U.S. v. Escobar-Figueroa, 04-1258.

• Decision Date: 07 July 2006
• Docket Number: No. 04-1258.,04-1258.
• Citation: 454 F.3d 40
• Parties: UNITED STATES, Appellee, v. Carlos M. ESCOBAR-FIGUEROA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

454 F.3d 40

UNITED STATES, Appellee, v. Carlos M. ESCOBAR-FIGUEROA, Defendant, Appellant.

No. 04-1258.

United States Court of Appeals, First Circuit.

Heard January 11, 2006.

Decided July 7, 2006.

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Rafael Anglada-López for appellant.

Judith Vargas, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa and Thomas F. Klumper, Assistant United States Attorneys, were on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Defendant-appellant Carlos M. Escobar-Figueroa (hereinafter "Escobar") appeals from his conviction and sentence in the United States District Court for the District of Puerto Rico on a charge of conspiracy to possess with intent to distribute cocaine, cocaine base ("crack"), and heroin. He raises four issues on appeal: (1) whether the evidence was sufficient to support the jury's convicting him as a participant in a single rather than multiple drug conspiracies; (2) whether the district court erred, when sentencing, in not departing downward on the ground Escobar was a minor participant in the conspiracy, and in adding a two-level enhancement for possession of a firearm; (3) whether the district court erred in sentencing him without finding the specific drug amounts for which he was personally responsible; and (4) whether his case should be remanded to the district court for resentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm Escobar's conviction and sentence.

I. Background and Facts

On October 4, 2002, a grand jury indicted Escobar and forty-two others. Escobar and his co-defendants were charged in Count One with a conspiracy to possess with the intent to distribute and to distribute five or more kilograms of cocaine, fifty or more grams of crack, and/or one or more kilograms of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Escobar pled not guilty, and, on August 5, 2003, a jury trial commenced involving, besides Escobar, five co-defendants, all or most of the others having pled guilty. Trial lasted thirty-one days and ended in findings of guilty as to the defendants on September 29, 2003. Responding to questions in a special verdict form provided by the court, the jury confirmed that the conspiracy as charged in Count One distributed and/or intended to distribute cocaine in the quantity of five (5) kilograms or more, heroin in the quantity of one (1) kilogram or more, and crack in the quantity of fifty (50) grams or more. The court denied Escobar's motion for judgment of acquittal. Following his sentence on January 23, 2004, Escobar filed this timely appeal on January 28 of that year.

A. The Evidence

The evidence at trial showed that from at least 1993 to approximately 2002, Jose Anibal Davila-Lopez, a/k/a Jose Cabezon ("Cabezon"), was the leader and organizer of a drug trafficking organization know as Las Abispas. In the Guayama and Salinas areas of Puerto Rico, Cabezon rented a number of drug points to Las Abispas members, all of whom answered to him. Escobar was one such member. Different members sold many different kinds of drugs, including cocaine, crack, heroin, and marijuana. Las Abispas sellers received drugs from co-defendants Heriberto Ofray-Campos ("Ofray"), Wilson Mendoza-Vasquez ("Mendoza"), and Modesto Zaragoza Lasa ("Zaragoza Lasa"), as well as from cooperating witness Abdul Mendoza-Lebron ("Mendoza-Lebron").

Among the drug points operated by Las Abispas were two at La Puenta De Jobos Ward in Guayama, one in the Santa Ana quarter, managed by Dennys Cruz-Pereira, and one in the Miramar quarter, run by Escobar and his brother. The Miramar drug point sold primarily crack. Escobar and his brother would buy cocaine and make it into crack or buy crack from Las Abispas's sources, including from Ofray and Mendoza, and cooperating witness Mendoza-Lebron.

Escobar played an active role in the operation of the Miramar drug point, buying and preparing drugs for the point, pricing the drugs, and maintaining the proceeds from the point. Mendoza-Lebron testified that Escobar stashed drugs and weapons for him. He also testified to selling an eighth of a kilogram of crack per week to Escobar over a period which, from Mendoza-Lebron's other testimony, could be inferred to have lasted from 1994/1995 to 1999. Mendoza-Lebron testified that Escobar would sometimes sell crack to co-defendant Cruz-Pereira. The government put in evidence a tape-recorded conversation between Escobar and a government informant, Angel Lugo-Villodas, in which Escobar said he was waiting for the cocaine to make the crack and bragged to the informant that he had better crack than his brother and Cruz-Pereira and Mendoza. Lugo-Villodas subsequently bought vials of crack from Escobar.

There was also testimony from several Puerto Rico police officers who had been involved in undercover purchases of drugs from Escobar and/or observed several drug transactions being conducted in front of Escobar's residence. On September 29, 1998, undercover officer Edwin Rosas Ferrer bought several small ziplock bags of cocaine from Escobar at the drug point. On or about August 14, 2002, officer Carlos De Jesus conducted surveillance at the drug point. He observed several drug transactions taking place in front of Escobar's residence. The Puerto Rico Police Department thereafter obtained a warrant to search the residence. Drugs and $1,093 were seized from Escobar's residence. After waiving his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Escobar admitted the drugs belonged to him and the money came from drug proceeds.

B. Escobar's Sentencing

Following conviction, and prior to sentencing, Escobar received his presentence investigation report ("PSI" or "Report") on December 10, 2003. In describing the drug conspiracy for which Escobar was convicted, the Report on the cover page termed it as being a conspiracy to possess and distribute "not less than one hundred and fifty (150) kilograms of cocaine," whereas, in fact, the conspiracy charged in the indictment and later confirmed in the jury's special verdict finding was one to possess and distribute "five or more kilograms of cocaine, fifty grams or more of cocaine base, and/or one kilogram or more of heroin." The PSI correctly described the charged offense in its discussion of the charge and conviction but used the 150 kilograms of cocaine standard in computing a proposed guidelines sentence. In determining that sentence, the PSI calculated: 1) a base offense level of thirty-eight (38) under USSG § 2D1.1(c) (the PSI expressly derived this offense level from its unexplained supposition that the offense involved not less than one hundred fifty (150) kilograms of cocaine); 2) a two-level enhancement for possession of firearms under USSG § 2D1.1(b)(1); and 3) a two-level enhancement for managerial or supervisory role in the offense under USSG § 3B1.1(c). These figures added up to a total offense level of forty-two (42). The total offense level, along with a criminal history category of I, resulted in a proposed guideline sentencing range of 360 months' imprisonment to life.¹

At Escobar's sentencing hearing, held on January 23, 2004, the district court began by asking, "Counsel, have you read the pre-sentence report?" to which counsel for Escobar replied, "Yes, Your Honor." The court then addressed defendant, asking, "Mr. Escobar, are you aware of the contents of the pre-sentence report?" Defendant replied, "Yes," and also acknowledged his attorney had translated to him the information contained in the report.

The court asked next, "Is there anything that needs to be corrected at the time as to the information in the report?" Escobar's counsel at first replied, "Yes, Your Honor, we did file an objection as to some information —."² To this the court reiterated, "Any corrections, prior to getting to the objections, any corrections that need—." Escobar's counsel said, "No, no corrections at this time, Your Honor," and the court then asked Escobar himself, "Is there anything in the report you wish me to correct," to which Escobar responded, "No." Like questions were put by the court to government counsel, similarly evoking negative answers.

The court then turned to Escobar's counsel, saying, "Counsel, you do have an objection to the pre-sentence calculations?" Counsel replied, "Right, that is correct. . . . Our objection is based on the fact that the pre-sentence report indicates that my client was an organizer, or leader, or manager or supervisor." To this the court replied, "Objection is sustained, granted. I will not follow the recommendation of the probation officer for a two-level enhancement." Escobar's counsel then responded: "Very well, Your Honor. That would be all as to the objections."

The court then enquired, "Is there anything you [counsel] would like to state to the court on behalf of your client before I pronounce sentence?"

Escobar's counsel responded with a plea for a sentence at "the lower end of the guidelines," citing Escobar's youth, his father's absence, his residence in a very poor area of Guayama, and his lack of early guidance. Counsel ended by saying, "That's the only request that we make, Your Honor, that he be sentenced as to the lower end of the guidelines applicable in this case."

The court then heard from Escobar, who asked for forgiveness from his wife and mother for having failed them.

Thereafter, government counsel argued against any variation from the findings in the pre-sentence report. She pointed out there was evidence Escobar was an owner of a drug point, making him a manager or a leader of one of the points within the conspiracy. The government urged that Escobar "be sentenced according to the findings in the pre-sentence report . . . at a...