U.S. v. Arroyo

• Decision Date: 27 October 2008
• Docket Number: No. 07-2423.,07-2423.
• Citation: 546 F.3d 54
• Parties: UNITED STATES of America, Appellee, v. Heriberto ARROYO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

546 F.3d 54

UNITED STATES of America, Appellee, v. Heriberto ARROYO, Defendant, Appellant.

No. 07-2423.

United States Court of Appeals, First Circuit.

Heard September 4, 2008.

Decided October 27, 2008.

Robert L. Sheketoff, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and SCHWARZER,^* District Judge.

BOUDIN, Circuit Judge.

Heriberto Arroyo, formerly a police officer in the city of Worcester, Massachusetts, was convicted by a jury on two different drug conspiracy counts. On this appeal, he challenges his sentence on two grounds, one legal and one mostly factual. Since the latter turns in part on sufficiency of the evidence, we recite the evidence in the light most favorable to the government. United States v. David, 940 F.2d 722, 732-33 (1st Cir.1991), cert. denied, 504 U.S. 955, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992).

Thomas Vigliatura, an amateur bodybuilder and owner of T Vig's Sports Supplements, ran a drug ring from the T Vig's store and out of his home in Worcester. Arroyo, then a police officer, purchased GHB and GBL for personal use and to provide to friends. GHB (gamma-hydroxybutyric acid) is a regulated drug with limited medical uses that is sold illegally for its euphoric and body-building qualities. GBL (gamma butyrolactone) is an associated drug that converts to GHB on ingestion.

Arroyo also purchased cocaine from Vigliatura and used it with him. In addition, Arroyo at various times possessed both cocaine and ecstasy (an illegal euphoric drug) and used the drugs with various other individuals. In July 2005, both Arroyo and Vigliatura were indicted, with several others, in a multi-count federal indictment; two of the counts named Arroyo.

Count I charged Arroyo, Vigliatura and two other defendants with conspiring to distribute, and to possess with intent to distribute, GHB and GBL in and around Worcester, in Massachusetts, and elsewhere from around summer 2000 to around summer 2004. Count II charged Arroyo, Vigliatura and one of the other count I defendants with conspiring to possess cocaine and ecstasy in Massachusetts and elsewhere during the same time period. Both counts charged violations of 21 U.S.C. § 846 (2006), which criminalizes drug conspiracies.

At trial, the government offered evidence from Vigliatura's former girlfriend as to Vigliatura's sale of GHB and GBL to Arroyo, Arroyo's social use of GHB and GBL and cocaine, and Arroyo's supply of the drugs to others. Additional witnesses told of Arroyo's possession of cocaine or ecstasy or both on various occasions; one witness (a Vigliatura customer and later a distributor of GHB and GBL) had seen Arroyo at Vigliatura's office with a bag of white powder and a scale and testified that Vigliatura had told the witness that Arroyo was there "to measure up some cocaine."

The jury convicted on count I only as to the lesser included offense of conspiracy to possess GHB and GBL; the jury also convicted on count II, which was already limited to possession. The district court, rejecting a defense claim at sentencing that only one conspiracy existed, sentenced Arroyo to nine months in prison on each of the two counts of conviction to be served concurrently, a year of supervised release, and on each count a $1,000 fine and a $25 special assessment—both mandatory.

The guideline sentencing range for the two possession conspiracies taken together, see U.S.S.G. § 3D1.2(b), keyed to cocaine as the most serious drug, id. § 2D2.1, would have been zero to six months (because Arroyo had no prior criminal convictions). Id. ch. 5, pt. A (sentencing table). The district court rejected possible adjustments to the offense level but chose to depart upward from the guideline sentence, justifying the departure on two grounds: first, because Arroyo was a police officer, and second, because the quantity of drugs and other circumstances indicated that Arroyo had intended to share the drugs with others.

On appeal, Arroyo's main challenge is to the decision to impose a non-guideline sentence based in part on Arroyo's occupation as a police officer.¹ The gist of the argument is that it is irrational, thus certainly unreasonable, and a violation of his substantive due process and equal protection rights under the Constitution to give Arroyo a higher sentence based on his occupation. Some judges, Arroyo adds, might well have given a police officer a sentence below the guideline range, citing the tensions of police work.

Arroyo says that his constitutional challenge should be reviewed de novo, while the government says that review should be for plain error since he made no constitutional claim below. It does not matter in this instance. The district judge's determination was not irrational. And, apart from any constitutional constraint or legal infirmity, a non-guideline sentence is tested primarily under a generous abuse of discretion standard, Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007), which the sentence meets.

The guidelines identify various sentencing facts and factors, some of which are encouraged or discouraged bases for adjusting a sentence, e.g., U.S.S.G. §§ 5H1.2, 5H1.7; others may be forbidden, e.g., id. § 5H1.10; still others require adjustments up or down in calculating the guideline range, see, e.g., id. § 3A1.1. Pertinently the guidelines say that education and vocational skills are "not ordinarily relevant" except where a defendant used special skills or abused a position of trust, see id. §§ 3B1.3, 5H1.2.

Here, the district court did not find either a special skills or abuse of a position of trust adjustment appropriate; Arroyo suggests that any other consideration of occupation is irrational. But even without abuse of authority or special skills, the district court plausibly found that in this instance the very bad example set by having a police officer buying and making available illegal drugs enhanced the seriousness of the crime. That judgment is not irrational. Indeed, the judge is expected to consider the history and characteristics of the defendant and the need for the sentence to reflect the seriousness of the offense and promote respect for the law. See 18 U.S.C. § 3553(a) (2006).

The district judge did not adopt an abstract general rule that every police officer who commits a crime gets a higher sentence. Arroyo had in fact worn his uniform for some of the purchases, and some of those who obtained drugs from him socially knew his position and could have deemed his furnishing of the drugs as trivializing the seriousness of the offense— enhancing a risk already present where use is recreational and liable to be brushed off as nothing to worry about.

Nor did "occupation" stand alone in the district court's calculus. The district judge mentioned the quantity of drugs— this was certainly not a case of one-time use or use during a brief period—and also...