United States v. Ortiz-Torres ( 2006 )

United States Court of Appeals
For the First Circuit
No. 03-2456
UNITED STATES,
Appellee,
v.
ORLANDO ORTIZ-TORRES, a/k/a Landy,
a/k/a Orlando Torres-Ortiz,
Defendant, Appellant.
No. 03-2458
UNITED STATES,
Appellee,
v.
OMAR COSME-PIRI, a/k/a Chiquito
Defendant, Appellant.
No. 03-2534
UNITED STATES,
Appellee,
v.
RAYMOND TORRES-SANTIAGO,
Defendant, Appellant.
No. 03-2572
UNITED STATES,
Appellee,
v.
JOSÉ RENOVALES-VÉLEZ, a/k/a Pipe
Defendant, Appellant.
No. 04-1871
UNITED STATES,
Appellee,
v.
JULIO MATTEI-ALBIZU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Lipez, Circuit Judge,
John R. Gibson, Senior Circuit Judge*
and Howard, Circuit Judge.
Mauricio Hernàndez-Arroyo for appellant Orlando Ortiz-Torres.
Raúl S. Mariani-Franco for appellant Omar Cosme-Piri.
Bruce Green for appellant Raymond Torres-Santiago.
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
José R. Olmo-Rodríguez for appellant Jose Renovales-Vélez.
Luis M. Cháves-Ghigliotty for appellant Julio Mattei-Albizu.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, was on brief, for Appellee.
May 26, 2006
John R. Gibson, Circuit Judge. Orlando Ortiz-Torres, Omar
Cosme-Piri, Raymond Torres-Santiago, José Renovales-Vélez, and
Julio Mattei-Albizu appeal their convictions and sentences for
conspiracy to distribute multi-kilogram quantities of cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
Appellants were members of a drug-trafficking organization
that operated drug distribution points in and around La Plena Ward
in Juana Díaz, Puerto Rico from 1994 to 2001.1 A grand jury
indicted each of them with conspiring to distribute "multi-kilogram
quantities" of heroin, cocaine, cocaine base, and marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and with a forfeiture
allegation of up to $1 million pursuant to 18 U.S.C. § 982.
Appellant Mattei-Albizu entered a straight plea of guilty to
conspiring to possess with intent to distribute and conspiring to
distribute at least 3.5 kilograms but less than 5 kilograms of
cocaine. After a jury was empaneled, the remaining appellants each
pled guilty to conspiracy to possess with intent to distribute
cocaine as part of a package plea agreement.
Appellants raise numerous claims of error on appeal. Cosme-
Piri and Ortiz-Torres challenge their convictions on the ground
1
Because appellants' convictions and sentences followed
admissions of guilt, we glean the pertinent facts from the change-
of-plea colloquies, the plea agreements, the presentence reports,
and the transcripts of the sentencing and change of plea hearings.
See United States v. Colon-Solis, 354 F.3d 101, 102 (1st Cir.
2004).
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that their guilty pleas were not voluntary. Cosme-Piri, Ortiz-
Torres, Renovales-Vélez, and Mattei-Albizu raise an assortment of
challenges to their sentences. Lastly, each appellant requests a
remand for sentencing in accordance with United States v. Booker,
543 U.S. 220 (2005). We address each claim in turn.
I. Voluntary Guilty Plea
Cosme-Piri and Ortiz-Torres ask us to vacate their convictions
and remand their cases for trial on the ground that their guilty
pleas were not voluntary. While the entry of a guilty plea "does
not preclude an attack on the plea's voluntariness," United States
v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005), because neither
appellant sought to withdraw his guilty plea before the district
court, we review the district court's acceptance of their pleas for
plain error. United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st
Cir. 2004) (citing United States v. Vonn, 535 U.S. 55, 59 (2002)),
cert. denied, 543 U.S. 1175, 1176 (2005).
To establish that the district court committed error in
accepting their guilty pleas, appellants must point to a
"fundamental defect" in the change of plea hearing itself. See
United States v. Bierd, 217 F.3d 15, 19 (1st Cir. 2000); see also
Sahlin, 399 F.3d at 31 (error must affect substantial rights).
Appellants argue that the joint change of plea hearing was
fundamentally defective because it failed to ensure that their
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guilty pleas, entered as part of a package plea agreement, were
truly voluntary. As in many such "package plea" arrangements, the
government offered the entire group of defendants charged in
connection with the La Plena drug point a favorable plea and
sentencing recommendation on the condition that all the co-
defendants enter guilty pleas.
We have previously recognized that such package deals create
a significant risk that one defendant will plead guilty against his
will in order for his co-defendants to obtain the offered benefit.
United States v. Abbott, 241 F.3d 29, 34 (1st Cir. 2001); United
States v. Martinez-Molina, 64 F.3d 719, 732-33 (1st Cir. 1995).
Thus, we have crafted two safeguards designed to minimize this risk
of coercion. Mescual-Cruz, 387 F.3d at 8 (citing Martinez-Molina,
64 F.3d at 732-33). First, the prosecution should inform the
district court that the defendant's guilty plea is part of a
package deal. Id. Second, the district court should carefully
ascertain the voluntariness of the defendant's plea during the Rule
11 colloquy, with an eye toward minimizing the risk of co-defendant
coercion inherent in the package-plea context. Id.The record of the Rule 11 proceeding below reflects that both
safeguards were observed. First, there is little doubt that the
district court was fully aware that all the defendants, save for
Mattei-Albizu, were entering their pleas as part of a package deal.
At the joint change of plea hearing, in the presence of all
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defendants and their respective counsel, the government disclosed
to the court that the individual pleas were part of a package deal.
Indeed, on several occasions throughout the change of plea hearing
the district court specifically referred to the package nature of
defendants' pleas.
Second, the district court's Rule 11 inquiry was more than
sufficient to guard against the risk of co-defendant coercion. The
court individually questioned the defendants, asking whether they
were threatened or coerced by "anyone" or "anybody" into entering
their individual guilty pleas. Although this alone was likely
sufficient, see, e.g., Mescual-Cruz, 387 F.3d at 9 ("anyone" or
"anybody"); United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st
Cir. 1996) ("anyone"), the court inquired further. It specifically
named each co-defendant and asked whether any of them had
threatened or coerced Ortiz-Torres or Cosme-Piri into pleading
guilty, thereby probing whether the increased likelihood of co-
defendant coercion in the package-plea context had affected either
of their decisions to plead guilty.
In light of these additional safeguards, the district court
was entitled to rely upon Cosme-Piri's and Ortiz-Torres's
representations, made under oath, that they were neither coerced
nor threatened into making their pleas. See United States v.
Marrero-Rivera, 124 F.3d 342, 349 (1st Cir. 1997). The only
indication of the contrary comes from Cosme-Piri's and Ortiz-
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Torres's general allegations of coercion on appeal, which are
insufficient, absent record support, to invalidate their guilty
pleas. See Sanchez-Barreto, 93 F.3d at 23. Finding no error,
plain or otherwise, in the district court's acceptance of their
guilty pleas, we affirm Ortiz-Torres's and Cosme-Piri's
convictions.
II. Sentencing Issues
The entry of a guilty plea does not itself waive a defendant's
right to challenge the ensuing sentence. United States v.
Gonzalez-Mercado, 402 F.3d 294, 301 (1st Cir. 2005). Renovales-
Vélez, Cosme-Piri, Ortiz-Torres, and Mattei-Albizu advance such
challenges.
A. Renovales-Vélez
Renovales-Vélez argues that the district court erred by
failing to impose his federal sentence concurrently with his
undischarged term of state imprisonment as required under Guideline
§5G1.3(b) (2002).2 Like his co-defendants, Renovales-Vélez was
2
Effective November 1, 2003, a little more than one month
after Renovales-Vélez's September 30, 2003 sentencing, Guideline §
5G1.3(b) was amended. Because neither party argues otherwise, we
assume that the version in effect at the time of Renovales-Vélez's
sentencing applies. United States v. Harotunian, 920 F.2d 1040,
1041-42 (1st Cir. 1990) ("[A] defendant is to be punished
according to the guidelines in effect at the time of sentencing.");
see also United States v. Rouse, 362 F.3d 256, 261-62 (4th Cir.
2004) (holding that 2003 amendment to Guideline § 5G1.3(b) does not
apply retroactively), cert. denied, 543 U.S. 867 (2004).
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charged with distributing more than five kilograms of both cocaine
and cocaine base, more than one kilogram of heroin, and more than
fifty pounds of marijuana. However, also like all but one of his
co-defendants, Renovales-Vélez entered into a plea agreement,
pursuant to which he pled guilty to conspiracy to possess with
intent to distribute at least 150 kilograms of cocaine, in return
for the government's recommendation of 252 months' imprisonment.
The parties further agreed that if Renovales-Vélez's presentence
investigation revealed convictions for offenses that took place
during the time period of the conspiracy, they would not be counted
in determining his criminal history category.
Ultimately, Renovales-Vélez's presentence report listed four
prior drug-related convictions in the Superior Court of Puerto
Rico: on December 21, 1994, Renovales-Vélez was arrested for
possession of cocaine with intent to distribute for which he was
sentenced to three years' imprisonment; on January 25, 1995, he was
arrested and charged with the second and third offenses, possession
of marijuana and heroin with the intent to distribute, for which he
was sentenced to a total of six years' imprisonment; and on
February 23, 1995, he was arrested and charged with possession with
the intent to distribute cocaine, for which he was sentenced to two
years' imprisonment.3 Although he received a sentence of eleven-
3
The sentences for all four convictions were imposed on May
13, 1996 and ordered to run consecutively.
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years' imprisonment on the four offenses, Renovales-Vélez had
served only 35 months of that sentence before being transferred to
federal custody to face the instant charges.
Since his prior drug offenses occurred during the period of
the charged cocaine trafficking conspiracy, the presentence report
recommended that they be treated as overt acts, resulting in zero
criminal history points. Consistent with the recommendation of the
presentence report and the agreement of the parties, the district
court assessed Renovales-Vélez zero criminal history points for his
prior convictions, leaving him with a criminal history category of
I. Recognizing that Renovales-Vélez had been incarcerated due to
these prior convictions during a significant portion of the charged
conspiracy, the district court found him to be less culpable than
his co-defendants, and accordingly, sentenced him to 238 months'
imprisonment, rather than the 252-month sentence provided for in
the plea agreement.4
On appeal Renovales-Vélez argues that the district court was
required under Guideline §5G1.3(b)(2002) to run his federal
4
The sentencing court stated:
And the Court, because this defendant spent a
considerable amount of time in jail during the
conspiracy, and his participation is less than the other
gentlemen who have been also sentenced by this Court,
therefore, sentences him within the guideline but to a
lower amount than recommended in the plea . . . .
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sentence concurrently with the undischarged portion of his state
term of imprisonment. Because, as Renovales-Vélez concedes, he did
not object to his sentence on this ground, we employ plain error
review. United States v. Cruz, 213 F.3d 1, 4 (1st Cir. 2000)
(citing United States v. Olano, 507 U.S. 725, 733 (1993)). To
decide whether the district court erred in imposing his sentence,
we must determine whether his state offenses were "fully taken into
account" in determining his offense level. See Guideline §
5G1.3(b)(2002).5 If they were, then Guideline § 5G1.3(b) required
the court to impose the federal term concurrently with the
undischarged state term, which would have reduced the federal
sentence by approximately 97 months—the difference between the
entire eleven-year state term and the 35 months Renovales-Vélez had
served on it before being transferred to federal custody. See
United States v. Caraballo, 200 F.3d 20, 28-29 (1st Cir. 1999); see
also U.S.S.G. § 5G1.3(b), cmt. (n.2) (2002).
5
At the time of sentencing, Guideline § 5G1.3 provided:
(b) If . . . the undischarged term of imprisonment
resulted from offense(s) that have been fully taken into
account in the determination of the offense level for the
instant offense, the sentence for the instant offense
shall be imposed to run concurrently to the undischarged
term of imprisonment.
(c) (Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for the
instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.
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Renovales-Vélez argues that because his state court offenses
were treated as overt acts in furtherance of the conspiracy, they
were treated as relevant conduct under Guideline § 1B1.3, and
therefore "fully taken into account" under Guideline § 5G1.3(b).
Because Guideline § 5G1.3 "is directed at the prevention of
duplicative sentencing for any particular conduct," we held in
Caraballo that "only relevant conduct that has resulted in-or that
could have resulted in-a change in the instant offense's 'offense
level' is 'fully taken into account' under § 5G1.3(b)." Id.
(emphasis in original). However, we also reasoned that mandatory
concurrent sentencing would be inappropriate where the defendant's
undischarged prison term was for multiple offenses, but only some
of those offenses were "fully taken into account" in determining
the instant offenses's offense level, since in such a situation the
instant offense may involve conduct unrelated to the conduct
underlying the undischarged term. Id. at 28. Accordingly, we held
that "[w]hen some of the conduct underlying an undischarged term
impacted the offense level, but other aspects of that conduct did
not," the district court is free, under § 5G1.3(c), to choose
wholly concurrent, partially concurrent, or wholly consecutive
sentencing. Id. at 29.
In the instant case, we face precisely this kind of "multiple
offense" situation. Renovales-Vélez's undischarged term of state
imprisonment was the result of four separate offenses. Even
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assuming that, in reaching its drug quantity determination and
corresponding offense level, the district court took into account
his two prior cocaine offenses,6 it could not have taken into
account offenses for possession of marijuana with intent to
distribute and possession of heroin, since these convictions
punished conduct unrelated to that punished by the instant cocaine
trafficking conviction. Thus, as in Caraballo, Renovales-Vélez's
undischarged state term was the result of multiple offenses, some
of which may have been taken into account in setting his offense
level for the federal conviction, while the rest clearly were not.
200 F.3d at 27-28. "In short, because not all of the conduct from
which [Renovales-Vélez's Puerto Rico] term resulted influenced his
ultimate offense level, not all of it was 'fully taken into
account' under § 5G1.3(b). The court below thus correctly chose to
apply § 5G1.3(c) instead." Id. at 29.
Thus proceeding under subsection (c), the district court
6
The record does not conclusively demonstrate that the
district court took into account the unspecified quantities of
cocaine involved in Renovales-Vélez's prior cocaine offenses in
determining that he was responsible for at least 150 kilograms of
cocaine and assessing the corresponding offense level of 38. See
U.S.S.G. § 2D1.1 (2002). Indeed, the district court stated at
sentencing that it was specifically relying on Renovales-Vélez's
admission in his plea that he was guilty of conspiring to possess
with intent to distribute "at least 150 kilograms of cocaine" and
his specific stipulation to an offense level of 38 in his plea
agreement. However, because we conclude that even if his prior
cocaine offenses were taken into account, Renovales-Vélez
nonetheless is not entitled to wholly concurrent sentencing, we
need not resolve this question.
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enjoyed the discretion to impose a wholly concurrent, partially
concurrent, or wholly consecutive sentence, so long as the end
result was reasonable. See United States v. Vazquez-Alomar, 342
F.3d 1, 5 (1st Cir. 2003) (quoting Caraballo, 200 F.3d at 28-29).
The court exercised this discretion by sentencing Renovales-Vélez
to a term of imprisonment 14 months less than that stipulated to in
the plea agreement, which had the effect of imposing part of his
federal sentence concurrently with his undischarged state sentence,
while imposing the remainder consecutively. The court specifically
stated that it was imposing this sentence in recognition of the
time Renovales-Vélez was incarcerated on his prior drug offenses,
thereby furthering the underlying policy of Guideline § 5G1.3 in
preventing "duplicative sentencing for any particular conduct."
Caraballo, 200 F.3d at 27. Renovales-Vélez makes no argument that
the district court abused its discretion in doing so, nor does he
claim that his sentence is otherwise unreasonable. See Vazquez-
Alomar, 342 F.3d at 5; see also Caraballo, 200 F.3d at 29(affirming district court's exercise of discretion under Guideline
§ 5G1.3(c) to run part of defendant's federal sentence concurrent
with undischarged state sentence). Accordingly, we affirm his
sentence.7
7
Had Renovales-Vélez been sentenced after the November 1, 2003
effective date of the 2003 amendments to § 5G1.3(b), which
jettisoned the somewhat confusing "fully taken into account"
language as well as any reference to "undischarged" terms of
imprisonment, we would reach the same result. The amended
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B. Cosme-Piri
1. Drug quantity
Cosme-Piri argues that the district court sentenced him based
on a flawed drug-quantity calculation. Because he objected to the
calculation at sentencing, we review any legal error of the
district court de novo, United States v. Barbour, 393 F.3d 82, 91-
92 (1st Cir. 2004), cert. denied, 126 S. Ct. 212 (2005), while
reviewing its factual findings for clear error. United States v.
Santos, 357 F.3d 136, 140 (1st Cir. 2004).
Cosme-Piri stipulated to the scope of the conspiracy's drug
trafficking operations as well as to the amount of narcotics for
which he was personally responsible.8 Based on this stipulated
subsection requires concurrent sentencing:
If . . . a term of imprisonment resulted from another
offense that is relevant conduct to the instant offense
of conviction under the provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense level for
the instant offense under Chapter Two (Offense Conduct)
or Chapter Three (Adjustments) . . . .
U.S.S.G. § 5G1.3(b) (2003) (emphasis added). Under this framework,
Renovales-Vélez would likewise not be entitled to concurrent
sentencing because he fails to demonstrate that his prior cocaine-
related offenses were "the basis for an increase" in the drug
quantity determination underlying the offense level for the instant
cocaine trafficking offense.
8
According to the stipulated facts in the plea agreement, each
month for the duration of the conspiracy the organization sold at
least five kilograms of cocaine, one kilogram of heroin, more than
fifty grams of cocaine base, and approximately five pounds of
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drug quantity, the parties agreed that the applicable sentencing
range was from 235 to 293 months' imprisonment, and the government
agreed to recommend a sentence of 252 months. At the change of
plea hearing, Cosme-Piri acknowledged these stipulations and stated
that he understood the terms of the plea agreement.
At sentencing, counsel for Cosme-Piri objected to the offense-
level computation in the presentence investigation report. He
requested that the district court lower the drug-quantity
calculation because Cosme-Piri had participated in the conspiracy
for a shorter period of time than other co-conspirators whose plea
agreements provided for lesser drug quantities. The government
responded that Cosme-Piri had specifically stipulated in his plea
agreement to the amount of cocaine for which he personally was
responsible and this amount was not tied to the length of his
involvement in the conspiracy.
The court rejected Cosme-Piri's request and sentenced him to
252 months' imprisonment, as provided in the plea agreement. The
court explained that other co-defendants had received drug-quantity
reductions in return for their stipulation to leadership role
enhancements, and not because their involvement in the conspiracy
was any less than that originally contemplated in their plea
marijuana. Notwithstanding these conspiracy-wide amounts, the
parties agreed that Cosme-Piri would be held responsible for "not
less than one hundred fifty kilograms of cocaine" and that "such
amount should be the proper drug quantity to be considered" for
sentencing purposes.
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agreements. This trade-off was necessary to ensure that the
government's sentencing recommendation would remain 252 months' as
stipulated in the plea agreements.
Cosme-Piri argues that the district court erred in sentencing
him based on the stipulated drug quantity instead of making an
individualized finding as to the amount of drugs specifically
attributable to him. In support, he relies upon United States v.
Colon-Solis, 354 F.3d 101, 102-03 (1st Cir. 2004), which held that
a district court could not automatically shift a stipulated
conspiracy-wide drug-quantity amount to an individual conspirator
in order to trigger a statutory mandatory minimum.
However, this reliance is misplaced, since the defendant in
Colon-Solis had stipulated only to the conspiracy-wide drug amount,
and there remained an "open question" as to whether he personally
was responsible for a lesser quantity. See id. at 102. Here,
Cosme-Piri's stipulation as to the amount of drugs specifically
attributable to him left no such open question. Although the
district court was not required to follow this stipulation, it was
entitled to rely upon it in determining the appropriate sentence,
United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001), and such
reliance is not clearly erroneous, see United States v. Santos, 357
F.3d 136, 140-41 (1st Cir. 2004).9
9
Nor does this court's recent decision in United States v.
Rodriguez-Gonzalez, 433 F.3d 165, 168 (1st Cir. 2005), call for a
contrary result. Unlike the "possibly suspect stipulation" in
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Cosme-Piri's second attack on the drug-quantity calculation
focuses on the drug-quantity reductions granted to some of his co-
conspirators. Citing no legal authority in support, Cosme-Piri
claims that, notwithstanding his plea agreement, he is entitled to
a similar reduction because the district court's stated reasons for
the reductions were arbitrary and not related to facts proved
beyond a reasonable doubt.10
A review of the record convinces us that the district court's
drug-quantity determination as to Cosme-Piri was anything but
arbitrary; rather, it reflected, to the kilogram, the quantity
Rodriguez-Gonzalez, there was nothing suspect about Cosme-Piri's
drug-quantity stipulation because he did not dispute it at the
change of plea hearing or at sentencing. See id. at 166-67.
10
The discussion before the district court was, in pertinent
part:
MR. PÉREZ [counsel for Cosme-Piri]: We were referring to
the fact that he was -- this will be 150 kilograms. And
his involvement was for a shorter time than the rest of
the individuals involved. And we thought that he should
be benefitting from that, from the reduced amount that
some of them have been granted.
THE COURT: But some of them have been granted reduced
amounts because they're going to accept the status or
because of something else. Wasn't this what you agreed
to in the very beginning? . . . .
[W]asn't this a reverse, sort or, agreement where
you all agreed on the final number? . . . What the Court
is doing is adding two points [to another co-defendant]
because he is a leader, and on the other hand reducing
the drugs a little bit so that you all end up in the same
place which was what you had bargained for.
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Cosme-Piri admitted to in his plea agreement. Once again, the
court was not bound by this admission, and could have determined
that he was responsible for less. Its refusal to do so was not
clearly erroneous. See Teeter, 257 F.3d at 28; Santos, 357 F.3d at
140.
2. Term of Supervised Release
Cosme-Piri advances two arguments in favor of vacating the
supervised release term of his sentence. First, he claims that the
five-year term in the written judgment violated his right to be
present at sentencing because the district court had announced a
contrary, three-year term, at sentencing.11 Second, Cosme-Piri
argues that the drug testing condition of his supervised release
improperly delegates authority to the probation officer.
We review Cosme-Piri's right to be present claim for harmless
error. United States v. Meléndez-Santana, 353 F.3d 93, 108 (1st
Cir. 2003), overruled on other grounds by United States v. Padilla,
415 F.3d 211 (1st Cir. 2005) (en banc). "A criminal defendant has
the right to be present at his own sentencing." United States v.
Vega-Ortiz, 425 F.3d 20, 22 (1st Cir. 2005). Thus, if a district
court's oral sentence materially conflicts with its subsequent
11
At sentencing the district judge stated, "Upon release from
confinement the defendant [Cosme-Piri] shall be placed on
supervised release for a term of at least three years under
[certain] terms and conditions." (Emphasis added). However, the
written judgment stated, "Upon release from imprisonment, the
defendant shall be on supervised release for a term of Five (5)
YEARS." (Emphasis added).
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written expression, the tendency is to honor the oral. Id.(quoting United States v. Cali, 87 F.3d 571, 579 (1st Cir. 1996)).
However, no material conflict exists where the defendant is on
notice that he is subject to the terms included in the written
judgment. Vega-Ortiz, 425 F.3d at 22-23 (citing United States v.
Tulloch, 380 F.3d 8, 12 (1st Cir. 2004)); see also United States v.
Ferrario-Pozzi, 368 F.3d 5, 8-9 (1st Cir. 2004) (finding no
material conflict between oral sentence and written judgment
imposing $3.7 million forfeiture where defendant had notice that
forfeiture of at least two million dollars would be component of
sentence).
While there was surely a conflict between the district court's
oral pronouncement of a three-year term of supervised release and
the five-year term included in the written judgment, there is
overwhelming evidence that Cosme-Piri knew well before the written
judgment was issued that he faced a five-year term of supervised
release and that the three-year term was announced in error.
First, and foremost, the statute criminalizing the drug offense to
which Cosme-Piri pled guilty mandates a supervised release term of
"at least five-years." See 21 U.S.C. § 841(b)(1)(A) (emphasis
added). While the mere existence of this mandatory minimum may
provide sufficient "constructive notice" that a five-year term
would apply, see Tulloch, 380 F.3d at 11-14, the five-year term was
also included in the plea agreement, explained to Cosme-Piri and
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accepted by him at the change of plea hearing, and reiterated in
the presentence investigation report.
At no point did Cosme-Piri object to the length of the
supervised release term. When the district court stated that it
was imposing a three-year term, in contravention of the statutory
minimum, the plea agreement, and the presentence investigation
report, it became incumbent upon Cosme-Piri to request further
clarification, which he did not do. See Tulloch, 380 F.3d at 14
n.7. Indeed, the need for clarification was especially acute in
this case, since the district court's oral pronouncement of a
three-year term at sentencing hearing was immediately preceded by
its reference to a five-year term.12 In this context, the district
court's isolated reference to a three-year term appears to have
been an inadvertent mistake. Although this reference was
erroneous, the error was harmless in light of the overwhelming
evidence that Cosme-Piri had notice that a five-year term would
apply. See Vega-Ortiz, 425 F.3d at 21-23.
12
The district court stated:
Based on a total offense level of 38, and criminal
history category one, the guideline imprisonment range in
this particular case is from 235 to 293 months, with a
fine range of twenty-five thousand to four million, plus
a supervised release term of not more than five years.
The Court will follow the plea agreement as
stipulated by the parties and sentence the defendant
accordingly.
(Emphasis added).
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Cosme-Piri's second challenge to the term of supervised
release likewise fails. Both at sentencing and in its written
judgment, the district court stated that Cosme-Piri's term of
supervised release would be subject to the following condition:
The defendant . . . shall submit to a drug test within
fifteen (15) days of release on supervised release, and
thereafter when so requested by the U.S. Probation
Officer.
Cosme-Piri argues that this condition improperly delegates
authority to the probation officer to determine the frequency and
quantity of drug testing.
In United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir.
2003), a panel of this court held that a district court commits
plain error by delegating to a probation officer the authority to
determine a defendant's drug-testing regimen while on supervised
release. Id. at 106 (citing 18 U.S.C. § 3583(d) (2000)).13 Sitting
en banc, our court overruled Meléndez-Santana to the extent that it
held that such an improper delegation would automatically rise to
the level of plain error, although the defendant was free to argue
13
18 U.S.C. § 3583(d) (2000) provides in relevant part:
The court shall also order, as an explicit condition of
supervised release, that the defendant refrain from any
unlawful use of a controlled substance and submit to a
drug test within 15 days of release on supervised release
and at least 2 periodic drug tests thereafter (as
determined by the court) for use of a controlled
substance.
(Emphasis added).
-22-
that the plain error requirements were met in the individual case.
United States v. Padilla, 415 F.3d 211, 220-23 (1st Cir. 2005) (en
banc). For the reasons stated in Padilla, we conclude that the
improper delegation that occurred here does not rise to the level
of plain error, since it neither affects substantial rights nor
"impugn[s] the fairness, integrity or public reputation of the
criminal proceeding as a whole." Id. at 220-23; see also Vega-
Ortiz, 425 F.3d at 22; United States v. Sanchez-Berrios, 424 F.3d
65, 81-82 (1st Cir. 2005), cert. denied, 126 S. Ct. 1105 (2006).
Accordingly, we decline to correct it.
C. Ortiz-Torres
Ortiz-Torres claims that, pursuant to Guideline § 3E1.1(a)
(2002), the district court should have awarded him a three-level
reduction for acceptance of responsibility instead of the two-level
reduction he received. It was Ortiz-Torres's burden to demonstrate
that he was entitled to the additional point reduction, and we will
reverse the withholding of such a reduction only if clearly
erroneous. United States v. Baltas, 236 F.3d 27, 37 (1st Cir.
2001). Initially, we recognize, as did the district court, that
Ortiz-Torres's request for a three-level reduction contradicts his
stipulation to a two-level reduction in his plea agreement.
However, like the district court, we conclude that even in the
absence of this stipulation, Ortiz-Torres was not entitled to a
three-level reduction because his guilty plea was untimely.
-23-
A defendant qualifies for a two-level reduction for acceptance
of responsibility under Guideline § 3E1.1(a) if he "clearly
demonstrates acceptance of responsibility for his offense." A
defendant may receive an additional level reduction by, inter alia,
"timely notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for
trial and permitting the government and the court to allocate their
resources efficiently." U.S.S.G, § 3E1.1(b)(2) (2002). As we have
previously recognized, "[t]he two-level reduction is for
contrition," while "the third level is for helping the authorities
save resources." United States v. Hines, 196 F.3d 270, 274 (1st
Cir. 1999); see also U.S.S.G. § 3E1.1, cmt. (n.2) (2002).
Ortiz-Torres argues that his acceptance of responsibility was
sufficiently timely and beneficial to the government to warrant a
three-level reduction in light of the numerous witnesses and
anticipated length of the trial the government and district court
were able to avoid. To earn a three-level reduction, a defendant
must give notice of his intent to plead guilty "at a sufficiently
early point in the process so that the government may avoid
preparing for trial," which will usually be "particularly early in
the case." U.S.S.G. § 3E1.1, cmt. n.6 (2002). Ortiz-Torres and
the bulk of his indicted co-conspirators entered into the package
plea deal after a jury had already been selected; the district
court concluded that this was not early enough in the process to
-24-
merit a three-level reduction.14 This determination was not clearly
erroneous. See United States v. Donovan, 996 F.2d 1343, 1345 (1st
Cir. 1993) (sustaining denial of three-level reduction for
defendant who pled guilty on the eve of trial).
D. Mattei-Albizu
Unlike his co-defendants, Mattei-Albizu was not a party to the
package plea agreement. Instead, he entered a straight plea of
guilty to conspiring to sell five kilograms or more of cocaine, as
alleged in the indictment, an offense that carried a statutory
minimum sentence of ten years. See 21 U.S.C. § 841(b)(1)(A)
(2000). He also admitted to participating in the conspiracy from
1997 until his September 2001 arrest.
The government stated at the change of plea hearing that if
the case had gone to trial, it would have proven beyond a
reasonable doubt that Mattei-Albizu conspired to distribute in
excess of 150 kilograms of cocaine and that he possessed a firearm
in connection to the charged drug trafficking offense. Mattei-
Albizu requested and received an evidentiary hearing to contest
these sentencing factors. At the hearing, the government presented
14
As the district court explained:
If the Court were to grant you three points that would
mean that everyone would wait until the jury is selected.
And the law is clear that three points are granted only
if it is timely. And a plea entered after the jury has
been selected is definitely not timely.
-25-
the testimony of two witnesses. The first was Victor Iglesias-
Moreno, a task force agent with the Ponce, Puerto Rico Drug
Enforcement Agency, who had investigated the La Plena drug point.
The second witness was Josué Camacho-Aponte, an unindicted co-
conspirator testifying as a material witness for the government,
who had participated in the La Plena drug point from 2000-2001.
Mattei-Albizu presented three witnesses to rebut any evidence that
he participated in a homicide.
Following the evidentiary hearings, the district court imposed
a two-level enhancement under Guideline § 2D1.1(b)(1)(2002) for
possession of a dangerous weapon during the commission of a drug-
trafficking offense, determined that Mattei-Albizu was responsible
for in excess of 150 kilograms of cocaine, and granted him a two-
level reduction for acceptance of responsibility under Guideline §
3E1.1(a)(2002). Based on a total offense level of 38 and a
criminal history category of IV, the applicable guideline
imprisonment range was 324 to 405 months. See Guideline § 2D1.1.
(2002). The district court sentenced Mattei-Albizu to 324 months'
imprisonment, the bottom of the guidelines range.
Mattei-Albizu contends that the drug-quantity determination
and firearm enhancement were unwarranted and that the district
court's criminal history calculation was in error. We review the
district court's interpretation of the sentencing guidelines de
novo and its findings of fact for clear error. United States v.
-26-
Caldwell, 358 F.3d 138, 142 (1st Cir. 2004).
1. Firearm enhancement
Mattei-Albizu challenges the two-level enhancement he received
for possession of a dangerous weapon during the commission of a
drug trafficking offense on the ground that the government failed
to establish that it was reasonably foreseeable to him that
firearms would be possessed in furtherance of the conspiracy. See
U.S.S.G. § 2D1.1(b)(1) (2002). He argues that the government
failed to prove that he was involved in any of the murders alleged
to have been committed by members of the La Plena drug trafficking
organization and that the district court found at sentencing that
there was insufficient evidence to link him to the murders. He
claims that without such proof the district court could not impose
the two-level enhancement for possession of a dangerous weapon.
Mattei-Albizu's argument would gain greater traction if the
government had stuck to its initial position: seeking a dangerous
weapon enhancement based on proof that he was involved in a drug-
related murder committed in furtherance of the charged conspiracy.
However, it abandoned that theory and instead sought the
enhancement under Guideline § 2D1.1(b)(1) by proving that "it was
reasonably foreseeable that a co-conspirator would possess a gun in
furtherance of the criminal activity." United States v. Casas, 356
F.3d 104, 129 (1st Cir. 2004); see also United States v. May, 343
F.3d 1, 7 (1st Cir. 2003). Thus, the question was not, as Mattei-
-27-
Albizu now argues, whether the government was able to prove his
involvement in a murder, but rather, whether it was reasonably
foreseeable to him that weapons would be used in furtherance of the
conspiracy.
The district court made a finding of reasonable forseeability
here, stating that it had "plenty of evidence" from which to
conclude that weapons were used by members of the conspiracy and
that this use of weapons was foreseeable to Mattei-Albizu. Agent
Iglesias-Moreno testified that members of the La Plena organization
carried a variety of weapons and handguns, with sellers carrying
weapons for "keeping everything under control" at the drug point,
and that he had seen weapons seized by police from members of the
organization. Unindicted co-conspirator Camacho-Aponte testified
that he and Mattei-Albizu were drug sellers, that sellers were
always armed at the drug point, and that he personally saw Mattei-
Albizu carrying weapons on several occasions when the two went out
"hunting" for members of rival drug gangs in order to kill them.
From this testimony, the district court could have concluded that
it was reasonably foreseeable to Mattei-Albizu that a dangerous
weapon would be possessed in furtherance of the conspiracy.
Pointing to Camacho-Aponte's criminal record, his hope of
obtaining a more lenient sentence in cases pending against him in
state court, and his desire to deter federal authorities from
filing charges against him for his admitted participation in a
-28-
drug-related murder, Mattei-Albizu argues that Camacho-Aponte's
testimony should have been completely disregarded as unreliable or,
at the very least, considered with caution. It is for the
sentencing court to assess the credibility of the witness, and it
is the for the appellate court to defer to that assessment unless
it is clearly erroneous. See, e.g., United States v. Nunez, 19
F.3d 719, 724 (1st Cir. 1996) (citing United States v. Brum, 948
F.2d 817, 819 (1st Cir. 1991)); see also 18 U.S.C. § 3742 (e)
(stating that "court of appeals shall give due regard to the
opportunity of the district court to judge the credibility of the
witnesses"). Indeed, in this case the district court specifically
credited Camacho-Aponte's testimony due to his personal involvement
in the illegal activities to which he testified, despite the
court's frank recognition of the negative credibility issues
surrounding the testimony.15 In light of the district court's
careful consideration of Camacho-Aponte's credibility, we cannot
15
The district court repeatedly referred to Camacho-Aponte as
a "bad hombre" who "admitted to murders in front of me" and
recognized that Camacho-Aponte had not been charged in the murder
to which he admitted participating. In one exchange with defense
counsel in this regard, the court stated:
I am very aware that the witness produced by the United
States, Mr. Camacho, would not qualify to be working in
the last ten years with Mother Teresa in Calcutta, nor
with Sister Isolina in Ponce. These were tough hombres
working together selling drugs, and they were armed
pursuant to the testimony of Mr. Camacho.
-29-
conclude that it was clear error for the court to rely upon it in
making its dangerous weapon finding. See, e.g., United States v.
Whalen, 82 F.3d 528, 531 (1st Cir. 1996) (holding district court's
finding not clearly erroneous despite crediting of testimony
district court characterized as problematic).
2. Drug quantity
Mattei-Albizu contends that there was insufficient evidence to
support the district court's determination that he should be held
responsible for 150 kilograms of cocaine, and therefore, he should
be held responsible only for the amount he admitted to at his
change of plea hearing. As an admitted participant in a drug
trafficking conspiracy, Mattei-Albizu is responsible under
Guideline § 1B1.3 for drugs he himself sold, transported, or
negotiated, as well as for drug quantities attributable to others
that are reasonably foreseeable to him in furtherance of the
conspiracy. See U.S.S.G. § 1B1.3 cmt. (n.2) (2002); May, 343 F.3d
at 6; United States v. Rivera-Maldonado, 194 F.3d 224, 228 (1st
Cir. 1999). The district court's finding as to the amount of drugs
reasonably foreseeable to Mattei-Albizu need only be supported by
a preponderance of the evidence and need not be exact so long as
the approximation represents a reasoned estimate. United States v.
Santos, 357 F.3d 136, 141 (1st Cir. 2004). We will set aside a
drug-quantity calculation only if clearly erroneous; if there are
two reasonable views of the record, the district court's choice
-30-
between the two cannot be considered clearly erroneous. Id.Mattei-Albizu argues that the testimony at sentencing
regarding the conspiracy-wide drug-quantity was too inconsistent,
and hence, too unreliable, to support an individualized drug-
quantity finding. Specifically, he points to the wide variance
between the conspiracy-wide amounts testified to by Agent Iglesias-
Moreno and co-conspirator Camacho-Aponte. Though the two witnesses
provided differing quantities, both testified to amounts greater
than the amount the district court attributed to Mattei-Albizu.
Based on drug seizures by other agents and information
provided by Camacho-Aponte, Agent Iglesias-Moreno testified that
approximately two kilos each of heroin, cocaine and crack were sold
out of the La Plena drug point each week. From this, Agent
Iglesias-Moreno estimated that from 1997 until 2001, the period in
which Mattei-Albizu admitted to participating in the conspiracy, at
least five hundred kilos of cocaine were distributed at La Plena.
However, Camacho-Aponte testified that he, like Mattei-Albizu and
other sellers at La Plena, sold one kilogram each of heroin,
cocaine, and crack every eight days. The government concedes that
an extrapolation of Camacho-Aponte's testimony yields a total of
approximately 45 kilograms of each narcotic per year, which
multiplied by the four to five years Mattei-Albizu admitted to
being a member of the conspiracy, yields an amount between 180 and
225 kilograms of each narcotic, a significantly lower total than
-31-
the "at least 500 kilograms" testified to by Agent Iglesias-Moreno.
The district court recognized that the drug quantity testified
to by Agent Iglesias was more than double that testified to by
Camacho-Aponte at the evidentiary hearing. However, it
specifically credited Camacho-Aponte's testimony and adopted
Camacho-Aponte's drug-quantity estimate in finding that Mattei-
Albizu was responsible for at least 150 kilograms of cocaine for an
offense level of 38. See U.S.S.G. § 2D1.1(c) (2002). Because
Camacho-Aponte's testimony directly supports this finding, we
cannot conclude that the district court's choice between two
plausible views of the record was clearly erroneous.16 See Santos,
357 F.3d at 141. Indeed, the district court's explicit recognition
that it was taking a cautious, "conservative approach" in adopting
the lower of the two estimates, sufficiently insulates this finding
from clear error attack. See United States v. Sklar, 920 F.2d 107,
113-14 (1st Cir. 1990).
3. Criminal history
Based on Mattei-Albizu's two prior offenses, the district
court assigned him a criminal history category of IV. Mattei-
16
Again, Mattei-Albizu seeks to impeach the testimony of
Camacho-Aponte on appeal, arguing that his bad acts and conflict of
interest made him an incredible and unreliable witness. Again, we
defer to the credibility assessments made by the sentencing court.
See United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993). For
the reasons stated with respect to the firearm enhancement, we
conclude that the district court's decision to credit Aponte's
testimony was not clearly erroneous.
-32-
Albizu claims that this was error because both prior offenses were
"relevant conduct" to the instant conspiracy, and therefore neither
should have been counted in calculating his criminal history
category. See U.S.S.G. §§ 4A1.2, 1B1.3 (2002). By his
calculation, if the district court had properly excluded both prior
offenses, his criminal history category would have been I, or if
the district court had counted one offense, but not the other, his
criminal history category would have been III; in any event, he
argues that his criminal history category should have been lower
than the one he received.
Mattei-Albizu was convicted for possessing narcotics in 1993
and 1994, and sentenced for both offenses in 1995. In connection
with the instant conspiracy prosecution, the government filed an
informative motion designating the 1993 and 1994 offenses as overt
acts in furtherance of the conspiracy. At his plea hearing,
Mattei-Albizu admitted to being a member of the charged conspiracy
from 1997 to 2001. Because Mattei-Albizu did not admit to being a
member of the conspiracy during the time he committed his prior
offenses, the presentence report recommended a criminal history
category of IV to take into account the two prior offenses, rather
than treating them as relevant conduct to the charged conspiracy.
Before presenting its evidence at sentencing, the government
informed the district court that it would not dispute Mattei-
Albizu's stipulation that his participation in the conspiracy began
-33-
in 1997. However, in so doing, it took the position that the 1993
and 1994 offenses could no longer be considered as overt acts in
furtherance of the conspiracy, and should therefore be counted
towards his criminal history category. Mattei-Albizu disputed the
government's contention that the prior offenses were outside the
scope of the conspiracy, citing the government's informative motion
in which it had specifically designated them as overt acts. In
response, the government conceded that if the case had proceeded to
trial it would indeed have sought to prove that Mattei-Albizu was
involved in the conspiracy as early as 1994 and would have
presented the second offense as an overt act in furtherance of the
conspiracy. However, the government reminded the court that the
case was not going to trial because of Mattei-Albizu's guilty plea,
which included the stipulation that he joined the conspiracy in
1997.
In attempting to sort out the parties' arguments, the district
court explained that the parties had to choose between treating the
prior offenses as overt acts or for criminal history purposes. The
district court chose the latter, adopting the recommendation of the
presentence report and assessing Mattei-Albizu six criminal history
points for the two prior offenses, as well as an additional two
points because he committed the instant offense within two years
after his release from imprisonment on the prior offenses. See
U.S.S.G. § 4A1.1(e) (2002). In light of Mattei-Albizu's
-34-
stipulation that he was only a member of the conspiracy from 1997
onward, we conclude that district court correctly counted the prior
offenses for criminal history purposes. There was no error in
holding Mattei-Albizu to the facts to which he stipulated.
III. Booker Claims
Appellants Ortiz-Torres, Cosme-Piri, Torres-Santiago,
Renovales-Vélez, and Mattei-Albizu each ask for their cases to be
remanded to the district court for re-sentencing in accordance with
United States v. Booker, 543 U.S. 220 (2005). Torres-Santiago,
Ortiz-Torres, Renovales-Vélez, and Cosme-Piri concede that they
failed to preserve their Booker claims in the district court; thus,
we review their sentences for plain error. See United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).17 Mattei-Albizu
argues that he preserved his Booker claim by objecting to the
sentencing court's drug-quantity determination. A defendant
preserves Booker error by arguing to the district court that it
erred under either Apprendi or Blakely or arguing that the
Guidelines were unconstitutional. United States v. McLean, 409
17
While conceding that he failed to preserve his Booker claim,
Torres-Santiago urges us to presume prejudice because the plain
error standard is "too restrictive." See, e.g., United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005). A panel of this circuit has
previously rejected this position, see Antonakopoulos, 399 F.3d at
79-80, and we are not free to disregard it. See United States v.
Serrano-Beauvaix, 400 F.3d 50, 56 (1st Cir. 2005) (Lipez, J.,
concurring).
-35-
F.3d 492, 505 (1st Cir. 2005) (quoting Antonakopoulos, 399 F.3d at
76), cert. denied, 126 S. Ct. 466 (2005). Mattei-Albizu raised no
such argument before the district court. Therefore he, like his
co-conspirators, must proceed under the plain error standard.
Under that standard, a defendant must show four things: (1)
that an error occurred, (2) that the error was clear or obvious,
(3) that it affected substantial rights, and (4) that the error
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings. Antonakopoulos, 399 F.3d at 75 (citing
United States v. Olano, 507 U.S. 725, 732-736 (1993)). Because the
district court treated the guidelines as mandatory at sentencing,
the first two requirements are satisfied. See, e.g., United States
v. Kornegay, 410 F.3d 89, 99 (1st Cir. 2005).18 At issue is whether
appellants satisfy the third and the fourth.
The operative question with respect to the third requirement
is “whether defendant has shown a reasonable probability the
sentencing judge would, in a non-mandatory Guidelines system, have
imposed a more lenient sentence.” United States v. Ayala-Pizarro,
407 F.3d 25, 29 (1st Cir.), cert. denied, 126 S. Ct. 247 (2005).
18
To the extent Ortiz-Torres, Cosme-Piri and Renovales-Vélez
argue that the Sixth Amendment entitles them to jury findings on
the factual predicates of the sentencing enhancements they
received, by stipulating to the enhancements as part of their
guilty pleas, they waived the right to a jury determination on
these issues. United States v. Sahlin, 399 F.3d 27, 32 (1st Cir.
2005); United States v. González-Mercado, 402 F.3d 294, 299 (1st
Cir. 2005).
-36-
We are not overly demanding in our proof; where the record or a
plausible proffer reasonably indicates that an advisory guideline
regime might have led the sentencing judge to a different result,
we will remand for resentencing. United States v. Lewis, 406 F.3d
11, 21 (1st Cir. 2005) (quoting United States v. Heldeman, 402 F.3d
220, 224 (1st Cir. 2005)). However, the mere assertion that the
district court would have imposed a more favorable sentence is
insufficient. McLean, 409 F.3d at 505. Instead, we require the
appellant to present "specific facts" to justify a Booker remand.
Kornegay, 410 F.3d at 100.
A. Torres-Santiago
Pursuant to a plea agreement, Torres-Santiago stipulated to
being responsible for between 50 and 150 kilograms of cocaine for
a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2) (2002). He
further stipulated to a two-level enhancement for possession of a
firearm in relation to the charged crime, a four-level enhancement
for his leadership role, and a two-level reduction for acceptance
of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3B1.1(a), 3E1.1(a)
(2002). With a criminal history category of I, the applicable
guidelines range would have been between 292 to 365 months; the
district court sentenced him to 336 months' imprisonment in
accordance with the plea agreement.
Torres-Santiago argues that consideration of the sentencing
factors of 18 U.S.C. § 3553(a) would have resulted in a more
-37-
lenient sentence under an advisory guideline regime. However, he
fails to indicate how any of the listed factors would have created
a reasonable probability of a more lenient sentence. See Kornegay,
410 F.3d at 100 (requiring "specific facts" to justify Booker
remand, not merely recitation of sentencing factors). Moreover,
the district court's comments at sentencing suggest that Torres-
Santiago would be far more likely to receive a harsher sentence,
not a more lenient one, on remand.19 See United States v. Mercado,
412 F.3d 243, 253 (1st Cir. 2005). Finding no prejudice, we affirm
the sentence imposed by the district court.
B. Cosme-Piri
Pursuant to a plea agreement with the government, Cosme-Piri
stipulated that he was responsible for "not less than one hundred
fifty kilograms of cocaine" and that "such amount should be the
19
Before sentencing Torres-Santiago to 336 months' imprisonment
pursuant to the plea agreement, the district court stated:
Now, I'm going to respect that [plea] agreement, but
I want you all to know that I barely accept it . . .
because this gentleman has a few, and I mean a few
murders pending in the state court.
You know very well that we're doing him a favor by
sentencing him today because I would very well, say,
let's wait until we see what happens with those murders,
and when he comes back, if he's ever found in one, he's
serving life. But that was the agreement and I'm going
to respect it. But I want him to know that I have the
option today to postpone until all criminal cases are
finished in the local court. And if he had any murder or
any manslaughter this is a lifer, you know that.
-38-
proper drug quantity to be considered" for sentencing purposes. He
also stipulated to a two-level enhancement for possession of a
firearm and a two-level reduction for acceptance of responsibility.
U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The parties agreed that
the applicable sentencing range under the guidelines was from 235
to 293 months' imprisonment; the district court sentenced him to
252 months as provided in the plea agreement.
Like Torres-Santiago, Cosme-Piri argues that consideration of
the § 3553(a) factors would have led to a more lenient sentence
under an advisory guidelines regime. However, also like Torres-
Santiago, Cosme-Piri puts forth no facts that he would offer on
remand to justify a more lenient sentence, save for those arguments
already considered and rejected by the district court at
sentencing. Although the district court was aware that it was not
required to honor the 252-month sentencing recommendation
stipulated to in the plea agreement, it did so nonetheless, even in
the face of Cosme-Piri's claim that he was less culpable than his
co-defendants due to his shorter participation in the conspiracy.
There is nothing to suggest that the district court would weigh the
duration of Cosme-Piri's participation in the conspiracy any
differently under an advisory guidelines regime.
C. Ortiz-Torres
Pursuant to a plea agreement, Ortiz-Torres stipulated that he
was responsible for at least 150 kilograms of cocaine. He also
-39-
stipulated to a two-level enhancement for possession of a firearm
and a two-level reduction for acceptance of responsibility.
U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The plea agreement
provided that the applicable guidelines range was between 235 and
293 months' imprisonment. However, Ortiz-Torres's presentence
report recommended a two-level leadership role enhancement that he
had not admitted to in the plea agreement, which would have
resulted in a guidelines sentencing range of 292 to 365 months,
well above the 252-month sentence stipulated to in the plea
agreement.
At sentencing, this discrepancy was brought to the attention
of the district court. In order to accommodate the leadership role
enhancement while still honoring the 252-month sentencing
recommendation, the court recommended that the parties amend the
plea agreement by reducing the drug quantity from 150 kilograms to
between 50 and 150 kilograms of cocaine.20 The parties followed the
district court's recommendation and amended the plea agreement
accordingly. Accepting the amended plea, the district court
sentenced Ortiz-Torres to the 252 months to which the parties had
agreed.
20
Specifically, the court stated:
This is what he agreed to, so why don't we briefly amend
the plea, decrease the drugs, we remain with the amount
[of] leadership that was found and it is a just solution
to all. I am willing to approve it in that fashion.
-40-
Ortiz-Torres points to nothing in the record suggesting a
reasonable probability that he would fare any better under an
advisory guidelines regime. Indeed, he would be hard-pressed to
make such a showing in light of the district court's stated desire
to honor the agreed to 252-month sentence, even in the face of a
contrary, and significantly higher, recommendation in the
presentence investigation report. The district court's statements
that it was "going out of [its] way" to honor the 252-month
recommendation suggests a reasonable probability that Ortiz-Torres
would receive an identical sentence on remand. Because Ortiz-
Torres shows nothing to the contrary, he fails to establish that he
was prejudiced by the sentencing court's enforcement of his
bargain.
D. Renovales-Vélez
In his plea agreement, Renovales-Vélez admitted responsibility
for at least 150 kilograms of cocaine for a base offense level of
38. U.S.S.G. § 2D1.1(c)(1). He further stipulated to a two-level
enhancement for possession of a firearm and a two-level reduction
for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1),
3E1.1(a) (2002). Assuming a criminal history category of I, which
the presentence report ultimately recommended, the applicable
guidelines sentencing range was between 235 and 293 months'
imprisonment. The government agreed to a sentence of 252 months'
imprisonment. Recognizing that Renovales-Vélez had been
-41-
incarcerated during a significant portion of the conspiracy, the
district court found him to be less culpable than his co-
defendants, and, notwithstanding the government's objection,
sentenced him to 238 months' imprisonment—fourteen months less than
the 252-month term the parties had stipulated to in the plea
agreement and three months above the bottom of the applicable
guidelines range.
To establish a reasonable probability of a more lenient
sentence on remand, Renovales-Vélez relies solely on the fact that
his sentence was fourteen months lower than the sentence the
government agreed to in the plea agreement. Although he argues
that this is evidence the district court would go even lower under
an advisory guidelines regime, it could just as easily indicate
that the district court would exercise its discretion in an
identical manner on remand. See Sahlin, 399 F.3d at 33 (finding no
possible claim of prejudice where defendant receives sentence lower
than that stipulated to in a plea agreement). Renovales-Vélez
points to no additional facts he would present to the district
court to convince it that it should go lower than the plea
agreement than it already did. See McLean, 409 F.3d at 505.
Moreover, the fact that the sentence he received was near the
bottom of the applicable guidelines range is insufficient, standing
alone, to establish prejudice. Kornegay, 410 F.3d at 99-100.
Under these circumstances, Renovales-Vélez fails to show he was
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prejudiced by the court's mandatory application of the sentencing
guidelines.
E. Mattei Albizu
Mattei-Albizu entered a straight plea of guilty to conspiring
to sell five kilograms or more of cocaine, as alleged in the
indictment, which carried a statutory minimum sentence of ten years
and a maximum of life imprisonment. See 21 U.S.C. § 841(b)(1). At
the change of plea hearing the government stated that if the case
had gone to trial it would have proven beyond a reasonable doubt
that Mattei-Albizu conspired to distribute in excess of five
kilograms of cocaine and that he possessed a firearm in relation to
the drug trafficking offense charged.
Following an evidentiary hearing on the drug-quantity and
firearm-possession sentencing factors, the district court imposed
a two-level enhancement for possession of a dangerous weapon during
the commission of a drug trafficking offense. U.S.S.G. §
2D1.1(b)(1) (2002). The court further determined that Mattei-
Albizu was responsible for in excess of 150 kilograms of cocaine
for a base offense level of 38, U.S.S.G. §§ 2D1.1(b)(1) (2002),
and granted him a two-level reduction for acceptance of
responsibility, U.S.S.G. § 3E1.1(a) (2002). Based on a total
offense level of 38 and a criminal history category of IV, the
applicable guideline imprisonment range was 324 to 405 months. The
district court sentenced Mattei-Albizu to 324 months' imprisonment.
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Mattei-Albizu contends that the disparity between his 324-
month sentence and the 108-month sentence received by one of his
coconspirators, Jorge Lagase,21 requires a remand so that he may be
resentenced in accordance with his "real conduct." As the district
court recognized, Lagase and Mattei-Albizu were not similarly
situated; thus, there is no reason for their sentences to be
similar. Lagase entered into a plea agreement much earlier in the
prosecution of the present conspiracy and, unlike Mattei-Albizu,
did not request an evidentiary hearing to contest all the facts
underlying the applicable sentencing factors. Stripped of its
sentencing disparity patina, Mattei-Albizu's Booker claim is
nothing more than a challenge to the district court's drug-quantity
determination, a challenge which we have already rejected. Because
he fails to show prejudice as a result of the district court's
mandatory application of the sentencing guidelines, we reject his
Booker claim as well.
21
Despite admitting to a supervisory role in the La Plena drug
trafficking organization, Lagase was held accountable for a lesser
quantity of cocaine: between 3.5 and 5 kilograms compared to
Mattei-Albizu's in excess of 150 kilograms. In addition, unlike
Mattei-Albizu, Lagase did not receive a two-level enhancement for
possession of a dangerous weapon. Accordingly, Lagase received a
significantly lower sentence than did Mattei-Albizu: 108 months'
imprisonment as compared to 324 months.
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IV. Conclusion
The convictions and sentences imposed by the district court
are affirmed.
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