Eddie Rodriguez was convicted by a jury in the District of Puerto Rico of several drug offenses. After a partially successful appeal of his conviction and sentence, he was resentenced by the district court on remand. He now appeals the resulting sentence, arguing that the district court failed to follow proper sentencing procedures and erroneously determined the quantity of drugs for which he was accountable. After careful consideration, we affirm.
I. Facts & Background
Eddie Rodriguez was found guilty of five drug-related offenses following a seven-day jury trial. This appeal arises from his resentencing after this court vacated two of those convictions and remanded the case to the district court. Because this appeal follows a conviction, to the extent that it relies upon evidence submitted to the jury, we view those facts in the light most favorable to the verdict. See United States v. Mercado,
Rodriguez was one of forty-seven defendants named in a seven-count indictment alleging that, among other things, between 2006 and March 27, 2009, they conspired to operate a drug point in the San Antonio Public Housing Project (commonly known as “Carioca”), in the municipality of Gua-yama, Puerto Rico.
As relevant to Rodriguez, the indictment alleged that the defendants knowingly conspired to possess with intent to distribute various amounts of cocaine base (“crack”), heroin, cocaine, marijuana, and Oxycodone within 1,000 feet of a school and/or public housing facility and/or playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860 (the “conspiracy count”), and that, aiding and abetting each other, they knowingly and intentionally possessed with intent to distribute one kilogram or more of heroin, fifty grams or more of crack, five kilograms or more of cocaine, and one thousand kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2 (the “substantive counts”).
Following a jury verdict finding Rodriguez guilty of all five counts, the probation department prepared a presentence report (PSR) that recommended Rodriguez be held accountable for more than 4.5 kilograms of crack (corresponding to the highest base offense level, 38, under the then-current sentencing guidelines). The pro
At the original sentencing hearing, the district court considered Rodriguez’s role in the conspiracy and determined that he was accountable for 500 grams to 1.5 kilograms of crack, corresponding to a base offense level of 34. The court stated that it did not “think we should go all the way to 38,” as recommended in the PSR. It also rejected the probation officer’s in-court suggestion to use a base offense level of 36, corresponding to 1.6 kilograms,
In his initial appeal, Rodriguez challenged his conviction and sentence, raising, as relevant here, two issues: (1) whether the district court erred in calculating the quantity of drugs attributable to him for purposes of determining his sentencing guideline range; and (2) whether the district court lacked jurisdiction under the Federal Juvenile Delinquency Act (F JDA), 18 U.S.C. § 5032, for insufficient evidence that he participated in the conspiracy or committed any of the substantive drug offenses after he reached the age of majority.
Absent certain exceptions not applicable here, the FJDA prevents district courts from exercising jurisdiction over a defendant who is under the age of twenty-one when criminal proceedings are commenced for acts that occurred before he turned eighteen. Rodriguez entered the conspiracy before his eighteenth birthday, was absent from the conspiracy from May 2007 to August 2008 because he was incarcerated in a juvenile detention facility, and attained the age of majority during his incarceration. We affirmed his conviction of the conspiracy count, finding that there was sufficient evidence of post-majority participation. We also affirmed his convictions of the substantive marijuana and crack counts, but vacated his convictions of the substantive heroin and cocaine counts for lack of evidence that, after Rodriguez had reached the age of eighteen, he or his co-conspirators possessed or distributed either drug. Because the vacated counts may have “alter[ed] the dimensions of the sentencing ‘package,’ ” Díaz,
In resentencing on remand, the district court considered Rodriguez’s extensive role in the conspiracy, based upon his participation both pre — and post-majority, and determined that he could “conservatively” be held accountable for at least one year’s worth of crack sales at the drug point — which, at sixty grams per day, amounted to 21.9 kilograms. The court instead selected a “very, very conservative number” of between 150 and 500 grams of crack, which it adjusted to 280 to 840 grams of crack to reflect the quantity cutoffs in the new crack sentencing guidelines.
II. Analysis
On appeal, Rodriguez claims that the district court failed to follow proper sentencing procedures and that it erred in multiple respects when determining the quantity of drugs for which he would be held accountable for sentencing purposes.
A. Procedural Error Under § 3553
Rodriguez contends that the district court committed procedural error in arriving at his sentence by failing to consider the sentencing factors set out in 18 U.S.C. § 3553(a) and by failing to give a statement of reasons for selecting a particular sentence as required by § 3553(c). Because he did not raise these claims before the district court, our review is for plain error. See United States v. Medina-Villegas,
Pursuant to the Sentencing Reform Act of 1984, 98 Stat.1987, 18 U.S.C. § 3551 et seq., as modified by United States v. Booker,
This court has endorsed a “sequential determination of the guideline range, including any proposed departures, followed by the further determination whether other factors identified by either side warrant an ultimate sentence above or below the guideline range.” United States v. Jiménez-Beltre,
Here, the district court did not explicitly address the § 3553(a) factors, nor did it succinctly provide a clear statement of reasons for imposing a sentence at a particular point in the guideline range as required by § 3553(e). And, to the extent that the court implicitly considered the § 3553(a) factors, it appears to have done so in selecting a guideline range, rather than first calculating the guideline range supported by the evidence and then considering the § 3553(a) factors to determine the appropriate sentence above, within, or below that range. That is, after determining that the evidence supported holding Rodriguez accountable for 21.9 kilograms of crack, the district court rejected the corresponding guideline range as too high, implicitly taking into consideration several of the § 3553(a) factors, and then, with no apparent evidentiary basis, selected a drug quantity that would yield a guideline range that reflected an appropriate sentence.
The district court’s failure to state explicitly that it was addressing any § 3553(a) factors or to provide any statement of reasons for selecting the particular sentence within the guideline range is somewhat troubling. However, we are somewhat more concerned about the district court’s procedure for determining the appropriate guideline range. The drug-quantity finding, supported by a preponderance of the evidence, determines the base offense level.
Nonetheless, in this particular ease, the procedure followed by the district court did not affect Rodriguez’s substantial rights. “[0]n this record, the likelihood of a different sentence on remand is an empty hope unsubstantiated by any plausible rationale. Accordingly, there is no principled way that we can find plain error arising out of the district court’s failure to effect literal compliance” with § 3553(a) and (c). Medina-Villegas,
At various points throughout the sentencing hearings, the district court appears to have considered the nature and circumstances of the offense;
“[A] court’s reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sen-tence report with what the judge did.” Jiménez-Beltre,
B. Drug-Quantity Calculation
Rodriguez raises three interrelated claims with respect to the district court’s drug-quantity calculation. First, he argues that the district court failed to make an individualized determination regarding the quantity of drugs that were attributable to him, instead automatically holding him accountable for the conspiracy-wide amount. Second, he argues that, to the extent the court made an individualized determination, that determination was in error. Finally, he challenges the reliability of the evidence upon which the conspiracy-wide calculation was based. We address these claims seriatim.
“[W]hen a district court determines drug quantity for the purpose of sentencing a defendant convicted of participating in a drug-trafficking conspiracy, the court is required to make an individualized finding as to drug amounts attributable to, or foreseeable by, that defendant.” United States v. Colón-Solís,
Rodriguez’s first argument is a non-starter. The record plainly reflects that the district court considered Rodriguez’s role in, and conduct in furtherance of, the conspiracy and made an individualized determination that he could reason
Rodriguez’s claim that the individualized determination was erroneous requires more analysis, but is ultimately no more successful. Rodriguez argues that the district court clearly erred in finding that all of the conspiracy’s crack sales during the time of his participation in the conspiracy were foreseeable to him and within the scope of his conspiratorial agreement. The record suggests that Rodriguez was significantly less involved with crack after he reached the age of eighteen than he had been before his detention. We previously affirmed his conviction of the substantive crack offense on the basis of a single seizure of 150 vials of crack from a co-conspirator after Rodriguez’s eighteenth birthday.- See Diaz,
First, the parties agreed below, and Rodriguez does not dispute here, that a defendant who joined a conspiracy before the age of majority can be held accountable, for sentencing purposes, for his own and his co-conspirators’ acts that occurred before he reached the age of majority once it has been shown that he ratified his participation in the conspiracy after attaining the age of majority.
When considering Rodriguez’s pre-ma-jority conduct, the record supports the finding that all crack sales during that period were within the scope of his agreement and reasonably foreseeable to him. The trial testimony indicated that, before his incarceration, he occupied many roles in the drug point: He served as a runner “in charge of’ the crack, bringing packages of crack to the sellers, replenishing their supplies when they ran out, and collecting the proceeds from the sales. He served as a seller of crack on occasion. He served as a triggerman, and would go “on a mission” to shoot members of rival organizations. On these facts, the district court did not clearly err in finding that, pre-majority, the scope of Rodriguez’s conspiratorial agreement encompassed all crack sales at the drug point and that all such sales were reasonably foreseeable to him. Even if the evidence does not support the same conclusion with respect to his post-majority participation, his pre-ma-jority participation alone results in the same base offense level (38) that would result from combining the pre- and post-majority amounts.
Second, as noted ■ above, the district court did not ultimately hold him accountable for the entire conspiratorial amount. After finding that he could “easily” be held accountable for 21.9 kilograms of crack, the court held him accountable for only 280 to 840 grams — less than nine percent of the pre-majority conspiracy-wide amount. There is simply no way to read the record in this case and conclude that this smaller quantity was not within the scope of Rodriguez’s agreement and reasonably foreseeable to him. Moreover, at the first sentencing hearing, Rodriguez, through counsel, conceded that a quantity of between 500 grams and 1.5 kilograms was fair. The district court’s individualized drug-quantity finding was not affected by clear error.
We turn now to Rodriguez’s final argument. He contends that the district court’s drug-quantity calculation was not supported by reliable evidence in the record. “Where ... the amount [of drugs] seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1 cmt. n.5. “When it is impossible or impractical to obtain an ex
In making the drug-quantity determination, the district court “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also Cintron-Echautegui,
The district court determined the conspiracy-wide drug quantity during the time of Rodriguez’s participation based upon estimated daily sales. “Extrapolation is a common and permissible way of attributing drugs to a defendant.” United States v. Marquez,
Here, based upon trial testimony, the district court estimated that the conspiracy sold sixty grams of crack each day at the Carioca drug point. A cooperating co-defendant testified that the drug point operated in three daily shifts: a morning shift from 6:00 a.m. to 3:00 p.m., an afternoon shift from 3:00 p.m. to midnight, and a night shift from midnight to 6:00 a.m. He stated that the drug point generally sold over 200 vials of crack during the morning shift, a similar amount during the afternoon shift, and between 150 and 200 vials during the night shift. He also stated that, during the first several days of the month, it could sell over 300 or 400 vials per shift. A cooperating witness stated that the drug point sold eight to nine packages of twenty-five capsules of crack (200 to 225 capsules) during an average weekday shift and sixteen to eighteen packages of twenty-five capsules (400 to 450 capsules) during an average weekend shift. An expert witness testified that each vial or capsule weighed approximately 0.1 grams. The court adopted a conservative estimate of 200 0.1-gram vials or capsules per shift and multiplied by three daily shifts to arrive at an estimate of sixty grams per day. The court then, using a conservative estimate of the duration of Rodriguez’s participation in the conspiracy, multiplied the daily amount by 365 days to determine his total attributable amount, 21.9 kilograms. Finally, notwithstanding the determination that at least 21.9 kilograms of crack sales were within the scope of his conspiratorial agreement and were foreseeable to him, the court held him accountable for less than five percent of that amount.
III. Conclusion
For the foregoing reasons, we affirm Rodriguez’s sentence.
Notes
. This calculation was apparently in error. The probation officer indicated that sixty grams of crack per day over nine months of participation would yield a total of 1.6 kilograms. This calculation is off by a factor of ten; the correct amount is, in fact, 16.2 kilograms.
. On remand, the district court applied the revised crack sentencing guidelines promulgated pursuant to the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372. The new guidelines resulted in guideline range that was more favorable to Rodriguez.
. The relevant purposes are the need for the sentence to "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “afford adequate deterrence to criminal conduct”; "protect the public from further crimes of the defendant”; and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” § 3553(a)(2).
. We note that the drug-quantity calculation did not increase the statutory mandatory minimum or maximum sentence, as the drug quantity found by the jury on the substantive marijuana count triggered a ten-year minimum and life maximum sentence under 21 U.S.C. § 841(b)(1)(A). Therefore, judicial fact-finding does not implicate Apprendi v. New Jersey,
. Although Rodriguez objects to the district court's drug-quantity calculation, an issue we address infra, he has not argued that the district court procedurally erred by reverse-engineering his guideline range. Nor would he; the district court adopted a guideline range that shaved nearly twelve years off the low end and nearly fifteen years off the high end of the range that the court believed the evidence supported.
. “Let’s not forget that Eddie Rodriguez was not just an individual who would be a lookout or facilitator or anything like that. He was an enforcer. He used — carried firearms. He sold, collected rent from a drug point.” “He knew that this was a big time operation. That he knew. He was there. He was an enforcer for them, all that. He was a seller.”
. “So I think that we are doing some sort of balancing act trying to find some sort of justice, or justiciable remedy of this case, which involves a very young guy....” In addition, the court heard defense counsel’s statement addressing various mitigating factors, including Rodriguez’s conduct after release from juvenile detention, that the court should consider. The court expressly disbelieved the trial testimony of the defense witnesses with respect to Rodriguez's post-release conduct, finding it incredible. This court will not lightly discard the sentencing court’s credibility determinations. See United States v. Huddleston,
. "People do horrible things in Guayama and they get away with it.... People get charged left and right with big time crime, including murder, like in this case, and people get dismissed .... [I]n Guayama crime pays, that’s for sure.”
. The court considered and rejected defense counsel’s argument that Rodriguez's sentence should approximate other co-defendants’ sentences, noting that the circumstances were “completely different.”
. “I don’t think we should go all the way to 38 [as it would be based on the drug quantity the court found Rodriguez actually was accountable for]. So I'm going to leave it at 34.” Rejecting the probation officer's sugges
. The court discounted the fifteen months that Rodriguez spent in the juvenile detention facility, relying only on the seven and one-half months between his release and the indictment and conservatively assuming only five and one-half months of involvement before his detention.
. In pre-sentencing briefing on this issue, Rodriguez stated that "the Court may certainly consider conduct which occurred prior to the defendant's eighteenth birthday in determining the defendant's base offense level.... [A] defendant who may not be properly chargeable with certain conduct because of his youth at the time the conduct occurred ... may nonetheless retain sentencing exposure for that conduct which is deemed to be reasonably foreseeable criminal acts in furtherance of the conspiracy.” Defense counsel reiterated this view at the resentencing hearing.
. Assuming that the drug point sold sixty grams of crack per day (an assumption that Rodriguez disputes, and an argument that we address infra), the district court’s conservative estimate of five and one-half months of pre-detention involvement yields accountability for more than ten kilograms of crack, well above the 4.5-kilogram trigger for the highest base offense level.