United States v. Tobon , 15 F. App'x 8 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2278
UNITED STATES,
Appellee,
v.
CARLOS M. TOBON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Eileen M. Donoghue on brief for appellant.
Donald K. Stern, United States Attorney, and Michael D.
Ricciuti, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.
July 20, 2001
Per Curiam. Carlos Tobon appeals his 210-month
sentence imposed following his plea of guilty to charges of
conspiracy to possess with intent to distribute cocaine and
attempted possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 846, and aiding and abetting, 18
U.S.C. § 2. Tobon argues on appeal that he should have
received a downward departure from the applicable sentencing
guidelines range and that the district court clearly erred
in imposing sentencing enhancements for being a leader or
organizer of the conspiracy, pursuant to U.S.S.G. § 3B1.1(c),
and for obstruction of justice pursuant to U.S.S.G. § 3C1.1.
The government has filed a Motion for Summary Disposition,
pursuant to Loc. R. 27(c).
In support of his argument that he is entitled to
a downward departure, Tobon contends that the government used
an artificially beneficial term in the proposed drug
transaction-- that the drugs could be delivered upon the
signing of a promissory note in lieu of a cash down payment.
Tobon argues that the government had at first insisted on a
reasonable down payment, but changed the condition in order
to ensure that the reverse-sting operation would succeed when
the defendants could not obtain the requisite cash. He notes
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that the guidelines, specifically U.S.S.G. § 2D1.1, comment.
(n.15), contemplate a departure from the otherwise applicable
sentencing guidelines range when the government has set an
artificially low price in a reverse sting operation that
induces a defendant to purchase a larger quantity of drugs
than he would otherwise have obtained.
“Generally, an appellate court lacks jurisdiction
to review a sentencing court’s discretionary decision not to
depart below the guideline sentencing range. An exception
to this general rule applies when the sentencing court’s
decision not to depart is based upon its belief that it lacks
the authority or power to depart.” United States v. Mangos,
134 F.3d 460, 465 (1st Cir. 1998) (citations omitted).
The exception does not apply here. Nothing in the
record indicates that the district court believed it lacked
authority to depart downward in this case. Instead, the
record indicates that the district court understood that it
had authority to depart pursuant to U.S.S.G. § 2D1.1,
comment. (n.15), but that it exercised its discretion in
declining to make such a departure. We lack jurisdiction to
review this claim. See United States v. Baltas, 236 F.3d 27,
40 (1st Cir.), cert. denied, 121 S.Ct. 1982 (2001).
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Tobon argues that the district court clearly erred
in attributing a leadership role to him, contending that he
was no more culpable than his co-defendant Agudelo, who
actually negotiated and met with the government agents.
The guidelines provide for at least a two-level
aggravating role enhancement if a defendant “was an
organizer, leader, manager, or supervisor.” U.S.S.G.
§ 3B1.1(c). Factors the court should consider include, among
others, the exercise of decision making authority and the
recruitment of accomplices. U.S.S.G. § 3B1.1, comment (n.4).
There can be more than one person who qualifies as a leader
or organizer of a criminal association or conspiracy.
U.S.S.G. § 3B1.1, comment. (n.4). We review role-in-the-
offense determinations, steeped in the facts of the case,
under a clearly-erroneous standard. United States v.
Cadavid, 192 F.3d 230, 237 (1st Cir. 1999).
The district court adopted the factual statements
from the PSR detailing that Tobon recruited Velez and
Agudelo, paid for their hotel room, and directed Agudelo in
his dealings with the agents for the purchase of the 50
kilograms of cocaine. Tobon did not object to these
assertions in the PSR, and he is therefore foreclosed from
contesting them on appeal. See United States v. Morillo, 8
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F.3d 864, 872-73 (1st Cir. 1993) (“A defendant who accepts
the probation department’s configuration of the sentencing
record without contesting the facts set forth in the PSI
Report can scarcely be heard to complain when the sentencing
court uses those facts in making its findings”). On these
facts, we conclude that the district court did not clearly
err in applying the leadership enhancement.
Tobon argues, for the first time on appeal, that
Agudelo and Velez’s statements that they were recruited by
Tobon are untrustworthy, as Agudelo and Velez were
cooperating defendants, and their statements were
uncorroborated. We review arguments not raised below only
for plain error. United States v. Rivera-Ruiz, 244 F.3d 263,
272 (1st Cir. 2001). We find no plain error in the district
court’s decision to credit Velez’s and Agudelo’s statements
that they were recruited by Tobon.
Tobon received a two-level enhancement to his base
offense level for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1 based upon the district court’s finding that
Tobon threatened his co-defendant Paola Velez. Tobon argues
for the first time on appeal that the district court
erroneously relied upon insufficient evidence, namely, the
statement of another individual charged with a crime
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contained within an FBI report. Tobon fails to acknowledge,
however, that in addition to providing the court with the FBI
report, the government had the witness whose statement was
memorialized in the report available to testify at sentencing
as to the threats Tobon asked her to convey to Velez. The
government proffered what the witness would testify to, and
Tobon did not object to this recitation, or even request that
the witness actually testify.
Arguments not seasonably addressed to the trial
court may not be raised for the first time in an appellate
context. United States v. Graciana, 61 F.3d 70, 76 (1st Cir.
1995). Even if this court were to review Tobon’s argument
for plain error, see Rivera-Ruiz, 244 F.3d at 272 (reviewing
objections not made at the time of sentencing for plain
error), the claim fails. A sentencing court may rely upon
hearsay evidence to justify an obstruction-of-justice
enhancement, so long as it appears reliable. See United
States v. Aymelek, 926 F.2d 64, 68 (1st Cir. 1991). In this
case, the statement has reasonable indicia of reliability,
as it was corroborated by Velez’s report that she had been
told about Tobon’s threats and by Velez’s actions in twice
seeking to relocate out of fear for her safety.
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Accordingly, the district court did not plainly err
in relying upon the FBI report or the government’s proffer
in making its factual finding that Tobon had threatened
Velez. Furthermore, we see nothing confusing or ambiguous
about the alleged threat.
The Government’s Motion for Summary Disposition is
granted. Tobon’s sentence is affirmed. See Loc. R. 27(c).
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