United States Court of Appeals
For the First Circuit
No. 08-1800
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ CINTRÓN-ECHAUTEGUI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Lorenzo J. Palomares, with whom Lorenzo Palomares, P.S.C. was
on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney (Appellate
Chief), were on brief, for appellee.
April 14, 2010
SELYA, Circuit Judge. Defendant-appellant José Cintrón-
Echautegui, who pleaded guilty to a charge of conspiracy to
distribute controlled substances, alleges that the district court
erred in calculating drug quantity and, therefore, imposed an
overly harsh sentence. Discerning no error, we affirm the judgment
below.
Because this appeal follows a guilty plea, we draw the
facts from the change-of-plea colloquy, the presentence
investigation report (PSI Report), and the transcript of the
disposition hearing. See United States v. Santos, 357 F.3d 136,
138 (1st Cir. 2004); United States v. Dietz, 950 F.2d 50, 51 (1st
Cir. 1991).
A federal grand jury sitting in the District of Puerto
Rico indicted a number of suspected participants in a notorious
drug ring known as "Las Avispas." These individuals, including the
appellant, were charged with conspiring to distribute controlled
substances. See 21 U.S.C. §§ 841(a)(1), 846.
The appellant initially maintained his innocence. Along
with several codefendants, he went to trial on February 11, 2008.
After five days, however, he opted out of the trial and entered a
straight guilty plea, unaccompanied by any plea agreement.
Meanwhile, the trial continued as to six of his codefendants, all
of whom were eventually found guilty.
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During his change-of-plea hearing, the prosecutor
maintained that the appellant had sold drugs for Las Avispas during
a four-year span from 2003 to 2007. The appellant accepted this
account. In addition, he admitted to possessing 255 capsules of
crack cocaine, which contained, in the aggregate, 17.53 grams of
cocaine base.
In accordance with the customary routine, the district
court directed the probation department to prepare the PSI Report.
That report, when completed, was delivered to the prosecutor, the
appellant (through his counsel), and the court. We summarize
certain pertinent entries.
According to the PSI Report, Las Avispas purveyed an
assortment of drugs, including crack cocaine (cocaine base),
heroin, and marijuana. The report referenced trial testimony from
a cooperating witness, José Rivera-Díaz, who confirmed that Las
Avispas ran two drug points, each of which operated twenty-four
hours a day, seven days a week, fifty-two weeks a year (with the
exception of Holy Friday).
Each drug point was manned by three shifts of sellers
daily — a morning shift, an afternoon shift, and a night shift. On
average, each shift participant would sell approximately 200
capsules of crack cocaine, together with other kinds of drugs,
during each morning and afternoon shift. The night shifts were
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busier; each night-shift vendor would sell, on average, between 700
and 900 capsules of crack, along with other drugs.
The PSI Report summarized the trial testimony of a
forensic scientist. This portion of the report related that a
typical crack cocaine capsule sold by Las Avispas contained, on
average, .075 grams of cocaine base. Conservatively assuming
average sales of 1,000 capsules per day, the drug ring had annual
sales of 27.3 kilograms of cocaine base. Thus, during its four
years of operations, the drug ring sold an estimated total of 109.2
kilograms of cocaine base.
The PSI Report further noted that, at trial, the
scientist had been cross-examined about the methodology used to
determine the per-capsule amount of cocaine base. The scientist
responded that sampling was the method he had used, and that the
samples used were capsules actually seized from the Las Avispas
drug points. In the scientist's opinion, this sampling permitted
a reasoned determination of an average drug weight per capsule.
The PSI Report indicated, too, that a confidential
informant (CI) had identified the appellant as a seller of drugs
for Las Avispas. The CI stated that the appellant was "usually" at
one of the drug points, "dealing drugs" with two other members of
the ring (whom he named). Both of these men had been indicted
alongside the appellant.
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The PSI Report contained more information from the CI
about the appellant. For example, the CI identified the appellant
as having stored both guns and drugs for Las Avispas. Moreover,
the CI said that, on one occasion, the appellant had warned him
(the CI) that the police were en route to one of the drug points.
The PSI Report went into some detail anent possible
sentencing options. Among other things, the probation department
recommended a series of sentencing calculations premised on the
November 2007 edition of the guidelines (which controls here). It
suggested a base offense level of 38, premised on a drug quantity
of more than 4.5 kilograms of cocaine base. See USSG §2D1.1(a)(5),
(c)(1). It arrived at a total offense level of 40 after applying
various enhancing and mitigating adjustments, none of which is
controverted here. Placing the appellant in criminal history
category I, the probation department envisioned a guideline
sentencing range (GSR) of 292-365 months. See id. Ch. 5, Pt. A
(sentencing table).
The appellant interposed a timely objection to the
proposed drug quantity determination and, by fair implication, to
the calculations employed therein. He argued that the PSI Report
rested this determination on unreliable computations and, thus,
exaggerated his role in the conspiracy.1
1
The appellant initially objected to an upward adjustment for
use of a weapon in connection with a drug-trafficking offense, USSG
§2D1.1(b)(1), but he waived this objection at the disposition
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The district court convened the disposition hearing on
May 20, 2008. The appellant renewed his objection to the proposed
drug quantity. The government endorsed it. The court concluded
that the estimates for both the number of capsules sold and the
per-capsule drug weight were accurate. Nevertheless, the court
decided to use a set of related assumptions even "more favorable to
the [appellant]": it assumed that the appellant worked only daytime
shifts; that he worked only three shifts a week; and that he sold
an average of 200 capsules per shift.
Based on these assumptions, the court attributed 2.3
kilograms of cocaine base per year to the appellant. Taking into
account the four-year life of the conspiracy, the court attributed
a total drug quantity of 9.2 kilograms of crack to the appellant.2
All of these findings were grounded in the recitals contained in
the PSI Report.
With the drug quantity contretemps resolved, the court
proceeded to sentence the appellant to a 292-month incarcerative
term (the low end of the GSR). This timely appeal followed.
hearing.
2
The transcript of the disposition hearing lists this
quantity as 94.2 kilograms. This is obviously a scrivener's error;
the calculations elucidated by the court lead inexorably to a
quantity of 9.2 kilograms. Thus, we accept the latter figure. Cf.
United States v. Zapata, 1 F.3d 46, 47 n.2 (1st Cir. 1993)
(explaining that when a sentencing court refers to the wrong
edition of the guidelines but its "calculations faithfully track
the [correct] version," we will disregard the obvious slip of the
tongue).
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The appellant advances two principal claims of error.3
First, he argues that the sentencing court failed to make an
individualized finding of drug quantity. Second, he argues that,
in all events, the drug quantity determination was not supported by
competent evidence. We deal with these claims sequentially.
We begin with the nature of the sentencing court's drug
quantity determination. The appellant argues that the court made
a conspiracy-wide determination rather than an individualized
determination. Because the question of whether the district
court's drug quantity determination was based on an individualized
determination or not presents a question of law, our review is de
novo. See United States v. Colón-Solis, 354 F.3d 101, 102 (1st
Cir. 2004). If, however, the district court has engaged in an
individualized determination, our review is for clear error.
Sentences in drug cases are largely driven by the amount
and type of drugs involved. United States v. Sepulveda, 15 F.3d
1161, 1196-97 (1st Cir. 1993). When sentencing a participant in a
3
The appellant also argues that the district court erred in
using a special verdict form that was completed and returned by the
jury. He says, correctly, that by the time the verdict was
returned, he had pleaded guilty and, therefore, was not bound by
the verdict. But this argument is belied by the record. While the
court alluded to the special verdict form in passing, the appellant
is not mentioned on it. Moreover, the record does not indicate
that the court used either the form or the information contained
therein in constructing the appellant's sentence. Finally, the
conspiracy-wide drug quantity shown on the special verdict form —
"[f]ifty (50) grams or more" — bears no real relationship to the
court's drug quantity determination vis-à-vis the appellant.
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drug-trafficking conspiracy, the district court must make an
individualized finding concerning the quantity of drugs
attributable to, or reasonably foreseeable by, the offender.4
Colón-Solis, 354 F.3d at 103. In this case the sentencing court —
contrary to the appellant's allegation — recognized that rule and
complied with it. Although the court mentioned the conspiracy-wide
drug quantity — that figure was certainly relevant as a check on
the integers used in determining the amount of drugs attributable
to the appellant — it clearly made an individualized determination.
Specifically, the court attributed 9.2 kilograms of cocaine base to
the appellant personally. This individualized determination, in
turn, guided the court in fixing the appellant's base offense level
(38). See USSG §2D1.1(a)(5), (c)(1). Given the state of the
record, the appellant's first claim of error fizzles.
This brings us to the appellant's claim that the
sentencing court's drug quantity determination was insupportable.
The appellant advances three rationales in service of this claim.
First, the appellant suggests that the court erred by
sentencing him on the basis of a drug quantity beyond that which he
acknowledged at the change-of-plea hearing. This suggestion does
not accurately reflect the law.
4
There is an exception to this paradigm for cases in which
the defendant's sentence is controlled by a mandatory minimum term
of imprisonment required by an applicable statute. See, e.g.,
United States v. Goodine, 326 F.3d 26, 32-33 (1st Cir. 2003). This
is not such a case.
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Under the guidelines, a defendant may be held responsible
at sentencing for relevant conduct, including "all acts and
omissions committed . . . by the defendant." USSG §1B1.3(a)(1)(A);
see United States v. Ortiz-Torres, 449 F.3d 61, 78-79 (1st Cir.
2006). Relevant conduct for which the defendant may be sentenced
also includes, "in the case of a jointly undertaken criminal
activity . . . all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity."
USSG §1B1.3(a)(1)(B). Thus, relevant conduct beyond what a
defendant may admit during a plea colloquy may factor into the
sentencing calculus. See Ortiz-Torres, 449 F.3d at 78-80 (upholding
use of drug quantity greater than that admitted during change-of-
plea hearing).
This principle controls here. The appellant's admission
during the change-of-plea colloquy to possessing 17.53 grams of
cocaine base served primarily as an explicit factual basis for his
guilty plea. See Fed. R. Crim. P. 11(b)(3). It did not serve as
a ceiling on the amount of drugs that could properly be attributed
to him for sentencing purposes. "As an admitted participant in a
drug trafficking conspiracy, [the appellant] is responsible . . .
for drugs he himself sold, transported, or negotiated, as well as
for drug quantities attributable to others that are reasonably
foreseeable to him . . . ." Ortiz-Torres, 449 F.3d at 78-79. This
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is true even if the relevant conduct is uncharged, see USSG
§1B1.3(a); Santos, 357 F.3d at 140, or unconfessed.
Second, the appellant contests the quality of the
evidence in the sentencing record. In particular, he asserts that
his inability to cross-examine the witnesses whose testimony was
recounted in the PSI Report requires vacation of his sentence. This
assertion does not hold water.
The evidentiary requirements that obtain at sentencing
are considerably less rigorous than those that obtain in criminal
trials. See United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.
1992); United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir.
1990). At sentencing, the court "may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy." United
States v. Zapata, 589 F.3d 475, 485 (1st Cir. 2009) (quoting USSG
§6A1.3(a)).
In addition, a sentencing court has wide discretion to
decide whether particular evidence is sufficiently reliable to be
used at sentencing. United States v. Green, 426 F.3d 64, 66 (1st
Cir. 2005); Tardiff, 969 F.2d at 1287. Under this generous
formulation, the court may rely upon "virtually any dependable
information." United States v. Sklar, 920 F.2d 107, 110 (1st Cir.
1990). This includes information that has never been subjected to
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cross-examination. See United States v. Brewster, 127 F.3d 22, 28
(1st Cir. 1997); Tardiff, 969 F.2d at 1287. Similarly, a sentencing
court generally may rely upon information contained in a presentence
report. See, e.g., United States v. Cruz, 120 F.3d 1, 2 (1st Cir.
1997) (en banc); United States v. Morillo, 8 F.3d 864, 872 (1st Cir.
1993). These tenets are fully applicable to drug quantity
determinations. See, e.g., Zapata, 589 F.3d at 485; United States
v. Scalia, 993 F.2d 984, 989 (1st Cir. 1993).
That ends this aspect of our inquiry. We previously have
held that "for sentencing purposes the court may rely upon evidence
adduced at a coconspirator's trial as long as the defendant receives
notice prior to its use and has the opportunity to challenge its
reliability." Cruz, 120 F.3d at 2. Here, the challenged evidence
came from witnesses who testified at the trial, and the PSI Report
gave ample notice to the appellant of both the existence and the
potential utility of this evidence. Under these circumstances, the
district court did not err in using this evidence at sentencing.
See Brewster, 127 F.3d at 28 (stating that facts contained in a
presentence report "usually are deemed reliable enough to be used
for sentencing purposes"); Zuleta-Alvarez, 922 F.2d at 37
(explaining that statements made under oath have "strong indicia of
reliability").
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Third, and lastly, the appellant contends that the
sentencing court's drug quantity determination was faulty. We
reject this contention.
The sentencing court must determine drug quantity only by
a preponderance of the evidence. See United States v. Rodríguez,
525 F.3d 85, 107 (1st Cir. 2008). A sentencing court's
determination of drug quantity is a finding of fact and, as such,
will be upheld on appeal unless it is clearly erroneous. Id. Clear
error will be found only when, upon whole-record-review, an
inquiring court "form[s] a strong, unyielding belief that a mistake
has been made." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990).
The court below did not clearly err in making its drug
quantity determination. A finding of drug quantity need not be
exact so long as the approximation represents a reasoned estimate
of actual quantity. See, e.g., Santos, 357 F.3d at 141; United
States v. Ventura, 353 F.3d 84, 88 (1st Cir. 2003). In making such
a reasoned estimate, the court is entitled to draw reasonable
inferences from information contained in the sentencing record. See
Santos, 357 F.3d at 141.
In this instance, the court derived its drug quantity
determination by making plausible extrapolations from the available
information. The court used the average drug weight per capsule
suggested by the scientific evidence and the average drug sales per
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shift suggested by the cooperating witness to arrive at a sensible
starting point. This starting point was, in itself, favorable to
the appellant because it left out of the equation drugs other than
crack cocaine (e.g., heroin, marijuana) routinely marketed by Las
Avispas at the two drug points.
The court then took into account the appellant's four-
year tenure with the drug ring and attributed a quantity of drugs
to him based on two assumptions: that the appellant worked only
three shifts per week and that all of these were daytime shifts.
These assumptions, too, were favorable to the appellant. The CI
stated that the appellant was "usually" at one of the drug points,
toiling as a seller. Three shifts per week seems to understate the
regularity of his presence. Similarly, by assuming that the
appellant worked only daytime shifts, the court eschewed any use of
the greater sales volumes associated with the night shifts.
Using this methodology, the court attributed 9.2
kilograms of cocaine base to the appellant.5 The court stated that
in making these findings it had taken a "conservative" view of the
evidence. We agree. For aught that appears, the court took
reasonable steps to estimate the drug quantity attributable to the
appellant and, in doing so, made modest and defensible assumptions.
5
The court multiplied three shifts per week by 200 capsules
per shift by .075 grams of cocaine base per capsule, resulting in
2.3 kilograms per year (rounded down). Multiplying by his four-
year participation in the conspiracy, the court attributed a total
of 9.2 kilograms of cocaine base to the appellant.
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In fine, the court followed the admonition that, in such matters,
it should "err on the side of caution." Sklar, 920 F.2d at 113.
We discern no clear error.
We need go no further. For the reasons elucidated above,
we uphold the appellant's sentence.
Affirmed.
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