ 5C1.2(a)(1)-(5) (the safety valve). Finally, it

granted a three-level reduction pursuant to U.S.S.G. §§ 3E1.1(a)

and (b) due to De la Cruz's acceptance of responsibility, resulting

in a total offense level of thirty-one. This, in conjunction with

De la Cruz's criminal history category of I, yielded a GSR of 108

to 135 months of imprisonment.

The court then addressed De la Cruz's request for a

variant sentence. In so doing, it considered the 18 U.S.C.

§ 3553(a) sentencing factors, emphasizing De la Cruz's personal

history and characteristics, including his status as a first

offender, and the nature of the offense. Ultimately, the court

denied De la Cruz's request for a downwardly variant sentence and

sentenced De la Cruz to 120 months of imprisonment, in the middle

of the GSR. This timely appeal followed.

II. Discussion

A. Procedural Reasonableness of De la Cruz's Sentence

We review preserved challenges to the reasonableness of

a sentence "under a deferential abuse-of-discretion standard."

United States v. Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). Under this

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deferential standard, "we first determine whether the sentence

imposed is procedurally reasonable and then determine whether it

is substantively reasonable." United States v. Coleman, 854 F.3d

81, 84 (1st Cir. 2017) (quoting United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011)). Procedural errors include: "failing

to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines

range." United States v. Reyes-Rivera, 812 F.3d 79, 86 (1st Cir.

2016) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008)). In the course of determining whether the district court

committed procedural error, "we afford de novo review to the

sentencing court's interpretation and application of the

sentencing guidelines, assay the court's factfinding for clear

error, and evaluate its judgment calls for abuse of discretion."

United States v. González-Rodríguez, 859 F.3d 134, 137 (1st Cir.

2017) (quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir. 2015)).

De la Cruz argues that, by failing to grant him a minor

role reduction, the district court improperly calculated his GSR

and, thus, his sentence is procedurally unreasonable. De la Cruz

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now presses for a two-level minor role reduction, instead of the

three-level reduction he requested below.

The Guidelines allow a court to award a two-level

reduction to a defendant who was a minor participant in the

criminal activity in question.5 U.S.S.G. § 3B1.2. In the past,

we have required a defendant seeking a minor role reduction to

prove by a preponderance of the evidence that he was "both less

culpable than his cohorts in the particular criminal endeavor and

less culpable than the majority of those within the universe of

persons participating in similar crimes." United States v.

Trinidad-Acosta, 773 F.3d 298, 315-16 (1st Cir. 2014) (quoting

United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004)).

Effective November 1, 2015, Amendment 794 to the Guidelines adopted

a more lenient approach, then-followed by the Seventh and Ninth

Circuits. Per that amendment, "when determining mitigating role,

the defendant is to be compared with other participants 'in the

criminal activity'" and not with the typical offender. U.S.S.G.

App. C Supp., Amend. 794 (effective Nov. 1, 2015). Although De

5 The Guidelines also provide for a four-level reduction to a
defendant whose participation in the criminal activity was
minimal, and a three-level reduction if the defendant's
participation was between minor and minimal. See U.S.S.G.
§ 3B1.2.

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la Cruz embraced the two-part test in his opening brief, his

challenge fails even under Amendment 794's more lenient standard.

Because determining one's role in an offense is a fact-

specific inquiry, "we rarely reverse a district court's decision

regarding whether to apply a minor role adjustment."

United States v. Bravo, 489 F.3d 1, 11 (1st Cir. 2007) (citing

United States v. Tom, 330 F.3d 83, 95 (1st Cir. 2003)); see also

United States v. Pérez, 819 F.3d 541, 546 (1st Cir. 2016)

("[B]attles over a defendant's status . . . will almost always be

won or lost in the district court." (second alteration in original)

(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.

1995))). A defendant will "only prevail on appeal by demonstrating

that the district court's determination as to his role in the

offense was clearly erroneous." United States v. González-

Soberal, 109 F.3d 64, 74 (1st Cir. 1997) (quoting United States v.

López-Gil, 965 F.2d 1124, 1131 (1st Cir. 1992)). De la Cruz cannot

meet that burden.

De la Cruz alleges that the district court's denial of

a mitigating role adjustment was clearly erroneous because,

although "[h]e played a role," it was "not one that made him any

more valuable or essential -- or culpable -- than any other

crewmember." De la Cruz further argues that the district court's

decision not to impose a sentencing enhancement for "captain" under

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U.S.S.G. § 2D1.1(b)(3)(C) "was an acknowledgement that even if

[he] operated the boat[,] he was clearly not in charge." Because

he was not in charge, his argument goes, someone else (he claims

it was Tin) was more culpable than him and thus it was clearly

erroneous for the district court to deny him a mitigating role

adjustment.

De la Cruz's argument fails for several reasons. First,

De la Cruz seems to believe that he is entitled to a minor role

reduction as long as he was not a more culpable participant. Yet,

this is simply not the standard. To be entitled to the role

reduction, De la Cruz had to prove that he was less culpable than

his cohorts. Merely not being more culpable than his cohorts

falls short of meeting the standard. See Bravo, 489 F.3d at 11

(affirming denial of role reduction where, despite being

crewmembers and not the captain, defendants failed to demonstrate

that any of them were less culpable than the other crewmembers).

De la Cruz's concession before the district court that "[a] third

individual also performed a role substantially similar to [De la

Cruz]" makes evident that he did not meet his burden and thus

defeats his claim. Second, assuming as true that someone else,

and not De la Cruz, was the captain of the vessel, it does not

necessarily follow that De la Cruz and the captain were not "equal

partners in the criminal activity." See Pérez, 819 F.3d at 545-46

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(holding that the fact that Pérez's co-defendant "was deemed the

'captain' of the craft does not undermine the sentencing court's

finding that they were equal partners in the criminal activity"

(citing Bravo, 489 F.3d at 11)). Third, the fact that someone

else might have been more culpable than De la Cruz does not

necessarily mean that De la Cruz's participation was minor. See

United States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011)

("The fact that some other accomplice may be more culpable than

the defendant does not necessarily mean that the defendant's role

in the offense is minor."); see also United States v. Meléndez-

Rivera, 782 F.3d 26, 29 (1st Cir. 2015) (noting that "a defendant

need not be the key figure in a conspiracy in order to be denied

[a role reduction]").

Likewise, De la Cruz's comparison of his role in the

criminal activity to that of a "'mule'-- who does little more than

knowingly transport drugs during one leg of the trip," leads him

nowhere. The district court expressly rejected this

characterization as an ordinary mule and De la Cruz has failed to

show that this determination was clearly erroneous. Based on the

record before it -- including De la Cruz's participation in a

multimillion dollar smuggling venture involving bringing more than

$10,000,000-worth of cocaine aboard a small vessel with a single

outboard motor for a hazardous voyage at sea -- the district court

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reasonably inferred that De la Cruz was no "Johnny-come-late[ly]"

or an ordinary mule, but rather that he, as well as his cohorts,

were "persons of trust within the organization." Although De la

Cruz does not agree with the inferences the district court drew,

and provides alternate explanations, where, as here, the record

supports at least two permissible inferences, "the sentencing

court's choice among supportable alternatives cannot be clearly

erroneous." Pérez, 819 F.3d at 546 (finding no clear error in the

district court's denial of a mitigating role adjustment where the

district court "mentioned the large quantity of drugs, the trust

that the drug owners obviously placed in the appellant, and the

appellant's expertise in 'how to handle the boat'"); United States

v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009) (noting that the "large

quantity of drugs hauled by the appellant . . . was a relevant

datum in assessing [the defendant's] role in the conspiracy").

Furthermore, De la Cruz's attempt to minimize his role is

undermined by his concession that "[a]ll three participants took

turns 'navigating'" the vessel, that they all "look[ed] at the

GPS" and partook in steering the vessel, and "that one or both of

the other participants took a turn steering" the vessel when De la

Cruz became tired.

In any event, even if De la Cruz had been an ordinary

mule, our precedent is clear that merely being a courier does not

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automatically entitle a defendant to a mitigating role adjustment.

See Vargas, 560 F.3d at 51 (noting that couriers are not

automatically entitled to mitigating role adjustments, that

"[s]ome couriers are more central to the plot than others," and

that "[a] defendant who participates in only one phase of a

conspiracy may nonetheless be found to play a non-minor role");

United States v. De La Cruz, 249 F. App'x 833, 835 (1st Cir. 2007)

(upholding denial of minor role reduction where defendant's role

"was limited 'to aid[ing] in the transportation of drugs from one

point to the other'" (alteration in original)); González-Soberal,

109 F.3d at 73 (noting that couriers are not automatically entitled

to a reduction).

In light of the above, we conclude that the district

court's denial of a mitigating role adjustment was not clearly

erroneous.

B. Substantive Reasonableness of De la Cruz's Sentence

In his other claim of error, De la Cruz challenges the

substantive reasonableness of his sentence. Although De la Cruz

did not preserve this claim below, because the standard of review

for unpreserved challenges to the substantive reasonableness of a

sentence is murky, we assume -- favorably to him -- that our review

is for abuse of discretion. See Ruiz-Huertas, 792 F.3d at 228.

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 A sentence is substantively reasonable if it rests on "a

plausible sentencing rationale and a defensible result." Martin,

520 F.3d at 96. Successfully challenging the substantive

reasonableness of a sentence is a heavy burden that "grows even

heavier where, as here, the sentence falls within a properly

calculated GSR." United States v. Cortés-Medina, 819 F.3d 566,

572 (1st Cir. 2016) (citing Clogston, 662 F.3d at 592-93); see also

United States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017)

(noting that within-the-Guidelines sentences "deserve[] 'a

presumption of reasonableness'" (quoting Cortés-Medina, 819 F.3d

at 572)). De la Cruz has failed to carry his heavy burden.

De la Cruz concedes that he was awarded safety valve

relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, and that

the district court appropriately considered this when calculating

his GSR, resulting in a lower applicable GSR. He claims, however,

that by sentencing him to 120 months of imprisonment, which would

have been his statutory minimum term had he not qualified for

safety valve relief, the district court "arbitrarily nullified"

the "benefit" of the safety valve and imposed a substantively

unreasonable sentence.

The safety valve provision of 18 U.S.C. § 3553(f)

requires a court to disregard an applicable mandatory sentence if

the court finds at sentencing that the defendant meets the five

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specified criteria, none of which are at issue here. See 18 U.S.C.

§§ 3553(f)(1)-(5). Its purpose is to "'mitigate the harsh effect

of mandatory minimum sentences' on first-time, low-level offenders

in drug trafficking schemes." United States v. Padilla-Colón,

578 F.3d 23, 30 (1st Cir. 2009) (quoting United States v.

Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)). In addition,

the Guidelines provide for a two-level reduction in the offense

level of a defendant that qualifies for safety valve relief. See

U.S.S.G. §§ 2D1.1 and 5C1.2.

De la Cruz's contention that the district court

disregarded the safety valve relief and imposed the statutory

minimum sentence is belied by the record. Here, the district

court explicitly found at sentencing that De la Cruz qualified for

safety valve relief under 18 U.S.C. § 3553(f), and applied a

two-level reduction to the GSR calculation, which lowered De la

Cruz's GSR to 108 to 135 months of imprisonment.6 The record

reflects that the district court did not consider itself

constrained by the statutory minimum of 120 months of imprisonment.

On the contrary, it was aware that it could impose a guideline or

variant sentence. In fact, the district court considered De la

Cruz's request for a variant sentence, but ultimately denied it.

6 Had the safety valve relief not applied, De la Cruz's GSR would
have been 135 to 168 months of imprisonment.

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The record clearly shows that, in determining De la Cruz's

sentence, the district court considered all the § 3553(a)

sentencing factors and concluded, based on these factors, that a

mid-range sentence was warranted. That the mid-range sentence

turned out to coincide with what would have been the minimum

sentence had the safety-valve relief not applied is

inconsequential in light of the entire record, which lacks a single

reference (explicit or implicit) indicating that the district

court considered itself bound by, or that it relied on, a mandatory

minimum sentence.

De la Cruz does not dispute that, in determining his

sentence, the district court considered all the factors listed in

18 U.S.C. § 3553(a). See Clogston, 662 F.3d at 592 (noting that

where, as here, the district court states that it has considered

all of the § 3553(a) factors, "[s]uch a statement 'is entitled to

some weight'" (quoting United States v. Dávila-González, 595 F.3d

42, 49 (1st Cir. 2010))). He argues, however, that even though

the district court emphasized some of the sentencing factors --

such as the nature and characteristics of the offense and his

personal history and characteristics -- it "had no intention of

allowing" De la Cruz's personal characteristics to "impact the

sentence" and, instead, focused primarily on the nature of the

offense (including the amount of drugs involved, worth over

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$10,000,000). De la Cruz's argument thus goes to how the district

court weighed the sentencing factors. And we have repeatedly held

that "[a] criminal defendant is entitled to a weighing of the

section 3553(a) factors that are relevant to his case, not to a

particular result." Dávila-González, 595 F.3d at 49 (alteration

omitted) (quoting United States v. Carrasco-De-Jesús, 589 F.3d 22,

29 (1st Cir. 2009)). Nor is the sentence unreasonable because the

district court elaborated upon some factors more than others,

especially where, as here, it imposed a within-the-range sentence.

See United States v. Murphy-Cordero, 715 F.3d 398, 402 (1st Cir.

2013) ("[A] within-the-range sentence typically requires a less

elaborate explanation than a variant sentence.").

Lastly, De la Cruz compares his case to United States v.

Torres-Rivera, 661 F. App'x 727 (1st Cir. 2016), in what seems to

be an attempt to argue sentencing disparity. In Torres-Rivera,

the defendant was also convicted of a drug offense and qualified

for safety-valve relief. Id. at 728-29. De la Cruz notes that

Torres-Rivera was also sentenced to 120 months of imprisonment,

and appears to argue that receiving the same sentence as Torres-

Rivera was unreasonable because, unlike Torres-Rivera, he "had no

managerial duties," he "was involved in one incident only," and he

"had no duties regarding the money [that others] . . . expected to

glean from selling the cocaine." But De la Cruz's argument is

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inapposite. De la Cruz is not similarly situated to Torres-

Rivera, whose GSR was 87 to 108 months of imprisonment, id. at

729, lower than De la Cruz's. By sentencing Torres-Rivera to 120

months, id., the district court upwardly departed from the

Guidelines and thus treated Torres-Rivera more harshly in relation

to his GSR than De la Cruz, who received a mid-range sentence.

See United States v. Bedini, 861 F.3d 10, 21 (1st Cir. 2017)

(noting that "'[a] well-founded claim of disparity' must compare

'apples . . . to apples'" (alterations in original) (quoting

United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005))).

Because we find that Appellant's mid-range sentence was

within the universe of reasonable and defensible sentences,

United States v. Torres-Landrúa, 783 F.3d 58, 69 (1st Cir. 2015),

we reject De la Cruz's substantive reasonableness challenge.

III. Conclusion

In sum, the district court did not clearly err in denying

De la Cruz a minor role adjustment, and his sentence was

substantively reasonable. We thus affirm his sentence.

Affirmed.

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