United States v. Olivero

United States Court of Appeals
For the First Circuit

No. 07-1587

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM OLIVERO,

Defendant, Appellant.

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

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Daniel Klubock with whom Feinberg & Kamholtz was on brief for
appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.

January 9, 2009
 LYNCH, Chief Judge. William Olivero, convicted by a jury

of an interstate cocaine trafficking conspiracy, appeals from the

sentence imposed after this court vacated his original sentence and

remanded for re-sentencing on the government's appeal. United

States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005). In the

original sentencing, Olivero received 48 months' imprisonment and

five years of supervised release. On remand, Olivero's case was

reassigned to another judge and this judge re-sentenced him to 235

months' imprisonment and five years of supervised release.

Olivero challenges his new sentence on three grounds of

claimed error: (1) that the court could not rely on the presentence

report ("PSR") alone to find him responsible for a December 8, 2001

shipment of 260 kilograms of cocaine when the jury had made no

specific drug quantity finding; (2) that the court erred in denying

him minor role and acceptance of responsibility downward

adjustments; and (3) that the court failed to recognize its

discretionary power to depart from the Guidelines sentence.

Olivero's appeal primarily raises issues about what re-sentencing

requires of a sentencing judge who was not the original trial

judge. We reject Olivero's argument that the re-sentencing court

could not rely on inferences from the uncontroverted facts in the

PSR and affirm.

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 I.

The saga of this major drug conspiracy is told in our

prior opinion, Yeje-Cabrera, 430 F.3d at 5-7. We mention briefly

the reasons for the re-sentencing to put in context the arguments

concerning the new sentence. The original sentence of only 48

months of imprisonment for a defendant in a large drug conspiracy

was lenient and was based on a series of errors. The court

erroneously limited the drug amount to less than 500 grams of

cocaine when, as we said, it "could (and should) have found Olivero

responsible for the amount of cocaine established by a

preponderance of the evidence against him." Id. at 23. The

original sentencing court never did that calculation and that alone

meant the sentence had to be vacated and remanded. But more than

that, the district court sua sponte gave Olivero a low sentence in

order to punish the government for what the court thought was

impermissible fact bargaining and withholding of information from

the court. We found no basis in fact or law for any of these

rationales. Id. at 23-30. To be explicit, Olivero's original

sentence simply cannot be used as a benchmark against which to

assess his re-sentencing to a longer term of imprisonment.

A. Olivero's Arrest and Conviction

We repeat here a few of the facts most pertinent to the

re-sentencing. Olivero's cousin Rafael Yeje-Cabrera headed a

criminal cocaine distribution ring transporting massive quantities

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of cocaine from Arizona to New York, Rhode Island, and

Massachusetts. The multi-jurisdictional DEA investigation of the

ring was named "Operation Vise-Grip." See id. at 5-7. Olivero,

who used the aliases "Alejandro" and "K" and lived in New York

City, assisted with shipments, distributed the cocaine, and

collected the money. Id. at 5. This was a family based drug

business: Yeje-Cabrera's mother and his uncles were active

participants, along with Olivero, who was Yeje-Cabrera's cousin.

The seizure of two large tractor-trailers of drugs bookended the

case. One tractor-trailer was seized in New York in April of 2001,

and the police found inside over 300 kilograms of cocaine, over

$400,000 in cash, and a cell phone with numbers for both Yeje-

Cabrera and Olivero. Id.

Law enforcement agents put wiretaps on Yeje-Cabrera's

telephone lines after they seized the 300-kilogram shipment of

cocaine. Id. at 5-6. Agents recorded conversations between Yeje-

Cabrera and Olivero about the business on October 28, 2001,

November 2, 2001, November 5, 2001, and December 2, 2001. Details

of the transcripts are described later.

DEA agents learned that a large shipment was scheduled to

arrive near New Bedford, Massachusetts. On October 28, 2001, Yeje-

Cabrera prepared for a shipment of cocaine for "Tony" by enlisting

Olivero to find a place to store a truck. On December 8, 2001,

agents seized a tractor-trailer loaded with 260 kilograms of

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cocaine after its driver backed into a state trooper's cruiser.

Id. at 6. At the time, this was the largest drug seizure in

Massachusetts history. Undaunted by the seizure, the conspiracy

continued, and Yeje-Cabrera and Olivero had further conversations

on December 10 arranging a drug deal. Agents later arrested

Olivero, Yeje-Cabrera, and several others.

Olivero was tried with Yeje-Cabrera and two other co-

conspirators. He earlier had agreed to plead guilty but then

withdrew his plea. The trial court gave the jury a special verdict

form, which asked the jury to find the quantity of drugs for which

each defendant found guilty was responsible. See id. at 12 & n.4.

The jury found all four defendants guilty. It found Yeje-Cabrera

responsible for 260 kilograms of cocaine and another defendant

responsible for five kilograms. The jury left the quantity field

on Olivero's special verdict form blank. See id. at 12. Yeje-

Cabrera was sentenced to life imprisonment and fined sixteen

million dollars.

B. Olivero's Re-sentencing

On remand, Olivero's re-sentencing was assigned to a

different district judge, in accordance with the court's local

rules. The court reviewed the PSR, which included transcripts of

conversations intercepted on the wiretaps (described below), our

opinion in Yeje-Cabrera, and the parties' sentencing memoranda. It

conducted a sentencing hearing over two days, granting a

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continuance to a second day at the request of defense counsel.

Olivero's basic theme was that he was just an "errand boy" doing

favors for his cousin for little money and had no idea of the depth

and breadth of his cousin's drug trafficking. The PSR had used the

term "errand boy." The prosecution pointed out that two witnesses

said Olivero ran the New York operation for Yeje-Cabrera. The

court concluded that Olivero played an important part in

facilitating the 260-kilogram shipment and that he was responsible

for at least that amount of cocaine. The court concluded that

Olivero did not qualify for a downward adjustment as a minor or

minimal participant based on his role in the 260-kilogram shipment.

It also declined to make an adjustment based on acceptance of

responsibility because Olivero chose to go to trial.

The court calculated Olivero's base offense level at 38,

based on his responsibility for 150 or more kilograms of cocaine,

and assigned him a criminal history category of I. The resulting

Guidelines range was 235 to 240 months, the statutory maximum. The

prosecution suggested 235 months as an appropriate sentence. The

court declined to depart from the Guidelines and sentenced Olivero

to 235 months, the lowest end of the range. Olivero appealed.

II.

We review Olivero's challenges to the court's drug

quantity determination and its denial of role in the offense and

acceptance of responsibility downward adjustments, all factual

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determinations, for clear error. United States v. Morales-Madera,

352 F.3d 1, 14 (1st Cir. 2003); United States v. Cash, 266 F.3d 42,

45 (1st Cir. 2001); United States v. Santos Batista, 239 F.3d 16,

21 (1st Cir. 2001).

A. Drug Quantity Determination

Olivero's primary argument on appeal raises the question

of whether a re-sentencing judge must go back and reread the

transcripts of relevant testimony as well as the PSR in order to

make key Guidelines findings, such as the drug quantity amount. He

argues that since the re-sentencing court admittedly did not do

that, it could not rely on the PSR and this court's opinion alone.

The argument continues that even if the information in the PSR

alone could be relied on, the text of the wiretaps set forth in the

PSR did not provide a sufficient basis to make the finding of a

relevant drug quantity of 260 kilograms of cocaine. This was not

the focus of the argument before the district court, however.

Nonetheless, we address the argument on its merits.

As to the first argument, there are no hard and fast

doctrines about what a sentencing or re-sentencing judge who was

not the trial judge must consult other than the normal documents

required by the Federal Rules of Criminal Procedure. See Fed. R.

Crim. P. 32(c)(1)(A) (noting that a PSR must be prepared for each

defendant but that a sentencing court may rely on the record

alone); id. § 32(d) (specifying contents of PSR); id.

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§ 32(i)(1)(B), (i)(2) (a court must give parties a summary of

information excluded from PSR on which court will rely and may take

evidence); id. § 32(i)(1)(C) (a court must hear parties' comments

on the PSR and other matters relating to sentencing); id. §

32(i)(4) (a court must let defendants and victims speak); see also

U.S.S.G. § 6A1.3(a) (the information on which a sentencing court

resolves a factual dispute must have sufficient indicia of

reliability to support its probable accuracy). The ultimate test

is whether the defendant can show clear error in the factual

findings made by the court from whatever sources were consulted.

In some situations, at least in theory, the argument that the

sources were insufficient could be made out if there was an

inadequate basis for the findings.

The district court here reviewed the evidence contained

in the PSR, the facts discussed in Yeje-Cabrera, and the parties'

sentencing memoranda. It also heard argument from both parties.

Here, the trial lasted twenty days. Had the re-sentencing judge

found the information in the PSR, the Yeje-Cabrera opinion, and the

parties' sentencing memoranda inadequate, the judge may well have

chosen to go back to review the testimony.

The information in the PSR and our prior opinion did,

however, provide a sufficient basis for the finding that Olivero

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was responsible for at least 260 kilograms of cocaine.1 In

particular, the PSR contained wiretap transcripts of two

conversations. There is no dispute about the fact or content of

these conversations. On December 2, 2001, six days before the 260-

kilogram shipment of cocaine was seized in Massachusetts, Yeje-

Cabrera and Olivero (who also used the names "K" or "Alejandro")

spoke:

Yeje-Cabrera: Yo, K.
Olivero: Yeah!
Yeje-Cabrera: . . . Listen man, you have to
get in contact with Nino [one of Yeje-
Cabrera's New York customers] somehow. That
"stuff" is around and I can't get in contact
with him. . . . Yo, you've got to go and get
in contact with Nino ASAP. Right away, K.
Olivero: All right.
. . .
Yeje-Cabrera: Yo, K, go look for him because
there are 300 pesos coming in. Man, they need
to give me . . . , I need my money. I can't
even pay my insurance.
Olivero: All right.

In a December 5 conversation, Yeje-Cabrera and his customer Nino

discussed the price of the cocaine:

Yeje-Cabrera: I don't care if I don't make a
lot, I just want to get rid of that. . . .
What number is it over there?
Nino: No, you have to talk to your uncle to
find out because [it] is lower.

1
There was evidence that Olivero played an important role
in other parts of the conspiracy. For example, the PSR contained
transcripts of conversations in which Olivero agreed to "babysit"
a drug supplier. Olivero's role in the 260-kilogram shipment alone
was sufficient to meet the statutory and Guidelines thresholds for
his sentence. See 21 U.S.C. § 841(b); U.S.S.G. § 2D1.1(a)(3) &
(c)(1).

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 Yeje-Cabrera: No, my uncle told me. It was
K's, Alejandro's.
Nino: No, tell him to find out over here in
Manhattan. Have him check it out.

The court found these conversations established that Yeje-Cabrera

called Olivero and specifically advised him of the size of the load

(260 kilograms of cocaine) and then asked him to facilitate the

connection with Nino. It said the tapes showed "there was some

significant reliance placed on [Olivero] in facilitating

transactions."

Olivero argues on appeal that, because the district court

"did not hear or see witnesses," it could not evaluate the

controverted evidence in the PSR, and thus had to rely on the PSR's

interpretation of the evidence. But there is no disputed evidence,

only competing interpretations of what the conversations meant.

Rule 32(i)(3)(A) is explicit that the court may accept any

undisputed portion of the PSR as a finding of fact.2 If the facts

plausibly support competing inferences, as here, a sentencing court

cannot clearly err in choosing one. United States v. Prochner, 417

F.3d 54, 66 n.9 (1st Cir. 2005).

2
Olivero cites the language from an Eighth Circuit opinion
that "[a] PSR is not evidence." United States v. Jenner, 473 F.3d
894, 897 (8th Cir. 2007). Jenner is easily distinguishable.
There, the facts were disputed and the district court made no
factual findings as required by Rule 32(i) and relied only on the
prosecution's allegations. Cf. United States v. Grant, 114 F.3d
323, 327-28 (1st Cir. 1997).

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 Our law is clear on what reliance a district court may

place on a PSR. A good general summation is found in United States

v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003):

"Generally, a PSR bears sufficient indicia of
reliability to permit the district court to
rely on it at sentencing." United States v.
Taylor, 277 F.3d 721, 724 (5th Cir. 2001).
The defendant is free to challenge any
assertions in the PSR with countervailing
evidence or proffers, in which case the
district court is obliged to resolve any
genuine and material dispute on the merits.
But if the defendant's objections to the PSR
are merely rhetorical and unsupported by
countervailing proof, the district court is
entitled to rely on the facts in the PSR.

In a restitution case, we have upheld reliance on a PSR's listing

of victims and loss amounts "[i]n the absence of rebuttal evidence

beyond defendant's self-serving words." Prochner, 417 F.3d at 66.

The court did not clearly err in concluding that the

transcripts showed Olivero played a significant role in the entire

transaction.3

B. Role in the Offense Determination

Olivero next argues the court erred in refusing to enter

an adjustment for playing a minor role in the offense. The court

found that it was sufficient to reject the adjustment that Olivero

3
Olivero also argues that the jury's answer to the special
verdict question mandates that he be found responsible "only for
the minimum amount of cocaine." This argument is inconsistent with
our holding in Yeje-Cabrera that the verdict left the drug quantity
determination to the court. Yeje-Cabrera, 430 F.3d at 23.

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was directly and actively involved in at least the 260-kilogram

transaction.

The government argues that review should be for plain

error because Olivero sought a four-level minimal, rather than a

two-level minor, role adjustment before the district court but he

argues only for a minor role adjustment on appeal. Compare

U.S.S.G. § 3B1.2(a) (allowing a four-level reduction for a minimal

role), with id. § 3B1.2(b) (two-level reduction for a minor role).

The two subsections involve separate inquiries. See id. § 3B1.2

cmt. nn. 4 & 5. To avoid confusion, it would be better if the

terms were not used interchangeably, as they were by defendant's

counsel before the re-sentencing court. But we think the

prosecution pushes its waiver argument too far. Judges faced with

a request for a four-level reduction for a minimal role could

reasonably consider, in the course of that analysis, whether a

lesser two-level reduction for a minor role had been made out.

Since here the court stated it was considering the issue of "minor

or minimal participation," we treat Olivero's argument as properly

before us.

Olivero argues that the wiretap transcripts show only

that he was a "gofer," who did "errands" and "very low level tasks"

and received very little income. He also cites cases upholding

grants of minor role adjustments to defendants who, in his view,

played a greater role in their offenses. See, e.g., United States

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v. Whiting, 522 F.3d 845 (8th Cir. 2008); United States v. Vicari,

No. 06-1302, 2007 WL 2031299 (6th Cir. July 11, 2007).

The district court did not clearly err. The record shows

Olivero played an active role, which included negotiating with

customers and addressing logistical issues. A role adjustment

determination is "heavily driven by the facts," and "absent a

mistake of law, battles over a defendant's status . . . will almost

always be won or lost in the district court." United States v.

Sanchez, 354 F.3d 70, 74 (1st Cir. 2004) (omission in original)

(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.

1995)).

Olivero also claims the court erred in basing its role

determination on his knowledge of the 260-kilogram shipment because

knowledge of the scope of an offense is relevant only to a minimal

role adjustment. However, the court based its conclusion on

Olivero's role in facilitating the 260-kilogram shipment rather

than on his mere knowledge of it.

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C. Acceptance of Responsibility

Olivero also challenges the court's refusal to enter a

downward adjustment for acceptance of responsibility.4 See

U.S.S.G. § 3E1.1(a).

Olivero says he was entitled to an adjustment because he

initially agreed to a plea bargain but then withdrew his agreement.

See Yeje-Cabrera, 430 F.3d at 21.

The re-sentencing court stated:

The application note [to section
3E1.1(a)] does of course correctly, we
understand, say that it's not an automatic
bright line, per se, rule that if you go to
trial you can never get it; but it does then
illustrate one person might go to trial and
still get it. And they're inapplicable
examples. The examples are . . . cases that
in the language of the application note do not
relate to factual guilt.

The court concluded that Olivero's trial was about factual guilt

and that he had not "clearly" accepted responsibility under those

circumstances.

Olivero argues the court adopted a per se rule that a

defendant who goes to trial cannot qualify for an acceptance of

4
The government argues that the law of the case doctrine
bars Olivero's challenge because he failed to appeal the court's
refusal to grant such an adjustment at his first sentencing. See
United States v. Ticchiarelli, 171 F.3d 24, 28 (1st Cir. 1999).
The government failed to make this argument to the district court,
however, and it is waived. See United States v. Paradis, 351 F.3d
21, 28 & n.6 (1st Cir. 2003); see also United States v. Bell, 988
F.2d 247, 251 (1st Cir. 1993) (noting the doctrine is not a
jurisdictional limitation). The re-sentencing court considered
Olivero's argument and rejected it.

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responsibility adjustment unless he or she falls under one of the

examples in the application note. He argues this interpretation

impermissibly burdens a defendant's constitutional right to trial.

The court did not adopt a per se rule and there was no

error. A defendant’s choice to put the government to its proof at

trial creates a presumption that a section 3E1.1(a) adjustment is

unavailable, which can be defeated only in rare situations. See

United States v. Deppe, 509 F.3d 54, 60 (1st Cir. 2007). Olivero’s

trial was not similar to one of the rare exceptions, of which the

application note provides examples; he instead put the government

to its burden to establish factual guilt.

III.

Finally, Olivero argues that the court erred in failing

to recognize its discretionary power to depart from the Guidelines

because, as its language at the sentencing hearing shows, it

treated the Guidelines as mandatory. He argues that his re-

sentencing should be remanded because the court failed to

appreciate the impact of Gall v. United States, 128 S. Ct. 586

(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007). We

review the court’s sentence under a deferential abuse of discretion

standard. Gall, 128 S. Ct. at 597; United States v. Martin, 520

F.3d 87, 92 (1st Cir. 2008).

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 The court clearly recognized both that the Guidelines are

advisory and that the 18 U.S.C. § 3553 factors allowed it to enter

a non-Guidelines sentence:

Though the Guidelines are advisory and
we're called upon to consider what a non-
Guidelines sentence might be in justice, given
the other factors [in § 3553], I don't think
we are freed to simply act on our individual
sense of justice. In
sentencing . . . [judges] do things we would
rather not do. We apply rules of law we would
rather not apply if we were free to decide
otherwise. . . .
. . . .
. . . I have to look for a reason, if
one exists, to say why I think the Guidelines
inappropriately take account of the various
factors or that the other factors combine to
reject the advice given by the Guidelines.

Olivero argues that the court's saying it could not act

on an "individual sense of justice" and that it had to apply rules

it "would rather not apply if [it] were free to decide otherwise"

shows that it failed to appreciate its discretionary power to

impose an individualized sentence. But as the record shows, the

court correctly "treat[ed] the Guidelines as the 'starting point

and the initial benchmark.'" Kimbrough, 128 S. Ct. at 574 (quoting

Gall, 128 S. Ct. at 596). It then considered whether the

circumstances warranted a non-Guidelines sentence. The court heard

argument from the government and Olivero on this point. In fact,

it granted Olivero a second sentencing hearing after defendant's

counsel requested more time. The court considered Olivero's age

(he was 24 years old when he was arrested) and the fact that he was

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not a U.S. citizen. It also heard from Olivero at allocution. The

court also knew of the lengthy sentences imposed on some of

Olivero's co-conspirators. It concluded there was no reason to

depart from the Guidelines. The court did not treat the Guidelines

as mandatory or otherwise err; it followed the procedure for

sentencing that this court has set out. See Martin, 520 F.3d at

95.

IV.

We affirm Olivero's sentence.

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