United States v. Arango

United States Court of Appeals
For the First Circuit

No. 06-1318

UNITED STATES OF AMERICA,

Appellee,

v.

JHON JAIRO ARANGO,

Defendant, Appellant.

No. 06-1319

UNITED STATES OF AMERICA,

Appellee,

v.

DARÍO OSORIO-NORENA

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Court]

Before
Torruella and Lipez, Circuit Judges,
and Stafford, Jr.,* Senior District Judge.

Mark Diamond for appellant Osorio-Norena.
David Abraham Silverman for appellant Arango.

*
Of the District of Northern Florida, sitting by designation.
 Patrick Hamilton, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

November 15, 2007
 LIPEZ, Circuit Judge. Although co-defendants Jhon Jairo

Arango ("Arango") and Dario Osorio-Norena ("Osorio") pled guilty to

money laundering and drug distribution charges, they contested the

amount of money and the quantity of drugs involved in the crimes.

After a fourteen-day evidentiary hearing, the district court found

them responsible for laundering $1.8 million in drug proceeds and

for participation in a conspiracy involving sixty-seven kilograms

of cocaine. Each received a sentence of 262 months of imprisonment

and a $2 million fine. For Arango, the sentence was at the bottom

of the applicable range under the United States Sentencing

Guidelines. For Osorio, that sentence corresponded to a downward

departure of thirty months because he had a prior conviction

placing him in a higher Criminal History Category ("CHC") than

Arango.

Both defendants appeal their sentences on multiple

grounds. Their primary argument is that the district court erred

in failing to state the reasons for their sentences in open court,

as required by 18 U.S.C. § 3553(c). Although the sentencing

explanations are not as fully stated as they might have been, we

conclude that in the circumstances of this case there was no error.

Both defendants also contend that the court erred in

granting them only a two-level, rather than a three-level,

adjustment for acceptance of responsibility, and Osorio alone

raises a number of other claims. In his primary brief, he asserts

-3-
that the court: (1) improperly based his sentence on facts not

found by the jury beyond a reasonable doubt and, even under the

preponderance-of-the-evidence standard, incorrectly calculated the

quantity of drugs and the amount of laundered money for which he

may be held responsible; (2) failed to consider the sentencing

factors set out in 18 U.S.C. § 3553(a); and (3) failed to properly

determine whether a fine should be assessed against him. In a pro

se brief, Osorio elaborates on some of those claims and adds two

more: that the government breached a plea agreement and that the

court improperly found that he played a leadership role in the drug

conspiracy. We reject all of Osorio's individual claims, along

with the joint claim that the district court erred in granting only

a two-level reduction in offense level for defendants' acceptance

of responsibility. We therefore affirm the sentences.

I.

In August 2004, a federal grand jury returned a fourth

superseding indictment against defendants Arango and Osorio,

charging each of them with three counts: conspiracy to distribute

five or more kilograms of cocaine, in violation of 21 U.S.C. § 846

(Count One); conspiracy to launder drug proceeds, in violation of

18 U.S.C. § 1956(h) (Count Two); and distribution of five or more

kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count

Three). A jury trial was scheduled to begin on March 21, 2005. On

-4-
March 16, Arango notified the government that he intended to plead

guilty. Osorio did the same on the morning of March 21.

At a change of plea hearing, Arango pled guilty to all

three charges in the indictment, and Osorio pled guilty on the

first two counts but entered an Alford plea as to the third count.

See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An

individual accused of crime may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence even

if he is unwilling or unable to admit his participation in the acts

constituting the crime."). Both defendants admitted that the

conspiracy involved five kilograms of cocaine, but contested any

quantity above that amount. They did not concede any dollar amount

on the money-laundering count. Arango admitted responsibility for

the seven kilograms of cocaine charged in the distribution count;

Osorio, through the Alford plea, denied responsibility for that

specific distribution of cocaine.

The district court held a fourteen-day evidentiary

hearing to establish the quantities of drugs and amount of money

involved in the crimes. Law enforcement officers testified that

the defendants were arrested and extradited to Massachusetts from

Colombia as part of an investigation that also led to the

indictment of fourteen other individuals. Among them were two

cooperating witnesses who testified at the hearing, Liliana Cruz

and Jorge de Jesus Vallejo Alarcon ("Vallejo"). Cruz's direct

-5-
testimony occupied eight days of the hearings and her cross-

examination spanned an additional two. She testified in detail

about her role in transporting drugs from New York to Massachusetts

on behalf of Arango and Osorio between 1998 and mid-August 1999 and

her later involvement in laundering money for the defendants from

early 2000 until her arrest in June of that year.

Of particular relevance, she testified that she

transported cocaine from New York to Boston at Osorio's request on

five separate occasions. According to her testimony, she picked up

the drugs in Queens and in the Bronx. On each trip to Queens, she

called Osorio upon arriving at a designated location. Shortly

thereafter, the person who was delivering the drugs called her cell

phone. She would then meet with that person, inspect the drug

quantity, take delivery of the drugs, and transport the narcotics

to Massachusetts. Cruz would then phone Osorio and tell him where

he could pick up the car, and she would leave the drugs in the

unlocked vehicle. The car would be returned to her in the morning,

without the drugs. The Bronx trips occurred in roughly the same

manner except that Cruz received the drugs by leaving her unlocked

car in a pre-arranged location and returning later, after the drugs

had been delivered. She also testified that Osorio named Arango as

the source of the drugs she picked up in Queens on her first trip

there, and she supposed that the second shipment from Queens also

came from him because she met with the same people in Queens on

-6-
that trip. She did not know whether the deliveries from the Bronx

were related to Arango.

Cruz also testified to specific drug quantities. She

reported that she delivered fifty kilograms of cocaine in her first

trip from Queens to Massachusetts and ten kilograms on her second

trip. She also recounted that she delivered fifty and twenty-five

kilograms, respectively, on her two trips from the Bronx. Cruz

testified that she made a fifth trip between New York and

Massachusetts at Osorio's request involving an additional fifty

kilograms of cocaine; however, she recalled that Arango was in

Colombia at the time of that trip and she could not be sure who

supplied the drugs.

Cruz testified that she began laundering proceeds from

the drug transactions in 2000. She reported that, at defendants'

request, she transported money from New York to Massachusetts on

three separate occasions, in the amounts of $500,000, $600,000, and

$500,000, respectively. She also testified that she received

deliveries of smaller amounts of money from two brothers with the

surname "Cataño" and from Alonso Tavarez, and that Arango or Osorio

called to inform her of each such delivery before it occurred. The

defendants also instructed her as to the distribution and mailing

of those monies, which together totaled $699,000. Osorio also

instructed her on how to hide money in electronic toys so that she

could ship it to Colombia undetected. In addition to sending money

-7-
in this manner, she also occasionally wired small amounts of money

to defendants and, at their direction, delivered money to other

members of the conspiracy in the United States. Cruz testified

that she kept careful records of the amounts of money collected and

delivered to various parties and she retained her shipping receipts

until either Arango or Osorio confirmed receiving the money.

Finally, Cruz testified that she bought seven kilograms

of cocaine from Alonso Tavarez shortly before her arrest and that

Tavarez told her the cocaine came from Arango and Osorio. Cruz

intended to use this cocaine as part of a ten-kilogram sale to

Camilo Aguirre. Unbeknownst to Cruz, Aguirre was the target of a

United States Drug Enforcement Administration investigation and,

after she delivered the first five kilograms of cocaine to Aguirre,

she was arrested. A subsequent investigation of her house produced

the remaining five kilograms, along with extensive records related

to her drug and money laundering activities. Shortly after her

arrest, Cruz became a cooperating witness and allowed the

government to record her phone calls.

Cruz's testimony was corroborated by various forms of

evidence, including receipts and other records found at her house,

tape-recorded phone calls, and the testimony of law enforcement

officials and Vallejo, who reported that he was sent by Arango and

Osorio to aid Cruz in collecting money owed by a distributor. In

one taped conversation between Cruz and Arango, Arango reviewed the

-8-
amounts of money that had been delivered to her from the Cataños

and Tavarez and how that money had been distributed. Those amounts

matched Cruz's written records. In addition, Cruz had receipts for

two Avianca shipments, mailed to Arango and his wife, in which she

had concealed $160,000 from her first money laundering trip to New

York but which had been intercepted by U.S. Customs officials.

Customs documents confirmed that two packages matching these

shipping receipts were intercepted at the relevant time.

At the close of the evidentiary hearing, the district

court made a number of factual findings. Deeming Cruz a credible

witness, it found the defendants responsible for "at least" sixty-

seven kilograms of cocaine on the drug charges and for $1.8 million

on the money laundering charge. It arrived at the sixty-seven

kilogram figure by adding together fifty kilograms from one trip

and ten kilograms from a second trip Cruz made to Queens on behalf

of defendants, along with the seven kilograms she purchased from

Tavarez, who received the cocaine from Arango and Osorio. The

court arrived at the money laundering figure by adding together

$500,000 and $600,000 that Cruz testified she retrieved from New

York at defendants' request in the spring of 2000, plus the roughly

$700,000 that was delivered to her in small amounts by the Cataño

brothers and Tavarez.1

1
Cruz actually testified that she made three trips to
retrieve money from New York: two for $500,000 and one for
$600,000. The government noted the discrepancy in the $1.8 million

-9-
 The district court also found that the facts supported a

sentencing enhancement under U.S.S.G. § 3B1.1(a) because defendants

were leaders or organizers in a criminal activity that involved

five or more participants or was otherwise extensive. Although the

court applied the preponderance of the evidence standard in making

these findings, it stated that it "would have no difficulty in

making . . . all of the findings beyond a reasonable doubt."

The Presentence Report ("PSR") prepared by the Probation

Office calculated a base offense level of 41 for Arango and

Osorio.2 The court granted both defendants a two-level downward

adjustment in their offense levels for acceptance of

responsibility, but found they did not qualify for the additional

one-level reduction that is given for timely notification of the

intent to plead guilty. See U.S.S.G. § 3E1.1(b)(2). Arango had no

prior criminal history and therefore was assigned a criminal

history score of "I"; Osorio's criminal history score was "II,"

based on his failure to pay a fine and complete the probationary

period related to a drunk driving incident in 1994. Under the

Guidelines, Arango was subject to a sentencing range of 262 to 327

months, and Osorio's range was 292 to 365 months.

figure, which was a result of its own calculation error, but the
court declined to correct its finding, explaining that the
Guidelines sentencing range would remain the same.
2
Arango and Osorio were sentenced under the November 2000
version of the Guidelines and all references in this opinion
correspond to that edition.

-10-
 The court sentenced Arango to 262 months of imprisonment

on the drug counts and 240 months on the money laundering count, to

run concurrently and to be followed by five years of supervised

release. It also imposed a fine of $2 million and a special

assessment of $300. The court imposed the same sentence on Osorio,

explaining that it viewed both men to be equally culpable and that

Osorio's criminal history, though not insignificant, did not

warrant a sentencing disparity between the two men. The court

noted that it viewed the 262-month term as "sufficient to meet the

sentencing factors outlined in the statute" – a reference to 18

U.S.C. § 3553(a), which sets out various factors courts should

consider in sentencing.3

Arango and Osorio appeal these sentences on multiple

grounds. They claim that the district court failed to adequately

explain the basis for the sentences it imposed, as required by 18

U.S.C. § 3553(c), and also erred in denying them a three-level

downward adjustment for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(b)(2). Osorio raises several additional

challenges: (1) that the court improperly failed to consider the

3
Those factors include: the nature and circumstances of the
offense and the history and characteristics of the defendant; the
need for the sentence to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment; to
afford adequate deterrence; to protect the public; to provide the
defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
and the kinds of sentences available.

-11-
factors laid out in 18 U.S.C. § 3553(a); (2) that the calculations

of drug quantity and laundered money were flawed either because the

court's findings were not supported by a preponderance of the

evidence or because they should have been found by a jury beyond a

reasonable doubt; and (3) that the court abused its discretion in

imposing a $2 million fine on Osorio without considering his

ability to pay. In his pro se supplemental brief, Osorio also

argues that the government breached a plea agreement and that the

court improperly enhanced his sentence based on his leadership role

in the charged conspiracies.

II.

A. Acceptance of Responsibility

Arango and Osorio contend that the district court erred

in granting them a two-level, rather than three-level, reduction in

offense level for acceptance of responsibility. The Guidelines

provide for a two-level downward adjustment "if the defendant

clearly demonstrates acceptance of responsibility for his offense,"

§ 3E1.1(a), and an additional one-level reduction is available if

the defendant "has assisted authorities in the investigation or

prosecution of his own misconduct by . . . timely notifying

authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and

-12-
permitting the court to allocate its resources efficiently."

§ 3E1.1(b)(2).4

The defendants argue that, by pleading guilty on all

counts of the indictment, they allowed the government to avoid the

time and expense of preparing for and conducting a trial and that

they therefore met the criteria for the additional reduction. The

government counters that, although both defendants pled guilty to

the charged crimes, their pleas were "untimely" and did not save

the government significant time or expense, as it had already

engaged in substantial trial preparation by the time they agreed to

enter their pleas.

The parties thus dispute the district court's

determination that defendants' pleas were "untimely" under

§ 3E1.1(b)(2). We review this determination for clear error,

United States v. Ortiz-Torres, 449 F.3d 61, 76 (1st Cir. 2006),

noting that the Guidelines commentary specifies that such

determinations are "context specific," and that "conduct qualifying

for [the third level of decrease] will occur particularly early in

the case . . . so that the government may avoid preparing for trial

and the court may schedule its calendar efficiently." § 3E1.1,

cmt. 6.

4
In order to qualify for the additional decrease in offense
level under § 3E1.1(b)(2), the defendant must qualify for the two-
level decrease under § 3E1.1(a) and his original offense level must
be at least sixteen.

-13-
 Here, Osorio notified the government of his intent to

plead guilty on the morning trial was scheduled to begin. We have

repeatedly upheld the denial of an adjustment under § 3E1.1(b)(2)

when a defendant provides notice of an intent to plead guilty on

either the eve or first day of trial. See United States v. Mateo-

Espejo, 426 F.3d 508, 511 (1st Cir. 2005) (upholding denial of

adjustment where guilty plea entered on date scheduled for jury

selection); United States v. Morrillo, 8 F.3d 864, 872 (1st Cir.

1993) (same); United States v. Donovan, 996 F.2d 1343, 1345 (1st

Cir. 1993) (per curiam) (upholding denial of adjustment where plea

agreement was reached on the eve of the second scheduled trial

date).

Arango gave the government slightly more notice,

announcing his intention to plead guilty the Wednesday before his

Monday trial was to begin. However, in the context of this complex

case, there is little evidence that these additional days of notice

saved the government significant trial preparation. The docket

indicates that the government had already filed a trial brief, a

proposed voir dire, a motion in limine, a list of exhibits and

witnesses, and proposed jury instructions before the defendants

announced their intended change of plea. At the sentencing

hearing, the government reported that it already had spent

significant time translating and transcribing phone conversations

and preparing witnesses for the trial and that - because it

-14-
expected the matter to be contested at trial - it had already gone

through a process of generating voice exemplars to authenticate

Arango's voice on the audiotapes expected to be presented into

evidence.

Defendants argue that the government's efforts were not

wasted because many of the same steps were necessary to prepare for

the evidentiary hearing on the drug quantity and amount of money

involved in the charged conspiracies. However, this argument

misses the point. The Guidelines are clear that a three-level

reduction is warranted only where the defendants' acceptance of

responsibility occurs early in the pre-trial preparation period.

There is substantial evidence that the government had already

invested substantial resources in preparing to try these defendants

when it learned that they would plead guilty. The happenstance

that some of the same evidence proved useful for sentencing

purposes does not qualify these defendants for a reduction based on

a timely notification of their intention to plead guilty.

B. Calculation of Drug Quantity and Amount of Money Laundered

Osorio contends that the district court erred in

sentencing him on the basis of sixty-seven kilograms of cocaine on

the drug charges and $1.8 million on the money laundering charge.

He argues that the court erred in using a preponderance of the

evidence standard and that, even if that standard applies, there

-15-
were insufficient facts to support the court's findings. We

disagree on both counts.5

Osorio argues that, "where life in prison is the

authorized maximum sentence, the finding of fact used to determine

the sentence must be arrived at by proof beyond a reasonable doubt

by a jury or a defendant's admission." The Supreme Court held in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and confirmed in

United States v. Booker, 543 U.S. 220, 244 (2005), that any fact

necessary to support a sentence exceeding the statutory maximum

(other than a prior conviction) must be found by a jury beyond a

reasonable doubt or admitted by the defendant. This standard does

not help Osorio because he pled guilty to charges that carried a

statutory maximum sentence of life in prison. See Obershaw v.

Lanman, 453 F.3d 56, 60 (1st Cir. 2006).

Osorio argues – for the first time on appeal – that the

higher evidentiary standard also should apply where the sentencing

range includes life imprisonment because the defendant has more at

risk, and his rights to due process and proof beyond a reasonable

doubt thus carry more weight. Osorio cites no precedent in support

of this proposition, and our case law is to the contrary. We have

stated unequivocally that, under the advisory Guidelines, judicial

fact-finding on drug quantity is constitutionally permissible,

5
It appears that Osorio challenges the standard of review
only with respect to the drug calculation. Our discussion would,
in any event, apply to both findings.

-16-
within Apprendi's limits, see, e.g., United States v. Pierre, 484

F.3d 75, 88 (1st Cir. 2007), and we have applied that principle

even when defendants were subject to life imprisonment, see, e.g.,

United States v. González-Vélez, 466 F.3d 27, 40-41 (1st Cir.

2006). The district court's fact-finding was thus not error, plain

or otherwise.

Osorio's contention that the evidence does not support

the court's factual findings is also unpersuasive. His arguments

mischaracterize the evidence presented at the evidentiary hearing

and the court's calculations based on that evidence. In his brief,

Osorio describes Cruz's testimony about the drugs transported from

Queens to Massachusetts as follows:

In her first trip, which was for [Osorio], she
sold 50 kilos. In her second trip, which was
for co-defendant Ar[]ango, she sold 10 kilos.
Thus, according to the prosecutor's key
witness, Mr. Osorio was responsible for just
fifty kilos of cocaine, not sixty kilos.

However, Cruz testified that she brought cocaine from New York to

Massachusetts in five separate trips, all of which were arranged at

Osorio's request. Cruz also testified that Osorio told her that

the first fifty kilograms she brought back from Queens was supplied

by Arango. She met with the same people who had been involved in

the first Queens trip on the second trip, when she transported ten

additional kilograms. In two trips to the Bronx, she picked up

twenty-five and fifty kilograms. She further testified that on a

subsequent trip to New York, Osorio met her in Queens, transferred

-17-
fifty kilograms to her, and directed her to transport the drugs to

Massachusetts. Thus, Cruz's testimony indicated Osorio's

involvement in a total of 185 kilograms: the sixty kilograms picked

up in Queens in two trips involving the same people; the seventy-

five kilograms picked up in two trips to the Bronx; and the fifty

additional kilograms that she received directly from Osorio during

her third trip to Queens.6 Thus, the evidence amply supported the

court's finding that Osorio was responsible for the transport of at

least sixty kilograms of cocaine from New York to Massachusetts.

Osorio also contends that neither Cruz's nor Vallejo's

testimony linked him to the seven kilograms of cocaine Cruz bought

from Tavarez to sell to Camilo Aguirre. Again, this contention

mischaracterizes the evidence. When asked what connection the

defendants had to these seven kilograms of cocaine, Vallejo

responded that "they had sold it to . . . Alonso Tavarez, and then

Alonso Tavarez had handed it to Liliana Cruz." Cruz also testified

that the drugs she bought from Tavarez were supplied by the

defendants and that, because the defendants did not want the same

person to handle the money laundering and the drug sales, she and

Tavarez had not mentioned the details of this particular

transaction to defendants until after her arrest. Thus, the record

6
Cruz's testimony suggested that Arango may not have been
involved in these additional incidents, but it was clear that
Osorio was involved in all five deliveries.

-18-
supports the district court's finding as to the seven kilograms of

cocaine from this transaction.7

Osorio also challenges the court's finding regarding the

amount of money involved in the money-laundering conspiracy. By

his own accounting, Osorio contends that there was testimony as to

only $1.35 million – consisting of $500,000 and $600,000 that Cruz

transported from New York to Massachusetts at the defendants'

behest, plus $250,000 related to the sale of the seven kilograms of

cocaine to Camilo Aguirre - rather than the $1.8 million on which

his sentence was based. This calculation misstates the evidence

and the court's finding in two respects. First, money from the

sale of the seven kilograms of cocaine was not, in fact, included

in the money laundering total. Second, Osorio's calculation

ignores Cruz's testimony that she received approximately $700,000

from Tavarez and the Cataños in the first several months of 2000,

and that she distributed these funds at the defendants' direction.

Correctly totaling this quantity of money yields $1.8 million.8

7
In his pro se brief, Osorio contends that the court erred in
sentencing him on the basis of drug quantities that were not a
reasonably foreseeable consequence of his participation in the
conspiracy. However, Cruz's testimony establishes Osorio's direct
involvement in the transportation of more than sixty-seven
kilograms of cocaine.
8
As noted earlier, this figure in fact understates the
testimony because it omits a second $500,000 transport of funds
from New York. Osorio also argues that the court calculated the
$1.8 million by multiplying the number of kilograms of cocaine by
an inflated price of $29,000 per kilogram. This is yet another
misstatement of the facts. The court calculated the $1.8 million

-19-
 In addition to Cruz's testimony, the court also reviewed

corroborating documentary evidence in the form of package receipts,

wire transfer receipts, and Cruz's own accounting records. Also,

the government presented transcripts of recorded telephone

conversations in which Cruz and Arango went over the amounts of

money she had received from the Cataños and Tavarez. In sum,

overwhelming evidence supported the court's finding that $1.8

million was involved in the money-laundering conspiracy.

C. Fine

Osorio also claims that the court erred in imposing a $2

million fine on him without first considering his ability to pay.

Our review is for plain error as Osorio raises this argument for

the first time on appeal.9 We find no error. Indeed, Osorio's

contention that the court must first consider the defendant's

ability to pay before imposing a fine reflects a misunderstanding

of the law. Section 5E1.2(a) of the Guidelines provides that

"[t]he court shall impose a fine in all cases, except where the

separately from its drug quantity finding, as described above.
Moreover, sixty-seven kilograms multiplied by a price of $29,000
per kilogram does not yield $1.8 million.
9
Not only did Osorio fail to object at sentencing to the
imposition of the fine, but he also did not object to these
statements in the presentence report regarding his ability to pay:
"No verifying information regarding the defendant's financial
condition has been submitted to the Probation Office. Accordingly,
the defendant has not demonstrated an inability to pay a fine. It
should be noted that the defendant has retained counsel in this
case, indicating that he does have financial resources." He did
object to several other provisions in the PSR.

-20-
defendant establishes that he is unable to pay and is not likely to

become able to pay any fine." We consistently have interpreted

this language to place the burden on the defendant to provide

evidence of inability to pay the required fine. See United States

v. Uribe-Londono, 409 F.3d 1, 5 (1st Cir. 2005); United States v.

Cunan, 152 F.3d 29, 37 (1st Cir. 1998); United States v. Peppe, 80

F.3d 19, 22 (1st Cir. 1996).10

D. Failure to State the Reasons for Defendants' Sentences

Arango and Osorio both argue that their sentences should

be vacated and their cases remanded for resentencing because the

court did not state "in open court," at the time of sentencing, its

reasons for the sentences imposed, as required by 18 U.S.C. §

3553(c). That provision also requires the court to explain why it

imposed a sentence at a "particular point within the range" if the

range exceeds twenty-four months, as it did here. See 18 U.S.C.

§ 3553(c)(1).

A joint sentencing hearing was conducted in January 2006,

approximately eight months after the conclusion of the fourteen-day

evidentiary hearing on the defendants' involvement in the charged

10
Osorio also characterizes the PSR as stating that "defendant
reports no assets and no prospect of any increase in assets while
incarcerated," and he argues that "[n]othing in the record
indicates that Mr. Osorio was not indigent." However, this
misstates the PSR's contents. The PSR reports that Osorio claims
no assets or income, but, as previously noted, it also indicates
that Osorio has provided no information to verify his financial
status and that he has retained counsel.

-21-
crimes. To explain our conclusion that no § 3553(c) error occurred

with respect to either defendant, we begin by describing the

sentencing proceeding in some detail.

1. The Sentencing Colloquy

Near the outset of the sentencing hearing, the district

court explained that it would stay with the miscalculated $1.8

million figure for the money laundering count, see supra note 1,

and it then engaged in a lengthy exchange with counsel about the

defendants' request for a three-level, rather than two-level,

adjustment for acceptance of responsibility. The court considered

carefully whether Osorio's Alford plea should make him ineligible

for the acceptance of responsibility benefits, but it ultimately

concluded that both defendants were entitled to the two-level

credit. The court next explored Osorio's criminal history, which

consisted of a drunk driving incident thirteen years earlier and

his failure to complete payments on the related fine, and found

that Osorio properly was placed in CHC II based on that episode.

The court then proceeded to impose sentence on Arango.

After confirming with both parties that it had properly calculated

the Guidelines range to be 262 to 327 months, the court asked the

government for its recommendation. The government proposed a term

of 262 months and a $2 million fine. Defense counsel urged the

court to accept that recommendation – the low end of the range –

offering various reasons why his client should be treated

-22-
leniently.11 Arango also addressed the court personally, seeking

to refute his leadership role in the conspiracy.12 The government

then asked for an opportunity at some point "to just address the

question of a guideline sentence versus a non-guideline sentence,

the factors of 3553(a)," and the court invited the prosecutor to do

so immediately.

The prosecutor spoke at length about the statutory

factors, pointing out that the crime of drug trafficking is

dangerous to "users, their families, and American society as a

whole," and that the court had heard evidence that "Colombian drug

traffickers are particularly dangerous." He detailed the

leadership role played by the defendants and the extensive nature

of the conspiracies. In examining the defendants' history and

characteristics, the prosecutor acknowledged that "[e]ach has a

family and friends who love them and will miss them," but urged the

court to take into account the evidence that they earned

substantial income from dealing drugs in the United States,

returning to Colombia "to live fairly comfortably," but nonetheless

11
Among other points, counsel minimized Arango's control over
other participants in the conspiracy, noted that he had been
kidnapped for a time in Colombia, and continued to have threats
made against him.
12
He told the court: "We never were in charge of giving any
orders to this woman or to Mr. Tavarez. The only thing that we did
was earn a commission, a certain percentage. And we're being given
four points as leaders, and we never – I was never this woman's
boss."

-23-
"continued to supervise and direct other people in the distribution

of drugs here in the United States."

The prosecutor also emphasized the need to "send a

message to other people who might think of doing the same things

they are." He continued:

It's necessary to let people know that if
they're going to stay in Colombia and direct
other people in distributing cocaine or other
drugs in the United States, the government's
going to find them, the government's going to
extradite them, the government is going to get
them back here, the government is going to
prove its case; and they're going to be facing
very long sentences, sentencing conceivably so
long that it might make somebody think twice
about whether or not it's worth ruining all
that money given the length of the sentences
they're going to be serving.
That's why the government feels that
the conservative sentence under the guidelines
at the low end is at least what's called for
as to these defendants, your Honor.

Thereafter, the court, without explanation, imposed the 262-month

term and a $2 million fine on Arango.

The court then addressed Osorio's circumstances,

rejecting the view that CHC II overstated his criminal history and

finding that his sentencing range therefore was 292 to 365 months.

The government again recommended the low end of the range – 292

months. Osorio's counsel, stating that he had intended to seek a

sentence of sixteen years, ultimately asked the court to "just

impose a sentence substantially less than the 292 months." He

urged the court to take into consideration the § 3553(a) factors,

-24-
noting that he had "carefully consider[ed] the nature and

circumstances of the offense, the history and characteristics of

the defendant, the need for the sentence imposed, and why the

guidelines are much more than should be imposed on this case." He

pointed to Osorio's separation from his family, including two young

children, continuing threats from another member of the conspiracy,

and his lack of prior criminal involvement. Osorio also spoke at

length, asking forgiveness and addressing his family circumstances,

his fear of an attack on his family by Vallejo, his difficult time

in jail, and his view that Cruz had not told the truth about his

involvement in the conspiracy.

Osorio's counsel concluded the colloquy by asking the

court to factor in his discussions with the government about

Osorio's willingness to cooperate and the possibility of a so-

called "safety valve" reduction,13 for which he later was found

ineligible. The court then announced its sentencing decision:

I am not going to impose a guideline sentence
. . . . [T]he low end of the guideline
sentence is 292 months, which is I guess 30
months above the sentence that I've imposed on
Mr. Arango, and that 30 months is a
consequence of this criminal history category
two, which is the drunk driving offense. And
while I don't minimize that offense, the
offense involved here of these two defendants
as far as I can tell are not substantially
different in commission of this offense. And

13
The "safety valve" provision of the Sentencing Reform Act,
18 U.S.C. § 3553(f)(1)-(5), allows courts to impose sentences below
the statutory minimum in certain drug cases.

-25-
 it seems to me that they should not have a
different outcome on the basis of that – that
drunk driving offense in Mr. Osorio's case.
So I'm going to – and also because I think
that the 262 months that I've imposed on Mr.
Arango, and which I propose to impose on Mr.
Osorio, itself is sufficient to meet the
sentencing factors outlined in the statute,
and for that reason I'm going to impose that
sentence as the term of imprisonment on Mr.
Osorio.

2. Compliance with the Explanation Requirement

Our description of this sentencing history makes it

apparent that the district court gave no contemporaneous

explanation at all for Arango's sentence. For Osorio, the court

explained only why it did not impose a longer sentence, not why it

had rejected a shorter one. In most circumstances, this approach

would be inadequate to satisfy the court's obligation under §

3553(c) to "state in open court the reasons for its imposition of

the particular sentence." Although we do not require that the

sentencing court's explanation "be precise to the point of

pedantry, . . . the court ordinarily should identify the main

factors on which it relies." United States v. Turbides-Leonardo,

468 F.3d 34, 40-41 (1st Cir. 2006). Here, the court's only

explanation was for Osorio, and it said nothing about why such a

long sentence was appropriate, other than to say it was long enough

"to meet the sentencing factors outlined in the statute."

Nonetheless, we have recognized that "[e]ven silence is

not necessarily fatal; 'a court's reasoning can often be inferred

-26-
by comparing what was argued by the parties or contained in the

presentence report with what the judge did.'" Id. (quoting United

States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)); see

also García-Carrasquillo, 483 F.3d 124, 134 n.15 (1st Cir. 2007)

("[W]e reject any defense argument that we cannot uphold a

reasonable sentence if the district court does not make an explicit

statement of its reasons on the record. Our precedent is

exceedingly clear that we can look to the record to clarify the

judge's reasoning."). Multiple factors persuade us that the

court's deficient explanation did not constitute error.

First, neither defendant has challenged on appeal the

reasonableness of his sentence. Even with the knowledge obtained

from the statement of reasons contained in their written judgments

of conviction,14 they point to no factors the court allegedly over-

emphasized or neglected, and do not argue that their sentences are

disproportionate to their crimes. Indeed, Arango is foreclosed

from making any such claims, having asked the court to impose the

very sentence that he received. Given that the explanation

requirement is primarily intended to ensure meaningful appellate

review of the reasonableness of a sentence, see, e.g., United

14
Because we typically view the statement of reasons as a non-
public document, we do not discuss their contents here. See 1st
Cir. R. 28(c) (noting that "sealed or non-public items – including
a presentence investigation report or statement of reasons in a
judgment of criminal conviction – . . . should be filed in a
separate, sealed addendum").

-27-
States v. Mangual-Garcia, Nos. 05-2275, 05-2412, slip op. at 30

(1st Cir. Sept. 18, 2007), the need for an explicit statement is

measurably reduced where – as in Arango's case – the court imposes

the term the defendant has requested. With respect to Osorio, the

court similarly may have believed that defense counsel's request

for a below-Guidelines sentence was satisfied by the thirty-month

downward variance and, for that reason, explained only why it

rejected the higher term requested by the government. The absence

of a reasonableness challenge by Osorio supports the logic of such

an assumption.

However, enabling the appellate court to assess the

parties' arguments about reasonableness is only one purpose of the

explanation requirement. An explanation in open court also

furthers the weighty goals of transparency and credibility for the

justice system. As the Third Circuit recently commented:

The rationale by which a district court
reaches a final sentence is important. It
offers the defendant, the government, the
victim, and the public a window into the
decision-making process and an explanation of
the purposes the sentence is intended to
serve. It promotes respect for the
adjudicative process, by demonstrating the
serious reflection and deliberation that
underlies each criminal sentence, and allows
for effective appellate oversight.

United States v. Grier, 475 F.3d 556, 572 (3d Cir. 2006) (en banc);

see also United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004)

(noting that purposes of § 3553(c) include "to enable the public to

-28-
learn why defendant received a particular sentence"). In every

case, therefore, a purpose is served when the court publicly

articulates its rationale for the sentence imposed, and our

willingness to excuse summary explanations must therefore have

limits. See United States v. Gilman, 478 F.3d 440, 446 (1st Cir.

2007) ("While we have on occasion gone to significant lengths in

inferring the reasoning behind, and thus in affirming, some less-

than-explicit explanations by district courts, there are limits.")

(citations omitted); cf. Jiménez-Beltre, 440 F.3d at 521 ("[T]he

district court's obligation to explain is not excused by our

discretion to discern its reasoning from the record on appeal.")

(Torruella, J., concurring). Such restraint is of no help to

appellants, however, because we believe the court's reasoning was

sufficiently transparent in the circumstances of this case that our

limits were not transgressed.

As our detailed description of the hearing reveals, the

district court's sentencing decisions came after considerable

deliberation. Before pronouncing sentence, the court addressed at

length two significant issues that were specifically contested –

the propriety of a three-level adjustment for acceptance of

responsibility (including whether Osorio should be given any

adjustment in light of his Alford plea), and Osorio's criminal

history. The court's rulings on those issues immediately followed

the colloquies in which the government and defense counsel set out

-29-
their respective positions. Although the court did not explicitly

say so, it clearly was persuaded by the government's argument that

the timing of the defendants' pleas foreclosed the third point for

acceptance of responsibility. The court did explain both why it

granted Osorio the two point-reduction and why it refused to alter

his criminal history category.15

In addition, the court elaborated during the hearing on

its earlier decision to use the miscalculated $1.8 million as the

money laundering figure and confirmed the accuracy of its

Guidelines calculations with all parties. The court heard

extensive argument regarding the § 3553(a) factors from the

government, and both Osorio and his attorney responded.

Importantly, the court possessed detailed knowledge of the crimes

from the fourteen-day evidentiary hearing that preceded the

sentencing hearing. Indeed, the one issue personally challenged by

both defendants at the sentencing hearing was their asserted

15
The court stated that, despite Osorio's Alford plea on the
drug distribution charge (Count Three), he would grant the two-
point reduction "because he entered a plea to the conspiracy count,
and that count really drives the sentence." On the criminal
history, the court explained:

Under the circumstances of this history, I cannot
say that operating under and the outstanding warrant
really overstate the criminal history because the conduct
of this defendant includes at least two illegal entries
into the United States; and, of course, there is the
record that has brought him here today. So I will not
grant any departure on the ground that criminal history
category two overstates the seriousness of Mr. Osorio's
criminal history or the likelihood of recidivism.

-30-
leadership roles in the offense, but on that issue the court had

explicitly made a finding at the end of the evidentiary hearing,

ruling that "they were leaders in the activity."16

The full context makes it apparent that, in sentencing

both defendants to the lowest term of imprisonment within the

Guidelines range applicable to Arango, the court was acknowledging

the defendants' arguments for leniency but rejecting their view

that the § 3553(a) factors warranted a sentence outside the

standard range for the crimes they committed. We previously have

recognized that within-Guidelines sentences "require a lesser

degree of explanation than those that fall outside the guideline

sentencing range," Turbides-Leonardo, 468 F.3d at 41, and we think

that observation is all the more true when the sentence is at the

very bottom of the Guidelines range.17 See United States v. Navedo-

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

reasons for a choice, the less that needs to be explained.").

16
The court stated:

The taped conversations make clear, and the testimony of
Ms. Cruz as well, that her activities as a drug
trafficker were directed by these defendants, and I find
that they were leaders in the activity. Not necessarily
the leader, because the evidence is that they were
responsible to someone higher than they . . . .
17
The requirement that a court explain why it chose a
particular point within a Guidelines range exceeding twenty-four
months, see 18 U.S.C. § 3553(c)(1), also is less pertinent in such
cases.

-31-
There was, in short, no ambiguity here; the court's reasoning can

be readily inferred from the record.

In sum, against the backdrop of a lengthy evidentiary

hearing, acquiescence to the government's recommendation from one

defendant, and a downward departure for the other defendant – and

no challenge from either defendant to the reasonableness of the

sentences imposed – we conclude that the district court

sufficiently revealed in open court its reasons for imposing the

particular sentences.18

E. Pro Se Arguments

Finally, in a pro se brief, Osorio presents two

additional arguments: that the government breached a plea agreement

in which it promised him a twelve-year, seven-month sentence in

exchange for pleading guilty to the drug and money laundering

charges; and that it erred in sentencing him on the basis that he

played a leadership role in the drug and money laundering

conspiracies. Both arguments fail under any standard of review.

18
Osorio also contends that the court erred because it not
only failed to explain his sentence, but also failed to even
consider the factors set out in 18 U.S.C. § 3553(a). This
contention is without merit. In imposing sentence on Osorio, the
court stated that it found the 262-month sentence "sufficient to
meet the sentencing factors outlined in the statute." Even if such
a comment ordinarily would not satisfy § 3553(c)'s explanation
requirement, it is sufficient to show that the court did take the
relevant factors into account. This is particularly evident here
given that, just prior to imposing sentence, the court heard
extensive argument from the government about the § 3553(a) factors.

-32-
 The evidence directly contradict's Osorio's claim that

the government breached an unwritten plea agreement with him. At

the sentencing hearing, Osorio answered in the negative when asked

if "anyone made any promises to you . . . to get you to enter your

change of plea." When the government outlined the evidence it

would be presenting at the evidentiary hearing and the punishment

it would seek as a consequence, Osorio made no objection indicating

that such a course of action would breach a plea agreement.

Osorio's PSR explicitly stated that "[t]here is no plea agreement

in this case," and yet he lodged no objections to the PSR and no

plea agreement was cited in objection to the government's proposed

punishment at the sentencing hearing. In short, Osorio provides no

documentary evidence that a plea agreement existed, and his

behavior at the hearings belies the existence of such an agreement.

We therefore find no error on this ground.

Osorio also renews the argument – made at the sentencing

hearing – that the court erred in sentencing him on the basis of

his leadership role in the conspiracies because he took orders from

individuals higher in the criminal organization. Even if we credit

Osorio's assertion that he took orders from others, there is ample

evidence in the record that he played a leadership role in relation

to individuals like Cruz, Vallejo, Tavarez and the Cataños. That

he, in turn, reported to others is of no moment in determining

whether he was a leader for purposes of U.S.S.G. § 3B1.1(a). See

-33-
United States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004) ("The

mere fact that [defendant] was subordinate to [a co-conspirator]

does not establish, without more, that [defendant] was not an

organizer or leader of the conspiracy.").

Accordingly, for the reasons explained above, we reject

the appellants' assignments of error and affirm the sentences

imposed by the district court.

So ordered.

-34-