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USCA1 Opinion
January 25, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1100
UNITED STATES OF AMERICA,
Appellee,
v.
RUBEN MARTINEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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Stahl, Circuit Judge.
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Arthur R. Silen, by Appointment of the Court, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Edwin J. Gale, United States Attorney, and Gerard B.
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Sullivan, Assistant United States Attorney, were on brief for
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appellee.
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Per Curiam. Defendant Rub n Mart nez pleaded guilty to
Per Curiam
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two counts of conspiring to distribute cocaine in violation of 21
U.S.C. 846 and three counts of distributing or possessing with
the intent to distribute cocaine in violation of 21 U.S.C.
841(a)(1) & 18 U.S.C. 2(a). On January 7, 1993, the United
States District Court for the District of Rhode Island sentenced
Mart nez to five concurrent terms of 51 months in prison, five
years of supervised release, including a special condition
relating to deportation, and the required assessments. Mart nez
challenges his sentence because it was based in part on an
allegedly erroneous finding that he was a leader or organizer
under United States Sentencing Guidelines 3B1.1(c).1 We
affirm.
I. BACKGROUND
I. BACKGROUND
According to the Pre-Sentence Report ("PSR") and the
transcript of the sentencing hearing, see United States v. Reyes,
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3 F.3d 29, 29-30 (1st Cir. 1993) (stating that upon a guilty
plea, the relevant facts should be taken from the PSR and the
sentencing transcript); United States v. Castellone, 985 F.2d 21,
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22 (1st Cir. 1993) (same), Drug Enforcement Administration
("DEA") Special Agent Russell Holske purchased cocaine from
defendant Mart nez on three separate occasions during an
undercover investigation in April through July of 1992. Holske
made his first purchase on April 1, 1992, buying 27.7 grams of
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1 All citations refer to the 1992 version of the Sentencing
Guidelines which were in effect at the time of the sentencing.
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cocaine from Mart nez for $900. On that occasion, Holske met
with Mart nez who then made a phone call because he did not have
the drugs with him. Shortly thereafter, codefendant Juan
Ituribides arrived with the cocaine and handed it to Mart nez
who, in turn, handed it to Holske.
Two days later, Holske purchased 50.5 grams of cocaine
from Mart nez for $1750. As in the first transaction, Mart nez
made a phone call before the drugs were delivered; however, on
the second occasion, codefendant El as Ventura Morales, instead
of codefendant Ituribides, actually brought the cocaine to
Mart nez.
On July 17, 1992, Agent Holske negotiated with Mart nez
for the purchase of "Two Big Eights" (9 ounces) of cocaine for
$8000. After Holske and Mart nez met, they were joined by
Morales. The three then moved to a new location where Mart nez
showed Holske a small sample of cocaine in exchange for a look at
the money Holske brought. Morales left and then returned twenty
to thirty minutes later at which point DEA agents arrested
Mart nez and Morales and seized 223.4 grams of cocaine.
Mart nez contests this version of events. He claims
that he was not the source or supplier of the cocaine but instead
merely an intermediary who was offered money by a confidential
informant to assist in the sale. During the first sale, Mart nez
contends, Ituribides supplied the cocaine and collected the money
for the deal while Mart nez only assisted by passing the cocaine
to Holske. For the other two purchases, Mart nez claims that he
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was approached by the confidential informant and asked for the
whereabouts of Ituribides. On those occasions, Mart nez
contends, Morales intervened in the discussion and arranged the
drug deals. According to Mart nez, his only role was to wait
with the informant while Morales went to get the cocaine.
II. ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE
II. ENHANCEMENT OF SENTENCE FOR LEADERSHIP ROLE
In calculating Mart nez' sentence, the district court
imposed a two level enhancement for being a leader and organizer
pursuant to U.S.S.G. 3B1.1(c).2 Mart nez claims the court
erred because the presentence report contains insufficient facts
necessary to support a finding that Mart nez organized, managed
or directed the activities of his codefendants in committing the
charged offenses.
We review the district court's "role in the offense"
determination for clear error. United States v. Schultz, 970
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F.2d 960, 963-64 (1st Cir. 1992), cert. denied, 113 S. Ct. 1020
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(1993); United States v. Veilleux, 949 F.2d 522, 524 (1st Cir.
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1991). A leadership role enhancement is warranted where the
defendant has exercised control or directed the actions of at
least one other person in committing the crime. The sentencing
court can take into account such factors as the exercise of
decision making authority and the degree of participation in
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2 U.S.S.G. 3B1.1(c) provides for an increase in the offense
level:
If the defendant was an organizer,
leader, manager, or supervisor in any
criminal activity other than described in
(a) or (b), . . .
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planning or organizing the offense. U.S.S.G. 3B1.1 comment
note 3; Schultz, 970 F.2d at 964; United States v. Panet-Collazo,
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960 F.2d 256, 261 (1st Cir. 1992), cert. denied, 113 S. Ct. 220
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(1992).
The evidence from the PSR is sufficient to support the
sentencing judge's determination that Mart nez "was a leader and
organizer of this little business [to sell cocaine] that he had"
and that Mart nez "had working for him Ventura Morales and
Interpediz [sic]." According to the PSR, Holske purchased the
cocaine "from" Mart nez or "negotiated with" Mart nez during all
three of the drug transactions. During the July transaction,
Mart nez "arranged to be met" at a certain location and later
displayed a sample of cocaine for Holske. On two occasions,
Mart nez first met with Holske and then placed a telephone call
after which the cocaine was delivered. When considered together,
this evidence is sufficient for the judge to conclude that
Mart nez arranged and planned each sale and directed the
activities of his codefendants who served as assistants or
couriers for Mart nez' operation.
Mart nez insists that the evidence in the PSR is, at
most, only sufficient to support a finding that he was an
intermediary. There is nothing, Mart nez claims, to show he gave
any orders or directions to anyone or otherwise exercised
decision making authority. He further asserts that there is no
evidence, beyond the bald statement that Holske "purchased
cocaine" or "negotiated" with Mart nez, to support the conclusion
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that Mart nez set terms and conditions, made the arrangements, or
profited from the sale.
While the actions reported in the PSR (making the
initial contact with the buyer and placing phone calls before
each drug delivery) may be consistent with those of an
intermediary, they are also consistent with those taken by a
leader or organizer. When we factor in Holske's statements that
Mart nez "negotiated" the deal and "arranged" the meeting
location, we find ample support for the court's inferences that
Mart nez was making decisions about terms and conditions when he
met with Holske, and exercising control over his codefendants
when he made the telephone calls. "'Where there are two
permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous.'" Veilleux, 949 F.2d
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at 525 (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
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574 (1985)). The sentencing judge, in fact, explicitly rejected
Mart nez' alternative version of events when he stated that
Mart nez had not been "completely candid with the Court nor with
the Probation Counsellor trying to give the impression that he
was really working for somebody else, but he wasn't."
Mart nez also claims that the sentencing judge failed
to make reasonably specific factual findings to support the
upward adjustment. This objection is groundless. The sentencing
court's explicit rejection of Mart nez' alternative version of
events, together with its statements that, based on the evidence
in the PSR, Mart nez was a leader of his own business to sell
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cocaine,3 constitutes specific factual findings which support
the upward adjustment. See Schultz, 970 F.2d at 963 n.7; United
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States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st Cir.
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1991). As we discuss below, any objections to the evidentiary
basis for the court's specific factual findings are waived.
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III. OTHER OBJECTIONS TO THE SENTENCE
III. OTHER OBJECTIONS TO THE SENTENCE
Mart nez claims that the sentencing judge erred by
relying upon information outside his own PSR to determine whether
he was a leader and organizer. During sentencing, the judge did,
in fact, explicitly base his findings partly upon information
contained in the PSR's of Mart nez' codefendants, Morales and
Ituribides. Mart nez' counsel, however, failed to voice any
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3 At the sentencing hearing, the sentencing judge stated:
I'm satisfied from the evidence in this
matter presented from all the material
that I've been privy to not only from
this presentence report but from the
presentence report involving Morales and
Interpediz that this Defendant was a
leader, an organizer. He was akin to a
self-employed, independent sales
representative. I'm satisfied that he
didn't own the cocaine, but he was in
business for himself selling cocaine and
he was going to earn a commission for
selling that cocaine and he had working
for him Ventura Morales and Interpediz.
As a matter of fact, Interpediz was only
involved in one instance for a pittance,
about $40 was going to be his pay for
simply going to the source and getting
the cocaine and bringing it to the
designated place and Morales was serving
in the same function. So the Defendant
clearly was a leader and organizer of
this little business that he had. So the
Probation Office was correct in tacking
on two points in this case.
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objections to this at the hearing. Consequently, the issue has
not been preserved for appeal unless there are some "unusually
compelling circumstances." United States v. Ocasio-Rivera, 991
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F.2d 1, 3 (1st Cir. 1993). This exception mainly applies where a
correction of the alleged error would ensure the defendant's
success and thus prevent a miscarriage of justice. Id. Mart nez
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fails to point out any circumstances, compelling or otherwise,
that would be sufficient to overcome his procedural default.
Given the sufficiency of the evidence in Mart nez' own PSR and
given that the judge, in making a "role in the offense"
determination for Mart nez, had to take into consideration the
relative roles of all the codefendants anyway,4 we are convinced
that no miscarriage of justice has occurred in this case.
Mart nez also challenges the sentencing judge's
decision to grant only a two level, instead of a three level,
decrease in his base offense level for acceptance of
responsibility pursuant to U.S.S.G. 3E1.1(b)(2). He concedes,
however, that he did not raise this objection during sentencing
and that "under the 'plain error' rule, he will not succeed on
this point alone." As we have decided all other issues against
the defendant, according to his own admission, we must decide
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4 According to the prosecution, prior to Mart nez' sentencing,
the district court had already determined that at least one
codefendant, Ituribides, was merely a courier and had awarded
Ituribides a downward adjustment for playing a minor role.
Defense counsel also referred to this at the hearing and
cautioned the judge that such a finding did not necessarily mean
that Mart nez was a leader and organizer. The issue of what
roles were played by Mart nez' codefendants was thus brought to
the judge's attention before his ruling.
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this one against him as well.
Affirmed.
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Document Info
Docket Number： 93-1100
Filed Date： 1/25/1994
Precedential Status： Precedential
Modified Date： 9/21/2015