
USCA1 Opinion

	




                              _________________________          No. 95-1908                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                   CEFERINO CRUZ,                                Defendant, Appellant.                             __________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Richard G. Stearns, U.S. District Judge]                             __________________________                                       Before                             Selya, Acting Chief Judge,*                            Bownes, Senior Circuit Judge,                              Boudin, Stahl and Lynch,                                   Circuit Judges.                             __________________________               Diana                      L.                         Maldonado, Federal Defender Office, on brief for          appellant.               Donald                       K.                          Stern, United States Attorney, Carole                                                                S.                                                                    Schwartz          and Kevin P. McGrath, Assistant United States Attorneys, on brief          for appellee.                             __________________________                                    July 28, 1997                             __________________________                                   OPINION EN BANC                             __________________________          __________________________          *Chief Judge Torruella did not participate in this proceeding.                     SELYA, Acting                                     Chief                                           Judge. This appeal involves a          solitary issue: the propriety  vel non of the sentencing court's          decision to enhance the defendant's offense level (and, therefore,          increase the ensuing sentence) by reason of what the court deemed          to be the defendant's aggravating role in the offense of          conviction.  See USSG S3B1.1(c).                    The appeal was originally argued to a panel of this          court. On April 30, 1997, the panel, by a two-to-one vote,          determined that the sentencing court had committed clear error in          its application of the role-in-the-offense guideline. Because          role-in-the-offense determinations are a frequent source of          appellate litigation, and because the panel decision seemed out of          line with our customary approach to such determinations (and,          therefore, likely to create confusion in future cases), we elected          to reconsider the matter en banc. To that end, we withdrew the          panel opinion and solicited supplemental briefs from the parties.          We now uphold the district court's application of the USSG          S3B1.1(c).                    We cull the facts from the plea colloquy, the presentence          investigation report (PSI Report), and the transcript of the          sentencing hearing.  See United States v. Tejada-Beltran, 50 F.3d          105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d 50, 51          (1st Cir. 1991). In conducting this tamisage, we are mindful that          a sentencing court may consider facts contained in the PSI Report          as reliable evidence.  See United                                             States v. Morillo, 8 F.3d 864,          872 (1st Cir. 1993). Moreover, for sentencing purposes the court                                          3          may rely upon evidence adduced at a coconspirator's trial as long          as the defendant receives notice prior to its use and has the          opportunity to challenge its reliability.   See United                                                                  States v.          McCarthy, 961 F.2d 972, 979 (1st Cir. 1992);    United                                                                  States v.          Berzon, 941 F.2d 8, 19 (1st Cir. 1991). Of course, this court may          also consider facts which have been established by these methods.                    On July 28, 1994, the defendant, Ceferino Cruz, greeted          Pam Mersky, an undercover Drug Enforcement Administration (DEA)          agent, as she entered La Tambora, a restaurant in Lawrence,          Massachusetts, which Cruz owned and operated. The defendant had          met Mersky one week earlier when he sold her 30.7 grams of crack          cocaine and a handgun.   Alejandro Vega, later indicted as a          coconspirator, approached Mersky inside the restaurant. Mersky          told him that she wanted to buy crack cocaine. Vega initially          feigned ignorance, but Mersky persisted. When she stated that the          defendant previously had supplied her with crack, Vega engaged the          defendant in a private conversation and thereafter told Mersky to          come back in 45 minutes.                    Mersky returned to La Tambora to find Vega, but not the          defendant, present. A few minutes later Jeanette Marquez joined                                             Here, as the panel acknowledged, the PSI Report furnished the          defendant the advance notice that our case law requires. At any          rate, the facts which are critical to a proper resolution of this          appeal derive directly from the PSI Report and the proceedings in          which this defendant was personally involved.               This purchase took place at La Tambora, as did several earlier          purchases of drugs, firearms, and ammunition effectuated by a          confidential DEA informant.                                          4          them. Vega introduced Marquez as the defendant's girlfriend.          Marquez (who was 14 years old and pregnant) wore a necklace          showcasing the defendant's first name. Marquez delivered the crack          cocaine to Mersky, and Mersky paid Vega for it. She then told Vega          that she wanted to purchase a gun. Vega replied that "he" didn't          realize that Mersky wanted a gun, too. In context, a factfinder          reasonably could believe that the pronoun "he" referred to Cruz.          In any event, Vega promised to contact Mersky after making further          inquiries.                    Later that afternoon Vega told Mersky that he would sell          her a gun. Mersky met Vega a few blocks away from the restaurant          and they walked to La Tambora together. Once inside, Vega          conversed privately with the defendant and thereafter handed Mersky          a bag containing a gun. The gun was frigid, suggesting that it had          just been removed from a freezer or other cold storage.                    Two subsequent events complete the picture. On August 3,          Vega consulted the defendant before providing Mersky with bullets.          On August 16, after Mersky expressed an interest in acquiring more          crack and more firepower, Vega stated that guns were available          immediately but that the crack had to be delivered. The pair          strolled to La Tambora. Vega told Mersky to go behind the food          counter. Marquez hailed the defendant. He appeared, saw Vega and          Mersky, together, walked away without engaging in any conversation,          and returned moments later with a bag containing two guns. The          defendant handed the bag to Vega who, in turn, handed it to Mersky.          She then inspected both weapons and purchased one of them.                                          5                    Mersky and Vega then waited for the crack. When the          courier (Sixto Garcia) arrived, he nodded to them, but met          privately with Cruz. Mersky and Vega walked behind the food          counter; Garcia handed Cruz a plastic bag containing the crack          cocaine; Cruz gave the bag to Mersky; and Mersky, in turn, paid          Vega for it.                    Cruz was indicted and convicted on charges of conspiracy          to possess cocaine base (i.e., crack cocaine) with intent to          distribute, see 21 U.S.C. S 846, and conspiracy to sell firearms          illegally, see 18 U.S.C. S 922(a)(1)(A). The drug offense drove          the sentencing calculus. The PSI Report urged, inter alia, a two-          level upward adjustment for the defendant's leadership role.  See          USSG S3B1.1(c). In calculating the guideline sentencing range          (GSR), the district court accepted this suggestion (overriding the          prosecutor's contrary recommendation) and increased the defendant's          offense level accordingly. This adjustment, together with other          computations (none of which is challenged here), yielded a GSR of          135 to 168 months. The lower court then imposed an incarcerative          sentence of 165 months. It is undisputed that, absent the role-in-          the-offense adjustment, the GSR (and presumably the sentence) would          have been less onerous.                    The determination of an individual's role in committing          an offense is necessarily fact-specific.    See United                                                                  States v.          Graciani, 61 F.3d 70, 75 (1st Cir. 1995). Accordingly, appellate                                             Under the applicable grouping rules, the counts of conviction          are treated as separate units.  See USSG S3D1.2.                                          6          review must be conducted with considerable deference. Absent an          error of law                         and it is not seriously suggested that such an error          infected the sentencing process in this case      the sentencing          court's determinations are to be set aside only for clear error.          See id.                    Role-in-the-offense adjustments address concerns of          relative responsibility.  See USSG S3B1.1(c), comment. (backg'd).          In this vein, the guideline provides, among other things, that "if          the defendant was an organizer, leader, manager, or supervisor in          any criminal activity" involving one to three other participants,          the offense level should be increased by two levels. USSG          S3B1.1(c). Such an increase is justified if the sentencing court          supportably finds that (1) the criminal enterprise involved at          least two complicit participants (of whom the defendant may be          counted as one), and (2) the defendant, in committing the offense,          exercised control over, organized, or was otherwise responsible for          superintending the activities of, at least one of those other          persons. See                        Morillo, 8 F.3d at 872;                                                United States                                                             v.                                                                 Savoie, 985          F.2d 612, 616 (1st Cir. 1993); United States v. Akitoye, 923 F.2d          221, 227 (1st Cir. 1991). The government bears the burden of          proving that a defendant qualifies for an upward role-in-the-                                             The fact that the government had agreed not to request the          enhancement, and did not do so, does not compress the district          court's discretion. The sentencing judge has the ultimate          responsibility for the sentence and may decide to pursue matters in          the teeth of an agreement by both sides to go in a different          direction.  See United                                  States v.  Vaknin, 112 F.3d 579, 585 (1st          Cir. 1997).                                          7          offense adjustment, and must carry that burden by a preponderance          of the evidence.  See  United                                          States v. Voccola, 99 F.3d 37, 44          (1st Cir. 1996); United                                   States v.  Ortiz, 966 F.2d 707, 717 (1st          Cir. 1992).                    In this instance, we think that the evidence, viewed as          a whole, supports the district court's finding. The record          suggests that Cruz was at the center of a well-organized series of          drug and weapon sales, conducted at or through the restaurant that          he owned and operated. The evidence also suggests that Cruz          involved various individuals not only as facilitators but also as          go-betweens in an effort to limit his own apparent involvement.          This pattern is familiar in many sophisticated but illegal          transactions.  See, e.g., United                                            States v. Catlett, 97 F.3d 565,          569-70 (D.C. Cir. 1996);                                   United States                                                v.                                                    Evans, 92 F.3d 540, 541-          42 (7th Cir.), cert. denied, 117 S. Ct. 537 (1996).                    The district judge made a specific finding that Cruz was          "the motivating principal in this drug distribution scheme" and          that he was a manager vis-a-vis both Vega and Marquez. Leaving          Vega aside, if Cruz supervised Marquez in connection with the July          28 transaction, that incident alone would provide an adequate basis          for the enhancement.  See  Voccola, 99 F.3d at 43-44 (explaining          that a single directed transaction is enough to confer organizer or          manager status); see also USSG S3B1.1, comment. (n.2). And the          district court's finding is sustainable in that regard. After all,          a defendant's role in the offense can be proved wholly by          circumstantial evidence and the circumstances here adequately                                          8          support the inferences that the district court drew from them.                    In particular, the court's specific determinations that          Cruz, age 44, "provided the impetus for the crime," "supplied the          product," and, in the bargain, exercised dominance over his 14-          year-old paramour in regard to the July 28 transaction, while not          unarguable, pass muster under the clearly erroneous standard. Cruz          had been enmeshed in trafficking with Mersky earlier. He owned La          Tambora, the locus around which the illicit activity pirouetted.          Moreover, Cruz was probably the "he" referred to by Vega as not          knowing that Mersky wanted a gun "too." The preponderance standard          obtains during the sentencing phase of a criminal case and the odds          are certainly better than even that Marquez, 14 years old and          pregnant, was acting at someone else's direction in serving as the          transporter in a multi-party drug transaction. We think that most          people would say that, as between Cruz and Vega, the strong          likelihood is that Marquez acted at the direction of her much older          boyfriend. Surely, a reasonable trier could conclude that this          deduction is more likely true than not. Thus, the district court's          appraisal that Cruz oversaw Marquez meets the preponderance test          because of its logical force and inherent probability.                     Despite the lessened burden of proof            "fair          preponderance" rather than "beyond reasonable doubt"     and the          deferential standard of review which pertain here, we recognize                                             Even if Vega and Cruz jointly controlled Marquez, Cruz would          still be a manager under the guidelines.                                                   See USSG S3B1.1, comment.          (n.4).                                          9          that whether Cruz might be deemed an organizer or manager is a          close question. Yet it would not profit us to dwell on the          inferences that the defendant would have us draw from the predicate          facts. While those inferences are rational and the scenario to          which they lead is possible, the trial judge eschewed them in favor          of different, equally permissible inferences, leading to a          different scenario   a scenario that depicts the defendant as a          manager. In sentencing, as elsewhere in the law, when competing          inferences plausibly can be drawn from a set of facts, the          factfinder's choice between them cannot be clearly erroneous. See          United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).                    We need go no further. In the circumstances at bar, the          determination of the defendant's role in the offense is fact-          specific, and the facts of record reasonably can be interpreted to          attribute managerial status, more likely than not, to him. That          ends the matter: close, factbound questions are grist for the          district court's mill, not for second-guessing by appellate judges          perusing a cold record.                    Affirmed.                    Bownes, Senior                                    Circuit                                            Judge. (dissenting). I dissent          from the en banc opinion because I continue to think that the          original panel opinion was correct.                                         10
