U.S. v. Ventura

• Decision Date: 02 December 2003
• Docket Number: No. 01-2448.,01-2448.
• Parties: UNITED STATES of America, Appellee, v. Rafael VENTURA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

353 F.3d 84

UNITED STATES of America, Appellee, v. Rafael VENTURA, Defendant, Appellant.

No. 01-2448.

United States Court of Appeals, First Circuit.

Heard November 4, 2003.

Decided December 2, 2003.

COPYRIGHT MATERIAL OMITTED

Robert Sugar, by appointment of the court, for appellant.

Peter K. Levitt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for the United States.

Before SELYA, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Rafael Ventura seeks to convince us that the district court committed a myriad of errors. His asseverational array requires us to consider, among other things, questions of first impression in this circuit regarding the interpretation and operation of the career offender guideline.¹ After close scrutiny, we find the appellant's arguments unpersuasive. Accordingly, we affirm the sentence imposed below.

I. Background

A federal grand jury indicted the appellant and six other persons — Puggi Vasquez, Becky Alvarado, William Diaz, Leonardo Garcia, Wanda Justiniano, and Ramon Oliveras — on a motley of drug-trafficking charges. The umbrella count of the indictment alleged that from August 29 through October 28, 1998, in and around Worcester, Massachusetts, the seven defendants conspired to possess with intent to distribute sundry controlled substances, including at least 50 grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846; see also id. § 841(b)(1)(A)(iii) (establishing a ten-year mandatory minimum sentence for that drug quantity). The indictment also charged the appellant with eight substantive distribution counts, each occurring on a designated date.

The appellant initially maintained his innocence. On May 18, 2000, he reversed course and pleaded guilty to the nine aforementioned counts. He changed his plea pursuant to a written plea agreement (the Agreement), which, among other things, committed both parties to the proposition that the appellant was a career offender. See United States Sentencing Guidelines (USSG) § 4B1.1.

On September 26, 2001, the district court convened the disposition hearing. Arguments ensued concerning drug quantity, role in the offense, and the effect of the career offender designation. The court considered, inter alia, the presentence investigation report (PSI Report) and reports of the Drug Enforcement Administration (DEA) describing proffers attributed to certain coconspirators, namely Vasquez, Garcia, and Justiniano. The appellant did not offer any evidence and did not request an evidentiary hearing.

The district court resolved the drug-quantity and role-in-the-offense issues against the appellant. It proceeded to calculate a total offense level by (i) determining that the base offense level was 36, see USSG § 2D1.1(c)(2); (ii) elevating it by four levels because the appellant had functioned as an organizer or leader of a conspiracy that involved five or more participants, see id. § 3B1.1(a); and (iii) reducing it by three levels in consideration of the appellant's full and timely acceptance of responsibility, see id. § 3E1.1. Moving to the other side of the grid, the court noted the appellant's two prior felony convictions and ratified the parties' stipulation that he was a career offender. This decision led the court to eschew the appellant's wonted criminal history category (CHC) — category II — in favor of CHC VI. See id. § 4B1.1. That model yielded a guideline sentencing range (GSR) of 360 months to life imprisonment.

After granting the government's motion for a downward departure premised on the appellant's substantial assistance, see 18 U.S.C. § 3553(e); USSG § 5K1.1, the court imposed a 180-month incarcerative sentence, to be followed by five years of supervised release. This appeal ensued.

II. Discussion

In this venue, the appellant raises essentially the same points that he unsuccessfully raised below (although his career offender argument is more nuanced). We address those contentions seriatim.

A. Drug Quantity

Drug quantity is an important factor in establishing a defendant's base offense level. See United States v. Sepulveda, 15 F.3d 1161, 1196-97 (1st Cir.1993) ("In drug-trafficking cases under the sentencing guidelines, sentences are largely quantity-driven."). The appellant asseverates that the district court erred in assaying the amount of drugs for which he should be held accountable. We do not agree.

In determining drug quantity, the sentencing court's task is to make a reasonable approximation of the weight of the controlled substances for which a particular defendant should be held responsible. USSG § 2D1.1, cmt. (n.12). The court of appeals reviews the sentencing court's factual findings anent drug quantity only for clear error. United States v. Huddleston, 194 F.3d 214, 223 (1st Cir. 1999). In applying that standard to a drug-quantity determination made after a plea of guilty, we glean the facts from the change-of-plea colloquy, the undisputed portions of the PSI Report, and the transcript of the disposition hearing (including any proffers accepted by the court). United States v. Brewster, 127 F.3d 22, 24 (1st Cir.1997).

For sentencing purposes, quantities of diverse drugs are translated into marijuana equivalents. USSG § 2D1.1. The district court held the appellant responsible for a total of 244.53 grams of heroin, 871.9 grams of crack cocaine, and 827.8 grams of powdered cocaine. Using the appropriate conversion formula, this translated into the equivalent of 17,848 kilograms of marijuana. The appellant asserts that this total vastly overstates the true facts. The record does not bear out the appellant's assertion.

By means of his guilty plea, the appellant admitted to specific transactions involving 44.53 grams of heroin, 71.9 grams of cocaine base (crack cocaine), and 27.8 grams of cocaine powder — representing the sum total of drugs purveyed in six surveilled transactions. The appellant concedes that these amounts were properly attributed to him. He trains his fire, however, on the district court's finding that he was responsible for incremental drug quantities, including 200 grams of heroin, 800 grams of crack cocaine, and 800 grams of powdered cocaine. The district court premised these incremental amounts largely on the proffers of the appellant's cohorts.

In our view, those proffers comprise a satisfactory basis for the attribution of the added amounts. One coconspirator (Vasquez) placed the appellant at the head of the drug distribution network that operated out of 21½ Washburn Street and used 160 Lovell Street as a stash house. Vasquez stated that the appellant took delivery of 200-250 grams of powdered cocaine twice weekly and 50-100 grams of heroin weekly. He also confirmed that the ring converted approximately half of the powdered cocaine into crack. Vasquez provided considerable detail, recounting his observations of numerous deliveries made by the appellant's principal supplier and identifying some of the appellant's regular customers. Two other codefendants, Garcia and Justiniano, had worked for the appellant. They described their duties and alluded to the significant amounts of drugs involved. Moreover, Justiniano named another of the appellant's suppliers. Last — but far from least — on October 29, 1998, the authorities confiscated 54.7 grams of heroin, 35.3 grams of cocaine base, and 6.73 grams of cocaine powder following a warrant-backed search of the stash house. The district court drew on this historical evidence in making its aggregate drug-quantity determination.

We discern no error. Findings as to drug quantity need not be precise to the point of pedantry. Such findings may be based on approximations drawn from historical evidence as long as those approximations represent reasoned estimates of drug quantity. See Huddleston, 194 F.3d at 224; United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir.1998); United States v. Morillo, 8 F.3d 864, 871 (1st Cir.1993). The estimates need not be proven beyond a reasonable doubt, but, rather, may stand if they are supported by a fair preponderance of the evidence. See United States v. Nieves, 322 F.3d 51, 54 (1st Cir.2003).

In this instance, the proffers of the three coconspirators were consistent and mutually reinforcing. Their statements were bolstered by the contraband seized during the search of the stash house. Under the circumstances of this case — in which the appellant offered no contrary proof and eschewed any request for an evidentiary hearing on the issue of drug weight — we think that the lower court acted within its proper province in finding the proffer statements reliable. See, e.g., Rodriguez, 162 F.3d at 150; United States v. Whiting, 28 F.3d 1296, 1305 (1st Cir.1994); see also United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992) (explaining that "the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence").

The appellant's other quantity-related challenges do not merit discussion. In the last analysis, the district court's drug-quantity determination was amply supported by the proffers and, in the bargain, provided a sizable margin for error.² Thus, the conclusion is irresistible that the district court did not clearly err in calculating the total drug weight attributable to the appellant.

B. Role in the Offense

The appellant next challenges the sentencing court's determination that he was an organizer or leader of an extensive criminal activity — a determination that resulted in a four-level upward adjustment. This challenge lacks force.

The sentencing guidelines provide for a four-level enhancement for one who functions as an organizer or leader of an enterprise that either involves five or more persons or is otherwise extensive. USSG § 3B1.1(a). Although the guidelines do not explicitly define "organizer" o...