United States v. Rivera ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1531
UNITED STATES OF AMERICA,
Appellee,
v.
NATHANIEL RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Thompson, Circuit Judges.
Ruth O'Meara-Costello and Zalkind Duncan & Bernstein LLP on
brief for appellant.
Darcie N. McElwee, United States Attorney, and Noah Falk,
Assistant United States Attorney, on brief for appellee.
October 14, 2022
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Nathaniel Rivera strives to persuade us that
the district court erred in elevating his guideline sentencing
range (GSR) on account of his perceived leadership role in the
criminal enterprise. Because our appraisal of the record reveals
that the defendant's sentence rests on a sufficiently sturdy plinth
of factual findings, we affirm the challenged sentence.
I
This case has its genesis in a home invasion and robbery
committed by the defendant and four co-conspirators. Because the
appeal follows a guilty plea, we draw the facts from "the non-
binding plea agreement . . . , the change-of-plea colloquy, the
undisputed portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing." United
States v. Bermúdez–Meléndez, 827 F.3d 160, 162 (1st Cir. 2016).
In May of 2019, the defendant and Eric Mercado began
formulating plans to rob a home in York, Maine. The defendant
knew the homeowner (R.S.) through, among other things, prior drug
transactions. He thought that the robbery would yield a harvest
of money and/or drugs.
By May 7, the scheme had been fleshed out and Mercado
wanted to conduct the home invasion that night. The defendant
convinced him to wait a few days, and the co-conspirators undertook
the robbery on May 10.
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In accordance with their plan, the defendant and two co-
conspirators, Rhiannon Mercado (Ms. Mercado) and Jennirez Urbaez,
coordinated a party at R.S.'s house. Just before arriving, the
defendant relayed R.S.'s address to the other two co-conspirators
(Mercado and Steven Hardy). Once inside, the defendant texted
Mercado, telling Mercado that he had locked R.S.'s dogs in the
mudroom and that he thought that R.S. had cash on hand.
The party continued into the early morning hours. Around
12:40 a.m., the three co-conspirators who were attending the party
convinced R.S. that they should all go for a dip in the hot tub
outside the house. Shortly after getting into the hot tub, the
defendant left (ostensibly to use the bathroom). While inside the
house, he unlocked the front door and texted Mercado "now." The
defendant then returned to the hot tub.
In short order, Mercado and Hardy entered the house and
made their way to the hot tub, brandishing firearms. They ordered
R.S. to lie down, but he ran into the house. Mercado and Hardy
gave chase and fired their weapons during a brief skirmish. R.S.
sustained minor injuries to his leg but managed to escape.
Surveillance video shows that, as the co-conspirators fled the
scene, the defendant instructed three of them to take his bag and
drive his car so that he could steal R.S.'s truck.
Later that month, the authorities arrested the
defendant. In due course, a federal grand jury sitting in the
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District of Maine returned a single-count indictment charging the
defendant and others with conspiracy to commit Hobbs Act robbery.
See 18 U.S.C. § 1951(a). In a superseding four-count indictment,
the defendant was again charged with one count of conspiracy to
commit Hobbs Act robbery.
On February 18, 2020, the defendant entered a guilty
plea. In the PSI Report, the probation office concluded that the
defendant was an organizer of the robbery effort, adding that
"[b]ut for Rivera, the instant offense would not have occurred.
He held an organizing role (with Mercado)." (Emphases in
original). Building on this foundation, the PSI Report recommended
a four-level role-in-the-offense enhancement. See USSG §3B1.1(a).
The defendant objected to the enhancement, but the probation office
held firm.
The disposition hearing was held on July 21, 2021. The
final version of the PSI Report recommended a total offense level
of thirty-one (which included the four-level enhancement) and a
criminal history category of IV, yielding a GSR of 151 to 188
months. Despite previously objecting to the section 3B1.1(a) role-
in-the-offense enhancement, the defendant did not object to these
guideline calculations either in his sentencing memorandum or at
the disposition hearing.
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The district court accepted the guideline calculations
adumbrated in the PSI Report. With respect to the role-in-the-
offense enhancement, the court said:
There's no dispute as to what happened here.
Mr. Rivera was the spark, the idea man, behind
the notion of performing a home invasion
against an individual who lives in York,
Maine. He communicated first with Mr. Mercado
and then others who over the course of two
days plotted the home invasion, targeting
someone who they believed would be in
possession of contraband and a large amount of
cash and other valuables. . . .
Mr. Rivera [has received] offense points [sic]
under the guidelines as being a
leader/organizer of this conspiracy, which he
was. The government has characterized him as
the mastermind; I'm not sure that mastermind
is entirely appropriate. He certainly was the
instigator of the conspiracy. But based on
the information I've received it seems to me
that Mr. Mercado was the primary mover in
terms of the design and then execution of the
event. In any event, Mr. Rivera bears great
culpability and responsibility for giving
birth to this horrendous crime.
In the end, the district court varied downward because
of the defendant's troubled childhood and the fact that his
criminal history category overstated the seriousness of his
criminal past. These downward variances reduced the total offense
level to twenty-eight and the criminal history category to III,
yielding a revised GSR of 97 to 121 months. The court then
sentenced the defendant at the bottom of the modified range,
imposing a ninety-seven months' term of immurement. When
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explaining the sentence, the court concluded, "the sentence I would
impose today would be the same, untethered from the guidelines;
that is, based upon the 3553(a) sentencing factors[,] I'm satisfied
that the sentence that I've now articulated is just, fair, and
appropriate."
This timely appeal followed.
II
This is a rifle-shot appeal. In it, the defendant raises
only a single claim of error: a challenge to the four-level role-
in-the-offense enhancement. And he concedes that — because he did
not object to this enhancement at sentencing — review is only for
plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). "Review for plain
error entails four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Duarte, 246 F.3d at 60.
"Appellate review of a criminal defendant's claims of
sentencing error involves a two-step pavane." United States v.
Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). "[W]e first
determine whether the sentence imposed is procedurally reasonable
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and then determine whether it is substantively reasonable." United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Here,
however, the defendant advances only a procedural objection — and
we limit our analysis to that objection. In doing so, we remain
mindful that inquiries into a defendant's role in the offense are
"notoriously factbound, and struggles over a defendant's role in
the offense 'will almost always be won or lost in the district
court.'" United States v. Ventura, 353 F.3d 84, 89 (1st Cir. 2003)
(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.
1995)).
The first two elements of the plain error construct lend
themselves to joint appraisal. To satisfy these elements, the
defendant must show that the district court's application of the
four-level role-in-the-offense enhancement was so far afield as to
constitute "clear or obvious" error. Duarte, 246 F.3d at 60. As
we explain below, the defendant cannot make this showing.
We begin with the applicable guideline. That guideline
prescribes a four-level enhancement if "the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive." USSG §3B1.1(a).
By contrast, the guideline prescribes only a three-level
enhancement if "the defendant was a manager or supervisor (but not
an organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive." USSG §3B1.1(b).
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The government bears the burden of proving the
applicability of upward role-in-the-offense adjustments by a
preponderance of the evidence. See United States v. McCormick,
773 F.3d 357, 359 (1st Cir. 2014). To carry this burden with
respect to the organizer/leader enhancement, the government's
evidence must satisfy both a scope requirement (that is, the
evidence must show that the enterprise involved five or more
participants or was otherwise extensive) and a status requirement
(that is, that the defendant acted as an organizer or leader of
the enterprise). See United States v. Arbour, 559 F.3d 50, 53
(1st Cir. 2009). Here, the defendant acknowledges that the
unlawful enterprise satisfied the scope requirement: it clearly
involved five participants. He argues, though, that the sentencing
court committed plain error when it determined that the defendant
operated as an organizer of the enterprise. We think not.
The baseline rule is that a defendant acts "as an
organizer, though perhaps not as a leader, if he coordinates others
so as to facilitate the commission of criminal activity." United
States v. Tejada-Beltran, 50 F.3d 105, 112 (1st Cir. 1995). The
sentencing guidelines suggest a non-exhaustive list of factors
that courts should consider when distinguishing a role that
involves organization and leadership from a role that involves
merely management and supervision. These factors are:
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the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
Id. at 111 (quoting USSG §3B1.1, cmt. n.4). This list is
"representative rather than exhaustive," and "proof of each and
every factor" is not necessary to establish that a defendant acted
as an organizer or leader. Id.
The defendant stresses the sentencing court's finding
that "Mr. Mercado, not Mr. Rivera, was the 'primary mover in terms
of the design and then execution of the event.'" He suggests that
because the sentencing court found that Mercado was the "primary
mover," it could not pin the label of organizer on the defendant.
This suggestion, however, overlooks the case law holding that "a
defendant need not exercise complete hegemony over the entire
criminal enterprise in order to qualify as an organizer." United
States v. Ilarraza, 963 F.3d 1, 14 (1st Cir. 2020); see USSG
§3B1.1, cmt. n.4 ("There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal association
or conspiracy."). Thus, despite the finding that Mercado was the
"primary mover" of the execution of the conspiracy, there was ample
room for the court to hold that the defendant was an organizer of
the conspiracy. Cf. United States v. Rodríguez-Lozada, 558 F.3d
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29, 45 (1st Cir. 2009) (holding that "[e]ven if [the defendant]
were subordinate to [his co-conspirator] in the hierarchy of the
conspiracy, that would not negate [the defendant]'s leadership
role"); Ventura, 353 F.3d at 89-90 (upholding organizer
enhancement notwithstanding defendant's argument that "he was only
one of several management-level dealers").
Viewed in its totality, the record comfortably supports
the sentencing court's determination that the defendant was an
organizer of the conspiracy. An organizer, by definition, is "a
person who arranges something (such as an event) . . . ." Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/organizer
(last visited Oct. 14, 2022). Here, the event was the home
invasion and robbery. And — in the district court's words — the
defendant was the "instigator."
What is more, the defendant was the conspiracy's link to
the target. He recruited co-conspirators, "communicat[ing] first
with Mr. Mercado and then others." So, too, in the days preceding
the robbery, the defendant was intimately involved in the planning
of the home invasion. See Tejada-Beltran, 50 F.3d at 112 ("One
may be classified as an organizer . . . if he coordinates others
so as to facilitate the commission of criminal activity."). He
also dictated the timing of the execution of the plot: when
Mercado sought to commit the robbery "sooner rather than later,"
the defendant made the decision to postpone the robbery for three
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days. Cf. United States v. Talladino, 38 F.3d 1255, 1261 (1st
Cir. 1994) (holding that when defendant makes unilateral decisions
concerning when, where, and how a conspiracy will achieve its
criminal goal, "that individual exhibits precisely the sort of
characteristics that are emblematic of an organizer or leader").
And, finally, it was the defendant who not only originally
conceived the plot to garner money and drugs but who also expanded
it to include R.S.'s truck.
Contrary to the defendant's importunings, there is also
record evidence that he "exercised some degree of authority or
control over another criminal actor." United States v. Garcia-
Sierra, 994 F.3d 17, 37 (1st Cir. 2021) (emphasis in original).
On the evening of the robbery, for example, the defendant directed
when and how his co-conspirators entered the house. After
surreptitiously unlocking the door to allow entry and giving
Mercado and Hardy a five-minute warning, he directed them to
commence the robbery. In addition, the defendant — during the
escape — instructed his confederates that "you three are taking my
car" and asked that someone grab his bag.
Determining whether a defendant is an organizer of a
criminal enterprise is a fact-specific task. See Ventura, 353
F.3d at 89. One size does not fit all. In this instance, the
uncontested facts chronicled above and the reasonable inferences
therefrom suffice to establish that the sentencing court did not
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commit clear or obvious error in finding that the defendant was an
organizer of the conspiracy.
In reaching this conclusion, we reject the defendant's
argument that these facts show, at most, that he operated as a
manager or supervisor, not as an organizer. To be sure, a common
nucleus of facts often may give rise to different inferences. Even
so, a sentencing court's choice between reasonable yet competing
inferences cannot be deemed clear or obvious error. As we
previously have held, where "a reasonable factfinder could have
viewed the appellant's role in one of two different
ways . . . [t]his duality lights our path: 'where there is more
than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous.'" Ilarraza, 963 F.3d at 14 (quoting United States v.
Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017)). Thus, even if the
court could plausibly have found that the defendant was merely a
manager or supervisor, that possibility would not throw shade on
its actual finding — also a plausible one — that the defendant was
an organizer of the criminal enterprise. See id.III
We add a coda. "[W]e have consistently held that when
a sentencing court makes clear that it would have entered the same
sentence regardless of the Guidelines, any error in the court's
Guidelines calculation is harmless." United States v. Ouellette,
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985 F.3d 107, 110 (1st Cir. 2021). Here, the sentencing court
explicitly stated that it would impose an identical sentence
without regard to the sentencing guidelines (and by fair
implication, without regard to the appropriateness of its role-
in-the-offense determination). Given this statement, any error in
the guideline calculations — even if one occurred — would be
harmless. See United States v. Ortiz-Álvarez, 921 F.3d 313, 319
(1st Cir. 2019); United States v. Acevedo-Hernández, 898 F.3d 150,
172 (1st Cir. 2018); United States v. Tavares, 705 F.3d 4, 27-28
(1st Cir. 2013); United States v. Marsh, 561 F.3d 81, 86 (1st Cir.
2009).
IV
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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