United States v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 02-1994

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT RODRIGUEZ, A/K/A DOMINICAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Melvin Norris, with whom Richard J. Farrell, Jr. was on brief,
for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.

July 21, 2003
 SELYA, Circuit Judge. The primary question in this

appeal is whether the district court abused its discretion in

refusing to grant an evidentiary hearing before imposing sentence.

The secondary question is whether the district court erred in

enhancing the appellant's offense level for an attempted

obstruction of justice. Finding no cognizable error, we affirm.

Defendant-appellant Robert Rodriguez pleaded guilty to

distribution of a substance containing cocaine base and conspiracy

to commit that offense. See 21 U.S.C. §§ 841(a), 846.

Accordingly, we glean the relevant facts from the change-of-plea

colloquy, the presentence investigation report (PSI Report), and

the transcript of the disposition hearing. See United States v.

Dietz, 950 F.2d 50, 55 (1st Cir. 1991).

The record reveals that the appellant participated in at

least eleven drug sales to undercover agents, involving a total of

62.88 grams of crack cocaine. He was arrested on December 9, 1999,

and immediately detained. Considerable skirmishing ensued (none of

which is relevant here). Suffice it to say that, on April 19,

2002, the appellant changed his plea, and the district court

ordered a PSI Report. When prepared, that report suggested, inter

alia, that the appellant was a leader or organizer of the drug-

trafficking enterprise. See USSG §3B1.1(a) (providing for an

upward role-in-the-offense adjustment if a defendant "was an

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organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive").

In an effort to extricate himself from this looming hole,

the appellant procured a letter from a fellow inmate, Junior

Santana.1 That letter, written in Spanish and translated into

English by yet another prisoner, read:

I Junior Santana. Please I would like you
people to know that I never meet Robert
Rodriguez. What Marisela Segura and Javier
Rivera what they are talking about Robert
Rodriguez are all lies. Because I know that
the situation is like that. Marisela and
Javier are both lovers. And always done
everything together. I Santana agree to speak
the truth and also state the truth.

The appellant submitted these materials along with his

objections to the PSI Report. Both the letter and the translation

were signed by Santana and notarized by a correctional official.

At a status conference, the court, without objection, authorized

the government to interview Santana (who by then had been

transferred to a penitentiary in Ohio). A government agent did so

and reported that Santana had repudiated the letter. According to

1
This was not the appellant's only effort to influence the
sentencing process. The PSI Report indicates that he submitted a
letter to the government containing a statement that he attributed
to a coconspirator (Rivera). That statement was to the effect that
he (Rivera) had falsely implicated the appellant. When confronted
with the statement, Rivera repudiated it. He said that the
appellant had dictated the statement but that he had refused to
sign it because the statement "was not true." The probation
officer concluded that this incident did not obstruct justice
because the government realized all along the bogus nature of the
statement.

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the ensuing proffer, the appellant had sought out Santana several

times, pressured him to write a (false) account that would put the

appellant in a favorable light, and obtained the letter as a

result. Based on this recantation, the government urged the court

not only to dismiss the letter's allegations but also to find that

it represented an attempt by the appellant to obstruct justice by

suborning perjury. See USSG §3C1.1, cmt. (n.4(b)).

The appellant's attorney then sought to interview

Santana. Santana's lawyer refused to allow such an audience. The

appellant responded to this refusal by moving for (i) a continuance

to investigate the issues raised by the government's proffer, and

(ii) an evidentiary hearing. The district court granted the

continuance but refused to sanction an evidentiary hearing. In his

sentencing memorandum, defense counsel reiterated the request for

an evidentiary hearing to test the truthfulness of Santana's

statements and the government's conflicting proffer. The court

remained resolute, and no evidentiary hearing was ever held.

On August 2, 2002, the district court convened the

disposition hearing. The court, inter alia, accepted the

government's contention that the submission of the Santana letter

constituted an attempt to obstruct justice and ratcheted the

appellant's offense level upward by two levels for obstruction of

justice. See USSG §3C1.1, cmt. (n.4(b)). The court also (i)

prescribed a four-level upward adjustment because of the

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appellant's leadership role in a criminal activity involving five

or more participants, id. §3B1.1(a); (ii) factored in a two-level

reduction for acceptance of responsibility, id. §3E1.1(a); and

(iii) held the appellant accountable for 62.88 grams of crack

cocaine (not the 500+ grams for which the government sought to hold

him responsible). These subsidiary findings yielded a total

offense level of 36. Because the appellant was a first offender

(Criminal History Category I), the guideline sentencing range was

188-235 months. See id. ch. 5, Pt.A (sentencing table). The court

chose the low end of the range and imposed a 188-month

incarcerative term. This appeal followed.

The appellant's main argument is that, given the salience

of the Santana letter, the sentencing court should have granted his

motion for an evidentiary hearing before finding that the letter

was both false and submitted for the purpose of distorting the

sentencing calculus. In his view, the letter was important to his

defense in three key respects. First, by casting doubt upon what

two of his cohorts, Rivera and Segura, had told the probation

officer, it might have reduced the drug quantity for which he was

held accountable. Second, the letter, by attacking the veracity of

Rivera and Segura, tended to support his contention that he was not

a leader or organizer of the criminal activity. He adds,

relatedly, that without this upward role-in-the-offense adjustment,

he might have been eligible for a lessened sentence under the so-

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called safety valve, 18 U.S.C. § 3553(f). Third — and most

important — had the court credited the letter, it would not have

elevated his offense level (and, thus, effectively increased his

sentence) for obstruction of justice.

This appraisal vastly overstates the potential impact of

the Santana letter. From what we can tell, that letter, even if

credited, would have had no material effect on the issue of drug

quantity — an issue that the sentencing court resolved favorably to

the appellant. The same holds true for role in the offense, as the

uncontested portions of the facts limned in the PSI Report

abundantly justified that adjustment. And that adjustment rendered

the appellant ineligible for the safety valve. See 18 U.S.C. §

3553(f)(4); USSG §5C1.2(a)(4). In practical terms, then, the

sentencing court's rejection of the Santana letter affected only

the enhancement for obstruction of justice. We frame our inquiry

accordingly.

It is a familiar rule that a criminal defendant, about to

be sentenced, is not entitled to an evidentiary hearing on demand.

United States v. Williams, 10 F.3d 910, 915 (1st Cir. 1993); United

States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992); United

States v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987). Faced with

a timely request for such a hearing, the court must consider the

totality of the circumstances and assess the likely utility of a

hearing in that light. See United States v. Bradshaw, 281 F.3d

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278, 291 (1st Cir. 2002); United States v. Zannino, 895 F.2d 1, 6

(1st Cir. 1990). Given the dimensions of this approach, it is not

surprising that a sentencing court's decision to deny an

evidentiary hearing is reviewed only for abuse of discretion.

United States v. McAndrews, 12 F.3d 273, 279-80 (1st Cir. 1993).

Although the question is close, we see no abuse of

discretion here. The district court examined Santana's letter with

care. It noted that the letter was conclusory in nature and

determined that it lacked probative value. This determination is

buttressed by other aspects of the record; the essence of the

Santana letter was contradicted by the appellant's own statements

to the probation officer and by various proffers incorporated in

the PSI Report. Although the letter intimated that Rivera and

Segura had fabricated a tale about the appellant, it gave no

plausible reason for them to have done so. Moreover, the appellant

had admitted his involvement with these individuals to the

probation officer, having confessed that he had supplied them with

approximately twenty rocks of cocaine on each of four separate

occasions. The court, therefore, had ample reason to discount the

allegations contained in the Santana letter.

The principal thrust of the appellant's argument seems to

be that the information from the government upon which the district

court relied in finding Santana's letter false lacked sufficient

indicia of reliability. He contends that the court erred in

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accepting the government's proffer, which amounted to the

representations of an Assistant United States Attorney (AUSA)

purporting to summarize the interview in which Santana allegedly

repudiated the letter. We believe that it was within the

sentencing court's discretion to rely on the AUSA's

representations.

During the sentencing phase of a criminal case, the

Federal Rules of Evidence do not apply. United States v. Robinson,

144 F.3d 104, 108 (1st Cir. 1998); United States v. Gonzalez-

Vasquez, 34 F.3d 19, 25 (1st Cir. 1994). Similarly, "a defendant's

Sixth Amendment right to confront the witness against him does not

attach during the sentencing phase." Tardiff, 969 F.2d at 1287.

In light of these principles, the sentencing court has broad

discretion to accept hearsay evidence at sentencing so long as the

court supportably concludes that the information has sufficient

indicia of trustworthiness to warrant a finding of probable

accuracy. See id.; United States v. Zuleta-Alvarez, 922 F.2d 33,

36-37 (1st Cir. 1990); see also USSG §6A1.3(a).

This legal framework is controlling here. Even though

the government could have done a better job of producing a verbatim

record of Santana's interview,2 the court acted within the realm of

2
In future cases, the government would do well to make a more
focused evidentiary showing. For example, it could easily have
provided a transcript, a signed statement, an affidavit from the
witness, or a declaration from the agent who actually interviewed
the witness.

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its discretion in accepting the government's version of the

substance of that interview. After all, the AUSA's proffer had all

the earmarks of reliability and the record before us contains

nothing that remotely suggests the contrary. We conclude,

therefore, that the sentencing court's handling of the Santana

letter was acceptable. Accordingly, the court did not abuse its

discretion in denying the appellant's request for an evidentiary

hearing.

The appellant's fallback position is that, in all events,

the lower court erred in using the letter as a vehicle for an

obstruction of justice enhancement. In imposing an obstruction of

justice enhancement, the sentencing court must find that "the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of

conviction . . . ." USSG §3C1.1(A). The government has the burden

of proving, by a preponderance of the evidence, that such an

obstruction occurred. United States v. Aymelek, 926 F.2d 64, 67-68

(1st Cir. 1991).

We review the sentencing court's factbound determination

that an obstruction of justice occurred for clear error. Id. at

68. In this instance, the court found that the appellant had

pressured Santana to sign a false letter and had submitted the

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document to the probation officer in an abortive attempt to game

the sentencing process. This finding is fully supportable.

We will not belabor the obvious. The AUSA's proffer,

though uncorroborated, was thorough and replete with details. In

contrast, the Santana letter not only contradicted the appellant's

original version of events but also provided little or no

supporting detail to back its outlandish claims. The appellant's

motive in procuring the letter and submitting it to the court was

plainly to influence the contours of his sentence. And in

assessing culpability, the sentencing court reasonably could have

taken into account the appellant's earlier attempt at a similar

subterfuge, see supra note 1, in which he unsuccessfully tried to

pressure Rivera into signing a false exculpatory statement.

The fact that the district court could have placed a less

sinister interpretation on the submission of the Santana letter is

of no consolation to the appellant.3 "Where there is more than one

plausible view of the circumstances, the sentencing court's choice

among supportable alternatives cannot be clearly erroneous."

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990); accord

United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.

3
For what it may be worth, we note that notwithstanding the
obstruction of justice finding the sentencing court granted the
appellant a downward adjustment for acceptance of responsibility.
See USSG §3E1.1 (explaining that acceptance of responsibility and
obstruction of justice adjustments can simultaneously be allowed in
rare instances).

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1990). Consequently, there is no principled way that we can

disturb the district court's closely reasoned finding that the

appellant obstructed justice by inducing Santana to write and sign

a letter that he (the appellant) knew was false. It follows that

the district court had no choice but to impose a two-level

enhancement. See United States v. Austin, 948 F.2d 783, 788 (1st

Cir. 1991); see also USSG §3C1.1, cmt. (n.4(b)).

We need go no further. A criminal defendant has no

absolute or presumptive right to insist that the sentencing court

take testimony on every fact germane to sentencing. In light of

the record as a whole, the district court's explicit findings, and

the generous standard of review, we conclude that the court did not

abuse its discretion in denying the appellant's request for an

evidentiary hearing. We likewise conclude that the court did not

err in enhancing the applicable offense level for obstruction of

justice.

Affirmed.

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