United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 92-1233
UNITED STATES,
Appellee,
v.
ALFONSO MENA-ROBLES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
No. 92-1299
UNITED STATES,
Appellee,
v.
MIGUEL TORRES-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges and
Burns, * District Judge.
Olga M. Shepard for appellant Mena-Robles.
Julio C. Codias for appellant Torres-Rivera.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
Daniel F. Lopez-Romo, United States Attorney and Edwin O. Vazquez,
Assistant United States Attorney, were on brief for appellant.
September 28, 1993
*Of the District of Oregon, sitting by designation
STAHL, Circuit Judge. After a jury convicted
appellants Miguel Torres Rivera ("Torres Rivera") and Alfonso
Mena Robles ("Mena Robles") of conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C.
846, they were sentenced to terms of imprisonment of 200
months and 170 months, respectively. On appeal, both
defendants claim that the district court erroneously denied
their motions for acquittal made under Fed. R. Crim. P. 29,
and that their sentences contravened the Sentencing
Guidelines. Finding no reversible error, we affirm the
convictions and sentences.
I.
I.
Factual Background
Factual Background
We recount the relevant evidence in the light most
favorable to the prosecution. United States v. Alvarez, 987
F.2d 77, 79 (1st Cir. 1993), petition for cert. filed,
U.S.L.W. (U.S. June 9, 1993) (No. 92-9080). The arrest
and indictment of appellants and their 11 original co-
defendants was the culmination of a reverse sting operation
conducted by the Puerto Rico Department of Justice ("PRDOJ")
and the United States Drug Enforcement Administration
("DEA"). The law enforcement agents posed as large-scale
cocaine dealers. Their goal was to apprehend genuine drug
traffickers by arranging a "sale" of a sizable quantity of
cocaine. Toward that end, PRDOJ Agent Eric Munoz ("Munoz"),
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posing as a cocaine supplier, held several meetings with
potential purchasers interested in setting up a deal. On
March 22, 1990, Munoz met with Carlos Kortwright Perez
("Carlos Kortwright"), his wife, Damaris Camacho Valcarcel
("Damaris Camacho"), his mother, Frances Perez Corujo
("Frances Perez"), and Samuel Solis Sierra, and began
negotiations for Kortwright's purchase of 50 kilograms of
cocaine at a price of $16,000 per kilogram. Further
negotiations took place on April 1, 1990, at which time an
agreement was reached to consummate the deal in mid-May.
After several phone conversations, Munoz met on April 25,
1990, with Carlos Kortwright, Damaris Camacho, and her
brother, Miguel Camacho Valcarcel ("Miguel Camacho"). Munoz
told Miguel Camacho that the deal could take place in
approximately two weeks.
After further telephone conversations between Munoz
and the potential buyers, Munoz met again with Carlos
Kortwright and Damaris Camacho on May 6, 1990. They
discussed more details of the deal, with Munoz reporting that
the ship carrying the cocaine to Puerto Rico was already at
sea. On May 10, 1990, Damaris Camacho called Munoz and
informed him that the money needed for the drug sale had been
gathered. For closing the deal, two rooms at the Cerromar
Hotel in Dorado Beach, Puerto Rico, had been rented. The
plan was for the sale to take place in one room, while police
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would undertake surveillance from the other. After preparing
the rooms, Munoz phoned Carlos Kortwright and told him he was
ready. Two hours later, Carlos Kortwright and Frances Perez
arrived at the hotel. After hours of phone calls between and
among Munoz, Carlos Kortwright, his brother, Jose, and Samuel
Solis Sierra, it became apparent that the money was not, in
fact, ready.
Finally, the deal was called off, with Munoz
telling Carlos Kortwright that the cocaine had been sold to
other, more ready, purchasers. He did, however, report that
a new supply of cocaine might soon be available. After
several telephone contacts, an agreement was arranged to sell
Carlos Kortwright 75 kilograms of cocaine at $14,500 each.
The transaction was set for May 24, 1990. Again, two hotel
rooms were rented, this time at the Condado Plaza Hotel in
Condado, Puerto Rico. After Munoz and his undercover
partner, Lt. Ayala, phoned Carlos Kortwright and Frances
Perez, they all met at the hotel, along with Miguel Camacho,
Samuel Solis Sierra and Rolando Solis Sierra. Miguel Camacho
accompanied Munoz to one of the hotel rooms to sample some of
the cocaine. All the buyers except Frances Perez then left
the hotel, presumably to return later to consummate the deal.
Again, however, the sale fell through, as Carlos Kortwright
reported to Munoz that he was having problems with his "money
man." Carlos Kortwright then told Munoz that he was "going
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to take over everything [and] be in charge," and that Munoz
should call him the next day, Friday, May 25, 1990.
Meanwhile, the law enforcement officials had decided to let
the weekend elapse before resuming negotiations. On May 25,
1990, Munoz told Frances Perez that the deal was on hold.
On May 28, 1990, Munoz again contacted Carlos
Kortwright and Frances Perez to resume negotiations. Later
that day, the three, along with Lt. Ayala and DEA Special
Agent Miranda met at a Pizza Hut in Condado. They agreed to
carry out the cocaine sale on May 31, 1990, at a police-owned
beach house at Vega Baja, Puerto Rico. Prior to the meeting
at the beach house, the plans called for a meeting at La
Terraza restaurant in Dorado, Puerto Rico, where Munoz would
be able to see the buyers' money. It was agreed that Munoz
would then phone the beach house, and they would all drive
there, caravan style. In reality, Munoz's picking up the
telephone was to be the signal for other officers to move in
and make arrests.
On May 31, 1990, at approximately 2:00 p.m., Carlos
Kortwright phoned Munoz, and the two agreed to meet at La
Terraza at 3:30 that afternoon. Shortly after Munoz and
Ayala seated themselves in the empty restaurant, several cars
arrived simultaneously, including a brown Buick owned by
appellant Mena Robles. In total, Munoz testified to seeing
about a dozen people arrive. Of those people, Carlos
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Kortwright, Alberto Morales Colberg and Jose Francisco
Casiano joined Munoz and Ayala at one table. Appellants sat
across from each other at the next table, two to three feet
from the others, facing in the direction of Munoz's table.
The other dozen or so tables in the restaurant were
unoccupied.
After everyone gathered in the restaurant, Munoz
asked Carlos Kortwright about the two men (the appellants)
seated at the adjacent table. Munoz testified that
Kortwright told him that "these people are here to protect
the money and the money is outside." Munoz then offered to
buy drinks for the entire group, including appellants, but
Colberg precluded any acceptance of the offer by insisting on
proceeding with the deal. Soon after, a waiter brought Munoz
and Ayala drinks they had ordered before the others' arrival.
At that point, Ayala repeated Munoz's drink offer. This
time, Casiano, seated between Munoz and Ayala, interceded,
giving his approval to Ayala's offer. Appellant Mena Robles
ordered a beer. At about the same time, co-defendant Rafael
Montanez Ortiz, who had remained outside, entered the
restaurant and shouted something in the direction of the
group. Carlos Kortwright left the table and spoke briefly
with Montanez Ortiz. When he returned, Colberg again tried
to get the deal going. He asked Munoz whether the 75 kilos
of cocaine were available. When Munoz replied affirmatively
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and asked Colberg whether he was ready to buy, Colberg and
Carlos Kortwright went to the parking lot, retrieved a
notebook and calculator from one of the vehicles, and sat
together at an empty table in the restaurant, away from the
others. After a short time, they returned to their original
seats, whereupon Colberg told Munoz that he was ready to buy
15 kilos immediately, and the other 60 kilos later that
evening. Munoz balked, first telling Colberg that he had no
place to keep the unsold 60 kilos that Carlos Kortwright had
originally agreed to buy, and then reminding Colberg that he,
Munoz, had yet to see any of the buyers' money.
Colberg and Carlos Kortwright then escorted Munoz
to a blue Volvo in the parking lot. Three men were near the
car, one of whom, Hector Santana Olmo, was leaning against
the trunk as Munoz arrived. Munoz was unable to identify the
other two men with Santana Olmo. Upon opening the trunk,
Santana Olmo showed Munoz two bags of money. The first
contained packs of five, ten, and twenty dollar bills, which,
Munoz told Santana Olmo, would be insufficient to complete
the deal. The second bag, however, a large plastic trash
bag, contained packs of fifty and one hundred dollar bills.
Santana Olmo told Munoz that there was a total of $500,000 in
the two bags. Satisfied by the buyers' showing, Munoz told
them that he would alert his confederates. On his way to the
telephone, Munoz stopped to talk to Ayala, who was then alone
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in the restaurant.1 He apprised Ayala of what had
transpired outside.
Munoz proceeded to the telephone. When he picked
up the receiver, however, the expected law enforcement help
did not materialize. He phoned headquarters and was informed
that many of the officers were caught in traffic. Munoz
stalled on the phone, because he had told the buyers that the
drugs would arrive five minutes after he placed the call.
While speaking with headquarters, Munoz told an officer there
to inform the arriving officers that the money was in a blue
Volvo. While still on the phone, Munoz was approached by
Colberg and Carlos Kortwright. He told them he was having
last-minute difficulty with his supplier. When Munoz finally
got off the phone, the three men started walking back toward
the restaurant, stopping in the parking lot, behind the brown
Buick, which was then occupied by three people with the
right-front door open. The Buick was still parked next to
Munoz's car. Munoz then entered the restaurant, where Samuel
Solis Sierra was speaking with Ayala. As Munoz approached
them, other law enforcement agents arrived. Munoz and Ayala
arrested Solis Sierra. Munoz then went outside with the
other officers. Santana Olmo, the two unidentified men with
him, and the blue Volvo in which Munoz had seen the money had
1. According to Munoz, appellants had remained at the
adjacent table throughout the negotiations. The record is
silent as to when they left it.
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already departed. The men inside the brown Buick turned out
to be appellants and Rafael Montanez Ortiz. Mena Robles, to
whom the car was registered, was in the driver's seat; Torres
Rivera was in the back; Montanez Ortiz was in the front
passenger seat, adjacent to the open door. A Magnum revolver
was found on the ground about five feet from the open car
door. Bullets compatible with the gun were found on Montanez
Ortiz's person. All three men were arrested. In total, nine
people were arrested at the restaurant; the remaining co-
defendants were apprehended later.
On June 27, 1990, 13 people were named in a six-
count indictment. Count I charged all 13 with participating
in a conspiracy to possess with intent to distribute cocaine.
Appellants were charged only in Count I. Except for
appellants, all defendants pled guilty prior to trial.
Several pled to one count of the indictment, while others
pled to new informations in exchange for having the
indictment dismissed. II.
II.
DISCUSSION
DISCUSSION
A. The Rule 29 Motions2
A. The Rule 29 Motions
2. Pursuant to Fed. R. Crim P. 29, "The court on motion of a
defendant or of its own motion shall order the entry of
judgment of acquittal . . . if the evidence is insufficient
to sustain a conviction . . . ."
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Appellants claim that the district court erred in
denying their respective Rule 29 motions for acquittal.3
Our task is to review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a
whole and in the light most favorable to the prosecution,
would allow a rational jury to determine beyond a reasonable
doubt that the defendants were guilty as charged. Alvarez,
987 F.2d at 83. A conviction may be premised in whole or
part on circumstantial evidence. Id. In addition, "juries
are not required to examine the evidence in isolation, for
`individual pieces of evidence, insufficient in themselves to
prove a point, may in cumulation prove it. The sum of an
evidentiary presentation may well be greater than its
constituent parts.'" United States v. Ortiz, 966 F.2d 707,
711 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993)
(quoting Bourjaily v. United States, 483 U.S. 171, 179-80
(1987)). Finally, it is not our function to weigh evidence
or make credibility determinations. Id. Instead, it is the
jury's responsibility to make credibility judgments. Thus,
the jury is empowered to accept or reject, in whole or in
part, any testimony. Alvarez, 987 F.2d at 83.
Here, appellants were charged with and convicted of
conspiracy. "The `essence' of a conspiracy is an agreement
3. Although both appellants appeal the denial of their Rule
29 motions, they assert different grounds. We therefore
address them individually.
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to commit a crime." United States v. Moran, 984 F.2d 1299,
1300 (1st Cir. 1993) (quoting Iannelli v. United States, 420
U.S. 770, 777 (1975) (emphasis in original)). To convict a
defendant of conspiracy, the government must prove, beyond a
reasonable doubt, that the defendant intended to agree and to
commit the substantive offense that was the object of the
agreement. United States v. Cruz, 981 F.2d 613, 616 (1st
Cir. 1992). The agreement may be express or tacit, and may
be proven by direct or circumstantial evidence. Id. (citing
United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st
Cir.), cert. denied, 492 U.S. 910 (1989)). "However, the
government need not establish that the defendants knew or
agreed upon every detail of the conspiracy. All that is
required is to show the essential nature of the plan and
their connections with it." United States v. O'Campo, 973
F.2d 1015, 1019 (1st Cir. 1992) (citation and internal
quotations omitted).
1. Mena Robles
1. Mena Robles
Appellant Mena Robles argues that the evidence
fails to show the existence of an agreement between himself
and the other conspirators. We disagree. It is true, as
Mena Robles argues, that there is no evidence tending to
indicate that he played a role in arranging the transaction.
Mena Robles also correctly asserts that his actions in the
restaurant on May 31, 1990, are consistent with the behavior
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of an innocent bystander; that is, there is nothing
inherently inculpatory about sitting at a particular table,
near other people, and accepting a beer when offered. Those
facts are not dispositive, however. Even if Mena Robles did
not actively participate until the final negotiation, he is
not necessarily absolved from being implicated in the
conspiracy because the government is not required to prove
that he took part in all aspects of the conspiracy. See
Cruz, 981 F.2d at 617. As for Mena Robles's "innocent
bystander" argument, we note that "jurors can be assumed to
know that criminals rarely welcome innocent persons as
witnesses to serious crimes and rarely seek to perpetrate
felonies before larger-than-necessary audiences." Ortiz, 966
F.2d at 712. In addition, "`there are circumstances where
presence itself implies participation--as where a 250-pound
bruiser stands silently by during an extortion attempt, or a
companion stands by during a robbery, ready to sound a
warning or give other aid if required.'" Ortiz, 966 F.2d at
712 (quoting United States v. Martinez, 479 F.2d 824, 829
(1st Cir. 1973)).
Thus, the jury could have inferred, for example,
that Montanez Ortiz's decision to shout to Carlos Kortwright,
within earshot of the negotiators, was done with the
knowledge that appellants were not "innocent bystanders," but
instead were participants in the scheme. Based on our
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reading of the record, a reasonable jury could also conclude
that appellants: arrived at the restaurant simultaneously
with the other putative conspirators; parked their car near
to those of the others; sat at an adjacent table, only a few
feet from the main negotiators, despite the fact that the
rest of the restaurant was empty; faced toward the
negotiators for the entire time they were in the restaurant;
first declined, and then accepted, the officers' drink
offers, apparently in response to instructions from
codefendants Colberg and Casiano; were identified by
codefendant Carlos Kortwright as being with the group to
"protect the money;"4 and were arrested in a car with
codefendant Montanez Ortiz.
While these factual conclusions are not the only
ones the jury could have reached, we find them eminently
reasonable. See e.g., United States v. Nueva, 979 F.2d 880,
883 (1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993)
("prosecution need not exclude every reasonable hypothesis of
innocence, so long as the total evidence permits a conclusion
of guilty beyond a reasonable doubt."). Accordingly, we find
4. Mena Robles urges us, for a variety of reasons, to reject
Munoz's testimony regarding Carlos Kortwright's
identification. All of the suggested bases for rejection,
however, depend on an evaluation of Carlos Kortwright's
credibility, which, as we have already noted, is the province
of the jury.
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the evidence sufficient to support Mena Robles's conspiracy
conviction.
2. Torres Rivera
2. Torres Rivera
As his first enumerated issue, appellant Torres
Rivera asks "Whether there was sufficient evidence to find
this Appellant guilty of the charged conspiracy and whether
the Appellant received ineffective assistance of counsel."
The ensuing section of the brief, however, is devoted almost
entirely to a claim of prejudicial variance between the
indictment, which alleged a single conspiracy, and the
evidence, which, according to Torres Rivera, revealed
"several" conspiracies. We will address these claims
individually.
a. Sufficiency of the Evidence
a. Sufficiency of the Evidence
Torres Rivera essentially argues, as did Mena
Robles, that he was an innocent bystander to the
negotiations, rather than a participant. For the reasons set
forth in our disposition of Mena Robles's similar claim, see
supra sec. II.A.1, we find Torres Rivera's argument
meritless.
b. Prejudicial Variance
b. Prejudicial Variance
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Torres Rivera's variance argument is no more
availing.5 Essentially, Torres Rivera contends that the
"first" conspiracy ended on May 29, 1990, when the cocaine
deal apparently collapsed because of problems with Carlos
Kortwright's "money man," Miguel Camacho. Appellant argues
that the "second" conspiracy was formed thereafter, when
Carlos Kortwright teamed with Morales Colberg, Casiano,
Santana Olmo and Montanez Ortiz. Appellant claims that the
evidence introduced relative to the "first" conspiracy caused
him substantial prejudice, as he could conceivably have been
part of the "second" conspiracy only.
Whether there is a single conspiracy, multiple
conspiracies, or no conspiracy at all is ordinarily a factual
matter for the jury to determine. United States v. David,
940 F.2d 722, 732 (1st Cir. 1991), cert. denied, 112 S. Ct.
2301 (1992). Where, as here, there is no challenge to the
jury instructions, we review the jury's conclusion as to
whether one or more conspiracies existed only for evidentiary
sufficiency. Id. To conclude that there was a single
conspiracy, the jury need not be presented with evidence
showing that each coconspirator knew every detail of the
5. At oral argument, the government suggested that Torres
Rivera failed to preserve this argument because he did not
raise it below. Upon review of the record, it appears that
appellant put forth the variance argument in an unsuccessful
pretrial motion for severance. We will therefore assume, for
purposes of this appeal, that the pretrial motion preserved
the issue.
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conspiracy, or even that each conspirator knew every other
coconspirator. United States v. Garcia-Rosa, 876 F.2d 209,
223 (1st Cir. 1989), cert. denied, 493 U.S. 1030, vacated on
other grounds sub nom. Rivera-Feliciano v. United States, 498
U.S. 954 (1990). Indeed, a single conspiracy may exist where
there has been no direct contact among some of the
participants. United States v. Giry, 818 F.2d 120, 127 (1st
Cir.), cert. denied, 484 U.S. 855 (1987). Moreover, "[t]he
fact that every defendant did not participate in every
transaction necessary to fulfill the aim of their agreement
does not transform a continuing plan into multiple
conspiracies." United States v. Drougas, 748 F.2d 8, 17 (1st
Cir. 1984). Instead, a jury may find a single conspiracy if
the evidence sufficiently demonstrates "that all of the
alleged coconspirators directed their efforts towards the
accomplishment of a common goal or overall plan." Id.
In this case, the "common goal" was the purchase of
a large amount of cocaine. Two unsuccessful attempts were
made to the consummate the sale, before the final attempt at
the restaurant on May 31, 1990. In each attempt, Carlos
Kortwright, Jose Kortwright, Samuel Solis Sierra and Rolando
Solis Sierra appeared to be the main actors. The supporting
cast, however, changed somewhat prior to the final attempt,
as Colberg, Casiano, Santana-Olmo, Montanez Ortiz and
appellants replaced Damaris Camacho, Miguel Camacho and
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Frances Perez. In our view, the evidence supports a
conclusion that these events constituted a single conspiracy
to purchase cocaine. As we stated above, it is of no moment
that all the conspirators did not participate in all attempts
to further the plan spearheaded by the main players. See,
e.g., United States v. Aponte-Suarez, 905 F.2d 483, 488 (1st
Cir.), cert. denied, 498 U.S. 990 (1990) (finding sufficient
evidence to support single conspiracy where appellants were
involved in only one of three attempts by a major dealer to
purchase cocaine). Therefore, appellant Torres Rivera's
variance argument must fail.6
c. Ineffective Assistance of Counsel
c. Ineffective Assistance of Counsel
Torres Rivera's claim of constitutionally defective
counsel rises and falls with his variance claim. He argues
that trial counsel was ineffective because of his failure to
object to evidence that Torres Rivera alleges was relevant
only to the "first" conspiracy, and that he was prejudiced by
the introduction of such evidence.
It is well settled that we measure the quality of
trial counsel's performance under the two-part standard set
by Strickland v. Washington, 466 U.S. 668 (1984). Pursuant
to Strickland, a defendant must show that counsel performed
6. Because the jury could reasonably have found a single
conspiracy, we do not address whether Torres Rivera was
prejudiced by the alleged "variance."
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unreasonably and that prejudice resulted therefrom. Id.; see
also United States v. Walters, 904 F.2d 765 (1st Cir. 1990).
As noted above, the single/multiple conspiracy
argument is without merit. Moreover, according to the
record, the district court rejected the same argument made by
several other defendants, who, according to Torres Rivera
were part of the "second conspiracy." In light of these
prior rulings, counsel's failure to rehash the same failed
argument cannot be considered ineffective assistance of
counsel. See United States v. Andiarena, 823 F.2d 673 (1st
Cir. 1987). Accordingly, we reject Torres Rivera's claim of
ineffective assistance of counsel.
B. Sentencing Issues
B. Sentencing Issues
Appellants aim a barrage of arguments at their
respective sentences. We address them seriatim.
Torres Rivera first argues that the district court
erroneously calculated his base offense level ("BOL").
Pursuant to U.S.S.G. 2D1.1(c) and 2D1.47, the BOL for a
conspiracy conviction such as this depends on the quantity of
contraband attributable to the defendant. The district court
concluded that appellants were to be held accountable for 15
7. Although section 2D1.4 has since been repealed, it was
part of the 1991 Guidelines Manual, applicable to this case
by virtue of the fact that sentencing took place in February
1992. See, e.g., United States v. Pineda, 981 F.2d 569, 571
n.1 (1st Cir. 1992) (appropriate guidelines are those in
effect at time of sentencing). Accordingly, all guideline
citations herein refer to the 1991 manual.
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kilograms of cocaine,8 and set the BOL at 34. U.S.S.G.
2D1.1(c). Torres Rivera claims that the district court's use
of the 15 kilogram amount was erroneous; that he should be
held responsible for less than 500 grams; and that his BOL
therefore should be 24. We disagree.
U.S.S.G. 1B1.3(a)(2) provides that the BOL shall
be determined on the basis of "all acts or omissions
committed or aided and abetted by the defendant, or for which
the defendant would be otherwise accountable, that occurred
during the commission of the offense of conviction." The
relevant application note provides:
In the case of criminal activity
undertaken in concert with others,
whether or not charged as a conspiracy,
the conduct for which the defendant
"would be otherwise accountable" also
includes conduct of others in furtherance
of the execution of the jointly-
undertaken criminal activity that was
reasonably foreseeable by the defendant.
U.S.S.G. 1B1.3, comment. (n.1). The final piece of the
puzzle provides that if a "defendant is convicted of an
offense involving negotiation to traffic in a controlled
substance, the weight under negotiation in an uncompleted
8. This amount, to which the government stipulated, agrees
both with the quantity that Colberg told Munoz that he would
be able to immediately purchase, and with the money that was
shown to Munoz in the Volvo in the restaurant parking lot.
According to the record, the negotiated price for the cocaine
was $16,000 per kilogram; the $500,000 that Santana Olmo
claimed was in the Volvo would, therefore, have been more
than sufficient to make the purchase.
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distribution shall be used to calculate the applicable
guideline amount." U.S.S.G. 2D1.4, comment. (n.1); see
also United States v. Gerante, 891 F.2d 364, 369 (1st Cir.
1989) (affirming estimation of drug quantity based on amount
of money found in defendant's possession).
The thrust of Torres Rivera's BOL argument is that
he had no ability to produce any money to purchase cocaine.
This argument is rooted in the following statement, contained
in Application Note 1 to section 2D1.4:
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
the amount that it finds the defendant
did not intend to produce and was not
reasonably capable of producing.
In referring to this statement, however, Torres Rivera has
ignored the very next sentence in the same Note: "If the
defendant is convicted of conspiracy, see Application Note 1
to 1B1.3 (Relevant Conduct)." And, as we noted above, that
section calls for consideration of the foreseeable acts of
coconspirators in determining the BOL. Thus, as the district
court correctly concluded, Torres Rivera's personal financial
ability is inapposite to the matter at hand.
The remainder of Torres Rivera's BOL-related
argument is directed at the fact that much of the negotiating
in this case took place prior to his active involvement.
Therefore, he argues, those negotiations could not have been
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"reasonably foreseeable" to him, and he should not be held
responsible for any drugs involved with earlier stages of the
case. This argument, however, overlooks the events that took
place on May 31, 1990, when he, as a guard, took part in the
final negotiations. Thus, he is in fact being held
responsible for drugs negotiated while he was an active
participant in the conspiracy.
Finally, a recent decision of this court further
undermines Torres Rivera's theory. In United States v. De La
Cruz, No. 92-1279, (1st Cir. June 24, 1993), we rejected a
foreseeability argument made by a defendant whose only role
in a drug conspiracy had been as a driver. At sentencing,
and on appeal, the defendant claimed that he had no knowledge
of the amount of cocaine he was transporting. We first noted
that the defendant must have known that he was part of a
large-scale deal due to the number of people and vehicles
present at the warehouse where the drugs were stored. Id.,
slip op. at 17-18. We then stated:
A defendant who conspires to transport
for distribution a large quantity of
drugs, but happens not to know the
precise amount, pretty much takes his
chances that the amount actually involved
will be quite large. On De La Cruz'
theory, no amount at all could properly
be assigned to him if, as may well be the
case, he never had a specific quantity in
mind. The danger actually posed by the
conspiracy was the distribution of 240
kilograms, De La Cruz knew that a large
quantity was involved, and--absent
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special circumstances--we think that is
enough.
Id. at 18. In our view, Torres Rivera's role is analogous to
that of De La Cruz. Given his presence at the final
negotiations and his role as a guard for the "money man," his
general knowledge of the size of the cocaine deal is readily
inferable. And, like De La Cruz, Torres Rivera "took his
chances" as to the specific quantity.
In light of the foregoing, we can find no clear
error in either the district court's determination of the
quantity of cocaine attributable to appellant Torres Rivera,
or its resulting use of a BOL of 34. See, e.g., United
States v. Figueroa, 976 F.2d 1446, 1461 (1st Cir. 1992),
cert. denied, 113 S. Ct. 1346 (1993) (applying clear error
standard to appellate review of drug quantity attributed to
conspiracy defendant).
Torres Rivera next argues that his sentence was
disproportionately severe when compared with the sentences of
similarly situated codefendants. To support this claim, he
dwells on the fact that his 200 month prison sentence was
greater than those received by all other coconspirators,
including those referred to in the indictment as organizers,
leaders, managers and negotiators. We reject this sentencing
disparity claim. First, our review of the record indicates
that Torres Rivera was treated similarly to those
codefendants who pled guilty to the same conspiracy count of
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which he was convicted.9 All began with a BOL based on a 15
kilogram conspiracy. While some sentences varied, much of
that has to do with the fact that Torres Rivera was in a
Criminal History Category III, and that he and Mena Robles
were the only recipients of a firearm enhancement. Moreover,
despite Torres Rivera's claim to the contrary, the record
reveals no downward sentencing departures having been granted
to any codefendant. And, as a final matter, we have firmly
held that "a perceived need to equalize sentencing outcomes
for similarly situated codefendants, without more, will not
permit a departure from a properly calculated guideline
sentencing range." United States v. Wogan, 938 F.2d 1446,
1448 (1st Cir.), cert. denied, 112 S. Ct. 441 (1991).
Accordingly, we reject Torres Rivera's sentencing disparity
argument.10
Next, both appellants challenge the district
court's two-point offense-level enhancement, pursuant to
9. Several other coconspirators pled guilty to lesser
charges contained in superseding informations in exchange for
dismissal of their indictments. Those coconspirators
therefore received, comparatively, the shortest sentences.
We reject, however, Torres Rivera's reliance on the sentences
meted out to this group as support for his disproportionality
claim. See, e.g., United States v. Butt, 955 F.2d 77, 90
(1st Cir. 1992) (where codefendants are charged and convicted
of different offenses, they are not "similarly situated").
10. We have reviewed Torres Rivera's other sentencing
complaints and find them to be without merit.
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U.S.S.G. 2D1.1(b)(1),11 for possession of a firearm
during the offense. This circuit calls for the firearm
enhancement "whenever a codefendant's possession of a firearm
in furtherance of [] joint criminal activity was reasonably
foreseeable to the defendant." United States v. Bianco, 922
F.2d 910, 912 (1st Cir. 1991) (citations omitted).12 In
reviewing a district court's use of the firearm enhancement,
we accord due deference to the application of the enhancement
to the facts of the case. United States v. Sostre, 967 F.2d
728, 731 (1st Cir. 1992). Factual conclusions related to
sentencing need only be supported by a preponderance of the
evidence and will be set aside only for clear error. Id.
Appellants essentially argue that the evidence is
not sufficient to support the two-level adjustment. We do
not agree. As noted above, coconspirator Montanez Ortiz was
found in possession of five bullets compatible with the gun
retrieved from just outside the car in which he and
appellants were seated at the time of their arrests. From
this, the court could properly infer that Montanez Ortiz had
11. In relevant part, section 2D1.1(b)(1) provides for a two
level BOL increase "[i]f a dangerous weapon (including a
firearm) was possessed during commission of the offense . . .
."
12. We note with particular emphasis the First Circuit
standard because appellants rely on a host of cases from
other circuits.
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the gun on his person prior to ejecting it from the car.13
Appellants assert that neither their presence in Mena
Robles's car with Montanez Ortiz, nor any other record
evidence, is sufficient to infer the requisite
foreseeability. However, as we stated in Bianco:
[W]e often observe that firearms are
common tools of the drug trade. Absent
evidence of exceptional circumstances, we
think it fairly inferable that a
codefendant's possession of a dangerous
weapon is foreseeable to a defendant with
reason to believe that their
collaborative criminal venture includes
an exchange of controlled substances for
a large amount of cash.
Id. at 912 (citations omitted). See also Sostre, 967 F.2d at
731-32 (enhancement affirmed where only codefendant
physically possessed gun, but defendant was part of
"protection" team employed by drug seller); United States v.
Bello-Perez, 977 F.2d 664, 673 (1st Cir. 1992) (weapon
enhancement affirmed where only codefendant was in actual
possession of firearm, but both defendant and codefendant
served as "muscle" for drug-debt collections).
Here, given the jury's supportable conclusion that
appellants were involved in the drug transaction at issue,
and the lack of any evidence to contradict the reasonable
foreseeability of Montanez Ortiz's possession of a gun at the
13. Indeed, Montanez Ortiz pled guilty, in exchange for
dismissal of the indictment, to an information charging him
with carrying a firearm during the commission of a drug
related felony in violation of 18 U.S.C. 924(c).
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scene of a large-scale cocaine deal, we can find no clear
error in the district court's application of the two-level
weapon enhancement.14
Next, Mena Robles contends that the gun enhancement
was the product of vindictive sentencing on the part of the
district judge. This assertion is based solely on the fact
that only these appellants exercised their right to trial,
and they alone received the sentencing enhancement, although
those codefendants who pled guilty to the conspiracy charge
were situated similarly with respect to the firearm at issue.
We do not agree.
In North Carolina v. Pearce, 395 U.S. 711 (1969),
the Supreme Court faced a situation where a defendant who
successfully appealed his conviction was again found guilty
on retrial and given a harsher sentence by the same trial
judge. The Court, concerned with the possibility of a
vindictive response to the exercise of a constitutional right
to appeal, held that such an increased sentence must be
explained in the record. Id. at 726. Later, the Court held
14. Appellants also argue that the district court failed to
make the specific findings mandated by 18 U.S.C. 3553(c).
See United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.
1990). This assertion is based primarily on the fact that
the sentencing judge did not, as he said he would, issue
written findings "summarizing his reasons for . . . a two
level increase . . . ." While it is apparently true that no
such written summary has been issued, our review of the
sentencing transcript shows clearly that the district court
made factual findings sufficient both to support the
enhancement and to adequately frame the appeal.
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that a "presumption of vindictiveness" is triggered whenever
the same judge imposes a stiffer sentence after retrial.
United States v. Goodwin, 457 U.S. 368, 374 (1982). This
presumption may be overcome only when objective information
in the record justifies the increased sentence. Id. at 372-
384; Johnson v. Vose, 927 F.2d 10, 11 (1st Cir. 1991).
We have applied the Pearce presumption to
situations where, as here, defendant has rejected a plea
bargain in favor of a trial. See, e.g., United States v.
Crocker, 788 F.2d 802 (1st Cir. 1986); Longval v. Meachum,
693 F.2d 236 (1st Cir. 1982) cert. denied, 460 U.S. 1098
(1983). As we have pointed out, however, "not every instance
of an enhanced sentence following a defendant's exercise of a
legal right triggers the presumption." Vose, 927 F.2d at 11.
"The principle established by Pearce and its progeny is not
that enlarged sentences are forbidden, but only that such
sentences may not be fueled by vindictiveness." Id.
Therefore, we have qualified the presumption, holding that
"[t]he presumption [] arises only in circumstances in which
there is a reasonable likelihood that the increase in
sentence is the product of actual vindictiveness on the part
of the sentencing authority." Id. In the absence of such
reasonable likelihood, the defendant bears the burden of
proving actual vindictiveness. Id., citing Alabama v. Smith,
490 U.S. 794 (1989).
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As we stated above, Mena Robles has pointed to
nothing in the record to support a claim of vindictiveness,
other than the fact of the gun enhancement itself. This will
not suffice. In Both Longval and Crocker, the trial judges
made mid-trial comments which "explicitly linked harsher
sentences to the defendants' refusal to cut short their right
to a jury trial." Vose, 927 F.2d at 12. These remarks, we
determined, were sufficient to establish a reasonable
likelihood of vindictiveness. Id.15 Here, the record is
devoid of similar evidence that would trigger the Pearce
presumption or demonstrate actual vindictiveness.
Accordingly, Mena Robles's vindictiveness argument fails.16
Appellant Torres Rivera also argues that the
implementation of the gun enhancement without a finding a
guilt beyond a reasonable doubt is a violation of due
process. This contention has been soundly rejected, and thus
we need not address it further. See United States v. Pineda,
981 F.2d 569, 574 (1st Cir. 1992).
15. In addition, we noted in Crocker and Longval that the
trial judges' comments could be construed as retaliation for
pursuing trials in cases the judges considered "unworthy of
[their] time and effort." Crocker, 788 F.2d at 809. Here,
where the sentencing judge did not preside at trial, no such
sentiment is likely.
16. Indeed we must question, but need not here decide,
whether such a presumption can ever result where, as here,
the sentencing judge was not the trial judge.
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As a final matter, we address Torres Rivera's claim
that he should have been granted a four-point reduction in
his BOL for playing only a "minimal" role in the conspiracy.
The district court awarded him a two-level adjustment as a
"minor" participant. See U.S.S.G. 3B1.2. We review the
district court's mitigating role determination for clear
error. United States v. Dietz, 950 F.2d 50, 52 (1st Cir.
1991). According to the relevant application notes, a
"minimal" participant is a defendant who is "plainly among
the least culpable of those involved in the conduct of a
group." While that description may superficially fit Torres
Rivera, further light is shed on the parameters of the
adjustment by means of these illustrative examples: "someone
who played no other role in a very large drug smuggling
operation than to offload part of a single marihuana
shipment, or in a case where an individual was recruited as a
courier for a single smuggling transaction involving a small
amount of drugs." U.S.S.G. 3B1.2, comment. (n.2).
Moreover the same note indicates that the "minimal
participant" adjustment will be used "infrequently." We
believe the district court correctly concluded that this
should not be one of those infrequencies. In his role as a
guard for the money, Torres Rivera occupied a position
integral to the completion of the deal. Indeed, Munoz
testified that Carlos Kortwright said that such protection
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was necessary because "the money man" had "lost money" in
prior transactions. In the end, we accept the following
reasoning on the part of the district court:
The Court finds, however, that since the
amount of drugs involved was quite large
and since defendant acted as a bodyguard,
a role which entailed providing
protection to the principal actors during
their negotiations and may result in
acts of violence, that it cannot in good
conscience assign any such actor the
label of minimal participant.
Based on the foregoing, we reject Torres Rivera's claim of
minimal participant status.
We have reviewed appellants' other arguments, and
find them without merit. Appellants' convictions and
sentences are therefore affirmed.
affirmed.
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