United States v. Rojas Tapia

United States Court of Appeals
For the First Circuit

No. 04-1846

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS ROJAS-TAPIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Raúl S. Mariani-Franco for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, were on brief for appellee.

April 11, 2006
 CYR, Senior Circuit Judge. Jesus Rojas-Tapia appeals the

conviction and sentence resulting from his participation in a

conspiracy to commit airline piracy and his use of a semiautomatic

firearm, contending that (i) the district court erred in denying

his motion to suppress the inculpatory post-arrest statements he

made to the police, and (ii) we must vacate the ensuing Guidelines

sentence and remand for resentencing under the new “advisory”

Guidelines regime prescribed in United States v. Booker, 543 U.S.

220 (2005). We affirm.

I

BACKGROUND

On December 30, 2002, Rojas-Tapia and an associate

hijacked a rented helicopter and forced the pilot, at gunpoint and

on threat of death, to fly them to the state penitentiary in Ponce,

Puerto Rico, where five inmates were waiting on the penitentiary’s

roof, one of whom was the defendant’s brother, Jose. After the

helicopter departed the penitentiary, it dropped all seven men in

a rural area, where the defendants went into hiding. Following a

massive police hunt, the defendant, his brother, and one of the

prison escapees were arrested on January 2, 2003. All three were

in possession of firearms. The police advised defendant of his

Miranda rights, then transported him by police car to police

headquarters. Several hours into this detention, while police were

asking routine booking questions, Rojas-Tapia abruptly stated that

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he wanted to tell them about his participation in the hijacking.

Although the police reminded Rojas-Tapia that he had the right to

counsel and to remain silent, he proceeded to make a detailed

inculpatory statement.

In due course, defendant and his associates were indicted

on one count each of conspiring to commit aircraft piracy, 49

U.S.C. § 46502(a)(1), armed aircraft piracy, id., and use of a

semiautomatic weapon during or in relation to a crime of violence,

18 U.S.C. § 924(c)(1). Defendant subsequently submitted a motion

to determine his mental competency to stand trial. Following a

hearing and a review of the Federal Detention Center (FDC)

psychologist’s evaluation, the district court found the defendant

competent to stand trial.

Defendant also submitted a motion to suppress his post-

arrest statement in which he had admitted participation in the

planning and hijacking of the helicopter. The motion stated that

the government could not demonstrate that his waiver of his Miranda

rights had been knowing and voluntary, since the FDC psychologist

concluded that the defendant had but a borderline intellectual

capacity, hence could not have understood his legal rights or the

consequences of their waiver. At an evidentiary hearing conducted

on the suppression motion during the jury trial, Rojas-Tapia,

orally and for the first time, raised another ground for the motion

to suppress: that the police had coerced his statements by

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depriving him of food for approximately eight hours following his

arrest. The district court denied the suppression motion, then

admitted the Rojas-Tapia confession.

Following a seven-day trial, the jury convicted the

defendant on all three counts. The district court thereafter

imposed concurrent 365-month terms of imprisonment under Counts 1

and 2, as well as a term of 84 months on Count 3, to be served

consecutively to the sentences imposed under Count 1 and Count 2.

Defendant now appeals from his conviction, challenging the denial

of his suppression motion, and from his sentence, arguing that the

intervening Booker decision, which held that the Guidelines are

advisory rather than mandatory, requires a remand for resentencing.

II

DISCUSSION

A. The Motion to Suppress

The defendant contends that the district court erred in

denying his motion to suppress the incriminating statements made to

the police following his arrest, in that the government failed to

establish that he knowingly and voluntarily waived his Miranda

rights. Specifically, he asserts that the record evidence

demonstrates that he lacked an adequate level of intellectual

functioning and comprehension, and that the police coercively

withheld food from him for up to eight hours following his arrest.

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 1. The Standard of Review

We review the denial of a motion to suppress under a

bifurcated standard. With respect to determinations on matters of

law, including whether the totality of the attendant circumstances

demonstrate that the defendant’s statement was knowing and

voluntary, we review de novo, whereas subsidiary findings of fact

are reviewed for clear error. See United States v. Marenghi, 109

F.3d 28, 31-32 (1st Cir. 1997).

2. The Alleged Post-Arrest Deprivation of Food

It is undisputed that the police administered the Miranda

warnings – including the right to refrain from self-incrimination

– on several occasions following Rojas-Tapia's January 2 arrest,

both verbally and in writing, and that Rojas-Tapia told police that

he understood the warnings. Thus, the sole question on appeal is

whether Rojas-Tapia waived his Miranda rights.

A waiver of Miranda rights must be “voluntary” and

“knowing”:

[T]he relinquishment of the right must have
been voluntary in the sense that it was the
product of a free and deliberate choice rather
than intimidation, coercion, or deception. . .
. [T]he waiver [also] must have been made with
a full awareness of both the nature of the
right being abandoned and the consequences of
the decision to abandon it. Only if the
“totality of the circumstances surrounding the
interrogation” reveal both an uncoerced choice
and the requisite level of comprehension may a
court properly conclude that the Miranda
rights have been waived.

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Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation omitted); see

Miranda v. Arizona, 384 U.S. 436, 444 (1966). After assessing the

totality of the circumstances attending a defendant’s confession,

see, e.g., 18 U.S.C. § 3501(b),1 we will affirm the denial of a

motion to suppress provided the government proved, by a mere

preponderance of the evidence, that there was a valid waiver. See

Colorado v. Connelly, 479 U.S. 157, 168 (1986); Lego v. Twomey, 404

U.S. 477, 489 (1972).

First, Rojas-Tapia contends that the government failed to

1
Section 3501(b) provides a nonexclusive list of relevant
circumstances:

The trial judge in determining the issue of
voluntariness shall take into consideration
all the circumstances surrounding the giving
of the confession, including (1) the time
elapsing between arrest and arraignment of the
defendant making the confession, if it was
made after arrest and before arraignment, (2)
whether such defendant knew the nature of the
offense with which he was charged or of which
he was suspected at the time of making the
confession, (3) whether or not such defendant
was advised or knew that he was not required
to make any statement and that any such
statement could be used against him, (4)
whether or not such defendant had been advised
prior to questioning of his right to the
assistance of counsel; and (5) whether or not
such defendant was without the assistance of
counsel when questioned and when giving such
confession. The presence or absence of any of
the above-mentioned factors to be taken into
consideration by the judge need not be
conclusive on the issue of voluntariness of
the confession.

18 U.S.C. § 3501(b).

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prove that his confession was “voluntary,” because the record

evidence demonstrates that the police failed to provide him food

for up to eight hours after his arrest.

Among the totality of factors which may be material in

determining the voluntariness of a confession is whether law

enforcement officials subjected defendant to physically coercive

punishment, such as an unreasonable deprivation of food or sleep.

See Schneckloth v. Bustamonte, 412 U.S. 218, 220 (1975); United

States v. Gillaum, 372 F.3d 848, 856-57 (7th Cir.), cert. denied,

543 U.S. 969 (2004); e.g., Sims v. Georgia, 389 U.S. 404, 407

(1967) (finding confession involuntary where, inter alia, defendant

had been in custody for eight hours without food); Brooks v.

Florida, 389 U.S. 413, 414-15 (1967) (same, statement obtained

after suspect was deprived of adequate food and was detained naked

in a small cell); Reck v. Pate, 367 U.S. 433, 441 (1961) (same,

statement obtained after depriving suspect of adequate food, sleep,

and contact with family); Taylor v. Maddox, 366 F.3d 992, 1015 (9th

Cir.) (same, statement by 16-year-old who was interrogated for

three hours, and was given no food or water), cert. denied, 543

U.S. 1038 (2004). Plainly, one can envision circumstances in which

such deprivations of basic physical necessities would undermine a

defendant's will and ability to resist coercive police

interrogation.

In the instant case, however, we need not determine in

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what particular circumstances a post-arrest deprivation of food

would contribute to the coercion of a confession, since there is no

clear error in the district court’s determination that the

government established, by a preponderance of the evidence, that

Rojas-Tapia had been provided with food before his confession. See

Marenghi, 109 F.3d at 31-32. The government adduced the eyewitness

testimony of Police Agent Richard Rivera Cortes – one of the

officers who interviewed Rojas-Tapia the day he was arrested – that

Rojas-Tapia had received food prior to volunteering his confession:

Q: [Y]ou mentioned also food.
A: Yes, sir.
Q: Did you saw (sic) with your own eyes anyone giving
food to Mr. Rojas-Tapia?
A: Yes, sir. Yes, sir, I did.
Q: At what time?
A: I believe it was four something, four forty five,
something like that.
Q So, the food was given to Mr. Rojas-Tapia exactly
before he was interviewed. That is your testimony.
A: Yes, sir.

Moreover, Agent Cortes testified that, far from being overborne or

distressed by hunger, Rojas-Tapia consumed little of the food made

available to him. Cf. United States v. Gamez, 301 F.3d 1138, 1145

(9th Cir. 2002) (noting that defendant “was offered but declined a

drink prior to each interrogation,” and “never asked for food”).2

2
Rivera Cortes repeatedly stated that Rojas-Tapia received
food:

A: I believe, we approximately arrived about three or
four [p.m.], and we were waiting for the arrested
individuals who had been arrested at that time to
be supplied with medical attention and food.

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Rivera Cortes’ unequivocal testimony was more than sufficient to

satisfy the government’s burden of proof. See United States v.

Marshall, 348 F.3d 281, 284 (1st Cir. 2003) (observing that we

normally defer to the district court’s resolution of witness

credibility issues arising in connection with a motion to

suppress). As Rojas-Tapia did not testify in support of the

suppression motion, the record contains no direct evidence to

contradict Rivera Cortes’ testimony that Rojas-Tapia was provided

with food.3

Rojas-Tapia cites other evidentiary snippets, none of

. . . .
A: [W]e had to wait for them to get their food and
medical attention, sir [before interviewing
defendants].
. . . .
Q: Okay, so the first time you saw Mr. Rojas-Tapia was
after four P.M.?
A: Yes, sir.
Q: Which was more or less the same time you saw him
eating?
A: More or less, sir.
. . . .
Q: You didn’t start your interview until he had
finished eating?
A: That is correct sir and if I am not mistaken sir, I
don’t think he really didn’t want to eat that day.
Q: He didn’t eat?
A: If he nibbled the food, because I remember even his
brother, Rojas-Tapia, couldn’t eat.
3
The government bore the burden of proof on the motion to
suppress, Connelly, 479 U.S. at 168, and Rojas-Tapia had every
right to refrain from testifying, thereby putting the government to
its proof. We note Rojas-Tapia’s failure to testify only to the
extent that his decision not to testify left the government’s
evidence – viz., Rivera Cortes’ testimony – uncontradicted.

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which conclusively undermines Rivera Cortes’ unequivocal

testimony.4 For example, Police Agent Javier Requena Mercado

testified that he could not remember whether or not he saw Rojas

receive water. However, a witness’s lack of memory normally

generates simply a credibility issue for the factfinder, rather

than a negative inference (viz., that Rojas-Tapia received no food)

as a matter of law. See, e.g., Bushkin Assocs., Inc. v. Raytheon

Co., 815 F.2d 142, 149 (1st Cir. 1987). Further, Requena Mercado

was never asked whether Rojas-Tapia received food.

FBI Task Force Agent Luis Sosa, who participated in the

questioning during which Rojas-Tapia confessed, testified that he

had not seen Rojas-Tapia eating:

Q: Can you tell me if you, at any time saw Mr. Jesus
Rojas-Tapia eating any food in that afternoon,
during that afternoon?
A: No, I was guarding his brother. He indeed was
eating.
Q: So, you saw Jose Rojas, Gordy, eating, but you
didn’t see Mr. Jesus Rojas eating any food?
A: Yes.
. . . .
Q: Do you remember more or less at what time did you
arrive at the interview room to interview Mr. Jesus

4
Notably, Rojas-Tapia did not include this “deprivation”
argument in his original written motion to suppress, but raised it
orally after hearing the testimony presented at the suppression
hearing. It is arguable that this constituted a waiver, given that
Rojas-Tapia presumably knew at the time he filed his written motion
whether he had been deprived of food, and his argument did not
depend on the police agents’ testimony on this matter. See United
States v. Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001) (noting
that defendant normally cannot delay filing a motion to suppress
unless supportive evidence was a “surprise”). As the district
court decided the issue, however, we address it.

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 Rojas-Tapia?
A: The exact, not the exact hour, it was in the
afternoon, because we had to wait for them to eat.
Q: But the fact is that when you go (sic) to the
interview room, you didn’t see Mr. Rojas-Tapia eat,
nor you (sic) saw left overs (sic) there in the
room?
A: No.

The Sosa testimony cannot conclusively establish that Rojas-Tapia

received no food, however, given that (i) Sosa conceded that he was

not in constant surveillance of the defendant because he was

charged with guarding his brother Jose, and (ii) Sosa might have

arrived at the interview room only after Rojas-Tapia had finished

his meal. The lack of leftovers could suggest either that Rojas-

Tapia consumed the entire meal, or that any leftovers had been

removed from the room before Sosa’s arrival.

Police Agent Borrero Torres was asked: “[D]uring all

that time [before noon to 5-6 p.m.] you didn’t saw (sic) Mr. Rojas-

Tapia eat any food?” Torres replied: “Food, during the time that

I was there, no, water.” The Borrero Torres testimony did not

contradict Rivera Cortes’ testimony that he saw Rojas-Tapia eating,

however, since the record does not establish that Agent Borrero

Torres was constantly in attendance with Rojas-Tapia during the

relevant time interval, and it is unlikely that he would have

guarded Rojas-Tapia for five or six hours with no break. Finally,

Borrero Torres was asked whether "any of the detainees received any

food or water?” He replied: “Yes, water, they were given water.”

As the question was phrased in the disjunctive, however, Borrero

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Torres’ answer would have been entirely accurate whether or not

Rojas-Tapia had received food as well.

Since the government adduced uncontradicted evidence that

Rojas-Tapia received food before his confession, the district

court’s factual determination that no actionable deprivation

occurred cannot have been clearly erroneous. Therefore, this

factor need be considered no further in assessing the totality of

circumstances attending the Rojas-Tapia confession. See, e.g.,

United States v. Spruill, 296 F.3d 580, 589 (7th Cir. 2002) (“There

is no evidence that [defendant] complained during the day about

feeling ill or hungry and he was given food on several

occasions.”).

3. Borderline Intellectual Functionality

As concerns the question whether the waiver of Rojas-

Tapia's Miranda rights was “knowing,” he primarily cites to the FTC

mental evaluation, which states that he had a “[p]oor range of

intellectual functioning, rating in the 3rd, 2nd, and 5th

percentile in intellectual functioning tests performed on him,” and

characterizes Rojas-Tapia's intellectual functioning as

“[b]orderline,” viz., quantified as an I.Q. (“intelligence

quotient”) of 71. The report further notes that Rojas-Tapia’s

“understanding of the legal process should not be assumed,” then

recommends that Rojas-Tapia be permitted “regularly” to consult

with his attorney at trial, and be required “to restate information

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in his own words to ensure an adequate level of understanding.”

The waiver inquiry ultimately turns not upon any one

factor, but upon all the attendant circumstances, see Arizona v.

Fulminante, 499 U.S. 279, 285 (1991), including “both the

characteristics of the accused and the details of the

interrogation,” Schneckloth, 412 U.S. at 226; see United States v.

Faulkingham, 295 F.3d 85, 90 (1st Cir. 2002), cert. denied, 542

U.S. 953 (2004). More particularly, the fact that Rojas-Tapia has

a relatively low I.Q., standing alone, is not dispositive of the

waiver determination. A defendant's mental state or condition, by

itself and apart from its relationship to official coercion, is

never dispositive of the inquiry into constitutional voluntariness.

See Connelly, 479 U.S. at 164; United States v. Palmer, 203 F.3d

55, 61-62 (1st Cir. 2000). Rather, “[t]he voluntariness of a

waiver of this privilege has always depended on the absence of

police overreaching, not on ‘free choice’ in any broader sense of

the word.” Connelly, 479 U.S. at 170.

For several reasons, the evidence Rojas-Tapia cites from

the FTC evaluation is insufficient to render his statements either

unknowing or involuntary. The FTC evaluation contains other

language which suggests that Rojas-Tapia’s lack of mental acuity is

far less dire. For instance, it concludes that he was free of any

debilitating mental illness, and had sufficient comprehension to

render him competent to stand trial. See United States v. Muriel-

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Cruz, 412 F.3d 9, 13 (1st Cir. 2005) (noting that, to be found

competent to stand trial, “‘a defendant must be able to understand

the proceedings against him and have sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding.’”) (emphasis deleted; citation omitted). Further,

the FTC evaluation concluded that Rojas-Tapias functioned within

normal range in important areas which implicate the circumstances

of Rojas-Tapia’s confession, such as orientation, language

comprehension, naming ability, memory, abstract reasoning and

judgment.

Law enforcement officers credibly testified that the

Rojas-Tapia confession was lucid and articulate, see United States

v. Solis, 299 F.3d 420, 439-40 (5th Cir. 2002) (noting that

observations as to defendant’s demeanor and articulateness during

a confession are evidence relevant to whether confession was

knowing and voluntary), and that he volunteered during the routine

booking interview that he wanted to make the statements, even after

the officers once again reminded him that he was entitled to remain

silent and/or request the presence of an attorney, see United

States v. Duarte, 160 F.3d 80, 81-82 (1st Cir. 1998) (finding no

coercion where defendant confessed during a routine, low-pressure

booking interview). More importantly, Rojas-Tapia cites no other

record evidence of police coercive tactics – besides his failed

allegation that he was deprived of food, see supra – which might

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lead us to infer that the police intentionally preyed upon his

alleged intellectual deficiencies. See Connelly, 479 U.S. at 170.

Finally, as the district court aptly noted, Rojas-Tapia

was hardly a neophyte in the criminal justice system, but had an

extensive prior record (viz., Criminal History Category III,

including convictions for attempted armed robbery in 1992 and

1994). Thus, the district court reasonably believed that, whatever

the deficiencies in his intellectual functioning, Rojas-Tapia’s

repeated earlier exposure to Miranda warnings made it extremely

unlikely that he failed to understand his rights at the time he

made these incriminating statements. See Palmer, 203 F.3d at 61

(observing that sixteen prior arrests constituted competent

evidence of adequate comprehension); see also United States v.

Glover, 431 F.3d 744, 748 (11th Cir. 2005); United States v.

Pruden, 398 F.3d 241, 246 (3d Cir. 2005); Taylor, 366 F.3d at 1015;

United States v. Morris, 247 F.3d 1080, 1090 (10th Cir. 2001);

Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995). Indeed,

it is in this context that the FTC mental evaluation – that Rojas-

Tapia possessed normal capacities for memory and judgment – is the

most telling.

Given these factors, we conclude that even assuming the

medical evidence of Rojas-Tapia’s intellectual limitations –

specifically, relatively low I.Q. – were to be credited, those

limitations did not result in a confession which was other than

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“knowing” in the constitutional sense. See, e.g., Clark v.

Mitchell, 425 F.3d 270, 283 (6th Cir. 2005) (“The inquiry is not

whether ‘a criminal suspect know[s] and understand[s] every

possible consequence of a waiver of the Fifth Amendment privilege.’

That [defendant] had borderline retardation (in the words of Dr.

Kisin) or ‘low average intellect’ (in the words of Dr. Gelbort) is

not dispositive. Our sister circuits have found several instances

where defendants, despite their mental retardation or low I.Q.'s,

were found to have waived their rights knowingly and

intelligently.”) (citations omitted); United States v. Turner, 157

F.3d 552, 555 (8th Cir. 1998) (holding that defendant's borderline

I.Q. did not prevent a knowing and intelligent waiver); Rice v.

Cooper, 148 F.3d 747, 750-51 (7th Cir. 1998) (holding that mildly

retarded defendant gave a valid waiver because police had no reason

to suspect that he did not understand the warnings); Correll, 63

F.3d at 1288 (finding confession by defendant with an I.Q. of 68

knowing and voluntary where he had received Miranda warnings in the

past); Winfrey v. Wyrick, 836 F.2d 406, 411 (8th Cir. 1987) (“The

primary facts suggesting coercion are [defendant’s] age and low IQ.

Yet, in past cases this court considered facts similar to these and

held that confessions were voluntary.”).

As neither ground for the Rojas-Tapia suppression motion

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had merit, we affirm the denial of the motion.5

B. The Booker Sentencing Remand

Rojas-Tapia contends that we must remand for resentencing

in light of United States v. Booker, 543 U.S. 220 (2005), wherein

the Court held that the Sentencing Guidelines were merely advisory,

rather than mandatory. Id. at 245-46. As Rojas-Tapia did not

preserve the Booker error, however, he bears the burden on appeal

to point to circumstances creating a reasonable probability that

the district court would impose a different sentence more favorable

to the defendant under the new advisory Guidelines’ Booker regime.

See United States v. Baskin, 424 F.3d 1, 4 (1st Cir. 2005); United

States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

Rojas-Tapia bases the remand request on the contention

that the district court felt compelled to deny him a departure for

5
Although we need not reach the issue, we note that the
government makes a persuasive argument that the admission of Rojas-
Tapia’s confession, even if it had violated his rights, nonetheless
would be considered harmless, given other independent record
evidence of his complicity in the helicopter hijacking.

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“diminished capacity,” see U.S.S.G. § 5K2.13,6 specifically caused

by his borderline intellectual functioning and troubled family

history. The record belies his contention. The district court

stated:

Although . . . there is some information that
would indicate that the court could be lenient
with him in view of his background insofar as
drug abuse and dysfunctional family
atmosphere, nevertheless the drug abuse is
self induced and [he has] his previous
contacts with the law . . . . The defendant’s
request for a downward departure pursuant to
[§ 5K2.13], that is the guideline for
diminished capacity, is hereby denied. . . .
Based on all the available information,
including the forensic evaluation prepared by

6
Section 5K2.13 provides:

A downward departure may be warranted if (1) the
defendant committed the offense while suffering from a
significantly reduced mental capacity; and (2) the
significantly reduced mental capacity contributed
substantially to the commission of the offense.
Similarly, if a departure is warranted under this policy
statement, the extent of the departure should reflect the
extent to which the reduced mental capacity contributed
to the commission of the offense.
However, the court may not depart below the
applicable guideline range if (1) the significantly
reduced mental capacity was caused by the voluntary use
of drugs or other intoxicants; (2) the facts and
circumstances of the defendant's offense indicate a need
to protect the public because the offense involved actual
violence or a serious threat of violence; (3) the
defendant's criminal history indicates a need to
incarcerate the defendant to protect the public; or (4)
the defendant has been convicted of an offense under
chapter 71, 109A, 110, or 117, of title 18, United States
Code.

U.S.S.G. 5K2.13.

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 the United States Bureau of Prisons, all this
evidence does not support the defendant’s
position. Furthermore, the subject policy
statement of the guideline goes on to prohibit
such a departure if the significantly reduced
mental capacity was caused by the voluntary
use of drugs and other intoxicants, [and] the
facts and circumstances of the defendant’s
offense indicate a need to protect the public
because the offense involved actual violence .
. . .

It is clear from this quotation that the district court agreed with

the policy statement, and was not of the view that the specific

facts of this case entitled the defendant to leniency on the basis

of his alleged “diminished capacity.” We have declined to allow a

Booker remand in comparable cases, where the “diminished capacity”

evidence was available and presented to the district court, “yet

[the district court] demonstrated no inclination to consider [it]

grounds for departure.” United States v. Mojica-Rivera, 435 F.3d

28, 34 (1st Cir. 2006); see United States v. Morrisette, 429 F.3d

318, 325 (1st Cir. 2005) (“For example, in denying the ‘diminished

capacity’ departure, the court stated: ‘[T]he psychiatric report .

. . does not establish that [his] significantly reduced mental

capacity contributed substantially to the commission of this

offense.”); see also United States v. Martins, 413 F.3d 139, 154

(1st Cir. 2005) (“Nearly all the factors to which [defendant]

alludes were limned in the PSI Report, yet the district court chose

not to speak to them at sentencing. The inference is that the

court was unimpressed.”).

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 Even assuming, arguendo, that the above-quoted language

was less than clear, the district court gave no other indication at

sentencing that it considered the Guidelines sentence either unfair

or inappropriate, see Antonakopoulos, 399 F.3d at 81 (stating that

there is a powerful argument for remand when a district court has

expressed its belief that a Guidelines sentence is unfair or

unjust), and instead went out of its way to paint Rojas-Tapia in

the most vivid light as a dangerous recidivist. Since the district

court exercised its pre-Booker discretion to sentence Rojas-Tapia

at the top of the applicable guidelines sentencing range (viz.,

electing to impose 365 months from a range of 292-365 months),

obviously the court was not inclined to be lenient to Rojas-Tapia.

See United States v. Tavares, 427 F.3d 122, 126 (1st Cir. 2005)

(noting that sentence above bottom of applicable Guidelines range

is evidence which undermines Booker remand request). Further, the

court emphasized that a lengthy sentence was warranted in the

interests of protecting society from this defendant, given the

egregious circumstances attending his conduct during the helicopter

highjacking. See Baskin, 424 F.3d at 4 (noting that district

court’s comment that sentence was necessary to protect society may

be indicative of court’s predilection not to be lenient even under

the post-Booker sentencing regime). The district court expressly

noted several factors which “certainly tilt the scales in the area

of the upper end of the guideline range”: (i) Rojas-Tapia was a

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recidivist with an extensive criminal history (Category III),

including offenses involving violence and firearms, and violations

of probation, which “indicates a need to incarcerate the defendant

to protect the public”; (ii) the scheme to highjack the helicopter

to accomplish the prison escape was fairly complex, elaborate and

premeditated, requiring coordination with the prison inmates; (iii)

Rojas-Tapia held the helicopter pilot at gunpoint for hours,

threatened to shoot and kill him, and repeatedly struck him in the

face; and (iv) the pilot was emotionally traumatized by the

experience, so much so that, after his release, he telephoned his

wife to ask if his children were alive.

Given these circumstances, we conclude that there is no

“reasonable probability that the district court would impose a

different sentence more favorable to the defendant under the new

advisory Guidelines' Booker regime,” see Antonakopoulos, 399 F.3d

at 75, and thus affirm the sentence imposed by the district court.

Affirmed.

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