US v. Morales-De Jesu

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Jeffrey R. Howard, Chief Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [17-1549]

Case: 17-1549

Document: 00117315533

Page: 1

Date Filed: 07/18/2018

Entry ID: 6184688

United States Court of Appeals
For the First Circuit
No. 17-1549
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL MORALES-DE JESUS,
a/k/a Maca, a/k/a Macarron, a/k/a El Gordo, a/k/a David Morales,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.

John E. Mudd and Law Offices of John E. Mudd, by appointment
of the court, on brief for appellant.
B. Kathryn Debrason, Assistant United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.

July 18, 2018

Case: 17-1549

Document: 00117315533

Page: 2

LYNCH, Circuit Judge.

Date Filed: 07/18/2018

Entry ID: 6184688

This is a sentencing appeal.

Angel Morales-De Jesus ("Morales") pleaded guilty to leading a
large drug distribution conspiracy in Puerto Rico housing projects
over a five-year period and to the use and carrying of a firearm
in

connection

with

that

drug

offense.

His

plea

agreement

calculated an offense level of 31 for the conspiracy charge and
recommended a total sentence of 180 months' imprisonment.
The calculations in the presentence report (PSR) and the
later addendum to the PSR were far less generous to Morales in the
offense level and recommendations.

The first PSR also recounted

that the estimated gross drug proceeds were just under $5 million.
At sentencing, the district court calculated a higher offense level
than the plea agreement: 33, and imposed a longer total sentence:
228 months' imprisonment.
On appeal, Morales challenges first the district court's
application of a four-level leadership enhancement under U.S.S.G.
§ 3B1.1(a) and second the sentence's substantive reasonableness.
There was no error at all on either assertion and so we affirm.
I.
From at least 2010 until 2015, Morales led a drug
trafficking organization.

His organization distributed crack

cocaine, cocaine, marijuana, and other controlled substances in
public housing projects in Patillas, Puerto Rico.
arrested on April 22, 2015.

- 2 -

Morales was

Case: 17-1549

Document: 00117315533

In

September

Page: 3

2016,

Date Filed: 07/18/2018

Morales

entered

into

Entry ID: 6184688

a

plea

agreement. He pleaded guilty to possession of, among other things,
between five and fifteen kilograms of cocaine with intent to
distribute it, and to using or carrying a firearm in relation to
that drug offense.

The parties agreed to recommend that Morales

receive a two-level leadership enhancement for the conspiracy
charge,1 putting his offense level at thirty-one. The parties also
agreed to recommend the applicable mandatory minimum sentences:
120 months for the conspiracy charge and 60 months for the firearm
charge, to be served consecutively, for a total of 180 months'
imprisonment.

At the close of Morales's change of plea hearing,

the magistrate judge recommended that the district court accept
the guilty plea.
Two months later, a probation officer prepared Morales's
PSR.

That report listed twenty-eight co-defendants alongside

Morales.

Unlike the plea agreement, the PSR recommended a four-

level leadership enhancement -- bringing Morales's offense level
to 33 -- based on his actions as "the main leader of the drug
trafficking

organization,

participants."
conspirators

which

involved

See U.S.S.G. § 3B1.1(a).
in

addition

to

Morales

1

five

or

more

The PSR listed 28 coby

name

and

position.

The firearm charge is precluded from guideline
application under U.S.S.G. § 2K2.4(b).
That provision also
provides that the guideline sentence is the applicable mandatory
minimum.

- 3 -

Case: 17-1549

Document: 00117315533

Page: 4

Date Filed: 07/18/2018

Entry ID: 6184688

Morales's criminal history category at that time was III, but that
did not include a state offense described below.
In February 2017, before federal sentencing, Morales
pleaded guilty to Puerto Rico offenses unrelated to the federal
offenses.

The state plea agreement exposed Morales to thirteen

years' state imprisonment.

In light of this development, the

probation office filed an addendum to the original PSR.
addendum

noted

that

"[Morales's]

criminal

history

This

category

substantially under-represents the seriousness of the [sic] his
criminal history or the likelihood that he will commit other
crimes."

It observed that the inadequacy of Morales's criminal

history category might warrant an upward departure.
The district court sentenced Morales in May 2017.

It

applied the four-level leadership enhancement, closely tracking
language from the PSR:
Defendant acted as the main leader of the drug
trafficking organization which involved five
or more participants, and he had supervisory
authority over the affairs of the drug
trafficking organization, therefore, a fourlevel increase is applied under Guideline
Section 3B1.1(a).
Like the original PSR, the district court calculated an offense
level of 33, putting Morales's guidelines range for the conspiracy
charge at 168 to 210 months' imprisonment based on his criminal
history category of III.
table).

See U.S.S.G. ch. 5, pt. A (sentencing

The district court imposed a sentence at the bottom of

- 4 -

Case: 17-1549

Document: 00117315533

Page: 5

this new range: 168 months.

Date Filed: 07/18/2018

Entry ID: 6184688

Morales's firearm charge yielded a

60-month sentence, to be served consecutively with his conspiracy
sentence, for a total of 228 months' imprisonment.2
II.
A.
Morales first objects to the leadership enhancement
under U.S.S.G. § 3B1.1(a).

Because he raised no such objection to

the district court, as he concedes, we review for plain error.
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
On plain error review, Morales must establish that there was (1) an
error that was (2) clear or obvious and that not only (3) affected
his

substantial

rights,

but

also

(4) seriously

impaired

the

fairness, integrity, or public reputation of judicial proceedings.
Id.
Morales
applied
words,

a

argues

four-level

"the

that

the

leadership

indictment

does

district

court

enhancement,

not

establish

erroneously

because,

the

four

in
or

his
more

participants" (in addition to Morales) required for a four-level
enhancement under U.S.S.G. § 3B1.1(a).

Morales does not dispute

his leadership of the organization; he challenges only the number
of participants.

2

The district court also imposed 10 years' supervised
release for the conspiracy count and 5 years' supervised release
for the firearm count, to be served concurrently. Morales does
not challenge his supervised release terms.

- 5 -

Case: 17-1549

Document: 00117315533

Page: 6

Date Filed: 07/18/2018

This argument is meritless.

Entry ID: 6184688

The district court in

sentencing referred to "the serious nature of the offense" and
"[Morales's] role as principal leader of the drug trafficking
organization."

Morales has not provided us with a copy of his

indictment and has not challenged the government's assertion that
the indictment listed all 28 of his co-defendants.

A "district

court has the ultimate responsibility to ensure that the Guidelines
range it considers is correct."
138 S. Ct. 1897, 1904 (2018).

Rosales-Mireles v. United States,
Here, the district court had ample

support for its conclusion that Morales led a "drug trafficking
organization which involved five or more participants."
the

PSR

Morales.

listed

twenty-eight

co-conspirators

in

First,

addition

to

And second, by the time she sentenced Morales, the

district judge had already sentenced fourteen of Morales's coconspirators.

Morales has advanced no argument to explain why he

was a leader of fewer than four of those co-conspirators.
A

district

court

need

not

make

specific

findings

justifying its application of a role-in-the-offense enhancement if
"the

record

clearly

reflects

the

basis

of

the

court's

determination."

United States v. Marrero-Ortiz, 160 F.3d 768, 779

(1st Cir. 1998).

Here, as in Chavez-Meza v. United States, "there

was not much else for the judge to say."
(2018).

138 S. Ct. 1959, 1967

There was no error at all in assigning Morales a four-

level leadership enhancement.

- 6 -

Case: 17-1549

Document: 00117315533

Page: 7

Date Filed: 07/18/2018

Entry ID: 6184688

To the extent Morales now disputes the list of twentyeight co-conspirators in his PSR, that argument is waived.

Puerto

Rico Local Rule 132(b)(3)(A) requires that any objection to a PSR
be made within fourteen days of that report's disclosure.
raised no such objection.

Morales

Cf. United States v. Turbides-Leonardo,

468 F.3d 34, 37-38 (1st Cir. 2006).
Morales's procedural challenge fails.
B.
Morales next argues that his 228-month federal sentence
is substantively unreasonable.

In particular, he argues that this

sentence is unreasonable in light of the further 13 years he will
likely spend in state prison on the state charges.

The government

concedes

by

that

Morales

preserved

this

challenge

requesting

reconsideration after the district court pronounced the sentence.
The district court denied reconsideration.
discretion.

We review for abuse of

United States v. Cortés-Medina, 819 F.3d 566, 569

(1st Cir. 2016).
To undercut the substantive reasonableness of a withinguidelines

sentence

like

Morales's,

a

defendant

must

furnish

"powerful mitigating reasons and persuade us that the district
judge was unreasonable in balancing pros and cons despite the
latitude implicit in saying that a sentence must be 'reasonable.'"
United States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir.
2006).

- 7 -

Case: 17-1549

Document: 00117315533

Page: 8

Date Filed: 07/18/2018

Entry ID: 6184688

Morales offers no reasons, whether powerful or not, for
us

to

find

his

sentence

unreasonable.

He

relies

merely

on

conclusory statements "unaccompanied by some effort at developed
argumentation."
Cir. 1990).

United States v. Zannino, 895 F.2d 1, 17 (1st

Because Morales has not met his obligation "to spell

out [his] arguments squarely and distinctly," id. (quoting RiveraGomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)), they are
waived.
In any event, the district court did not abuse its
discretion.

It found the 228-month sentence justified by "the

serious nature of the offense, [Morales's] role as principal leader
of the drug trafficking organization, personal characteristics and
prior criminal record."

It considered mitigating factors like

Morales's limited education and the fact that he has a young child.
Morales was in fact sentenced at the bottom of his guidelines
range. The court considered and rejected defense counsel's request
for reconsideration in light of Morales's likely 13-year state
sentence.
Sentencing represents a "'judgment call' involving an
intricate array of factors."

United States v. Flores-Machicote,

706 F.3d 16, 21 (1st Cir. 2013) (quoting United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). The district court weighed those
factors,

providing

a

"plausible

- 8 -

sentencing

rationale

and

a

Case: 17-1549

Document: 00117315533

defensible result."

Page: 9

Date Filed: 07/18/2018

Martin, 520 F.3d at 96.

Entry ID: 6184688

As such, Morales's

228-month sentence is substantively reasonable.
III.
The
otherwise.

district

court

committed

Morales's sentence stands.

- 9 -

no

error,

Affirmed.

plain

or