USCA1 Opinion
February 22, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2191
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
AGUSTIN DE LEON RUIZ,
Defendant, Appellant.
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No. 93-2192
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ORLANDO RODRIGUEZ RODRIGUEZ,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court, issued on February 1, 1995, is
amended as follows:
On page 7, line 13: change "two-point" to "two-level".
On page 8, line 15: change "two-point" to "two-level".
On page 9, line 4: change "two-point" to "two-level".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2191
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
AGUSTIN DE LEON RUIZ,
Defendant, Appellant.
____________________
No. 93-2192
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ORLANDO RODRIGUEZ RODRIGUEZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boyle,* Senior District Judge.
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*Of the District of Rhode Island, sitting by designation.
Carlos R. Noriega for appellant Agustin De Leon Ruiz.
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Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom
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Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant
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United States Attorney, were on brief for the United States.
Luis F. Abreu Elias on brief for appellant Orlando Rodriguez
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Rodriguez.
Jose A. Quiles Espinosa, Senior Litigation Counsel, Guillermo
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Gil, United States Attorney, and Antonio R. Bazan, Assistant United
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States Attorney, on brief for the United States.
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February 1, 1995
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BOUDIN, Circuit Judge. On August 26, 1992, appellants
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Agustin De Leon Ruiz and Orlando Rodriguez Rodriguez, along
with three other individuals, were charged in a four-count
indictment concerning a May 1992 drug transaction.
Appellants were both indicted for possessing two kilograms of
cocaine with intent to distribute (count II), 21 U.S.C.
841(a)(1), and aiding and abetting the use of firearms
during the commission of a drug offense (count III), 18
U.S.C. 924(c)(1). De Leon was indicted for using a
communication facility to facilitate the commission of a
crime (count I), 21 U.S.C. 843(b), while Rodriguez was
indicted for possessing firearms with obliterated serial
numbers (count IV), 18 U.S.C. 922(k).
After a five-day jury trial, De Leon was convicted on
the communication and drug charges (counts I and II) but
acquitted on the firearms charge (count III). Rodriguez was
convicted on the drug charge (count II) but acquitted on both
of the firearms counts with which he was charged (counts III
and IV). Following a sentencing hearing, De Leon and
Rodriguez were sentenced to 78 and 87 months, respectively.
On appeal, Rodriguez challenges both his conviction and
sentence, while De Leon challenges only his sentence.
1. The evidence adduced at trial, taken in the light
most favorable to the verdict, United States v. Torres-
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Maldonado, 14 F.3d 95, 100 (1st Cir.), cert. denied, 115 S.
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Ct. 193 (1994), is as follows. On May 5, 1992, Pablo Rivera,
an undercover DEA agent, set up a drug buy through a
confidential informant for two kilograms of cocaine. The
informant spoke with De Leon on the telephone on five
different occasions that day to negotiate the transaction;
these conversations were all recorded and the recordings
played at trial. In those conversations the price for each
kilogram was set at $18,000. Through De Leon's drug
connections--two individuals named Lebron and De Jesus--
Rodriguez was contacted to supply the cocaine. Lebron and De
Jesus both testified for the government at trial pursuant to
a plea agreement. According to their testimony, the drug buy
was scheduled to take place in the parking lot of a local
supermarket on the evening of May 5, 1992. On that day,
around 5:00 p.m., De Jesus telephoned Rodriguez to inquire
about obtaining the two kilograms of cocaine; Rodriguez told
De Jesus to come to his family's restaurant, El Muelles, to
discuss the matter.
De Jesus met with Rodriguez at the restaurant, and
Rodriguez told De Jesus that he had the drugs in the amount
De Jesus needed. Rodriguez instructed De Jesus to meet him
at 7:00 p.m. at De Jesus' apartment in the El Coto public
housing project. De Jesus then returned to his apartment,
and Lebron and De Leon arrived soon after. On De Jesus'
instruction, Lebron and De Leon went to the supermarket
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around 6:45 p.m. to check out the prospective buyer, whom
they did not know. After speaking with Agent Rivera and the
confidential informant, and seeing the money, Lebron and De
Leon returned to De Jesus' apartment. Rodriguez and his
brother, Carlos, arrived at the apartment shortly thereafter,
sometime around 7:00 p.m. All five then left for the
supermarket.
Lebron drove to the supermarket in a Honda CRX with De
Leon; Rodriguez drove a beige Oldsmobile, accompanied by his
brother and De Jesus. At the supermarket, Lebron parked the
Honda next to Agent Rivera's car; Rodriguez parked the
Oldsmobile behind and perpendicular to the Honda, about
fifteen feet from where Agent Rivera was standing. From his
vantage Agent Rivera was able to view the driver of the
Oldsmobile, whom he later identified at trial as Rodriguez.
From a plastic bag located on the front seat of the car,
Rodriguez removed one kilogram of cocaine. He gave the
plastic bag with the remaining kilogram to De Jesus and told
him to take just one because the situation looked "nebulous."
De Jesus exited with the kilogram of cocaine, and Rodriguez
then drove the Oldsmobile slowly across the parking lot. De
Jesus approached Agent Rivera, who was standing near his car
with De Leon and Lebron, and handed him the drugs. After
protesting that the deal was for two kilogram, Agent Rivera
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raised the trunk of his car as if to stash the drugs but
actually signalling the arrest.
Police immediately converged on the scene. Agent Rivera
observed Lebron reach for his waist, subdued him and
recovered a gun tucked in his belt; De Jesus was also found
to have a gun in his belt. Meanwhile, De Leon sought to run
away and was caught by DEA agents after a brief chase.
Rodriguez escaped in the Oldsmobile, but turned himself in a
few days later when he learned that a warrant for his arrest
had been issued.
In challenging the sufficiency of the evidence,
Rodriguez assumes that the only evidence supporting the
jury's verdict is Agent Rivera's identification testimony
that he observed Rodriguez driving the beige Oldsmobile.
Given the unfavorable conditions under which Agent Rivera
viewed the driver--e.g, night, moving car, tense situation--
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Rodriguez argues that Agent Rivera's identification is
unreliable and thus insufficient. In fact, Lebron and De
Jesus testified extensively about Rodriguez' involvement in
the transaction and identified him as the source of the
cocaine.
Rodriguez apparently believes that because the jury
acquitted him on the two gun counts, it must have rejected in
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toto the testimony of Lebron and De Jesus; both had testified
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unequivocally that Rodriguez had given them the guns used in
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the drug buy. But the jury is free to believe some portions
of a witness' testimony and not others. Here, the testimony
of Lebron and De Jesus connecting Rodriguez to the guns was
relatively brief while their testimony connecting Rodriguez
to the drugs was extensive, detailed and uniform.
Alternatively, the jury may very well have believed the
testimony that Rodriguez provided the guns, but nevertheless
concluded that the government had failed to prove all the
elements of the specific firearm offenses. Count III
required proof that a firearm was used during and in relation
to a drug transaction; here the jury may (wrongly) have
thought it mattered that Rodriguez was not carrying the
firearms at the scene or that they were not drawn or fired.
Count IV required proof that Rodriguez knew that the serial
numbers of the weapons were obliterated. United States v.
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Haynes, 16 F.3d 29, 33-34 (2d Cir. 1994).
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Rodriguez also asserts that the district court erred at
sentencing in giving him a two-level enhancement under
U.S.S.G. 2D1.1(b)(1) for possession of a dangerous weapon
during a drug transaction. He contends that his acquittal on
the two gun charges precludes a finding that he "possessed" a
gun in connection with the drug offense. He is mistaken.
We have previously held that because of the difference
in burden of proof, an acquittal on a charge of using a
firearm in connection with a drug transaction does not
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foreclose a sentencing enhancement for possession of a gun
during a drug transaction. United States v. Pineda, 981 F.2d
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569, 574 (1st Cir. 1992). In addition, the sentencing
enhancement requires only that it have been reasonably
foreseeable that an accomplice would possess a gun, since
under the guidelines a defendant is accountable for
reasonably foreseeable conduct undertaken by others to
advance their joint criminal venture. U.S.S.G.
1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 911-
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14 (1st Cir. 1991).
Here, there was direct testimony that Rodriguez gave
Lebron one of the weapons, telling Lebron to watch De Jesus'
back, and that he gave De Jesus a gun as well. Further, we
have held that the nature of a large-scale drug transaction
permits the sentencing court to infer that an accomplice's
possession of a gun was reasonably foreseeable to the
defendant. United States v. Sostre, 967 F.2d 728, 731-32
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(1st Cir. 1992); Bianco, 922 F.2d at 912. The district court
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drew the inference explicitly, citing to both Bianco and
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Sostre.
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2. De Leon challenges the district court's failure to
award him a two-level reduction for acceptance of
responsibility under U.S.S.G. 3E1.1(a). Before trial, De
Leon offered to plead guilty to the drug charges (counts I
and II) but refused to plead guilty to the firearms charge
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against him (count III); De Leon steadfastly denied knowledge
of the guns. The government was unwilling to dismiss the
firearms charge, based on a Department of Justice policy
called "Project Triggerlock" requiring full prosecution of
all gun offenses. At trial, the jury convicted De Leon on
the drug transaction charges, but acquitted him on the
firearms offense.
Because the jury vindicated him on the firearms charge,
and because he had previously been willing to plead guilty to
the criminal charges on which the jury found him guilty, De
Leon argues that he should have received a two-level
reduction in his base offense level. At sentencing, the
government argued that De Leon could have pled guilty to the
drug charges and contested only the gun charge at trial;
since he chose to go forward to trial on the drug charges,
says the government, no reduction is warranted.1 At
sentencing, the district court denied the adjustment without
explaining its reasons.
A sentencing court has very wide latitude in determining
whether to grant this adjustment, United States v. Tabares,
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951 F.2d 405, 411 (1st Cir. 1991), and a finding on this
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1At oral argument in this case, the government set forth
a number of other reasons why the denial of the departure was
proper. We will not consider these claims, because claims
raised for the first time at oral argument are not properly
preserved. United States v. Nueva, 979 F.2d 880, 885 n.8
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(1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).
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issue is normally set aside only if it was clearly erroneous.
United States v. Munoz, 36 F.3d 1229, 1236 (1st Cir. 1994),
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petition for cert. filed, Jan. 10, 1995 (No. 94-7606).
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Still, a grant or denial of the reduction may raise issues
that involve a legal interpretation of the guidelines. Here,
since the sentencing court did not set forth its reasons for
denying the reduction, we will assume arguendo that it did
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so, as De Leon posits, because De Leon went to trial on the
drug charges.
The reduction for acceptance of responsibility serves
two distinct purposes: to recognize a defendant's sincere
remorse and to reward a defendant for saving the government
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from the trouble and expense of going to trial. See U.S.S.G.
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3E1.1 comment. (n.2). According to the guideline
commentary, the reduction is ordinarily not available to a
defendant who has put the government to its proof, however
remorseful he or she might later be. Id. See United States
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v. Bennett, 37 F.3d 687, 696-98 (1st Cir. 1994); Munoz, 36
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F.3d at 1236. The commentary describes as "rare" a case in
which a defendant can go to trial and still receive a
reduction; the example it gives is a defendant who goes to
trial to preserve issues unrelated to factual guilt, e.g., to
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mount a constitutional challenge to the statute. U.S.S.G.
3E1.1 comment. (n.2).
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In this case, De Leon did not refuse to plead to the
drug counts in order to preserve a legal challenge to the
statute but because the government would not dismiss the
firearms count in exchange. De Leon retained the option to
plead guilty to the former and to contest the latter, Pineda,
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981 F.2d at 576; instead, he chose to roll the dice in the
hope that he would be acquitted on all counts. This was his
choice, but the fact remains that he could have pleaded to
counts I and II, preserved his defense on count III, and
spared the government the necessity of proving his guilt at
trial on the drug counts.
De Leon complains that, had he pled guilty to the drug
charges, the jury would have wondered why he was not charged
with a drug offense like his codefendant and might have held
it against him. Speculation would not have been necessary:
De Leon's plea of guilty on the drug counts would have been
admissible at trial as an admission that De Leon was involved
in the drug transaction. United States v. Haddad, 10 F.3d
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1252, 1258 (7th Cir. 1993). See also United States v.
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Williams, 900 F.2d 823, 825 (5th Cir. 1990) (Rule 404(b)
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inapplicable). Even so De Leon would have remained free to
contest the firearms charge.
Thus, even assuming that the district court gave great
weight to De Leon's refusal to plead to the drug counts, we
see no error. On the contrary, absent unusual facts, we
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will--as the guideline commentary instructs--generally
sustain a district court that denies acceptance of
responsibility to a defendant who declined to plead guilty on
the count or counts of which he was convicted. See generally
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Bennett, 37 F.3d at 696-97. The example of a constitutional
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challenge, given by the guideline commentary as an exception,
does not purport to be an exhaustive list of exceptions. Id.
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at 698 n.16. But it is quite another matter to hold that a
district court exceeds its authority when in the ordinary
case it refuses such a reduction to a defendant who has
refused to plead.
A few circuits may arguably be more ready to reverse
district courts who refuse such reductions. However, the
cases often involve aggravating circumstances not present
here: in United States v. Rodriguez, 975 F.2d 999 (3d Cir.
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1992), the government withdrew its agreement to the
defendant's plea bargain because a co-defendant declined to
plead; in United States v. McKinney, 15 F.3d 849 (9th Cir.
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1994), the court believed that the defendant would have pled
guilty if the district court had provided a fair opportunity.
No such circumstances appear in the present case.
The guideline admittedly imposes a tough choice on a
defendant like De Leon, cf. United States v. Mezzanatto, 63
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U.S.L.W. 4060, 4064 (U.S. Jan. 18, 1995); but it is not
unconstitutional, Munoz, 36 F.3d at 1237, and the policy
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determination that underlies the guideline has been entrusted
to others. Because the guideline serves two different
purposes, differences will remain among judges who apply the
guideline, depending on which purpose is emphasized in a
given case. We are satisfied that the district court was not
obliged in this case to order a reduction and that nothing so
unusual was urged by De Leon as to require an explanation
from the district court.
Affirmed.
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