USCA1 Opinion

February 22, 1995

UNITED STATES COURT OF APPEALS
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.
____________________
ERRATA SHEET
The opinion of this Court,
amended as follows:

issued on February

1, 1995, is

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]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boyle,* Senior District Judge.
_____________________
____________________

____________________
*Of the District of Rhode Island, sitting by designation.

Carlos R. Noriega for appellant Agustin De Leon Ruiz.

_________________
Jose A. Quiles Espinosa, Senior Litigation Counsel, with w
_________________________
Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assist
_____________
________________
United States Attorney, were on brief for the United States.
Luis F. Abreu Elias on brief for appellant Orlando Rodrig
_____________________
Rodriguez.
Jose A. Quiles Espinosa, Senior Litigation Counsel, Guille
_________________________
______
Gil, United States Attorney, and Antonio R. Bazan, Assistant Uni
___
________________
States Attorney, on brief for the United States.
____________________
February 1, 1995
____________________

BOUDIN, Circuit Judge.

______________

On August

Agustin De

Leon Ruiz and Orlando

with three

other individuals,

indictment

concerning

26, 1992, appellants

Rodriguez Rodriguez, along

were charged in

May

1992

drug

a four-count
transaction.

Appellants were both indicted for possessing two kilograms of

cocaine

with

841(a)(1),
during the
U.S.C.

commission
924(c)(1).

for

and
of a

De

drug

After a
the

was

acquitted on the

drug

U.S.C.
firearms

III),

for

using

the commission

843(b), while

of

18
a
a

Rodriguez was

obliterated

serial

922(k).

five-day jury trial,

communication and

use of

indicted

firearms with

numbers (count IV), 18 U.S.C.

II), 21

offense (count

facilitate

21 U.S.C.

possessing

(count

abetting the

Leon

facility to

(count I),

indicted

distribute

and aiding

communication
crime

intent to

De Leon was

charges (counts

firearms charge (count III).

convicted on
I and

II) but

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

Rodriguez were
On

appeal,

sentencing hearing,

sentenced to 78 and

Rodriguez

De

Leon

and

87 months, respectively.

challenges both

his

conviction

and

sentence, while De Leon challenges only his sentence.

1.
most

The evidence

favorable

adduced at trial, taken

to the

Maldonado, 14 F.3d 95,

_________

verdict,

in the light

United States v.
______________

Torres_______

100 (1st Cir.), cert. denied,

____________

115 S.

-3-3-

Ct. 193 (1994), is as follows.

an

undercover DEA

confidential
informant

agent,

with

different occasions
these

set

informant for

spoke

played at trial.

up

drug

two kilograms

De

Leon

that day

conversations were

On May 5, 1992, Pablo Rivera,

all

on

buy

of cocaine.

the

telephone

to negotiate the
recorded

through

Through

and the

De

The

on five

transaction;
recordings

In those conversations the price

kilogram was set at $18,000.

Leon's

for each
drug

connections--two

individuals

named

Lebron and

Rodriguez was contacted to supply the cocaine.

Jesus

De

Jesus--

Lebron and De

both testified for the government at trial pursuant to

a plea agreement.

According to their testimony, the drug buy

was

take place in

scheduled to

supermarket on
around 5:00

the evening

p.m., De

of May

5, 1992.

of a local

On

that day,

Jesus telephoned Rodriguez

about obtaining the two

De Jesus to come

the parking lot

to inquire

kilograms of cocaine; Rodriguez told

to his family's restaurant, El

Muelles, to

discuss the matter.

De

Jesus

met with

Rodriguez

Rodriguez told De Jesus that

De Jesus needed.
at 7:00

and Lebron
instruction,

the restaurant,

he had the drugs in the

Rodriguez instructed De Jesus to

p.m. at De

housing project.

at

Jesus' apartment
De Jesus

and De
Lebron

then returned to

Leon arrived
and De

in the El

Leon

-4-4-

amount
meet him

Coto public

his apartment,

soon after.
went

and

to the

On De

Jesus'

supermarket

around 6:45 p.m.

they did

to check

not know.

prospective buyer,

whom

After speaking with Agent Rivera and the

confidential informant,
Leon returned

out the

to De

and seeing the money,

Jesus'

apartment.

Lebron and De

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

Leon; Rodriguez drove a

brother
Honda

and De Jesus.
next

Oldsmobile

to

with De

beige Oldsmobile, accompanied by his

At the supermarket, Lebron parked the

Agent

Rivera's car;

Rodriguez

behind and

perpendicular

to

the

parked
Honda,

fifteen

feet from where Agent Rivera was standing.

vantage

Agent

Rivera was

able to

view

the
about

From his

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
plastic

one

kilogram of

cocaine.

He

gave

the

bag with the remaining kilogram to De Jesus and told

him to take just one because the situation looked "nebulous."

De Jesus exited
then

with the kilogram of cocaine,

and Rodriguez

drove the Oldsmobile slowly across the parking lot.

Jesus approached Agent Rivera, who was standing near his

with De

Leon and Lebron,

protesting

and handed him

that the deal was for

the drugs.

De
car

After

two kilogram, Agent Rivera

-5-5-

raised

the trunk

of his car

as if

to stash

the drugs but

actually signalling the arrest.

Police immediately converged on the scene.
observed

Lebron

reach

for

his

recovered a gun tucked in his

to have a gun in his belt.
away

and was

caught

waist,

Agent Rivera

subdued

him

belt; De Jesus was also

and
found

Meanwhile, De Leon sought to run

by DEA

agents

after a

brief

Rodriguez escaped in the Oldsmobile, but turned

few days later when he learned that a

chase.

himself in a

warrant for his arrest

had been issued.

In

challenging

Rodriguez
jury's
that
Given

assumes that

verdict
he observed
the

the

is Agent

sufficiency

the

only

evidence

Rivera's

Rodriguez

argues

that

Agent

evidence,

supporting

the beige

under which

viewed the driver--e.g, night, moving car,

___
Rodriguez

the

the

identification testimony

driving

unfavorable conditions

of

Rivera's

Oldsmobile.
Agent Rivera

tense situation-identification

is

unreliable

and thus

insufficient.

Jesus testified extensively

the transaction

and

In fact, Lebron

and De

about Rodriguez' involvement

identified him

as

the source

that

because

of

in
the

cocaine.
Rodriguez

apparently believes

the

jury

acquitted him on the two gun counts, it must have rejected in

__
toto the testimony of Lebron and De Jesus; both had testified
____
unequivocally that Rodriguez

had given them the guns used in

-6-6-

the drug buy.

of

But the jury is free to

believe some portions

a witness' testimony and not others.

of Lebron and De

Here, the testimony

Jesus connecting Rodriguez to the

relatively brief while

their testimony connecting

guns was
Rodriguez

to the drugs was extensive, detailed and uniform.

Alternatively, the jury may

very well have believed the

testimony that Rodriguez provided

concluded

that the government

the guns, but nevertheless

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

thought

transaction; here

it

mattered that

firearms at the scene or

Count IV required
numbers of

the

jury may

Rodriguez

was

(wrongly)

have

not carrying

the

that they were not drawn

proof that Rodriguez knew

the weapons were

obliterated.

or fired.

that the serial

United States v.
______________

Haynes, 16 F.3d 29, 33-34 (2d Cir. 1994).

______
Rodriguez also asserts that
sentencing
U.S.S.G.

in

giving

him

the district court erred at

two-level

2D1.1(b)(1) for possession

during a drug transaction.

enhancement

of a dangerous

under
weapon

He contends that his acquittal on

the two gun charges precludes a finding that he "possessed" a

gun in connection with the drug offense.
We have
in

burden of

firearm

in

He is mistaken.

previously held that because

proof, an
connection

acquittal on
with

a drug

-7-7-

of the difference
charge of

transaction

using a
does

not

foreclose a

sentencing enhancement

during a drug transaction.

569,

574

(1st Cir.
requires

foreseeable

that an

under

guidelines

the

reasonably
advance

their

In addition,

only

that

it

accomplice would
a

foreseeable

a gun

United States v. Pineda, 981 F.2d

_____________
______

1992).

enhancement

for possession of

defendant
conduct

joint

the

sentencing

been

reasonably

possess a

gun, since

have

is

accountable

undertaken

criminal

by

others

venture.

for
to

U.S.S.G.

1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 911_____________

______
14 (1st Cir. 1991).
Here, there
Lebron

was direct

testimony

that Rodriguez

one of the weapons, telling Lebron to watch De Jesus'

back, and that

he gave De Jesus a gun as

have held that

the nature of a

permits the
possession
defendant.

sentencing court
of

gun

was

United States
_____________

well.

the inference

Further, we

large-scale drug transaction

to infer that

reasonably
v. Sostre,
______

explicitly,

an accomplice's

foreseeable
967 F.2d

(1st Cir. 1992); Bianco, 922 F.2d at 912.

______
drew

gave

to

the

728, 731-32

The district court

citing to

both Bianco
______

and

Sostre.
______
2.
award

De
him

Leon challenges the district

a

two-level

reduction

court's failure to
for

acceptance

of

responsibility under
Leon
and

U.S.S.G.

offered to plead guilty

II) but refused to

3E1.1(a).

Before trial, De

to the drug

charges (counts I

plead guilty to

the firearms charge

-8-8-

against him (count III); De Leon steadfastly denied knowledge

of the guns.
firearms
called

The

charge, based

on

a Department

"Project Triggerlock"

all gun offenses.

the

government was unwilling

drug

of Justice

requiring full

At trial, the

transaction

to dismiss

charges,

the

policy

prosecution of

jury convicted De
but acquitted

Leon on

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

Leon

should

argues

reduction
government
drug

that

in his

he

base offense

have

received

level.

guilty, De
a

two-level

At sentencing,

the

argued that De Leon could have pled guilty to the

charges and

contested only

the gun

charge at

trial;

since he chose
says

the

to go forward

government,

no

to trial on the
reduction

is

drug charges,

warranted.1

sentencing, the district court denied the adjustment

At

without

explaining its reasons.

A sentencing court has very wide latitude in determining
whether to
951

grant this adjustment, United States v. Tabares,

______________
_______

F.2d 405,

411 (1st

Cir. 1991), and

a finding

on this

____________________
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
______________
_____
(1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).
____________
-9-9-

issue is normally set aside only if it was clearly erroneous.

United States v. Munoz,
_____________
_____
petition

for

cert.

36 F.3d 1229, 1236 (1st

filed,

Jan. 10,

1995

(No.

Cir. 1994),
94-7606).

___________________________
Still,

a grant or denial

of the reduction

may raise issues

that involve a legal interpretation of the guidelines.

since

Here,

the sentencing court did not set forth its reasons for

denying the reduction,

we will assume

arguendo that it
________

so, as De Leon posits,

because De Leon went to trial

did

on the

drug charges.
The

reduction for

two distinct

purposes:

remorse and to
___

acceptance of

responsibility serves

to recognize a

reward a defendant for

defendant's sincere
saving the government

from the trouble and expense of going to trial.

3E1.1

comment.

commentary, the

(n.2).
reduction is

defendant who has

remorseful he
v.

at 1236.

which

or she might later be.

can go

the

guideline

to its proof,
Id.
___

to

the example it gives

trial

to a

however

See United States

___ _____________

696-98 (1st Cir.

The commentary describes

defendant

reduction;

to

ordinarily not available

put the government

Bennett, 37 F.3d 687,

_______

F.3d

According

See U.S.S.G.
___

1994); Munoz, 36
_____

as "rare" a case in
and

still receive

is a defendant

who goes to

trial to preserve issues unrelated to factual guilt, e.g., to

____
mount a

constitutional challenge

3E1.1 comment. (n.2).

to the statute.

U.S.S.G.

-10-10-

In this

case, De Leon

drug counts in
statute

order to

but because

did not refuse

to plead

preserve a legal

the

government would

firearms count in exchange.

to the

challenge to

the

not dismiss

the

De Leon retained the

option to

plead guilty to the former and to contest the latter, Pineda,

______
981 F.2d

at 576; instead, he

chose to roll the

hope that he would be acquitted on all counts.

choice,
counts

but the fact remains

I and

II, preserved

spared the government the

that he could
his defense

dice in the
This was his

have pleaded to

on count

III, and

necessity of proving his

guilt at

trial on the drug counts.

De Leon complains that,
charges,
with
it

had he pled guilty to

the drug

the jury would have wondered why he was not charged

a drug offense like his codefendant and might have held

against him.

Speculation would

De Leon's plea of guilty on

not have been necessary:

the drug counts would have

been

admissible at trial as an admission that De Leon was involved

in

the drug transaction.

1252,

1258 (7th

Williams,
________

Cir.

900 F.2d

inapplicable).

United States v.
_____________

1993).

823, 825

Even so

Haddad, 10 F.3d
______

See also United States

_________ ______________
(5th

Cir. 1990)

v.

(Rule 404(b)

De Leon would have remained

free to

contest the firearms charge.

Thus, even

assuming that the district

weight to De Leon's refusal

see

no error.

On

court gave great

to plead to the drug

the contrary,

absent unusual

counts, we
facts, we

-11-11-

will--as
sustain

the
a

guideline

district

commentary

court

that

instructs--generally
denies

acceptance

of

responsibility to a defendant who declined to plead guilty on

the count or counts of which he was convicted.
Bennett,
_______

37 F.3d at 696-97.

See generally
_____________

The example of a constitutional

challenge, given by the guideline commentary as an exception,

does not purport to be an exhaustive list of exceptions.

at 698 n.16.

But

it is quite another matter to hold

district

court exceeds

case

refuses such

it

its authority
a reduction

when in

to

Id.
___

that a

the ordinary

a defendant

who has

refused to plead.
A few
district

circuits may
courts who

cases often
here:

involve

arguably be

refuse such

more ready

reductions.

1992),

the

government

defendant's plea
plead;

However, the

aggravating circumstances

in United States v. Rodriguez,

_____________
_________
withdrew

in United States v.
_____________

agreement

present

to

the

co-defendant declined to

McKinney, 15 F.3d
________

1994), the court believed that the

not

975 F.2d 999 (3d Cir.

its

bargain because a

to reverse

849 (9th Cir.

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

defendant like De
U.S.L.W.

4060,

unconstitutional,

imposes a

tough choice

Leon, cf. United States

___ _____________
4064 (U.S.
Munoz, 36
_____

Jan. 18,
F.3d

-12-12-

v. Mezzanatto, 63
__________

1995);

at 1237,

on a

but it

is not

and the

policy

determination that underlies the guideline has been entrusted

to

others.

Because

the guideline

purposes, differences will remain

guideline,
given case.

depending on

which

serves

two

different

among judges who apply the

purpose is

emphasized in

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

from the district court.

Affirmed.
________

Leon as to

require an

explanation

-13-13-