United States v. Lopez-Lopez

United States Court of Appeals
For the First Circuit
_________________
No. 00-1646
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. LÓPEZ-LÓPEZ,
Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
____________________
Before

Selya and Lynch, Circuit Judges, and

Schwarzer,* Senior District Judge.
____________________

Laura Maldonado Rodriguez, with whom Efren Irrizarry Colón
was on brief, for appellant.
Matthew M. Collette, Appellate Staff Attorney, with whom
Robert D. McCallum, Jr., Assistant Attorney General, Guillermo Gil,
United States Attorney, and Douglas N. Letter, Appellate Staff
Attorney, were on brief for appellee.
____________________

July 18, 2002
____________________

*
The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California sitting by
designation.
 SCHWARZER, Senior District Judge. José A. López-López

pled guilty to two counts of delivering adulterated milk into

interstate commerce in violation of the Federal Food, Drug and

Cosmetic Act, 21 U.S.C. §§ 331(a), 333(a)2), and 18 U.S.C. § 2.

The district court sentenced him to eighteen months' imprisonment

followed by two years supervised release, and ordered him to pay a

$200 special assessment. We have jurisdiction of his appeal

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 3742(a), and affirm.

FACTUAL BACKGROUND

Defendant was a dairy farmer in Arecibo, Puerto Rico,
engaged in the commercial production of milk. On at least five
occasions over a seven-month period, defendant, together with
delivery truck drivers, participated in a scheme to add water and

salt to the milk produced at his farm. The adulterated milk was
then delivered to a processing plant. The water was added to
increase the amount of milk sold and salt was added to mask the

addition of water and avoid detection of the adulterated milk at
the processing plant. Defendant furnished the water and salt and
paid the truck drivers. Defendant and the truck drivers used
contaminated water and filthy hoses. The drivers transported the

milk to the processing plant's silos, where it became mixed with

other milk delivered to the plant and where it was processed for

distribution in Puerto Rico and the continental United States. As

a result of the scheme defendant was paid for the increased amount

of milk delivered. Had the adulteration been discovered, however,

it would have been considered worthless and been discarded. The

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addition of the adulterated milk to the contents of the silos,

moreover, created a clear health risk to consumers.

DISCUSSION

I. FAILURE TO CONTINUE THE SENTENCING HEARING

Defendant contends that he was denied due process because

the district court failed to continue the sentencing hearing, even

though the Presentence Report (PSR) and the addendum were not
timely delivered to counsel. Rule 32(b)(6)(A) of the Federal Rules

of Criminal Procedure requires the probation officer to furnish the

PSR to defendant not less than thirty-five days before the
sentencing hearing, unless defendant waives this minimum period;
there is no record of defendant having waived.1 Here, the PSR was
delivered approximately fourteen days before the hearing. Rule

32(b)(6)(B) requires that the parties within fourteen days after
receiving the PSR communicate any objections to each other in
writing.2 Here, the government submitted its objections to the PSR

approximately one week before the hearing, and it failed to deliver
a copy to defendant until the commencement of the hearing.

1
"Not less than 35 days before the sentencing hearing--unless
defendant waives this minimum period--the probation officer must
furnish the presentence report to the defendant, the defendant's
counsel, and the attorney for the Government." FED . R. CRIM . PRO .
32(b)(6)(A).
2
"Within 14 days after receiving the presentence report, the
parties shall communicate in writing to the probation officer, and
to each other, any objections to any material information,
sentencing classifications, sentencing guideline ranges, and policy
statements contained in or omitted from the presentence report."
FED. R. CRIM . PRO . 32(b)(6)(B).

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Finally, Rule 32(b)(6)(C) requires the probation officer to submit

the PSR with an addendum setting forth unresolved objections not

later than seven days before the hearing.3 Here, defendant did not
receive the addendum until four days before the hearing and appears

not to have received the government's objections to the PSR until

immediately before the hearing.
We ordinarily review the district court's failure to

continue the sentencing hearing for abuse of discretion. See

United States v. Marrero-Ortíz, 160 F.3d 768, 777 (1st Cir. 1998).

Defense counsel, after complaining about the late receipt of the

government's objection, did not claim surprise and voiced no

objection to the court's going forward with sentencing, much less

move for a continuance. See id. (stating that untimely receipt of
the addendum to the PSR although in violation of Rule 32(b)(6)(C)

is insufficient standing alone to establish undue surprise). To

the contrary, counsel acceded to the court's wish to proceed and
gave no indication of lack of preparation.

While we perceive no abuse of discretion in the court's

proceeding with the sentencing hearing in these circumstances, we

do not mean to minimize the importance of the time limits specified

in Rule 32 or turn a blind eye to the indifference to them shown by

the government and the probation officer in this case. Those time

3
"Not later than 7 days before the sentencing hearing, the
probation officer must submit the presentence report to the court,
together with an addendum. . . . At the same time, the probation
officer must furnish [copies] to the defendant, the defendant's
counsel, and the attorney for the Government." FED . R. CRIM . PRO .
32(b)(6)(C).

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limits are no mere technicalities; they are integral to the fair

and orderly process of imposing sentence. They are mandatory and

we expect compliance with them.
Defendant also contends that the failure to continue the

hearing and afford him more time to respond to the addendum

violated his due-process rights. Absent plain error, an issue not
presented to the district court cannot be raised for the first time

on appeal. United States v. Chaklader, 987 F.2d 75, 76 (1st Cir.

1993). Even if there were error in the proceedings, the error

claimed by defendant certainly did not "seriously affect[ ] the

fairness, integrity or public reputation of judicial proceedings."

United States v. Olano, 507 U.S. 725, 736 (1993)(internal

quotations omitted).
Defendant argues that had he timely received the

addendum, he would have been prepared at sentencing to discuss the

disagreement between the government and the probation officer
regarding the appropriate enhancement for his leadership role. In

its objections, the government argued for a four-level enhancement

for his role in the offense. Rejecting this argument, the addendum

stated that a four-level enhancement would be inappropriate because

there were only four participants, not five as required by

Sentencing Guideline § 3B1.1(a). U.S. SENTENCING GUIDELINES MANUAL

§ 3B1.1(A). At sentencing, as discussed below, the court applied

a four-level enhancement but it did so based not on the number of

participants but on defendant's "otherwise extensive" conduct, a

theory not addressed by the government or the addendum. Since the

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arguments in the addendum turned out to be irrelevant to the

court's application of the enhancement, defendant's failure to

receive it earlier did not adversely affect counsel's ability to
prepare. Hence, the delay did not affect the sentencing

proceeding's fairness, integrity or public reputation.

II. ENHANCEMENT FOR MORE THAN MINIMAL PLANNING PURSUANT TO
SENTENCING GUIDELINES § 2F1.1(b)(2)(a)

Defendant contends that the court erred in determining

that the offense involved more than minimal planning, resulting in
a two-level enhancement pursuant to Sentencing Guidelines

§ 2F1.1(b)(2)(a). We review for clear error. See United States v.

Chapman, 241 F.3d 57, 62 (1st Cir. 2001). "More than minimal

planning" exists "if significant affirmative steps were taken to

conceal the offense" or in "any case involving repeated acts over

a period of time, unless it is clear that each instance was purely

opportune." U.S. SENTENCING GUIDELINES MANUAL § 1B1.1, cmt. 1(f)

(1998).

The court found that defendant engaged in more than
minimal planning based on his affirmative steps to conceal the

offense. As defendant admitted, the sole purpose of adding the
salt was to conceal the milk adulteration. Moreover, defendant's
repeated acts, occurring over a period of seven months, cannot be

characterized as "purely opportune." Defendant had the salt ready

and had prefilled the milk vats with water in preparation for the

adulteration. See United States v. Rust, 976 F.2d 55, 57 (1st Cir.

1992) ("conduct is 'purely opportune' only if it is spur of the

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moment conduct, intended to take advantage of a sudden

opportunity"). His actions did not "occur unexpectedly" and

"without previous notice." Chapman, 241 F.3d at 62. We find no

clear error.

III. ENHANCEMENT FOR BEING A LEADER/ORGANIZER PURSUANT TO
SENTENCING GUIDELINES § 3B1.1(a)

Defendant contends that the court erred in imposing a

four-level enhancement for being "an organizer or leader of a

criminal activity . . . that was otherwise extensive" pursuant to

Guideline § 3B1.1(a). We review a role in the offense

determination for clear error. See United States v. Cadavid, 192

F.3d 230, 237 (1st Cir. 1999).
A court making a four-level role-in-the-offense

adjustment under Guideline § 3B1.1(a) must first determine whether
the defendant acted as an organizer/leader of a specific criminal
activity. If so, the court asks the separate question of whether

that criminal activity involved five or more participants or was

"otherwise extensive." United States v. D'Andrea, 107 F.3d 949,

957 (1st Cir. 1997).

In determining whether a defendant acted as organizer or
leader, the court considers, inter alia:

the exercise of decision making authority, the
nature of the participation in the commission
of the offense, . . . the degree of
participation in planning or organizing the
offense, [and] the nature and scope of the
illegal activity.

U.S. SENTENCING GUIDELINES MANUAL § 3B1.1, cmt. 4.

The district court's finding that defendant was "the owner of the

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farm and without his participation there can be no adulterated

milk" supports its determination that he was an organizer/leader of

the criminal activity.

In determining whether a criminal activity is "otherwise

extensive," the court considers the totality of the circumstances,

"including not only the number of participants, but also the width,

breadth, scope, complexity and duration of the scheme." United

States v. Dietz, 950 F.2d 50, 53 (1st Cir. 1991). Participants

include those who unknowingly participated in the activity. U.S.

SENTENCING GUIDELINES MANUAL § 3B1.1, CMT . 3; D'Andrea, 107 F.3d at 957.

The district court found that "the fraud . . . allowed [the]

unknowing services of many to be utilized in putting this milk in

the chain of commerce. . . . There were chemists, the employees,

the milk industry people, who relied on this and unknowingly gave

their services in order to put this milk in the chain of commerce."

The court did not clearly err in concluding that the activity was

"otherwise extensive."

We find no clear error in the court's application of the
enhancement.

IV. ALLOCUTION

Finally, defendant contends that the district court erred

when it announced its sentencing findings before giving him an
opportunity for allocution. Rule 32(c)(3)(C) requires the court,

before imposing sentence, to give the defendant an opportunity "to

make a statement and to present any information in mitigation of

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the sentence." FED . R. CRIM . P. 32(c)(3)(C). Here, after the court

announced its sentencing findings, government counsel advised the

court that it had not yet heard defendant's allocution. The court

immediately responded: "You are absolutely correct. I never heard

him. I have to backtrack here and ask him whether he has anything

to say. And if he does, I will consider it, even if I have to

change the sentence that I imposed." The defendant then made his

statement expressing remorse and the court, after hearing it,

eliminated the fine it had previously announced. "When a judge

announces a sentence before hearing an allocution, it is fair to
assume that such a sentence is tentative and that the judge will

consider the defendant's statement before imposing a sentence."

United States v. Burgos-Andujar, 275 F.3d 23, 30 (1st Cir. 2001).

Here, the facts validate that assumption. Where the record shows

that the sentencing judge has properly considered defendant's

allocution when imposing sentence, even if the judge had previously

announced a tentative sentence, Rule 32(c)(3)(C) is satisfied. Id.

Accordingly, we find no error.

Affirmed.

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