United States v. Pacheco , 138 F. App'x 331 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1006
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO PACHECO,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Rafael Anglada-Lopez, by appointment of the court, on brief
for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón and
Nelson Pérez-Sosa, Assistant United States Attorneys, on brief for
appellee.
July 1, 2005
__________
*Of the Northern District of California, sitting by designation.
Per Curiam. On November 1, 2004, we affirmed the
conviction of defendant-appellant Pedro Pacheco for conspiring to
distribute controlled substances. See United States v. Del Rosario
et al., 388 F.3d 1, 5 (1st Cir. 2004). At the same time, we
affirmed the district court's imposition of a 235-month
incarcerative sentence. Id. at 13. The appellant petitioned for
certiorari. While his petition was pending, the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005).
The Court, in a routine order, thereafter granted the
petition for certiorari pro forma, vacated our judgment, and
remanded for further consideration in light of Booker. See Pacheco
v. United States, 125 S. Ct. 1866 (2005). We directed the parties
to submit supplemental briefs and proffers. Having received and
reviewed those materials, we again uphold Pacheco's sentence and
reinstate the judgment.
We need not tarry. The appellant argues, in substance,
that his case should be remanded for resentencing because the
district court sentenced him under a mandatory guidelines system.
We agree that such an error occurred. The appellant, however, did
not preserve this claim of error below; thus, his contentions are
reviewed for plain error. See United States v. Antonakopoulos, 399
F.3d 68 (1st Cir. 2005). Under that regime, the appellant must
show a "reasonable probability" that the district court would have
imposed a lower sentence had it realized that the sentencing
-2-
guidelines could be treated as advisory. See id. at 75; see also
United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
In this type of case, we are not "overly demanding as to
proof of probability." Heldeman, 402 F.3d at 224. Here, however,
the appellant has offered us nothing approaching such a showing.
See id. (requiring, at a bare minimum, a "reasonable indication
that the district judge might well have reached a different result
under advisory guidelines").
The district court said nothing that indicated any
dissatisfaction with the sentence that it imposed. The few factors
to which the appellant adverts in his effort to persuade us that
the court would have been more lenient are unconvincing. For
example, it is not enough to say that the sentencing judge is "very
. . . benevolent" (even though that is true). Nor is it enough
simply to point out that the district court sentenced the appellant
at the low end of the guideline sentencing range. Our case law
makes clear that such a circumstance, without more, is not
sufficient to show a reasonable probability of prejudicial Booker
error. See, e.g., United States v. Kornegay, ___ F.3d ___, ___
(1st Cir. 2005) [No. 04-1681, slip op. at 20-21]; United States v.
Figuereo, 404 F.3d 537, 541-42 (1st Cir. 2005). Here, there is no
"more."
We make one final point. The appellant suggests that he
is now "inclined" to accept responsibility for his criminal
-3-
activity, even though he did not do so up to (and at) the time of
sentencing. Passing the noncommittal nature of the statement, that
sort of change of heart is not a proper consideration in
determining whether a Booker error was prejudicial.
We need go no further. Because the appellant has failed
to convince us that there is any likelihood that the district
court, under an advisory guidelines system, would have imposed a
sentence below the sentence actually imposed, we again affirm his
conviction and sentence and order our earlier judgment reinstated.
So Ordered.
-4-