U.S. v. Campusano

• Decision Date: 13 February 2009
• Docket Number: No. 07-2442.,No. 07-1931.,07-1931.,07-2442.
• Citation: 556 F.3d 36
• Parties: UNITED STATES of America, Appellee, v. Rodrigo CAMPUSANO, Defendant, Appellant. United States of America, Appellee, v. Jaime Pinillos, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

556 F.3d 36

UNITED STATES of America, Appellee, v. Rodrigo CAMPUSANO, Defendant, Appellant.

United States of America, Appellee, v. Jaime Pinillos, Defendant, Appellant.

No. 07-1931.

No. 07-2442.

United States Court of Appeals, First Circuit.

Heard January 8, 2009.

Decided February 13, 2009.

Johnny Rivera-Gonzalez, by appointment of the court, for appellant Rodrigo Campusano.

Angela G. Lehman, by appointment of the court, for appellant Jaime Pinillos.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Luke Cass, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Before BOUDIN, SILER^* and HOWARD, Circuit Judges.

BOUDIN, Circuit Judge.

Jaime Pinillos and Rodrigo Campusano were tried together in the district court for drug offenses and convicted. The convictions were upheld, United States v. Pinillos-Prieto, 419 F.3d 61 (1st Cir.2005), but both cases were remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Both men have separately appealed from their reinstated sentences and we resolve both appeals in this decision.

Early in 2001, Pinillos met in Colombia with Nelson "Rafa" Rodriguez, who he understood to be a drug dealer; unknown to Pinillos, Rafa was an experienced government informant. After the initial contact, Pinillos called Rafa from Miami, saying that he had a customer who wanted to buy 100 kilograms of cocaine, and could afford the purchase price—approximately $1.4 million, or $13,500 per kilo.

Rafa arranged to meet Pinillos at a bakery in Isla Verde, Puerto Rico, to finalize the sale of the drugs. On July 9, 2001, both men met at the bakery; Rafa was joined by Nataya "Princesa" Posada, a fellow informant posing as the owner of the drugs, and Special Agent Anthony Toro-Zambrana ("Toro") of the Puerto Rican Department of Justice, pretending to be Princesa's bodyguard. Pinillos had brought two companions, one being Campusano.

Pinillos alone approached Rafa, and began negotiating the terms of the exchange. Pinillos informed the group that "his friends" wanted to sample one kilo before going forward with the purchase. Rafa refused, offering instead to sell the group an initial twenty-five kilo package. Negotiations then broke off but resumed later that day between Pinillos, Campusano, Rafa and Toro; eventually, the parties agreed on a complex scheme to make a transfer of cash for the package while protecting both sides.

Subsequently, Pinillos met Rafa and Toro at a parking lot, assuring them that he had seen the money needed to complete the transaction. Pinillos was going to test one to five kilos as a sample before completing the transaction. However, Toro grew nervous, and after Campusano arrived at the parking lot on foot, rather than in a car as the parties had agreed, he called nearby agents who arrested Pinillos and Campusano.

Pinillos, Campusano and Nolgie Rodriguez (the other man who had accompanied them to the bakery meeting) were convicted on two counts—conspiracy to possess with intent to distribute five or more kilograms of cocaine, 21 U.S.C. § 846 (2006) and aiding and abetting each other, in attempting to possess with intent to distribute five or more kilograms of cocaine, id. § 841(a)(1), 18 U.S.C. § 2(a) (2006).

At sentencing, the trial judge found— over defendants' objections—that each defendant was responsible for 100 kilograms of cocaine, triggering an initial offense level of 36. Pinillos and Campusano received two-level enhancements for obstruction of justice under U.S.S.G. § 3C1.1 for perjuring themselves. Both were then sentenced to 235 months on each count, to be served concurrently.

While their appeals were pending, Booker altered the sentencing landscape by enlarging the trial judge's authority to vary from the guidelines and, while upholding the convictions, we remanded for resentencing. A revised PSR was filed and Pinillos sought a downward departure based on mental illness. The trial court denied the defendants' objections to the PSRs and the motion for downward departure, and the judge re-sentenced both defendants on the same terms as before.

In the new appeals from the sentence, both defendants argue that they never intended to buy one hundred kilos and that they lacked the financial capacity to do so. The trial court found that the conspiracy and attempt extended to one hundred kilos and that the defendants had not shown that they lacked the capacity to carry through.¹ Review of these factual findings is for clear error. United States v. Eke, 117 F.3d 19, 22 (1st Cir.1997).

Based on Rafa's testimony as to the telephone call, the district judge could reasonably find that the initial bargain was for one hundred kilos; and, although the situation was perhaps ambiguous, it was surely not clear error to conclude that the later arrangements for smaller amounts were merely part of the intended delivery. Rafa was asked on cross-examination whether the negotiations were really about one, rather than one hundred kilos of cocaine. He responded:

No, the negotiation[s] were about 100 kilos of cocaine.... You're talking about when we were talking about one kilo or five kilos or 25 kilos. It's a way to fractionalize the deal because nobody is going to bring down a hundred-kilo deal all at once. You have to do it first a kilo at a time or five or 25. And really, when they're talking about a kilo they're talking about .... [a] sample of the cocaine to see what the quality of the merchandise was like....

Thus the court was not obliged to agree that Pinillos' initial agreement to purchase one hundred kilos was "mere puffery" nor that the later discussions limited the scope of the proposed transaction. It is commonplace that "where there is more than one plausible view of the circumstances, the sentencing court's choice among supportable alternatives cannot be clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) (citations omitted).

As for Campusano, there is no direct proof that Pinillos and he discussed the one hundred kilo figure; but there is some indication that Campusano understood that a large transaction was contemplated and that 25 kilos was to be the initial delivery. The latter would likely be enough: "[a] defendant who conspires to transport for distribution a large quantity of drugs, but happens not to know the precise amount, pretty much takes his chances that the amount actually involved will be quite large." United States v. De La Cruz, 996 F.2d 1307, 1314 (1st Cir. 1993).

In all events, Campusano does not claim on appeal that he was unfamiliar with the one hundred kilo figure. Instead, his argument, which Pinillos also makes, is that there is no evidence that they had the resources to finance a 100 kilo transaction. We have reviewed the testimony and presentence report with some care and are left uncertain how much Campusano was shown to have known; but we are not disposed to overturn a sentence on a ground raised neither at sentencing or on appeal.

The guidelines do allow the defense to show that whatever their...