Filed: Mar. 18, 2003
Latest Update: Feb. 21, 2020
Summary: 1, Apart from the authority and control that Soto-Lara, exercised over Carmona with respect to the March 30, 1999, transaction, the district court supportably found that the, conspiracy was extensive, as it spanned two states and was, operative for at least three years.298 F.3d at 123.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1271
UNITED STATES,
Appellee,
v.
ALBERTO SOTO-LARA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Raymond E. Gillespie on brief for appellant.
Michael J. Sullivan, United States Attorney, and Heidi E.
Brieger, Assistant U.S. Attorney, on Motion for Summary Disposition
for appellee.
March 17, 2003
Per Curiam. Alberto Soto-Lara pleaded guilty to
participating in a cocaine distribution conspiracy. He now
appeals his sentence, contending that the district court erred
by increasing his offense level on the ground that Soto-Lara
was a leader or organizer of criminal activity that involved
five or more participants. See U.S.S.G. § 3B1.1(a) (Nov.
2001). Soto-Lara concedes that he cannot "seriously challenge"
the district court's finding that five or more participants
were involved in the criminal activity. His appeal turns on
whether the district court's findings and the underlying record
adequately support the conclusion that Soto-Lara acted as a
"leader or organizer." Factors a court should consider in
distinguishing a leadership and organizational role from one of
mere management or supervision "include the exercise of
decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others...." See U.S.S.G.
§3B1.1, comment. note 4.
We review for clear error, see, e.g., United States
v. Patrick, 248 F.3d 11, 26 (1st Cir. 2001), cert. denied,
122
S. Ct. 1215 (2002), and find none. Soto-Lara concedes that the
record supports the conclusion that he exercised decisionmaking
-2-
authority and control with respect to the March 30, 1999
transaction that resulted in the arrest of one of his couriers
(Carmona). In that instance, Soto-Lara provided Carmona with
a Nissan Pathfinder which concealed one kilogram of cocaine, as
well as instructions regarding the time, place, and recipient
of the delivery. Those of higher rank in drug distribution
conspiracies frequently use subordinates as go-betweens to
limit their own apparent involvement. See United States v.
Brown, 298 F.3d 120, 122 (1st Cir.)(affirming 2-level role in
offense enhancement), cert. denied,
123 S. Ct. 710 (2002). The
record supports an inference that Carmona and the three other
participants that the district court identified were at Soto-
Lara's "beck and call" for just this purpose. And, contrary to
Soto-Lara's contention on appeal, we think that there is
sufficient evidence of the other factors listed in § 3B1.1,
comment. n.4, to support the Leader/Organizer adjustment.1
1
Apart from the authority and control that Soto-Lara
exercised over Carmona with respect to the March 30, 1999
transaction, the district court supportably found that the
conspiracy was "extensive," as it spanned two states and was
operative for at least three years. There was further evidence
that Soto-Lara "ma[de] all the decisions," such as who was allowed
to sell larger quantities of cocaine for him, and who deserved free
cocaine as a reward for generating a lot of sales. The record also
suggests that Soto-Lara retained a greater share of the profits
from the cocaine sales that he made to Louis Asermely and that he
supplied various cars to the conspiracy to enable his couriers to
evade detection. Although the district court did not refer to all
of this evidence, we may affirm if "the reasons for the judge's
choice are obvious or if the record as a whole provides an
explanation." United States v. Medina, 167 F.3d 77, 80 (1st Cir.
-3-
To be sure, it appears that after Soto-Lara's arrest
his codefendants engaged in drug transactions that did not
implicate Soto-Lara. But the fact that these participants
sometimes functioned independently did not require the district
court to discredit other evidence to the contrary. "[T]he
evidence need not have compelled the inference that was
ultimately drawn. All that is required is that the court's
choice among competing inferences be a plausible one." Brown,
298 F.3d at 123. We cannot say that the district court
clearly erred by adding four levels under these circumstances.
See, e.g., United States v. Cruz,
120 F.3d 1, 4 (1st Cir.
1997)(en banc)("when competing inferences plausibly can be
drawn from a set of facts, the factfinder's choice between them
cannot be clearly erroneous."(citation omitted)).
The government's motion for summary disposition is
allowed and the judgment of conviction (and sentence) is
affirmed.
1999). So it is here.
-4-
