906 F.3d 196 (1st Cir. 2018), 17-1706, United States v. Romero
|Citation:||906 F.3d 196|
|Opinion Judge:||THOMPSON, Circuit Judge.|
|Party Name:||UNITED STATES of America, Appellee, v. Gadiel ROMERO, a/k/a 'TC,' Defendant, Appellant.|
|Attorney:||Thomas J. OConnor, Jr. for appellant. Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.|
|Judge Panel:||Before Thompson, Kayatta, and Barron, Circuit Judges.|
|Case Date:||October 12, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
[Copyrighted Material Omitted]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge ]
Thomas J. OConnor, Jr. for appellant.
Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Before Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
Gadiel Romero pleaded guilty to conspiracy to commit kidnapping and got a 276-month prison sentence, a below-guidelines sentence— his guidelines range was 360 months to life. Ably represented on appeal by new counsel, Romero principally claims that his incarcerative term is both procedurally flawed and substantively unreasonable. Concluding, as we do, that his attacks miss the mark, we affirm .
HOW THE CASE GOT HERE
Because this appeal follows a guilty plea, we take the facts from the undisputed parts of the probation offices presentence report ("PSR") and the transcripts of the
key court hearings. See, e.g., United States v. Edwards, 857 F.3d 420, 421 n.1 (1st Cir.), cert. denied, __ U.S. __, 138 S.Ct. 283, 199 L.Ed.2d 181 (2017).
Around 6 p.m. on July 23, 2012, masked gunmen abducted Manuel Amparo and Jose Daniel Felipe Castro near a house on Allston Street in Lawrence, Massachusetts. What happened is this. As Amparo and Castro pulled into the driveway in Amparos car, a white van pulled in behind them and four men wearing masks and black t-shirts emblazoned "POLICE" charged out shouting "police." Three of the men had pistols and the fourth had a shotgun. One of the men smacked Amparo on the side of his face and forced him and Castro into the van. The men then put a hood over Amparos head and bound his feet and hands. The van sped off to Manchester, New Hampshire, it turns out. Responding to a 911 call from Amparos wife, police found a plastic handcuff on the ground near Amparos car and a GPS locator attached to the cars back bumper.
During the drive to the Granite State, Amparo was periodically beaten (this part of the PSR is phrased in the passive voice). The abductors eventually brought him and Castro to a house in Manchester. One of the abductors put Amparo on the phone with someone who threatened to kill him if he did not pay a ransom. An abductor also burned him with a hot iron and repeatedly punched and kicked him.
At some point that night, Amparo freed his hands and feet, removed his hood, and escaped through a window. He started knocking on the neighbors doors, looking for help. Responding to the commotion, one neighbor called the police and said he had a man on his porch who claimed he had been kidnapped. This was around 4:30 a.m. on July 24.
Investigation and Arrests
Arriving on the scene, officers heard from Amparo about his ordeal, including where he had escaped from. And they learned too that the suspects and another victim were still there. With backup help, the officers headed to the location, freed Castro, and arrested Jose Guzman, Henry Maldonado, and Thomas Wallace. Searches (either with a partys consent or with a warrant) later revealed guns, police paraphernalia (badges, t-shirts with "POLICE" on them, handcuffs, etc. ), Amparos wallet, cell phones, and blood on the vans carpet.
During the investigation, law enforcement learned that Guzman, Maldonado, and Wallace participated in a Lawrence-area kidnapping gang led by Danny Veloz (nicknamed "Maestro") that also included Romero, Luis Reynoso, and Jose Matos. The crew focused on abducting drug dealers and holding them for ransom (in the form of cash or drugs). Guzman, Maldonado, Wallace, and Reynoso cooperated with the government. From their statements, a clear picture emerged of the Amparo/Castro abductions. Matos installed the GPS tracker on Amparos car and stored uniforms and weapons used during the kidnapping. Veloz tracked the GPS data and clued the crew in on Amparos whereabouts by calling Guzman. When Veloz said Amparo was near his Lawrence home, Guzman, Maldonado, Wallace, Reynoso, and Romero grabbed Amparo and Castro at gunpoint. Once at Maldonados Manchester home, Veloz and Guzman continued to talk by phone throughout the evening as Maldonado tortured Amparo to get him to pay a ransom. Eventually, Wallace drove Reynoso and Romero back to Lawrence (Maldonado and Guzman stayed with the two abductees) and then returned to Maldonados home.
Beyond that, the cooperating witnesses also talked about a May 9, 2012 attempted kidnapping on Saratoga Street in Lawrence, and a July 8, 2012 kidnapping on Whiting Street in Lynn, Massachusetts. Guzman fingered Romero as part of the crew present on Saratoga Street for the attempted kidnapping (the attempt fell through when the police responded to reports of suspicious activity). Guzman and Maldonado also fingered Romero as part of the Whiting Street crew that kidnapped a drug dealer at gunpoint and kept him in Maldonados basement (Guzman and Romero beat and kicked him, apparently) until the dealers associate paid a ransom.
After his arrest, a federal grand jury indicted Romero— along with Guzman, Maldonado, Wallace, Veloz, Reynoso, and Matos— for conspiring to "unlawfully seize, confine, kidnap, abduct, and carry away" two persons "and to willfully transport them in interstate commerce and hold them in ransom, in violation of" 18 U.S.C. § 1201(a) and (c). Reduced to its essentials, § 1201(a) punishes anyone who "unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when ... the person is willfully transported in interstate or foreign commerce...." And § 1201(c) provides that "[i]f two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life." Romero initially pleaded not guilty to the charge.
During Romeros pretrial detention, his then-attorney gave prosecutors a letter that he said Romero had given him. Signed by Maldonado, the letter purported to recant his identification of Romero as a player in the July 23 kidnapping. Maldonado told prosecutors in an interview that he wrote the letter because Romero had threatened him by showing him a shank and having some guys tell him they knew where his family lived (Maldonado has a wife and two children). A later search of Romeros cell uncovered a tooth brush sharpened to a point.
Maldonado agreed to wear a secret recording device and talk to Romero in prison about Romeros plan to have him recant his identification. And the tape captured Romero inculpating himself in the July 23 conspiracy. Here is a taste of what he said: I was the first one that hit [Amparo], Be quiet, and then [Wallace] hit him hard. Bang! Bang! Bang! Holy shit! ... [Wallace] cracked him. When I hit him ... he bled a little bit, but when that dude hit him with the grip of the shotgun, ... blood was spurting everywhere! That poor [Reynoso] in the back.... This is the third time I went to do something with [Reynoso].... Hes not built for that.
And while complaining about what Veloz had paid him for his participation, Romero also said: I was out there doing my thing on my own too. Do you remember one time when he says to me [unintelligible], Oh, how did you buy that car? Not with you.... The most I ever see you with, motherfuckers is five stacks.... I went with another team and I make 50 stacks one night. One night, one hit. With [Veloz] its 5, 5, 5. No more.... Its like, you dont want us to get fat, you want us to, like maintain and go.
The two then shifted to a discussion about the letter Maldonado had given his attorney. "Listen off the book," Maldonado began,
[Guzmans] the one ... when we first, listen got when we first got, first got in the tank together, [Guzmans]— hes a dirty dude— all through this he told me, yo.... At first he tried to tell me in Spanish to tell [Veloz] to swear about everything about the guns and everything and then he said "Yo, ... tell them that it was [Veloz] and [Romero] that put you up to all of this you heard?
"If you said this shit to your attorney," Romero responded, "I can leave." To that, Maldonado replied: My man ... Ive ... told them exactly everything that I wrote in the letter everything. Everything that you told me to tell him. Everything, and ... I havent still come face to face with the dude with the prosecutor but when I do come with the prosecutor even though I know hes gonna know that Im lying it doesnt matter cause its my word, you know what Im saying.
"I dont know how ... that shit works," Romero stated, "because if you already went to a grand jury ... [a]nd you gave a confession, then, they gonna hit you with perjury." And later in the conversation, Romero said to Maldonado that "if you say ... what you were just telling me ..., that in the pen ... [Guzman] said ... We are going to say that it was [Romero] and [Veloz] that thing gets me out of this mess...." "Everything you told me to say Im gonna say," Maldonado stressed. "Im gonna tell my other lawyer that: Yo, [Romero] had nothing to do with ... this and that. "
Romero also brought up the alleged ransom with Maldonado. Calling Amparo "a kilo carrier," Romero opined that the government will "need [Amparo] to go to court to testify." But...
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