U.S. v. Ortiz-Santiago

• Decision Date: 06 March 2000
• Docket Number: ORTIZ-SANTIAG,No. 99-1053,APPELLANT,DEFENDAN,99-1053
• Citation: 211 F.3d 146
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. ANGEL Heard
• Court: U.S. Court of Appeals — First Circuit

Page 146

211 F.3d 146 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. ANGEL ORTIZ-SANTIAGO, DEFENDANT, APPELLANT.

No. 99-1053

United States Court of Appeals For the First Circuit

Heard March 6, 2000

Decided May 2, 2000

Carlos Rodriguez Garcia for appellant.

Nelson Perez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Selya and Lipez, Circuit Judges,

Selya, Circuit Judge.

Much to his later chagrin, defendant-appellant Angel Ortiz-Santiago (Ortiz) joined a massive conspiracy that imported drugs into Puerto Rico and then distributed them. Ortiz participated in a successful November 1996 smuggle and an unsuccessful December 1996 smuggle that came to naught when federal authorities seized the drugs. On the first occasion he helped to off-load the contraband and on the second he served as a lookout.

In due course, a federal grand jury returned a twenty-one count indictment against more than four dozen defendants. Three counts targeted the appellant: an omnibus count that charged the master conspiracy and specific transaction counts corresponding to the two smuggles in which he had participated. Attorneys for the appellant and the government proceeded to negotiate a non-binding plea agreement (the Agreement) under the aegis of Fed. R. Crim. P. 11(e)(1)(B). The Agreement provided in substance that the appellant would plead guilty to the conspiracy count, and that the government would dismiss the other charges against him. The Agreement further contemplated that the government would (a) seek to hold the appellant responsible for only 50-150 kilograms of cocaine, (b) recommend an optimum three-level credit for acceptance of responsibility, see USSG §3E1.1, and (c) recommend a sentence at the nadir of the applicable guideline sentencing range.

At the disposition hearing, the appellant requested three other dispensations: a downward departure, a role-in-the-offense adjustment, and recourse to the so-called "safety valve" provision. The court rebuffed all three requests. It then premised the appellant's base offense level on the parties' drug quantity stipulation, reduced the offense level by applying the three-level adjustment for acceptance of responsibility, dismissed the "specific transaction" counts, computed the guideline sentencing range at 135-168 months, and imposed a 135-month incarcerative sentence. The sentence exceeded the ten-year mandatory minimum sentence applicable to the offense of conviction. See 21 U.S.C. § 841(b). This appeal ensued.

The appellant launches a multi-pronged attack on his conviction and sentence. We arrange his contentions in groups and discuss them sequentially.

I.

The appellant asseverates that the district court erred in failing to grant his request for a downward departure. He sought that largesse under the Sentencing Guidelines' general departure provision, which permits a court to sentence outside the applicable guideline range if it discerns significant atypicality due to an aggravating or mitigating circumstance not adequately taken into account by the Sentencing Commission. See USSG §5K2.0; see also 18 U.S.C. § 3553(b). The operation of this provision depends, to a large extent, on the informed discretion of the sentencing judge. See Koon v. United States, 518 U.S. 81, 98 (1996); United States v. Snyder, 136 F.3d 65, 68 (1st Cir. 1998).

Here, the appellant predicated his departure request on his responsibility to care for his ailing father. The record makes manifest that the trial court knew that it could have departed had it found that the appellant's family situation warranted such a benefice. The court, however, considered and rejected the claimed mitigation.

We cannot second-guess this implicit conclusion that the appellant's familial responsibilities did not sufficiently distinguish his case from the mine-run. The court of appeals has no authority to review a district court's discretionary decision not to depart, whether upward or downward, unless the putative appellant can show that the district court acted in the mistaken belief that it lacked the ability to depart. See United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994); United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991). The appellant has made no such showing. His case thus fits snugly within the general rule, not within the long-odds exception to it. Consequently, we lack jurisdiction to entertain his plaint. See United States v. Rivera-Maldonado, 194 F.3d 224, 236 (1st Cir. 1999) (refusing to review a district court's denial of a section 5K2.0 departure request based on family hardship).

II.

The appellant next assails the lower court for refusing to make a downward role-in-the-offense adjustment. In mounting this attack, he points out that, whereas the drug-smuggling ring cut quite a wide swath, his participation was limited to infrequent, relatively low-level tasks. Because he acted once as a stevedore and once as a lookout, nothing more, he claims an entitlement to a reduced offense level. See USSG §3B1.2 (describing possible offense-level adjustments for defendants who occupy "minor" or "minimal" roles).

Role-in-the-offense determinations are notoriously fact-sensitive, and this case is no exception. The party seeking the adjustment bears the burden of persuasion. See United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990). Moreover, appellate review is deferential: the district court's resolution of a dispute over a defendant's role is reviewed only for clear error. See id. at 333. "Thus, absent a mistake of law, battles over a defendant's status... will almost always be won or lost in the district court." United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).

These principles control here. As the phrase implies, a minimal participant is one who "plays a minimal role in concerted activity." USSG §3B1.2, comment. (n.1). The district court found that this description did not fit the appellant. In view of the appellant's on-the-scene involvement in two large-scale smuggles, that finding is not open to serious challenge. See, e.g., United States v. Dimarzo, 80 F.3d 656, 662 (1st Cir. 1996); United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994); see also United States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir. 1996) (affirming decision not to treat lookout in large marijuana processing conspiracy as "minimal" participant).

The second wave of the appellant's attack presents a closer call. Although involved in two smuggles, the appellant performed only menial tasks and his argument for classification as a minor participant is not without force. The standard of review looms large, however, and in the final analysis we uphold the district court's contrary determination.

A minor participant "means any participant who is less culpable than most other participants, but whose role could not be described as minimal." USSG §3B1.2, comment. (n.3). The defendant has the burden of proving that he is both less culpable than most others involved in the offense of conviction and less culpable than most other miscreants convicted of comparable crimes. See United States v. Isienyi, 207 F.3d 390, 392-392 (7th Cir. 2000) Ocasio, 914 F.2d at 333; see also USSG §3B1.2, comment. (n.3 & backg'd.). The sentencing court supportably found that the appellant had unloaded a sizable drug shipment and had conducted surveillance as a member of the conspiracy, and that this participation, while peripheral in a sense, was enough to warrant categorizing him as a player rather than as a dabbler.

In the sentencing court's view, this conclusion was fortified by the fact that the government had not charged the appellant with anything near the full drug quantity attributable to the conspiracy.¹ A defendant cannot insist on having it both ways: if he receives a reduced offense level because the government agrees to understate the quantity of drugs with which he has been involved, the sentencing court, if it sees fit, may keep the scales of justice balanced by denying him the added benefit of a mitigating role adjustment. See Isienyi, 207 F.3d at 392-393; McCarthy, 97 F.3d at 1574; see also USSG §3B1.2, comment. (n.4). Given this background, we cannot say that the district court clearly erred in not finding that the appellant was entitled to a downward role-in-the-offense adjustment.² See Isienyi, 207 F.3d at 392-392; Rivera-Maldonado, 194 F.3d at 234; Graciani, 61 F.3d at 75; Ocasio, 914 F.2d at 333.

III.

The appellant's third argument is a variation on the foregoing themes. Citing United States v. Goodwin, 457 U.S. 368, 380-81 (1982), and United States v. Marrapese, 826 F.2d 145, 147 (1st Cir. 1987), he theorizes that the prosecutors were disappointed that he could give them no useful information about the activities of the ring; that this disappointment led them to become vindictive; and that this vindictiveness prompted them to misrepresent key facts and oppose any leniency (such as a downward departure or role-in-the-offense adjustment).

This suppositious chain of inferences need not detain us. Absent some evidentiary predicate, direct or circumstantial - and we discern none in the appellant's wholly conclusory presentation - merely chanting the mantra of prosecutorial vindictiveness gets a defendant nowhere. See United States v. Lanoue, 137 F.3d 656, 665 (1st Cir. 1998); United States v. Stokes, 124 F.3d 39, 46 (1st Cir. 1997); United States v. Sutherland, 929 F.2d 765, 772 n.2 (1st Cir. 1991).

To be sure, the appellant points to one hard fact: he notes that certain other coconspirators pled guilty and then received somewhat shorter sentences than he did. But this circumstance does not advance his cause. Disparity in sentencing amongst coconspirators, without more, is not enough to justify a downward departure. See United States...