UNITED STATES OF AMERICA, Appellee, v. EDDIE M. RODRÍGUEZ, Defendant, Appellant.
No. 12-1476
United States Court of Appeals For the First Circuit
September 25, 2013
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José A. Fusté, U.S. District Judge]
Before Lynch, Chief Judge, Stahl and Thompson, Circuit Judges.
Juan Carlos Reyes-Ramos, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
STAHL, Circuit Judge. Eddie Rodríguez 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 Rodríguez 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, 412 F.3d 243, 245 (1st Cir. 2005). We recounted the factual and procedural history of this case in some detail in United States v. Díaz, 670 F.3d 332 (1st Cir. 2012), and thus summarize only the relevant background below, adding subsequent developments as necessary.
Rodríguez 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 Guayama, Puerto Rico.
As relevant to Rodríguez, 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
Following a jury verdict finding Rodríguez guilty of all five counts, the probation department prepared a presentence report (PSR) that recommended Rodríguez 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 probation
At the original sentencing hearing, the district court considered Rodríguez‘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,1 even though “by preponderance . . . he could easily have sold 1.6 kilograms of crack cocaine,” because 34 resulted in “a range that [it] can live with.” With the two-level protected-location enhancement, Rodríguez‘s sentencing guideline range was 188 to 235 months. After noting the disparity between this calculation and the PSR, the court explained that the lower range reflected “some sort of balancing act trying to find some sort of justice” in light of Rodríguez‘s youth. The district court sentenced him to 188 months of imprisonment and ten years of supervised release as to each count, to be served concurrently.
In his initial appeal, Rodríguez 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 (FJDA),
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. Rodríguez 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 Rodríguez 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, 670 F.3d at 344 (quoting United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st Cir. 2008)) (internal quotation marks omitted), we remanded his case to the district court for resentencing. Finally, in light of the remand, we did not reach Rodríguez‘s challenge
In resentencing on remand, the district court considered Rodríguez‘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 cut-offs in the new crack sentencing guidelines.2 This quantity corresponded to a base offense level of 32, and, after the two-level protected-location enhancement, the sentencing guideline range was 151 to 188 months. The district court again imposed a sentence at the bottom of the range, sentencing Rodríguez to 151 months of imprisonment and ten years of supervised release as to each count, to be served concurrently. This timely appeal followed.
II. Analysis
On appeal, Rodríguez 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
Rodríguez contends that the district court committed procedural error in arriving at his sentence by failing to consider the sentencing factors set out in
Pursuant to the Sentencing Reform Act of 1984, 98 Stat. 1987,
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, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc). Thus, the court typically should first calculate the correct guideline range, and then determine whether, after consideration of the
Here, the district court did not explicitly address the
The district court‘s failure to state explicitly that it was addressing any
range was higher than necessary to achieve the sentencing goals, it could have imposed a below-guidelines sentence and articulated why it had done so. Rodríguez did not raise this issue to the district court -- and, as it turned out, this procedure worked in his favor.5 If he had, there would have been error that was both clear and obvious.
Nonetheless, in this particular case, the procedure followed by the district court did not affect Rodríguez‘s substantial rights. “[O]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
At various points throughout the sentencing hearings, the district court appears to have considered the nature and circumstances of the offense;6 the history and characteristics of the defendant;7 the need for the sentence to reflect the seriousness of the offense, provide just punishment, and afford adequate deterrence;8 and the need to avoid unwarranted sentencing disparities.9 After considering all of these factors, the district court determined that the guideline range supported by the evidence
was higher than necessary,10 and settled upon a drug quantity
“[A] court‘s reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did.” Jiménez-Beltre, 440 F.3d at 519. Here, the record demonstrates that the district court did consider -- albeit in a roundabout and implicit way -- the
B. Drug-Quantity Calculation
Rodríguez 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, 354 F.3d 101, 103 (1st Cir. 2004). Under the sentencing guidelines, relevant conduct that may be considered for sentencing purposes includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and . . . in the case of a jointly undertaken criminal activity . . . , all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity . . . .”
Rodríguez‘s first argument is a non-starter. The record plainly reflects that the district court considered Rodríguez‘s role in, and conduct in furtherance of, the conspiracy and made an individualized determination that he could reasonably
Rodríguez‘s claim that the individualized determination was erroneous requires more analysis, but is ultimately no more
successful. Rodríguez 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 Rodríguez 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 Rodríguez‘s eighteenth birthday. See Díaz, 670 F.3d at 343. We assumed that the jury followed the district court‘s Pinkerton instruction and found that the co-conspirator‘s possession of crack was reasonably foreseeable to Rodríguez and was committed in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946) (conspirator may be liable for all foreseeable acts of co-conspirators in furtherance of conspiracy). But that does not mean that all crack sold by the conspiracy can automatically be attributed to Rodríguez as relevant conduct for sentencing purposes. Pinkerton liability is, in some cases, broader than relevant conduct. See United States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003) (“While a conspiracy charge may encompass all acts by co-conspirators in furtherance of the conspiracy, ‘relevant conduct’ is limited to the foreseeable acts resulting from the defendant‘s particular agreement. Thus, the scope of relevant conduct is not necessarily the same as the scope of the entire conspiracy.” (citations and internal quotation marks omitted)); see also
First, the parties agreed below, and Rodríguez 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.12 This court has never specifically so held. In United States v. Welch, 15 F.3d 1202, 1215 (1st Cir. 1993), we considered a drug-quantity calculation that included the defendant‘s pre- and post-majority conduct. We vacated the sentence not because it included pre-majority conduct, but because it was based upon insufficiently reliable evidence. By implication, inclusion of the
defendant‘s pre-majority conduct was permissible. Several of our sister circuits have expressly held that, once post-majority ratification has been shown, relevant conduct for sentencing purposes includes pre-majority acts of the defendant, see United States v. Flores, 572 F.3d 1254, 1269-70 (11th Cir. 2009); United States v. Gibbs, 182 F.3d 408, 442 (6th Cir. 1999), and his co-conspirators, see United States v. Sparks, 309 F. App‘x 713, 717 (4th Cir. 2009) (unpublished); United States v. Thomas, 114 F.3d 228, 267 (D.C. Cir. 1997). However, in light of Rodríguez‘s explicit waiver, and in the absence of briefing by the parties, we need not reach the question and assume, without deciding, that the district court properly considered these acts.
When considering Rodríguez‘s pre-majority 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 Rodríguez‘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-majority participation alone results in the same base offense level (38) that would result from combining the pre- and post-majority amounts.13
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 Rodríguez‘s agreement and reasonably foreseeable to him. Moreover, at the first sentencing hearing, Rodríguez, 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 Rodríguez‘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.”
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.”
The district court determined the conspiracy-wide drug quantity during the time of Rodríguez‘s participation based upon estimated daily sales. “Extrapolation is a common and permissible way of attributing drugs to a defendant.” United States v. Marquez, 699 F.3d 556, 561 (1st Cir. 2012). We have upheld this method where the extrapolation is “based on a known or readily calculable number of transactions involving clearly established or conservatively estimated quantities.” Id. If, however, the estimates “rest[] too significantly on unreliable inferences,” id. at 562 (citation and internal quotation marks omitted) (citing cases), reversal may be warranted.
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 Rodríguez‘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 Rodríguez‘s sentence.
STAHL
CIRCUIT JUDGE