DocketNumber: 92-1142
Filed Date: 7/28/1992
Status: Precedential
Modified Date: 9/21/2015
July 28, 1992 [NOT FOR PUBLICATION]
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No. 92-1142
UNITED STATES,
Appellee,
v.
WILFREDO BARRETO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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Francisco M. Dolz-Sanchez on brief for appellant.
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Daniel F. Lopez-Romo, United States Attorney, and Warren Vazquez,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendant appeals his sentence. He
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claims that the district court committed clear error in
finding him to be "an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive," U.S.S.G. 3B1.1(a), and in enhancing
his sentence four levels pursuant to that provision. We
affirm.
I. BACKGROUND
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Appellant Wilfredo Barreto was indicted with four
co-defendants on two counts: conspiring to possess with
intent to distribute multi-kilo quantities of marijuana in
violation of 21 U.S.C. 846 (count one) and possession with
intent to distribute 85 kilograms of marijuana in violation
of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2 (count two). The
indictment characterized appellant and co-defendant Carmelo
Rosado as "organizers" and the remaining three co-defendants
as "couriers." After two days of testimony by the
government's witnesses, appellant entered a plea agreement in
which he agreed to plead guilty to count one of the
indictment and the government agreed to request the dismissal
of count two against him. On September 3, 1991, appellant
pled guilty to count one after a hearing before the district
court.
Pursuant to Rule 418 of the Local Rules of the
United States District Court for the District of Puerto Rico,
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the government filed a statement of facts with the district
court. Appellant signed onto the government's statement
rather than prepare his own. The facts contained therein are
as follows. During December 1990, appellant conspired with
four other persons to possess with intent to distribute
marijuana. On December 26, 1990, appellant purchased airline
tickets for co-defendant Reinaldo Cordero-Nieves to travel to
San Diego, California, to pick up marijuana and transport it
back to San Juan, Puerto Rico. According to the statement,
appellant also purchased airline tickets for "other
individuals." Co-defendant Carmelo Rosado purchased airline
tickets on the same day for co-defendants Reinaldo Rodriguez-
Vargas and Anibal Santiago-Martinez to travel to San Diego
and back for the purpose of transporting the marijuana. On
December 29, 1990, co-defendants Cordero-Nieves, Rodriguez-
Vargas and Santiago-Martinez were travelling between San
Diego, California and Puerto Rico when their luggage was
intercepted and searched pursuant to warrants. The searches
uncovered approximately 85 kilograms of marijuana.
The sentencing hearing was held on January 13,
1992, before the same judge who presided over the trial. The
district court determined a base offense level of 24, given
that 85 kilograms of marijuana had been seized. U.S.S.G.
2D1.1(c) and 2D1.4. It then enhanced the base offense level
by four levels pursuant to U.S.S.G. 3B1.1(a) for
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appellant's role as an organizer or leader of five or more
participants. The court reduced the offense level by two
levels for appellant's acceptance of responsibility, U.S.S.G.
3E1.1(a), arriving at a total offense level of 26. At
criminal history category I, the relevant guideline called
for 63 to 78 months. The court sentenced appellant to 70
months imprisonment and four years supervised release and
imposed a special monetary assessment of $50.
The district court made the following findings at
the sentencing hearing in support of its decision to enhance
appellant's base offense level for his role in the offense:
1) appellant "took affirmative steps to purchase the airline
tickets for his co-defendants," and 2) appellant "imparted
instructions to the couriers relative to the transporting and
delivering of the marijuana seized." To support its finding
that appellant was an organizer or leader, the district court
also adopted the Presentence Report (PSI) and two addenda
thereto prepared by the probation officer.
The PSI set forth the facts of the case in somewhat
more detail than the government's statement of facts filed
pursuant to Local Rule 418. The PSI stated that Cordero-
Nieves, Rodriguez-Vargas, Santiago-Martinez and others "were
instructed to travel round-trip from Puerto Rico to San
Diego, California, to bring luggage loaded with marijuana for
Carmelo Rosado and Wilfredo Barreto." The PSI also asserted
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that on December 26, 1990, U.S. Customs officers obtained a
search warrant for luggage checked in by appellant to the
flight from San Juan to San Diego (via Nashville, Tennessee).
The suitcase was searched and found to contain $105,590.00 in
cash. The PSI noted that "pursuant to the governmental
authorities," appellant and Rosado were the organizers and
leaders of the scheme "since they arranged for the group of
couriers to travel to San Diego, California, to pick up the
marijuana."
Appellant filed a partial opposition to the PSI in
which he sought to clarify certain alleged factual
inaccuracies and contested the PSI's acceptance of the
government's characterization of the appellant as an
organizer or leader. Appellant also argued that his recent
misfortunes in his career as an amateur boxer and his
pregnant wife's ill health warranted a downward departure
from the guidelines. The probation officer, pursuant to
Local Rule 418, prepared two addenda to the PSI in response
to appellant's opposition. The addenda reconfirmed the PSI's
conclusion that the facts warranted enhancement for
appellant's role in the offense as an organizer or leader.
II. DISCUSSION
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On appeal, Barreto contests both the district
court's factual findings underlying the four-level
enhancement and the district court's interpretation of the
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underlying facts to find that appellant is an organizer or
leader within the meaning of U.S.S.G. 3B1.1(a). We review
the district court's determination of the appellant's role in
the offense only for clear error. United States v. Panet-
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Collazo, 960 F.2d 256, 261 (1st Cir. 1992); United States v.
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Akitoye, 923 F.2d 221, 227 (1st Cir. 1991); United States v.
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Ocasio, 914 F.2d 330, 333 (1st Cir. 1990); United States v.
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Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.) cert. denied 493
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U.S. 862 (1989); 18 U.S.C. 3742(e).
Factual Findings
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Appellant disputes the court's finding that he had
purchased airline tickets for his co-defendants. He argues
_
that the evidence was that he purchased an airline ticket
only for co-defendant Cordero-Nieves. Second, he contests
the court's finding that he instructed the co-defendants
regarding the transportation and delivery of the marijuana.
He states that this information was not included in the PSI
or its addenda.
Appellant argues that he only purchased an airline
ticket for Cordero-Nieves. The Government's Statement of
Facts filed with the plea agreement and executed by the
appellant pursuant to Local Rule 418, however, states that
"on or about December 26, 1990, defendant Wilfredo Barreto
purchased airline tickets for defendant Reinaldo Cordero-
Nieves . . . , and other individuals." At trial, there was
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evidence introduced that appellant purchased airline tickets
for several persons. Appellant's attorney stated at the
sentencing hearingthat theappellant had bought"some tickets."
The evidence does indicate that of the persons for
whom appellant purchased tickets, only Cordero-Nieves was
named as a co-defendant in the indictment. The district
court apparently relied upon the PSI's statement that
"Carmelo Rosado and Wilfredo Barreto purchased tickets for
[co-defendants] and other individuals." Even if the court
erred in stating that appellant "took affirmative steps to
purchase the airline tickets for his co-defendants," any such
_
error is harmless. Appellant purchased airline tickets for
himself and at least four other persons. At least two of
those other persons were identified at trial as part of the
group which met at the airport on December 26, 1990 to travel
to San Diego. The indictment charges appellant with
conspiring with his co-defendants "and with diverse other
persons." Appellant's leadership status is not diminished by
the Grand Jury's failure to indict all of the co-conspirators
for whom the appellant purchased tickets. Any error in the
court's finding with respect to the status of the persons for
whom appellant purchased tickets is harmless.
Appellant objects to the district court's finding
that he "imparted instructions to the couriers relative to
the transporting and delivering of the marijuana seized" on
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the ground that this information did not appear in the PSI or
its addenda. The PSI, however, states that Carmelo Rosado
and appellant purchased airline tickets for the co-defendants
and others and that "they were instructed to travel round-
trip from Puerto Rico to San Diego, California, to bring
luggage loaded with marijuana for Carmelo Rosado and Wilfredo
Barreto." Viewed in isolation, the "they" in the last quoted
phrase may be ambiguous. "They" could include appellant, in
which case someone other than appellant was doing the
instructing. On the other hand, "they" could reference the
three couriers alone, in which case it is reasonable to
conclude that appellant and Carmelo Rosado, the intended
recipients of the marijuana, were the ones giving
instructions. The district court ostensibly adopted the
latter interpretation. For several reasons, that was a fully
permissible construction.
First, the PSI also states that "pursuant to the
governmental authorities, [the appellant and Carmelo Rosado]
arranged for the group of couriers to travel to San Diego,
California, to pick up the marijuana." The district court
could reasonably conclude that appellant instructed the co-
defendants as part of "arranging for" their travel to pick up
the drugs.
Second, in applying the sentencing guidelines, the
district court was not restricted to the evidence presented
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in the PSI. The court could rely on any information it had
access to, provided that the information had "sufficient
indicia of reliability to support its probable accuracy."
U.S.S.G. 6A1.3. See United States v. Zuleta-Alvarez, 922
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F.2d 33, 36 (1st Cir. 1990), cert. denied, 111 S.Ct. 2039
____________
(1991). Evidence introduced at trial and subject to cross-
examination certainly satisfies this test.
At trial, government witnesses testified that on
December 26, 1990, appellant met with the co-defendants and
others at the airport, distributed airline tickets to them
and departed San Juan with the group on a plane bound for San
Diego, California (via Nashville, Tennessee). The government
also introduced evidence at trial that a suitcase with a tag
bearing appellant's name and checked onto the flight to San
Diego was intercepted and found to contain more than $100,000
in cash. The district court could reasonably have concluded
from this testimony that appellant, who purchased and
distributed airline tickets and whose suitcase contained the
large amount of cash necessary for a drug purchase, was the
person immediately in control of the job in progress and
hence the one giving instructions to the co-defendants
regarding the transport and delivery of the drugs.1
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1. At his guilty plea hearing, appellant appeared to admit
that he also purchased the marijuana in San Diego:
Mr. Barreto: We agreed among each other to bring this
marijuana into Puerto Rico.
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Therefore, the district court's conclusion that appellant
imparted instructions to his co-defendants is supported by
the evidence and is not clearly erroneous.
Interpretation of the Facts
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In addition to appellant's challenge to the
district court's factual findings, he also contests the
court's interpretation of those facts to conclude that he is
an organizer or leader. The Sentencing Guidelines direct the
district court to consider the following factors in
distinguishing a leader or organizer from a manager or
supervisor:
the exercise of decision making
authority, the nature of participation in
the commission of the offense, the
recruitment of accomplices, the claimed
right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercised over others.
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The Court: And you bought the tickets?
Mr. Barreto: With someone else.
The Court: And the group went to San Diego?
Mr. Barreto: Yes.
The Court: And you bought the marijuana there in San
Diego?
Mr. Barreto: Yes.
The Court: And the marijuana you brought back to
Puerto Rico?
Mr. Barreto: Other co-defendants.
There is some ambiguity in this exchange, however, as to
whether "you" refers to appellant himself or to the group.
The PSI made no reference to that admission and we have not
relied on it in determining that the district court's factual
findings are supported by the evidence.
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U.S.S.G. 3B1.1, comment. (n.3); United States v. Sostre,
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No. 91-1918, slip op. at 12 (1st Cir., June 29, 1992); United
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States v. Sabatino, 943 F.2d 94, 101 (1st Cir. 1991). It is
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not necessary that the court find evidence of all of the
factors before enhancing a defendant's sentence for his role
as a leader or organizer. United States v. Preakos, 907 F.2d
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7, 9 (1st Cir. 1990).
The district court's findings that appellant
purchased airline tickets and instructed the co-defendants
regarding the transportation of the drugs focused on the
appropriate factors. See United States v. Panet-Collazo, 960
___ _____________ _____________
F.2d at 261. From these factual findings, and given the
trial testimony summarized above, it was reasonable for the
district court to infer that appellant exercised a
significant degree of decision-making authority in organizing
the transportation of the drugs and exercised control over at
least some of his co-conspirators.
In light of these reasonable inferences, the
district court's decision to enhance appellant's sentence for
his role in the offense as an organizer or leader was not
clearly erroneous. See United States v. Preakos, 907 F.2d at
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9-10 (enhancement not clearly erroneous where defendant
"exercised a high degree of decision-making authority in
organizing a number of cocaine shipments from Florida to
Maine" and "directed [his distributors] with regard to their
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role in the various cocaine shipments"); United States v.
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Ortiz, 878 F.2d 125, 127 (3d Cir. 1989) (concluding that
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enhancement not clearly erroneous where defendant "made the
decision regarding the place, the quantity and the price to
be paid for the cocaine" and "gave directions to some of the
others involved in the transaction"); United States v.
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Castro, 908 F.2d 85, 90 (6th Cir. 1990) (upholding
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enhancement where defendant directed co-defendants to
transport drugs); cf. United States v. Sostre, No. 91-1918,
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slip op. at 13-14 (finding that enhancement for managerial
role in the offense was clearly erroneous where defendant was
merely a "steerer," directing buyers to sellers, but did not
exercise control over any of the co-defendants); United
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States v. Fuller, 897 F.2d 1217, 1221 (1st Cir. 1990)
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(finding that enhancement for defendant's role in offense of
"organizer, leader, manager or supervisor" was clearly
erroneous where defendant did not exercise control over or
organize others in the commission of the offense).
At his sentencing hearing, appellant offered an
alternative interpretation of the facts. He argued that a
leader or organizer would not purchase airline tickets or put
his name on luggage filled with cash since such a person does
not want to be identified. Appellant asserted, instead, that
he was paid $1,000 to purchase the airline tickets and that
the drugs were to be delivered to someone else, to whom they
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belonged. In other words, appellant took the position that
he was working for someone else who was the true leader or
organizer and that appellant's limited responsibilities were
insufficient to make him a leader or organizer. Appellant
did not offer to submit any evidence as to the identity of
his alleged boss or the payment of $1,000 although he was
given numerous opportunities to make such an offer in
response to the PSI and at his sentencing hearing.2
Appellant's argument that his role in purchasing
tickets and the presence of his name on the tag on a luggage
full of cash imply that he was not a leader or organizer may
be reasonable. However, the district court's interpretation
of the evidence as indicating a leadership role on the part
of appellant is also reasonable. "The district court was
entitled to choose between these reasonable interpretations
of the evidence." United States v. Iguaran-Palmar, 926 F.2d
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7, 11 (1st Cir. 1991). "Where there are two permissible
views of the evidence, the factfinder's choice between them
cannot be clearly erroneous." Anderson v. City of Bessemer
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City, 470 U.S. 564, 574 (1985); United States v. Diaz-
____ ______________ _____
Villafane, 874 F.2d at 49.
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2. Even if the appellant had identified a co-conspirator who
was above himself in the chain of command, this would not
preclude a finding that the appellant was an organizer or
leader. To be an organizer or leader within the meaning of
U.S.S.G. 3B1.1(a), it is not necessary to be the
participant most involved in the commission of the offense.
United States v. Ortiz, 878 F.2d 125 (3d Cir. 1989).
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Regardless whether we would have reached the same
conclusion about appellant's role in the offense as did the
district court, we are mindful of our duty to "give due
deference to the district court's application of the
guidelines to the facts." 18 U.S.C. 3742(e); United States
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v. Veilleux, 949 F.2d 522, 524 (1st Cir. 1991); see also
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United States v. Dietz, 950 F.2d 50, 52 (1st Cir. 1991)
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("Because role-in-the-offense determinations are necessarily
fact-specific, 'considerable respect [must] be paid to the
views of the nisi prius court.'" (citation omitted)).
III. CONCLUSION
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The district court's determination that appellant
was an organizer or leader within the meaning of U.S.S.G.
3B1.1(a) focused on the appropriate enhancement factors and
is supported by the record. We find no clear error and,
therefore, summarily affirm pursuant to 1st Cir. Loc. R.
27.1.
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United States v. Adegboyega Akitoye , 923 F.2d 221 ( 1991 )
United States v. Leonard R. Fuller , 897 F.2d 1217 ( 1990 )
United States v. Gilberto Ocasio, A/K/A Gilberto Ocasio ... , 914 F.2d 330 ( 1990 )
United States v. Diane Sabatino, United States of America v.... , 943 F.2d 94 ( 1991 )
United States v. Timothy Lee Veilleux , 949 F.2d 522 ( 1991 )
United States v. Pablo Panet-Collazo, United States v. ... , 960 F.2d 256 ( 1992 )
United States v. Alberto Castro (89-1528), Ignacio Forte (... , 908 F.2d 85 ( 1990 )
United States v. Angel Ortiz , 878 F.2d 125 ( 1989 )
United States v. William A. Dietz , 950 F.2d 50 ( 1991 )
Anderson v. City of Bessemer City , 105 S. Ct. 1504 ( 1985 )