United States v. Torres-Rivera , 661 F. App'x 727 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15–2126
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO TORRES-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Hon. Aida M. Delgado-Colón, U.S. District Judge
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
Darla J. Mondou and Mondou Law Office on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, on brief for appellee.
September 21, 2016
KAYATTA, Circuit Judge. In August 2013, Ricardo Torres-
Rivera and eighteen others were indicted and charged with violating
federal law by participating in a broad conspiracy to import heroin
into Puerto Rico. Torres-Rivera agreed to plead guilty, and the
parties recommended a sentence to the district court on the low
end of the applicable guidelines range of 87 to 108 months'
imprisonment. The government also certified to the district court
that Torres-Rivera met the requirements for safety-valve relief
under 18 U.S.C. § 3553(f), and because the district court accepted
the government's certification, Torres-Rivera was exempt from the
otherwise-applicable statutory 120-month minimum sentence. The
district court nonetheless sentenced Torres-Rivera to 120 months
in prison, twelve months more than the top of the guidelines range.
Torres-Rivera now appeals, arguing that the sentence the
district court imposed was both procedurally and substantively
unreasonable. It was neither, so we affirm.
I. Background
In May 2015, Torres-Rivera agreed to plead guilty to two
criminal counts. The first, count two of the indictment, charged
him with violating 21 U.S.C. §§ 952(a) and 963 by conspiring to
import drugs into the United States. The second, count three of
the indictment, charged him with violating 18 U.S.C. § 1956 by
participating in a conspiracy to launder the proceeds of the
criminal enterprise.
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In the plea agreement, the parties agreed to recommend
a term of imprisonment on the lower end of the applicable
guidelines sentencing range, which they determined was 108 to 135
months' imprisonment. The agreement warned Torres-Rivera,
however, that count two carried a statutory ten-year (120-month)
mandatory minimum sentence. The agreement also stipulated that
the district court was neither party to nor bound by the agreement,
and that the sentencing decision was ultimately within the district
court's discretion.1
During the change of plea hearing, the government
described the evidence it would present against Torres-Rivera were
the case to proceed to trial:
As to Count 2 as to [Torres-
Rivera], . . . to begin with Your Honor this
case commenced with a Title 3 that started in
Col[o]mbia. So basically the evidence that
we have here, among other evidence is wire
recordings. In this case all of the three
defendants [pleading guilty at the change of
plea hearing] were recorded . . . .
The participation of Mr. Torres in this
conspiracy was basically he worked for
[defendant] number 1, for Mr. Hernando Mar[í]n
Echeverri. He was recorded communicating
with Mr. Mar[í]n and other codefendants trying
to coordinate the smuggling, the importation,
transportation and distribution of the heroin
into Puerto Rico. There is also evidence that
Mr. Torres coordinated also the transfer of
1The plea agreement additionally included an appellate
waiver. The parties agree, however, that the waiver does not bar
this appeal because Torres-Rivera's sentence exceeded the parties'
jointly stipulated range.
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drug proceeds from Puerto Rico into
Col[o]mbia.
At sentencing, the district court accepted the
government's certification that Torres-Rivera qualified for
sentencing relief under 18 U.S.C. § 3553(f). This "safety valve"
provision requires a court to disregard an applicable statutory
minimum sentence if the court finds at sentencing that the
defendant meets five specified criteria, one being that the
defendant "was not an organizer, leader, manager, or supervisor of
others in the offense." 18 U.S.C. § 3553(f)(4). In accepting the
government's certification, the district court so found. This
resulted in a reduction in Torres-Rivera's final offense level,
making his guidelines sentencing range 87 to 108 months.
The district court nevertheless imposed a sentence of
120 months' imprisonment, explaining that although the statutory
minimum did not apply, Torres-Rivera's high-level involvement in
the conspiracy and his position as the direct link between its
participants and its leader justified an upward departure from the
guidelines range. Curiously, the district court justified its
decision to impose an above-guidelines sentence in part by
explaining that it believed Torres-Rivera "could have received a
two level enhancement under section 3B1.1." This enhancement,
known as the "aggravating role" enhancement, calls for an upward
adjustment to a defendant's offense level where the defendant is
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an "organizer, leader, manager, or supervisor" of others in the
offense. U.S.S.G. § 3B1.1(c). An application note accompanying
this enhancement provides:
To qualify for an adjustment under this
section, the defendant must have been the
organizer, leader, manager, or supervisor of
one or more other participants. An upward
departure may be warranted, however, in the
case of a defendant who did not organize,
lead, manage, or supervise another
participant, but who nevertheless exercised
management responsibility over the property,
assets, or activities of a criminal
organization.
U.S.S.G. § 3B1.1 cmt. n.2.
Citing this application note, the court found that
Torres-Rivera's role in the offense justified an upward departure.
The court explained that Torres-Rivera's participation in the
conspiracy was "extensive [as] to all five drug trafficking events
upon which this case is based," and that he appeared "to have safe
kept money to be sent to Col[o]mbia[,] and those monies of course
were the illegal proceeds of the narcotics that were being moved."
Accordingly, Torres-Rivera was sentenced to 120 months in prison,
the "12 extra months from the 108" being "granted as an upward
departure for the reasons [the district court] mentioned
concerning his managerial role and the significance of the same in
terms of the equation and the five drug trafficking events to which
the conspiracy is extended."
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Torres-Rivera objected to his sentence and made an oral
motion for reconsideration, challenging the court's finding that
he served in a managerial role in the conspiracy. The district
court reiterated that it "didn't assign the adjustment as manager,"
but rather was "alluding to his responsibility within the entire
scheme and the conspiracy." Reconsideration was denied, and this
appeal followed.
II. Discussion
Because Torres-Rivera objected to his sentence in the
district court, we review the sentence's reasonableness for abuse
of discretion. United States v. King, 741 F.3d 305, 307–08 (1st
Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Under this standard, we first consider whether the court committed
any procedural error "such as failing to consider appropriate
sentencing factors, predicating a sentence on clearly erroneous
facts, or neglecting to explain the rationale for a variant
sentence adequately." United States v. Del Valle-Rodríguez, 761
F.3d 171, 176 (1st Cir. 2014) (citing United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008)). If no procedural error occurred,
we review to ensure that the district court imposed a
"substantively reasonable sentence," the "hallmarks" of which "are
a plausible sentencing rationale and a defensible result." United
States v. Díaz-Bermúdez, 778 F.3d 309, 313 (1st Cir. 2015) (quoting
Martin, 520 F.3d at 96).
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Torres-Rivera contends that the district court committed
procedural error by relying on the application note to § 3B1.1 in
handing down an above-guidelines sentence. He argues that the
note implies that a court may apply the § 3B1.1 enhancement even
where the government concededly lacks evidence to demonstrate the
defendant is eligible for it, undermining this court's
longstanding rule that to apply the aggravating role enhancement,
"[i]t is not enough . . . that the defendant merely controlled,
organized, or managed criminal activities; rather, he must instead
control, organize, or manage criminal actors." United States v.
Flores-de-Jesús, 569 F.3d 8, 34 (1st Cir. 2009) (quoting United
States v. Ofray-Campos, 534 F.3d 1, 40 (1st Cir. 2008)). Torres-
Rivera thus essentially argues that it is procedural error to
increase a defendant's sentence based on his mere management of
assets or activities, especially where such increase results in
the same sentence the court might have imposed by applying a
§ 3B1.1 enhancement.
To be sure, had the district court applied the § 3B1.1
enhancement in this case, it would quite clearly have erred. Only
moments before finding that Torres-Rivera "could have received a
two level enhancement" for being the organizer, leader, manager,
or supervisor of the conspiracy, the court accepted the
government's certification that he was eligible for safety-valve
relief in part due to his being none of these things. And, to the
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extent the district court's finding was that Torres-Rivera
exercised management responsibilities over the "property, assets,
or activities" of the criminal enterprise, this court has
repeatedly held that such finding "is not a valid basis for an
offense level enhancement under § 3B1.1." United States v.
Prange, 771 F.3d 17, 35 (1st Cir. 2014); see, e.g., United States
v. Ramos-Paulino, 488 F.3d 459, 464 (1st Cir. 2007) (noting that
the application note itself "makes it pellucid that the management
of criminal activities (as opposed to the management of criminal
actors) may ground an upward departure but not an upward role-in-
the-offense adjustment").
But the district court opted for a departure, not an
enhancement. Accordingly, the question before us is not whether,
applying de novo review, "the sentencing court erred in
interpreting or applying the guidelines," but rather whether its
factual findings were clearly erroneous or its judgment calls were
the result of an abuse of discretion. United States v. Santiago-
González, 825 F.3d 41, 48 (1st Cir. 2016). Torres-Rivera insists
his sentence is procedurally unreasonable on both of these bases.
For the following reasons, we disagree.
First, the record provides ample support for the
district court's factual findings as to both Torres-Rivera's role
in the conspiracy and the extent of his involvement. Torres-
Rivera contends that the district court erroneously found he was
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an "employer," a role which has no definition in the guidelines or
statute and which the court did not explain. But the court did
not so find; rather, it acknowledged the government's distinction
between Marín-Echeverri, the leader of the conspiracy, and Torres-
Rivera and Armando Rivera-Ortiz, the two participants whom the
government called "employers" due to their roles as non-leaders
overseeing the activities of other members of the criminal
enterprise. The court found that Torres-Rivera "acted as a
manager on behalf of [Marín-Echeverri, the leader of the
conspiracy,] making sure that his instructions were executed."
More importantly, the district court observed that
receipts concerning checks used to launder the proceeds of the
drug smuggling operation were seized from Torres-Rivera. The
district court also observed that Torres-Rivera managed or
controlled the proceeds of the conspiracy by virtue of the nature
of his role as the local overseer in charge of safekeeping the
money and facilitating its transfer to Colombia. In response to
Torres-Rivera's oral motion for reconsideration, the district
court noted that Torres-Rivera "safe kept proceeds" for the leader
of the conspiracy, Marín-Echeverri, and "safe kept evidence of the
money orders of Western Union of the payments being transferred."
Torres-Rivera does not dispute that he exercised this control, and
no countervailing evidence in the record suggests that the district
court's finding was clearly erroneous.
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Torres-Rivera also contends that the district court's
finding that he "extensive[ly]" participated in all five of the
drug trafficking events at issue was erroneous because "the
government stated it had no proof that [he] was involved in all
five events." This, too, is a misrepresentation of the record.
At sentencing, the government told the district court that it could
not say precisely how involved Torres-Rivera was in each of the
five individual drug trafficking events, but it had evidence that
Torres-Rivera and Marín-Echeverri communicated with one another
"on numerous occasions throughout the conspiracy." In other
words, the government stated not that it lacked any proof of
Torres-Rivera's involvement, but that its proof consisted of
circumstantial rather than direct evidence. That circumstantial
evidence showed that Torres-Rivera was charged with overseeing
criminal activities in Puerto Rico and, contemporaneous with all
five drug trafficking events, was in continuous and frequent
contact with the conspiracy's leader. In light of this evidence,
it was not clearly erroneous to find that Torres-Rivera was
significantly involved in all of the trafficking at issue.
Second, it is not an abuse of discretion to depart from
the sentencing guidelines range where the record suggests that the
defendant managed property, assets, or activities. This court has
long recognized the continuing vitality of the application note's
directive that an "upward departure may be warranted" where a
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person who does not qualify for a § 3B1.1 enhancement "nevertheless
exercised management responsibility over the property, assets, or
activities of a criminal organization." See, e.g., Prange, 771
F.3d at 35 (noting that a court's finding that a defendant
"exercised management responsibilities over the property, assets
or activities" of the enterprise "may warrant an upward departure"
(emphasis omitted)); Ofray-Campos, 534 F.3d at 41 n.11; Ramos-
Paulino, 488 F.3d at 464; see also United States v. Cali, 87 F.3d
571, 580 (1st Cir. 1996) ("Section 3B1.1 departures are clearly
encouraged by the Commission. The language of Application
Note 2 . . . endorses management of assets as a permissible basis
for upward departure."). The district court did not procedurally
err.
Finally, Torres-Rivera argues that even if the district
court committed no procedural error, his sentence is substantively
unreasonable. The substantive reasonableness inquiry "focuses on
the duration of the sentence in light of the totality of the
circumstances." Del Valle-Rodríguez, 761 F.3d at 176. Torres-
Rivera contends that the district court committed reversible error
because in the end, its impetus for imposing an above-guidelines
sentence was the "moral conflict" it felt about giving the same
sentence to Torres-Rivera as to lower-level participants in the
conspiracy.
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This argument fails as well. "[T]he linchpin of a
reasonable sentence is a plausible sentencing rationale and a
defensible result," United States v. Flores-Machicote, 706 F.3d
16, 25 (1st Cir. 2013) (quoting Martin, 520 F.3d at 92) (alteration
in original) (citation omitted), both of which are present here.
First, the district court provided ample justification for its
decision to impose an upward departure. See Del Valle-Rodríguez,
761 F.3d at 176 ("Where . . . a court imposes a sentence above the
GSR, it must justify the upward variance."). It considered the
seriousness of the criminal conduct, the defendant's personal
characteristics, and the nature, scope, and structure of the
conspiracy, and it ultimately based its decision on uncontroverted
evidence that Torres-Rivera managed assets and activities of the
criminal enterprise. Observing that the guidelines contemplate
departures based on such evidence, the district court provided a
plausible explanation for the sentence it chose to impose.
That explanation and the resulting sentence are
defensible in light of the totality of the circumstances. Torres-
Rivera's principal complaint with the sentence he received is that
it was based not only on his conduct and personal characteristics,
but also on the district court's desire to impose a harsher
sentence on him than less involved members of the conspiracy. But
"judges are directed by statute to consider 'the need to avoid
unwarranted sentencing disparities among defendants with similar
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records who have been found guilty of similar conduct.'" United
States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015)
(quoting 18 U.S.C. § 3553(a)(6)). Conversely, "district courts
have discretion, in appropriate cases, to align codefendants'
sentences somewhat in order to reflect comparable degrees of
culpability -- at least in those cases where disparities are
conspicuous and threaten to undermine confidence in the criminal
justice system." Martin, 520 F.3d at 94.
At sentencing, the district court noted that it
sentenced a low-level participant in the conspiracy to 108 months'
imprisonment. The court then explained that it had a "problem
with this type of plea agreement where everyone ends up in the
same category" because it failed to properly assess each member's
role in the criminal enterprise, creating a "moral conflict" in
the court's sentencing process. Justifying its decision to impose
a 120-month sentence on Torres-Rivera in this way was not error;
indeed, it reflected the court's concern for consistency and
fairness in sentencing.
Because Torres-Rivera's sentence was neither
procedurally nor substantively unreasonable, we affirm.
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