United States Court of Appeals
For the First Circuit
No. 05-1566
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR PARRILLA ROMÁN,
Defendant, Appellant.
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No. 05-1863
UNITED STATED OF AMERICA,
Appellee,
v.
CARLOS JAVIER ORTIZ SANTIAGO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya and Tashima,* Senior Circuit Judges.
Ramón García García on brief for appellant Parrilla Román.
Jorge L. Armenteros-Chervoni for appellant Ortiz Santiago.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief,
for the United States.
May 9, 2007
__________
*Of the Ninth Circuit, sitting by designation.
SELYA, Senior Circuit Judge. These sentencing appeals
reverberate with the echo of a question that we thought we had laid
to rest in United States v. Reccko, 151 F.3d 29 (1st Cir. 1998).
This question involves the application of the two-level enhancement
for abuse of a position of trust under the current version of the
federal sentencing guidelines. See USSG §3B1.3 (2006).
Concluding, as we do, that the district court erred in its
application of this guideline, we vacate the defendants' sentences
and remand for resentencing consistent with this opinion.
I. BACKGROUND
Because these appeals follow the entry of guilty pleas,
we take the relevant facts from the defendants' change-of-plea
colloquies, the uncontested portions of the presentence
investigation reports, and the transcripts of their disposition
hearings. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.
1991). The tale follows.
In more tranquil times, defendants-appellants Carlos
Javier Ortiz Santiago (Ortiz) and Omar Parrilla Román (Parrilla)
worked as fleet service clerks for American Airlines at the Luis
Muñoz Marín International Airport in Carolina, Puerto Rico.1 Fleet
service clerks are responsible for loading and unloading cargo onto
1
Originally, the airline listed Ortiz's job title as "ramp
agent." He later became a fleet service clerk. The district court
and the parties seem to have employed the two titles
interchangeably. Because nothing turns on this nomenclative point,
we use the latter title.
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and off of passenger aircraft, handling mail and freight for
shipment by air, and cleaning the interior areas of passenger
aircraft. They also drive airline vehicles, operate machinery,
guide aircraft through ground-level arrival and departure
maneuvers, and help to de-ice airplanes when required. Judging by
the defendants' rates of pay, fleet service clerks earn from $10.00
- $12.50 an hour.
In 2003, the defendants supplemented their workload (and,
presumably, their income) by conspiring with others to transport
cocaine from Puerto Rico to various destinations on the mainland.
The basic scheme, with minor variations from caper to caper,
operated as follows. Ortiz would receive a suitcase containing
cocaine, which he would then carry or drive through security
checkpoints without inspection. He then ensured that the suitcase
was stowed safely aboard a designated departure-bound airplane.
For his part, Parrilla made sure that his confederates knew that
"the bird is in flight"; that is, that a cocaine-laden suitcase had
been placed aboard a pre-selected flight. On at least two
occasions, he provided coconspirators with a baggage claim ticket,
flight information, and the assumed name that had been used for
such a suitcase.
In due season, federal agents unearthed the plot. An
indictment followed apace. To make a tedious tale tolerably terse,
both Ortiz and Parrilla eventually pleaded guilty to a count that
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charged conspiracy to possess with intent to distribute five or
more kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846.
The district court sentenced Parrilla on March 11, 2005.
The main battle was over the applicability vel non of the position-
of-trust enhancement. See USSG §3B1.3. Parrilla argued that,
given his duties as a fleet service clerk, he had no managerial
discretion, played no supervisory role, and thus could not be
deemed to occupy a position of trust. Parrilla buttressed his
argument with a copy of the job description for the fleet service
clerk position. The argument was in vain. The district court
imposed the position-of-trust enhancement, stating:
Now, you have submitted a copy of the
job description, and that is fine. But let's
take it one step prior to the job description.
If [Parrilla] did not have a security
clearance from the Ports Authority whereby he
had to comply with certain conditions to
obtain the security clearance, he would not
have been able to be employed by American
Airlines.
. . . .
The facts that your client accepted
when he pled guilty include[] the fact that
once inside the airport, the suitcase was
provided to the co-defendant, who insured that
the suitcase made it on board . . . .
. . . .
. . . But he is there in that position
because he held a position of trust or a
secured position within the airport, as
authorized by Ports Authority.
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So if he had not had that security
clearance, he would not have been in a
position to insure that the luggage got on the
airplane. And that is why his position of
private trust did contribute in some
significant way to facilitating the commission
of the crime. Otherwise, the suitcases would
not have been put on board.
Combined with Parrilla's base offense level, other adjustments, and
criminal history category (I), the offense level increase yielded
a guideline sentencing range (GSR) of 87-108 months. Without the
enhancement, the GSR would have been 70-87 months. The court
levied an 87-month incarcerative term — the bottom of the
calculated GSR.
The district court convened Ortiz's disposition hearing
on April 28, 2005. The hearing unfolded and concluded in much the
same manner. Pertinently, Ortiz argued that, as a mere baggage
handler, he had no professional or managerial discretion and could
not be deemed to occupy a position of trust. The government
countered that because he had a security clearance that enabled him
to pass unchallenged through security checkpoints and transport
drugs through restricted areas of the airport without being
stopped, he occupied a position of trust.
The district court accepted the government's logic. It
reasoned:
[N]ot everybody can qualify for [the fleet
service clerk] position. First of all, they
have to go through a security check of the
airport. They have to submit background
information. They have to submit background
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records. They have to have a police clearance
from the police that no criminal record is
involved, and after going through all that,
then the airport personnel provides this
individual with a pass, which they have to
carry all the time with their photograph,
which allows them to go into a secured area.
So in that sense, the Defendant is
being allowed to go into a secured area
because he holds a position of trust.
Otherwise, he wouldn't be going into the
secured area. Once . . . he is identified as
being a person of trust within the secured
area of the airport, then he's able to move in
and out from the secured area to the other
areas of the airport to bring in suitcases
without having them inspected, and
furthermore, to being able to place them in
the airplanes . . . .
With this predicate in mind, the district court concluded that
Ortiz, like Parrilla, should receive a position-of-trust
enhancement because his position had contributed significantly to
the commission of the offense of conviction.
The court increased Oritz's offense level accordingly.
Combined with his base offense level, other adjustments, and
criminal history category (I), this increase yielded a GSR of 87-
108 months. Without the enhancement, the GSR would have been 70-87
months. The court sentenced Ortiz to serve a low-end 87-month
incarcerative term and to pay a $5,000 fine.
Both Parrilla and Ortiz appealed their sentences. This
court consolidated the two appeals.
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II. DISCUSSION
The principal issue on appeal is the defendants' claim
that the district court erred in imposing the position-of-trust
enhancements. Ortiz also attempts to raise a further claim that
the district court abused its discretion in failing to reconsider
the imposition of the fine. We consider these claims sequentially.
Our standard of review is familiar. Following the
Supreme Court's decision in United States v. Booker, 543 U.S. 220,
245 (2005), which rendered the federal sentencing guidelines
advisory, the guidelines remain the starting point for sentencing
determinations. See United States v. Gobbi, 471 F.3d 302, 313 &
n.7 (1st Cir. 2006); United States v. Jiménez-Beltre, 440 F.3d 514,
518-19 (1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 928
(2007). This means that, as a first step in the sentencing pavane,
the district court must calculate a defendant's GSR. In the
typical case, the correctness of that calculation is a necessary
precondition to a reasonable sentence. See, e.g., United States v.
Robinson, 433 F.3d 31, 35 (1st Cir. 2005).
In reviewing such a calculation, we accept the sentencing
court's findings of fact unless they are clearly erroneous. See
United States v. Dixon, 449 F.3d 194, 200 (1st Cir. 2006). We
review de novo, however, the court's interpretation and application
of the guidelines. See United States v. Pho, 433 F.3d 53, 60 (1st
Cir. 2006).
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A. Position of Trust.
The guideline at issue here provides:
If the defendant abused a position of public
or private trust . . . in a manner that
significantly facilitated the commission or
concealment of the offense, increase [the
defendant's offense level] by 2 levels.
USSG §3B1.3. An application note elaborates:
'Public or private trust' refers to a position
of public or private trust characterized by
professional or managerial discretion (i.e.,
substantial discretionary judgment that is
ordinarily given considerable deference).
Persons holding such positions ordinarily are
subject to significantly less supervision than
employees whose responsibilities are primarily
non-discretionary in nature. For this
adjustment to apply, the position of public or
private trust must have contributed in some
significant way to facilitating the commission
or concealment of the offense (e.g., by making
the detection of the offense or the
defendant's responsibility for the offense
more difficult). This adjustment, for
example, applies in the case of an
embezzlement of a client's funds by an
attorney serving as a guardian, a bank
executive's fraudulent loan scheme, or the
criminal sexual abuse of a patient by a
physician under the guise of an examination.
This adjustment does not apply in the case of
an embezzlement or theft by an ordinary bank
teller or hotel clerk because such positions
are not characterized by the above-described
factors.
Id., cmt. n.1.
Consistent with this guideline and the quoted application
note, we have constructed, and directed sentencing courts to use,
a two-step process for determining whether a position-of-trust
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enhancement should be imposed. The sentencing court must first
answer the status question: Did the defendant occupy a position of
trust? If not, the inquiry ends. If, however, the status question
produces an affirmative response, the court must then answer the
conduct question: Did the defendant use that position to facilitate
significantly the commission or concealment of the offense? See
Reccko, 151 F.3d at 31; United States v. Gill, 99 F.3d 484, 489
(1st Cir. 1996); United States v. Santiago-Gonzalez, 66 F.3d 3, 8
(1st Cir. 1995). The two steps are separate. As we explained in
Reccko, 151 F.3d at 32, care must be taken not to conflate them.
In imposing a position-of-trust enhancement pursuant to
section 3B1.3, the Reccko district court incorrectly determined
that the defendant, a switchboard operator at a municipal police
headquarters, held a position of trust precisely because her job
provided her with the access needed to commit the charged crime
(unlawfully tipping off a suspect to an impending raid). See id.
The sentencing court's determination here suffers from much the
same infirmity. Rather than first posing the status question —
asking whether the fleet service clerk position was characterized
by professional or managerial discretion and minimal supervision —
the court jumped immediately to the conduct question, zeroing in on
the defendants' ready access to restricted areas of the airport.
The court then used that access as the basis for a blanket answer
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to both the status and the conduct questions. That analysis merged
the two distinct steps that Reccko requires.
Recognizing the inconsistency between the district
court's approach and the Reccko paradigm, the government tries to
distinguish Reccko on the ground that there was no evidence in that
case to suggest that the defendant had obtained a security
clearance. To support the relevance of this suggested distinction,
the government cites United States v. Castagnet, 936 F.2d 57 (2d
Cir. 1991), for the proposition that "[t]he primary trait that
distinguishes a person in a position of trust from one who is not
is the extent to which the position provides the freedom to commit
a difficult-to-detect wrong." Id. at 61-62 (citation and internal
quotation marks omitted). Castagnet is inapposite: that decision
dealt with a now-obsolete version of section 3B1.3 that antedated
the Sentencing Commission's clear focus on professional or
managerial discretion and minimal supervision. See Reccko, 151
F.3d at 33. Without more, the security clearance awarded to Ortiz
and Parrilla cannot transmogrify a menial position into a position
of trust. Cf. United States v. Edwards, 325 F.3d 1184, 1187 (10th
Cir. 2003) (rejecting position-of-trust enhancement for clerical
position where government alleged "virtual exclusive control" over
customer accounts).
Relatedly, the government indulges in an unabashed
attempt at bootstrapping. It says that since the defendants were
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successful for a time in smuggling contraband into the airport,
their positions must have entailed minimal supervision. That turns
the guideline on its head: it does not follow that, merely because
a defendant's position enables him to commit an offense, the
position must have been unsupervised and, thus, a position of
trust. Cf. id. (explaining that "[o]pportunity and access" do not
equate with substantial discretionary judgment); United States v.
Sierra, 188 F.3d 798, 802 (7th Cir. 1999) (explaining that the
ultimate success of the criminal enterprise is not an independent
measure of significant facilitation).
The government's citation to our decision in United
States v. Casas, 356 F.3d 104 (1st Cir. 2004), is equally
unhelpful. While the district court in that case imposed a myriad
of upward adjustments, including a position-of-trust enhancement,
on a defendant who worked as a baggage handler for American
Airlines, the status question was not an issue on appeal. Rather,
insofar as the position-of-trust enhancement was concerned, the
panel dealt only with an Apprendi challenge. See id. at 128
(discussing Apprendi v. New Jersey, 530 U.S. 466 (2000)). We were
not asked to decide, nor did we decide, whether the position-of-
trust enhancement comported with the guideline.
There is no need to tarry. At bottom, the government's
arguments vividly illustrate its lack of comprehension of (or,
perhaps, its stubborn unwillingness to accept) the standard that we
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delineated in Reccko. That is particularly unfortunate here
because the facts, as developed in the district court, will not
support a finding that the fleet service clerk positions are
positions of trust within the meaning of USSG §3B1.3. After all,
the government concedes that neither Ortiz nor Parrilla was
afforded discretion to establish policies or to supervise co-
workers. Moreover, nothing in the record suggests that either of
the two men toiled under minimal supervision. To the contrary, the
kinds of tasks typically required of fleet service clerks (e.g.,
loading and unloading cargo, cleaning cabin interiors, and guiding
taxiing aircraft) are the kinds of tasks that almost invariably
require oversight.
In all events, the government bears the burden of proving
the applicability of the position-of-trust enhancement. See United
States v. Connell, 960 F.2d 191, 197 (1st Cir. 1992). It suffices
to say that the government has not carried that burden here. The
fleet service clerk position appears to be on par with the
switchboard operator position described in Reccko and with the bank
teller and hotel clerk positions identified by the Sentencing
Commission as non-trust positions. See USSG §3B1.3, cmt. n.1; see
also United States v. West, 56 F.3d 216, 220 (D.C. Cir. 1995)
(courier). Because neither of the defendants held a position of
public or private trust, the district court erred in enhancing
their offense levels under section 3B1.3.
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B. The Fine.
As a postscript of sorts, we briefly address Ortiz's
objection to the $5,000 fine imposed by the district court (an
objection that he couches in the form of an objection to the denial
of his serial motions to reconsider the fine). As we explain
below, he has waived his right to appeal that impost.
Ortiz pleaded guilty pursuant to a negotiated plea
agreement with the government (the Agreement). The Agreement
included an explicit commitment that as long as the district court
accepted the Agreement and sentenced him in accordance with its
terms, he "waive[d] and surrender[ed] his right to appeal the
judgment and sentence in this case." The district court accepted
the Agreement and, in doing so, received appropriate assurances
that this waiver was knowing and voluntary. The court proceeded to
sentence Ortiz within the parameters of the Agreement.
In his appellate brief, Ortiz does not mention this
waiver. It is easy to see why: the waiver was unequivocal. The
only reservation of a right to appeal concerned the possible
application of the hotly contested position-of-trust enhancement.
See supra Part II(A).
We consistently have upheld properly phrased waivers of
the right to appeal from criminal sentencing decisions. See, e.g.,
United States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007); United
States v. Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006); United
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States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). There is no
apparent reason to depart from this praxis today. See Miliano, 480
F.3d at 608 (explaining that where "the defendant simply ignores
the waiver [of appeal] and seeks to argue the appeal as if no
waiver ever had been executed, he forfeits any right to contend
either that the waiver should not be enforced or that it does not
apply"). The waiver, then, undercuts Ortiz's attempt to appeal
from the imposition of the fine.2
It makes no difference that Ortiz has couched his claim
of error in terms of the denial of his serial motions to reconsider
the fine. Because Ortiz waived his right to appeal the fine
itself, see text supra, we discern no legally cognizable basis on
which he can challenge the denial of motions to reconsider its
imposition. A criminal defendant who, like Ortiz, knowingly and
voluntarily waives his right to appeal all or some part of his
sentence, cannot evade the effects of that waiver by the simple
2
Although it may be tantamount to carting coal to Newcastle,
we note that a sentencing court has wide discretion in deciding
whether or not to impose a fine. See United States v. Savoie, 985
F.2d 612, 620 (1st Cir. 1993). The presumption is that a
sentencing court should "impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is unlikely
to become able to pay any fine." USSG §5E1.2(a). The defendant
bears the burden of showing that this presumption should not
operate in his case. United States v. Peppe, 80 F.3d 19, 22 (1st
Cir. 1996). To carry that burden, he must show an inability to pay
the fine either presently or in the future. United States v. Rowe,
268 F.3d 34, 38 (1st Cir. 2001). Given Ortiz's work history, a
finding of likely future ability to pay a relatively modest fine
was well within the sentencing court's discretion.
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expedient of moving to reconsider the unappealable sentence and
then appealing the denial of that motion. Cf. United States v.
Joiner, 183 F.3d 635, 645 (7th Cir. 1999) (explaining that waiver
of appeal of sentence constitutes an implied waiver of the right to
raise an ineffective assistance of counsel claim based on "garden-
variety attacks on his sentence . . . in the guise of a claim of
ineffective counsel").
III. CONCLUSION
We need go no further. Because the district court erred
in imposing position-of-trust enhancements, we vacate the
defendants' sentences and remand for resentencing without resort to
those enhancements. The guidelines are, of course, advisory in
nature, see Booker 543 U.S. at 245, and the district court remains
free, after properly calculating the guideline range, to impose
reasonable sentences of such duration as it deems fitting. That
court, if it so chooses, may also reimpose the disputed fine.
Vacated and remanded.
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