U.S. v. Rodriguez

• Decision Date: 04 February 2005
• Docket Number: No. 04-12676. Non-Argument Calendar.,04-12676. Non-Argument Calendar.
• Citation: 398 F.3d 1291
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vladimir RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1291

398 F.3d 1291

UNITED STATES of America, Plaintiff-Appellee, v. Vladimir RODRIGUEZ, Defendant-Appellant.

No. 04-12676. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 4, 2005.

Lisa Walsh, Miami, FL, for Defendant-Appellant.

Karin B. Hoppmann, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, MARCUS and FAY, Circuit Judges.

CARNES, Circuit Judge:

Vladimir Rodriguez appeals his 109-month sentences for conspiracy to possess with intent to distribute 3, 4-methylenedioxymethamphetamine ("MDMA"), also known as ecstasy, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846, and possession with intent to distribute MDMA, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(b)(1)(C). Rodriguez argues that the district court's calculation of the amount of MDMA attributable to him in determining his base offense level, pursuant to the United States Sentencing Guidelines ("guidelines"), was not supported by the evidence.

Rodriguez also contends for the first time on appeal that the district court violated his Fifth and Sixth Amendment rights by determining his offense level based on facts that were neither charged in his indictment nor proven to a jury. That contention is based on Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which was extended to the federal sentencing guidelines recently in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005).

I.

A federal grand jury returned a superseding indictment charging Rodriguez with the drug conspiracy and possession crimes we have described. During his trial on the charges, the government introduced evidence of a conspiracy that involved Alex Rodriguez, appellant's brother, supplying MDMA tablets to a number of people in Tampa, Florida, including Jorge Salgado Tergers ("Salgado"), for distribution in Tampa and in other locations. Rodriguez himself was arrested on September 5, 2002, after he transported 2,000 tablets of MDMA from Miami to Tampa as part of a deal between Salgado and a buyer who was working for the government as a confidential informant.

Co-conspirator Salgado, as part of his cooperation with the government, testified during the trial of this case to the following facts. After Salgado traveled from Cuba to the United States in April 2000, he began selling cocaine. When Salgado's customers requested MDMA tablets, Salgado asked his friend, Ovidio Gonzalez, to introduce him to Omar Oliva and Alex Rodriguez, two men in Miami who were supplying MDMA. Salgado and Gonzalez then began purchasing MDMA tablets from Oliva and Alex Rodriguez, after which they resold the tablets in Tampa. In conducting these sales, Salgado and Gonzalez either took turns traveling to Miami to pick up the tablets or they employed other people, including Rafael Ruz, to transport them.

Salgado further testified that in 2001 he was arrested for violating the terms of probation that had been imposed by a state court as a result of his previous convictions for dealing MDMA. Thereafter, in October 2001, Salgado was released from custody and traveled to Miami to meet with some MDMA suppliers. Salgado was introduced to Vladimir Rodriguez, the appellant, who had recently arrived in the United States from Cuba. Salgado described how a few months later Rodriguez joined this conspiracy and began transporting MDMA tablets to Tampa for Salgado and Gonzalez. Salgado later learned that Rodriguez was distributing these drugs inequitably, bringing "like five [thousand tablets] for [Gonzalez]" to sell but only "three [thousand]" for Salgado.

When asked how many times, between Salgado's release from custody in October 2001 and Salgado's arrest in this case on September 5, 2002, Rodriguez had transported MDMA tablets to Tampa for him, Salgado answered: "I couldn't tell you exactly, but it would have been 10, 12, 13 times during that three-month period." When asked how many tablets, on average, were involved in each delivery, he answered:

There were three or four thousand — three or four thousand, five thousand, at least to me, for each trip. It could have been the 10 or 12 times. It could have been 25, 30,000 pills, 30, 35,000 pills; I don't know.

In addition, Salgado testified that, when his girlfriend was arrested for possessing MDMA tablets, he had agreed to work as a confidential informant for Drug Enforcement Administration Special Agent Cesar Diaz. But Salgado continued to deal MDMA tablets illegally while he was working as a CI, and he ultimately was caught dealing drugs to two other people who turned out to be CIs themselves.

Agent Diaz also testified during Rodriguez's trial. He described how, when he discovered that Salgado had not ceased his illegal drug activities, their relationship had "sour[ed]," and he began building a criminal case against Salgado. Agent Diaz arranged three controlled buys, using another CI to act as a purchaser of Salgado's MDMA tablets on August 2, 8, and 23, 2002, for quantities of 50, 500, and 500 MDMA tablets respectively. Agent Diaz set up a "buy-bust" for September 5, 2002, during which he planned to arrest Salgado.

During his testimony Agent Diaz described how, during that "buy-bust," Salgado entered the home of another CI, sold 2,000 tablets, and was arrested. Salgado immediately agreed to cooperate with Agent Diaz and told him that the man in the vehicle outside the home had transported the tablets. After discovering Rodriguez in the vehicle, law enforcement officials arrested him and recovered from inside the vehicle, among other items: a calculator on Rodriguez's lap; one notebook without identification that contained entries relating to drug sales; and another notebook bearing Rodriguez's name and containing phone numbers, including Oliva's number. On cross-examination, Agent Diaz conceded that it was "partially true" that Salgado's credibility "was shot" with him.

In addition, co-conspirator Ruz testified during this trial. Ruz stated that he had started selling MDMA tablets in Tampa for Salgado in February or March 2001. Although Ruz had begun selling small amounts of MDMA, he "moved up from a hundred pills a week to like 500," and he "kept getting more and more as the weeks went on," up until Salgado began sending him to Miami to transport the tablets back to Tampa. Ruz met Rodriguez during his third trip to Miami. After that trip, Salgado asked Ruz to stop transporting MDMA tablets and to concentrate on sales. Salgado then had Rodriguez and others transport the tablets. Ruz stated that he personally knew that Rodriguez had delivered MDMA tablets to Tampa "maybe four times; three, four times," and that he had met with Rodriguez in a Tampa coffee shop as late as August or September 2002.

Rodriguez took the stand and testified on his own behalf, insisting that he had no involvement in the drug conspiracy. Rodriguez said that he had been waiting in the vehicle in which he was arrested on September 5, 2002 because he wanted Salgado's help in bringing Rodriguez's family to the United States.

The jury convicted Rodriguez on both counts. It was not asked to return any special findings on drug amount.

II.

Prior to sentencing, a probation officer prepared a presentence investigation report ("PSR"), which contained, among other information, a description of the offense conduct, Rodriguez's personal characteristics, and the fact that he had no known prior convictions. The PSR recommended that Rodriguez's base offense level be set at 32, pursuant to U.S.S.G. § 2D1.1(c)(4) (the guideline covering from 1,000 to 3,000 kilograms of marijuana), because Rodriguez's drug offense involved 30,000 tablets of MDMA, the equivalent of 2,205 kilograms of marijuana.¹ It also recommended that the base offense level be adjusted upward two levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of justice, because Rodriguez had falsely testified under oath during his trial that he had no involvement in the crimes for which he was convicted. With a total offense level of 34 and a criminal history category of I, Rodriguez's resulting guideline range would be 151 to 188 months' imprisonment.

Rodriguez filed written objections to the PSR's calculation of the drug amount, contending among other things, that the court should not hold him accountable for 30,000 MDMA tablets because that quantity was supported only by Salgado's trial testimony, which was inconsistent, uncertain vague, and therefore unreliable. Rodriguez argued that Salgado's testimony lacked "sufficient reliability and credibility" because Salgado previously had deceived law enforcement officers with whom he was working as a CI, and the results of a polygraph examination that Rodriguez had taken contradicted Salgado's trial testimony.² In his objections Rodriguez contended that he should be held accountable for only the 2,000 tablets that he had delivered to Salgado on September 5, 2002.

At the sentence hearing, Rodriguez pressed his objection to the PSR's calculation of drug quantity. Rodriguez argued that: (1) the results of his polygraph examination "impeached" Salgado's testimony on drug quantity;³ (2) Salgado's testimony that Rodriguez had made 10 to 12 trips to Tampa and was responsible for 30,000 tablets was vague and uncorroborated; (3) Salgado was a convicted felon who had deceived the government initially while working as a CI and was not a credible witness; and (4) Ruz had testified that he only knew Rodriguez was in Tampa on three or four occasions.

The government responded that Salgado had no reason to lie about Rodriguez's relevant conduct because Salgado himself had been held accountable for the same quantity of drugs. The government also pointed out that Rodriguez himself had lied, because his sentencing arguments contradicted his own trial testimony during which he insisted that he had no involvement at all in the drug...