
USCA1 Opinion

	




        July 28, 1992           [NOT FOR PUBLICATION]                                 ____________________        No. 92-1142                                     UNITED STATES,                                      Appellee,                                          v.                                  WILFREDO BARRETO,                                Defendant, Appellant.                                 ____________________                     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.                                   ______________                                 ____________________            Francisco M. Dolz-Sanchez on brief for appellant.            _________________________            Daniel F. Lopez-Romo, United  States Attorney, and Warren Vazquez,            ____________________                               ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Defendant  appeals his sentence.   He                      __________            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                                        __________                      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,                                         -2-            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                                         -3-            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                                         -4-            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                                        __________                      On  appeal,  Barreto  contests  both  the  district            court's   factual   findings   underlying    the   four-level            enhancement  and the  district court's interpretation  of the                                         -5-            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-                                                 ______________    ______            Collazo,  960 F.2d 256, 261 (1st Cir. 1992); United States v.            _______                                      _____________            Akitoye,  923 F.2d 221, 227 (1st Cir. 1991); United States v.            _______                                      _____________            Ocasio, 914 F.2d 330,  333 (1st Cir. 1990); United  States v.            ______                                      ______________            Diaz-Villafane, 874 F.2d 43, 48  (1st Cir.) cert. denied  493            ______________                              ____________            U.S. 862 (1989); 18 U.S.C.   3742(e).                      Factual Findings                      ________________                      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                            ______________________                                         -6-            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                                         -7-            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                                         -8-            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                                ___ _____________     ______________            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                                            ____________________            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.                                         -9-            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                      ___________________________                      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.                                            ____________________                 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.                                         -10-            U.S.S.G.    3B1.1, comment.  (n.3); United States  v. Sostre,                                                _____________     ______            No. 91-1918, slip op. at 12 (1st Cir., June 29, 1992); United                                                                   ______            States v. Sabatino, 943 F.2d 94,  101 (1st Cir. 1991).  It is            ______    ________            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                                       _____________    _______            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                                ___ _____________    _______            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                                         -11-            role  in the  various cocaine  shipments"); United  States v.                                                        ______________            Ortiz,  878 F.2d  125, 127  (3d  Cir. 1989)  (concluding that            _____            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.                                                       ______________            Castro,  908   F.2d  85,   90  (6th  Cir.   1990)  (upholding            ______            enhancement   where   defendant  directed   co-defendants  to            transport drugs);  cf. United States v.  Sostre, No. 91-1918,                               ___ _____________     ______            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                                                                   ______            States  v.  Fuller,  897  F.2d 1217,  1221  (1st  Cir.  1990)            ______      ______            (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                                         -12-            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                                _____________    ______________            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                                            ________    _________________            City,  470  U.S. 564,  574  (1985);  United  States v.  Diaz-            ____                                 ______________     _____            Villafane, 874 F.2d at 49.            _________                                            ____________________            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).            _____________    _____                                         -13-                      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                                                            _____________            v.  Veilleux, 949  F.2d 522,  524 (1st  Cir. 1991);  see also                ________                                         ___ ____            United  States  v. Dietz,  950 F.2d  50,  52 (1st  Cir. 1991)            ______________     _____            ("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                                         __________                      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.                                         -14-
