United States v. De Leon

February 22, 1995

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2191

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

AGUSTIN DE LEON RUIZ,

Defendant, Appellant.

No. 93-2192
UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ORLANDO RODRIGUEZ RODRIGUEZ,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court, issued on February 1, 1995, is
amended as follows:

On page 7, line 13: change "two-point" to "two-level".

On page 8, line 15: change "two-point" to "two-level".

On page 9, line 4: change "two-point" to "two-level".

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 93-2191

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

AGUSTIN DE LEON RUIZ,

Defendant, Appellant.

No. 93-2192
UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ORLANDO RODRIGUEZ RODRIGUEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boyle,* Senior District Judge.

*Of the District of Rhode Island, sitting by designation.

Carlos R. Noriega for appellant Agustin De Leon Ruiz.

Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant

United States Attorney, were on brief for the United States.
Luis F. Abreu Elias on brief for appellant Orlando Rodriguez

Rodriguez.
Jose A. Quiles Espinosa, Senior Litigation Counsel, Guillermo

Gil, United States Attorney, and Antonio R. Bazan, Assistant United

States Attorney, on brief for the United States.

February 1, 1995

BOUDIN, Circuit Judge. On August 26, 1992, appellants

Agustin De Leon Ruiz and Orlando Rodriguez Rodriguez, along

with three other individuals, were charged in a four-count

indictment concerning a May 1992 drug transaction.

Appellants were both indicted for possessing two kilograms of

cocaine with intent to distribute (count II), 21 U.S.C.

841(a)(1), and aiding and abetting the use of firearms

during the commission of a drug offense (count III), 18

U.S.C. 924(c)(1). De Leon was indicted for using a

communication facility to facilitate the commission of a

crime (count I), 21 U.S.C. 843(b), while Rodriguez was

indicted for possessing firearms with obliterated serial

numbers (count IV), 18 U.S.C. 922(k).

After a five-day jury trial, De Leon was convicted on

the communication and drug charges (counts I and II) but

acquitted on the firearms charge (count III). Rodriguez was

convicted on the drug charge (count II) but acquitted on both

of the firearms counts with which he was charged (counts III

and IV). Following a sentencing hearing, De Leon and

Rodriguez were sentenced to 78 and 87 months, respectively.

On appeal, Rodriguez challenges both his conviction and

sentence, while De Leon challenges only his sentence.

1. The evidence adduced at trial, taken in the light

most favorable to the verdict, United States v. Torres-

Maldonado, 14 F.3d 95, 100 (1st Cir.), cert. denied, 115 S.

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Ct. 193 (1994), is as follows. On May 5, 1992, Pablo Rivera,

an undercover DEA agent, set up a drug buy through a

confidential informant for two kilograms of cocaine. The

informant spoke with De Leon on the telephone on five

different occasions that day to negotiate the transaction;

these conversations were all recorded and the recordings

played at trial. In those conversations the price for each

kilogram was set at $18,000. Through De Leon's drug

connections--two individuals named Lebron and De Jesus--

Rodriguez was contacted to supply the cocaine. Lebron and De

Jesus both testified for the government at trial pursuant to

a plea agreement. According to their testimony, the drug buy

was scheduled to take place in the parking lot of a local

supermarket on the evening of May 5, 1992. On that day,

around 5:00 p.m., De Jesus telephoned Rodriguez to inquire

about obtaining the two kilograms of cocaine; Rodriguez told

De Jesus to come to his family's restaurant, El Muelles, to

discuss the matter.

De Jesus met with Rodriguez at the restaurant, and

Rodriguez told De Jesus that he had the drugs in the amount

De Jesus needed. Rodriguez instructed De Jesus to meet him

at 7:00 p.m. at De Jesus' apartment in the El Coto public

housing project. De Jesus then returned to his apartment,

and Lebron and De Leon arrived soon after. On De Jesus'

instruction, Lebron and De Leon went to the supermarket

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around 6:45 p.m. to check out the prospective buyer, whom

they did not know. After speaking with Agent Rivera and the

confidential informant, and seeing the money, Lebron and De

Leon returned to De Jesus' apartment. Rodriguez and his

brother, Carlos, arrived at the apartment shortly thereafter,

sometime around 7:00 p.m. All five then left for the

supermarket.

Lebron drove to the supermarket in a Honda CRX with De

Leon; Rodriguez drove a beige Oldsmobile, accompanied by his

brother and De Jesus. At the supermarket, Lebron parked the

Honda next to Agent Rivera's car; Rodriguez parked the

Oldsmobile behind and perpendicular to the Honda, about

fifteen feet from where Agent Rivera was standing. From his

vantage Agent Rivera was able to view the driver of the

Oldsmobile, whom he later identified at trial as Rodriguez.

From a plastic bag located on the front seat of the car,

Rodriguez removed one kilogram of cocaine. He gave the

plastic bag with the remaining kilogram to De Jesus and told

him to take just one because the situation looked "nebulous."

De Jesus exited with the kilogram of cocaine, and Rodriguez

then drove the Oldsmobile slowly across the parking lot. De

Jesus approached Agent Rivera, who was standing near his car

with De Leon and Lebron, and handed him the drugs. After

protesting that the deal was for two kilogram, Agent Rivera

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raised the trunk of his car as if to stash the drugs but

actually signalling the arrest.

Police immediately converged on the scene. Agent Rivera

observed Lebron reach for his waist, subdued him and

recovered a gun tucked in his belt; De Jesus was also found

to have a gun in his belt. Meanwhile, De Leon sought to run

away and was caught by DEA agents after a brief chase.

Rodriguez escaped in the Oldsmobile, but turned himself in a

few days later when he learned that a warrant for his arrest

had been issued.

In challenging the sufficiency of the evidence,

Rodriguez assumes that the only evidence supporting the

jury's verdict is Agent Rivera's identification testimony

that he observed Rodriguez driving the beige Oldsmobile.

Given the unfavorable conditions under which Agent Rivera

viewed the driver--e.g, night, moving car, tense situation--

Rodriguez argues that Agent Rivera's identification is

unreliable and thus insufficient. In fact, Lebron and De

Jesus testified extensively about Rodriguez' involvement in

the transaction and identified him as the source of the

cocaine.

Rodriguez apparently believes that because the jury

acquitted him on the two gun counts, it must have rejected in

toto the testimony of Lebron and De Jesus; both had testified

unequivocally that Rodriguez had given them the guns used in

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the drug buy. But the jury is free to believe some portions

of a witness' testimony and not others. Here, the testimony

of Lebron and De Jesus connecting Rodriguez to the guns was

relatively brief while their testimony connecting Rodriguez

to the drugs was extensive, detailed and uniform.

Alternatively, the jury may very well have believed the

testimony that Rodriguez provided the guns, but nevertheless

concluded that the government had failed to prove all the

elements of the specific firearm offenses. Count III

required proof that a firearm was used during and in relation

to a drug transaction; here the jury may (wrongly) have

thought it mattered that Rodriguez was not carrying the

firearms at the scene or that they were not drawn or fired.

Count IV required proof that Rodriguez knew that the serial

numbers of the weapons were obliterated. United States v.

Haynes, 16 F.3d 29, 33-34 (2d Cir. 1994).

Rodriguez also asserts that the district court erred at

sentencing in giving him a two-level enhancement under

U.S.S.G. 2D1.1(b)(1) for possession of a dangerous weapon

during a drug transaction. He contends that his acquittal on

the two gun charges precludes a finding that he "possessed" a

gun in connection with the drug offense. He is mistaken.

We have previously held that because of the difference

in burden of proof, an acquittal on a charge of using a

firearm in connection with a drug transaction does not

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foreclose a sentencing enhancement for possession of a gun

during a drug transaction. United States v. Pineda, 981 F.2d

569, 574 (1st Cir. 1992). In addition, the sentencing

enhancement requires only that it have been reasonably

foreseeable that an accomplice would possess a gun, since

under the guidelines a defendant is accountable for

reasonably foreseeable conduct undertaken by others to

advance their joint criminal venture. U.S.S.G.

1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 911-

14 (1st Cir. 1991).

Here, there was direct testimony that Rodriguez gave

Lebron one of the weapons, telling Lebron to watch De Jesus'

back, and that he gave De Jesus a gun as well. Further, we

have held that the nature of a large-scale drug transaction

permits the sentencing court to infer that an accomplice's

possession of a gun was reasonably foreseeable to the

defendant. United States v. Sostre, 967 F.2d 728, 731-32

(1st Cir. 1992); Bianco, 922 F.2d at 912. The district court

drew the inference explicitly, citing to both Bianco and

Sostre.

2. De Leon challenges the district court's failure to

award him a two-level reduction for acceptance of

responsibility under U.S.S.G. 3E1.1(a). Before trial, De

Leon offered to plead guilty to the drug charges (counts I

and II) but refused to plead guilty to the firearms charge

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against him (count III); De Leon steadfastly denied knowledge

of the guns. The government was unwilling to dismiss the

firearms charge, based on a Department of Justice policy

called "Project Triggerlock" requiring full prosecution of

all gun offenses. At trial, the jury convicted De Leon on

the drug transaction charges, but acquitted him on the

firearms offense.

Because the jury vindicated him on the firearms charge,

and because he had previously been willing to plead guilty to

the criminal charges on which the jury found him guilty, De

Leon argues that he should have received a two-level

reduction in his base offense level. At sentencing, the

government argued that De Leon could have pled guilty to the

drug charges and contested only the gun charge at trial;

since he chose to go forward to trial on the drug charges,

says the government, no reduction is warranted.1 At

sentencing, the district court denied the adjustment without

explaining its reasons.

A sentencing court has very wide latitude in determining

whether to grant this adjustment, United States v. Tabares,

951 F.2d 405, 411 (1st Cir. 1991), and a finding on this

1At oral argument in this case, the government set forth
a number of other reasons why the denial of the departure was
proper. We will not consider these claims, because claims
raised for the first time at oral argument are not properly
preserved. United States v. Nueva, 979 F.2d 880, 885 n.8

(1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).

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issue is normally set aside only if it was clearly erroneous.

United States v. Munoz, 36 F.3d 1229, 1236 (1st Cir. 1994),

petition for cert. filed, Jan. 10, 1995 (No. 94-7606).

Still, a grant or denial of the reduction may raise issues

that involve a legal interpretation of the guidelines. Here,

since the sentencing court did not set forth its reasons for

denying the reduction, we will assume arguendo that it did

so, as De Leon posits, because De Leon went to trial on the

drug charges.

The reduction for acceptance of responsibility serves

two distinct purposes: to recognize a defendant's sincere

remorse and to reward a defendant for saving the government

from the trouble and expense of going to trial. See U.S.S.G.

3E1.1 comment. (n.2). According to the guideline

commentary, the reduction is ordinarily not available to a

defendant who has put the government to its proof, however

remorseful he or she might later be. Id. See United States

v. Bennett, 37 F.3d 687, 696-98 (1st Cir. 1994); Munoz, 36

F.3d at 1236. The commentary describes as "rare" a case in

which a defendant can go to trial and still receive a

reduction; the example it gives is a defendant who goes to

trial to preserve issues unrelated to factual guilt, e.g., to

mount a constitutional challenge to the statute. U.S.S.G.

3E1.1 comment. (n.2).

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In this case, De Leon did not refuse to plead to the

drug counts in order to preserve a legal challenge to the

statute but because the government would not dismiss the

firearms count in exchange. De Leon retained the option to

plead guilty to the former and to contest the latter, Pineda,

981 F.2d at 576; instead, he chose to roll the dice in the

hope that he would be acquitted on all counts. This was his

choice, but the fact remains that he could have pleaded to

counts I and II, preserved his defense on count III, and

spared the government the necessity of proving his guilt at

trial on the drug counts.

De Leon complains that, had he pled guilty to the drug

charges, the jury would have wondered why he was not charged

with a drug offense like his codefendant and might have held

it against him. Speculation would not have been necessary:

De Leon's plea of guilty on the drug counts would have been

admissible at trial as an admission that De Leon was involved

in the drug transaction. United States v. Haddad, 10 F.3d

1252, 1258 (7th Cir. 1993). See also United States v.

Williams, 900 F.2d 823, 825 (5th Cir. 1990) (Rule 404(b)

inapplicable). Even so De Leon would have remained free to

contest the firearms charge.

Thus, even assuming that the district court gave great

weight to De Leon's refusal to plead to the drug counts, we

see no error. On the contrary, absent unusual facts, we

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will--as the guideline commentary instructs--generally

sustain a district court that denies acceptance of

responsibility to a defendant who declined to plead guilty on

the count or counts of which he was convicted. See generally

Bennett, 37 F.3d at 696-97. The example of a constitutional

challenge, given by the guideline commentary as an exception,

does not purport to be an exhaustive list of exceptions. Id.

at 698 n.16. But it is quite another matter to hold that a

district court exceeds its authority when in the ordinary

case it refuses such a reduction to a defendant who has

refused to plead.

A few circuits may arguably be more ready to reverse

district courts who refuse such reductions. However, the

cases often involve aggravating circumstances not present

here: in United States v. Rodriguez, 975 F.2d 999 (3d Cir.

1992), the government withdrew its agreement to the

defendant's plea bargain because a co-defendant declined to

plead; in United States v. McKinney, 15 F.3d 849 (9th Cir.

1994), the court believed that the defendant would have pled

guilty if the district court had provided a fair opportunity.

No such circumstances appear in the present case.

The guideline admittedly imposes a tough choice on a

defendant like De Leon, cf. United States v. Mezzanatto, 63

U.S.L.W. 4060, 4064 (U.S. Jan. 18, 1995); but it is not

unconstitutional, Munoz, 36 F.3d at 1237, and the policy

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determination that underlies the guideline has been entrusted

to others. Because the guideline serves two different

purposes, differences will remain among judges who apply the

guideline, depending on which purpose is emphasized in a

given case. We are satisfied that the district court was not

obliged in this case to order a reduction and that nothing so

unusual was urged by De Leon as to require an explanation

from the district court.

Affirmed.

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