UNITED STATES OF AMERICA, Appellee, v. GADIEL ROMERO, a/k/a “TC,” Defendant, Appellant.
No. 17-1706
United States Court of Appeals For the First Circuit
October 12, 2018
Before Thompson, Kayatta, and Barron, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
OVERVIEW
Gadiel Romero pleaded guilty to conspiracy to commit kidnapping and got a 276-month prison sentence, a below-guidelines sentence — his guidelines range was 360 months to life. Ably represented on appeal by new counsel, Romero principally claims that his incarcerative term is both procedurally flawed and substantively unreasonable. Concluding, as we do, that his attacks miss the mark, we affirm.
HOW THE CASE GOT HERE
Because this appeal follows a guilty plea, we take the facts from the undisputed parts of the probation office‘s presentence report (“PSR“) and the transcripts of the key court hearings. See, e.g., United States v. Edwards, 857 F.3d 420, 421 n.1 (1st Cir.), cert. denied, 138 S. Ct. 283 (2017).
Abduction
Around 6 p.m. on July 23, 2012, masked gunmen abducted Manuel Amparo and Jose Daniel Felipe Castro near a house on Allston Street in Lawrence, Massachusetts. What happened is this. As Amparo and Castro pulled into the driveway in Amparo‘s car, a white van pulled in behind them and four men wearing masks and black t-shirts emblazoned “POLICE” charged out shouting “police.” Three of the men had pistols and the fourth had a shotgun. One of the
During the drive to the Granite State, Amparo was periodically beaten (this part of the PSR is phrased in the passive voice). The abductors eventually brought him and Castro to a house in Manchester. One of the abductors put Amparo on the phone with someone who threatened to kill him if he did not pay a ransom. An abductor also burned him with a hot iron and repeatedly punched and kicked him.
At some point that night, Amparo freed his hands and feet, removed his hood, and escaped through a window. He started knocking on the neighbors’ doors, looking for help. Responding to the commotion, one neighbor called the police and said he had a man on his porch who claimed he had been kidnapped. This was around 4:30 a.m. on July 24.
Investigation and Arrests
Arriving on the scene, officers heard from Amparo about his ordeal, including where he had escaped from. And they learned too that the suspects and another victim where still there. With
During the investigation, law enforcement learned that Guzman, Maldonado, and Wallace participated in a Lawrence-area kidnapping gang led by Danny Veloz (nicknamed “Maestro“) that also included Romero, Luis Reynoso, and Jose Matos. The crew focused on abducting drug dealers and holding them for ransom (in the form of cash or drugs). Guzman, Maldonado, Wallace, and Reynoso cooperated with the government. From their statements, a clear picture emerged of the Amparo/Castro abductions. Matos installed the GPS tracker on Amparo‘s car and stored uniforms and weapons used during the kidnapping. Veloz tracked the GPS data and clued the crew in on Amparo‘s whereabouts by calling Guzman. When Veloz said Amparo was near his Lawrence home, Guzman, Maldonado, Wallace, Reynoso, and Romero grabbed Amparo and Castro at gunpoint. Once at Maldonado‘s Manchester home, Veloz and Guzman continued to talk by phone throughout the evening as Maldonado tortured Amparo to get him to pay a ransom. Eventually, Wallace drove Reynoso and
Beyond that, the cooperating witnesses also talked about a May 9, 2012 attempted kidnapping on Saratoga Street in Lawrence, and a July 8, 2012 kidnapping on Whiting Street in Lynn, Massachusetts. Guzman fingered Romero as part of the crew present on Saratoga Street for the attempted kidnapping (the attempt fell through when the police responded to reports of suspicious activity). Guzman and Maldonado also fingered Romero as part of the Whiting Street crew that kidnapped a drug dealer at gunpoint and kept him in Maldonado‘s basement (Guzman and Romero beat and kicked him, apparently) until the dealer‘s associate paid a ransom.
Indictment
After his arrest, a federal grand jury indicted Romero — along with Guzman, Maldonado, Wallace, Veloz, Reynoso, and Matos — for conspiring to “unlawfully seize, confine, kidnap, abduct, and carry away” two persons “and to willfully transport them in interstate commerce and hold them in ransom, in violation of”
Recorded Conversation
During Romero‘s pretrial detention, his then-attorney gave prosecutors a letter that he said Romero had given him. Signed by Maldonado, the letter purported to recant his identification of Romero as a player in the July 23 kidnapping. Maldonado told prosecutors in an interview that he wrote the letter because Romero had threatened him by showing him a shank and having some guys tell him they knew where his family lived (Maldonado has a wife and two children). A later search of Romero‘s cell uncovered a tooth brush sharpened to a point.
Maldonado agreed to wear a secret recording device and talk to Romero in prison about Romero‘s plan to have him recant his identification. And the tape captured Romero inculpating himself in the July 23 conspiracy. Here is a taste of what he said:
I was the first one that hit [Amparo], ‘Be quiet,’ and then [Wallace] hit him hard. Bang! Bang! Bang! Holy shit! . . . [Wallace] cracked him. When I hit him . . . he bled a little bit, but when that dude hit him with the grip of the shotgun, . . . blood was spurting everywhere! That poor [Reynoso] in the back . . .
This is the third time I went to do something with [Reynoso]. . . . He‘s not built for that.
And while complaining about what Veloz had paid him for his participation, Romero also said:
I was out there doing my thing on my own too. Do you remember one time when he says to me [unintelligible], Oh, how did you buy that car? Not with you . . . . The most I ever see you with, motherfuckers is five stacks . . . . I went with another team and I make 50 stacks one night. One night, one hit. With [Veloz] it‘s 5, 5, 5. No more . . . . It‘s like, you don‘t want us to get fat, you want us to, like maintain and go.
The two then shifted to a discussion about the letter Maldonado had given his attorney. “Listen off the book,” Maldonado began,
[Guzman‘s] the one . . . when we first, listen got when we first got, first got in the tank together, [Guzman‘s] — he‘s a dirty dude — all through this he told me, yo. . . . At first he tried to tell me in Spanish to tell [Veloz] to swear about everything about the guns and everything and then he said “Yo, . . . tell them that it was [Veloz] and [Romero] that put you up to all of this you heard?
“If you said this shit to your attorney,” Romero responded, “I can leave.” To that, Maldonado replied:
My man . . . I‘ve . . . told them exactly everything that I wrote in the letter everything. Everything that you told me to tell him. Everything, and . . . I haven‘t still come face to face with the dude with the prosecutor but when I do come with the prosecutor even though I know he‘s gonna know that I‘m lying it doesn‘t matter cause it‘s my word, you know what I‘m saying.
“I don‘t know how . . . that shit works,” Romero stated, “because if you already went to a grand jury . . . [a]nd you gave a
Romero also brought up the alleged ransom with Maldonado. Calling Amparo “a kilo carrier,” Romero opined that the government will “need [Amparo] to go to court to testify.” But “if the guy is intelligent and he knows what happened,” Romero added, “he won‘t go to court,” because if he testifies about everything — how the crew put “a GPS under [the] car” and “ask[ed] for ransom money for [his] head” — the government will know “that [he was] doing something big,” which would get the “feds” on him.
Change of Plea
Represented by counsel, Romero attended a change-of-plea hearing where he switched his plea from not guilty of conspiracy to kidnap to guilty (he did so without a written plea agreement with the government). Here are the highlights from that hearing.
Near the hearing‘s beginning, the judge noted that the statute the government alleged Romero conspired to violate
I have to see . . . , as best as I can . . . , that justice is being done in the case, so there will be a [PSR] prepared. It will be shared with you, obviously, with me and with the government, and where there are disagreements, we have a hearing, and that‘s where we have an opportunity to work out finally what satisfies me as a fair and just sentence, and, of course, you have an opportunity to participate in that process and to speak at [the] hearing as well.
Asked by the judge if he had any questions about sentencing, Romero answered that he did not.
Because he had to see if Romero accepted responsibility for committing the charged offense, the judge had the government summarize the evidence against him. Among other details, the government emphasized that the crew had “held” the kidnapped victims, “and a ransom demand was made on one of [them] for his
Sentencing
After the change-of-plea hearing, probation prepared the PSR, which recounted the pertinent facts in great detail. And among the facts described there was the ransom aspect of the conspiracy. For instance, the PSR noted that Amparo told the police that Veloz threatened to kill him if he did not pay a ransom. The PSR also noted that the cooperating co-conspirators (to quote the PSR) admitted that “the crew tried to get Amparo to pay a ransom.”
Because the conspiracy charged the kidnapping of two distinct victims — Amparo and Castro — the PSR treated Romero‘s
Applying a multi-count adjustment, the PSR calculated a combined adjusted-offense level of 45. See
Probation responded that even without the recorded conversation, a preponderance of the evidence supported the obstruction-of-justice enhancement given Maldonado‘s statement that he penned the letter recanting his identification after Romero (who had a shank) threatened him. And probation insisted that Romero should not get a minor-role reduction because he “played an active role in the abduction of the two victims at gunpoint.” Probation also noted that the evidence suggested that Romero had a hand in the May 9 attempted kidnapping (on Saratoga Street) and the July 8 kidnapping (on Whiting Street). So probation concluded that the PSR properly assigned Romero‘s total-offense level of 42. And probation noted that even if the district judge agreed with
Romero filed a sentencing memo. Noting that the PSR recommended a sentencing range of 360 months to life imprisonment, he asked for a 120-month term based on his minor role in the conspiracy, his not threatening Maldonado, and his “substantial” steps he had taken “toward rehabilitation.” He did not mention the ransom-demand evidence, however.
In its sentencing memo, the government noted how cooperating co-conspirators “identified [Romero] as a member of a violent crew that kidnapped drug dealers for ransom” — like other crew members, he “disguised himself as a police officer, armed himself with a firearm, and abducted drug dealers for ransom.” As for the kidnapping of Amparo and Castro, the government chronicled how “Amparo was tortured with a hot iron in Maldonado‘s home while Veloz demanded a ransom from him (Romero did not do the actual burning but was present when it occurred).” Romero was hardly “a minor player,” the government emphasized — based on what the cooperating co-conspirators said, he was “an active, eager participant in a conspiracy to kidnap multiple drug dealers at gunpoint for ransom.” And once caught, Romero “threatened” Maldonado, a cooperating co-conspirator, “causing Maldonado to
At sentencing, the judge indicated that he had reviewed the PSR and the parties’ memos. And he noted that Romero had “some” objections to the PSR. But because the government endorsed a 312-month sentence — a term below the recommended 360-months-to-life range “calculated by the Probation Office” — the judge was “not sure that those objections” were “all that relevant,” since the government‘s proposal was “below” what Romero would get if he sustained the objections and reduced the offense level accordingly. The judge did not discuss Romero‘s objections any further, however. And Romero did not object.
The judge then asked for argument on the parties’ “approach to the case and the recommendation.” Obliging, the government discussed the conspirators’ relative levels of culpability, emphasizing how Veloz, Guzman, and Romero “most deserv[ed] . . . the kind of substantial penalties” permitted “for this type of offense” because they were basically “in the business of kidnapping drug dealers for ransom.” The government then contrasted these co-conspirators with Matos, who did not participate directly in the kidnappings, and with Maldonado, Wallace, and Reynoso, who did participate directly but on fewer
“You can‘t imagine a more dangerous, violent kind of conduct,” the government stressed in something of a final pitch — “charging out of vans armed with guns, kidnapping, torturing” (Romero did not put the iron on Amparo, the government conceded, but he was there when it happened), “[a]ll to extort a ransom paid in drugs or money.” Yet despite the seriousness of the offense, the government supported a slight departure from the low end of the sentencing range because it thought Romero‘s criminal-history designation significantly overstated the seriousness of his criminal history. Which is why the government requested a below-guidelines sentence of 312 months.
Agreeing with the government‘s comment about Romero‘s criminal history, defense counsel asked for a sentence of 120 months. Counsel emphasized how Romero was not a leader, a
After considering the parties’ extensive arguments, listening to Romero‘s statement (his “allocution,” as it is called) where he professed to be a remorseful and changed man, and reviewing the pertinent sentencing factors, see
Anyone wondering about Romero‘s co-conspirators’ sentences: After a jury‘s guilty verdict on the conspiracy-to-kidnap charge, Veloz got a life term. After they pleaded guilty to conspiracy to kidnap, Guzman got a 192-month term, Maldonado a 156-month term, Wallace a 156-month term, and Reynoso a 131-month term. And after he pleaded no contest to conspiracy to kidnap, Matos (as we said) got a 144-month term.
OUR TAKE ON THE CASE
That brings us to the present, with Romero‘s appeal challenging (as we noted) the sentence‘s procedural and substantive reasonableness.3
Broadly speaking, Romero believes the judge botched the sentencing-range calculation by giving him enhancements for ransom demand and obstruction of justice, and by denying him a reduction for minor participation. He also blasts the judge for not “expressly rul[ing]” on his objections to the PSR‘s handling of the obstruction-of-justice and minor-participant adjustments. The government, however, sees no reason for us to vacate his sentence. And we agree with the government.
Standard of Review
We generally inspect a procedural-reasonableness claim for abuse of discretion, see United States v. Tanco-Pizarro, 892 F.3d 472, 478 (1st Cir.), cert. denied, 2018 WL 4361944 (2018) — a multidimensional test that requires us to assess “factual findings for clear error, arguments that the [sentencer] erred in interpreting or applying the guidelines de novo, and judgment calls for abuse of discretion simpliciter,” see United States v. Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 2014) (quoting United States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)). Of course, when a defendant fails to preserve a procedural-reasonableness objection below, we review only for plain error. See Tanco-Pizarro, 892 F.3d at 478-79. And as everyone knows by now, the plain-error standard is a demanding one, requiring the
Ransom Demand
We start with Romero‘s complaint with the ransom-demand enhancement — a complaint he débuts here, so our review is at best limited to plain error. Section
For openers, and to repeat, Romero pleaded guilty to an indictment charging him with infracting
that he violated
But even assuming, favorably to Romero, that the claim is not waived, we discern no plain error. To win under this standard, Romero must show (among other things) that the judge committed an “indisputable” error by (for example) flouting governing precedent or the guideline‘s clear text—such a showing would satisfy plain error‘s plainness prong, the case law holds. See United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014); see generally United States v. Olano, 507 U.S. 725, 734 (1993) (explaining that “plain” error is “synonymous with clear or obvious” error (internal quotation marks omitted)). This he has not done, however.
Romero pins his plain-error hopes to the Seventh Circuit‘s Reynolds decision, which (as we noted) held that “‘ransom demand’ under
Still trying to bring his claim within the sphere of controlling precedent, Romero notes that Reynolds cited a case of ours, United States v. Alvarez-Cuevas, 415 F.3d 121 (1st Cir. 2005). But his effort is for naught.
Alvarez-Cuevas interpreted a different subpart of
(1) the [kidnapped] child was never “placed in the care or custody of another person who had no legal right to such care or custody,” because the enhancement refers to placing the victim in the custody of a third party, not one of the kidnappers; [and] (2) because [the two co-conspirators] who kept the child ... were not paid money or other consideration to keep the child but rather merely expected to receive some of the proceeds of the ransom, the child was not placed in their custody “in exchange for money or other consideration.”
Id. at 124. Agreeing with the defendants, Alvarez-Cuevas held that subpart (b)(6) applies only “where the child is kidnapped, by special order, to be turned over to the custody of a third party who has no custody rights and who has paid the kidnappers to do the job,” as well as where “the ransom-demanding kidnapper, who in an effort to make it harder to find the [child], pays a third party to keep and care for the child.” Id. at 122, 126-27. A contrary interpretation, Alvarez-Cuevas concluded, “would render the ‘placed in the custody of another person’ a nullity” and would “create[] ... incentive[s] for kidnappers to hide or even to abandon children (thus avoiding responsibility for their custody or care).” Id. at 127.
Reynolds dropped a “cf.” citation to Alvarez-Cuevas, with the following parenthetical: “(construing
With no binding precedent on his side, Romero cannot succeed on plain-error review unless he shows his ransom-demand theory is compelled by the guidelines’ language itself. See, e.g., Jones, 748 F.3d at 70; Caraballo-Rodriguez, 480 F.3d at 70. And to the extent he tries to make that argument, it fails too.
In Reynolds—the case he hangs his hat on—the Seventh Circuit candidly acknowledged how “difficult” the issue is, because the guidelines do not define “ransom” and the guidelines’ commentary offers “no insight into what conduct the Sentencing Commission intends
The Seventh Circuit then said that the “language of the guideline ... presupposes the existence of a third party.” Id. (emphasis added). Section
Moving on, the Seventh Circuit then discussed potential policy concerns;6 noted potential parallels between the provision and the Hostage Taking Act (“HTA“),
That the Seventh Circuit judged the ransom-demand issue “difficult“—justifying resort to interpretative aids (including presupposition)—kiboshes any suggestion on Romero‘s part that the guidelines’ words unquestionably support his position. Properly viewed, his ransom-demand argument ultimately “turns on judicial construction of the [guidelines],” and “since we have not yet adopted the construction he urges, there is no plain error.” See Caraballo-Rodriguez, 480 F.3d at 73.
If more were needed (and it is not), the Eleventh Circuit, unlike the Seventh Circuit, accepts Black‘s definition in interpreting “ransom demand” in
The bottom line: Perhaps someday we will have to take a definitive stand on the ransom-demand issue. Cf. generally Caraballo-Rodriguez, 480 F.3d at 70 (noting that a holding that a party “has not met his burden of showing there was an error which was plain” is not a “ruling on the merits“). But for today‘s purposes, it suffices to say that Romero‘s ransom-demand theory is not the stuff of plain error. See generally United States v. Frady, 456 U.S. 152, 163 (1982) (noting that plain error assumes
Obstruction of Justice and Minor Role
Romero knocks the judge for not “expressly” ruling on his objections to the PSR‘s inclusion of a 2-level obstruction-of-justice enhancement and rejection of a 2-level minor-role reduction. And he criticizes the judge for not properly calculating the sentencing range because (the theory goes) the record did not support the enhancement but did support the reduction. Agreeing with Romero that the judge did not explicitly rule on his two targeted objections, the government counters that his protests “were inconsequential to the proper calculation” of the sentencing range. The government also argues that the record “amply support[s]” the judge‘s denial of his objections. For our part, regardless of the applicable standard of review—the government sometimes talks about plain error, and Romero talks about abuse of discretion—we see no need for a sentencing do-over.
Take Romero‘s first beef. We agree with the parties that the judge did not expressly rule on his objections at sentencing (though the judge arguably addressed Romero‘s minor-role-reduction request at sentencing when he said he “agree[ed] with the government‘s characterization that ... Romero‘s role
Sentencers, of course, “must—for any disputed portion of the [PSR] or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because [they] will not consider the matter in sentencing.”
Returning to our case, we see that the judge started the sentencing hearing by saying that he read the PSR and the parties’ sentencing memos. Which means he knew that (a) the PSR recommended a sentencing range of 360 months to life, a range driven in part by a rejection of Romero‘s obstruction-of-justice/minor-role-based objections; that (b) Romero wanted a 120-month sentence; and that
As for Romero‘s second argument—that the record does not back the obstruction-of-justice increase but does back the minor-role decrease—even less need be said. With a total-offense level of 42 and a criminal-history category of VI, Romero had a sentencing range of 360 months to life. Granting him a 2-level minor-role reduction and jettisoning the 2-level obstruction-of-justice enhancement would drop his total-offense level to 38 (a number that includes the ransom-demand enhancement, which, as we said, survives plain-error review). Combined with the same VI criminal-history category, Romero‘s sentencing range would remain 360 months to life. See
Enough said about Romero‘s procedural-reasonableness challenge. On then to his substantive-reasonableness challenge.
Substantive Reasonableness
Romero separately argues that his 276-month sentence is substantively unreasonable (or too long, in everyday speech)—a multifaceted claim based on his belief that the judge, first, wrongly hit him with an obstruction-of-justice increase and unfairly withheld a minor-role decrease, and, second, “unjustifiably” picked a term “more severe than those of more culpable defendants in the instant case and than those sentences imposed nationally at the median for this offense.” Reviewing his claim for abuse of discretion, see Tanco-Pizarro, 892 F.3d at 483, we detect none.
Romero‘s next contention—that the 276-month sentence created an unwarranted sentencing disparity between himself and his codefendants—is not without some surface appeal. But it cannot be sustained.
Sentencers, no doubt, must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
Yes, Guzman, Maldonado, Wallace, Reynoso, and Matos all received sentences considerably less than 276 months. But unlike Guzman, Maldonado, Wallace, and Reynoso, Romero did not cooperate with the government. And unlike Matos, Romero abducted Amparo and Castro at gunpoint.10 These differences make the sentencing disparities reasonable.11 See, e.g., United States v. Mueffelman, 470 F.3d 33, 41 (1st Cir. 2006) (discussing cooperation); United States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015)
Trying to avoid the inevitable result of this reasoning, Romero argues that any dissimilarities between him and his co-conspirators should not matter, thanks to United States v. Reyes-Santiago, 804 F.3d 453 (1st Cir. 2015). But Reyes-Santiago is easily distinguishable from our own case. Reyes-Santiago‘s sentence reflected an unwarranted disparity for two reasons. First, the district court did not accept his drug-amount stipulation but did accept his co-defendants‘, without offering any rationale to “justif[y] the uniquely harsh approach” in picking his sentence.” Id. at 468-73; see generally United States v. Ramos Diaz, 702 F. App‘x 1, 3 n.3 (1st Cir. 2017) (explaining that Reyes-Santiago “involved a Sentencing Guidelines factor—drug quantity—that was applicable to all of the defendants and was applied uniquely harshly to the appellant“). And second, the district court considered info that Reyes-Santiago had participated in a “massacre” after saying it would “not ... factor the murders into the defendants’ sentences for the drug conspiracy.” Reyes-Santiago, 804 F.3d at 473. Nothing like that happened here, however.
That leaves us with Romero‘s suggestion of a disparity between his sentence and the sentences of similarly situated defendants across the country. The problem for him is that he floats this suggestion in the “Summary of Argument” section of his brief and then never gives it the sort of treatment needed to preserve the point for appellate review. For instance, he does not give us the necessary info about the other defendants—their criminal involvement, their criminal histories, their cooperation (or not) with the government, etc.—to do an “apples to apples” comparison. See Rodríguez-Adorno, 852 F.3d at 177 (emphasizing that “[a] credible claim of sentencing disparity requires that the proponent furnish ... enough relevant information” so that “the court [can] compare apples to apples” (internal quotation marks omitted)). So we deem the suggestion waived by perfunctory treatment. See United States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016); United States v. Pérez-Mejílas, 292 F. App‘x 69, 70 (1st Cir. 2008).
WRAP UP
Having worked our way through the issues, we affirm Romero‘s sentence.