United States v. Rodriguez ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1647
UNITED STATES OF AMERICA,
Appellee,
v.
MARÍA RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Torruella, Boudin, and Barron,
Circuit Judges.
Derege B. Demissie and Demissie & Church on brief for
appellant.
Jennifer Hay Zacks, Assistant United States Attorney, and
Andrew E. Lelling, United States Attorney, on brief for appellee.
December 13, 2019
BOUDIN, Circuit Judge. María Rodríguez pled guilty to
conspiring to possess and distribute heroin and fentanyl, in
violation of 21 U.S.C. § 846, and was sentenced to sixty-six months
in prison. She now appeals to contest her sentence, disputing the
district court's drug quantity determination.
María Rodríguez admitted that, from July 2014 through
September 23, 2015, she received heroin from her boyfriend Dedwin
Cruz-Rivera on a regular basis, much of which she then supplied to
her son William ("Will") Rodríguez, who distributed it to low-
level resellers and users. As part of its investigation, the
government wiretapped María and Will Rodríguez's phones for one
and two months, respectively, during the fifteen-month conspiracy.
Their dealings were corroborated by intercepts of Cruz-Rivera's
phone, which was tapped for about sixth months over the course of
a year.
In July 2017, María Rodríguez pled guilty without a plea
agreement. The government's theory at sentencing was that María
Rodríguez was her son's sole source of heroin and all drugs handled
by him should be attributed to her. Based on its review of 140
intercepted conversations from María and Will Rodríguez's phones,
the government estimated that during the three-month span of the
wiretaps, Will Rodríguez had distributed at least 1,261 grams of
heroin and María Rodríguez had distributed at least 200 grams of
heroin to customers other than Will. This made María Rodríguez
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responsible for at least 1,461 grams of heroin. The government
only included intercepts where a deal for a specific amount of
heroin was struck, assigned the lowest conceivable value to any
transaction where the drug amount was ambiguous, and did not
extrapolate beyond the three months of wiretap data it had
collected despite evidence that María Rodríguez and her son were
distributing heroin throughout the entire fifteen-month
conspiracy.
The presentence report ("PSR") agreed with the
government's analysis of the intercepts, but because the amounts
of heroin attributed to María Rodríguez were based on "wiretaps
and estimates," and Will Rodríguez "could have had an alternative
source of supply unknown to the government," the PSR said it was
"reasonable, if not conservative, to conclude that [she was]
accountable for at least 700 grams, but not more than 1 kilogram
of heroin." PSR ¶ 92. Although both parties initially objected
to the PSR's calculation of drug quantity, defense counsel later
accepted probation's calculation.
The district court ruled that the PSR understated María
Rodríguez's involvement and that the probation officer's
hypothetical adjustment stemmed from speculation, not fact.
Instead, the court adopted the government's estimate and found
María Rodríguez responsible for more than one kilogram of heroin,
resulting in a base offense level of thirty. Granting a two-level
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reduction in offense level for a safety valve proffer, a three-
level reduction for acceptance of responsibility, and a criminal
history category of I, the district court fixed the guideline
sentencing range ("GSR") as fifty-seven to seventy-one months of
imprisonment and imposed a sentence of sixty-six months.
The only issue on appeal is the district court's drug
quantity determination. Factual findings by the district court as
to drug quantity are reviewed for clear error, United States v.
Rodríguez-Lozada, 558 F.3d 29, 42 (1st Cir. 2009), and no such
error occurred here.
A sentencing judge's task in attributing drug quantity
in a distribution conspiracy is challenging. Important though is
the calculation, see U.S.S.G § 2D1.1(c), the sentencing judge is
often given limited data to work with and typically lacks the type
of resources mustered for a trial. Thus, the sentencing guidelines
require only that the district court "approximate the amount" of
drugs at issue, id. § 2D1.1 cmt. n.5, and "we uphold such an
approximation as long as it represents a reasoned estimate of
quantity," United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995).
Here, the district court sensibly concluded that the
government had presented a reasonable, and likely quite
conservative, estimate of the heroin attributable to María
Rodríguez, and that the PSR had reduced it without good cause.
The government described how it had interpreted the intercepted
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conversations from María and Will Rodríguez's phones. Given that
defense counsel did not contest those interpretations, the
district court reasonably accepted that the government's account
of the transactions caught on the intercepts was sound.
Defense counsel's main objection was that the
government's analysis held María Rodríguez accountable for all of
Will Rodríguez's sales even where there was no direct evidence
that she was involved. The district court did not ascribe all of
Will Rodríguez's sales to María Rodríguez, but instead determined
that she was responsible for over one kilogram of heroin based
upon several considerations: the "snapshots" of Will Rodríguez's
drug transactions caught on the intercepts, the evidence María
Rodríguez was her son's "principal supplier," their ongoing
relationship at the time the wiretaps began, and the conservative
amounts counted by the government's analysis. During months of
physical surveillance and wiretapped conversations, Will Rodríguez
never bought or spoke about buying heroin from anyone but his
mother, even when she could not supply him with the heroin he
requested. A sentencing judge may "draw reasonable inferences
from information contained in the sentencing record," United
States v. Cintrón-Echautegui, 604 F.3d 1,7 (1st Cir. 2010), and
here the record supports the reasonable inference--upheld on clear
error review--that María Rodríguez was her son's principal source
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of supply, see United States v. Bernier, 660 F.3d 543, 547 (1st
Cir. 2011).
Neither the PSR, nor defense counsel, offered any other
reason showing why the government's estimate, comprised of only
three months' worth of drug transactions during a fifteen-month
conspiracy, should be further cut in half. Having reasonably
concluded that the government's estimate, if anything, understated
María Rodríguez's involvement, the district court did not err in
adopting it.
Affirmed.
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