United States v. Vazquez-Rivera, 470 F.3d 443

United States v. Vazquez-Rivera

470 F.3d 443

1st Cir.

2006

Check Treatment

Docket

*1 Int’l, (quoting at F.3d Scientology Alcohol, Tobacco v. Bureau

Wightman Firearms, Cir. & court,

1985)). in deciding that The district exempt disclo from

the materials were

sure, express finding an failed to make requested documents no part non-exempt segregable from ex

empt portions.

Nonetheless, Court satisfied afforded district

the in camera review opportunity perform exemp- light the asserted

documents required make determina-

tions and See Church regarding segregation.

tions Int’l, F.3d at 233. Fur- Scientology documents,

ther, having reviewed reasonably segrega- there are no

find that portions.

ble

III. Conclusion reasons, the order of dis-

For these court is affirmed.

trict America,

UNITED STATES

Appellee, VÁZQUEZ-RIVERA,

Jorge A.

Defendant, Appellant.

No. 05-2632. Appeals,

United States Court

First Circuit. Sept.

Heard

Decided Dec. *2 L. Ramos-Vega,

Héctor Research & Writing Specialist, Federal Public Defend- Office, Laws, Joseph er’s with whom C. Jr., Defender, Federal Public brief, appellant. for Pérez-Sosa, Nelson Assistant United Attorney, Appellate Senior Attor- Garcia, ney, whom with H.S. United States Rieckehoff, mandatory As- nature A. Attorney, and Germán Guidelines. Attorney, were on sistant United States brief, appellee. Vázquez appealed his conviction and his *3 to sentence this Court. We affirmed TORRUELLA, Judge, Circuit Before conviction, Vázquez’s but remanded his SILER,* Judge, and Senior Circuit to for resentencing case the district court HOWARD, Judge. Circuit ground original on the that his sentence in pronounced violation of Booker. TORRUELLA, Judge. Circuit 407 Vázquez-Rivera, F.3d 476. (‘Vázquez”) Vázquez-Rivera Jorge A. Vázquez resentencing, Prior to submit- to conspiracy of count of was convicted one a memorandum to the dis- ted cocaine, 21 in of U.S.C. violation distribute memorandum, ar- trict court. In the he court The district sentenced 846. gued supported that the evidence neither Vázquez in prison. to 210 months Vázquez drug quantity pre-sentence for and we remanded his case appealed, report finding to him nor the in attributed in United re-sentencing accordance with pre-sentence report that he could have 220, Booker, S.Ct. v. U.S. States of a in weapon foreseen involvement (2005). 738, United 160 L.Ed.2d to conspiracy distribute cocaine. F.3d 476 Vázquez-Rivera, Vázquez argued also that the court should (1st Cir.2005). remand, On the district from the deviate Guidelines Vázquez to 210 again sentenced court range sentencing disparities be- to reduce Vázquez appeals in now prison. months Lastly, tween him and his co-defendants. consideration, this sentence. After careful Vázquez suggested that the nature of his we affirm. personal and his characteristics offense a below the warranted sentence Guidelines Background I. range. 1999, Vázquez and four June On sentencing hearing The court held charges on persons were indicted

other Vázquez September During Vázquez cocaine. conspiracy to distribute hearing, the court stated: police on voluntarily surrendered to the agreement in with the Vázquez’s We are not July 1999. All co-defen- put whereby forth we should agree- grounds to pled guilty pursuant plea dants depart sentence ranging from Guidelines and received sentences ments this Let state for the record prison. Vázquez case. me to 120 months from court, that it will Judge, him. At that this this charges against contested in im- trial, generally heed the Guidelines prosecution witnesses testi- various punishment. No doubt posing criminal of cocaine which fied as to amounts disap- criminal defendants will be being had observed sold some they sold or result, yet in by long this pointed as to Vázquez. Witnesses also testified may be the best approach run an weapons drug point at the such presence way develop fair and consistent jury After a administered. country around trial, the sole scheme Vázquez was convicted on defendants, victims for the benefit of conspiracy to distribute cocaine. count public. Congressional view Vázquez to 210 and the The sentenced The will based, on the how structure prison part, months in * Circuit, by designation. sitting Of the Sixth

surely by judges be informed how con- of law conclusions de novo. United States guideline advisory sys- form to the new Antonakopoulos, Cir.2005). tem. If that discretion is exercised res- ponsibly Congress may be inclined flexibility give judges greater under a Drug Quantity sentencing system. new On the other Vázquez contends that the court hand if discretion is abused sen- calculating quantity erred in Congressional objec- thwart tences that personally him attributable to for sentenc tives, ample Congress has reason to ing In purposes. Derman v. United course, deny flexibility. us that The *4 States, (1st Cir.2002), F.3d

my today, faithfully is to opinion imple- held that: Congressional ment purposes the under- [ojnce lying by jury format following sentences has determined that the the Guidelines all but unusual conspiracy cases. type quantity involved a and I find that this is not an unusual case justify of sufficient to a sentence of application that the Guide- statutory above the default maximum lines are reasonable in this case. particular and has found a defendant guilty participation conspiracy, Vázquez The court then sentenced to 210 lawfully may the judge determine the prison. Vázquez appeals months in now drug quantity to that attributable defen- from this sentence. accordingly. dant and sentence him II. Discussion judge may The drug determine the quanti- Vázquez his sentence on contests two ty by preponderance of the evidence. First, grounds. argues Vázquez that the Santos, United States 357 F.3d evidence at trial was insufficient to support (1st Cir.2004). Second, various aspects his sentence. Vázquez Vázquez contends his sentence is concedes that pro- the sen cedurally tencing following testimony. court had the defective because First, adequately explain Meléndez-Negrón failed to his sen- Edwin testified substantively occasions, tence and that on “approximately” is unreasonable he gave improper weight purchased because the court either or sold one kilogram the Sentencing Second, Guidelines. to or from Vázquez. cocaine Al Negrón-Constantino berto testified that he Sufficiency

A. of the Evidence had sold Vázquez’s “some kilos” to broth er, were, fact, first which Vázquez’s argument is that destined for Third, presented Vázquez evidence at trial was himself. insuffi José Borrero cient to support either the Feliciano drug individualized testified that the Ceiba drug or quantity point, the involvement of weap Vázquez which managed, “an sold ons that eighth” were used to determine his sent of cocaine a daily basis. ence.1 review a Vázquez We argues court’s that because some of these findings of fact clear error and their prefaced witnesses their calculations with Vázquez challenges states that Soto-Beniquez, also he United. super- (1st Cir.2003) ("Because enhancement for his role as argument this However, drug conspiracy. visor in the be- manner, perfunctory made in unaccompa- statement, yond provides this he no additional any developed nied argumenta- effort at reasoning argument why or this was error. tion, waived.”). it has been such, argument. As we decline to address the brother, regu- through his testified that he “approximately,” or “around” word protection. larly carried firearm for inherently unreliable. testimony is their Lastly, Meléndez-Negrón, pur- Edwin who However, that a previously we have said Vázquez, from testified that chased cocaine determine an sentencing court need not he firearm for protection. also carried a may instead drugs, amount of but exact drug estimate” make a “reasoned find that this is sufficient evi We to the defendant. quantity attributable dence establish use firearms Huddleston, States v. United conspiracy further to distribute co Cir.1999). testimony, this Given Further, caine. we believe that the evi ample had evi- that the court we conclude presented dence is sufficient allow an to base its conclusion dence on which Vázquez, who was the man inference that kilograms of cocaine at least five likely ager drug aware or point, Vázquez. attributable to many peo could have foreseen him or ple who worked for carried used Conspiracy Weapons in the before, have “a firearms. As we noted argues also work awareness the inner defendant’s *5 support had insufficient evidence to court conspiracy partici of a which he is ings U.S.S.G. enhancement under the frequently prove ... will to pating suffice 2D1.1(b)(1) “danger of possession § for a ability the acts the defendant’s to foresee firearm).” weapon (including a We ous v. La United States coconspirators.” of charged a with held that defendant have Croix, (1st Cir.1994). 223, 229 28 F.3d As “ accountable for all ‘reason conspiracy is conceded, testimony has at trial Vázquez by conduct undertaken ably foreseeable’ Vázquez “allegedly that exercised showed conspiracy. in furtherance of the others” making to the authority decision facilitate Bianco, v. 912 United States narcotics, buy was in of delivery charge (1st Cir.1991). Thus, to wheth determine the nar processing, distributing and ing, posses er enhancement for the he peddlers, to and would be cotics the be im dangerous weapon of a can sion the retrieving proceeds, responsible may sentencing court consider posed, the inventory status of the and verifying the Vázquez pos only personally not whether day-to-day operation supervising dangerous weapon, a but also sessed Br. 10. drug point.” Appellant’s Given reasonably “it foreseeable whether op in the involvement Vázquez’s intimate gun a co-conspirator possess would that drug point, court did erations of [conspiracy to distrib furtherance concluding Vázquez that could not err in Casas, United States cocaine].” ute many employees of his that have foreseen (1st Cir.2004). 104, 129 F.3d armed. suppliers and were following sentencing court had The of the Sentence B. Reasonableness of firearms the involvement evidence about Next, that his First, Vázquez argues sen Negrón- Alberto conspiracy. substantively and procedurally tence is that he sold firearms Constantino testified the sentenc argues first that “Hiram,” drug for the flawed. He who was runner justifi Second, inadequately its ing explained by Vázquez. Alex- point managed required by 18 sentence as gave a cation for his testified that he Figueroa ander 3553(c). alternatively § person charge storing shotgun to the U.S.C. Third, if the district court com that even drug point. argues David firearms at 3553(c), Ortiz, gave weight § it undue Vázquez plied with who sold Sánchez Sentencing Guidelines in determin brandished firearms and defendant was his sentence. We review sentences for ing aware the same. Booker, United States v. reasonableness. addition, pronouncement In prior to the 220, 260-63, 543 U.S. S.Ct. sentence, specifically the court stated (2005); L.Ed.2d 621 see also Antonako that it not agree Vázquez’s dispar- did with

poulos, 399 F.3d at 76. ity argument plea bargains because system.” “very valuable for the Given 1. Justification for the Sentence explanations, it easy these we find infer court did not find Vázquez claims that the court did Vázquez’s arguments regarding sentencing adequately explain reasoning not be disparities sufficiency or the of the evi- by hind his sentence as required U.S.C. 3553(c). persuasive dence it thought § said in United States We sentence based on the Guidelines recom- important Jiménez-Beltre “it for us mendation Accordingly, was warranted. to have the district court’s reasons for its sentence”; however, reasoning we find the court’s the reasons need not be explicit: comply sufficient to with reasoning be 18 U.S.C. “[A] court’s can of 3553(c) provide and to us with a by comparing ten be inferred base to what was analyze Vázquez’s parties other claims. argued or contained in the pre-sentence report judge with what the C. Consideration of Fac- Cir.2006);

did.” 440 F.3d see tors also United v. Navedo-Concepción, (1st Cir.2006) (“The more Vázquez’s argument The crux of regard *6 obvious the reasons for a [sentencing] that, ing sentencing sentencing is had the choice, the that less needs to be ex court not Sentencing treated the Guide plained.”). Although the court did not applicable cases, lines in as all but unusual reject specifically Vázquez’s arguments it would have to give been free more during pronouncement sentence, the of the weight factors, to namely other explain it did that it a pre had found sentencing disparity. matter, As an initial ponderance the evidence that at least we it necessary think to out point that the kilograms five of cocaine could attrib be sentencing court role of misconstrued the to Vázquez, weapon uted that a was fore the Sentencing Guidelines. As we stated seeable, every and that it considered one Jiménez-Beltre, in “[although making the 3553(a) § in factors enumerated guidelines ‘presumptive’ ‘per or se reason required it is to consider. The court fur mandatory, able’ does not make them it ther stated that it basing was its sentence tends in that direction.” 440 F.3d at 518. on the fact that By stating that it will to “heed” the Sen Guidelines, a [Defendant was runner or administra- tencing the sentencing court in drug tor of a point, he had present appeared decision the case to treat the making authority Sentencing to facilitate the deliv- Guidelines presumptively as ery narcotics, in charge buy- applicable. By was stating that it apply would ing, processing, distributing cases,” the in all Guidelines but “unusual at the drug point. He was respon- also the court’s language arguably went even for supervising sible the operations of further than at language issue in Na drug point. Moreover vedo-Concepción, there were 450 F.3d at that we people in participated conspira- who this described as a modest variance from Jimé cy possessed, carried, used holding and nez-Beltre. Our in Jiménez-Bel- Nevertheless, be the law allows that a case need not case. it tre makes clear this, in government to consider to do even if it results a court unusual for 3353(a). § disparity factors 18 U.S.C. sentences of such as would strike the other unfair.”). a many Although as district sentence, Vazquez’s Our review of may disparities among co- consider however, Consider for reasonableness. sentence, determining a we defendants weight Sentenc ing substantial do un- Vázquez’s find sentence be not 3553(a) factors, § Guidelines and ing simply reasonable because his co-defen- un that his sentence was do not find agreed help government dants that had Vázquez suggests reasonable. exchange for See reduced sentences. not construed the sentencing court Thurston, United States v. in all but unusual applicable as Guidelines (1st Cir.2006) (noting 216-17 defen- cases, free to consider it would have been plea to enter into a dant who chooses to re suggestion his lower sentence similarly not to a bargain is situated defen- Under 18 sentencing disparities. duce also charges); dant who contests the see 3553(a)(6), court is U.S.C. (“The Navedo-Concepción, at un obliged to consider “the need avoid required to judge was not reduce district disparities” among sentence warranted appellant’s] simply sentence because [the (emphasis situated defendants similarly the other defendants —chose he—unlike added). that the sentence Vázquez argues trial”). Further, go to the fact pun it is unwarranted because he received employed gainfully and is charges his decision to contest ishes married, in his now as he notes brief plea him than enter into against rather participation his appeal, simply makes bargain. unfortunate; conspiracy all the more this plea that the It is well established however, not sen- this fact does make his system impermissibly bargaining does not tence, already at lower end of the go to trial a defendant’s choice punish Thus, range, Guidelines unreasonable. guilty: legitima “The plead rather than to given Guidelines recom- ... ‘plea bargaining,’ cy practice mendation, to attach substantial which we *7 ‘properly and has not been doubted where 3553(a) any weight, and the absence ‘encouraged’ as an administered’ it is be sen- militating in favor of a lower factors ‘component ‘desirable’ ‘essential’ and tence, conclude that sentence we ” justice.’ v. administration Chaffin imposed on was reason- the court 18, 17, 31 n. Stynchcombe, U.S. able. (1973) 1977, (quoting 36 L.Ed.2d S.Ct. York, 260- v. New U.S. Santobello III. Conclusion (1971)). 61, 92 30 L.Ed.2d 427 S.Ct. reasons, affirm foregoing For the Yeje-Cabrera, v. we held In United States court. district simply right has no that “a defendant Affirmed. trial, sentence, that is as lenient as after in a he could have had earlier sentence HOWARD, Judge, concurring in Circuit (1st 1, 26-27 Cir. bargain.” 430 F.3d plea judgment. 2005); Rodriguez, also United States see Cir.1998) opinion that the agree with the lead (stating I in this case is reason- imposed “sentencing dis sentence plea bargains lead judge I put agree don’t district chose able. defendants who parity proving “misconstrued the role government to burden its its by stating that it Guidelines” would “heed” guidelines all but “unusual cases.” at 10.

Ante This formulation is not incon- with recognition

sistent our Jiménez- Guidelines “impor-

Beltre are an

tant” factor in provide

starting point for constructing a reason- 518-19;

able sentence. See 440 F.3d at (Howard J.,