
USCA1 Opinion

	




          February 22, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2191                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                AGUSTIN DE LEON RUIZ,                                Defendant, Appellant.                                 ____________________          No. 93-2192                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             ORLANDO RODRIGUEZ RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of this Court,  issued on February  1, 1995, is          amended as follows:               On page 7, line 13:  change "two-point" to "two-level".               On page 8, line 15:  change "two-point" to "two-level".               On page 9, line 4:  change "two-point" to "two-level".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2191                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                AGUSTIN DE LEON RUIZ,                                Defendant, Appellant.                                 ____________________        No. 93-2192                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             ORLANDO RODRIGUEZ RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Boyle,* Senior District Judge.                                      _____________________                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.            Carlos R. Noriega for appellant Agustin De Leon Ruiz.            _________________            Jose  A. Quiles  Espinosa, Senior  Litigation Counsel,  with  whom            _________________________        Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant        _____________                              ________________        United States Attorney, were on brief for the United States.            Luis  F. Abreu  Elias on  brief  for appellant  Orlando  Rodriguez            _____________________        Rodriguez.            Jose  A. Quiles  Espinosa,  Senior Litigation  Counsel,  Guillermo            _________________________                                _________        Gil, United  States Attorney, and  Antonio R. Bazan,  Assistant United        ___                                ________________        States Attorney, on brief for the United States.                                  ____________________                                   February 1, 1995                                 ____________________                 BOUDIN, Circuit  Judge.  On August  26, 1992, appellants                         ______________            Agustin De  Leon Ruiz and Orlando  Rodriguez Rodriguez, along            with three  other individuals,  were charged in  a four-count            indictment   concerning  a   May   1992   drug   transaction.            Appellants were both indicted for possessing two kilograms of            cocaine  with  intent to  distribute  (count  II), 21  U.S.C.              841(a)(1),  and aiding  and  abetting the  use of  firearms            during the  commission  of a  drug  offense (count  III),  18            U.S.C.    924(c)(1).   De  Leon  was  indicted  for  using  a            communication  facility to  facilitate  the commission  of  a            crime  (count I),  21 U.S.C.     843(b), while  Rodriguez was            indicted  for  possessing  firearms with  obliterated  serial            numbers (count IV), 18 U.S.C.   922(k).                   After a  five-day jury trial,  De Leon was  convicted on            the  communication and  drug  charges (counts  I and  II) but            acquitted on the  firearms charge (count III).  Rodriguez was            convicted on the drug charge (count II) but acquitted on both            of  the firearms counts with which he was charged (counts III            and  IV).    Following  a  sentencing hearing,  De  Leon  and            Rodriguez were  sentenced to 78 and  87 months, respectively.            On  appeal,  Rodriguez  challenges both  his  conviction  and            sentence, while De Leon challenges only his sentence.                 1.   The evidence  adduced at trial, taken  in the light            most  favorable  to the  verdict,  United  States v.  Torres-                                               ______________     _______            Maldonado, 14 F.3d 95,  100 (1st Cir.), cert. denied,  115 S.            _________                               ____________                                         -3-                                         -3-            Ct. 193 (1994), is as follows.  On May 5, 1992, Pablo Rivera,            an  undercover DEA  agent,  set  up  a  drug  buy  through  a            confidential  informant for  two kilograms  of cocaine.   The            informant  spoke  with  De  Leon  on  the  telephone  on five            different occasions  that day  to negotiate the  transaction;            these  conversations were  all  recorded  and the  recordings            played at trial.   In those conversations the price  for each            kilogram was set at $18,000.  Through    De    Leon's    drug            connections--two  individuals  named  Lebron and  De  Jesus--            Rodriguez was contacted to supply the cocaine.  Lebron and De            Jesus  both testified for the government at trial pursuant to            a plea agreement.  According to their testimony, the drug buy            was  scheduled to  take place in  the parking lot  of a local            supermarket on  the evening  of May  5, 1992.   On  that day,            around 5:00  p.m., De  Jesus telephoned Rodriguez  to inquire            about obtaining the two  kilograms of cocaine; Rodriguez told            De Jesus to come  to his family's restaurant, El  Muelles, to            discuss the matter.                 De  Jesus  met with  Rodriguez  at  the restaurant,  and            Rodriguez told De Jesus that  he had the drugs in the  amount            De Jesus needed.   Rodriguez instructed De Jesus to  meet him            at 7:00  p.m. at De  Jesus' apartment  in the El  Coto public            housing project.   De Jesus  then returned to  his apartment,            and Lebron  and De  Leon arrived  soon after.   On De  Jesus'            instruction,  Lebron  and De  Leon  went  to the  supermarket                                         -4-                                         -4-            around 6:45 p.m.  to check  out the  prospective buyer,  whom            they did  not know.  After speaking with Agent Rivera and the            confidential informant,  and seeing the money,  Lebron and De            Leon returned  to De  Jesus'  apartment.   Rodriguez and  his            brother, Carlos, arrived at the apartment shortly thereafter,            sometime  around  7:00  p.m.   All  five  then  left for  the            supermarket.                 Lebron drove to the  supermarket in a Honda CRX  with De            Leon; Rodriguez drove a  beige Oldsmobile, accompanied by his            brother  and De Jesus.  At the supermarket, Lebron parked the            Honda  next  to  Agent  Rivera's car;  Rodriguez  parked  the            Oldsmobile  behind and  perpendicular  to  the  Honda,  about            fifteen  feet from where Agent Rivera was standing.  From his            vantage  Agent  Rivera was  able to  view  the driver  of the            Oldsmobile, whom he later identified at trial as Rodriguez.                  From a plastic bag located on the front seat of the car,            Rodriguez removed  one  kilogram of  cocaine.   He  gave  the            plastic  bag with the remaining kilogram to De Jesus and told            him to take just one because the situation looked "nebulous."            De Jesus exited  with the kilogram of cocaine,  and Rodriguez            then  drove the Oldsmobile slowly across the parking lot.  De            Jesus approached Agent Rivera, who was standing near his  car            with De  Leon and Lebron,  and handed him  the drugs.   After            protesting  that the deal was for  two kilogram, Agent Rivera                                         -5-                                         -5-            raised  the trunk  of his car  as if  to stash  the drugs but            actually signalling the arrest.                 Police immediately converged on the scene.  Agent Rivera            observed  Lebron  reach  for   his  waist,  subdued  him  and            recovered a gun tucked in his  belt; De Jesus was also  found            to have a gun in his belt.   Meanwhile, De Leon sought to run            away  and was  caught  by DEA  agents  after a  brief  chase.            Rodriguez escaped in the Oldsmobile, but turned  himself in a            few days later when he learned that a  warrant for his arrest            had been issued.                 In   challenging  the   sufficiency  of   the  evidence,            Rodriguez  assumes that  the  only  evidence  supporting  the            jury's  verdict  is Agent  Rivera's  identification testimony            that  he observed  Rodriguez  driving  the beige  Oldsmobile.            Given  the  unfavorable conditions  under which  Agent Rivera            viewed the driver--e.g, night, moving car,  tense situation--                               ___            Rodriguez  argues  that  Agent  Rivera's   identification  is            unreliable  and thus  insufficient.   In fact, Lebron  and De            Jesus testified extensively  about Rodriguez' involvement  in            the transaction  and  identified him  as  the source  of  the            cocaine.                 Rodriguez  apparently believes  that  because  the  jury            acquitted him on the two gun counts, it must have rejected in                                                                       __            toto the testimony of Lebron and De Jesus; both had testified            ____            unequivocally that Rodriguez  had given them the guns used in                                         -6-                                         -6-            the drug buy.  But the jury is free to  believe some portions            of  a witness' testimony and not others.  Here, the testimony            of Lebron and De  Jesus connecting Rodriguez to the  guns was            relatively brief while  their testimony connecting  Rodriguez            to the drugs was extensive, detailed and uniform.                 Alternatively, the jury may  very well have believed the            testimony that Rodriguez provided  the guns, but nevertheless            concluded  that the government  had failed  to prove  all the            elements  of  the  specific  firearm  offenses.    Count  III            required proof that a firearm was used during and in relation            to a  drug  transaction; here  the  jury may  (wrongly)  have            thought  it  mattered that  Rodriguez  was  not carrying  the            firearms at the scene or  that they were not drawn  or fired.            Count IV required  proof that Rodriguez knew  that the serial            numbers of  the weapons were  obliterated.  United  States v.                                                        ______________            Haynes, 16 F.3d 29, 33-34 (2d Cir. 1994).            ______                 Rodriguez also asserts that  the district court erred at            sentencing  in  giving  him  a  two-level  enhancement  under            U.S.S.G.   2D1.1(b)(1) for possession  of a dangerous  weapon            during a drug transaction.  He contends that his acquittal on            the two gun charges precludes a finding that he "possessed" a            gun in connection with the drug offense.  He is mistaken.                   We have  previously held that because  of the difference            in  burden of  proof, an  acquittal on  a  charge of  using a            firearm  in  connection  with  a drug  transaction  does  not                                         -7-                                         -7-            foreclose a  sentencing enhancement  for possession of  a gun            during a drug transaction.  United States v. Pineda, 981 F.2d                                        _____________    ______            569,  574  (1st Cir.  1992).    In addition,  the  sentencing            enhancement  requires  only  that  it  have  been  reasonably            foreseeable  that an  accomplice would  possess a  gun, since            under  the   guidelines  a   defendant  is   accountable  for            reasonably   foreseeable  conduct  undertaken  by  others  to            advance    their   joint   criminal    venture.      U.S.S.G.              1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 911-                              _____________    ______            14 (1st Cir. 1991).                  Here, there  was direct  testimony  that Rodriguez  gave            Lebron  one of the weapons, telling Lebron to watch De Jesus'            back, and that  he gave De Jesus a gun as  well.  Further, we            have held that  the nature of a  large-scale drug transaction            permits the  sentencing court  to infer that  an accomplice's            possession  of  a  gun  was  reasonably  foreseeable  to  the            defendant.   United States  v. Sostre,  967 F.2d  728, 731-32                         _____________     ______            (1st Cir. 1992); Bianco, 922 F.2d at 912.  The district court                             ______            drew  the inference  explicitly,  citing to  both Bianco  and                                                              ______            Sostre.            ______                 2.  De  Leon challenges the district  court's failure to            award   him   a  two-level   reduction   for   acceptance  of            responsibility under  U.S.S.G.   3E1.1(a).   Before trial, De            Leon  offered to plead guilty  to the drug  charges (counts I            and  II) but refused to  plead guilty to  the firearms charge                                         -8-                                         -8-            against him (count III); De Leon steadfastly denied knowledge            of the guns.   The  government was unwilling  to dismiss  the            firearms  charge, based  on  a Department  of Justice  policy            called  "Project Triggerlock"  requiring full  prosecution of            all gun offenses.   At trial, the  jury convicted De  Leon on            the  drug  transaction  charges,  but acquitted  him  on  the            firearms offense.                 Because the jury vindicated  him on the firearms charge,            and because he had previously been willing to plead guilty to            the criminal charges on  which the jury found him  guilty, De            Leon  argues  that  he   should  have  received  a  two-level            reduction  in his  base offense  level.   At sentencing,  the            government  argued that De Leon could have pled guilty to the            drug  charges and  contested only  the gun  charge at  trial;            since he chose  to go forward  to trial on the  drug charges,            says  the  government,  no   reduction  is  warranted.1    At            sentencing, the district court denied the adjustment  without            explaining its reasons.                 A sentencing court has very wide latitude in determining            whether to  grant this adjustment, United  States v. Tabares,                                               ______________    _______            951  F.2d 405,  411 (1st  Cir. 1991), and  a finding  on this                                            ____________________                 1At oral argument in this case, the government set forth            a number of other reasons why the denial of the departure was            proper.  We  will not consider  these claims, because  claims            raised for the first  time at oral argument are  not properly            preserved.  United  States v.  Nueva, 979 F.2d  880, 885  n.8                        ______________     _____            (1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).                             ____________                                         -9-                                         -9-            issue is normally set aside only if it was clearly erroneous.            United States v. Munoz,  36 F.3d 1229, 1236 (1st  Cir. 1994),            _____________    _____            petition  for  cert.  filed,  Jan. 10,  1995  (No.  94-7606).            ___________________________            Still,  a grant or denial  of the reduction  may raise issues            that involve a legal interpretation of the guidelines.  Here,            since  the sentencing court did not set forth its reasons for            denying the reduction,  we will assume  arguendo that it  did                                                    ________            so, as De Leon posits,  because De Leon went to trial  on the            drug charges.                 The  reduction for  acceptance of  responsibility serves            two distinct  purposes:   to recognize a  defendant's sincere            remorse and to  reward a defendant for  saving the government                    ___            from the trouble and expense of going to trial.  See U.S.S.G.                                                             ___             3E1.1   comment.  (n.2).     According   to  the   guideline            commentary, the  reduction is  ordinarily not available  to a            defendant who has  put the government  to its proof,  however            remorseful he  or she might later be.  Id.  See United States                                                   ___  ___ _____________            v.  Bennett, 37 F.3d 687,  696-98 (1st Cir.  1994); Munoz, 36                _______                                         _____            F.3d  at 1236.  The commentary describes  as "rare" a case in            which  a  defendant  can go  to  trial  and  still receive  a            reduction;  the example it gives  is a defendant  who goes to            trial to preserve issues unrelated to factual guilt, e.g., to                                                                 ____            mount a  constitutional challenge  to the statute.   U.S.S.G.              3E1.1 comment. (n.2).                                         -10-                                         -10-                 In this  case, De Leon  did not refuse  to plead  to the            drug counts in  order to  preserve a legal  challenge to  the            statute  but because  the  government would  not dismiss  the            firearms count in exchange.   De Leon retained the  option to            plead guilty to the former and to contest the latter, Pineda,                                                                  ______            981 F.2d  at 576; instead, he  chose to roll the  dice in the            hope that he would be acquitted on all counts.   This was his            choice,  but the fact remains  that he could  have pleaded to            counts  I and  II, preserved  his defense  on count  III, and            spared the government the  necessity of proving his  guilt at            trial on the drug counts.                 De Leon complains that,  had he pled guilty to  the drug            charges,  the jury would have wondered why he was not charged            with  a drug offense like his codefendant and might have held            it  against him.  Speculation would  not have been necessary:            De Leon's plea of guilty on  the drug counts would have  been            admissible at trial as an admission that De Leon was involved            in  the drug transaction.   United States v.  Haddad, 10 F.3d                                        _____________     ______            1252,  1258 (7th  Cir.  1993).   See  also United  States  v.                                             _________ ______________            Williams,  900 F.2d  823, 825  (5th  Cir. 1990)  (Rule 404(b)            ________            inapplicable).  Even so  De Leon would have remained  free to            contest the firearms charge.                 Thus, even  assuming that the district  court gave great            weight to De Leon's refusal  to plead to the drug  counts, we            see  no error.   On  the contrary,  absent unusual  facts, we                                         -11-                                         -11-            will--as   the   guideline  commentary   instructs--generally            sustain  a   district   court  that   denies  acceptance   of            responsibility to a defendant who declined to plead guilty on            the count or counts of which he was convicted.  See generally                                                            _____________            Bennett,  37 F.3d at 696-97.  The example of a constitutional            _______            challenge, given by the guideline commentary as an exception,            does not purport to be an exhaustive list of exceptions.  Id.                                                                      ___            at 698 n.16.  But  it is quite another matter to hold  that a            district  court exceeds  its authority  when in  the ordinary            case  it  refuses such  a reduction  to  a defendant  who has            refused to plead.                 A few  circuits may  arguably be  more ready  to reverse            district  courts who  refuse such  reductions.   However, the            cases often  involve  aggravating circumstances  not  present            here:   in United States v. Rodriguez,  975 F.2d 999 (3d Cir.                       _____________    _________            1992),   the  government  withdrew   its  agreement   to  the            defendant's plea  bargain because a  co-defendant declined to            plead;  in United States v.  McKinney, 15 F.3d  849 (9th Cir.                       _____________     ________            1994), the court believed that the  defendant would have pled            guilty if the district court had provided a fair opportunity.            No such circumstances appear in the present case.                 The  guideline admittedly  imposes a  tough choice  on a            defendant like De  Leon, cf. United States  v. Mezzanatto, 63                                     ___ _____________     __________            U.S.L.W.  4060,  4064 (U.S.  Jan. 18,  1995);  but it  is not            unconstitutional,  Munoz, 36  F.3d  at 1237,  and the  policy                               _____                                         -12-                                         -12-            determination that underlies the guideline has been entrusted            to  others.    Because  the guideline  serves  two  different            purposes, differences will remain  among judges who apply the            guideline,  depending on  which  purpose is  emphasized in  a            given case.  We are satisfied that the district court was not            obliged in this case to order a reduction and that nothing so            unusual was urged  by De  Leon as to  require an  explanation            from the district court.                 Affirmed.                 ________                                         -13-                                         -13-
