US v. Acevedo

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice* and Kermit V. Lipez, Appellate Judge. Published. *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. [15-1378]

Case: 15-1378

Document: 00117008596

Page: 1

Date Filed: 06/02/2016

Entry ID: 6005199

United States Court of Appeals
For the First Circuit
No. 15-1378
UNITED STATES,
Appellee,
v.
EDGAR ACEVEDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 2, 2016

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
*

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SOUTER, Associate Justice.

Entry ID: 6005199

Edgar Acevedo appeals the

below-Guidelines sentence he received after pleading guilty to
conspiracy to commit kidnapping.

We affirm.
I

The indictment charged Acevedo with violating 18 U.S.C.
§ 1201(c) by conspiring with Alfred Vazquez and Alberto Moreno,
among others, to kidnap one John Doe and hold him for ransom.

It

alleged that the group seized Doe at gunpoint in Boston and that
Vazquez, Moreno, and Acevedo later met at Vazquez's house to hide
the ransom money.
When Acevedo pleaded guilty, he acknowledged that he had
read the indictment and did not object to its description of the
offense.

The Government set out what it would have proven if the

case had gone to trial, and Acevedo confirmed that he did not
dispute anything the Government said. According to the Government,
two men pulled Doe from a car in Boston, one of them, Moreno, armed
with a gun.

They dragged Doe into a nearby van, driven by Acevedo,

and sped off to Lawrence.
to demand a ransom.

Vazquez subsequently called Doe's wife

After Doe had been held for several days at

a house in Lawrence, he was rescued by the FBI.

Three witnesses,

the Government explained, would have identified Acevedo as a member
of the group that kidnapped and held the victim.
Following the guilty plea, the Probation Office prepared
a Presentence Report (PSR) based on information developed by the

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investigating agents and four cooperating co-conspirators.

Among

the additions to the story were that Vazquez, who dealt in drugs
but also ran an auto shop, was hired by another drug dealer to
kidnap Doe (whom the PSR identified as JP) to collect a drug debt.
It was Vazquez who recruited Moreno, Acevedo, and others to plan
and do the kidnapping.

Acevedo was a friend of Moreno's and at

the time was living with him while working at Vazquez's auto shop.
To commit the crime, according to the PSR, Acevedo
stopped the van behind a car in which JP was riding, which was
blocked by another car in front.

Moreno and the other conspirator

jumped out of the van, pulled JP from the car at gunpoint, and
shoved

him

into

the

van,

which

headed

for

unoccupied house where Vazquez had once lived.

Lawrence

and

an

Vazquez told JP

that he could pay the drug debt and be released, or fail to pay
and he and his family would be killed.

In a series of phone calls

over the next few days, Vazquez demanded the money from JP's wife.
In the PSR account, Acevedo was present at various times in the
house where JP was being held.
The PSR reported that JP's family called the FBI, which
led the recovery effort.

Agents coated marked ransom money with

fluorescent powder that is normally invisible but glows in black
light. After a ransom drop observed by the FBI, Vazquez and Moreno
brought some of the marked bills to Moreno and Acevedo's apartment.

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Thence the three went to Vazquez's residence, where agents arrested
Vazquez and Acevedo, whose hands glowed under a black light.
The agents rescued JP and collected further evidence.
According to the PSR, cellphone analysis revealed that, during the
period beginning three weeks before the kidnapping and ending one
day after JP's recovery, Vazquez's and Acevedo's phones were in
contact 114 times for a total of some three hours.

Over the same

period, Moreno's and Acevedo's phones were in contact 89 times for
a total of about an hour and a half.
The PSR calculated a total offense level of 37 under the
U.S. Sentencing Guidelines Manual § 2A4.1(a), starting from a base
offense level of 32 for conspiracy to commit kidnapping.

To this,

the PSR added a six-level enhancement under § 2A4.1(b)(1) for
making

a

ransom

demand

and

a

two-level

enhancement

under

§ 2A4.1(b)(3) for using a firearm; the PSR then reduced the offense
level by three under § 3E1.1 for acceptance of responsibility.
The resulting offense level, coupled with a criminal history score
of zero, yielded a Guidelines imprisonment range of 210 to 262
months.
Acevedo filed objections to the PSR, some of them going
to particular details, such as his involvement in planning the
kidnapping.

He said that he drove a tow truck for Vazquez's auto

shop, so there was nothing unusual about being told to drive into
Boston on the day of the kidnapping, and, by his account, he did

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not learn that he was there for a kidnapping until he was already
in the city.

He also disputed that he was present in the house

where JP was held, and that he handled the ransom money.

He thus

urged that he deserved a two-level reduction because of his "minor
role" in the conspiracy.
Acevedo

objected further

to the PSR's

offense-level

calculation for its inclusion of the ransom-demand enhancement, on
the ground that this was impermissible "double counting," a ransom
demand being an element of the substantive kidnapping offense.
And he also contested the firearm enhancement on the ground that
he

could

not

reasonably

have

foreseen

that

any

of

his

co-

conspirators would possess a gun.
Both Acevedo and the Government submitted sentencing
memorandums, Acevedo's reiterating his objections to the PSR.

He

did not, however, submit any relevant evidentiary support for his
assertions1 or request an evidentiary hearing.

The Government,

for its part, endorsed the PSR and filed a transcript of grand
jury testimony and a police report supporting the claim that
cooperating

witnesses

identified

Acevedo

at

both

a

planning

meeting in advance of the kidnapping and the house where JP was

Among the documents attached to his memorandum were private
investigatory reports indicating that some of the ransom money may
not have made it to Moreno and Acevedo's apartment. Nothing in
the reports, however, calls into question the PSR's statement that
some of the money was, in fact, brought to the apartment.
1

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held. The Government requested a 210-month sentence, at the bottom
of the Guidelines range.
At sentencing, the district court overruled Acevedo's
objections and adopted the Government's and Probation Office's
positions.

The court (i) ruled that a ransom demand was not

required for a conviction under the statute and thus was an
additional fact that could be the basis of an enhancement, (ii)
found that Acevedo could reasonably have foreseen that a gun would
be used, and (iii) rejected Acevedo's request for a minor-role
reduction: even without considering the contested assertions that
Acevedo

guarded

JP

and

handled

the

ransom

money,

the

court

determined that driving the abduction van was not a "minor role."
The PSR's Guidelines range of 210 to 262 months was accordingly
adopted.
Nevertheless, the district court found that a Guidelines
sentence was longer than necessary to satisfy the sentencing
objects under 18 U.S.C. § 3553(a)(2) and imposed a below-Guidelines
term of 192 months.

It is from this sentence that Acevedo appeals.
II

Acevedo first argues that the district court failed to
resolve factual disputes that bore on his sentence, in violation
of Federal Rule of Criminal Procedure 32(i)(3)(B) ("[T]he court
must--for any disputed portion of the presentence report or other
controverted matter--rule on the dispute or determine that a ruling

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unnecessary

either

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because

Date Filed: 06/02/2016

the

matter

will

Entry ID: 6005199

not

affect

sentencing, or because the court will not consider the matter in
sentencing . . . .").

Acevedo says that this rule required the

district court to hold a hearing to resolve the factual disputes
he raised.

"We review a district court's compliance with Fed. R.

Crim. P. 32 de novo," United States v. González-Vélez, 587 F.3d
494, 508 (1st Cir. 2009), and "[w]e review the court's denial of
an evidentiary hearing for abuse of discretion," United States v.
Jimenez Martinez, 83 F.3d 488, 498 (1st Cir. 1996).
There was no error here. As we have said, "The defendant
may object to facts in the PSR, but 'if his objections to the PSR
are merely rhetorical and unsupported by countervailing proof, the
district court is entitled to rely on the facts in the PSR.'"
United

States

v.

Prochner,

417

F.3d

54,

66

(1st

Cir.

2005)

(alterations omitted) (quoting United States v. Cyr, 337 F.3d 96,
100 (1st Cir. 2003)).

We have also explained that "the failure to

ask the district court to convene an evidentiary hearing ordinarily
spells defeat for a contention that one should have been held."
United States v. Cheal, 389 F.3d 35, 45 (1st Cir. 2004) (quoting
United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992)).
Here, Acevedo neither made a relevant evidentiary proffer nor
requested a hearing to present it before or during his sentencing.
Even

so,

he

was

treated

more

favorably

than

the

Guidelines

calculation called for, and even in reaching a Guidelines range

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the district court declined to consider certain disputed facts.
In any event, as explained below, there is ample support not only
in the PSR on the authority of Prochner but elsewhere in the record
for the court's sentencing decisions.
III
Acevedo next contends that the trial court made three
errors in calculating his offense level.

"We review the district

court's interpretation of the guidelines de novo and its fact
finding for clear error."

United States v. Reyes-Rivera, 812 F.3d

79, 85 (1st Cir. 2016).
A
Acevedo says that the district court erred in applying
the ransom-demand enhancement.

His challenge has both a legal and

a factual component.
1
According

to

Acevedo,

the

ransom-demand

enhancement

amounted to impermissible double counting because a ransom demand
was already baked into his conviction.
does not follow from his premise.

His conclusion, however,

It is true that his conviction

for conspiracy to kidnap includes having the object of demanding
ransom; this was charged in the indictment and he pleaded guilty
without limitation.

But the relevant question is whether the

ransom demand is an element of the crime of kidnapping per se, or

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is a fact subject to being added to the basic offense and is so
treated by the Guidelines.

It clearly is the latter.

As the trial judge correctly read the pertinent portion
of the statute, it is an offense to kidnap not only for ransom but
for "reward or otherwise."
is thus only one

18 U.S.C. § 1201(a).

among other

Obtaining ransom

possibly illicit objectives of

kidnapping numerous enough to justify the catch-all of "otherwise"
to cover their conceivable variety.

There is consequently no

textually based limitation on treating a kidnapping for ransom
more severely than some or all other sorts, and this is just what
the Guidelines do.
§

2A4.1,

sets

a

Not only that, but the applicable provision,
base

offense

level

of

32,

U.S.

Sentencing

Guidelines Manual § 2A4.1(a), and that provision (as Acevedo
himself concedes) applies to crimes other than kidnapping, many of
which do not involve payment of ransom, see id. § 2A4.1 cmt.
statutory provisions.

Hence, the Guidelines separately provide

for a six-level increase "[i]f a ransom demand . . . was made."
Id. § 2A4.1(b)(1).

The Guidelines thus recognize that "[f]ederal

kidnapping cases generally encompass three categories of conduct,"
only one of which involves "ransom," and accordingly provide "[a]n
enhancement . . . when the offense is committed for ransom."

Id.

§ 2A4.1 cmt. background.
Treating

the

ransom

objective

as

justification

for

enhancement is therefore not double counting, but merely and

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unremarkably cumulative, based on this distinct set of facts, and
the law's subtle tolerance for treating one fact as significant
for multiple sentencing objectives, see United States v. Fiume,
708 F.3d 59, 61 (1st Cir. 2013), is not even implicated here.
2
Next, Acevedo argues that even if the object of demanding
ransom is not barred as double counting, there was no evidence
that he knew about the ransom demand or that it was reasonably
foreseeable

to

him.

See

U.S.

Sentencing

Guidelines

Manual

§ 1B1.3(a)(1)(B)(iii) (conspiracy defendant's offense level can be
determined on basis of co-conspirators' acts that were "reasonably
foreseeable in connection with th[e] criminal activity").
The district court did not clearly err in rejecting
Acevedo's argument. To begin with, the indictment to which Acevedo
pleaded expressly charged him with conspiracy to kidnap for ransom,
and the ransom demand was mentioned without objection during the
plea colloquy.

But even setting that to one side, the nature of

this kidnapping shows how reasonably foreseeable the ransom demand
must have been to Acevedo. To be sure, certain types of kidnapping
are inherently unlikely to involve ransoms.

This would be true,

for example, where a parent absconds across state lines with his
child in violation of a custody order.

The instant gangland

kidnapping, by contrast, has the marks of one done for gain.
Seizing an individual in broad daylight on a city street would be

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an inept way of gaining control over a victim one intends to kill;
a more likely objective would be to profit.
B
Foreseeability is the crux of Acevedo's further claim
that he could not reasonably have foreseen Moreno's use of a gun
and

should

not

have

received

the

firearm

enhancement.

The

Guidelines indicate that reasonable foreseeability can turn on
"the nature of the offense" alone.

See id. § 1B1.3 cmt. n.3(D).

While we need not, and do not, hold that use of a firearm
is reasonably foreseeable in every kidnapping, it was in this one.
The abduction was carried out by the orchestrated seizure of a
victim from a car, where a struggle was obviously to be avoided,
and

where

there

was

some

risk

that

bystanders

might

try

to

interfere. A gun would promise efficiency, not only in the seizure
itself, but afterward in controlling JP, since the plot called for
him to be driven some distance and held for ransom.

This ready

foreseeability of a gun as a control mechanism is confirmed by the
undisputed record that Moreno wielded the gun almost immediately
upon leaving the van that Acevedo was driving.

Hence, it was

hardly clear error to apply the enhancement.
C
Acevedo's next assignment of error goes not to applying
an enhancement, but to refusing to reduce his offense level under
Guidelines § 3B1.2(b) on the ground that he was only "a minor

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participant" in the kidnapping, the sort of reduction intended for
"a defendant who plays a part in committing the offense that makes
him substantially less culpable than the average participant in
the criminal activity," id. § 3B1.2 cmt. n.3(A).

"To qualify for

this adjustment, a defendant must show that he is both less
culpable than most of his [confederates] in the particular criminal
endeavor and less culpable than the mine-run of those who have
committed similar crimes."

United States v. Meléndez-Rivera, 782

F.3d 26, 28 (1st Cir. 2015).
"[B]attles over a defendant's role in the offense 'will
almost always be won or lost in the district court,'" id. at 29
(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.
1995)),

and

the

district

court's

judgment

in

this

case

is

defensible. When the district court said there was nothing "minor"
about driving the abduction vehicle, that was a fair comment on
Acevedo's undisputed actions in driving Moreno and another man to
the scene of the seizure and transporting the abductors and victim
to the hideaway, all of which made him a central actor in the
elements of the crime charged.
IV
Finally, Acevedo complains of undue disparity between
his sentence and the sentences received by his co-conspirators, in
violation of 18 U.S.C. § 3553(a)(6) ("The court, in determining
the particular sentence to be imposed, shall consider the need to

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unwarranted

similar

Page: 13

sentence

records

who

conduct . . . .").

Date Filed: 06/02/2016

disparities

have

been

among

found

Entry ID: 6005199

defendants

guilty

of

with

similar

We review the district court's application of

§ 3553(a) considerations for abuse of discretion.

See, e.g.,

United States v. Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009)
This concern about sentencing disparity "is primarily
aimed at national disparities, rather than those between codefendants."

Reyes-Rivera, 812 F.3d at 90 (internal quotation

marks omitted) (quoting United States v. Marceau, 554 F.3d 24, 33
(1st Cir. 2009)).

Thus, while avoidance of disparities among co-

defendants may be considered, it would be too glib to argue that
a defendant is "entitled to a lighter sentence merely because his
co-defendants

received

lighter

sentences"

"[u]nless

two

identically situated defendants receive different sentences from
the same judge, which may be a reason for concern."
quotation

marks

omitted)

(quoting

United

Gonzalez, 626 F.3d 639, 648 (1st Cir. 2010)).

States

Id. (internal
v.

Rivera-

In most cases, "the

myriad factors that come into play at sentencing make it difficult
to isolate identically situated co-defendants.

We have noted, for

example, the permissible distinction . . . between those who
cooperate and those who do not . . . ."

United States v. Reyes-

Santiago, 804 F.3d 453, 467 (1st Cir. 2015) (citations and internal
quotation marks omitted).

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This distinction is apropos here, and fatal to Acevedo's
claim.

He fails even to try to show that he and his co-defendants

were identically situated, and he simply ignores the fact that he
did not cooperate, while many of his co-defendants did.
V
The district court's judgment is AFFIRMED.2

Our affirmance of the district court's judgment forecloses
Acevedo's argument that his case should be remanded to a different
judge.
2

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