United States v. Rosario-Malave

No. 90-2021

1991 | Cited 0 times | First Circuit | November 13, 1991

Defendant Jorge Rosario-Molave was convicted by a jury of one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and was thereafter sentenced to 97 months in prison. He now appeals, challenging only the length of his sentence. In particular, he claims that the district court erred in its calculations under the Sentencing Guidelines ("U.S.S.G") in three respects: by declining to award two-level reductions in the base offense level for acceptance of responsibility and for his "minor" participation, and by imposing a two-level enhancement due to the presence of firearms during the offense. The government has moved for summary disposition on the ground that each of defendant's contentions is plainly without merit. We agree, and therefore summarily affirm the judgment of the district court. Loc. R. 27.1.

Background

The circumstances surrounding defendant's arrest, drawn from the undisputed facts in the presentence investigation report ("PSI"), can be briefly recounted. (Additional facts will be presented as necessary below.) Defendant was one of five individuals arrested in connection with the attempted sale of approximately one kilogram of cocaine to an undercover agent on May 14, 1990. The transaction was initiated by codefendant Miguel Cruz Pereira, who is described in the PSI as an intermediary. In the course of engaging in the illegal sale of firearms to the undercover agent, Cruz indicated that he knew of individuals capable of selling cocaine. He later introduced the agent to codefendants Rafael Vicente Ruiz and Jorge Rosado Sierra, who are described as representatives of a cocaine supplier. On May 10, 1990, Cruz and Ruiz contacted the agent and proposed the sale of four kilograms. The agent agreed to purchase a single kilogram for $29,000, with the understanding that three others would be purchased at a later date. Cruz, Ruiz and Rosado met with the agent later that day in an attempt to effectuate the sale. Yet because the "supplier" did not arrive promptly, the agent decided to leave, and the sale was rescheduled for May 14 at a shopping mall in Caguas.

On that date, with government surveillance teams in place, Cruz arrived first and invited the agent into his car. Ruiz and Rosado then arrived in a second car, pulling alongside Cruz's car to converse. The remaining codefendant, Carlos Torres Casas, who was a subordinate acting as a look-out, was also present. Defendant then arrived in a third vehicle. Rosado and Torres each made hand signals to him, and Rosado boarded defendant's car momentarily. Rosado then exited and approached the agent. Upon being informed that the money was ready, he asked the agent to board defendant's vehicle to inspect the cocaine. Defendant, after introducing himself by his first name, removed a package of cocaine from the glove compartment and presented it to the agent, stating: "I sell it to cook" (meaning it was suitable for preparing crack cocaine). Rosado vouched for the quality of the drug, pledging that if the agent were not satisfied therewith it could be exchanged. The arrests were then made. Both Ruiz and Torres proved to be in possession of loaded semi-automatic pistols.

Of the five participants in the offense, only defendant went to trial; the other four all pled guilty. Following his conviction, the probation office recommended that defendant's offense level be set at 34. It determined that the base offense level should be 30, since, although the sale of only one kilogram was attempted, the sale of four was contemplated. U.S.S.G. § 2D1.1. It proposed increasing this level by two because of defendant's role as an organizer or leader, id. § 3B1.1(c), and by two additional levels due to the presence of firearms, id. § 2D1.1(b)(1). Finally, it concluded that defendant had not clearly demonstrated his acceptance of responsibility and was therefore not entitled to the two-level reduction permitted by § 3E1.1.

Of the various objections lodged by defendant to this recommendation, the district court agreed with two. In imposing sentence on September 20, 1990, it ruled that only the one kilogram involved in the attempted sale should be considered, and thus that defendant's base offense level was 26. And it found the evidence inconclusive as to whether defendant actually occupied a leadership position in the drug ring, and so declined to impose a two-level enhancement for role in the offense. The court concurred with the probation office, however, that a two-level increase was warranted due to the presence of firearms, and that a two-level decrease for acceptance of responsibility was not warranted. It therefore calculated the total offense level to be 28 and imposed sentence accordingly. Defendant now challenges these latter two conclusions, as well as the court's refusal to award a two-level reduction for his allegedly minor role in the offense.

Discussion

1. Acceptance of Responsibility

Defendant devotes the major part of his brief to the argument that the court erred in declining to award a two-level reduction under § 3E1.1. That provision permits such a reduction if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Defendant contends that he has done so here. He further suggests that, in withholding such a reduction, the court failed to specify its reasoning, relied on impermissible factors, and improperly penalized him for exercising his constitutional right to trial by jury. We find no merit to any of these contentions.

Defendant points to the following factors as evidence of his genuine remorse. By letter dated August 14, 1990, several weeks after the jury verdict, defense counsel informed the probation office that defendant was willing to recognize his participation in the offense. On August 15, in an interview with probation, defendant acknowledged that his action was "stupid." In an objection to the PSI, defense counsel asserted that defendant had purposefully declined to testify at trial so as to be able to accept responsibility in the event of a conviction. And in his brief allocution, defendant stated that he was "very repentant for what happened" and that he wanted to be "a useful citizen." The district court, after reviewing these materials, solicited the view of Antonio Bruno, the probation officer. Bruno stated that, during their conversation, defendant had impressed him as attempting to "project the blame on someone else." He cited two examples: (1) defendant had erroneously indicated that it was Rosado (rather than he himself) who retrieved the cocaine from the glove compartment to show to the agent; and (2) defendant had erroneously denied making any comments to the agent. The district court relied on Bruno's statements, along with defendant's demeanor at trial and at the hearing, as grounds for denying the reduction, and later elaborated that defendant had attempted to "fingerpoint" and thereby minimize his own role in the offense.

We review the court's decision in this regard only for clear error. See, e.g., United States v. Reyes, 927 F.2d 48, 50 (1st Cir. 1991). As we explained in United States v. Royer, 895 F.2d 28 (1st Cir. 1990), the court's determination is "entitled to great respect," id. at 29, and should be affirmed if supported by "a plausible basis," id. at 30. This is so because the issue of acceptance of responsibility is "fact-dominated," id. at 29, because credibility and demeanor "play a crucial role in determining whether a person is genuinely contrite," id. at 30, and because the sentencing court has the unique opportunity to observe the defendant "in a live context against the backdrop of the case as a whole," id. at 29. Accord U.S.S.G. § 3E1.1, application note 5. The court's determination here easily passes muster under this standard.

Defendant contends that he at all times acknowledged making the "good for cooking" comment to the agent, and that Bruno's suggestion to the contrary was "blatantly inaccurate." Yet Bruno indicated, not that defendant had not made the statement, but simply that he had denied doing so during the August 15 interview.1 In any event, defendant voiced no objection at the hearing to this statement, and so has waived any argument in this regard. Furthermore, Bruno's second example--that defendant wrongfully stated that it was not he, but rather Rosado, who removed the cocaine from the glove compartment--is supported by the PSI's recounting of the August 15 interview, and has never been disputed by defendant.

We also note that counsel's August 14 letter to Bruno and the PSI's account of defendant's interview contain glaring contradictions. Counsel's letter states that, at the request of an individual known as Cheo, and in exchange for $200, defendant transported the package of cocaine to the shopping mall where he delivered it to Rosado. Yet in the interview, defendant is said to have indicated that (1) Rosado called him from the mall and asked that defendant meet him there because Rosado needed a ride to "deliver something to a friend," (2) that only when defendant arrived at the mall and Rosado entered his car did defendant learn that Rosado intended to deliver cocaine, and (3) that Rosado then placed the cocaine package in the glove compartment, later retrieving it to show to the agent. Defendant never voiced an objection to this account of his interview, which, as mentioned, was contained in the PSI. These discrepancies, although not specifically cited by the district court, go far to reinforce its determination here.

Defendant complains that the court failed to specify which aspects of his "demeanor" it relied on in deciding to withhold the reduction. We think no further explication was required under the circumstances. See generally United States v. Bianco, 922 F.2d 910, 914 n.4 (1st Cir. 1991) (unlike sentencing range departures, court not required to "assign specific reasons for sentence enhancements [or denial of reductions] within the guideline range"); United States v. Beaulieu, 900 F.2d 1531, 1535-36 (10th Cir.) (same), cert. denied, 110 S. Ct. 3252 (1990). Defendant also contends that the court failed either to resolve pertinent factual disputes in the PSI or indicate that the contested matters would not be taken into account. Fed. R. Crim. P. 32(c)(3)(D). Yet the only disputed issue he identifies in this regard is whether he was a leader of the drug ring. And not only was this issue largely irrelevant to the acceptance-of-responsibility question, but it also was in fact resolved (in defendant's favor) by the court.

Finally, defendant suggests that the court's decision to withhold the two-level reduction was a penalty for the exercise of his constitutional right to proceed to trial.2 We find this argument frivolous. In United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989), cert. denied, 110 S. Ct. 2216 (1990), and again in United States v. De Jongh, 937 F.2d 1, 5-6 (1st Cir. 1991), this court held that, as to defendants who continued to assert their innocence after having been found guilty at trial, § 3E1.1 was not an impermissible burden on the exercise of constitutional rights. In the latter case, we did note (without resolving the issue) that a "more difficult problem may exist" where a defendant, after being found guilty, attempts to accept responsibility "and the district court purports to weigh against this acceptance the defendant's earlier constitutionally protected conduct, such as her exercise of her right to remain silent or to put the government to its proof at trial." Id. at 6 n.8. As in De Jongh, however, "no such dilemma" is presented here. Id. The district court, as discussed above, rested its decision on permissible factors having no relation to defendant's decision to proceed to trial. Indeed, the court made no mention of this matter at all in its § 3D1.1 analysis.3 And this fact, if anything, accrued to defendant's benefit, since the timing of his attempt to demonstrate contrition could have been weighed against him. See, e.g., United States v. Cepeda, 907 F.2d 11, 11 (1st Cir. 1990) (while fact that defendant did not admit guilt until after jury conviction would not by itself preclude finding of acceptance of responsibility, court was "entitled to consider the timing of the confession in evaluating its credibility") (citing U.S.S.G. § 3E1.1, application note 1(g)); see also U.S.S.G. § 3E1.1, application note 2. We therefore conclude that defendant was not improperly penalized for exercising his right to trial. See generally United States v. Molina, 934 F.2d 1440, 1450 (9th Cir. 1991) (rejecting similar argument); United States v. Jones, 934 F.2d 1199, 1199-1200 (11th Cir. 1991) (same).

2. Role in the Offense

As mentioned, the probation office recommended a two-level enhancement under § 3B1.1(c) because of what it described as defendant's leadership role in the drug ring. The court rejected this recommendation, indicating that it was a "50/50 proposition" whether he in fact was an organizer or leader. Defendant now argues that he was only a "minor participant," and that the court clearly erred in withholding the appropriate two-level reduction under § 3B1.2(b). We find no merit to this contention. In recently rejecting a similar argument by codefendant Rosado, we canvassed the pertinent case law in this area. See United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir. 1991) (per curiam). As our discussion there makes clear, defendant's conduct here, particularly his delivery of the drug and his attesting to its suitability for use as crack cocaine, is on a par with that deemed sufficient in other cases to withhold the § 3B1.2(b) reduction. See, e.g., United States v. Osorio, 929 F.2d 753, 764 (1st Cir. 1991); United States v. Morales-Diaz, 925 F.2d. 535, 540 (1st Cir. 1991); United States v. Cepeda, 907 F.2d at 12.

3. Enhancement for Presence of Firearm

Section 2D1.1(b)(1) permits a two-level enhancement in specified drug offenses whenever "a dangerous weapon (including a firearm) was possessed during commission of the offense . . . ." The district court ordered such an enhancement because, although defendant was not in possession of a firearm, two of his codefendants were. As defendant acknowledges, the pivotal inquiry here is whether "a codefendant's possession of a firearm in furtherance of their joint criminal venture was reasonably foreseeable by the defendant." United States v. Bianco, 922 F.2d at 912 (citing cases). As we there elaborated:

Firearms are common tools of the drug trade . . . . Absent evidence of exceptional circumstances, we think it fairly inferable that a codefendant's possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.

Id. Defendant concededly was aware that he was involved in a cocaine sale. He had at least constructive knowledge that a large amount of cash ($29,000) was involved. And he has adduced no exceptional circumstances negating an inference of foreseeability. He points out only that he was not charged with conspiracy and played only a minimal role in the offense. Yet a conspiracy charge is not a prerequisite in this context. Id. And as discussed above, the court properly found defendant's role to be more than minimal. We find no clear error in the court's finding in this respect.

Appellee's motion for summary disposition is granted and the judgment is affirmed.

Disposition

Appellee's motion for summary disposition is granted and the judgment is affirmed.

1. In his August 14 letter to Bruno, defense counsel admitted that defendant had made the "good for cooking" remark, but indicated this had been done only in compliance with Rosado's instructions. In the PSI's recounting of the August 15 interview, this explanation is noted; no mention is made of defendant's having denied making the statement entirely. This last fact raises the possibility that Bruno misspoke in his comments to the court--that he intended simply to remark on the dubious validity of this "he-made-me-say-it" claim. Yet this is mere speculation on our part. And, even if true, we think it without significance for the reasons discussed infra.

2. At sentencing, defendant contended that the government had decided, without any factual basis, to depict him as the group's leader in retaliation for his refusal to plead guilty. It is unclear whether he is attributing a similar retaliatory motive to the court, or simply contending that it penalized him unfairly, but in good faith, for his decision to go to trial.

3. The court's only reference thereto occurred in an unrelated context. In rejecting the claim of prosecutorial retaliation, the court stated: I don't think that you have any basis to say that anybody is punishing [defendant] for trying the case. We don't operate that way. . . . . I would rather try the case, always, because I get to know people better that way. Sentencing Transcript, at 5. These comments, to the extent they are relevant here, obviously detract from defendant's argument.

Defendant Jorge Rosario-Molave was convicted by a jury of one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and was thereafter sentenced to 97 months in prison. He now appeals, challenging only the length of his sentence. In particular, he claims that the district court erred in its calculations under the Sentencing Guidelines ("U.S.S.G") in three respects: by declining to award two-level reductions in the base offense level for acceptance of responsibility and for his "minor" participation, and by imposing a two-level enhancement due to the presence of firearms during the offense. The government has moved for summary disposition on the ground that each of defendant's contentions is plainly without merit. We agree, and therefore summarily affirm the judgment of the district court. Loc. R. 27.1.

Background

The circumstances surrounding defendant's arrest, drawn from the undisputed facts in the presentence investigation report ("PSI"), can be briefly recounted. (Additional facts will be presented as necessary below.) Defendant was one of five individuals arrested in connection with the attempted sale of approximately one kilogram of cocaine to an undercover agent on May 14, 1990. The transaction was initiated by codefendant Miguel Cruz Pereira, who is described in the PSI as an intermediary. In the course of engaging in the illegal sale of firearms to the undercover agent, Cruz indicated that he knew of individuals capable of selling cocaine. He later introduced the agent to codefendants Rafael Vicente Ruiz and Jorge Rosado Sierra, who are described as representatives of a cocaine supplier. On May 10, 1990, Cruz and Ruiz contacted the agent and proposed the sale of four kilograms. The agent agreed to purchase a single kilogram for $29,000, with the understanding that three others would be purchased at a later date. Cruz, Ruiz and Rosado met with the agent later that day in an attempt to effectuate the sale. Yet because the "supplier" did not arrive promptly, the agent decided to leave, and the sale was rescheduled for May 14 at a shopping mall in Caguas.

On that date, with government surveillance teams in place, Cruz arrived first and invited the agent into his car. Ruiz and Rosado then arrived in a second car, pulling alongside Cruz's car to converse. The remaining codefendant, Carlos Torres Casas, who was a subordinate acting as a look-out, was also present. Defendant then arrived in a third vehicle. Rosado and Torres each made hand signals to him, and Rosado boarded defendant's car momentarily. Rosado then exited and approached the agent. Upon being informed that the money was ready, he asked the agent to board defendant's vehicle to inspect the cocaine. Defendant, after introducing himself by his first name, removed a package of cocaine from the glove compartment and presented it to the agent, stating: "I sell it to cook" (meaning it was suitable for preparing crack cocaine). Rosado vouched for the quality of the drug, pledging that if the agent were not satisfied therewith it could be exchanged. The arrests were then made. Both Ruiz and Torres proved to be in possession of loaded semi-automatic pistols.

Of the five participants in the offense, only defendant went to trial; the other four all pled guilty. Following his conviction, the probation office recommended that defendant's offense level be set at 34. It determined that the base offense level should be 30, since, although the sale of only one kilogram was attempted, the sale of four was contemplated. U.S.S.G. § 2D1.1. It proposed increasing this level by two because of defendant's role as an organizer or leader, id. § 3B1.1(c), and by two additional levels due to the presence of firearms, id. § 2D1.1(b)(1). Finally, it concluded that defendant had not clearly demonstrated his acceptance of responsibility and was therefore not entitled to the two-level reduction permitted by § 3E1.1.

Of the various objections lodged by defendant to this recommendation, the district court agreed with two. In imposing sentence on September 20, 1990, it ruled that only the one kilogram involved in the attempted sale should be considered, and thus that defendant's base offense level was 26. And it found the evidence inconclusive as to whether defendant actually occupied a leadership position in the drug ring, and so declined to impose a two-level enhancement for role in the offense. The court concurred with the probation office, however, that a two-level increase was warranted due to the presence of firearms, and that a two-level decrease for acceptance of responsibility was not warranted. It therefore calculated the total offense level to be 28 and imposed sentence accordingly. Defendant now challenges these latter two conclusions, as well as the court's refusal to award a two-level reduction for his allegedly minor role in the offense.

Discussion

1. Acceptance of Responsibility

Defendant devotes the major part of his brief to the argument that the court erred in declining to award a two-level reduction under § 3E1.1. That provision permits such a reduction if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Defendant contends that he has done so here. He further suggests that, in withholding such a reduction, the court failed to specify its reasoning, relied on impermissible factors, and improperly penalized him for exercising his constitutional right to trial by jury. We find no merit to any of these contentions.

Defendant points to the following factors as evidence of his genuine remorse. By letter dated August 14, 1990, several weeks after the jury verdict, defense counsel informed the probation office that defendant was willing to recognize his participation in the offense. On August 15, in an interview with probation, defendant acknowledged that his action was "stupid." In an objection to the PSI, defense counsel asserted that defendant had purposefully declined to testify at trial so as to be able to accept responsibility in the event of a conviction. And in his brief allocution, defendant stated that he was "very repentant for what happened" and that he wanted to be "a useful citizen." The district court, after reviewing these materials, solicited the view of Antonio Bruno, the probation officer. Bruno stated that, during their conversation, defendant had impressed him as attempting to "project the blame on someone else." He cited two examples: (1) defendant had erroneously indicated that it was Rosado (rather than he himself) who retrieved the cocaine from the glove compartment to show to the agent; and (2) defendant had erroneously denied making any comments to the agent. The district court relied on Bruno's statements, along with defendant's demeanor at trial and at the hearing, as grounds for denying the reduction, and later elaborated that defendant had attempted to "fingerpoint" and thereby minimize his own role in the offense.

We review the court's decision in this regard only for clear error. See, e.g., United States v. Reyes, 927 F.2d 48, 50 (1st Cir. 1991). As we explained in United States v. Royer, 895 F.2d 28 (1st Cir. 1990), the court's determination is "entitled to great respect," id. at 29, and should be affirmed if supported by "a plausible basis," id. at 30. This is so because the issue of acceptance of responsibility is "fact-dominated," id. at 29, because credibility and demeanor "play a crucial role in determining whether a person is genuinely contrite," id. at 30, and because the sentencing court has the unique opportunity to observe the defendant "in a live context against the backdrop of the case as a whole," id. at 29. Accord U.S.S.G. § 3E1.1, application note 5. The court's determination here easily passes muster under this standard.

Defendant contends that he at all times acknowledged making the "good for cooking" comment to the agent, and that Bruno's suggestion to the contrary was "blatantly inaccurate." Yet Bruno indicated, not that defendant had not made the statement, but simply that he had denied doing so during the August 15 interview.1 In any event, defendant voiced no objection at the hearing to this statement, and so has waived any argument in this regard. Furthermore, Bruno's second example--that defendant wrongfully stated that it was not he, but rather Rosado, who removed the cocaine from the glove compartment--is supported by the PSI's recounting of the August 15 interview, and has never been disputed by defendant.

We also note that counsel's August 14 letter to Bruno and the PSI's account of defendant's interview contain glaring contradictions. Counsel's letter states that, at the request of an individual known as Cheo, and in exchange for $200, defendant transported the package of cocaine to the shopping mall where he delivered it to Rosado. Yet in the interview, defendant is said to have indicated that (1) Rosado called him from the mall and asked that defendant meet him there because Rosado needed a ride to "deliver something to a friend," (2) that only when defendant arrived at the mall and Rosado entered his car did defendant learn that Rosado intended to deliver cocaine, and (3) that Rosado then placed the cocaine package in the glove compartment, later retrieving it to show to the agent. Defendant never voiced an objection to this account of his interview, which, as mentioned, was contained in the PSI. These discrepancies, although not specifically cited by the district court, go far to reinforce its determination here.

Defendant complains that the court failed to specify which aspects of his "demeanor" it relied on in deciding to withhold the reduction. We think no further explication was required under the circumstances. See generally United States v. Bianco, 922 F.2d 910, 914 n.4 (1st Cir. 1991) (unlike sentencing range departures, court not required to "assign specific reasons for sentence enhancements [or denial of reductions] within the guideline range"); United States v. Beaulieu, 900 F.2d 1531, 1535-36 (10th Cir.) (same), cert. denied, 110 S. Ct. 3252 (1990). Defendant also contends that the court failed either to resolve pertinent factual disputes in the PSI or indicate that the contested matters would not be taken into account. Fed. R. Crim. P. 32(c)(3)(D). Yet the only disputed issue he identifies in this regard is whether he was a leader of the drug ring. And not only was this issue largely irrelevant to the acceptance-of-responsibility question, but it also was in fact resolved (in defendant's favor) by the court.

Finally, defendant suggests that the court's decision to withhold the two-level reduction was a penalty for the exercise of his constitutional right to proceed to trial.2 We find this argument frivolous. In United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989), cert. denied, 110 S. Ct. 2216 (1990), and again in United States v. De Jongh, 937 F.2d 1, 5-6 (1st Cir. 1991), this court held that, as to defendants who continued to assert their innocence after having been found guilty at trial, § 3E1.1 was not an impermissible burden on the exercise of constitutional rights. In the latter case, we did note (without resolving the issue) that a "more difficult problem may exist" where a defendant, after being found guilty, attempts to accept responsibility "and the district court purports to weigh against this acceptance the defendant's earlier constitutionally protected conduct, such as her exercise of her right to remain silent or to put the government to its proof at trial." Id. at 6 n.8. As in De Jongh, however, "no such dilemma" is presented here. Id. The district court, as discussed above, rested its decision on permissible factors having no relation to defendant's decision to proceed to trial. Indeed, the court made no mention of this matter at all in its § 3D1.1 analysis.3 And this fact, if anything, accrued to defendant's benefit, since the timing of his attempt to demonstrate contrition could have been weighed against him. See, e.g., United States v. Cepeda, 907 F.2d 11, 11 (1st Cir. 1990) (while fact that defendant did not admit guilt until after jury conviction would not by itself preclude finding of acceptance of responsibility, court was "entitled to consider the timing of the confession in evaluating its credibility") (citing U.S.S.G. § 3E1.1, application note 1(g)); see also U.S.S.G. § 3E1.1, application note 2. We therefore conclude that defendant was not improperly penalized for exercising his right to trial. See generally United States v. Molina, 934 F.2d 1440, 1450 (9th Cir. 1991) (rejecting similar argument); United States v. Jones, 934 F.2d 1199, 1199-1200 (11th Cir. 1991) (same).

2. Role in the Offense

As mentioned, the probation office recommended a two-level enhancement under § 3B1.1(c) because of what it described as defendant's leadership role in the drug ring. The court rejected this recommendation, indicating that it was a "50/50 proposition" whether he in fact was an organizer or leader. Defendant now argues that he was only a "minor participant," and that the court clearly erred in withholding the appropriate two-level reduction under § 3B1.2(b). We find no merit to this contention. In recently rejecting a similar argument by codefendant Rosado, we canvassed the pertinent case law in this area. See United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir. 1991) (per curiam). As our discussion there makes clear, defendant's conduct here, particularly his delivery of the drug and his attesting to its suitability for use as crack cocaine, is on a par with that deemed sufficient in other cases to withhold the § 3B1.2(b) reduction. See, e.g., United States v. Osorio, 929 F.2d 753, 764 (1st Cir. 1991); United States v. Morales-Diaz, 925 F.2d. 535, 540 (1st Cir. 1991); United States v. Cepeda, 907 F.2d at 12.

3. Enhancement for Presence of Firearm

Section 2D1.1(b)(1) permits a two-level enhancement in specified drug offenses whenever "a dangerous weapon (including a firearm) was possessed during commission of the offense . . . ." The district court ordered such an enhancement because, although defendant was not in possession of a firearm, two of his codefendants were. As defendant acknowledges, the pivotal inquiry here is whether "a codefendant's possession of a firearm in furtherance of their joint criminal venture was reasonably foreseeable by the defendant." United States v. Bianco, 922 F.2d at 912 (citing cases). As we there elaborated:

Firearms are common tools of the drug trade . . . . Absent evidence of exceptional circumstances, we think it fairly inferable that a codefendant's possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.

Id. Defendant concededly was aware that he was involved in a cocaine sale. He had at least constructive knowledge that a large amount of cash ($29,000) was involved. And he has adduced no exceptional circumstances negating an inference of foreseeability. He points out only that he was not charged with conspiracy and played only a minimal role in the offense. Yet a conspiracy charge is not a prerequisite in this context. Id. And as discussed above, the court properly found defendant's role to be more than minimal. We find no clear error in the court's finding in this respect.

Appellee's motion for summary disposition is granted and the judgment is affirmed.

Disposition

Appellee's motion for summary disposition is granted and the judgment is affirmed.

1. In his August 14 letter to Bruno, defense counsel admitted that defendant had made the "good for cooking" remark, but indicated this had been done only in compliance with Rosado's instructions. In the PSI's recounting of the August 15 interview, this explanation is noted; no mention is made of defendant's having denied making the statement entirely. This last fact raises the possibility that Bruno misspoke in his comments to the court--that he intended simply to remark on the dubious validity of this "he-made-me-say-it" claim. Yet this is mere speculation on our part. And, even if true, we think it without significance for the reasons discussed infra.

2. At sentencing, defendant contended that the government had decided, without any factual basis, to depict him as the group's leader in retaliation for his refusal to plead guilty. It is unclear whether he is attributing a similar retaliatory motive to the court, or simply contending that it penalized him unfairly, but in good faith, for his decision to go to trial.

3. The court's only reference thereto occurred in an unrelated context. In rejecting the claim of prosecutorial retaliation, the court stated: I don't think that you have any basis to say that anybody is punishing [defendant] for trying the case. We don't operate that way. . . . . I would rather try the case, always, because I get to know people better that way. Sentencing Transcript, at 5. These comments, to the extent they are relevant here, obviously detract from defendant's argument.

Case Summary:
To generate a summary for United States v. Rosario-Malave click here.
Back to top