United States v. Morales-De Jesus ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1549
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL MORALES-DE JESUS,
a/k/a Maca, a/k/a Macarron, a/k/a El Gordo, a/k/a David Morales,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
John E. Mudd and Law Offices of John E. Mudd, by appointment
of the court, on brief for appellant.
B. Kathryn Debrason, Assistant United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
July 18, 2018
LYNCH, Circuit Judge. This is a sentencing appeal.
Angel Morales-De Jesus ("Morales") pleaded guilty to leading a
large drug distribution conspiracy in Puerto Rico housing projects
over a five-year period and to the use and carrying of a firearm
in connection with that drug offense. His plea agreement
calculated an offense level of 31 for the conspiracy charge and
recommended a total sentence of 180 months' imprisonment.
The calculations in the presentence report (PSR) and the
later addendum to the PSR were far less generous to Morales in the
offense level and recommendations. The first PSR also recounted
that the estimated gross drug proceeds were just under $5 million.
At sentencing, the district court calculated a higher offense level
than the plea agreement: 33, and imposed a longer total sentence:
228 months' imprisonment.
On appeal, Morales challenges first the district court's
application of a four-level leadership enhancement under U.S.S.G.
§ 3B1.1(a) and second the sentence's substantive reasonableness.
There was no error at all on either assertion and so we affirm.
I.
From at least 2010 until 2015, Morales led a drug
trafficking organization. His organization distributed crack
cocaine, cocaine, marijuana, and other controlled substances in
public housing projects in Patillas, Puerto Rico. Morales was
arrested on April 22, 2015.
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In September 2016, Morales entered into a plea
agreement. He pleaded guilty to possession of, among other things,
between five and fifteen kilograms of cocaine with intent to
distribute it, and to using or carrying a firearm in relation to
that drug offense. The parties agreed to recommend that Morales
receive a two-level leadership enhancement for the conspiracy
charge,1 putting his offense level at thirty-one. The parties also
agreed to recommend the applicable mandatory minimum sentences:
120 months for the conspiracy charge and 60 months for the firearm
charge, to be served consecutively, for a total of 180 months'
imprisonment. At the close of Morales's change of plea hearing,
the magistrate judge recommended that the district court accept
the guilty plea.
Two months later, a probation officer prepared Morales's
PSR. That report listed twenty-eight co-defendants alongside
Morales. Unlike the plea agreement, the PSR recommended a four-
level leadership enhancement -- bringing Morales's offense level
to 33 -- based on his actions as "the main leader of the drug
trafficking organization, which involved five or more
participants." See U.S.S.G. § 3B1.1(a). The PSR listed 28 co-
conspirators in addition to Morales by name and position.
1 The firearm charge is precluded from guideline
application under U.S.S.G. § 2K2.4(b). That provision also
provides that the guideline sentence is the applicable mandatory
minimum.
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Morales's criminal history category at that time was III, but that
did not include a state offense described below.
In February 2017, before federal sentencing, Morales
pleaded guilty to Puerto Rico offenses unrelated to the federal
offenses. The state plea agreement exposed Morales to thirteen
years' state imprisonment. In light of this development, the
probation office filed an addendum to the original PSR. This
addendum noted that "[Morales's] criminal history category
substantially under-represents the seriousness of the [sic] his
criminal history or the likelihood that he will commit other
crimes." It observed that the inadequacy of Morales's criminal
history category might warrant an upward departure.
The district court sentenced Morales in May 2017. It
applied the four-level leadership enhancement, closely tracking
language from the PSR:
Defendant acted as the main leader of the drug
trafficking organization which involved five
or more participants, and he had supervisory
authority over the affairs of the drug
trafficking organization, therefore, a four-
level increase is applied under Guideline
Section 3B1.1(a).
Like the original PSR, the district court calculated an offense
level of 33, putting Morales's guidelines range for the conspiracy
charge at 168 to 210 months' imprisonment based on his criminal
history category of III. See U.S.S.G. ch. 5, pt. A (sentencing
table). The district court imposed a sentence at the bottom of
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this new range: 168 months. Morales's firearm charge yielded a
60-month sentence, to be served consecutively with his conspiracy
sentence, for a total of 228 months' imprisonment.2
II.
A.
Morales first objects to the leadership enhancement
under U.S.S.G. § 3B1.1(a). Because he raised no such objection to
the district court, as he concedes, we review for plain error.
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
On plain error review, Morales must establish that there was (1) an
error that was (2) clear or obvious and that not only (3) affected
his substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings.
Id.Morales argues that the district court erroneously
applied a four-level leadership enhancement, because, in his
words, "the indictment does not establish the four or more
participants" (in addition to Morales) required for a four-level
enhancement under U.S.S.G. § 3B1.1(a). Morales does not dispute
his leadership of the organization; he challenges only the number
of participants.
2 The district court also imposed 10 years' supervised
release for the conspiracy count and 5 years' supervised release
for the firearm count, to be served concurrently. Morales does
not challenge his supervised release terms.
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This argument is meritless. The district court in
sentencing referred to "the serious nature of the offense" and
"[Morales's] role as principal leader of the drug trafficking
organization." Morales has not provided us with a copy of his
indictment and has not challenged the government's assertion that
the indictment listed all 28 of his co-defendants. A "district
court has the ultimate responsibility to ensure that the Guidelines
range it considers is correct." Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904 (2018). Here, the district court had ample
support for its conclusion that Morales led a "drug trafficking
organization which involved five or more participants." First,
the PSR listed twenty-eight co-conspirators in addition to
Morales. And second, by the time she sentenced Morales, the
district judge had already sentenced fourteen of Morales's co-
conspirators. Morales has advanced no argument to explain why he
was a leader of fewer than four of those co-conspirators.
A district court need not make specific findings
justifying its application of a role-in-the-offense enhancement if
"the record clearly reflects the basis of the court's
determination." United States v. Marrero-Ortiz, 160 F.3d 768, 779
(1st Cir. 1998). Here, as in Chavez-Meza v. United States, "there
was not much else for the judge to say." 138 S. Ct. 1959, 1967
(2018). There was no error at all in assigning Morales a four-
level leadership enhancement.
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To the extent Morales now disputes the list of twenty-
eight co-conspirators in his PSR, that argument is waived. Puerto
Rico Local Rule 132(b)(3)(A) requires that any objection to a PSR
be made within fourteen days of that report's disclosure. Morales
raised no such objection. Cf. United States v. Turbides-Leonardo,
468 F.3d 34, 37-38 (1st Cir. 2006).
Morales's procedural challenge fails.
B.
Morales next argues that his 228-month federal sentence
is substantively unreasonable. In particular, he argues that this
sentence is unreasonable in light of the further 13 years he will
likely spend in state prison on the state charges. The government
concedes that Morales preserved this challenge by requesting
reconsideration after the district court pronounced the sentence.
The district court denied reconsideration. We review for abuse of
discretion. United States v. Cortés-Medina, 819 F.3d 566, 569
(1st Cir. 2016).
To undercut the substantive reasonableness of a within-
guidelines sentence like Morales's, a defendant must furnish
"powerful mitigating reasons and persuade us that the district
judge was unreasonable in balancing pros and cons despite the
latitude implicit in saying that a sentence must be 'reasonable.'"
United States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir.
2006).
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Morales offers no reasons, whether powerful or not, for
us to find his sentence unreasonable. He relies merely on
conclusory statements "unaccompanied by some effort at developed
argumentation." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). Because Morales has not met his obligation "to spell
out [his] arguments squarely and distinctly," id. (quoting Rivera-
Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)), they are
waived.
In any event, the district court did not abuse its
discretion. It found the 228-month sentence justified by "the
serious nature of the offense, [Morales's] role as principal leader
of the drug trafficking organization, personal characteristics and
prior criminal record." It considered mitigating factors like
Morales's limited education and the fact that he has a young child.
Morales was in fact sentenced at the bottom of his guidelines
range. The court considered and rejected defense counsel's request
for reconsideration in light of Morales's likely 13-year state
sentence.
Sentencing represents a "'judgment call' involving an
intricate array of factors." United States v. Flores-Machicote,
706 F.3d 16, 21 (1st Cir. 2013) (quoting United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). The district court weighed those
factors, providing a "plausible sentencing rationale and a
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defensible result." Martin, 520 F.3d at 96. As such, Morales's
228-month sentence is substantively reasonable.
III.
The district court committed no error, plain or
otherwise. Morales's sentence stands. Affirmed.
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