UNITED STATES, Appellee, v. Orlando ORTIZ-TORRES, a/k/a Landy, a/k/a Orlando Torres-Ortiz, Defendant, Appellant. United States, Appellee, v. Omar Cosme-Piri, a/k/a Chiquito, Defendant, Appellant. United States, Appellee, v. Raymond Torres-Santiago, Defendant, Appellant. United States, Appellee, v. Jose Renovales-Velez, a/k/a Pipe, Defendant, Appellant. United States, Appellee, v. Julio Mattei-Albizu, Defendant, Appellant.
Nos. 03-2456, 03-2458, 03-2534, 03-2572, 04-1871
United States Court of Appeals, First Circuit
Heard Nov. 9, 2005. Decided May 26, 2006.
449 F.3d 61
Raul S. Mariani-Franco for appellant Omar Cosme-Piri.
Bruce Green for appellant Raymond Torres-Santiago.
Jose R. Olmo-Rodriguez for appellant Jose Renovales-Velez.
Luis M. Chaves-Ghigliotty for appellant Julio Mattei-Albizu.
Nelson Perez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, was on brief, for Appellee.
Before LIPEZ, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge* and HOWARD, Circuit Judge.
JOHN R. GIBSON, Circuit Judge.
Orlando Ortiz-Torres, Omar Cosme-Piri, Raymond Torres-Santiago, Jose Renovales-Velez, and Julio Mattei-Albizu appeal their convictions and sentences for conspiracy to distribute multi-kilogram quantities of cocaine in violation of
Appellants were members of a drug-trafficking organization that operated drug
Appellants raise numerous claims of error on appeal. Cosme-Piri and Ortiz-Torres challenge their convictions on the ground that their guilty pleas were not voluntary. Cosme-Piri, Ortiz-Torres, Renovales-Velez, and Mattei-Albizu raise an assortment of challenges to their sentences. Lastly, each appellant requests a remand for sentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We address each claim in turn.
I. Voluntary Guilty Plea
Cosme-Piri and Ortiz-Torres ask us to vacate their convictions and remand their cases for trial on the ground that their guilty pleas were not voluntary. While the entry of a guilty plea “does not preclude an attack on the plea‘s voluntariness,” United States v. Sahlin, 399 F.3d 27, 31 (1st Cir.2005), because neither appellant sought to withdraw his guilty plea before the district court, we review the district court‘s acceptance of their pleas for plain error. United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir.2004) (citing United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)), cert. denied, 543 U.S. 1175, 1176, 125 S.Ct. 1389, 1392, 161 L.Ed.2d 158, 160 (2005).
To establish that the district court committed error in accepting their guilty pleas, appellants must point to a “fundamental defect” in the change of plea hearing itself. See United States v. Bierd, 217 F.3d 15, 19 (1st Cir.2000); see also Sahlin, 399 F.3d at 31 (error must affect substantial rights). Appellants argue that the joint change of plea hearing was fundamentally defective because it failed to ensure that their guilty pleas, entered as part of a package plea agreement, were truly voluntary. As in many such “package plea” arrangements, the government offered the entire group of defendants charged in connection with the La Plena drug point a favorable plea and sentencing recommendation on the condition that all the co-defendants enter guilty pleas.
We have previously recognized that such package deals create a significant risk that one defendant will plead guilty against his will in order for his co-defendants to obtain the offered benefit. United States v. Abbott, 241 F.3d 29, 34 (1st Cir.2001); United States v. Martinez-Molina, 64 F.3d 719, 732-33 (1st Cir.1995). Thus, we have crafted two safeguards designed to minimize this risk of coercion. Mescual-Cruz, 387 F.3d at 8 (citing Martinez-Molina, 64 F.3d at 732-33). First, the prosecution should inform the district court that the defendant‘s guilty plea is part of a package deal. Id. Second, the district court should carefully ascertain the
The record of the Rule 11 proceeding below reflects that both safeguards were observed. First, there is little doubt that the district court was fully aware that all the defendants, save for Mattei-Albizu, were entering their pleas as part of a package deal. At the joint change of plea hearing, in the presence of all defendants and their respective counsel, the government disclosed to the court that the individual pleas were part of a package deal. Indeed, on several occasions throughout the change of plea hearing the district court specifically referred to the package nature of defendants’ pleas.
Second, the district court‘s Rule 11 inquiry was more than sufficient to guard against the risk of co-defendant coercion. The court individually questioned the defendants, asking whether they were threatened or coerced by “anyone” or “anybody” into entering their individual guilty pleas. Although this alone was likely sufficient, see, e.g., Mescual-Cruz, 387 F.3d at 9 (“anyone” or “anybody“); United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir.1996) (“anyone“), the court inquired further. It specifically named each co-defendant and asked whether any of them had threatened or coerced Ortiz-Torres or Cosme-Piri into pleading guilty, thereby probing whether the increased likelihood of co-defendant coercion in the package-plea context had affected either of their decisions to plead guilty.
In light of these additional safeguards, the district court was entitled to rely upon Cosme-Piri‘s and Ortiz-Torres‘s representations, made under oath, that they were neither coerced nor threatened into making their pleas. See United States v. Marrero-Rivera, 124 F.3d 342, 349 (1st Cir.1997). The only indication of the contrary comes from Cosme-Piri‘s and Ortiz-Torres‘s general allegations of coercion on appeal, which are insufficient, absent record support, to invalidate their guilty pleas. See Sanchez-Barreto, 93 F.3d at 23. Finding no error, plain or otherwise, in the district court‘s acceptance of their guilty pleas, we affirm Ortiz-Torres‘s and Cosme-Piri‘s convictions.
II. Sentencing Issues
The entry of a guilty plea does not itself waive a defendant‘s right to challenge the ensuing sentence. United States v. Gonzalez-Mercado, 402 F.3d 294, 301 (1st Cir.2005). Renovales-Velez, Cosme-Piri, Ortiz-Torres, and Mattei-Albizu advance such challenges.
A. Renovales-Velez
Renovales-Velez argues that the district court erred by failing to impose his federal sentence concurrently with his undischarged term of state imprisonment as required under
Ultimately, Renovales-Velez‘s presentence report listed four prior drug-related convictions in the Superior Court of Puerto Rico: on December 21, 1994, Renovales-Velez was arrested for possession of cocaine with intent to distribute for which he was sentenced to three years’ imprisonment; on January 25, 1995, he was arrested and charged with the second and third offenses, possession of marijuana and heroin with the intent to distribute, for which he was sentenced to a total of six years’ imprisonment; and on February 23, 1995, he was arrested and charged with possession with the intent to distribute cocaine, for which he was sentenced to two years’ imprisonment.3 Although he received a sentence of eleven-years’ imprisonment on the four offenses, Renovales-Velez had served only 35 months of that sentence before being transferred to federal custody to face the instant charges.
Since his prior drug offenses occurred during the period of the charged cocaine trafficking conspiracy, the presentence report recommended that they be treated as overt acts, resulting in zero criminal history points. Consistent with the recommendation of the presentence report and the agreement of the parties, the district court assessed Renovales-Velez zero criminal history points for his prior convictions, leaving him with a criminal history category of I. Recognizing that Renovales-Velez had been incarcerated due to these prior convictions during a significant portion of the charged conspiracy, the district court found him to be less culpable than his co-defendants, and accordingly, sentenced him to 238 months’ imprisonment, rather than the 252-month sentence provided for in the plea agreement.4
On appeal Renovales-Velez argues that the district court was required under
Renovales-Velez argues that because his state court offenses were treated as overt acts in furtherance of the conspiracy, they were treated as relevant conduct under
In the instant case, we face precisely this kind of “multiple offense” situation. Renovales-Velez‘s undischarged term of state imprisonment was the result of four separate offenses. Even assuming that, in reaching its drug quantity determination and corresponding offense level, the district court took into account his two prior cocaine offenses,6 it could not have taken into account offenses for possession of marijuana with intent to distribute and possession of heroin, since these convictions punished conduct unrelated to that punished by the instant cocaine trafficking conviction. Thus, as in Caraballo, Renovales-Velez‘s undischarged state term was the result of multiple offenses, some of which may have been taken into account in setting his offense level for the federal conviction, while the rest clearly were not. 200 F.3d at 27-28. “In short, because not all of the conduct from which [Renovales-
Thus proceeding under subsection (c), the district court enjoyed the discretion to impose a wholly concurrent, partially concurrent, or wholly consecutive sentence, so long as the end result was reasonable. See United States v. Vazquez-Alomar, 342 F.3d 1, 5 (1st Cir.2003) (quoting Caraballo, 200 F.3d at 28-29). The court exercised this discretion by sentencing Renovales-Velez to a term of imprisonment 14 months less than that stipulated to in the plea agreement, which had the effect of imposing part of his federal sentence concurrently with his undischarged state sentence, while imposing the remainder consecutively. The court specifically stated that it was imposing this sentence in recognition of the time Renovales-Velez was incarcerated on his prior drug offenses, thereby furthering the underlying policy of
B. Cosme-Piri
1. Drug quantity
Cosme-Piri argues that the district court sentenced him based on a flawed drug-quantity calculation. Because he objected to the calculation at sentencing, we review any legal error of the district court de novo, United States v. Barbour, 393 F.3d 82, 91-92 (1st Cir.2004), cert. denied, 546 U.S. 927, 126 S.Ct. 212, 163 L.Ed.2d 204 (2005), while reviewing its factual findings for clear error. United States v. Santos, 357 F.3d 136, 140 (1st Cir.2004).
Cosme-Piri stipulated to the scope of the conspiracy‘s drug trafficking operations as well as to the amount of narcotics for which he was personally responsible.8
At sentencing, counsel for Cosme-Piri objected to the offense-level computation in the presentence investigation report. He requested that the district court lower the drug-quantity calculation because Cosme-Piri had participated in the conspiracy for a shorter period of time than other co-conspirators whose plea agreements provided for lesser drug quantities. The government responded that Cosme-Piri had specifically stipulated in his plea agreement to the amount of cocaine for which he personally was responsible and this amount was not tied to the length of his involvement in the conspiracy.
The court rejected Cosme-Piri‘s request and sentenced him to 252 months’ imprisonment, as provided in the plea agreement. The court explained that other co-defendants had received drug-quantity reductions in return for their stipulation to leadership role enhancements, and not because their involvement in the conspiracy was any less than that originally contemplated in their plea agreements. This trade-off was necessary to ensure that the government‘s sentencing recommendation would remain 252 months’ as stipulated in the plea agreements.
Cosme-Piri argues that the district court erred in sentencing him based on the stipulated drug quantity instead of making an individualized finding as to the amount of drugs specifically attributable to him. In support, he relies upon United States v. Colon-Solis, 354 F.3d 101, 102-03 (1st Cir.2004), which held that a district court could not automatically shift a stipulated conspiracy-wide drug-quantity amount to an individual conspirator in order to trigger a statutory mandatory minimum.
However, this reliance is misplaced, since the defendant in Colon-Solis had stipulated only to the conspiracy-wide drug amount, and there remained an “open question” as to whether he personally was responsible for a lesser quantity. See id. 102. Here, Cosme-Piri‘s stipulation as to the amount of drugs specifically attributable to him left no such open question. Although the district court was not required to follow this stipulation, it was entitled to rely upon it in determining the appropriate sentence, United States v. Teeter, 257 F.3d 14, 28 (1st Cir.2001), and such reliance is not clearly erroneous, see United States v. Santos, 357 F.3d 136, 140-41 (1st Cir.2004).9
Cosme-Piri‘s second attack on the drug-quantity calculation focuses on the drug-quantity reductions granted to some of his co-conspirators. Citing no legal authority in support, Cosme-Piri claims that, notwithstanding his plea agreement, he is entitled to a similar reduction because the district court‘s stated reasons for the reductions were arbitrary and not related to facts proved beyond a reasonable doubt.10
A review of the record convinces us that the district court‘s drug-quantity determination as to Cosme-Piri was anything but arbitrary; rather, it reflected, to the kilogram, the quantity Cosme-Piri admitted to in his plea agreement. Once again, the court was not bound by this admission, and could have determined that he was responsible for less. Its refusal to do so was not clearly erroneous. See Teeter, 257 F.3d at 28; Santos, 357 F.3d at 140.
2. Term of Supervised Release
Cosme-Piri advances two arguments in favor of vacating the supervised release term of his sentence. First, he claims that the five-year term in the written judgment violated his right to be present at sentencing because the district court had announced a contrary, three-year term, at sentencing.11 Second, Cosme-Piri argues that the drug testing condition of his supervised release improperly delegates authority to the probation officer.
We review Cosme-Piri‘s right to be present claim for harmless error. United States v. Melendez-Santana, 353 F.3d 93, 108 (1st Cir.2003), overruled on other grounds by United States v. Padilla, 415 F.3d 211 (1st Cir.2005) (en banc). “A criminal defendant has the right to be present at his own sentencing.” United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir.2005). Thus, if a district court‘s oral sentence materially conflicts with its subsequent written expression, the tendency is to honor the oral. Id. (quoting United States v. Cali, 87 F.3d 571, 579 (1st Cir.1996)). However, no material conflict exists where the defendant is on notice that he is subject to the terms included in the written judgment. Vega-Ortiz, 425 F.3d at 22-23 (citing United States v. Tulloch, 380 F.3d 8, 12 (1st Cir.2004)); see also United States v. Ferrario-Pozzi, 368 F.3d 5, 8-9 (1st Cir.2004) (finding no material conflict between oral sentence and written judgment imposing $3.7 million forfeiture where defendant had notice that forfeiture of at least two million dollars would be component of sentence).
While there was surely a conflict between the district court‘s oral pronouncement of a three-year term of supervised release and the five-year term included in the written judgment, there is overwhelming evidence that Cosme-Piri knew well before the written judgment was issued that he faced a five-year term of supervised release and that the three-year term was announced in error. First, and foremost, the statute criminalizing the drug offense to which Cosme-Piri pled guilty mandates a supervised release term of “at least five-years.” See
At no point did Cosme-Piri object to the length of the supervised release term. When the district court stated that it was imposing a three-year term, in contravention of the statutory minimum, the plea agreement, and the presentence investigation report, it became incumbent upon Cosme-Piri to request further clarification, which he did not do. See Tulloch, 380 F.3d at 14 n. 7. Indeed, the need for clarification was especially acute in this case, since the district court‘s oral pronouncement of a three-year term at sentencing hearing was immediately preceded by its reference to a five-year term.12 In this context, the district court‘s isolated reference to a three-year term appears to have been an inadvertent mistake. Although this reference was erroneous, the error was harmless in light of the overwhelming evidence that Cosme-Piri had notice that a five-year term would apply. See Vega-Ortiz, 425 F.3d at 21-23.
Cosme-Piri‘s second challenge to the term of supervised release likewise fails. Both at sentencing and in its written judgment, the district court stated that Cosme-Piri‘s term of supervised release would be subject to the following condition:
The defendant ... shall submit to a drug test within fifteen (15) days of release on supervised release, and thereafter when so requested by the U.S. Probation Officer.
Cosme-Piri argues that this condition improperly delegates authority to the probation officer to determine the frequency and quantity of drug testing.
In United States v. Melendez-Santana, 353 F.3d 93 (1st Cir.2003), a panel of this court held that a district court commits plain error by delegating to a probation officer the authority to determine a defendant‘s drug-testing regimen while on supervised release. Id. 106 (citing
Ortiz-Torres claims that, pursuant to
A defendant qualifies for a two-level reduction for acceptance of responsibility under
Ortiz-Torres argues that his acceptance of responsibility was sufficiently timely and beneficial to the government to warrant a three-level reduction in light of the numerous witnesses and anticipated length of the trial the government and district court were able to avoid. To earn a three-level reduction, a defendant must give notice of his intent to plead guilty “at a sufficiently early point in the process so that the government may avoid preparing for trial,” which will usually be “particularly early in the case.”
D. Mattei-Albizu
Unlike his co-defendants, Mattei-Albizu was not a party to the package plea agreement. Instead, he entered a straight plea of guilty to conspiring to sell five kilograms or more of cocaine, as alleged in the indictment, an offense that carried a statutory minimum sentence of ten years. See
Following the evidentiary hearings, the district court imposed a two-level enhancement under
Mattei-Albizu contends that the drug-quantity determination and firearm enhancement were unwarranted and that the district court‘s criminal history calculation was in error. We review the district court‘s interpretation of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Caldwell, 358 F.3d 138, 142 (1st Cir.2004).
1. Firearm enhancement
Mattei-Albizu challenges the two-level enhancement he received for possession of a dangerous weapon during the commission of a drug trafficking offense on the ground that the government failed to establish that it was reasonably foreseeable to him that firearms would be possessed in furtherance of the conspiracy. See
Mattei-Albizu‘s argument would gain greater traction if the government had stuck to its initial position: seeking a dangerous weapon enhancement based on proof that he was involved in a drug-related murder committed in furtherance of the charged conspiracy. However, it abandoned that theory and instead sought the enhancement under
The district court made a finding of reasonable foreseeability here, stating that it had “plenty of evidence” from which to conclude that weapons were used by members of the conspiracy and that this use of weapons was foreseeable to Mattei-Albizu. Agent Iglesias-Moreno testified that members of the La Plena organization carried a variety of weapons and handguns, with sellers carrying weapons for “keeping everything under control” at the drug point, and that he had seen weapons seized by police from members of the organization. Unindicted co-conspirator Camacho-Aponte testified that he and Mattei-Albizu were drug sellers, that sellers were always armed at the drug point, and that he personally saw Mattei-Albizu carrying weapons on several occasions when the two went out “hunting” for members of rival drug gangs in order to kill them. From this testimony, the district court could have concluded that it was reasonably foreseeable to Mattei-Albizu that a dangerous weapon would be possessed in furtherance of the conspiracy.
Pointing to Camacho-Aponte‘s criminal record, his hope of obtaining a more lenient sentence in cases pending against him in state court, and his desire to deter federal authorities from filing charges against him for his admitted participation in a drug-related murder, Mattei-Albizu argues that Camacho-Aponte‘s testimony should have been completely disregarded as unreliable or, at the very least, considered with caution. It is for the sentencing court to assess the credibility of the witness, and it is the for the appellate court to defer to that assessment unless it is clearly erroneous. See, e.g., United States v. Nunez, 19 F.3d 719, 724 (1st Cir.1994) (citing United States v. Brum, 948 F.2d 817, 819 (1st Cir.1991)); see also
2. Drug quantity
Mattei-Albizu contends that there was insufficient evidence to support the district court‘s determination that he should be held responsible for 150 kilograms of cocaine, and therefore, he should be held responsible only for the amount he admitted to at his change of plea hearing. As an admitted participant in a drug trafficking conspiracy, Mattei-Albizu is re-
Mattei-Albizu argues that the testimony at sentencing regarding the conspiracy-wide drug-quantity was too inconsistent, and hence, too unreliable, to support an individualized drug-quantity finding. Specifically, he points to the wide variance between the conspiracy-wide amounts testified to by Agent Iglesias-Moreno and co-conspirator Camacho-Aponte. Although the two witnesses provided differing quantities, both testified to amounts greater than the amount the district court attributed to Mattei-Albizu.
Based on drug seizures by other agents and information provided by Camacho-Aponte, Agent Iglesias-Moreno testified that approximately two kilos each of heroin, cocaine and crack were sold out of the La Plena drug point each week. From this, Agent Iglesias-Moreno estimated 16 that from 1997 until 2001, the period in which Mattei-Albizu admitted to participating in the conspiracy, at least five hundred kilos of cocaine were distributed at La Plena. However, Camacho-Aponte testified that he, like Mattei-Albizu and other sellers at La Plena, sold one kilogram each of heroin, cocaine, and crack every eight days. The government concedes that an extrapolation of Camacho-Aponte‘s testimony yields a total of approximately 45 kilograms of each narcotic per year, which multiplied by the four to five years Mattei-Albizu admitted to being a member of the conspiracy, yields an amount between 180 and 225 kilograms of each narcotic, a significantly lower total than the “at least 500 kilograms” testified to by Agent Iglesias-Moreno.
The district court recognized that the drug quantity testified to by Agent Iglesias was more than double that testified to by Camacho-Aponte at the evidentiary hearing. However, it specifically credited Camacho-Aponte‘s testimony and adopted Camacho-Aponte‘s drug-quantity estimate in finding that Mattei-Albizu was responsible for at least 150 kilograms of cocaine for an offense level of 38. See
3. Criminal history
Based on Mattei-Albizu‘s two prior offenses, the district court assigned him a criminal history category of IV. Mattei-Albizu claims that this was error because both prior offenses were “relevant conduct” to the instant conspiracy, and therefore neither should have been counted in calculating his criminal history category. See
Mattei-Albizu was convicted for possessing narcotics in 1993 and 1994, and sentenced for both offenses in 1995. In connection with the instant conspiracy prosecution, the government filed an informative motion designating the 1993 and 1994 offenses as overt acts in furtherance of the conspiracy. At his plea hearing, Mattei-Albizu admitted to being a member of the charged conspiracy from 1997 to 2001. Because Mattei-Albizu did not admit to being a member of the conspiracy during the time he committed his prior offenses, the presentence report recommended a criminal history category of IV to take into account the two prior offenses, rather than treating them as relevant conduct to the charged conspiracy.
Before presenting its evidence at sentencing, the government informed the district court that it would not dispute Mattei-Albizu‘s stipulation that his participation in the conspiracy began in 1997. However, in so doing, it took the position that the 1993 and 1994 offenses could no longer be considered as overt acts in furtherance of the conspiracy, and should therefore be counted towards his criminal history category. Mattei-Albizu disputed the government‘s contention that the prior offenses were outside the scope of the conspiracy, citing the government‘s informative motion in which it had specifically designated them as overt acts. In response, the government conceded that if the case had proceeded to trial it would indeed have sought to prove that Mattei-Albizu was involved in the conspiracy as early as 1994 and would have presented the second offense as an overt act in furtherance of the conspiracy. However, the government reminded the court that the case was not going to trial because of Mattei-Albizu‘s guilty plea, which included the stipulation that he joined the conspiracy in 1997.
In attempting to sort out the parties’ arguments, the district court explained that the parties had to choose between treating the prior offenses as overt acts or for criminal history purposes. The district court chose the latter, adopting the recommendation of the presentence report and assessing Mattei-Albizu six criminal history points for the two prior offenses, as well as an additional two points because he committed the instant offense within two years after his release from imprisonment on the prior offenses. See
Appellants Ortiz-Torres, Cosme-Piri, Torres-Santiago, Renovales-Velez, and Mattei-Albizu each ask for their cases to be remanded to the district court for re-sentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Torres-Santiago, Ortiz-Torres, Renovales-Velez, and Cosme-Piri concede that they failed to preserve their Booker claims in the district court; thus, we review their sentences for plain error. See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005).17 Mattei-Albizu argues that he preserved his Booker claim by objecting to the sentencing court‘s drug-quantity determination. A defendant preserves Booker error by arguing to the district court that it erred under either Apprendi or Blakely or arguing that the Guidelines were unconstitutional. United States v. McLean, 409 F.3d 492, 505 (1st Cir.2005) (quoting Antonakopoulos, 399 F.3d at 76), cert. denied, 546 U.S. 970, 126 S.Ct. 466, 163 L.Ed.2d 354 (2005). Mattei-Albizu raised no such argument before the district court. Therefore he, like his co-conspirators, must proceed under the plain error standard.
Under that standard, a defendant must show four things: (1) that an error occurred, (2) that the error was clear or obvious, (3) that it affected substantial rights, and (4) that the error seriously impaired the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 399 F.3d at 75 (citing United States v. Olano, 507 U.S. 725, 732-736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Because the district court treated the guidelines as mandatory at sentencing, the first two requirements are satisfied. See, e.g., United States v. Kornegay, 410 F.3d 89, 99 (1st Cir.2005).18 At issue is whether appellants satisfy the third and the fourth.
The operative question with respect to the third requirement is “whether defendant has shown a reasonable probability the sentencing judge would, in a non-mandatory Guidelines system, have imposed a more lenient sentence.” United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir.), cert. denied, 546 U.S. 902, 126 S.Ct. 247, 163 L.Ed.2d 226 (2005). We are not overly demanding in our proof; where the record or a plausible proffer reasonably indicates that an advisory guideline regime might have led the sentencing judge to a different result, we will remand for resentencing. United States v. Lewis, 406 F.3d 11, 21 (1st Cir.2005) (quoting United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.2005)). However, the mere assertion that the district court would have imposed a more favorable sentence is insufficient. McLean, 409 F.3d at 505. Instead, we require the appellant to present “specific facts” to justify a Booker remand. Kornegay, 410 F.3d at 100.
Pursuant to a plea agreement, Torres-Santiago stipulated to being responsible for between 50 and 150 kilograms of cocaine for a base offense level of 36. See
Torres-Santiago argues that consideration of the sentencing factors of
B. Cosme-Piri
Pursuant to a plea agreement with the government, Cosme-Piri stipulated that he was responsible for “not less than one hundred fifty kilograms of cocaine” and that “such amount should be the proper drug quantity to be considered” for sentencing purposes. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility.
Like Torres-Santiago, Cosme-Piri argues that consideration of the
C. Ortiz-Torres
Pursuant to a plea agreement, Ortiz-Torres stipulated that he was responsible for at least 150 kilograms of cocaine. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility.
At sentencing, this discrepancy was brought to the attention of the district court. In order to accommodate the leadership role enhancement while still honoring the 252-month sentencing recommendation, the court recommended that the parties amend the plea agreement by reducing the drug quantity from 150 kilograms to between 50 and 150 kilograms of cocaine.20 The parties followed the district court‘s recommendation and amended the plea agreement accordingly. Accepting the amended plea, the district court sentenced Ortiz-Torres to the 252 months to which the parties had agreed.
Ortiz Torres points to nothing in the record suggesting a reasonable probability that he would fare any better under an advisory guidelines regime. Indeed, he would be hard-pressed to make such a showing in light of the district court‘s stated desire to honor the agreed to 252-month sentence, even in the face of a contrary, and significantly higher, recommendation in the presentence investigation report. The district court‘s statements that it was “going out of [its] way” to honor the 252-month recommendation suggests a reasonable probability that Ortiz-Torres would receive an identical sentence on remand. Because Ortiz-Torres shows nothing to the contrary, he fails to establish that he was prejudiced by the sentencing court‘s enforcement of his bargain.
D. Renovales-Velez
In his plea agreement, Renovales-Velez admitted responsibility for at least 150 kilograms of cocaine for a base offense level of 38.
To establish a reasonable probability of a more lenient sentence on remand, Renovales-Velez relies solely on the fact that his sentence was fourteen months lower than the sentence the government agreed to in the plea agreement. Although he argues that this is evidence the district court would go even lower under an advisory guidelines regime, it could just as easily indicate that the district court would exercise its discretion in an identical manner on remand. See Sahlin, 399 F.3d at 33 (finding no possible claim of prejudice where defendant receives sentence lower than that stipulated to in a plea agreement). Renovales-Velez points to no additional facts he would present to the district court to convince it that it should go lower than the plea agreement than it already did. See McLean, 409 F.3d at 505. Moreover, the fact that the sentence he received was near the bottom of the applicable guidelines range is insufficient, standing alone, to establish prejudice. Kornegay, 410 F.3d at 99-100. Under these circumstances, Renovales-Velez fails to show he was prejudiced by the court‘s mandatory application of the sentencing guidelines.
E. Mattei-Albizu
Mattei-Albizu entered a straight plea of guilty to conspiring to sell five kilograms or more of cocaine, as alleged in the indictment, which carried a statutory minimum sentence of ten years and a maximum of life imprisonment. See
Following an evidentiary hearing on the drug-quantity and firearm-possession sentencing factors, the district court imposed a two-level enhancement for possession of a dangerous weapon during the commission of a drug trafficking offense.
Mattei-Albizu contends that the disparity between his 324-month sentence and the 108-month sentence received by one of his coconspirators, Jorge Lagase,21 requires a remand so that he may be resentenced in accordance with his “real conduct.” As the district court recognized, Lagase and Mattei-Albizu were not similarly situated; thus, there is no reason for their sentences to be similar. Lagase entered into a plea agreement much earlier in the prosecution of the present conspiracy and, unlike Mattei-Albizu, did not request an evidentiary hearing to contest all the facts underlying the applicable sentencing factors. Stripped of its sentencing
IV. Conclusion
The convictions and sentences imposed by the district court are affirmed.
Notes
And the Court, because this defendant spent a considerable amount of time in jail during the conspiracy, and his participation is less than the other gentlemen who have been also sentenced by this Court, therefore, sentences him within the guideline but to a lower amount than recommended in the plea....
(b) If ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
(c) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
If ... a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of
Under this framework, Renovales-Velez would likewise not be entitled to concurrent sentencing because he fails to demonstrate that his prior cocaine-related offenses were “the basis for an increase” in the drug quantity determination underlying the offense level for the instant cocaine trafficking offense.
MR. PEREZ [counsel for Cosme-Piri]: We were referring to the fact that he was this
THE COURT: But some of them have been granted reduced amounts because they‘re going to accept the status or because of something else. Wasn‘t this what you agreed to in the very beginning?.... [W]asn‘t this a reverse, sort of, agreement where you all agreed on the final number? What the Court is doing is adding two points [to another co-defendant] because he is a leader, and on the other hand reducing the drugs a little bit so that you all end up in the same place which was what you had bargained for.
At sentencing the district judge stated, “Upon release from confinement the defendant [Cosme-Piri] shall be placed on supervised release for a term of at least three years under [certain] terms and conditions.” (Emphasis added). However, the written judgment stated, “Upon release from imprisonment, the defendant shall be on supervised release for a term of Five (5) YEARS.” (Emphasis added).Based on a total offense level of 38, and criminal history category one, the guideline imprisonment range in this particular case is from 235 to 293 months, with a fine range of twenty-five thousand to four million, plus a supervised release term of not more than five years.
The Court will follow the plea agreement as stipulated by the parties and sentence the defendant accordingly. (Emphasis added).
The court shall also order, as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance. (Emphasis added).
If the Court were to grant you three points that would mean that everyone would wait until the jury is selected. And the law is clear that three points are granted only if it is timely. And a plea entered after the jury has been selected is definitely not timely.
I am very aware that the witness produced by the United States, Mr. Camacho, would not qualify to be working in the last ten years with Mother Teresa in Calcutta, nor with Sister Isolina in Ponce. These were tough hombres working together selling drugs, and they were armed pursuant to the testimony of Mr. Camacho.
Now, I‘m going to respect that [plea] agreement, but I want you all to know that I barely accept it ... because this gentleman has a few, and I mean a few murders pending in the state court.
You know very well that we‘re doing him a favor by sentencing him today because I would very well, say, let‘s wait until we see what happens with those murders, and when he comes back, if he‘s ever found in one, he‘s serving life. But that was the agreement and I‘m going to respect it. But I want him to know that I have the option today to postpone until all criminal cases are finished in the local court. And if he had any murder or any manslaughter this is a lifer, you know that.
This is what he agreed to, so why don‘t we briefly amend the plea, decrease the drugs, we remain with the amount [of] leadership that was found and it is a just solution to all. I am willing to approve it in that fashion.