United States v. Escalera ( 2000 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1749
UNITED STATES,
Appellee,
v.
ORLANDO ESCALERA, a/k/a CHINO, a/k/a FRANCISCO A. LINEROS,
a/k/a MARCOS LUIS FONTANEZ RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Stahl, and Lipez,
Circuit Judges.
Charles W. Groce, III for appellant.
Kevin J. Cloherty, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
April 25, 2000
STAHL, Circuit Judge. The Defendant, Orlando Escalera,
appeals the sentence he received after pleading guilty to
various drug-related offenses. For the following reasons, we
affirm.
I.
Background
On October 9, 1997, a grand jury indicted Escalera,
Tonya Laythe, Scott Gilley, and Rolando Cartagena on a number of
drug-trafficking charges. Escalera faced one count of
conspiring to possess with intent to distribute cocaine, see 21
U.S.C. § 846, as well as nine counts of possessing with intent
to distribute and distributing cocaine, see id. § 841(a)(1).
On March 26, 1998, Escalera pleaded guilty to all
counts. Consistent with Rule 32 of the Federal Rules of
Criminal Procedure, a probation officer prepared a presentence
report ("PSR") that described the crimes that Escalera had
committed and also discussed his personal background. See Fed.
R. Crim. P. 32(b)(4). After considering the PSR, hearing
arguments from counsel, and giving the defendant the opportunity
to speak, the district court sentenced Escalera to seventy
months in prison plus five years of supervised release and a
$1000 special assessment.
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Under the United States Sentencing Guidelines ("the
Guidelines"), the district court arrived at this sentence using
a base offense level of twenty-six, see U.S.S.G. § 2D1.1(c)(7),
with a two-level increase because Escalera's crimes involved an
underage individual, see id. § 2D1.2(a)(1) ("the underage
enhancement"), and a two-level increase to reflect Escalera's
role in those offenses, see id. § 3B1.1(c) ("the role
enhancement"). The court also reduced Escalera's offense level
by three, finding acceptance of responsibility. See id. §
3E1.1(b). On appeal, Escalera challenges both of the sentencing
enhancements by the district court.
II.
Escalera now contends that the district court should
not have increased his base offense level to reflect the
involvement of an underage individual pursuant to § 2D1.2(a)(1)
of the Guidelines, even though he did not challenge this
enhancement at sentencing. In fact, when the district court
sought to confirm that the enhancement was appropriate,
Escalera's attorney explicitly said, "[y]es." Under these
circumstances, any objections to the enhancement have been
forfeited. See United States v. Pilgrim Market Corp., 944 F.2d
14, 21 (1st Cir. 1991). We will uphold the trial court's
decision to apply the enhancement unless that decision
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constitutes a plain error that affects substantial rights and
that would "seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings" if left unredressed.
Johnson v. United States, 520 U.S. 461, 467 (1997) (citations
and internal quotation marks omitted).
Given this standard of review, we turn to the merits.
Section 2D1.2(a)(1) of the Guidelines prescribes a two-level
increase to the base offense level of a defendant who involves
an underage individual in a drug-related offense. Although
Escalera argues that this provision applies only to some drug-
related crimes and not to others, such as the ones to which he
pleaded guilty, he concedes that another section of the
Guidelines would have provided an alternative basis for the same
sentencing enhancement. See U.S.S.G. § 3B1.4 (prescribing a
two-level enhancement if the defendant "used or attempted to use
a person less than eighteen years of age" in the commission of
an offense). Whether supported by § 2D1.2 or § 3B1.4 of the
Guidelines, it is evident that the district court had the
authority to increase Escalera's offense level by two if he used
someone under eighteen years old to commit the crimes at issue.
During Escalera's plea colloquy, the government made
an offer of proof that from at least May 5, 1997 through
September 29, 1997, Escalera, Laythe, and Gilley had conspired
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to traffic cocaine and had sold at least 599.6 grams of cocaine
in nine transactions to an undercover police officer. The
government specifically represented that Laythe was under
eighteen years old during part of this time and that she had
"sold cocaine with and at the direction of Mr. Escalera."
Escalera's PSR similarly stated that Laythe, who "was less than
18 years old for each of the cocaine transactions described in
Counts 2 through 8" of the Indictment, had "sold cocaine with
and at the direction of defendant Escalera." Although Escalera
provided the district court with a letter maintaining that
Laythe sometimes had sold drugs on her own, he never disputed
that she sometimes had sold drugs under his direction while she
was under eighteen.
On these facts, the district court properly concluded
that Escalera had used someone under eighteen years old in the
commission of an offense, thereby warranting a two-level
increase in his base offense level. There was no plain error.
See Johnson, 520 U.S. at 467.
III.
Escalera also argues that the district court erred in
applying the role in the offense enhancement to his sentence.
Before reaching the merits of this claim, we again must consider
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whether Escalera has preserved the issue for full appellate
review.
Before Escalera pleaded guilty, the government made an
offer of proof that detailed his involvement in the drug-
trafficking conspiracy. In particular, the government
represented that from at least May 5, 1997 through September 29,
1997:
Laythe sold cocaine with and at the
direction of Mr. Escalera. Mr. Escalera
arranged for the receipt of cocaine from his
source, and Laythe would make and receive
telephone calls to arrange the sale of that
cocaine and then deliver the cocaine to
customers. Laythe received payment for the
cocaine which she then gave to Escalera, and
she acted on his behalf as an interpreter.
When asked, Escalera advised the district court that he agreed
with this proffer and that he had nothing to add to it.
Escalera's PSR confirmed that Escalera had been the
"decision-maker and leader of the conspiracy." It also
indicated that Escalera had directed not only Laythe but also
Gilley, Cartagena, and an unnamed source of their cocaine
supply. Because the conspiracy appeared to involve five
participants, the PSR urged the district court to apply a four-
level enhancement to Escalera's base offense level. See
U.S.S.G. § 3B1.1(a) (prescribing a four-level increase "[i]f the
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defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive").
Rather than challenging whether he had played a
leadership role in the conspiracy, Escalera merely argued that
a two-level instead of a four-level role enhancement was
appropriate because it was unclear exactly how many other
participants he had organized or supervised in addition to
Laythe and Gilley. See U.S.S.G. § 3B1.1(c) (prescribing a two-
level increase "[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity" and less than
five participants were involved). The government agreed with
Escalera's position, and the district court accepted it,
imposing only a two-level role enhancement.
By asking the district court to impose a two-level role
enhancement at sentencing, Escalera almost certainly waived his
right to object to that enhancement on appeal. See United
States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996) ("A party
waives a right when it makes an intentional relinquishment or
abandonment of it." (citations and internal quotation marks
omitted)). But even if Escalera's position at sentencing fell
short of an actual waiver, he unquestionably forfeited his
objections to the enhancement by failing to raise them until
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now. As a result, we review the propriety of the two-level role
enhancement only for plain error. See Johnson, 520 U.S. at 467.
Escalera's PSR supported the conclusion that the
defendant had been involved in a drug-trafficking conspiracy in
which he controlled a source of supply and directed Laythe,
Gilley, and possibly others to sell cocaine on his behalf.
Although Escalera argued that Laythe and Gilley sometimes had
sold cocaine for their own benefit, he did not dispute that they
sometimes had sold drugs under his direction. Thus, in the
absence of any meaningful evidence to the contrary, the district
court was free to credit the PSR insofar as it suggested that
Escalera had played a leadership role in the conspiracy. See
United States v. Morillo, 8 F.3d 864, 872 (1st Cir. 1993)
("Facts contained in a presentence report ordinarily are
considered reliable evidence for sentencing purposes."). Having
made the requisite factual findings, the district court properly
applied a two-level role enhancement under § 3B1.1(c) of the
Guidelines. There was no plain error. See United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995) ("[B]attles over a
defendant's status and over the scope of the criminal enterprise
will almost always be won or lost in the district court.").
IV.
Conclusion
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For the foregoing reasons, we affirm the district
court's sentence.
Affirmed.
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