United States Court of Appeals
For the First Circuit
No. 03-1177
UNITED STATES OF AMERICA,
Appellee,
v.
KENNY MATEO-ESPEJO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Jeffrey L. Baler on brief for appellant.
Robert Clark Corrente, United States Attorney, and Donald C.
Lockhart and Kenneth P. Madden, Assistant United States Attorneys,
on brief for appellee.
October 21, 2005
SELYA, Circuit Judge. Defendant-appellant Kenny Mateo-
Espejo pleaded guilty to charges of conspiracy to distribute more
than fifty grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 846,
and distribution of that amount of crack cocaine, see id. §
841(a)(1). He now appeals his sentence. Concluding, as we do,
that the district court committed no reversible error in the course
of sentencing, we affirm the judgment below.
I. BACKGROUND
Because this appeal follows a guilty plea, we draw the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. United States v.
Brewster, 127 F.3d 22, 24 (1st Cir. 1997); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
On March 14, 2002, Leopold Weeks, alleged to be the
appellant's coconspirator, accepted $3,000 as a down payment for
the sale of 250 grams of cocaine base (colloquially known as crack
cocaine). At the appointed time, Weeks and the appellant went to
meet the prospective purchaser. The appellant removed 247.04 grams
of crack cocaine from his pocket and delivered it to the buyer.
Five days later, the appellant met with the buyer and collected the
balance of the purchase price ($3,600). The buyer proved to be an
undercover police officer, so arrests and an indictment soon
followed.
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After twice switching counsel, the appellant entered a
guilty plea on August 13, 2002 (the day that jury empanelment was
to occur). The PSI Report, which the appellant received on
November 5, 2002, recommended a base offense level of 34, see USSG
§2D1.1(a)(3), and a two-level downward adjustment for acceptance of
responsibility, see id. §3E1.1(a).1 The appellant's only objection
to the PSI Report was to the absence of an additional level in the
credit for acceptance of responsibility. See id. §3E1.1(b).
Because the appellant had not yet met with the authorities — he did
not participate in a debriefing until the day before sentencing —
the PSI Report did not recommend a so-called "safety valve"
reduction. See id. §2D1.1(b)(6).
At the disposition hearing, the district court, with
obvious reluctance, granted the two-level safety valve adjustment.
The court also bestowed a two-level reduction for acceptance of
responsibility, but declined to award an additional one-level
reduction. Midway through the hearing, the appellant for the first
time asserted an entitlement to a minor role adjustment, see id.
§3B1.2(b), but the court rebuffed that initiative. These rulings
yielded a total offense level of 30 which, combined with a criminal
1
We refer throughout this opinion to the November 2002 edition
of the sentencing guidelines. See United States v. Harotunian, 920
F.2d 1040, 1041-42 (1st Cir. 1990) (explaining that, absent ex post
facto concerns, the version of the sentencing guidelines in effect
on the date of sentencing controls). That point is of more than
academic interest, as the contours of USSG §3E1.1(b) have changed
materially.
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history category of I (the appellant had no prior criminal record),
produced a guideline sentencing range (GSR) of 97-121 months. The
court, albeit grudgingly, acquiesced in the government's
recommendation and sentenced the appellant to a 97-month
incarcerative term. This timely appeal ensued.
II. ANALYSIS
In this venue, the appellant advances three claims of
error. He maintains that the sentencing court erred (i) in
refusing to grant him an additional one-level reduction for
acceptance of responsibility; (ii) in failing to find that he
played only a minor role in the offenses of conviction; and (iii)
in sentencing him contrary to the mandate of United States v.
Booker, 125 S. Ct. 738 (2005). We discuss these claims in
sequence.
A. Acceptance of Responsibility.
We begin with the sentencing court's refusal to grant an
additional one-level reduction for acceptance of responsibility.
"A defendant bears the burden of proving entitlement to decreases
in the offense level, including downward adjustments for acceptance
of responsibility." United States v. Morillo, 8 F.3d 864, 871 (1st
Cir. 1993). Where, as here, the district court has ruled adversely
on such an issue, the ruling will be set aside only if it is shown
to be clearly erroneous. United States v. Royer, 895 F.2d 28, 29
(1st Cir. 1990). The appellant has not made such a showing.
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A defendant who accepts responsibility for his criminal
conduct normally receives a two-level discount in his offense
level. See USSG §3E1.1(a). To qualify for an additional one-level
reduction, the defendant must either: timely provide complete
information to the government anent his own involvement in the
offense(s) of conviction or, at least, timely notify the
authorities of his intention to plead guilty. Id. §3E1.1(b). The
guidelines offer this second avenue as a means of "permitting the
government to avoid preparing for trial and permitting the court to
allocate its resources efficiently." Id.
The first of these routes is not available to the
appellant. He did not discuss the details of the offenses of
conviction with the government until the day before his scheduled
sentencing. That hardly can be considered a timely provision of
complete information to the government. See, e.g., United States
v. Brack, 188 F.3d 748, 765 (7th Cir. 1999) (finding no timely
provision of complete information when defendant was not debriefed
until four days before trial).
The second avenue also proves to be a dead end. The
district court regarded the appellant's eleventh-hour decision to
plead guilty, made on the day of jury empanelment, as failing to
satisfy the applicable criterion. That determination was not
clearly erroneous.
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Although this case was not a complicated one, the
government needed some time to prepare for trial — and the timing
of the appellant's change of plea meant that the government's
preparation had largely been done. Equally as important, the
appellant's belated decision wasted judicial resources; jurors had
been summoned unnecessarily and the court's calendar had been
cleared to accommodate a trial that never took place. A timely
decision on the appellant's part would have ameliorated these
problems, saving the government a significant portion of its trial
preparation expenses and allowing the court to husband judicial
resources. Under these circumstances, denying the additional one-
level discount was not clearly erroneous. See, e.g., Morillo, 8
F.3d at 872 (finding no clear error in denial of additional one-
level reduction when defendant waited until the day of jury
selection to enter a guilty plea); United States v. Donovan, 996
F.2d 1343, 1345 (1st Cir. 1993) (per curiam) (finding no clear
error in denial of additional one-level reduction when defendant
waited until the eve of trial to plead guilty).
The appellant makes a last-ditch effort to salvage his
acceptance of responsibility argument: he asserts that his change
of counsel caused the delay in notifying the government of his
intent to change his plea and that withholding the extra level of
credit infringes upon the exercise of his constitutionally assured
right, under the Sixth Amendment, to counsel of his choosing. We
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agree with a portion of the appellant's underlying premise, but in
the end, we find his argument unpersuasive.
The point of agreement is that a district court may
properly consider the right to effective assistance of counsel in
determining if a defendant qualifies for the additional one-level
reduction under section 3E1.1(b). See, e.g., United States v.
Altier, 91 F.3d 953, 958 (7th Cir. 1996). On the facts of this
case, however, the conclusion that the appellant would have us draw
does not follow from this premise. Nothing in the record indicates
that the timing of the appellant's decision to plead guilty had
anything to do with switching from one lawyer to another. Indeed,
the appellant does not even attempt to explain how changing counsel
impacted his decision to abjure a trial.
In all events, the district court gave careful attention
to this plaint. The court found it meritless, noting that the
appellant may have had a more plausible argument if, shortly before
he changed his plea, he had switched from appointed counsel to
retained counsel. Yet, that was not the scenario here; the
appellant's original attorney was court-appointed but rapidly
replaced by a privately retained attorney, and the shuffling to
which the appellant points is the replacement of that attorney with
yet another privately retained attorney. The district court found
that the appellant's decision to jettison one retained lawyer in
favor of another, without more, did not create a Sixth Amendment
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impediment to the withholding of the additional one-level
reduction. On the record before us, that finding was not clearly
erroneous.
B. Role in the Offense.
We turn next to the appellant's claim that he should have
received a two-level reduction for his minor role in the offenses
of conviction. The government argues plausibly that the appellant
either waived or forfeited this claim of error because he failed to
object to the PSI Report within the prescribed period. See Fed.
R. Crim. P. 32(f); D.R.I. R. 40.2(a). Giving the appellant the
benefit of every doubt, we assume, for argument's sake, that the
claim was properly preserved. On that basis, appellate review is
for clear error. United States v. Graciani, 61 F.3d 70, 75 (1st
Cir. 1995).
A defendant who seeks a downward adjustment stemming from
his supposedly peripheral role in the offense bears the burden of
proof on that issue. United States v. Ocasio, 914 F.2d 330, 332-33
(1st Cir. 1990). To qualify for a minor role reduction under USSG
§3B1.2(b), the defendant must satisfy a two-pronged test. First,
he must demonstrate that he is less culpable than most of those
involved in the offenses of conviction. See United States v.
Santos, 357 F.3d 136, 142 (1st Cir. 2004); Ocasio, 914 F.2d at 333.
Second, he must establish that he is less culpable than most of
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those who have perpetrated similar crimes. See Santos, 357 F.3d at
142; Ocasio, 914 F.2d at 333.
In an effort to satisfy the first prong, the appellant
asserts that Weeks was the ringleader — the person who arranged the
transaction — while he (Mateo-Espejo) was merely a courier. This
assertion lacks force. Although the appellant may not have
arranged the initial meeting, he transported a large amount of
crack to the delivery site, played a significant role in the
culmination of the sale, and met again with the buyer (this time,
without Weeks) to collect the unpaid balance of the purchase price.
Based on these facts, the district court found that the appellant
was not substantially less culpable than his coconspirator (and,
thus, not a minor participant).
That finding demands our fealty. After all, this court
repeatedly has upheld the denial of downward role-in-the-offense
adjustments for defendants who have been no more involved in drug
transactions than the appellant. For example, in United States v.
Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000), we descried no clear
error in the sentencing court's denial of a minor role adjustment
where the defendant had performed only "menial tasks" such as
unloading the drugs and conducting surveillance. Id. at 149. So
too in United States v. Gonzalez-Soberal, 109 F.3d 64 (1st Cir.
1997), we discerned no clear error in the sentencing court's denial
of a downward role-in-the-offense adjustment on the assumption that
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the defendant had been no more than a courier. Id. at 73-74. And
in United States v. Cepeda, 907 F.2d 11 (1st Cir. 1990), we found
no clear error in the sentencing court's denial of a minor role
adjustment where, as here, the defendant delivered drugs and
collected money. Id. at 12. Silhouetted against this precedential
backdrop, the decision of the court below denying the appellant's
request that he be classified as a minor participant cannot be
characterized as clearly erroneous. Cf. United States v. González,
363 F.3d 15, 18 (1st Cir. 2004) (per curiam) ("Even if
[defendant's] role were limited to that of driver, that would not
necessarily, without more, prove that he deserved a role
adjustment.").
C. Booker Error.
In Booker, the Supreme Court held that a defendant's
Sixth Amendment right to trial by jury is violated when his
sentence is imposed under a mandatory guidelines system that gives
decretory significance to judge-found facts. 125 S. Ct. at 756.
The appellant notes that he was sentenced prior to the Booker
decision and under the mandatory guidelines system then in effect.
Building on this foundation, he maintains that his sentence is
tainted by Booker error.
The appellant did not make a Sixth Amendment objection at
the time of sentencing, so this claim of error is unpreserved.
Consequently, our review is for plain error. United States v.
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Guzmán, 419 F.3d 27, 30 (1st Cir. 2005); United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). To cross that
threshold, the appellant must show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
In this instance, the lower court, operating in
accordance with the pre-Booker norm, treated the guidelines as
mandatory. Thus, the first two elements of the plain-error
formulation are present here. See Antonakopoulos, 399 F.3d at 77.
To satisfy the third element, the appellant must
demonstrate a reasonable probability that he would have received a
lesser sentence under an advisory guidelines regime. See Guzmán,
419 F.3d at 30; Antonakopoulos, 399 F.3d at 75. Although we are
not overly demanding in our assessment of a defendant's attempt to
make this showing, see United States v. Heldeman, 402 F.3d 220, 224
(1st Cir. 2005), we do require "something concrete, whether or not
in the sentencing record itself, that provides a plausible basis
for such a finding," Guzmán, 419 F.3d at 32.
The appellant first suggests that there are factors
present here that the sentencing court, under a mandatory
guidelines system, was unable to consider when passing sentence and
that, under an advisory guidelines system, these factors would have
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led to a milder sentence. In this regard, the appellant, who was
twenty-three years of age at the time of sentencing, mentions his
youth and his significant familial responsibilities. While the
district court did not allude to either of these factors at
sentencing, the appellant attributes the court's silence to the
prohibitory language of the now-discredited mandatory guidelines
system. See USSG §5H1.1 (directing that age ordinarily should not
be deemed relevant in determining whether a sentence should be
imposed outside the applicable GSR); id. §5H1.6 (same, with respect
to family circumstances).
It is, of course, possible that a judge might reserve
comment on a matter because he thought that the mandatory nature of
the sentencing guidelines rendered comment futile. Here, however,
the district court, fully apprised by the PSI Report of the
appellant's age and family responsibilities, went out of its way to
indicate its reluctance to impose the low-end sentence that the
government strongly recommended. The court stated, in no uncertain
terms, that it did not see "any reason" for a sentence at the
bottom of the GSR, "except for the government's recommendation."
These statements are a powerful indication that the court was
unpersuaded that the factors limned in the PSI Report counseled in
favor of leniency. In the last analysis, the colloquy in the
record, taken as a whole, neither suggests nor supports a
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reasonable probability that the court would have imposed a sentence
outside the GSR under an advisory guidelines regime.
The appellant has another string to his bow. He
asseverates that there were other circumstances, not mentioned in
the PSI Report, that would have led the court to impose a more
lenient sentence. We reject this asseveration.
The first circumstance to which the appellant alludes is
the disparity between his 97-month sentence and Weeks's 70-month
sentence. A well-founded claim of disparity, however, assumes that
apples are being compared to apples. Here, there is no true
disparity; differences between the appellant's belated and grudging
cooperation and Weeks's prompt and full cooperation sensibly
account for the differing sentences. On a practical level, it would
seem patently unreasonable to endorse a regime in which a defendant
could steadfastly withhold cooperation from the authorities and
then cry foul when a coconspirator benefits from rendering
substantial assistance to the government.
The only other "new" circumstance to which the appellant
adverts is his claim that he committed the crimes because he needed
money to provide for an ailing grandmother and parents who were
being evicted from their home. This line of defense did not work
for Jean Valjean, cf. Victor Hugo, Les Misérables (Norman Denny
trans., Penguin Books 1982) (1862), and we see no basis for a
reasonable expectation that it would have worked here. After all,
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the sentencing court was aware of the appellant's familial
obligations and it said nothing that might lead to a well-founded
belief that those obligations ought to impact the length of the
sentence. That silence, combined with the court's avowed
reluctance even to give the appellant a sentence at the bottom of
the GSR, leads to the conclusion that the appellant has failed to
demonstrate a reasonable probability that the Booker error had a
prejudicial effect in this case. See, e.g., United States v.
Martins, 413 F.3d 139, 154 (1st Cir. 2005); United States v. Vega
Molina, 407 F.3d 511, 534 (1st Cir. 2005).
Because the appellant has not shown a reasonable
probability that the lower court would have imposed a more lenient
sentence under an advisory guidelines system, we reject his Booker
challenge.
III. CONCLUSION
We need go no further. The court below did not err in
calculating the applicable GSR. It did, of course, commit Booker
error, but that unpreserved error was not prejudicial (and,
therefore, was not plain). Accordingly, there is no justification
for disturbing the appellant's sentence.
Affirmed.
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