US v. Rodriguez
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [12-1476]
Case: 12-1476
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Date Filed: 09/25/2013
Entry ID: 5766701
United States Court of Appeals
For the First Circuit
No. 12-1476
UNITED STATES OF AMERICA,
Appellee,
v.
EDDIE M. RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.
Michael R. Hasse on brief for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
September 25, 2013
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STAHL, Circuit Judge. Eddie Rodríguez was convicted by a
jury in the District of Puerto Rico of several drug offenses.
After a partially successful appeal of his conviction and sentence,
he was resentenced by the district court on remand. He now appeals
the resulting sentence, arguing that the district court failed to
follow proper sentencing procedures and erroneously determined the
quantity of drugs for which he was accountable.
After careful
consideration, we affirm.
I.
Facts & Background
Eddie Rodríguez was found guilty of five drug-related
offenses following a seven-day jury trial. This appeal arises from
his resentencing after this court vacated two of those convictions
and remanded the case to the district court.
Because this appeal
follows a conviction, to the extent that it relies upon evidence
submitted to the jury, we view those facts in the light most
favorable to the verdict.
See
243, 245 (1st Cir. 2005).
We recounted the factual and procedural
United States v. Mercado, 412 F.3d
history of this case in some detail in United States v. Díaz, 670
F.3d 332 (1st Cir. 2012), and thus summarize only the relevant
background below, adding subsequent developments as necessary.
Rodríguez was one of forty-seven defendants named in a
seven-count indictment alleging that, among other things, between
2006 and March 27, 2009, they conspired to operate a drug point in
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the
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San
Antonio
Public
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Housing
Date Filed: 09/25/2013
Project
Entry ID: 5766701
(commonly
known
as
"Carioca"), in the municipality of Guayama, Puerto Rico.
As relevant to Rodríguez, the indictment alleged that the
defendants knowingly conspired to possess with intent to distribute
various
amounts
of
cocaine
base
("crack"),
heroin,
cocaine,
marijuana, and Oxycodone within 1,000 feet of a school and/or
public housing facility and/or playground, in violation of 21
U.S.C. §§ 841(a)(1), 846, and 860 (the "conspiracy count"), and
that,
aiding
and
abetting
each
other,
they
knowingly
and
intentionally possessed with intent to distribute one kilogram or
more of heroin, fifty grams or more of crack, five kilograms or
more of cocaine, and one thousand kilograms or more of marijuana,
in violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2
(the "substantive counts").
Following a jury verdict finding Rodríguez guilty of all
five counts, the probation department prepared a presentence report
(PSR) that recommended Rodríguez be held accountable for more than
4.5 kilograms of crack (corresponding to the highest base offense
level, 38, under the then-current sentencing guidelines).
probation
department's
calculation
was
based
upon:
(1)
The
trial
testimony that, during the life of the conspiracy, the drug point
sold approximately sixty grams of crack each day; and (2) the fact
that Rodríguez was an active participant in the conspiracy for
approximately one year.
After a two-level increase because the
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offense occurred within 1,000 feet of a protected location, and
combined with a criminal history category of I, the probation
department calculated the guideline range to be 292 to 365 months.
At the original sentencing hearing, the district court
considered Rodríguez's role in the conspiracy and determined that
he was accountable for 500 grams to 1.5 kilograms of crack,
corresponding to a base offense level of 34. The court stated that
it did not "think we should go all the way to 38," as recommended
in the PSR.
It also rejected the probation officer's in-court
suggestion to use a base offense level of 36, corresponding to 1.6
kilograms,1 even though "by preponderance . . . he could easily
have sold 1.6 kilograms of crack cocaine," because 34 resulted in
"a range that [it] can live with."
With the two-level protected-
location enhancement, Rodríguez's sentencing guideline range was
188 to 235 months.
After noting the disparity between this
calculation and the PSR, the court explained that the lower range
reflected "some sort of balancing act trying to find some sort of
justice" in light of Rodríguez's youth.
The district court
sentenced him to 188 months of imprisonment and ten years of
supervised release as to each count, to be served concurrently.
1
This calculation was apparently in error.
The probation
officer indicated that sixty grams of crack per day over nine
months of participation would yield a total of 1.6 kilograms. This
calculation is off by a factor of ten; the correct amount is, in
fact, 16.2 kilograms.
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In
his
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initial
Date Filed: 09/25/2013
appeal,
Rodríguez
Entry ID: 5766701
challenged
his
conviction and sentence, raising, as relevant here, two issues:
(1) whether the district court erred in calculating the quantity of
drugs
attributable
to
him
for
purposes
of
determining
his
sentencing guideline range; and (2) whether the district court
lacked jurisdiction under the Federal Juvenile Delinquency Act
(FJDA), 18 U.S.C. § 5032, for insufficient evidence that he
participated in the conspiracy or committed any of the substantive
drug offenses after he reached the age of majority.
Absent certain exceptions not applicable here, the FJDA
prevents
defendant
district
who
is
courts
under
from
the
exercising
age
of
jurisdiction
twenty-one
when
over
a
criminal
proceedings are commenced for acts that occurred before he turned
eighteen.
Rodríguez entered the conspiracy before his eighteenth
birthday, was absent from the conspiracy from May 2007 to August
2008 because he was incarcerated in a juvenile detention facility,
and attained the age of majority during his incarceration.
We
affirmed his conviction of the conspiracy count, finding that there
was sufficient evidence of post-majority participation.
We also
affirmed his convictions of the substantive marijuana and crack
counts, but vacated his convictions of the substantive heroin and
cocaine counts for lack of evidence that, after Rodríguez had
reached the age of eighteen, he or his co-conspirators possessed or
distributed either drug.
Because the vacated counts may have
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"alter[ed] the dimensions of the sentencing 'package,'" Díaz, 670
F.3d at 344 (quoting United States v. Genao-Sánchez, 525 F.3d 67,
71 (1st Cir. 2008)) (internal quotation marks omitted), we remanded
his case to the district court for resentencing. Finally, in light
of the remand, we did not reach Rodríguez's challenge to the
district court's drug-quantity calculation.
In resentencing on remand, the district court considered
Rodríguez's extensive role in the conspiracy, based upon his
participation both pre- and post-majority, and determined that he
could "conservatively" be held accountable for at least one year's
worth of crack sales at the drug point -- which, at sixty grams per
day, amounted to 21.9 kilograms.
The court instead selected a
"very, very conservative number" of between 150 and 500 grams of
crack, which it adjusted to 280 to 840 grams of crack to reflect
the quantity cut-offs in the new crack sentencing guidelines.2
This quantity corresponded to a base offense level of 32, and,
after the two-level protected-location enhancement, the sentencing
guideline range was 151 to 188 months.
The district court again
imposed a sentence at the bottom of the range, sentencing Rodríguez
to 151 months of imprisonment and ten years of supervised release
2
On remand, the district court applied the revised crack
sentencing guidelines promulgated pursuant to the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
The new
guidelines resulted in guideline range that was more favorable to
Rodríguez.
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as to each count, to be served concurrently.
Entry ID: 5766701
This timely appeal
followed.
II.
Analysis
On appeal, Rodríguez claims that the district court
failed to follow proper sentencing procedures and that it erred in
multiple respects when determining the quantity of drugs for which
he would be held accountable for sentencing purposes.
A.
Procedural Error Under § 3553
Rodríguez contends that the district court committed
procedural error in arriving at his sentence by failing to consider
the sentencing factors set out in 18 U.S.C. § 3553(a) and by
failing to give a statement of reasons for selecting a particular
sentence as required by § 3553(c).
Because he did not raise these
claims before the district court, our review is for plain error.
See United States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir.
2012).
"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."
United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001) (citation omitted).
A violation of § 3553's
mandates will warrant reversal under plain error review only if the
defendant demonstrates "a reasonable probability that, but for the
error, the district court would have imposed a different, more
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favorable sentence."
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United States v. Mangual-Garcia, 505 F.3d 1,
15 (1st Cir. 2007) (citation and internal quotation marks omitted).
Pursuant to the Sentencing Reform Act of 1984, 98 Stat.
1987, 18 U.S.C. § 3551 et seq., as modified by United States v.
Booker, 543 U.S. 220 (2005), a sentencing court must "impose a
sentence sufficient, but not greater than necessary," to achieve
the
purposes
of
sentencing,
§
3553(a).3
In
determining
the
appropriate sentence, the court should consider various factors,
including "the nature and circumstances of the offense and the
history and characteristics of the defendant," "the kinds of
sentences available," "the kinds of sentence and the sentencing
range established" by the sentencing guidelines, and "the need to
avoid
unwarranted
sentence
disparities
among
defendants
with
similar records who have been found guilty of similar conduct."
§ 3553(a). Finally, "[t]he court, at the time of sentencing, shall
state
in
open
court
the
reasons
for
its
imposition
of
the
particular sentence," § 3553(c), and, if the guideline range
exceeds twenty-four months, "the reason for imposing a sentence at
a particular point within the range," § 3553(c)(1).
3
The relevant purposes are the need for the sentence to
"reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense"; "afford
adequate deterrence to criminal conduct"; "protect the public from
further crimes of the defendant"; and "provide the defendant with
needed educational or vocational training, medical care, or other
correctional
treatment
in
the
most
effective
manner."
§ 3553(a)(2).
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This court has endorsed a "sequential determination of
the guideline range, including any proposed departures, followed by
the further determination whether other factors identified by
either side warrant an ultimate sentence above or below the
guideline range."
United States v. Jiménez-Beltre, 440 F.3d 514,
518-19 (1st Cir. 2006) (en banc). Thus, the court typically should
first calculate the correct guideline range, and then determine
whether, after consideration of the § 3553(a) factors, a sentence
above, within, or below that range will be sufficient, but not
greater than necessary, in light of the sentencing goals.
See
United States v. Kimbrough, 552 U.S. 85, 110-11 (2007) (endorsing
district court's adoption of this approach).
Finally, the court
should articulate in open court how consideration of these factors
led it to select a particular sentence.
§ 3553(c); see also Rita
v. United States, 551 U.S. 338, 356-57 (2007) (noting that this
statement of reasons both assures the public that sentencing
decisions are reasoned decisions and aids in appellate review).
Here, the district court did not explicitly address the
§ 3553(a) factors, nor did it succinctly provide a clear statement
of reasons for imposing a sentence at a particular point in the
guideline range as required by § 3553(c).
And, to the extent that
the court implicitly considered the § 3553(a) factors, it appears
to have done so in selecting a guideline range, rather than first
calculating the guideline range supported by the evidence and then
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considering the § 3553(a) factors to determine the appropriate
sentence above, within, or below that range.
determining
accountable
that
for
the
21.9
evidence
kilograms
supported
of
crack,
That is, after
holding
the
Rodríguez
district
court
rejected the corresponding guideline range as too high, implicitly
taking into consideration several of the § 3553(a) factors, and
then, with no apparent evidentiary basis, selected a drug quantity
that would yield a guideline range that reflected an appropriate
sentence.
The district court's failure to state explicitly that it
was addressing any § 3553(a) factors or to provide any statement of
reasons for selecting the particular sentence within the guideline
range is somewhat troubling.
However, we are somewhat more
concerned about the district court's procedure for determining the
appropriate guideline range.
The drug-quantity finding, supported
by a preponderance of the evidence, determines the base offense
level.4
If, as apparently happened here, the court believed, in
light of the § 3553(a) factors, that the corresponding guideline
4
We note that the drug-quantity calculation did not increase
the statutory mandatory minimum or maximum sentence, as the drug
quantity found by the jury on the substantive marijuana count
triggered a ten-year minimum and life maximum sentence under 21
U.S.C. § 841(b)(1)(A). Therefore, judicial fact-finding does not
implicate Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Other than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."), or
Alleyne v. United States, 133 S. Ct. 2151 (2013).
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range was higher than necessary to achieve the sentencing goals, it
could have imposed a below-guidelines sentence and articulated why
it had done so.
Rodríguez did not raise this issue to the district
court -- and, as it turned out, this procedure worked in his
favor.5
If he had, there would have been error that was both clear
and obvious.
Nonetheless, in this particular case, the procedure
followed
by
the
district
substantial rights.
court
did
not
affect
Rodríguez's
"[O]n this record, the likelihood of a
different sentence on remand is an empty hope unsubstantiated by
any plausible rationale.
Accordingly, there is no principled way
that we can find plain error arising out of the district court's
failure to effect literal compliance" with § 3553(a) and (c).
Medina-Villegas, 700 F.3d at 584; see also Mangual-Garcia, 505 F.3d
at 15-16 (district court's rote recitation that it had considered
relevant § 3553(a) factors, without any attempt to link them to
defendant's conduct or goals of sentencing, was clear and obvious
error, but reversal unwarranted where defendant did not identify
specific facts showing reasonable probability of different sentence
on remand).
5
Although Rodríguez objects to the district court's drugquantity calculation, an issue we address infra, he has not argued
that the district court procedurally erred by reverse-engineering
his guideline range. Nor would he; the district court adopted a
guideline range that shaved nearly twelve years off the low end and
nearly fifteen years off the high end of the range that the court
believed the evidence supported.
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At various points throughout the sentencing hearings, the
district
court
appears
to
have
considered
the
nature
and
circumstances of the offense;6 the history and characteristics of
the
defendant;7
the
need
for
the
sentence
to
reflect
the
seriousness of the offense, provide just punishment, and afford
adequate deterrence;8 and the need to avoid unwarranted sentencing
disparities.9 After considering all of these factors, the district
court determined that the guideline range supported by the evidence
6
"Let's not forget that Eddie Rodríguez was not just an
individual who would be a lookout or facilitator or anything like
that. He was an enforcer. He used -- carried firearms. He sold,
collected rent from a drug point." "He knew that this was a big
time operation. That he knew. He was there. He was an enforcer
for them, all that. He was a seller."
7
"So I think that we are doing some sort of balancing act
trying to find some sort of justice, or justiciable remedy of this
case, which involves a very young guy . . . ." In addition, the
court heard defense counsel's statement addressing various
mitigating factors, including Rodríguez's conduct after release
from juvenile detention, that the court should consider. The court
expressly disbelieved the trial testimony of the defense witnesses
with respect to Rodríguez's post-release conduct, finding it
incredible. This court will not lightly discard the sentencing
court's credibility determinations.
See United States v.
Huddleston, 194 F.3d 214, 224 (1st Cir. 1999).
8
"People do horrible things in Guayama and they get away with
it. . . . People get charged left and right with big time crime,
including
murder,
like
in
this
case,
and
people
get
dismissed. . . . [I]n Guayama crime pays, that's for sure."
9
The court considered and rejected defense counsel's argument
that Rodríguez's sentence should approximate other co-defendants'
sentences, noting that the circumstances were "completely
different."
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was higher than necessary,10 and settled upon a drug quantity that
was between 1.2 and 3.8% of the amount that the court believed
Rodríguez was "easily" responsible for.
Even after making these
adjustments, the court imposed a sentence at the very bottom of the
reduced guideline range.
"[A] court's reasoning can often be inferred by comparing
what was argued by the parties or contained in the pre-sentence
report with what the judge did." Jiménez-Beltre, 440 F.3d at 519.
Here, the record demonstrates that the district court did consider
-- albeit in a roundabout and implicit way -- the § 3553(a) factors
that it deemed relevant and came to a reasoned determination of the
appropriate sentence. There is no reasonable probability that, had
the district court followed proper sentencing procedures, it would
have imposed a more favorable sentence.
See Mangual-Garcia, 505
F.3d at 15-16; see also Medina-Villegas, 700 F.3d at 584 ("To cinch
the matter, the appellant has not identified any factors that make
it likely that he would receive a different sentence on remand.").
Therefore, the district court's error -- though clear and obvious
-- does not warrant reversal on plain-error review.
10
"I don't think we should go all the way to 38 [as it would
be based on the drug quantity the court found Rodríguez actually
was accountable for]. So I'm going to leave it at 34." Rejecting
the probation officer's suggestion that he increase the base
offense level to 36 (based upon the erroneous 1.6 kilogram rather
than 16 kilogram calculation), the sentencing judge stated, "I am
going to leave it at level 34, because it gives me a range I can
live with. 500 to 1.5, which is almost 1.6."
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Drug-Quantity Calculation
Rodríguez raises three interrelated claims with respect
to the district court's drug-quantity calculation.
First, he
argues that the district court failed to make an individualized
determination
regarding
the
quantity
of
drugs
that
were
attributable to him, instead automatically holding him accountable
for the conspiracy-wide amount.
extent
the
court
made
an
Second, he argues that, to the
individualized
determination,
that
determination was in error. Finally, he challenges the reliability
of the evidence upon which the conspiracy-wide calculation was
based.
We address these claims seriatim.
"[W]hen a district court determines drug quantity for the
purpose of sentencing a defendant convicted of participating in a
drug-trafficking conspiracy, the court is required to make an
individualized finding as to drug amounts attributable to, or
foreseeable by, that defendant." United States v. Colón-Solís, 354
F.3d 101, 103 (1st Cir. 2004).
Under the sentencing guidelines,
relevant conduct that may be considered for sentencing purposes
includes
"all
acts
and
omissions
committed,
aided,
abetted,
counseled, commanded, induced, procured, or willfully caused by the
defendant; and . . . in the case of a jointly undertaken criminal
activity . . . , all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity
. . . ."
U.S.S.G. § 1B1.3(a)(1).
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The question of whether the
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drug-quantity
calculation
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was
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based
upon
on
Entry ID: 5766701
individualized
determination of Rodríguez's relevant conduct is a question of law
that we review de novo.
United States v. Cintrón-Echautegui, 604
F.3d 1, 5 (1st Cir. 2010).
clear error.
Id.
If it was, we review the result for
We will not "upset findings of fact or
conclusions drawn therefrom unless, on the whole of the record, we
form a strong, unyielding belief that a mistake has been made."
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st
Cir. 1990).
Rodríguez's first argument is a non-starter.
The record
plainly reflects that the district court considered Rodríguez's
role in, and conduct in furtherance of, the conspiracy and made an
individualized determination that he could reasonably foresee the
entire amount of crack sold by the conspiracy during the time he
was involved in it.11
While it is error to automatically shift the
conspiracy-wide drug quantity onto a particular defendant absent an
individualized finding that the entire amount was foreseeable to
that defendant, Colón-Solís, 354 F.3d at 103, the district court
here did make such a finding.
Rodríguez's claim that the individualized determination
was erroneous requires more analysis, but is ultimately no more
11
The court discounted the fifteen months that Rodríguez spent
in the juvenile detention facility, relying only on the seven and
one-half months between his release and the indictment and
conservatively assuming only five and one-half months of
involvement before his detention.
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successful. Rodríguez argues that the district court clearly erred
in finding that all of the conspiracy's crack sales during the time
of his participation in the conspiracy were foreseeable to him and
within the scope of his conspiratorial agreement.
The record
suggests that Rodríguez was significantly less involved with crack
after he reached the age of eighteen than he had been before his
detention.
We
previously
affirmed
his
conviction
of
the
substantive crack offense on the basis of a single seizure of 150
vials of crack from a co-conspirator after Rodríguez's eighteenth
birthday.
See Díaz, 670 F.3d at 343.
We assumed that the jury
followed the district court's Pinkerton instruction and found that
the co-conspirator's possession of crack was reasonably foreseeable
to Rodríguez and was committed in furtherance of the conspiracy.
See Pinkerton v. United States, 328 U.S. 640 (1946) (conspirator
may be liable for all foreseeable acts of co-conspirators in
furtherance of conspiracy).
But that does not mean that all crack
sold by the conspiracy can automatically be attributed to Rodríguez
as relevant conduct for sentencing purposes.
Pinkerton liability
is, in some cases, broader than relevant conduct.
See United
States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003) ("While a
conspiracy charge may encompass all acts by co-conspirators in
furtherance of the conspiracy, 'relevant conduct' is limited to the
foreseeable
agreement.
acts
resulting
from
the
defendant's
particular
Thus, the scope of relevant conduct is not necessarily
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the same as the scope of the entire conspiracy."
Entry ID: 5766701
(citations and
internal quotation marks omitted)); see also U.S.S.G. § 1B1.3 cmt.
n.2.
Whether the record would support a finding that all of the
crack sales, pre- and post-majority, were reasonably foreseeable to
Rodríguez and were within the scope of his agreement is a close
question, but one that, for two reasons, we need not resolve.
First, the parties agreed below, and Rodríguez does not
dispute here, that a defendant who joined a conspiracy before the
age of majority can be held accountable, for sentencing purposes,
for his own and his co-conspirators' acts that occurred before he
reached the age of majority once it has been shown that he ratified
his participation in the conspiracy after attaining the age of
majority.12
This court has never specifically so held.
In United
States v. Welch, 15 F.3d 1202, 1215 (1st Cir. 1993), we considered
a drug-quantity calculation that included the defendant’s pre- and
post-majority conduct.
We vacated the sentence not because it
included pre-majority conduct, but because it was based upon
insufficiently reliable evidence. By implication, inclusion of the
12
In pre-sentencing briefing on this issue, Rodríguez stated
that "the Court may certainly consider conduct which occurred prior
to the defendant's eighteenth birthday in determining the
defendant's base offense level. . . . [A] defendant who may not be
properly chargeable with certain conduct because of his youth at
the time the conduct occurred . . . may nonetheless retain
sentencing exposure for that conduct which is deemed to be
reasonably foreseeable criminal acts in furtherance of the
conspiracy."
Defense counsel reiterated this view at the
resentencing hearing.
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defendant’s pre-majority conduct was permissible.
sister
circuits
ratification
have
has
been
expressly
shown,
held
that,
relevant
Several of our
once
conduct
Entry ID: 5766701
post-majority
for
sentencing
purposes includes pre-majority acts of the defendant, see United
States v. Flores, 572 F.3d 1254, 1269-70 (11th Cir. 2009); United
States v. Gibbs, 182 F.3d 408, 442 (6th Cir. 1999), and his coconspirators, see United States v. Sparks, 309 F. App'x 713, 717
(4th Cir. 2009) (unpublished); United States v. Thomas, 114 F.3d
228, 267 (D.C. Cir. 1997).
However, in light of Rodríguez's
explicit waiver, and in the absence of briefing by the parties, we
need not reach the question and assume, without deciding, that the
district court properly considered these acts.
When considering Rodríguez's pre-majority conduct, the
record supports the finding that all crack sales during that period
were within the scope of his agreement and reasonably foreseeable
to
him.
The
trial
testimony
indicated
that,
before
his
incarceration, he occupied many roles in the drug point: He served
as a runner "in charge of" the crack, bringing packages of crack to
the sellers, replenishing their supplies when they ran out, and
collecting the proceeds from the sales.
crack on occasion.
He served as a seller of
He served as a triggerman, and would go "on a
mission" to shoot members of rival organizations.
On these facts,
the district court did not clearly err in finding that, premajority,
the
scope
of
Rodríguez's
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conspiratorial
agreement
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encompassed all crack sales at the drug point and that all such
sales were reasonably foreseeable to him.
Even if the evidence
does not support the same conclusion with respect to his postmajority
participation,
his
pre-majority
participation
alone
results in the same base offense level (38) that would result from
combining the pre- and post-majority amounts.13
Second, as noted above, the district court did not
ultimately hold him accountable for the entire conspiratorial
amount.
After finding that he could "easily" be held accountable
for 21.9 kilograms of crack, the court held him accountable for
only 280 to 840 grams -- less than nine percent of the pre-majority
conspiracy-wide amount.
There is simply no way to read the record
in this case and conclude that this smaller quantity was not within
the scope of Rodríguez's agreement and reasonably foreseeable to
him. Moreover, at the first sentencing hearing, Rodríguez, through
counsel, conceded that a quantity of between 500 grams and 1.5
kilograms was fair.
The district court's individualized drug-
quantity finding was not affected by clear error.
We turn now to Rodríguez's final argument.
that
the
district
court's
drug-quantity
13
He contends
calculation
was
not
Assuming that the drug point sold sixty grams of crack per
day (an assumption that Rodríguez disputes, and an argument that we
address infra), the district court's conservative estimate of five
and
one-half
months
of
pre-detention
involvement
yields
accountability for more than ten kilograms of crack, well above
the 4.5-kilogram trigger for the highest base offense level.
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supported by reliable evidence in the record.
Entry ID: 5766701
"Where . . . the
amount [of drugs] seized does not reflect the scale of the offense,
the
court
shall
approximate
the
quantity
of
the
controlled
substance."
U.S.S.G. § 2D1.1 cmt. n.5.
"When it is impossible or
impractical
to
quantity
obtain
an
exact
drug
purposes, a reasoned estimate will suffice."
for
sentencing
Laboy, 351 F.3d at
584 (citation and internal quotation marks omitted).
The drug-
quantity finding need only be based upon a preponderance of the
evidence.
Cintrón-Echautegui, 604 F.3d at 6.
We review the
district court's drug-quantity determination for clear error.
United States v. Rivera-Maldonado, 194 F3.d 224, 228 n.2 (1st Cir.
1999).
In making the drug-quantity determination, the district
court "may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability
U.S.S.G. § 6A1.3(a); see also
to support its probable accuracy."
Cintrón-Echautegui, 604 F.3d at 6 ("[Sentencing court] may rely
upon virtually any dependable information . . . , [including]
information that has never been subjected to cross-examination
. . . [and] information contained in a presentence report."
(citations
and
internal
frequently
recognized
quotation
that
the
marks
district
omitted)).
court
We
enjoys
have
broad
discretion in determining whether given evidence is sufficiently
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reliable for sentencing purposes, and we review these decisions
only for abuse of discretion.
United States v. Mills, 710 F.3d 5,
16 (1st Cir. 2013).
The district court determined the conspiracy-wide drug
quantity during the time of Rodríguez’s participation based upon
estimated daily sales.
"Extrapolation is a common and permissible
way of attributing drugs to a defendant."
Marquez, 699 F.3d 556, 561 (1st Cir. 2012).
United States v.
We have upheld this
method where the extrapolation is "based on a known or readily
calculable number of transactions involving clearly established or
conservatively estimated quantities."
Id.
If, however, the
estimates "rest[] too significantly on unreliable inferences," id.
at 562 (citation and internal quotation marks omitted)(citing
cases), reversal may be warranted.
Here, based upon trial testimony, the district court
estimated that the conspiracy sold sixty grams of crack each day at
the Carioca drug point.
A cooperating co-defendant testified that
the drug point operated in three daily shifts: a morning shift from
6:00 a.m. to 3:00 p.m., an afternoon shift from 3:00 p.m. to
midnight, and a night shift from midnight to 6:00 a.m.
He stated
that the drug point generally sold over 200 vials of crack during
the morning shift, a similar amount during the afternoon shift, and
between 150 and 200 vials during the night shift.
He also stated
that, during the first several days of the month, it could sell
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over 300 or 400 vials per shift. A cooperating witness stated that
the drug point sold eight to nine packages of twenty-five capsules
of crack (200 to 225 capsules) during an average weekday shift and
sixteen to eighteen packages of twenty-five capsules (400 to 450
capsules) during an average weekend shift.
An expert witness
testified that each vial or capsule weighed approximately 0.1
grams.
The court adopted a conservative estimate of 200 0.1-gram
vials or capsules per shift and multiplied by three daily shifts to
arrive at an estimate of sixty grams per day.
The court then,
using a conservative estimate of the duration of Rodríguez's
participation in the conspiracy, multiplied the daily amount by 365
days to determine his total attributable amount, 21.9 kilograms.
Finally, notwithstanding the determination that at least 21.9
kilograms
of
crack
sales
were
within
the
scope
of
his
conspiratorial agreement and were foreseeable to him, the court
held him accountable for less than five percent of that amount.
The court did not abuse its discretion in relying on the
unrebutted trial testimony, nor did it clearly err in making its
quantity determination.
The court used conservative figures in
every step of the calculation, and easily could have arrived at a
far larger quantity.
We have often upheld drug-quantity findings,
even if imprecise, if they were based upon conservative estimates
or favorable assumptions.
(upholding
drug-quantity
See Cintrón-Echautegui, 604 F.3d at 7
determination
-22-
derived
from
plausible
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extrapolations and favorable assumptions); United States v. CorreaAlicea, 585 F.3d 484, 491 and n.4 (1st Cir. 2009) (upholding
inexact determination of drug quantity where it was based on
reasonable, conservative estimate with sufficiently reliable record
support); Laboy, 351 F.3d at 584 (same).
III.
For
the
foregoing
We do so again today.
Conclusion
reasons,
sentence.
-23-
we
affirm
Rodríguez's
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