
USCA1 Opinion

	




          January 25, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1100                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RUBEN MARTINEZ,                                Defendant, Appellant.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________               Arthur R. Silen, by Appointment of the Court, for appellant.               _______________               Margaret E.  Curran, Assistant United States  Attorney, with               ___________________          whom  Edwin  J. Gale,  United  States  Attorney,  and  Gerard  B.                ______________                                   __________          Sullivan, Assistant  United States  Attorney, were  on brief  for          ________          appellee.                                 ____________________                                 ____________________                    Per Curiam.  Defendant Rub n Mart nez pleaded guilty to                    Per Curiam                    __________          two counts of conspiring to distribute cocaine in violation of 21          U.S.C.   846 and three  counts of distributing or possessing with          the  intent  to  distribute  cocaine in  violation  of  21 U.S.C.             841(a)(1) & 18  U.S.C.   2(a).  On January 7, 1993, the United          States District Court for the District  of Rhode Island sentenced          Mart nez to  five concurrent terms  of 51 months in  prison, five          years  of  supervised  release,  including  a  special  condition          relating  to deportation, and the required assessments.  Mart nez          challenges  his sentence  because  it  was based  in  part on  an          allegedly erroneous  finding that he  was a  leader or  organizer          under  United States  Sentencing  Guidelines     3B1.1(c).1    We          affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    According to  the Pre-Sentence  Report ("PSR") and  the          transcript of the sentencing hearing, see United States v. Reyes,                                                ___ _____________    _____          3 F.3d  29, 29-30  (1st Cir. 1993)  (stating that  upon a  guilty          plea, the relevant  facts should  be taken from  the PSR and  the          sentencing transcript); United States v. Castellone, 985 F.2d 21,                                  _____________    __________          22  (1st  Cir.  1993)  (same),  Drug  Enforcement  Administration          ("DEA") Special  Agent  Russell  Holske  purchased  cocaine  from          defendant  Mart nez  on  three   separate  occasions  during   an          undercover investigation in April  through July of 1992.   Holske          made his  first purchase on April  1, 1992, buying 27.7  grams of                                        ____________________          1   All  citations refer  to the  1992 version of  the Sentencing          Guidelines which were in effect at the time of the sentencing.                                         -2-          cocaine from  Mart nez for  $900.  On  that occasion,  Holske met          with Mart nez who  then made a phone call because he did not have          the  drugs  with  him.    Shortly  thereafter,  codefendant  Juan          Ituribides  arrived with the  cocaine and  handed it  to Mart nez          who, in turn, handed it to Holske.                    Two  days later, Holske purchased 50.5 grams of cocaine          from Mart nez for  $1750.  As in the  first transaction, Mart nez          made a  phone call before  the drugs were delivered;  however, on          the second  occasion, codefendant El as Ventura  Morales, instead          of  codefendant  Ituribides,  actually  brought  the  cocaine  to          Mart nez.                    On July 17, 1992, Agent Holske negotiated with Mart nez          for the  purchase of "Two Big  Eights" (9 ounces) of  cocaine for          $8000.   After  Holske  and  Mart nez met,  they  were joined  by          Morales.  The three then moved  to a new location where  Mart nez          showed Holske a small sample of cocaine in exchange for a look at          the money Holske brought.   Morales left and then returned twenty          to  thirty minutes  later  at  which  point DEA  agents  arrested          Mart nez and Morales and seized 223.4 grams of cocaine.                    Mart nez  contests this version  of events.   He claims          that he was not the source or supplier of the cocaine but instead          merely  an intermediary who  was offered money  by a confidential          informant to assist in the sale.  During the first sale, Mart nez          contends, Ituribides supplied the cocaine and collected the money          for the deal while Mart nez  only assisted by passing the cocaine          to Holske.   For the other two purchases, Mart nez claims that he                                         -3-          was approached  by the confidential  informant and asked  for the          whereabouts  of   Ituribides.    On  those   occasions,  Mart nez          contends, Morales intervened  in the discussion and  arranged the          drug deals.   According  to Mart nez, his  only role was  to wait          with the informant while Morales went to get the cocaine.                   II.  ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE                   II.  ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE                    In calculating  Mart nez' sentence, the  district court          imposed a two level enhancement  for being a leader and organizer          pursuant to  U.S.S.G.    3B1.1(c).2   Mart nez  claims the  court          erred because the presentence  report contains insufficient facts          necessary to support  a finding that Mart nez  organized, managed          or directed the  activities of his codefendants in committing the          charged offenses.                    We  review the district  court's "role in  the offense"          determination for clear  error.   United States  v. Schultz,  970                                            _____________     _______          F.2d 960, 963-64 (1st  Cir. 1992), cert. denied, 113 S.  Ct. 1020                                             ____  ______          (1993); United  States v. Veilleux,  949 F.2d 522, 524  (1st Cir.                  ______________    ________          1991).   A leadership  role  enhancement is  warranted where  the          defendant has  exercised control  or directed  the actions  of at          least one other  person in committing the crime.   The sentencing          court  can take  into account  such  factors as  the exercise  of          decision  making authority  and the  degree  of participation  in                                        ____________________          2  U.S.S.G.    3B1.1(c) provides for an  increase in the  offense          level:                      If  the   defendant  was   an  organizer,                      leader,  manager,  or supervisor  in  any                      criminal activity other than described in                      (a) or (b), . . .                                          -4-          planning or  organizing the  offense.   U.S.S.G.    3B1.1 comment          note 3; Schultz, 970 F.2d at 964; United States v. Panet-Collazo,                  _______                   _____________    _____________          960 F.2d 256, 261  (1st Cir. 1992), cert. denied, 113  S. Ct. 220                                              ____  ______          (1992).                    The evidence  from the PSR is sufficient to support the          sentencing  judge's determination that Mart nez "was a leader and          organizer of this little business  [to sell cocaine] that he had"          and  that  Mart nez "had  working  for  him Ventura  Morales  and          Interpediz [sic]."   According to the  PSR, Holske purchased  the          cocaine  "from" Mart nez or "negotiated with" Mart nez during all          three of  the drug transactions.   During  the July  transaction,          Mart nez "arranged  to be  met" at a  certain location  and later          displayed  a sample  of cocaine  for Holske.   On  two occasions,          Mart nez first met  with Holske and then placed  a telephone call          after which the cocaine was delivered.  When considered together,          this  evidence  is sufficient  for  the  judge  to conclude  that          Mart nez   arranged  and  planned  each  sale  and  directed  the          activities  of his  codefendants  who  served  as  assistants  or          couriers for Mart nez' operation.                    Mart nez insists  that the evidence  in the PSR  is, at          most,  only  sufficient to  support  a  finding  that he  was  an          intermediary.  There is nothing, Mart nez claims, to show he gave          any  orders  or  directions  to  anyone  or  otherwise  exercised          decision making authority.   He further asserts that  there is no          evidence,  beyond  the  bald  statement  that  Holske  "purchased          cocaine" or "negotiated" with Mart nez, to support the conclusion                                         -5-          that Mart nez set terms and conditions, made the arrangements, or          profited from the sale.                    While  the  actions  reported in  the  PSR  (making the          initial  contact with the  buyer and  placing phone  calls before          each  drug  delivery)  may   be  consistent  with  those  of   an          intermediary,  they  are also  consistent with  those taken  by a          leader or organizer.  When  we factor in Holske's statements that          Mart nez  "negotiated"   the  deal  and  "arranged"  the  meeting          location, we  find ample support for the  court's inferences that          Mart nez was making decisions about  terms and conditions when he          met with  Holske, and  exercising control  over his  codefendants          when he made the telephone calls.  "'Where    there    are    two          permissible  views  of  the  evidence,  the  factfinder's  choice          between them cannot be  clearly erroneous.'"  Veilleux, 949  F.2d                                                        ________          at 525 (quoting  Anderson v. City of Bessemer City, 470 U.S. 564,                           ________    _____________________          574  (1985)).  The sentencing judge, in fact, explicitly rejected          Mart nez'  alternative  version  of events  when  he  stated that          Mart nez had not been "completely  candid with the Court nor with          the Probation  Counsellor trying to  give the impression  that he          was really working for somebody else, but he wasn't."                    Mart nez also claims  that the sentencing  judge failed          to  make  reasonably  specific factual  findings  to  support the          upward adjustment.  This objection is groundless.  The sentencing          court's explicit  rejection of  Mart nez' alternative  version of          events,  together with its statements that, based on the evidence          in the  PSR, Mart nez was  a leader of  his own business  to sell                                         -6-          cocaine,3  constitutes specific  factual  findings which  support          the upward adjustment.  See Schultz,  970 F.2d at 963 n.7; United                                  ___ _______                        ______          States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58  (1st Cir.          ______    ___________________________          1991).   As we discuss  below, any objections to  the evidentiary          basis for the court's specific factual findings are waived.          _____                        III.  OTHER OBJECTIONS TO THE SENTENCE                        III.  OTHER OBJECTIONS TO THE SENTENCE                    Mart nez  claims  that the  sentencing  judge erred  by          relying upon information outside his own PSR to determine whether          he was a leader and organizer.  During sentencing, the judge did,          in fact,  explicitly base  his findings  partly upon  information          contained in  the PSR's  of Mart nez'  codefendants, Morales  and          Ituribides.   Mart nez'  counsel, however,  failed  to voice  any                                        ____________________          3  At the sentencing hearing, the sentencing judge stated:                      I'm satisfied  from the evidence  in this                      matter  presented from  all the  material                      that I've  been  privy to  not only  from                      this  presentence  report  but  from  the                      presentence report involving  Morales and                      Interpediz  that  this  Defendant  was  a                      leader, an organizer.   He was akin  to a                      self-employed,      independent     sales                      representative.   I'm  satisfied that  he                      didn't own  the  cocaine, but  he was  in                      business for himself  selling cocaine and                      he  was going  to  earn a  commission for                      selling that  cocaine and he  had working                      for him  Ventura Morales  and Interpediz.                      As a matter of fact,  Interpediz was only                      involved in one  instance for a pittance,                      about $40  was going  to be  his pay  for                      simply going  to the  source and  getting                      the  cocaine  and   bringing  it  to  the                      designated place and  Morales was serving                      in the same  function.  So  the Defendant                      clearly  was a  leader  and organizer  of                      this little business that he had.  So the                      Probation Office  was correct  in tacking                      on two points in this case.                                         -7-          objections to this  at the hearing.  Consequently,  the issue has          not been  preserved for appeal  unless there are  some "unusually          compelling circumstances."   United States v.  Ocasio-Rivera, 991                                       _____________     _____________          F.2d 1, 3 (1st Cir. 1993).  This exception mainly applies where a          correction  of the  alleged error  would  ensure the  defendant's          success and thus prevent a miscarriage of justice.  Id.  Mart nez                                                              __          fails  to point out  any circumstances, compelling  or otherwise,          that  would be  sufficient to  overcome  his procedural  default.          Given the  sufficiency of the  evidence in Mart nez' own  PSR and          given  that  the  judge,  in  making  a  "role  in  the  offense"          determination  for Mart nez, had  to take into  consideration the          relative roles of  all the codefendants anyway,4 we are convinced          that no miscarriage of justice has occurred in this case.                    Mart nez   also  challenges   the  sentencing   judge's          decision to  grant only  a two level,  instead of a  three level,          decrease   in  his   base  offense   level   for  acceptance   of          responsibility  pursuant to U.S.S.G.   3E1.1(b)(2).  He concedes,          however, that  he did not raise this  objection during sentencing          and  that "under the  'plain error' rule, he  will not succeed on          this point alone."   As we have decided all  other issues against          the defendant,  according to  his own  admission, we must  decide                                        ____________________          4   According to the prosecution, prior  to Mart nez' sentencing,          the  district court  had  already determined  that  at least  one          codefendant, Ituribides,  was merely  a courier  and had  awarded          Ituribides  a downward  adjustment  for  playing  a  minor  role.          Defense  counsel  also  referred  to  this  at  the  hearing  and          cautioned the judge that such  a finding did not necessarily mean          that  Mart nez was  a leader  and organizer.   The issue  of what          roles were played  by Mart nez' codefendants was  thus brought to          the judge's attention before his ruling.                                         -8-          this one against him as well.                    Affirmed.                    ________                                         -9-
