United States v. Vazquez-Rivera

United States Court of Appeals
For the First Circuit

No. 05-2632

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE A. VÁZQUEZ-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.

Héctor L. Ramos-Vega, Research & Writing Specialist, Federal
Public Defender's Office, with whom Joseph C. Laws, Jr., Federal
Public Defender, were on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Senior
Appellate Attorney, with whom H.S. García, United States Attorney,
and Germán A. Rieckehoff, Assistant United States Attorney, were
on brief, for appellee.

December 12, 2006

*
Of the Sixth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Jorge A. Vázquez-Rivera

("Vázquez") was convicted of one count of conspiracy to distribute

cocaine, in violation of 21 U.S.C. § 846. The district court

sentenced Vázquez to 210 months in prison. Vázquez appealed, and

we remanded his case for re-sentencing in accordance with United

States v. Booker, 543 U.S. 220 (2005). United States v. Vázquez-

Rivera, 407 F.3d 476 (1st Cir. 2005). On remand, the district

court again sentenced Vázquez to 210 months in prison. Vázquez now

appeals this sentence. After careful consideration, we affirm.

I. Background

On June 16, 1999, Vázquez and four other persons were

indicted on charges of conspiracy to distribute cocaine. Vázquez

voluntarily surrendered to the police on July 28, 1999. All of

Vázquez's co-defendants pled guilty pursuant to plea agreements and

received sentences ranging from 24 to 120 months in prison.

Vázquez contested the charges against him. At trial, various

prosecution witnesses testified as to the amounts of cocaine which

they had sold or observed being sold to Vázquez. Witnesses also

testified as to the presence of weapons at the drug point that

Vázquez administered. After a jury trial, Vázquez was convicted on

the sole count of conspiracy to distribute cocaine. The court

sentenced Vázquez to 210 months in prison based, in part, on the

mandatory nature of the Sentencing Guidelines.

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 Vázquez appealed his conviction and his sentence to this

Court. We affirmed Vázquez's conviction, but remanded his case to

the district court for resentencing on the ground that his original

sentence was pronounced in violation of Booker. Vázquez-Rivera,

407 F.3d 476.

Prior to resentencing, Vázquez submitted a sentencing

memorandum to the district court. In the memorandum, he argued

that the evidence supported neither the drug quantity that the pre-

sentence report attributed to him nor the finding in the pre-

sentence report that he could have foreseen the involvement of a

weapon in the conspiracy to distribute cocaine. Vázquez also

argued that the court should deviate from the Sentencing Guidelines

range to reduce sentencing disparities between him and his co-

defendants. Lastly, Vázquez suggested that the nature of his

offense and his personal characteristics warranted a sentence below

the Guidelines range.

The court held a sentencing hearing for Vázquez on

September 30, 2005. During the hearing, the court stated:

We are not in agreement with the grounds put
forth whereby we should depart from a
Guidelines sentence in this case. Let me
state for the record that this court, this
Judge, that it will generally heed to the
Guidelines in imposing criminal punishment.
No doubt some criminal defendants will be
disappointed by this result, yet in the long
run such an approach may be the best way to
develop a fair and consistent sentencing
scheme around the country for the benefit of
defendants, victims and the public. The

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 Congressional view of how to structure that
sentencing will surely be informed by how
judges conform to the new advisory guideline
system. If that discretion is exercised
responsibly Congress may be inclined to give
judges greater flexibility under a new
sentencing system. On the other hand if that
discretion is abused by sentences that thwart
Congressional objectives, Congress has ample
reason to deny us that flexibility. The
course, in my opinion today, is to faithfully
implement the Congressional purposes
underlying the sentences format by following
the Guidelines in all but unusual cases. I
find that this is not an unusual case and that
the application of the Guidelines are
reasonable in this case.

The court then sentenced Vázquez to 210 months in prison. Vázquez

now appeals from this sentence.

II. Discussion

Vázquez contests his sentence on two grounds. First,

Vázquez argues that the evidence at trial was insufficient to

support various aspects of his sentence. Second, Vázquez contends

that his sentence is procedurally defective because the sentencing

court failed to adequately explain his sentence and is

substantively unreasonable because the court gave improper weight

to the Sentencing Guidelines.

A. Sufficiency of the Evidence

Vázquez's first argument is that the evidence presented

at trial was insufficient to support either the individualized drug

quantity or the involvement of weapons that were used to determine

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his sentence.1 We review a sentencing court's findings of fact for

clear error and their conclusions of law de novo. United States v.

Antonakopoulos, 399 F.3d 68, 82 (1st Cir. 2005).

1. Drug Quantity

Vázquez contends that the court erred in calculating the

quantity of drugs personally attributable to him for sentencing

purposes. In Derman v. United States, 298 F.3d 34, 43 (1st Cir.

2002), we held that:

[o]nce the jury has determined that the
conspiracy involved a type and quantity of
drugs sufficient to justify a sentence above
the default statutory maximum and has found a
particular defendant guilty of participation
in the conspiracy, the judge lawfully may
determine the drug quantity attributable to
that defendant and sentence him accordingly.

The judge may determine the drug quantity by a preponderance of the

evidence. United States v. Santos, 357 F.3d 136, 140 (1st Cir.

2004).

Vázquez concedes that the sentencing court had the

following testimony. First, Edwin Meléndez-Negrón testified that

on "approximately" 20 occasions, he either sold or purchased one

kilogram of cocaine to or from Vázquez. Second, Alberto Negrón-

1
Vázquez also states that he challenges the sentencing
enhancement for his role as supervisor in the drug conspiracy.
However, beyond this statement, he provides no additional reasoning
or argument why this was error. As such, we decline to address the
argument. United States v. Soto-Beníquez, 356 F.3d 1, 31 (1st Cir.
2003) ("Because this argument is made in a perfunctory manner,
unaccompanied by any effort at developed argumentation, it has been
waived.").

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Constantino testified that he had sold "some kilos" to Vázquez's

brother, which were, in fact, destined for Vázquez himself. Third,

José Borrero Feliciano testified that the Ceiba drug point, which

Vázquez managed, sold "an eighth" of cocaine on a daily basis.

Vázquez argues that because some of these witnesses prefaced their

calculations with the word "around" or "approximately," their

testimony is inherently unreliable. However, we have said

previously that a sentencing court need not determine an exact

amount of drugs, but may instead make a "reasoned estimate" of the

drug quantity attributable to the defendant. United States v.

Huddleston, 194 F.3d 214, 224 (1st Cir. 1999). Given this

testimony, we conclude that the court had ample evidence on which

to base its conclusion that at least five kilograms of cocaine were

attributable to Vázquez.

2. Weapons in the Conspiracy

Vázquez also argues that the court had insufficient

evidence to support the enhancement under U.S.S.G. § 2D1.1(b)(1)

for possession of a "dangerous weapon (including a firearm)." We

have held that a defendant charged with conspiracy is accountable

for all "'reasonably foreseeable' conduct undertaken by others" in

furtherance of the conspiracy. United States v. Bianco, 922 F.2d

910, 912 (1st Cir. 1991). Thus, to determine whether the

sentencing enhancement for possession of a dangerous weapon can be

imposed, the sentencing court may consider not only whether Vázquez

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personally possessed a dangerous weapon, but also whether "it was

reasonably foreseeable that a co-conspirator would possess a gun in

furtherance of the [conspiracy to distribute cocaine]." United

States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004).

The sentencing court had the following evidence about the

involvement of firearms in the conspiracy. First, Alberto Negrón-

Constantino testified that he sold firearms to "Hiram," who was a

runner for the drug point managed by Vázquez. Second, Alexander

Figueroa testified that he gave a shotgun to the person in charge

of storing firearms at the drug point. Third, David Sánchez Ortiz,

who sold drugs to Vázquez through his brother, testified that he

regularly carried a firearm for protection. Lastly, Edwin

Meléndez-Negrón, who purchased cocaine from Vázquez, testified that

he also carried a firearm for protection.

We find that this is sufficient evidence to establish the

use of firearms to further the conspiracy to distribute cocaine.

Further, we believe that the evidence presented is sufficient to

allow an inference that Vázquez, who was the manager of the drug

point, was likely aware or could have foreseen that many of the

people who worked for him carried or used firearms. As we have

noted before, "a defendant's awareness of the inner workings of a

conspiracy in which he is participating . . . frequently will

suffice to prove the defendant's ability to foresee the acts of

coconspirators." United States v. LaCroix, 28 F.3d 223, 229 (1st

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Cir. 1994). As Vázquez has conceded, testimony at trial showed

that Vázquez "allegedly exercised decision making authority to

facilitate the delivery of narcotics, was in charge of buying,

processing, and distributing the narcotics to the peddlers, and he

would be responsible for retrieving the proceeds, verifying the

status of the inventory and supervising the day-to-day operation of

the drug point." Appellant's Br. 10. Given Vázquez's intimate

involvement in the operations of the drug point, the court did not

err in concluding that Vázquez could have foreseen that many of his

employees and suppliers were armed.

B. Reasonableness of the Sentence

Next, Vázquez argues that his sentence is procedurally

and substantively flawed. He first argues that the sentencing

court inadequately explained its justification for his sentence as

required by 18 U.S.C. § 3553(c). Vázquez alternatively argues that

even if the district court complied with § 3553(c), it gave undue

weight to the Sentencing Guidelines in determining his sentence.

We review sentences for reasonableness. United States v. Booker,

543 U.S. 220, 260-63 (2005); see also Antonakopoulos, 399 F.3d at

76.

1. Justification for the Sentence

Vázquez claims that the court did not adequately explain

the reasoning behind his sentence as required by 18 U.S.C. § 3553

(c). We said in United States v. Jiménez-Beltre that "it is

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important for us to have the district court's reasons for its

sentence"; however, the reasons need not be explicit: "[A] court's

reasoning can often be inferred by comparing what was argued by the

parties or contained in the pre-sentence report with what the judge

did." 440 F.3d 514, 519 (1st Cir. 2006);see also United States v.

Navedo-Concepción, 450 F.3d 54, 57 (1st Cir. 2006) ("The more

obvious the reasons for a [sentencing] choice, the less that needs

to be explained."). Although the court did not specifically reject

Vázquez's arguments during the pronouncement of the sentence, it

did explain that it had found by a preponderance of the evidence

that at least five kilograms of cocaine could be attributed to

Vázquez, that a weapon was foreseeable, and that it considered

every one of the factors enumerated in § 3553(a) that it is

required to consider. The court further stated that it was basing

its sentence on the fact that

[D]efendant was a runner or administrator of a
drug point, he had decision making authority
to facilitate the delivery of narcotics, was
in charge of buying, processing, and
distributing drugs at the drug point. He was
also responsible for supervising the
operations of the drug point. Moreover there
were people who participated in this
conspiracy that possessed, carried, used and
brandished firearms and defendant was aware of
the same.

In addition, prior to the pronouncement of sentence, the

court specifically stated that it did not agree with Vázquez's

disparity argument because plea bargains were "very valuable for

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the system." Given these explanations, we find it easy to infer

that the sentencing court did not find Vázquez's arguments

regarding sentencing disparities or the sufficiency of the evidence

persuasive and that it thought that a sentence based on the

Guidelines recommendation was warranted. Accordingly, we find the

sentencing court's reasoning to be sufficient to comply with 18

U.S.C. § 3553(c) and to provide us with a base to analyze Vázquez's

other claims.

C. Consideration of Sentencing Factors

The crux of Vázquez's argument regarding sentencing is

that, had the sentencing court not treated the Sentencing

Guidelines as applicable in all but unusual cases, it would have

been free to give more weight to other sentencing factors, namely

sentencing disparity. As an initial matter, we think it necessary

to point out that the sentencing court misconstrued the role of the

Sentencing Guidelines. As we stated in Jiménez-Beltre, "[a]lthough

making the guidelines 'presumptive' or 'per se reasonable' does not

make them mandatory, it tends in that direction." 440 F.3d at 518.

By stating that it will "heed" to the Sentencing Guidelines, the

sentencing court in the present case appeared to treat the

Sentencing Guidelines as presumptively applicable. By stating that

it would apply the Guidelines in all but "unusual cases," the

court's language arguably went even further than the language at

issue in Navedo-Concepción, 450 F.3d at 57, that we described as a

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modest variance from Jiménez-Beltre. Our holding in Jiménez-Beltre

makes it clear that a case need not be unusual for a sentencing

court to consider the other factors in 18 U.S.C. § 3353(a).

Our review of Vázquez's sentence, however, is for

reasonableness. Considering the substantial weight of the

Sentencing Guidelines and the § 3553(a) factors, we do not find

that his sentence was unreasonable. Vázquez suggests that had the

sentencing court not construed the Guidelines as applicable in all

but unusual cases, it would have been free to consider his

suggestion of a lower sentence to reduce sentencing disparities.

Under 18 U.S.C. § 3553(a)(6), the sentencing court is obliged to

consider "the need to avoid unwarranted sentence disparities" among

similarly situated defendants (emphasis added). Vázquez argues

that the sentence he received is unwarranted because it punishes

his decision to contest the charges against him rather than enter

into a plea bargain.

It is well established that the plea bargaining system

does not impermissibly punish a defendant's choice to go to trial

rather than to plead guilty: "The legitimacy of the practice of

'plea bargaining,' . . . has not been doubted and where 'properly

administered' it is to be 'encouraged' as an 'essential' and

'desirable' 'component of the administration of justice.'" Chaffin

v. Stynchcombe, 412 U.S. 17, 31 n.18 (1973) (quoting Santobello v.

New York, 404 U.S. 257, 260-61 (1971)). In United States v. Yeje-

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Cabrera, we held that "a defendant simply has no right to a

sentence, after trial, that is as lenient as a sentence he could

have had earlier in a plea bargain." 430 F.3d 1, 26-27 (1st Cir.

2005); see also United States v. Rodríguez, 162 F.3d 135, 152 (1st

Cir. 1998) (stating that plea bargains lead to "sentencing

disparity for the defendants who chose to put the government to its

burden in proving its case. Nevertheless, the law allows the

government to do this, even if it results in sentences of such

disparity as would strike many as unfair."). Although a district

court may consider disparities among co-defendants in determining

a sentence, we do not find Vázquez's sentence to be unreasonable

simply because his co-defendants agreed to help the government in

exchange for reduced sentences. See United States v. Thurston, 456

F.3d 211, 216-17 (1st Cir. 2006) (noting that a defendant who

chooses to enter into a plea bargain is not similarly situated to

a defendant who contests the charges); see also Navedo-Concepción,

450 F.3d at 60 ("The district judge was not required to reduce [the

appellant's] sentence simply because he--unlike the other

defendants--chose to go to trial"). Further, the fact that Vázquez

was gainfully employed and is now married, as he notes in his brief

on appeal, simply makes his participation in this conspiracy all

the more unfortunate; however, this fact does not make his

sentence, already at the lower end of the Guidelines range,

unreasonable. Thus, given the Sentencing Guidelines

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recommendation, to which we attach substantial weight, and the

absence of any § 3553(a) factors militating in favor of a lower

sentence, we conclude that the sentence that the court imposed on

Vázquez was reasonable.

III. Conclusion

For the foregoing reasons, we affirm the district court.

Affirmed.

(Concurring opinion follows.)

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 HOWARD, Circuit Judge, concurring in the judgment. I

agree with the lead opinion that the sentence imposed in this case

is reasonable. I don't agree that the district judge "misconstrued

the role of the Sentencing Guidelines" by stating that it would

"heed" to the guidelines in all but "unusual cases." Ante at 10.

This formulation is not inconsistent with our recognition in

Jiménez-Beltre that the Guidelines are an "important" factor in

sentencing and provide the starting point for constructing a

reasonable sentence. See 440 F.3d at 518-19; see also 440 F.3d at

522 (Howard J., concurring in part and concurring in the judgment)

(the guidelines "in the ususal case" express Congress's view on the

purposes of federal sentencing).

District courts will inevitably approach sentencing

differently post-Booker. Indeed, the legitimacy of a range of

approaches is implicit in Booker's grant of added discretion to

sentencing judges. So long as the sentence is reasonable and the

approach is not unlawful, the appellate task is complete. See

United States v. Buchanan, 449 F.3d 731, 741 (6th Cir. 2006)

(Sutton, J., concurring).

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