United States Court of Appeals
For the First Circuit
No. 03-2333
UNITED STATES OF AMERICA,
Appellee,
v.
EDGARDO SÁNCHEZ-BERRÍOS,
Defendant, Appellant.
____________
No. 03-2334
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ COTTO-LATORRE,
Defendant, Appellant.
____________
No. 03-2335
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID CRUZ-PAGÁN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.
Juan M. Masini-Soler on brief for appellant Sánchez-Berríos.
Lenore Glaser on brief for appellant Cotto-Latorre.
Alan D. Campbell on brief for appellant Cruz-Pagán.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and
Lisa Snell-Rivera, Assistant United States Attorneys, on brief for
the United States.
September 20, 2005
*
Of the Sixth Circuit, sitting by designation.
SELYA, Circuit Judge. These appeals evolve from a
reverse sting operation designed to ferret out police corruption.
The defendants, all law enforcement officers who greedily took the
bait, were found guilty by a jury on a myriad of charges and
thereafter sentenced to lengthy prison terms. In this venue, they
variously challenge the district court's stewardship of the trial,
their convictions, and their sentences. Concluding, as we do, that
their asseverational array lacks merit, we affirm the judgments
below.
I. BACKGROUND
We recount the facts in the light most hospitable to the
verdicts, consistent with record support. United States v. Vega
Molina, 407 F.3d 511, 516 (1st Cir. 2005).
The central figure in the reverse sting operation that
led to the instant convictions is Arturo Ortiz-Colón, himself a
corrupt police officer who, after his apprehension in the spring of
2000, began to cooperate with the Federal Bureau of Investigation
(FBI) in exchange for leniency. That arrangement resulted in the
launching of Operation Honor Perdido (Lost Honor).
In the course of that operation, Ortiz-Colón, posing as
a corrupt federal agent, would present opportunities to local
police officers to earn money for assisting in the transportation
and protection of illegal drugs. The FBI furnished Ortiz-Colón
with accouterments suitable to his assumed role, including a luxury
-3-
apartment and a flashy car (both of which were outfitted with
recording equipment). His telephone was similarly appointed and he
himself wore a body wire when the occasion demanded. Ortiz-Colón
found no shortage of local police officers who hastened to trade
honor for hard cash. See, e.g., United States v. Villafane-
Jimenez, 410 F.3d 74 (1st Cir. 2005) (per curiam) (recounting
details of an unrelated Honor Perdido prosecution and conviction);
United States v. Vázquez Guadalupe, 407 F.3d 492 (1st Cir. 2005)
(same); United States v. Flecha-Maldonado, 373 F.3d 170 (1st Cir.
2004) (same).
Diana Díaz, herself a corrupt police officer who had
bought into Ortiz-Colón's charade, functioned as his "recruiter."
At various times, she approached defendant-appellant Edgardo
Sánchez-Berríos (Sánchez), defendant-appellant José Cotto-Latorre
(Cotto), and defendant-appellant David Cruz-Pagán (Cruz). Each of
them was enlisted to participate in a different drug transport.
The details follow.
After Díaz initially contacted Sánchez, Ortiz-Colón hired
him to act as an escort for a drug delivery scheduled to take place
in November of 2000. Sánchez, driving Díaz's car, accompanied the
transport vehicle to a shopping plaza where the drugs were
transferred to another vehicle. Ortiz-Colón paid Sánchez $5,000
for his services.
-4-
When Díaz approached Cotto, he too indicated a
willingness to participate in drug deals. She took him and other
police officers whom she had recruited to Ortiz-Colón's apartment.
The group discussed a transport projected to take place in April of
2001. At that meeting, Ortiz-Colón explained that he was working
for a Colombian drug dealer (El Viejo) and that the officers would
be expected to escort and unload an incoming shipment of cocaine
while pretending that they were raiding the boat on which it
arrived. The "raiding party" would then deliver the cocaine to El
Viejo and be paid for their services. Ortiz-Colón offered the
assembled officers an opportunity to opt out; Cotto not only chose
to stay, but also volunteered to recruit other police officers to
swell the coconspirators' ranks.
On the day of the transport, Cotto, wearing his uniform
shirt and carrying his official firearm, rode with Ortiz-Colón to
a marina. He helped to off-load the cocaine, stow it in Ortiz-
Colón's car, and ferry it to Ortiz-Colón's apartment. Ortiz-Colón
paid Cotto $5,000 for services rendered.
Díaz also recruited Cruz and arranged an audience for him
with Ortiz-Colón. Cruz agreed to participate in a drug transport
that occurred in May of 2001. During that incident, Cruz carried
his firearm and helped to move cocaine from one vehicle to another.
Ortiz-Colón later paid him $5,000 for his help.
-5-
The three appellants, along with Díaz and twelve other
individuals, were eventually indicted by a federal grand jury
sitting in the District of Puerto Rico. Pertinently, count 1 of
the second superseding indictment charged the sixteen named
defendants, including all three appellants, with conspiracy to
distribute more than five kilograms of cocaine. See 21 U.S.C. §§
841, 846. Count 2 charged Sánchez with attempting to distribute
more than five kilograms of cocaine while aiding and abetting
others. See 18 U.S.C. § 2; 21 U.S.C. § 841. Counts 5 and 6 levied
the same charge against Cotto and Cruz, respectively. Count 8
charged each of the three appellants, among others, with carrying
a firearm during and in furtherance of a drug-trafficking offense.
See 18 U.S.C. § 924©).
After a twelve-day trial, the jury convicted Sánchez on
counts 1 and 2, Cotto on counts 1, 5, and 8, and Cruz on counts 1,
6, and 8. The district court sentenced Sánchez to 151 months of
imprisonment and a five-year supervised release term; Cotto to 188
months of imprisonment on the drug-trafficking charges, a
consecutive five-year incarcerative term on the weapons count, and
eight years of supervised release; and Cruz to 151 months of
imprisonment on the drug-trafficking charges, a consecutive five-
year incarcerative term on the weapons count, and eight years of
supervised release. These appeals ensued.
-6-
II. ANALYSIS
The appellants advance a gallimaufry of challenges to
their convictions and sentences. We discuss this panoply of issues
along a quasi-chronological continuum that stretches from trial to
sentencing.
A. Prosecutorial Misconduct.
Cotto argues that improper prosecutorial comments entitle
him to a new trial. His challenge encompasses a variety of word
choices made throughout the proceedings. He castigates (i) the
prosecutor's reference, in the opening statement, to "Honor
Perdido"; (ii) the prosecutor's eliciting of testimony from an FBI
agent, Jeffrey Paleaz, that the FBI used sham cocaine in the
reverse sting operation because it "did not trust" the targeted
police officers with real cocaine; (iii) the prosecutor's repeated
invocation of the term "corrupt officers"; and (iv) the
prosecutor's allusion, in closing argument, to the defense
attorneys' explanation of what had occurred as a "self serving
absurdity."
Because Cotto interposed no contemporaneous objections to
any of these word choices, we review his claim of prosecutorial
misconduct under the plain error rubric. "Review for plain error
entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
-7-
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). If an
assignment of error fails to pass through any of these four
screens, it is not a basis for reversal. See id. Consequently, a
party who neglects to call a looming error to the trial court's
attention acts at his peril; under plain error review, we have
leeway to correct only the most egregious of unpreserved errors.
See United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995)
(explaining that "[t]he plain error doctrine concentrates on
'blockbusters'" (quoting United States v. Griffin, 818 F.2d 97, 100
(1st Cir. 1987))).
None of the statements singled out by Cotto was improper.
"Honor Perdido" was the appellation assigned to the sting operation
and, thus, was a background fact of the case. The agent's
testimony, which explained why no actual drugs were in evidence,
falls into the same classification. The prosecutor's description
of the defense as a "self serving absurdity," while not flattering,
was fair argument. See, e.g., United States v. Bennett, 75 F.3d
40, 46-47 (1st Cir. 1996) (holding that prosecutor's comment that
the defense argument was a "'diversion' that does not 'pass the
laugh test'" did not "cross[] the line"); United States v.
Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987) ("Counsel represent
many people with lame defenses; the prosecutor [is] entitled to say
that the defenses [are] lame . . . .").
-8-
The references to "corrupt officers" present a marginally
closer call. Mischaracterization or overuse of a potentially
inflammatory phrase may in some exaggerated circumstances be deemed
prejudicial. As we said in United States v. Felton, 417 F.3d 97,
103 (1st Cir. 2005), "[o]ne can imagine situations in which an
epithet carries connotations well beyond the crime charged . . . or
cases in which [a] description is gratuitously inflammatory,
serving no reasonable purpose in summarizing the government's
position." Here, however, the evidence justified the descriptive
term1 and the manner and frequency of the prosecutor's usage of it
was not excessive. Moreover, the trial judge's instructions
safeguarded against the possibility of unfair prejudice. See
Taylor, 54 F.3d at 977. In these circumstances, we discern nothing
approximating plain error.
B. Admission of Hearsay Evidence.
Cotto challenges the admission of an audiotaped
conversation between Díaz and Ortiz-Colón, in which Díaz described
her initial encounter with Cotto, opined that he had been involved
in drug escorts before, and recounted his enthusiasm for the task.
Díaz did not testify at trial. Building on this foundation, Cotto
1
Virtually all of Cotto's participation in the drug transport
was recorded and presented to the jury by videotape and audiotape.
Given this nearly irrefutable evidence of Cotto's guilt and his
heroic (if unsuccessful) efforts to mount an entrapment defense,
see infra Part II(C), it cannot sensibly be said that describing
him as a "corrupt officer" so poisoned the well as to require
reversal here.
-9-
makes two arguments against the admission of this conversation.
First, he maintains that it did not fall under any exception to the
hearsay rule. Second, he asseverates that its admission violated
his right to confrontation.
There is a threshold issue here — an issue that involves
the distinction between waiver and forfeiture. We have limned that
distinction in the following terms:
A party waives a right when he intentionally
relinquishes or abandons it. This is to be
distinguished from a situation in which a
party fails to make a timely assertion of a
right — what courts typically call a
"forfeiture." The difference is critical: a
waived issue ordinarily cannot be resurrected
on appeal, whereas a forfeited issue may be
reviewed for plain error.
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)
(citations omitted). Although there was no explicit waiver here,
the government asserts that we should not review this challenge
because the hearsay issue was so obvious that the defense's failure
to object constituted a waiver.
This argument is unavailing. In the absence of
extraordinary circumstances, see, e.g., United States v. Houlihan,
92 F.3d 1271, 1281 (1st Cir. 1996) (finding that defendants had
waived right to raise hearsay objections by murdering the potential
witness) — and none are present here — a party who does not object
to an evidentiary ruling has forfeited his claim of error, not
waived it. See Fed. R. Evid. 103(d); see also Chestnut v. City of
-10-
Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam). We
thus review the lower court's admission of the challenged
conversation for plain error. See Chestnut, 305 F.3d at 20.
The Federal Rules of Evidence exclude from the definition
of hearsay "statement[s] by a coconspirator of a party [made]
during the course and in furtherance of the conspiracy." Fed. R.
Evid. 801(d)(2)(E). When uttered in furtherance of the mission of
an ongoing conspiracy, such statements are outside the purview of
the hearsay bar. See Krulewitch v. United States, 336 U.S. 440,
443 (1949); United States v. Sepulveda, 15 F.3d 1161, 1180 (1st
Cir. 1993).2
Cotto posits that Díaz's statement — that is the only
portion of the conversation with which we are concerned, as Ortiz-
Colón testified at the trial — does not fall under this exemption
because it was made before he had joined the conspiracy and, thus,
before he and Díaz could be considered coconspirators. Yet it is
clear from Díaz's statement, as well as from Cotto's subsequent
account of the conversation (recorded in the course of the sting
and admitted into evidence without objection), that Cotto agreed to
join the conspiracy when he and Díaz first spoke. Although Cotto
2
Although the Federal Rules of Evidence treat coconspirator
statements as exemptions from the hearsay rule and Supreme Court
jurisprudence treats them as exceptions to that rule, see
Krulewitch, 336 U.S. at 443, this difference in nomenclature is
immaterial. See United States v. Inadi, 475 U.S. 387, 399 n.12
(1986).
-11-
did not know the precise details of the plan until he met with
Ortiz-Colón, he understood both his role and the role of others in
the illicit activity. No more was exigible. Cf. United States v.
O'Campo, 973 F.2d 1015, 1019 (1st Cir. 1992) (holding that "the
government need not establish that the [members] knew or agreed
upon every detail of the conspiracy," but only "the essential
nature of the plan and their connections with it" (citation and
internal quotation marks omitted)); United States v. Baines, 812
F.2d 41, 42 (1st Cir. 1987) ("[A] conspiracy is like a train. When
a party knowingly steps aboard, he is part of the crew, and assumes
conspirator's responsibility for the existing freight — or conduct
— regardless of whether he is aware of just what it is composed.").
In all events, Díaz's statement unarguably was made in
furtherance of the conspiracy as it tended to promote one or more
of the objects of the conspiracy. See United States v. Piper, 298
F.3d 47, 54 (1st Cir. 2002). Díaz was reporting the progress of
her recruitment efforts to the ringleader. This was obviously an
integral element of the phantom drug-trafficking operation. The
audiotape thus falls squarely within the coconspirator exemption to
the hearsay rule and the district court did not err in admitting it
on that ground.
Cotto's Confrontation Clause challenge is similarly
unpersuasive. In mounting this challenge, Cotto invokes Crawford
v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held
-12-
that the admission of testimonial statements, without any
opportunity for cross-examination, amounted to a Sixth Amendment
violation. Id. at 68. That decision, however, explicitly
recognized that statements made in furtherance of a conspiracy "by
their nature [are] not testimonial." Id. at 56. The introduction
of Díaz's statement, therefore, does not constitute a Sixth
Amendment violation despite the lack of any opportunity for cross-
examination. See Felton, 417 F.3d at 103 (holding that the
introduction of a coconspirator statement did not abridge the
defendant's Sixth Amendment rights because the statement fell
within a firmly rooted hearsay exception and was nontestimonial);
see also United States v. Inadi, 475 U.S. 387, 399-400 (1986)
(holding that the Sixth Amendment does not require an
unavailability rule for the admission of coconspirator statements).
Nor does the admission of Díaz's statement infract the
Constitution by virtue of the rule announced in Bruton v. United
States, 391 U.S. 123 (1968). Bruton held that a Sixth Amendment
violation occurs when a court, at a joint trial, admits one
defendant's confession, which implicates the other defendant,
without the opportunity for cross-examination. Id. at 137. The
Court was careful not to take a position on whether the outcome
would have been different had the confession been admitted under a
hearsay exception. See id. at 128 n.3. We have answered this
question, holding unequivocally that "there is no Bruton problem"
-13-
when a "statement falls within the coconspirator exception to the
hearsay rule." United States v. Arruda, 715 F.2d 671, 685 n.11
(1st Cir. 1983).
For these reasons, the admission of the audiotape was
entirely proper.3
C. Entrapment.
We next examine Cotto's claim that the district court
improperly refused to instruct the jury on entrapment. Because
Cotto objected to this refusal at trial, we review his assignment
of error de novo. United States v. Rodriguez, 858 F.2d 809, 812
(1st Cir. 1988).
Two elements comprise the defense of entrapment: "(1)
government inducement of the accused to engage in criminal conduct,
and (2) the accused's lack of predisposition to engage in such
conduct." Id. Only when the accused satisfies an entry-level
burden of production as to both elements is the government put to
its burden of proving beyond a reasonable doubt that no entrapment
occurred. See id. at 814-15. By like token, unless and until a
defendant carries his entry-level burden, he is not entitled to an
instruction on an entrapment defense. Id. at 814. To clear this
hurdle, he must supply "evidence which fairly supports the claims
3
If more were needed — and we do not think that it is — we
note that the bulk of what transpired at Cotto's initial meeting
with Díaz was rehearsed by Cotto himself in a later taped
conversation. That conversation was admitted at trial and its
admission is not challenged on appeal.
-14-
of both government inducement of the crime and [his own] lack of
predisposition to engage in it." Id.
In this instance, Cotto plainly failed to carry his
entry-level burden as to improper inducement.4 In his appellate
brief, Cotto makes no meaningful effort to direct us to record
evidence of any improper inducement, but, rather, contents himself
with sweeping generalities (e.g., that the government had gone "to
extraordinary lengths to create a fiction," suggested that there
would be "reprisals if [Cotto] declined to join," and exploited
"the psychological pressure of the authority of higher ranked
officers [to overwhelm] any resistance"). The record offers no
support for these generalities. To the contrary, recorded meetings
show beyond hope of contradiction that Cotto was eager to avail
himself of the proffered drug-escort opportunities. The only
inducement that the record reflects is a chance to make money — and
holding out the prospect of illicit gain is not the sort of
government inducement that can pave the way for an entrapment
defense. See United States v. Coady, 809 F.2d 119, 122 (1st Cir.
1987) (explaining that entrapment does not exist merely because "a
person succumbs to his own greed or to the lure of easy money");
see also United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)
4
Because this failure, in and of itself, justified the
district court's refusal to charge the jury on entrapment, see
Rodriguez, 858 F.2d at 814, we need not dwell on the evidence of
predisposition.
-15-
("Neither mere solicitation nor the creation of opportunities to
commit an offense comprises inducement.").
That ends this aspect of the matter. Since Cotto
provided no evidence of improper inducement adequate to satisfy his
entry-level burden of production, the district court's decision to
withhold an entrapment instruction cannot be faulted.
D. Sufficiency of the Evidence.
Sánchez and Cotto both challenge the district court's
denial of their motions for judgment of acquittal. See Fed. R.
Crim. P. 29. We ordinarily review the denial of such motions de
novo, asking "whether the evidence, construed favorably to the
government, permitted rational jurors to conclude, beyond a
reasonable doubt, that the defendant was guilty as charged."
United States v. Sebaggala, 256 F.3d 59, 63 (1st Cir. 2001). The
government can supply a satisfactory answer to this question
through either direct or circumstantial evidence, or through any
combination thereof. United States v. Santiago, 83 F.3d 20, 23
(1st Cir. 1996).
Sánchez claims that the government did not present
sufficient evidence to prove the intent necessary for a conspiracy
conviction. Without ever using the word "entrapment," he employs
the essentials of that construct to argue that the district court
-16-
should have found entrapment as a matter of law.5 We reject his
importunings.
To defeat a sufficiency challenge premised on a defense
of entrapment, the evidence, taken in the light most favorable to
the government, need only support a finding of either
predisposition or lack of improper inducement. See Rodriguez, 858
F.2d at 814. The record in this case contains ample evidence on
both points.
A discussion of lack of any improper inducement would
substantially replicate what we already have written in relation to
Cotto. See supra Part II©). As to predisposition, we note that
Sánchez's involvement in the drug escort was recorded and presented
to the jury. Among other things, the jurors heard Sánchez being
told, over and over again, that he did not have to participate in
the venture. The jurors also heard Sánchez state that he was not
worried about doing something that he knew was illegal; he was
worried only about the possibility of being caught. From this and
other evidence, it is abundantly clear that the government provided
enough proof for a rational jury to conclude, beyond a reasonable
doubt, that Sánchez was predisposed to commit the crime (and,
therefore, was not entrapped).
5
Had Sánchez raised this challenge in connection with the jury
instructions (as did Cotto, see supra Part II(C)), he would have
encountered a more appellant-friendly scenario. In either guise,
however, the challenge would fail.
-17-
Cotto's Rule 29 challenge takes a different tack. He
jettisons his entrapment argument at this juncture in favor of an
argument that he was entitled to judgment as a matter of law on the
weapons count because the government used sham cocaine in the
underlying transport operation. Therefore, his thesis runs, his
firearm could not have been used "in furtherance of" any drug-
related crime.
The first flaw in this line of argument is that Cotto did
not pursue it below. Since this particular theory of insufficiency
was not preserved, our review is limited to the prevention of clear
and gross injustice.6 Santiago, 83 F.3d at 23.
The evidence here is palpably sufficient to support the
weapons count. The statute of conviction applies to "any person
who, during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted . .
. , uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). The
government brought the charge against Cotto in conjunction with the
conspiracy count. A culpable conspiracy may exist even though the
6
It is unclear from our precedents whether this standard is
simply a gloss on plain error review, see, e.g., United States v.
Peña-Lora, 225 F.3d 17, 26 (1st Cir. 2000) (combining the two
tests), or a more stringent standard all its own, see United States
v. Luciano, 329 F.3d 1, 5 & n.6 (1st Cir. 2003) (noting that "we
have generally avoided framing the review of unpreserved
insufficiency claims in terms of 'plain error'" and collecting
cases). It is unnecessary for us to clarify this point today as
Cotto's claim would not succeed under either version.
-18-
conspirators misapprehend certain facts. United States v. Waldron,
590 F.2d 33, 34 (1st Cir. 1979). A conspiracy to traffic in
controlled substances, punishable under 21 U.S.C. § 846, is itself
a drug-trafficking crime and may serve as a predicate offense for
purposes of 18 U.S.C. § 924©). See United States v. Meggett, 875
F.2d 24, 27 (2d Cir. 1989). While the substantive crime that is
the object of the conspiracy may be impossible to achieve, the
conspiracy nonetheless qualifies as an offense for which a person
may be prosecuted. See Waldron, 590 F.2d at 34.
That conclusion leads to game, set, and match. If the
use of sham cocaine has no effect on the underlying conspiracy
charge, then a fortiori, it has no effect on the weapons charge in
this case.
Without a showing that the weapons count failed as a
matter of law, Cotto's sufficiency challenge fizzles. Videotaped
evidence showed Cotto with his firearm during the drug transport
and additional testimony confirmed that he had his firearm with him
during the commission of the crime. That evidence is certainly
enough to allow a rational jury to conclude — as this jury did —
that Cotto was guilty as charged on the weapons count.
E. Sentencing Factor Manipulation.
Both Sánchez and Cotto accuse the government of improper
sentencing factor manipulation. These accusations have different
focal points: Sánchez asserts that the government manipulated the
-19-
quantity of drugs that he handled in order to hike his base offense
level under the federal sentencing guidelines, see USSG §2D1.1,
whereas Cotto asserts that the government connived to have him
carry his firearm in order to assure a consecutive five-year
sentence under 18 U.S.C. § 924(c)(1)(A)(i). Neither Sánchez nor
Cotto raised the issue of sentencing factor manipulation in the
lower court, so our review is at best restricted to plain error.7
Assuming, favorably to the appellants, that these
arguments were merely forfeited rather then waived, we discern no
plain error. Impermissible sentencing factor manipulation can
justify a downward departure from the sentencing guidelines (or
from any applicable statutory minimum). See Villafane-Jimenez, 410
F.3d at 87; United States v. Connell, 960 F.2d 191, 194 (1st Cir.
1992). Withal, such manipulation occurs only when the authorities
"venture outside the scope of legitimate investigation and engage
in extraordinary misconduct that improperly enlarges the scope or
scale of the crime." United States v. Barbour, 393 F.3d 82, 86
(1st Cir. 2004). The facts in this case do not show anything
beyond the level of manipulation inherent in virtually any sting
7
We say "at best" because it is arguable that both appellants
waived the issue. Counsel for Sánchez stated at his sentencing
hearing that he was not making a request for a downward departure,
although he recognized the court's authority to depart. Counsel
for Cotto stated that "[he didn't] think" that the case
"qualifie[d] for sentencing entrapment."
-20-
operation — and that is not enough to warrant a downward departure.
See Connell, 960 F.2d at 194.
We need not linger long over this point. The record
makes manifest that the government did not lure the appellants into
committing crimes more heinous than they were predisposed to
commit. Rather, it fashioned a series of scenarios that fell well
within the bounds of the crimes that the appellants indicated they
were prepared to perpetrate. See id. at 196. Both the amount of
drugs that Sánchez would transport and Cotto's agreement to carry
a firearm were part of the initial plans and remained consistent
throughout the operation. Nothing about those stipulations would
raise the eyebrow of an impartial observer.
In short, the record reflects no impermissible sentencing
factor manipulation here.
F. Acceptance of Responsibility.
Cotto argues that he should have received a two-level
reduction in his base offense level for acceptance of
responsibility. See USSG §3E1.1. Because he raises this issue for
the first time on appeal, our review is for plain error. See
United States v. Carrasco-Mateo, 389 F.3d 239, 243 (1st Cir. 2004).
We find no error here, plain or otherwise.
An acceptance of responsibility adjustment ordinarily "is
not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements
-21-
of guilt, is convicted, and only then admits guilt and expresses
remorse." USSG §3E1.1, cmt. (n.2). There are, however, "rare
situations" in which "a defendant may clearly demonstrate an
acceptance of responsibility . . . even though he exercises his
constitutional right to trial." Id. Cotto attempts to fit himself
within the narrow confines of this exception by professing that he
went to trial only to establish a defense of entrapment — not to
contest his factual guilt.
We do not rule out the possibility that, in some odd
circumstances, a defendant who goes to trial solely to test the
merits of an entrapment defense might nonetheless remain eligible
for an acceptance of responsibility adjustment. Here, however,
Cotto's claim of entrapment was so weak that it did not even reach
the jury. Given his election to put the government to its proof at
trial in order to explore so asthenic a defense, there is no
principled way that we can set aside the trial court's
discretionary refusal to discount his sentence for acceptance of
responsibility.
G. Booker Error.
Cotto and Cruz ask that their cases be remanded for
resentencing in light of the Supreme Court's recent decision in
United States v. Booker, 125 S. Ct. 738 (2005). Because neither
appellant preserved a claim of Booker error below, we review for
plain error. See United States v. Guzmán, ___ F.3d ___, ___ (1st
-22-
Cir. 2005) [No. 04-1888, slip op. at 9]; United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
In its sentencing determinations, the district court
treated the sentencing guidelines as mandatory. As to Cotto, the
court started with a base offense level of 34, see USSG §2D1.1, to
which it added two levels for abuse of a position of trust, see id.
§3B1.3. A total offense level of 36, combined with the absence of
any relevant criminal history, yielded a guideline sentencing range
(GSR) of 188-235 months for the drug-trafficking counts. The court
imposed a 188-month sentence on those counts.
As to Cruz, the district court began with a base offense
level of 32, see id. §2D1.1, and added two levels for abuse of a
position of trust, see id. §3B1.3. A total offense level of 34,
combined with the absence of any relevant criminal history,
resulted in a GSR of 151-181 months for the drug-trafficking
counts. The court imposed a 151-month sentence on those counts.8
Because the court treated the sentencing guidelines as
mandatory, the appellants have satisfied the first two prongs of
the plain error test. See Antonakopoulos, 399 F.3d at 75. The
8
Both Cotto and Cruz were convicted on weapons counts that
carried a statutory five-year mandatory minimum, to be imposed
consecutively to their sentences on the drug-trafficking counts.
See 18 U.S.C. § 924(c)(1)(A)(i). Because that portion of the
sentences was driven by statute, not by the guidelines, the claim
of Booker error does not reach those counts. See Antonakopoulos,
399 F.3d at 75 ("A mandatory minimum sentence imposed as required
by a statute based on facts found by a jury or admitted by a
defendant is not a candidate for Booker error.").
-23-
third prong requires us to ask whether either or both of the
appellants have pointed to circumstances that create a reasonable
probability that the district court would have imposed a more
lenient sentence had the guidelines been advisory. See id. We
conclude that they have not.
It is not enough for a defendant merely to argue that his
sentence might have been different had the guidelines been advisory
at the time of sentencing. Guzmán, ___ F.3d at ___ [slip op. at
11]. By the same token, an unadorned claim that the judge — and
not the jury — found sentencing facts, even if true, does not
warrant resentencing. United States v. Martins, 413 F.3d 139, 152
(1st Cir. 2005). Rather, the defendant must point to specific
indicia of a reasonable probability of a more favorable outcome,
see Guzmán, ___ F.3d at ___ [slip op. at 11] — a burden that is
tempered by our acknowledgment that, in this sort of situation, we
will not be "overly demanding as to proof of probability." United
States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
Cruz argues broadly that his sentence was "unreasonable,"
but he declined our invitation to submit supplemental briefing in
the wake of the Booker and Antonakopoulos decisions. The only
specific item to which he adverts is the fact that he was sentenced
at the bottom of the GSR. That fact, standing alone, is manifestly
-24-
insufficient to satisfy the third element of the plain error test.9
See Guzmán, ___ F.3d at ___ [slip op. at 12]; United States v.
Serrano-Beauvaix, 400 F.3d 50, 55 (1st Cir. 2005).
Cotto, too, cites the fact that the court sentenced him
at the low end of the GSR. Apart from that, however, his
supplemental brief consists mainly of a diatribe exhorting us to
scrap our plain error framework and adopt a rebuttable presumption
of prejudice for unpreserved Booker errors. See, e.g., United
States v. Barnett, 398 F.3d 516, 527-28 (6th Cir. 2005). We
consistently have declined to alter our approach in this way. See
Guzmán, ___ F.3d at ___ [slip op. at 8] (citing Eulitt v. Me.,
Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004), for the
proposition that, in a multi-panel circuit, panels are bound by
prior panel decision closely on point).
To say more on this topic would be supererogatory. There
is simply no warrant here for a Booker remand.
H. Delegation of Sentencing Authority.
As a final matter, Sánchez and Cruz assert that the
district court improperly delegated its sentencing authority when
it imposed a supervised release condition that allowed a probation
9
Within his claim of Booker error, Cruz inserts a conclusory
assertion that the court improperly computed his GSR under the
sentencing guidelines. Because he does not sufficiently develop
this assertion as an independent argument or assignment of error,
we deem it abandoned. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
-25-
officer to determine the number of drug tests that would be
conducted during their respective periods of supervised release and
to decide what should happen if either tested positive (that is,
whether enrollment in a substance abuse treatment program would be
required).10 Because neither Sánchez nor Cruz objected to the
supervised release conditions at sentencing, their current
objections engender plain error review. United States v. Padilla,
415 F.3d 211, 218 (1st Cir. 2005) (en banc).
There is a procedural twist. The government confessed
error on both points in its brief and indicated that it would
acquiesce in a remand. A concession by either party in a criminal
case as to a legal conclusion is not binding on an appellate court.
See United States v. Daas, 198 F.3d 1167, 1178 n.14 (9th Cir.
1999). Here, the government's concessions rested on our decision
in United States v. Meléndez-Santana, 353 F.3d 93, 102-06 (1st Cir.
2003) — a decision that has since been overruled in relevant part.
See Padilla, 415 F.3d at 215. Given these unusual circumstances,
we will not hold the government to its concessions, but, rather,
10
The supervised release condition requires that Sánchez and
Cruz each
submit to a drug test within fifteen (15) days of release
on supervised release, and at least two (2) tests
thereafter when so requested by the U.S. Probation
Officer. If any such samples detect substance abuse, the
defendant, at the discretion of the U.S. Probation
Officer, shall participate in a substance abuse treatment
program, arranged and approved by the U.S. Probation
Officer . . . .
-26-
will examine the issues afresh. See, e.g., United States v.
Resendiz-Patino, ___ F.3d ___, ___ (10th Cir. 2005) [No. 03-2191,
slip op. at 10] (disregarding concession when government was "too
quick to concede the point").
To begin, we acknowledge that the sentencing court erred
in structuring the disputed supervised release condition vis-à-vis
the number of drug tests. In Meléndez-Santana, we held, as to the
first disputed condition, that a sentencing court's delegation of
discretion to a probation officer to determine the number of drug
tests that a defendant must undergo, without capping that number,
constituted a delegation error. 353 F.3d at 102-06 (citing 18
U.S.C. § 3583(d)). The en banc decision in Padilla left intact
that holding and, thus, the error satisfies the first two prongs of
the plain error test. See Padilla, 415 F.3d at 217-18.
However, we overruled the "automatic reversal" rule of
Meléndez-Santana and substituted conventional plain error review.
See id. at 219-20. Upon undertaking that analysis, we held that
the delegation error neither affected the defendant's substantial
rights nor seriously impugned the integrity of the judicial
proceedings. Id. at 220-23. Thus, the error did not warrant
correction. Id. at 224.
For essentially the same reasons, we find no reversible
error here. For Sánchez and Cruz to show that their supervised
release conditions affected their substantial rights, they must
-27-
point to "circumstances indicating a reasonable probability that
the trial court, but for the error, would have imposed a different,
more favorable sentence." Id. at 221 (citing Antonakopoulos, 399
F.3d at 75). As to the number of drug tests, this showing is
"nearly impossible" because we can neither know what limit the
trial court would have set on drug testing nor know the number of
tests the probation officer will prescribe. Id. A fortiori, there
is no reasonable probability that, but for the delegation error,
the supervised release conditions would have operated more
favorably.
To cinch matters, the delegation error vis-à-vis the
number of drug tests is, as in Padilla, "simply not of such
magnitude or consequence that it would undermine faith in the
judicial system were it to stand uncorrected." Id. That the
authority to cap the number of drug tests lies with a judge and not
a probation officer reflects a legislative choice, not a
constitutionally grounded right. See id. at 222. In addition, the
error's effects are limited by statute: should the probation
officer require an inordinate number of tests, a defendant is free
to invoke 18 U.S.C. § 3583(e)(2), which permits a court to modify
the conditions of supervised release at any time. See Padilla, 415
F.3d at 223.
This leaves the condition that gives the probation
officer discretion to place a defendant in a substance abuse
-28-
treatment program. Although the Padilla court did not specifically
address that exact condition, its reasoning and result extend to
it. We continue to recognize that the treatment condition
constitutes a delegation error. See Meléndez-Santana, 353 F.3d at
101. We find, however, that the error fails the third and fourth
prongs of the plain error test.
We will not tarry. Suffice it to say that we encounter
grave uncertainty in attempting to divine whether the sentencing
court would be more or less likely to require substance abuse
treatment than the probation officer, so the error cannot be said
to affect substantial rights. See Padilla, 415 F.3d at 221.
Moreover, the authority of the court to impose the treatment
condition derives from a policy choice memorialized in the
sentencing guidelines, not from any sort of fundamental interest in
fairness. See USSG §5D1.3(d)(4) (allowing the sentencing court to
include "a [supervised release] condition requiring the defendant
to participate in a program . . . for substance abuse"). Thus,
allowing the probation officer, as opposed to the court, to make
the determination does not call into question the integrity of the
proceedings. See Padilla, 415 F.3d at 222.
The bottom line is that we should not waste scarce
judicial resources "by seeking to rescue forfeited errors of no
importance, encouraging more such claims and more wasted time in
the future." Id. at 225 (Boudin, C.J., concurring). A remand in
-29-
this case to correct the modest imperfections in the supervised
release conditions would be "a theft of [judicial] time from cases
where the dispute really matters." Id. We must respect the
procedural constraints of plain error review and take a practical,
common sense approach to determining which few forfeited errors
merit correction.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we conclude that the appellants were fairly tried, appropriately
convicted, and lawfully sentenced. Their appeals are, therefore,
impuissant.
Affirmed.
-30-