
USCA1 Opinion

	




        May 3, 1996             [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2327                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CRISTOBAL SORIANO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            William C. Dimitri with  whom Dimitri &  Dimitri was on brief  for            __________________            __________________        appellant.            Sheldon Whitehouse, United States Attorney, with whom Margaret  E.            __________________                                    ____________        Curran and  Zechariah Chafee, Assistant United  States Attorneys, were        ______      ________________        on brief for the United States.                                 ____________________                                 ____________________                 Per  Curiam.   "Cristobal Soriano,"  whose real  name is                 ___________            David De LaCruz Hiciano, was arrested with two others, Rafael            Vidal and Johana Ovando, in  August 1994, after selling crack            cocaine  to  an  undercover  agent.    He  was  charged  with            conspiring  to distribute  drugs, 21  U.S.C.    846, and  one            count  each  of  possession  with intent  to  distribute  and            distribution,  21 U.S.C.   841(a)(1).   On March  8, 1995, De            LaCruz  pled guilty  to all  counts.   The quantity  of drugs            triggered a mandatory minimum ten-year sentence.  21 U.S.C.              841(b)(1)(A)(iii).                   De  LaCruz suffers  from a  terminal illness  and likely            will not survive  the mandatory minimum term.   At sentencing            in November  1995, De LaCruz sought relief  under the "safety            valve" provision,  18 U.S.C.    3553(f) and U.S.S.G    5C1.2,            which would allow him--if he met the five  criteria--to avoid            the mandatory minimum and  be sentenced under the guidelines.            The court calculated his guidelines range to be 87-108 months            (including  probable  departures), and  De  LaCruz asked  for            several additional departures to further reduce his sentence.                 The government argued that  De LaCruz was ineligible for            relief under  section 3553(f)  because  he had  not made  the            disclosure of  information  about the  offenses  required  by            subsection (5).  The court disagreed but found that De LaCruz            failed  a  different  condition--subsection  (4)--because  he                                         -2-                                         -2-            controlled the drug enterprise.  The safety valve is aimed at            less culpable  defendants and applies only  if "the defendant            was  not  an organizer,  leader,  manager,  or supervisor  of            others in the  offense."  18  U.S.C.   3553(f)(4).   The main            issue on appeal is  whether this fact-bound determination was            clear  error.  United States v.  Montanez, No. 95-2096, slip.                           _____________     ________            op. at 10  (1st Cir. Apr. 24, 1996).   The pertinent evidence            is as follows.                 On August 21,  1994, an  agent went to  an apartment  at            Cherry Street  in Pawtucket,  Rhode Island, and  bought crack            from Vidal and another unidentified man.  The agent went back            later  that month  to  buy more.   This  time only  Vidal was            present;  he telephoned  De  LaCruz, who  apparently had  the            drugs  at another location.   While waiting for  De LaCruz to            arrive, the agent gave Vidal $50 in marked bills.                 De LaCruz  arrived a  short time  later with Ovando  and            gave the agent  crack that  the agent had  already paid  for.            Ovando explained to the agent that she and De LaCruz would be            moving to a new address and that from now on the agent should            go  there if the  agent wanted more  drugs.   The agent left.            Minutes later the defendants were arrested.  The $50 that the            agent had given Vidal was found on De LaCruz.                   Agents subsequently searched an apartment at Rand Street            in Central Falls, Rhode Island.  This apartment was leased to            Ovando; and she and De LaCruz  had been at the apartment (and                                         -3-                                         -3-            under surveillance) on August 21 when Vidal telephoned him to            arrange the  delivery.  This search  revealed scales, plastic            bags  and other  drug-trade  paraphernalia and  also evidence            indicating  that   De  LaCruz  also  occupied   or  used  the            apartment.  In an adjoining basement, agents found a stash of            73.8 grams of crack  and $3900 in cash--including $60  of the            $100 in marked  bills the  agent had given  Vidal during  the            first buy.                  At sentencing  De LaCruz insisted that he and Vidal were            equal  partners and that Vidal  also had access  to the drugs            and money at  Ovando's apartment.   In fact  Vidal's car  was            registered at that address.  But the district court concluded            that De LaCruz was "in charge," finding that De LaCruz stored            the  drugs in the Rand Street apartment he shared with Ovando            and supplied  them to Vidal,  who merely arranged  the sales.            Later in the hearing, the district court said:                      If he wasn't the leader I don't  know who was.                 This is  a three  person  operation and  he was  in                 charge.  It was  his operation.  What more  can you                 do with it?  I  can't, I've wrestled with it  and I                 can't.  I'd  like to give  him every opportunity  I                 can to  go back to  the Dominican Republic  and die                 with  his relatives.  But he's going to have to die                 in a federal penitentiary, that's what it comes to.                 And this is costly.   This is costly to  the United                 States government.                                        . . .                      But that's the way it works.  I don't have the                 discretion  to just  throw away  the guidelines  or                 throw  away  Congress' mandatory  minimum sentences                 and  so I  have to apply  them. .  . .   I  have no                 choice, I have to apply the mandatory minimum which                 is 120 months in prison.                                         -4-                                         -4-                 Conceivably, the district court  could have come out the            other way.   The  probation officer recommended  applying the            safety  valve provision,  and  the prosecutor  expressed some            reservation   at  sentencing  about  calling  De  LaCruz  the            "leader."   But the final  determination is for  the district            court, and  it was rational  to conclude that  De LaCruz--who            held  the drugs and money--was in charge.  De LaCruz's equal-            partners gloss  is  plausible but,  on appeal,  he bears  the            burden  to show  clear  error and  cannot  prevail simply  by            putting forth a reasonable alternative interpretation.                   This would resolve matters entirely but for the district            court's brief  comment, "[i]f  he wasn't  the leader  I don't            know who  was."  In the  abstract, this might  imply a belief            that someone is necessarily the leader in a group sale.  Such            a  belief would  be  error, since  equal  partners cannot  be            deemed leaders  unless one  or both  controlled others.   See                                                                      ___            U.S.S.G.    3B1.1;  United States  v. Frankenhauser,  1996 WL                                _____________     _____________            154266, at *11 (1st Cir. Apr. 9, 1996).  We think it far more            likely that the comment  was merely a way of  emphasizing the            court's view that De LaCruz was in fact the leader.                 De LaCruz may share this latter view because he does not            raise this  issue on  appeal  and our  review is  accordingly            limited to "plain error."  United States v. Olano, 113 S. Ct.                                       _____________    _____            1770, 1777-79 (1993).   It may be doubtful that  an ambiguous            statement  could qualify  as  plain error  although we  might                                         -5-                                         -5-            still be entitled  to seek clarification.   But relief  under            Olano  still requires a  miscarriage of justice  or the like.            _____            113 S. Ct. at 1779.  For a reason not mentioned by either the            district court or the government, such a conclusion would  be            hard to reach in this case.                 Despite De LaCruz' attempt  to exculpate Ovando, her own            role in the August 24 sale indicates that she played a  minor            role  in the  transaction.   Indeed,  Ovando herself  pleaded            guilty and De LaCruz  told his probation officer that  he was            "sorry for getting Johana Ovando implicated in something that            reaped her  no benefit."  If he did not lead Vidal, De LaCruz            certainly appears to have  led Ovando.  See United  States v.                                                    ___ ______________            Ramirez, 948  F.2d 66,  67  (1st Cir.  1991) (husband  deemed            _______            leader where wife a minor participant).                 This is a distressing case.  The offenses underlying the            judgment are serious, but few would think that they warranted            having the defendant die in prison rather than in the care of            his  family  in his  own country.    But given  the mandatory            minimum prescribed  by Congress,  it appears that  De LaCruz'            only avenue for relief is executive clemency.                 Affirmed.                 ________                                         -6-                                         -6-
