Filed: Sep. 27, 2007
Latest Update: Feb. 21, 2020
Summary: , Jennifer Hay Zacks, Assistant U.S. Attorney, and Michael J., Sullivan, United States Attorney, on brief for appellee.guidelines.United States v. Malouf, 466 F.3d 21, 27 (1st Cir.1, Oxycodone is a Schedule II drug, see 21 U.S.C. § 812(c);determinations of drug weight).sentencing.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2340
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS ESPINOLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Bradford Eliot Keene on brief for appellant.
Jennifer Hay Zacks, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for appellee.
September 27, 2007
Per Curiam. Defendant Carlos Espinola ("Espinola")
appeals from his 148-month, below-guidelines sentence for
conspiring to distribute oxycodone1 in violation of 21 U.S.C.
§§ 841(a), 846. On appeal, Espinola seeks resentencing on the
grounds that the district court (1) violated his due process rights
by making factual findings by a preponderance of the evidence
rather than beyond a reasonable doubt; (2) clearly erred in
calculating the drug amount attributable to him and in finding that
he possessed a firearm during the commission of the offense; (3)
violated Federal Rule of Criminal Procedure 32(i)(1)(a) by failing
to verify that he had read and discussed the Presentence Report
("PSR") with his counsel; (4) abused its discretion in refusing his
mid-sentencing request for a continuance to gather additional
evidence; and (5) erred in giving presumptive weight to the
guidelines. We will consider those arguments in that order.
Espinola's argument that due process requires that
sentencing-enhancing facts, including drug weight, be found beyond
a reasonable doubt has already been rejected by this court in
United States v. Malouf, 466 F.3d 21, 27 (1st Cir. 2006) (decided
after United States v. Booker,
543 U.S. 220 (2005)), cert. denied,
127 S. Ct. 1892 (2007). See also United States v. Goodine, 326
1
Oxycodone is a Schedule II drug, see 21 U.S.C. § 812(c); 21
C.F.R. § 1308.12, marketed as OxyContin, United States v. Wall, 349
F.3d 18, 20 (1st Cir. 2003).
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F.3d 26, 32 (1st Cir. 2003) (finding the "tail-wagging-the-dog"
rationale for a higher burden of proof inapplicable to judicial
determinations of drug weight). This panel is not free to revisit
the issue. Malouf, 466 F.3d at 27.
We review the district court's factual findings for clear
error. United States v. Santos, 357 F.3d 136, 141 (1st Cir. 2004).
Under that highly deferential standard of review, "if there are two
plausible views of the record, the sentencing court's choice
between them cannot be clearly erroneous."
Id. Deference to a
district court's determination of drug weight for sentencing
purposes is particularly appropriate since "a determination need
not be exact, but, rather, may be approximate, as long as the
approximation represents a reasoned estimate."
Id. Nor must the
district court "discuss the reasoning underpinning its factual
finding as to amount (e.g., inferences and credibility
determinations)." United States v. Navedo-Concepción,
450 F.3d 54,
59 (1st Cir. 2006). The standard for increasing the offense level
where a firearm is possessed in connection with a drug offense is
similarly undemanding; the "adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense." U.S.S.G. § 2B1.1, comment. (n.3).
Under those standards, the challenged factual findings
readily withstand appellate review. Our review of the record,
including the transcript of Espinola's trial, at which the
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sentencing judge presided, confirms that the district court's
estimate of drug weight was reasonable, conservative, and amply
supported by the evidence. We also find reasonable the court's
inference that the gun that Espinola undisputedly possessed for
security during drug transactions was real rather than a toy or a
replica.
Espinola next faults the district court for failing, at
sentencing, to "verify that the defendant and the defendant's
attorney ha[d] read and discussed the presentence report and any
addendum to the report," as required by Rule 32(i)(1)(A) of the
Federal Rules of Criminal Procedure. Because this argument was not
raised below, we review only for plain error, United States v.
Olano, 507 U.S. 725, 732-34 (1993), and find none. Where, as here,
it is clear from the record that Espinola's counsel was thoroughly
familiar with the PSR, "we will not assume that defense counsel did
not discuss so critically important a document with his client,
especially since appellant claims no such dereliction." United
States v. Cruz,
981 F.2d 613, 620 (1st Cir. 1992). Nor has
Espinola alleged, much less shown, any prejudice warranting relief
under the plain error standard. See United States v. Esparza-
Gonzalez,
268 F.3d 272, 273-74 (5th Cir. 2001). As another circuit
recognized under similar circumstances, "[t]o remand when no
prejudice exists is to require the district court to undergo an
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exercise in futility in order to obtain the same sentence." United
States v. Rangel-Arreola, 991 F.2d 1519, 1526 n.5 (10th Cir. 1993).
Espinola next argues that the district court's failure to
grant his mid-sentencing request for a continuance warrants a
remand for resentencing. Requests for continuances of sentencing
are disfavored given the district court's obligation to "impose
sentence without unnecessary delay." Fed. R. Crim. P. 32(b)(1).
"A trial court has wide discretion to grant or deny a request for
continuance, and so . . . '[o]nly an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay' would amount to an abuse of that discretion."
United States v. Fink, 2007 WL 2326822, at *7 (1st Cir. Aug. 16,
2007). The issue on which Espinola sought time to gather
additional evidence was mentioned in the PSR, which his counsel
received approximately a month before sentencing, and was also
raised in Espinola's sentencing memorandum, filed two weeks before
sentencing. Yet Espinola did not seek a continuance until the
court ruled against him on this issue during the sentencing
hearing. Under those circumstances, there was nothing
"unreasoning" or "arbitrary" about proceeding with the sentencing
that day.
Finally, Espinola argues that the district court erred in
characterizing the applicable guidelines range as "presumptive."
In this circuit, no such presumption applies. United States v.
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Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc), cert.
denied,
127 S. Ct. 1907 (2007). However, it is clear from the
sentencing proceeding as a whole, not only from what the court said
elsewhere--expressly considering the other factors enumerated in 18
U.S.C. § 3553(a)--but also from what it did--applying those factors
in sentencing Espinola three months below the applicable guideline
range--that the court understood the proper role of the guidelines
as articulated in Jiménez-Beltre and its progeny. Accordingly, no
purpose would be served by remanding this case for resentencing
under a rephrased standard. See United States v. Jahagirdar,
466
F.3d 149, 157 (1st Cir. 2006).
Affirmed. See 1st Cir. R. 27.0(c).
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