United States Court of Appeals
For the First Circuit
No. 08-1377
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR VARGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Edward J. O'Brien and O'Donnell, Trossello & O'Brien, LLP on
brief for appellant.
Michael J. Sullivan, United States Attorney, and Sandra S.
Bower, Assistant United States Attorney, on brief for appellee.
March 17, 2009
SELYA, Circuit Judge. Defendant-appellant Victor Vargas
pleaded guilty to a charge of conspiring to possess with intent to
distribute five or more kilograms of cocaine. See 21 U.S.C. §§
841(a)(1), 846. The district court sentenced him to an 87-month
term of immurement.
In this venue, he advances three claims of sentencing
error. These claims relate to (i) the court's refusal to grant a
downward role-in-the-offense adjustment; (ii) its ostensible
failure sufficiently to consider factors made relevant to the
imposition of sentence by 18 U.S.C. § 3553(a); and (iii) a
perceived sentencing disparity. Concluding, as we do, that all of
these claims lack merit, we affirm.
I. BACKGROUND
Where, as here, a sentencing appeal follows a guilty
plea, we glean the relevant facts from the change-of-plea colloquy,
the unchallenged portions of the presentence investigation report
(PSI Report), and the record of the disposition hearing. United
States v. Mateo-Espejo, 426 F.3d 508, 509 (1st Cir. 2005); United
States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
As a result of a Boston-based wiretap operation involving
seventeen different cellular telephones and ten different
individuals, the government learned of a planned shipment of
cocaine. Acting on this information, law enforcement agents
surveilled both a truck thought to be transporting the contraband
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and a restaurant thought to be the delivery site. When federal
agents stopped the truck on September 13, 2006, the appellant — who
owned the truck and was driving it — consented to a search. The
search revealed a hidden compartment, in which approximately thirty
kilograms of cocaine were secreted.
The appellant admitted that he had been paid $3,500 by
someone he could not identify to transport an unknown cargo from
Texas to New Jersey. He later backtracked, conceding that he knew
the person who hired him and that he had participated in telephone
conversations relating to future deliveries. He nonetheless
continued to maintain that he did not learn the nature of his cargo
until after the trip had begun.
Indictment and arraignment followed apace. The appellant
maintained his innocence. Then, on October 4, 2007, he entered a
guilty plea.
In due season, a probation officer prepared the PSI
Report. In it, the probation officer recommended, among other
things, a three-level downward adjustment for acceptance of
responsibility, see USSG §3E1.1, and a two-level reduction
attributable to the appellant's minor role in the offense of
conviction, see id. §3B1.2(b). The latter recommendation was
premised on the appellant's lack of knowledge of the quantity of
drugs being hauled and his limited involvement in the overall
conspiracy. The probation officer also noted that the safety valve
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provision would apply if the appellant, a first offender, satisfied
the requisite five-part test. See 18 U.S.C. § 3553(f); USSG
§5C1.2. In this regard, the probation officer observed that,
absent the safety valve, the appellant would be subject to a 120-
month mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A);
USSG §5G1.1(b).
The government objected to both the proposed minor role
adjustment and the suggested deployment of the safety valve. These
objections were grounded largely on the input of a cooperating
witness who, according to the government, would cast serious doubt
on the appellant's veracity anent the extent of his knowledge and
his degree of complicity.
Confronted with this aposematic objection, the appellant
opted for a third proffer session. During that session, he finally
admitted that he had known all along that he was transporting
narcotics; indeed, he had helped load the drugs into the "hide" in
his truck. He also admitted having been paid $900 to haul a
shipment of drugs on a prior occasion.
The sentencing court convened the disposition hearing on
March 10, 2008. The court granted the appellant both safety valve
and acceptance of responsibility reductions but denied him any
mitigating role adjustment. With a total offense level of 29 and
a criminal history category of I, the guideline sentencing range
(GSR) was 87 to 108 months. The court declined to vary from that
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range and sentenced the appellant at the low end. This timely
appeal ensued.
II. ANALYSIS
Following the Supreme Court's decision in United States
v. Booker, 543 U.S. 220, 245 (2005), we created a by-now-familiar
roadmap for sentencing under an advisory guideline regime:
[A] sentencing court ordinarily should begin
by calculating the applicable guideline
sentencing range; then determine whether or
not any departures are in order; then mull the
factors delineated in 18 U.S.C. § 3553(a) as
well as any other relevant considerations;
and, finally, determine what sentence, whether
within, above, or below the guideline
sentencing range, appears appropriate.
United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006)
(citing United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st
Cir. 2006) (en banc)).
In this instance, the district court traveled the
designated route. The appellant's challenge implicates three of
the district court's subsidiary determinations. We deal with those
three items sequentially.
A. Mitigating Role Adjustment.
A sentencing court may adjust a defendant's offense
level, up or down, if the defendant's role in the offense of
conviction appears more or less significant than the norm. United
States v. Quiñones-Medina, 553 F.3d 19, 22 (1st Cir. 2009).
Pertinently, the guidelines authorize a two-level decrease in
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offense level when "the defendant was a minor participant in [the
relevant] criminal activity." USSG §3B1.2(b). The appellant
claims that the district court erred in refusing to grant him such
a boon.
Due to the fact-specific nature of the inquiry into a
defendant's role in the offense, appellate review of such
determinations is generally deferential. See United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995). "Consequently, we review
a district court's resolution of the facts relative to a minor role
adjustment for clear error, applications of law to those raw facts
somewhat less deferentially, and purely legal questions de novo."
Quiñones-Medina, 553 F.3d at 22. Given this algorithm, factbound
battles over a defendant's role in an offense "will almost always
be won or lost in the district court." Graciani, 61 F.3d at 75.
The appellant's first foray is an attempt to secure de
novo review. He argues that the sentencing court precluded him as
a matter of law from a minor role adjustment by holding him
responsible for only the drugs actually transported in his truck
(as opposed to the more sizable quantities distributed by the
conspiracy as a whole).
This argument strikes a counter-intuitive chord. In
narcotics cases, a defendant's offense level is driven largely by
the quantity of drugs attributed to him, see, e.g., United States
v. Colón-Solis, 354 F.3d 101, 103 (1st Cir. 2004), and it is
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unusual for a defendant to complain about being held responsible
for a smaller quantity.
Here, however, the appellant wishes, figuratively, to
have his cake (i.e., to gauge his offense level by a lesser drug
quantity) and eat it too (i.e., to gauge his role in the offense
with reference to the overall conspiracy, which handled greater
quantities of drugs). Despite the apparent inconsistency, there is
nothing wrong with that approach: a defendant may accept the
sentencing court's restricted drug-quantity finding (limited to a
single shipment) and nonetheless argue that the relevant crime, for
purposes of a role-in-the offense adjustment, is the broader
conspiracy.
So it is here. While not challenging the sentencing
court's drug-quantity finding as such, the appellant argues that
the court, in focusing too intently on this finding, impermissibly
rejected his assertion that he occupied a minor role in the overall
conspiracy without further inquiry.
This argument has two aspects. First, the appellant
quotes the sentencing court's statement that he was being "held
responsible only for the amount of drugs in his truck, not for the
drugs distributed by the whole conspiracy," and suggests that this
statement and others like it somehow show that the court foreclosed
a minor role adjustment as a matter of law. This suggestion
misconceives the thrust of the sentencing court's finding.
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We do not read the record as showing that the sentencing
court precluded the appellant from arguing for a mitigating role
adjustment. Putting the statements in context, it is readily
evident that the court considered the appellant's plea for a minor
role adjustment on the merits. It weighed all the facts,
particularly those unearthed at the third and final proffer
session,1 and reasoned that the appellant was not a minor player in
light of his prior participation in the transportation of
contraband, his help in loading the truck, the amount of money
paid to him, the quantity of drugs that had been entrusted to his
care, and his willingness to discuss a role in future deliveries.
This was a factual determination, pure and simple, not the
preclusion of a mitigating role adjustment as a matter of law.
Second, the appellant posits that the sentencing court
misinterpreted the guidelines when it focused its consideration of
his level of participation on the drugs found in his truck. This
complaint lacks force.
It is, of course, true that a defendant's role in the
offense should not be predicated "solely on the basis of elements
and acts cited in the count of conviction." USSG Ch.3, Pt.B,
intro. cmt. This means that a defendant's role must be evaluated
based on his relevant conduct as a whole. See United States v.
1
Those facts were not available to the probation officer who
composed the PSI Report.
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Rodríguez De Varón, 175 F.3d 930, 940-41 (11th Cir. 1999); United
States v. García, 954 F.2d 12, 15 (1st Cir. 1992); see also USSG
§1B1.3(a)(1)-(4). But when the offense of conviction is a
conspiracy, acts not forming the basis of the count of conviction
may "be included as relevant conduct . . . [so long as] those acts
were reasonably foreseeable by the defendant and committed in
furtherance of the conspiracy." García, 954 F.2d at 15. Where a
defendant is hired to transport a single shipment of drugs and does
not otherwise participate in the larger conspiracy, his relevant
conduct ordinarily will be limited to that shipment. See USSG
§1B1.3, cmt. (n.2(c)(3)).
Viewed charitably, the appellant's involvement in the
conspiracy was along those lines. He drove a delivery truck
containing a single shipment of cocaine. There was no evidence
that he had any actual involvement in other facets of the
conspiracy.2 Thus, the district court supportably confined his
relevant conduct to the single thirty-kilogram haul.
The appellant contends that this relevant conduct
determination somehow constrained the court to preclude a minor
role adjustment as a matter of law. That contention confuses plums
2
Although the record contained evidence of the appellant's
participation in an earlier drug transport, there was no evidence
linking that shipment to the charged conspiracy. The telephone
calls noted in the record related to the possibility of unspecified
future deliveries. Those calls were relevant to show the
appellant's knowledge of the broader conspiracy but not to show
actual participation in it.
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with pomegranates: limiting a defendant's relevant conduct to one
phase of a conspiracy does not preclude an independent role-in-the-
offense inquiry. See Rodríguez De Varón, 175 F.3d at 943
(explaining that a defendant is not automatically precluded from a
mitigating role adjustment where he is held accountable only for
the amount of drugs that he personally handled); see also USSG
§3B1.2, cmt. (n.3(A)) (noting that "a defendant who is convicted of
a drug trafficking offense, whose role in that offense was limited
to transporting or storing drugs and who is accountable under
§1B1.3 only for the quantity of drugs the defendant personally
transported or stored is not precluded from consideration for an
adjustment under this guideline").3 The record makes clear that
the district court realized as much. The question was whether the
appellant occupied a minor role in the conspiracy as a whole, and
that is precisely the question that the district court endeavored
to answer.
The appellant's final argument on this point asserts that
the sentencing court failed properly to assess his role. This is
a factbound inquiry, and we review the lower court's determination
only for clear error. See Quiñones-Medina, 553 F.3d at 23.
3
This application note, adopted in 2001, resolved a circuit
split on this issue. After the amendment's adoption, courts
uniformly have followed Rodríguez De Varón. See, e.g., United
States v. Rodríguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004).
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A defendant who seeks a minor role adjustment bears the
burden of proving his entitlement thereto. Mateo-Espejo, 426 F.3d
at 512; United States v. Sánchez, 354 F.3d 70, 74 (1st Cir. 2004).
In order to carry that burden, he must show, by a preponderance of
the evidence, that he was less culpable than both his confederates
and the mine-run of other wrongdoers who have committed similar
crimes. United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.
1990).
In this instance, the appellant claims that the
sentencing court improperly fixated on the amount of drugs in his
truck. This was error, he says, because he was a mere courier,
which made him less culpable than his comparators both within the
charged conspiracy and in drug-trafficking conspiracies generally.
The appellant seems to assume that couriers are
automatically entitled to mitigating role adjustments. That is an
incorrect assumption. See, e.g., Quiñones-Medina, 553 F.3d at 23;
Mateo-Espejo, 426 F.3d at 512; United States v. Paz Uribe, 891 F.2d
396, 399 (1st Cir. 1989). Some couriers are more central to the
plot than others.
The defendant also seems to assume that because he
participated in only one phase of the conspiracy, he necessarily
played a minor role. That, too, is an incorrect assumption. A
defendant who participates in only one phase of a conspiracy may
nonetheless be found to play a non-minor role in the conspiracy as
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a whole. See, e.g., United States v. Ortiz-Santiago, 211 F.3d 146,
149 (1st Cir. 2000); United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989).
The facts here are not hospitable to the appellant's
claim. While he strenuously insists that he played only a
peripheral role in the overarching conspiracy, the record (for
reasons already discussed) supports the sentencing court's finding
that he was no less culpable than the mine-run of drug traffickers.
The appellant's "fixation" argument does not undermine
this conclusion. Although the sentencing court commented
specifically on the large quantity of drugs hauled by the
appellant, that was a relevant datum in assessing his role in the
conspiracy. See Rodríguez De Varón, 175 F.3d at 943.
In any event, the sentencing court did not "fixate" on
this one fact. It viewed the appellant's participation as a whole
and concluded that his role was not minor when compared to other
couriers.4
The decision as to where on the status continuum a
particular defendant falls is, within wide limits, best left to the
sentencing court. See Ocasio, 914 F.2d at 333. Those limits were
not exceeded (or even closely approached) in the instant case. It
4
The court observed, for example, that the appellant was more
culpable than a courier "who gets on [an airplane] with something
strapped to their chest."
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follows that the district court's finding of "no minor role" was
not clearly erroneous.
B. 18 U.S.C. § 3553(a).
We turn next to the appellant's claim that the sentencing
court did not sufficiently address the factors enumerated in 18
U.S.C. § 3553(a). We evaluate this claim under a deferential
abuse-of-discretion standard. See Gall v. United States, 128 S.
Ct. 586, 591 (2007); United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008).
There is no doubt but that, in sentencing, the district
court should treat the GSR merely as a starting point. Martin, 520
F.3d at 91. The next steps "should include hearing argument from
the parties as to the proper sentence in the particular case,
weighing the applicability of the sundry factors delineated in 18
U.S.C. § 3553(a), reaching an ultimate sentencing determination,
and explicating that decision on the record." Id. In this
evaluative process, the court should remain cognizant that
variances from the guidelines — even substantial variances — are
not always beyond the pale. Id.
None of this means, however, that a sentencing court is
required to provide a lengthy and detailed statement of its reasons
for refusing to deviate from the GSR. The opposite is true. See,
e.g., United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007);
United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.
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2006). There is no need for the sentencing court to engage "in
some sort of rote incantation when explicating its sentencing
decision." United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006).
In this case, the appellant complains that the court
below did not provide a plausible explanation as to why a non-
guideline sentence would not have sufficed to satisfy the
legitimate objectives of sentencing. In support, he claims that
the court did not adequately address certain of the section 3553(a)
sentencing factors, including his "lack of a prior record,
legitimate work history, lack of violent behavior [and] scant
potential of recidivism."
The record contradicts this plaint. The sentencing
court, after calculating the GSR, invited the appellant to argue
under section 3553(a) for a below-the-range sentence. After
hearing that argument, weighing all the facts, and citing a number
of specific considerations (e.g., the appellant's prior involvement
in drug trafficking), the court concluded that nothing in the
appellant's "personal history and characteristics" warranted a
variant sentence below the bottom of the GSR. The court's
reasoning is plausible, the result defensible, and the record
barren of anything suggestive of either procedural or substantive
error. Accordingly, we reject this assignment of error.
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C. Disparity.
We need not linger over the appellant's last claim. He
asseverates that his sentence was substantively unreasonable
because it was longer than the sentence meted out to a more
culpable codefendant. This argument is hopeless.
Section 3553(a) encourages a sentencing court to
consider, as a basis for ameliorating a prospective sentence, a
perceived "need to avoid unwarranted sentence disparities among
defendants with similar records." 18 U.S.C. § 3553(a)(6). In
enacting this provision, Congress's concern was mainly with
minimization of disparities among defendants nationally rather than
with disparities among codefendants engaged in a common conspiracy.
See Martin, 520 F.3d at 94; United States v. Navedo-Concepción, 450
F.3d 54, 60 (1st Cir. 2006); United States v. Smith, 445 F.3d 1, 5
(1st Cir. 2006).
At any rate, the appellant and the codefendant whom he
identifies were not similarly situated. We have reviewed the
material that the government has proffered under seal.5 The facts
disclosed satisfy us that the two men are not fair congeners.
There were ample reasons to give the codefendant a shorter sentence
— reasons that did not pertain to the appellant.
5
The appellant has not impeached the veracity of that
proffer, nor does he suggest that its contents were unknown to the
sentencing judge.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the conviction and sentence.
Affirmed.
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