JOHN R. GIBSON, Circuit Judge.
Orlando Ortiz-Torres, Omar Cosme-Piri, Raymond Torres-Santiago, José Renovales-Vélez, and Julio Mattei-Albizu appeal their convictions and sentences for conspiracy to distribute multi-kilogram quantities of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
Appellants were members of a drug-trafficking organization that operated drug
Appellants raise numerous claims of error on appeal. Cosme-Piri and Ortiz-Torres challenge their convictions on the ground that their guilty pleas were not voluntary. Cosme-Piri, Ortiz-Torres, Renovales-Vélez, and Mattei-Albizu raise an assortment of challenges to their sentences. Lastly, each appellant requests a remand for sentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We address each claim in turn.
I. Voluntary Guilty Plea
Cosme-Piri and Ortiz-Torres ask us to vacate their convictions and remand their cases for trial on the ground that their guilty pleas were not voluntary. While the entry of a guilty plea "does not preclude an attack on the plea's voluntariness," United States v. Sahlin, 399 F.3d 27, 31 (1st Cir.2005), because neither appellant sought to withdraw his guilty plea before the district court, we review the district court's acceptance of their pleas for plain error. United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir.2004) (citing United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)), cert. denied, 543 U.S. 1175, 1176, 125 S.Ct. 1389, 1392, 161 L.Ed.2d 158, 160 (2005).
To establish that the district court committed error in accepting their guilty pleas, appellants must point to a "fundamental defect" in the change of plea hearing itself. See United States v. Bierd, 217 F.3d 15, 19 (1st Cir.2000); see also Sahlin, 399 F.3d at 31 (error must affect substantial rights). Appellants argue that the joint change of plea hearing was fundamentally defective because it failed to ensure that their guilty pleas, entered as part of a package plea agreement, were truly voluntary. As in many such "package plea" arrangements, the government offered the entire group of defendants charged in connection with the La Plena drug point a favorable plea and sentencing recommendation on the condition that all the co-defendants enter guilty pleas.
We have previously recognized that such package deals create a significant risk that one defendant will plead guilty against his will in order for his co-defendants to obtain the offered benefit. United States v. Abbott, 241 F.3d 29, 34 (1st Cir.2001); United States v. Martinez-Molina, 64 F.3d 719, 732-33 (1st Cir.1995). Thus, we have crafted two safeguards designed to minimize this risk of coercion. Mescual-Cruz, 387 F.3d at 8 (citing Martinez-Molina, 64 F.3d at 732-33). First, the prosecution should inform the district court that the defendant's guilty plea is part of a package deal. Id. Second, the district court should carefully ascertain the
The record of the Rule 11 proceeding below reflects that both safeguards were observed. First, there is little doubt that the district court was fully aware that all the defendants, save for Mattei-Albizu, were entering their pleas as part of a package deal. At the joint change of plea hearing, in the presence of all defendants and their respective counsel, the government disclosed to the court that the individual pleas were part of a package deal. Indeed, on several occasions throughout the change of plea hearing the district court specifically referred to the package nature of defendants' pleas.
Second, the district court's Rule 11 inquiry was more than sufficient to guard against the risk of co-defendant coercion. The court individually questioned the defendants, asking whether they were threatened or coerced by "anyone" or "anybody" into entering their individual guilty pleas. Although this alone was likely sufficient, see, e.g., Mescual-Cruz, 387 F.3d at 9 ("anyone" or "anybody"); United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir.1996) ("anyone"), the court inquired further. It specifically named each co-defendant and asked whether any of them had threatened or coerced Ortiz-Torres or Cosme-Piri into pleading guilty, thereby probing whether the increased likelihood of co-defendant coercion in the package-plea context had affected either of their decisions to plead guilty.
In light of these additional safeguards, the district court was entitled to rely upon Cosme-Piri's and Ortiz-Torres's representations, made under oath, that they were neither coerced nor threatened into making their pleas. See United States v. Marrero-Rivera, 124 F.3d 342, 349 (1st Cir.1997). The only indication of the contrary comes from Cosme-Piri's and Ortiz-Torres's general allegations of coercion on appeal, which are insufficient, absent record support, to invalidate their guilty pleas. See Sanchez-Barreto, 93 F.3d at 23. Finding no error, plain or otherwise, in the district court's acceptance of their guilty pleas, we affirm Ortiz-Torres's and Cosme-Piri's convictions.
II. Sentencing Issues
The entry of a guilty plea does not itself waive a defendant's right to challenge the ensuing sentence. United States v. Gonzalez-Mercado, 402 F.3d 294, 301 (1st Cir.2005). Renovales-Vélez, Cosme-Piri, Ortiz-Torres, and Mattei-Albizu advance such challenges.
Renovales-Vélez argues that the district court erred by failing to impose his federal sentence concurrently with his undischarged term of state imprisonment as required under Guideline § 5G1.3(b) (2002).
Ultimately, Renovales-Vélez's presentence report listed four prior drug-related convictions in the Superior Court of Puerto Rico: on December 21, 1994, Renovales-Vélez was arrested for possession of cocaine with intent to distribute for which he was sentenced to three years' imprisonment; on January 25, 1995, he was arrested and charged with the second and third offenses, possession of marijuana and heroin with the intent to distribute, for which he was sentenced to a total of six years' imprisonment; and on February 23, 1995, he was arrested and charged with possession with the intent to distribute cocaine, for which he was sentenced to two years' imprisonment.
Since his prior drug offenses occurred during the period of the charged cocaine trafficking conspiracy, the presentence report recommended that they be treated as overt acts, resulting in zero criminal history points. Consistent with the recommendation of the presentence report and the agreement of the parties, the district court assessed Renovales-Vélez zero criminal history points for his prior convictions, leaving him with a criminal history category of I. Recognizing that Renovales-Vélez had been incarcerated due to these prior convictions during a significant portion of the charged conspiracy, the district court found him to be less culpable than his co-defendants, and accordingly, sentenced him to 238 months' imprisonment, rather than the 252-month sentence provided for in the plea agreement.
On appeal Renovales-Vélez argues that the district court was required under Guideline § 5G1.3(b)(2002) to run his federal sentence concurrently with the undischarged portion of his state term of imprisonment. Because, as Renovales-Vélez concedes, he did not object to his sentence on this ground, we employ plain error review. United States v. Cruz, 213 F.3d 1, 4 (1st Cir.2000) (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To decide whether the district court erred in imposing his sentence, we must determine whether his state offenses were "fully taken into account" in determining his offense level. See Guideline § 5G1.3(b)(2002).
Renovales-Vélez argues that because his state court offenses were treated as overt acts in furtherance of the conspiracy, they were treated as relevant conduct under Guideline § 1B1.3, and therefore "fully taken into account" under Guideline § 5G1.3(b). Because Guideline § 5G1.3 "is directed at the prevention of duplicative sentencing for any particular conduct," we held in Caraballo that "only relevant conduct that has resulted in-or that could have resulted in-a change in the instant offense's `offense level' is `fully taken into account' under § 5G1.3(b)." Id. (emphasis in original). However, we also reasoned that mandatory concurrent sentencing would be inappropriate where the defendant's undischarged prison term was for multiple offenses, but only some of those offenses were "fully taken into account" in determining the instant offenses's offense level, since in such a situation the instant offense may involve conduct unrelated to the conduct underlying the undischarged term. Id. at 28. Accordingly, we held that "[w]hen some of the conduct underlying an undischarged term impacted the offense level, but other aspects of that conduct did not," the district court is free, under § 5G1.3(c), to choose wholly concurrent, partially concurrent, or wholly consecutive sentencing. Id. at 29.
In the instant case, we face precisely this kind of "multiple offense" situation. Renovales-Vélez's undischarged term of state imprisonment was the result of four separate offenses. Even assuming that, in reaching its drug quantity determination and corresponding offense level, the district court took into account his two prior cocaine offenses,
Thus proceeding under subsection (c), the district court enjoyed the discretion to impose a wholly concurrent, partially concurrent, or wholly consecutive sentence, so long as the end result was reasonable. See United States v. Vazquez-Alomar, 342 F.3d 1, 5 (1st Cir.2003) (quoting Caraballo, 200 F.3d at 28-29). The court exercised this discretion by sentencing Renovales-Vélez to a term of imprisonment 14 months less than that stipulated to in the plea agreement, which had the effect of imposing part of his federal sentence concurrently with his undischarged state sentence, while imposing the remainder consecutively. The court specifically stated that it was imposing this sentence in recognition of the time Renovales-Vélez was incarcerated on his prior drug offenses, thereby furthering the underlying policy of Guideline § 5G1.3 in preventing "duplicative sentencing for any particular conduct." Caraballo, 200 F.3d at 27. Renovales-Vélez makes no argument that the district court abused its discretion in doing so, nor does he claim that his sentence is otherwise unreasonable. See Vazquez-Alomar, 342 F.3d at 5; see also Caraballo, 200 F.3d at 29 (affirming district court's exercise of discretion under Guideline § 5G1.3(c) to run part of defendant's federal sentence concurrent with undischarged state sentence). Accordingly, we affirm his sentence.
1. Drug quantity
Cosme-Piri argues that the district court sentenced him based on a flawed drug-quantity calculation. Because he objected to the calculation at sentencing, we review any legal error of the district court de novo, United States v. Barbour, 393 F.3d 82, 91-92 (1st Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 212, 163 L.Ed.2d 204 (2005), while reviewing its factual findings for clear error. United States v. Santos, 357 F.3d 136, 140 (1st Cir.2004).
Cosme-Piri stipulated to the scope of the conspiracy's drug trafficking operations as well as to the amount of narcotics for which he was personally responsible.
At sentencing, counsel for Cosme-Piri objected to the offense-level computation in the presentence investigation report. He requested that the district court lower the drug-quantity calculation because Cosme-Piri had participated in the conspiracy for a shorter period of time than other co-conspirators whose plea agreements provided for lesser drug quantities. The government responded that Cosme-Piri had specifically stipulated in his plea agreement to the amount of cocaine for which he personally was responsible and this amount was not tied to the length of his involvement in the conspiracy.
The court rejected Cosme-Piri's request and sentenced him to 252 months' imprisonment, as provided in the plea agreement. The court explained that other co-defendants had received drug-quantity reductions in return for their stipulation to leadership role enhancements, and not because their involvement in the conspiracy was any less than that originally contemplated in their plea agreements. This trade-off was necessary to ensure that the government's sentencing recommendation would remain 252 months' as stipulated in the plea agreements.
Cosme-Piri argues that the district court erred in sentencing him based on the stipulated drug quantity instead of making an individualized finding as to the amount of drugs specifically attributable to him. In support, he relies upon United States v. Colon-Solis, 354 F.3d 101, 102-03 (1st Cir.2004), which held that a district court could not automatically shift a stipulated conspiracy-wide drug-quantity amount to an individual conspirator in order to trigger a statutory mandatory minimum.
However, this reliance is misplaced, since the defendant in Colon-Solis had stipulated only to the conspiracy-wide drug amount, and there remained an "open question" as to whether he personally was responsible for a lesser quantity. See id. at 102. Here, Cosme-Piri's stipulation as to the amount of drugs specifically attributable to him left no such open question. Although the district court was not required to follow this stipulation, it was entitled to rely upon it in determining the appropriate sentence, United States v. Teeter, 257 F.3d 14, 28 (1st Cir.2001), and such reliance is not clearly erroneous, see United States v. Santos, 357 F.3d 136, 140-41 (1st Cir.2004).
Cosme-Piri's second attack on the drug-quantity calculation focuses on the drug-quantity reductions granted to some of his co-conspirators. Citing no legal authority in support, Cosme-Piri claims that, notwithstanding his plea agreement, he is entitled to a similar reduction because the district court's stated reasons for the reductions were arbitrary and not related to facts proved beyond a reasonable doubt.
2. Term of Supervised Release
Cosme-Piri advances two arguments in favor of vacating the supervised release term of his sentence. First, he claims that the five-year term in the written judgment violated his right to be present at sentencing because the district court had announced a contrary, three-year term, at sentencing.
We review Cosme-Piri's right to be present claim for harmless error. United States v. Meléndez-Santana, 353 F.3d 93, 108 (1st Cir.2003), overruled on other grounds by United States v. Padilla, 415 F.3d 211 (1st Cir.2005) (en banc). "A criminal defendant has the right to be present at his own sentencing." United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir.2005). Thus, if a district court's oral sentence materially conflicts with its subsequent written expression, the tendency is to honor the oral. Id. (quoting United States v. Cali, 87 F.3d 571, 579 (1st Cir. 1996)). However, no material conflict exists where the defendant is on notice that he is subject to the terms included in the written judgment. Vega-Ortiz, 425 F.3d at 22-23 (citing United States v. Tulloch, 380 F.3d 8, 12 (1st Cir.2004)); see also United States v. Ferrario-Pozzi, 368 F.3d 5, 8-9 (1st Cir.2004) (finding no material conflict between oral sentence and written judgment imposing $3.7 million forfeiture where defendant had notice that forfeiture of at least two million dollars would be component of sentence).
While there was surely a conflict between the district court's oral pronouncement of a three-year term of supervised release and the five-year term included in the written judgment, there is overwhelming evidence that Cosme-Piri knew well before the written judgment was issued that he faced a five-year term of supervised release and that the three-year term was announced in error. First, and foremost, the statute criminalizing the drug offense to which Cosme-Piri pled guilty mandates a supervised release term of "at least five-years." See 21 U.S.C. § 841(b)(1)(A) (emphasis added). While
At no point did Cosme-Piri object to the length of the supervised release term. When the district court stated that it was imposing a three-year term, in contravention of the statutory minimum, the plea agreement, and the presentence investigation report, it became incumbent upon Cosme-Piri to request further clarification, which he did not do. See Tulloch, 380 F.3d at 14 n. 7. Indeed, the need for clarification was especially acute in this case, since the district court's oral pronouncement of a three-year term at sentencing hearing was immediately preceded by its reference to a five-year term.
Cosme-Piri's second challenge to the term of supervised release likewise fails. Both at sentencing and in its written judgment, the district court stated that Cosme-Piri's term of supervised release would be subject to the following condition:
Cosme-Piri argues that this condition improperly delegates authority to the probation officer to determine the frequency and quantity of drug testing.
In United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir.2003), a panel of this court held that a district court commits plain error by delegating to a probation officer the authority to determine a defendant's drug-testing regimen while on supervised release. Id. at 106 (citing 18 U.S.C. § 3583(d) (2000)).
Ortiz-Torres claims that, pursuant to Guideline § 3E1.1(a) (2002), the district court should have awarded him a three-level reduction for acceptance of responsibility instead of the two-level reduction he received. It was Ortiz-Torres's burden to demonstrate that he was entitled to the additional point reduction, and we will reverse the withholding of such a reduction only if clearly erroneous. United States v. Baltas, 236 F.3d 27, 37 (1st Cir.2001). Initially, we recognize, as did the district court, that Ortiz-Torres's request for a three-level reduction contradicts his stipulation to a two-level reduction in his plea agreement. However, like the district court, we conclude that even in the absence of this stipulation, Ortiz-Torres was not entitled to a three-level reduction because his guilty plea was untimely.
A defendant qualifies for a two-level reduction for acceptance of responsibility under Guideline § 3E1.1(a) if he "clearly demonstrates acceptance of responsibility for his offense." A defendant may receive an additional level reduction by, inter alia, "timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently." U.S.S.G, § 3E1.1(b)(2) (2002). As we have previously recognized, "[t]he two-level reduction is for contrition," while "the third level is for helping the authorities save resources." United States v. Hines, 196 F.3d 270, 274 (1st Cir.1999); see also U.S.S.G. § 3E1.1, cmt. (n. 2) (2002).
Ortiz-Torres argues that his acceptance of responsibility was sufficiently timely and beneficial to the government to warrant a three-level reduction in light of the numerous witnesses and anticipated length of the trial the government and district court were able to avoid. To earn a three-level reduction, a defendant must give notice of his intent to plead guilty "at a sufficiently early point in the process so that the government may avoid preparing for trial," which will usually be "particularly early in the case." U.S.S.G. § 3E1.1, cmt. n. 6 (2002). Ortiz-Torres and the bulk of his indicted co-conspirators entered into the package plea deal after a jury had already been selected; the district court concluded that this was not early enough in the process to merit a three-level reduction.
Unlike his co-defendants, Mattei-Albizu was not a party to the package plea agreement. Instead, he entered a straight plea of guilty to conspiring to sell five kilograms or more of cocaine, as alleged in the indictment, an offense that carried a statutory minimum sentence of ten years. See 21 U.S.C. § 841(b)(1)(A) (2000). He also admitted to participating in the conspiracy from 1997 until his September 2001 arrest.
Following the evidentiary hearings, the district court imposed a two-level enhancement under Guideline § 2D1.1(b)(1)(2002) for possession of a dangerous weapon during the commission of a drug-trafficking offense, determined that Mattei-Albizu was responsible for in excess of 150 kilograms of cocaine, and granted him a two-level reduction for acceptance of responsibility under Guideline § 3E1.1(a)(2002). Based on a total offense level of 38 and a criminal history category of IV, the applicable guideline imprisonment range was 324 to 405 months. See Guideline § 2D1.1. (2002). The district court sentenced Mattei-Albizu to 324 months' imprisonment, the bottom of the guidelines range.
Mattei-Albizu contends that the drug-quantity determination and firearm enhancement were unwarranted and that the district court's criminal history calculation was in error. We review the district court's interpretation of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Caldwell, 358 F.3d 138, 142 (1st Cir.2004).
1. Firearm enhancement
Mattei-Albizu challenges the two-level enhancement he received for possession of a dangerous weapon during the commission of a drug trafficking offense on the ground that the government failed to establish that it was reasonably foreseeable to him that firearms would be possessed in furtherance of the conspiracy. See U.S.S.G. § 2D1.1(b)(1) (2002). He argues that the government failed to prove that he was involved in any of the murders alleged to have been committed by members of the La Plena drug trafficking organization and that the district court found at sentencing that there was insufficient evidence to link him to the murders. He claims that without such proof the district court could not impose the two-level enhancement for possession of a dangerous weapon.
Mattei-Albizu's argument would gain greater traction if the government had stuck to its initial position: seeking a dangerous weapon enhancement based on proof that he was involved in a drug-related murder committed in furtherance of the charged conspiracy. However, it abandoned that theory and instead sought the enhancement under Guideline § 2D1.1(b)(1) by proving that "it was reasonably foreseeable that a co-conspirator would possess a gun in furtherance of the criminal activity." United States v. Casas, 356 F.3d 104, 129 (1st Cir.2004); see also United States v. May, 343 F.3d 1, 7 (1st Cir.2003). Thus, the question was not, as Mattei-Albizu now argues, whether the government was able to prove his involvement in a murder, but rather, whether it was reasonably foreseeable to him that
The district court made a finding of reasonable foreseeability here, stating that it had "plenty of evidence" from which to conclude that weapons were used by members of the conspiracy and that this use of weapons was foreseeable to Mattei-Albizu. Agent Iglesias-Moreno testified that members of the La Plena organization carried a variety of weapons and handguns, with sellers carrying weapons for "keeping everything under control" at the drug point, and that he had seen weapons seized by police from members of the organization. Unindicted co-conspirator Camacho-Aponte testified that he and Mattei-Albizu were drug sellers, that sellers were always armed at the drug point, and that he personally saw Mattei-Albizu carrying weapons on several occasions when the two went out "hunting" for members of rival drug gangs in order to kill them. From this testimony, the district court could have concluded that it was reasonably foreseeable to Mattei-Albizu that a dangerous weapon would be possessed in furtherance of the conspiracy.
Pointing to Camacho-Aponte's criminal record, his hope of obtaining a more lenient sentence in cases pending against him in state court, and his desire to deter federal authorities from filing charges against him for his admitted participation in a drug-related murder, Mattei-Albizu argues that Camacho-Aponte's testimony should have been completely disregarded as unreliable or, at the very least, considered with caution. It is for the sentencing court to assess the credibility of the witness, and it is the for the appellate court to defer to that assessment unless it is clearly erroneous. See, e.g., United States v. Nunez, 19 F.3d 719, 724 (1st Cir.1994) (citing United States v. Brum, 948 F.2d 817, 819 (1st Cir.1991)); see also 18 U.S.C. § 3742(e) (stating that "court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses"). Indeed, in this case the district court specifically credited Camacho-Aponte's testimony due to his personal involvement in the illegal activities to which he testified, despite the court's frank recognition of the negative credibility issues surrounding the testimony.
2. Drug quantity
Mattei-Albizu contends that there was insufficient evidence to support the district court's determination that he should be held responsible for 150 kilograms of cocaine, and therefore, he should be held responsible only for the amount he admitted to at his change of plea hearing. As an admitted participant in a drug trafficking conspiracy, Mattei-Albizu is responsible
Mattei-Albizu argues that the testimony at sentencing regarding the conspiracy-wide drug-quantity was too inconsistent, and hence, too unreliable, to support an individualized drug-quantity finding. Specifically, he points to the wide variance between the conspiracy-wide amounts testified to by Agent Iglesias-Moreno and co-conspirator Camacho-Aponte. Though the two witnesses provided differing quantities, both testified to amounts greater than the amount the district court attributed to Mattei-Albizu.
Based on drug seizures by other agents and information provided by Camacho-Aponte, Agent Iglesias-Moreno testified that approximately two kilos each of heroin, cocaine and crack were sold out of the La Plena drug point each week. From this, Agent Iglesias-Moreno estimated that from 1997 until 2001, the period in which Mattei-Albizu admitted to participating in the conspiracy, at least five hundred kilos of cocaine were distributed at La Plena. However, Camacho-Aponte testified that he, like Mattei-Albizu and other sellers at La Plena, sold one kilogram each of heroin, cocaine, and crack every eight days. The government concedes that an extrapolation of Camacho-Aponte's testimony yields a total of approximately 45 kilograms of each narcotic per year, which multiplied by the four to five years Mattei-Albizu admitted to being a member of the conspiracy, yields an amount between 180 and 225 kilograms of each narcotic, a significantly lower total than the "at least 500 kilograms" testified to by Agent Iglesias-Moreno.
The district court recognized that the drug quantity testified to by Agent Iglesias was more than double that testified to by Camacho-Aponte at the evidentiary hearing. However, it specifically credited Camacho-Aponte's testimony and adopted Camacho-Aponte's drug-quantity estimate in finding that Mattei-Albizu was responsible for at least 150 kilograms of cocaine for an offense level of 38. See U.S.S.G. § 2D1.1(c) (2002). Because Camacho-Aponte's testimony directly supports this finding, we cannot conclude that the district court's choice between two plausible views of the record was clearly erroneous.
3. Criminal history
Based on Mattei-Albizu's two prior offenses, the district court assigned him a criminal history category of IV. Mattei-Albizu claims that this was error because both prior offenses were "relevant conduct" to the instant conspiracy, and therefore neither should have been counted in calculating his criminal history category. See U.S.S.G. §§ 4A1.2, 1B1.3 (2002). By his calculation, if the district court had properly excluded both prior offenses, his criminal history category would have been I, or if the district court had counted one offense, but not the other, his criminal history category would have been III; in any event, he argues that his criminal history category should have been lower than the one he received.
Mattei-Albizu was convicted for possessing narcotics in 1993 and 1994, and sentenced for both offenses in 1995. In connection with the instant conspiracy prosecution, the government filed an informative motion designating the 1993 and 1994 offenses as overt acts in furtherance of the conspiracy. At his plea hearing, Mattei-Albizu admitted to being a member of the charged conspiracy from 1997 to 2001. Because Mattei-Albizu did not admit to being a member of the conspiracy during the time he committed his prior offenses, the presentence report recommended a criminal history category of IV to take into account the two prior offenses, rather than treating them as relevant conduct to the charged conspiracy.
Before presenting its evidence at sentencing, the government informed the district court that it would not dispute Mattei-Albizu's stipulation that his participation in the conspiracy began in 1997. However, in so doing, it took the position that the 1993 and 1994 offenses could no longer be considered as overt acts in furtherance of the conspiracy, and should therefore be counted towards his criminal history category. Mattei-Albizu disputed the government's contention that the prior offenses were outside the scope of the conspiracy, citing the government's informative motion in which it had specifically designated them as overt acts. In response, the government conceded that if the case had proceeded to trial it would indeed have sought to prove that Mattei-Albizu was involved in the conspiracy as early as 1994 and would have presented the second offense as an overt act in furtherance of the conspiracy. However, the government reminded the court that the case was not going to trial because of Mattei-Albizu's guilty plea, which included the stipulation that he joined the conspiracy in 1997.
In attempting to sort out the parties' arguments, the district court explained that the parties had to choose between treating the prior offenses as overt acts or for criminal history purposes. The district court chose the latter, adopting the recommendation of the presentence report and assessing Mattei-Albizu six criminal history points for the two prior offenses, as well as an additional two points because he committed the instant offense within two years after his release from imprisonment on the prior offenses. See U.S.S.G. § 4A1.1(e) (2002). In light of Mattei-Albizu's stipulation that he was only a member of the conspiracy from 1997 onward, we conclude that district court correctly counted the prior offenses for criminal history purposes. There was no error in holding Mattei-Albizu to the facts to which he stipulated.
Appellants Ortiz-Torres, Cosme-Piri, Torres-Santiago, Renovales-Vélez, and Mattei-Albizu each ask for their cases to be remanded to the district court for re-sentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Torres-Santiago, Ortiz-Torres, Renovales-Vélez, and Cosme-Piri concede that they failed to preserve their Booker claims in the district court; thus, we review their sentences for plain error. See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005).
Under that standard, a defendant must show four things: (1) that an error occurred, (2) that the error was clear or obvious, (3) that it affected substantial rights, and (4) that the error seriously impaired the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 399 F.3d at 75 (citing United States v. Olano, 507 U.S. 725, 732-736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Because the district court treated the guidelines as mandatory at sentencing, the first two requirements are satisfied. See, e.g., United States v. Kornegay, 410 F.3d 89, 99 (1st Cir.2005).
The operative question with respect to the third requirement is "whether defendant has shown a reasonable probability the sentencing judge would, in a non-mandatory Guidelines system, have imposed a more lenient sentence." United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 247, 163 L.Ed.2d 226 (2005). We are not overly demanding in our proof; where the record or a plausible proffer reasonably indicates that an advisory guideline regime might have led the sentencing judge to a different result, we will remand for resentencing. United States v. Lewis, 406 F.3d 11, 21 (1st Cir.2005) (quoting United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.2005)). However, the mere assertion that the district court would have imposed a more favorable sentence is insufficient. McLean, 409 F.3d at 505. Instead, we require the appellant to present "specific facts" to justify a Booker remand. Kornegay, 410 F.3d at 100.
Pursuant to a plea agreement, Torres-Santiago stipulated to being responsible for between 50 and 150 kilograms of cocaine for a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2) (2002). He further stipulated to a two-level enhancement for possession of a firearm in relation to the charged crime, a four-level enhancement for his leadership role, and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3B1.1(a), 3E1.1(a) (2002). With a criminal history category of I, the applicable guidelines range would have been between 292 to 365 months; the district court sentenced him to 336 months' imprisonment in accordance with the plea agreement.
Torres-Santiago argues that consideration of the sentencing factors of 18 U.S.C. § 3553(a) would have resulted in a more lenient sentence under an advisory guideline regime. However, he fails to indicate how any of the listed factors would have created a reasonable probability of a more lenient sentence. See Kornegay, 410 F.3d at 100 (requiring "specific facts" to justify Booker remand, not merely recitation of sentencing factors). Moreover, the district court's comments at sentencing suggest that Torres-Santiago would be far more likely to receive a harsher sentence, not a more lenient one, on remand.
Pursuant to a plea agreement with the government, Cosme-Piri stipulated that he was responsible for "not less than one hundred fifty kilograms of cocaine" and that "such amount should be the proper drug quantity to be considered" for sentencing purposes. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The parties agreed that the applicable sentencing range under the guidelines was from 235 to 293 months' imprisonment; the district court sentenced him to 252 months as provided in the plea agreement.
Like Torres-Santiago, Cosme-Piri argues that consideration of the § 3553(a) factors would have led to a more lenient sentence under an advisory guidelines regime. However, also like Torres-Santiago, Cosme-Piri puts forth no facts that he would offer on remand to justify a more lenient sentence, save for those arguments already considered and rejected by the district court at sentencing. Although the district court was aware that it was not required to honor the 252-month sentencing recommendation stipulated to in the plea agreement, it did so nonetheless, even in the face of Cosme-Piri's claim that he was less culpable than his co-defendants due to his shorter participation in the conspiracy. There is nothing to suggest that the district court would weigh the duration
Pursuant to a plea agreement, Ortiz-Torres stipulated that he was responsible for at least 150 kilograms of cocaine. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The plea agreement provided that the applicable guidelines range was between 235 and 293 months' imprisonment. However, Ortiz-Torres's presentence report recommended a two-level leadership role enhancement that he had not admitted to in the plea agreement, which would have resulted in a guidelines sentencing range of 292 to 365 months, well above the 252-month sentence stipulated to in the plea agreement.
At sentencing, this discrepancy was brought to the attention of the district court. In order to accommodate the leadership role enhancement while still honoring the 252-month sentencing recommendation, the court recommended that the parties amend the plea agreement by reducing the drug quantity from 150 kilograms to between 50 and 150 kilograms of cocaine.
Ortiz-Torres points to nothing in the record suggesting a reasonable probability that he would fare any better under an advisory guidelines regime. Indeed, he would be hard-pressed to make such a showing in light of the district court's stated desire to honor the agreed to 252-month sentence, even in the face of a contrary, and significantly higher, recommendation in the presentence investigation report. The district court's statements that it was "going out of [its] way" to honor the 252-month recommendation suggests a reasonable probability that Ortiz-Torres would receive an identical sentence on remand. Because Ortiz-Torres shows nothing to the contrary, he fails to establish that he was prejudiced by the sentencing court's enforcement of his bargain.
In his plea agreement, Renovales-Vélez admitted responsibility for at least 150 kilograms of cocaine for a base offense level of 38. U.S.S.G. § 2D1.1(c)(1). He further stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). Assuming a criminal history category of I, which the presentence report ultimately recommended, the applicable guidelines sentencing range was between 235 and 293 months' imprisonment. The government agreed to a sentence of 252 months' imprisonment. Recognizing that Renovales-Vélez had been incarcerated during a significant portion of the conspiracy, the district court found him to be less culpable than his co-defendants, and, notwithstanding the government's objection, sentenced him to 238 months' imprisonment—fourteen months less than the 252-month term the parties had stipulated to in the plea agreement and three months
To establish a reasonable probability of a more lenient sentence on remand, Renovales-Vélez relies solely on the fact that his sentence was fourteen months lower than the sentence the government agreed to in the plea agreement. Although he argues that this is evidence the district court would go even lower under an advisory guidelines regime, it could just as easily indicate that the district court would exercise its discretion in an identical manner on remand. See Sahlin, 399 F.3d at 33 (finding no possible claim of prejudice where defendant receives sentence lower than that stipulated to in a plea agreement). Renovales-Vélez points to no additional facts he would present to the district court to convince it that it should go lower than the plea agreement than it already did. See McLean, 409 F.3d at 505. Moreover, the fact that the sentence he received was near the bottom of the applicable guidelines range is insufficient, standing alone, to establish prejudice. Kornegay, 410 F.3d at 99-100. Under these circumstances, Renovales-Vélez fails to show he was prejudiced by the court's mandatory application of the sentencing guidelines.
Mattei-Albizu entered a straight plea of guilty to conspiring to sell five kilograms or more of cocaine, as alleged in the indictment, which carried a statutory minimum sentence of ten years and a maximum of life imprisonment. See 21 U.S.C. § 841(b)(1). At the change of plea hearing the government stated that if the case had gone to trial it would have proven beyond a reasonable doubt that Mattei-Albizu conspired to distribute in excess of five kilograms of cocaine and that he possessed a firearm in relation to the drug trafficking offense charged.
Following an evidentiary hearing on the drug-quantity and firearm-possession sentencing factors, the district court imposed a two-level enhancement for possession of a dangerous weapon during the commission of a drug trafficking offense. U.S.S.G. § 2D1.1(b)(1) (2002). The court further determined that Mattei-Albizu was responsible for in excess of 150 kilograms of cocaine for a base offense level of 38, U.S.S.G. §§ 2D1.1(b)(1) (2002), and granted him a two-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a) (2002). Based on a total offense level of 38 and a criminal history category of IV, the applicable guideline imprisonment range was 324 to 405 months. The district court sentenced Mattei-Albizu to 324 months' imprisonment.
Mattei-Albizu contends that the disparity between his 324-month sentence and the 108-month sentence received by one of his coconspirators, Jorge Lagase,
The convictions and sentences imposed by the district court are
U.S.S.G. § 5G1.3(b) (2003) (emphasis added). Under this framework, Renovales-Vélez would likewise not be entitled to concurrent sentencing because he fails to demonstrate that his prior cocaine-related offenses were "the basis for an increase" in the drug quantity determination underlying the offense level for the instant cocaine trafficking offense.