United States v. Negron-Rossy

2015 | Cited 0 times | First Circuit | October 23, 2015

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 14-1899





Defendant, Appellant.


[Hon. José A. Fusté, U.S. District Judge]


Torruella, Stahl, and Kayatta, Circuit Judges.

Leslie W. O'Brien on brief for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Francisco A. Besosa-Martínez, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

October 23, 2015

Per curiam. Jesús Negrón-Rossy pled guilty to one count

of conspiracy to import a controlled substance, in violation of 21

U.S.C. §§ 952, 963, and 960(a)(1) and (b)(1)(B), and one count of

conspiracy to possess with intent to distribute controlled

substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

(b)(1)(A)(ii). The district court sentenced Negrón-Rossy to a

prison term of 188 months. On appeal, Negrón-Rossy challenges the

district court's application of a sentencing enhancement based on

his role as an organizer, leader, manager, or supervisor of the

charged conspiracy. We affirm.

From approximately 2010 to 2013, a group of employees

and affiliates of the San Juan Seaport conspired to import large

quantities of cocaine and heroin into Puerto Rico on containerized

cargo vessels. Negrón-Rossy, a former truck loader and checker at

the Seaport, was among ten individuals indicted in connection with

the conspiracy.

On March 17, 2014, the day on which his case was

scheduled to go to trial, Negrón-Rossy pled guilty. A presentence

investigation report ("PIR") was subsequently completed detailing

Negrón-Rossy's role in the conspiracy, and it recommended that

Negrón-Rossy's offense level be increased by two points based on

his role as an organizer, leader, manager, or supervisor of the

conspiracy. See U.S. Sentencing Guidelines Manual § 3B1.1(c) ("If

the defendant was an organizer, leader, manager, or supervisor in

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any criminal activity . . . increase by 2 levels."). Negrón-Rossy

disputed the quantity of drugs attributable to him personally, but

he did not otherwise dispute the facts contained in the PIR, nor

did he appear to challenge the application of an enhancement based

on his supervisory role.

Negrón-Rossy was sentenced on August 4, 2014 to a prison

term of 188 months. This sentence represented the low end of the

applicable guideline range based on Negrón-Rossy's total offense

level - including the § 3B1.1(c) enhancement - and his criminal

history. At the sentencing hearing, neither the parties nor the

district court addressed the enhancement.

The government contends that Negrón-Rossy waived his

right to contest the application of a § 3B1.1(c) enhancement. See

United States v. Rodriguez, 311 F.3d 435 , 437 (1st Cir. 2002) ("A

party waives a right when he intentionally relinquishes or abandons

it. This is to be distinguished from a situation in which a party

fails to make a timely assertion of a right - what courts typically

call a 'forfeiture.' The difference is critical: a waived issue

ordinarily cannot be resurrected on appeal, whereas a forfeited

issue may be reviewed for plain error." (citations omitted)).

Because it is unclear from the record how (or if) Negrón-Rossy

actually challenged the § 3B1.1(c) enhancement below, we proceed

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to review for plain error.1 See United States v. Rivera-Rodríguez,

489 F.3d 48 , 59 (1st Cir. 2007). To prevail, Negrón-Rossy must

show (1) that an error occurred; (2) which was clear or obvious

and which not only; (3) affected his substantial rights; but also

(4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings. United States v. Leahy,

668 F.3d 18 , 23 (1st Cir. 2012).

To justify the application of a § 3B1.1(c) enhancement,

the evidence need only show that the defendant exercised authority

or control over another participant on one occasion. United States

v. Prange, 771 F.3d 17 , 34 (1st Cir. 2014). Indeed, simply

recruiting a single co-defendant, by itself, constitutes a

managerial function. Id. We also consider the following factors:

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.

United States v. Savarese, 686 F.3d 1 , 19-20 (1st Cir. 2012)

(quoting U.S. Sentencing Guidelines Manual § 3B1.1, cmt. 4).

1However, to the extent that Negrón-Rossy now disputes the factual allegations set forth in the PIR, those claims were plainly waived, and we conduct our review with the assumption that the allegations are true. See United States v. Turbides-Leonardo, 468 F.3d 34 , 37-38 (1st Cir. 2006).

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Negrón-Rossy contends that there was insufficient

evidence that he was an organizer, leader, manager, or supervisor

of the conspiracy. He also argues that the district court erred

by failing to address the enhancement at the sentencing hearing.

We reject both arguments.

As an initial matter, the record provides an ample basis

on which to conclude that Negrón-Rossy did in fact occupy a

supervisory role. The PIR gives several examples of relevant

conduct: (1) in 2012, Negrón-Rossy traveled to the Dominican

Republic in order to coordinate the importation of a drug load;

(2) Negrón-Rossy recruited a co-conspirator and instructed him to

hire stevedores to offload narcotics from container ships upon

arrival; (3) Negrón-Rossy "coordinated" the participation of a

second co-conspirator who was responsible for distributing some of

the narcotics during the course of the conspiracy; and (4) Negrón-

Rossy arranged to purchase a shift from a colleague in April 2012

in order to supervise the arrival of a narcotics shipment. Negrón-

Rossy did not dispute these facts before the district court and,

despite his arguments to the contrary, they are adequate to justify

application of a two-point enhancement pursuant to § 3B1.1(c).

Nor does the district court's failure to address the

enhancement at sentencing merit reversal. Negrón-Rossy did not

object to the enhancement and, as we have said, the issue was not

raised at the sentencing hearing. What is more, in our view, the

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basis for the application of the enhancement was plainly clear on

the record, obviating the need for the district court to

specifically address it. See United States v. Medina, 167 F.3d

77 , 80 (1st Cir. 1999) ("In many circumstances, the basis for a

role-in-the-offense enhancement will be apparent from the record.

When this is not so, however, the sentencing court, in order to

apply such an enhancement, must make a specific finding which

identifies those being managed 'with enough particularity to give

credence to the upward adjustment.'" (quoting United States v.

McDowell, 918 F.2d 1004 , 1011 (1st Cir. 1990)).

For these reasons, we affirm Negrón-Rossy's sentence.

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