FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District
F. Gormley, Stephen Super and George F. Gormley, P.C., on
brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
Adolfo De la Cruz-Gutiérrez ("De la Cruz")
pled guilty to possession with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A); and importation of five
kilograms or more of cocaine into the United States, in
violation of 21 U.S.C. §§ 952(a), 960(a)(1) and
(b)(1)(B). The district court sentenced him to a 120-month
term of imprisonment, in the middle of his United States
Sentencing Guidelines ("U.S.S.G." or
"Guidelines") imprisonment range. De la Cruz now
appeals, challenging the district court's denial of a
mitigating role adjustment under U.S.S.G. § 3B1.2, and
the substantive reasonableness of his sentence. After careful
consideration, we affirm.
De la Cruz pled guilty, our discussion of the relevant facts
draws from the change-of-plea colloquy, the unchallenged
portions of the Presentence Investigation Report
("PSR"), and the transcript of the sentencing
hearing. See United States v.
Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir.
January 7, 2016, Border Patrol agents responded to
information they had received regarding drug-smuggling
activity at a beach in Isabela, Puerto Rico. There, the
agents discovered an abandoned twenty-two-foot fiberglass
vessel with a single sixty horsepower outboard motor. In
close proximity to the vessel, the agents observed De la
Cruz, a Venezuelan national and resident of the Dominican
Republic, who had worked for several years as a fisherman,
attempting to flee the scene. The agents detained De la Cruz
and searched the backpack he was carrying, which revealed two
cell phones, a global positioning system ("GPS"),
and cocaine. Agents from several law enforcement agencies
searched the beach and found five bales of cocaine hidden in
the nearby brush, weighing 153.78 kilograms in total. Its
estimated value was $10, 848, 859.74. During a post-arrest
interview, De la Cruz admitted that he traveled from the
Dominican Republic to Puerto Rico to smuggle the cocaine.
According to De la Cruz, he traveled with two other
individuals (one of them known as "Tin"),
three individuals took turns navigating the vessel,
he was offered $20, 000 for his role in the trip.
Cruz was indicted on January 13, 2016, for possession with
intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A);
and importation of five kilograms or more of cocaine into the
United States, in violation of 21 U.S.C. §§ 952(a),
960(a)(1) and (b)(1)(B). De la Cruz pled guilty to both
counts of the indictment. After a series of procedural events
-- including the issuance of a PSR, De la Cruz's
objections to some aspects of the PSR, the issuance of an
amended PSR and an addendum to the PSR, as well as De la
Cruz's filing a sentencing memorandum -- De la Cruz
filed a motion requesting that the district court grant him a
three-level reduction for his role in the
offense. In his motion, De la Cruz alleged that he
was entitled to a three-level reduction under U.S.S.G. §
3B1.2 -- as opposed to the two-level reduction the probation
officer had proposed in the amended PSR -- because his
participation in the criminal activity was less than that of
a minor participant (although not minimal). The government
responded that it would defer to the court's discretion
because, "based on the totality of the evidence
collected at the scene and the post arrest statements of [De
la Cruz, it did] not have enough information to determine if
[De la Cruz] was a minor participant in the smuggling
venture." On October 6, 2016, the district court denied
De la Cruz's motion as to the mitigating role adjustment.
The court determined that De la Cruz was not even eligible
for the two-level minor role reduction that the probation
officer had recommended. In essence, the district court
concluded that the record before it contained "no
factual basis to justify classifying [De la Cruz] as a minor
participant versus the participation of the other two persons
who he claims accompanied him in the smuggling venture."
To the contrary, according to the court, the record reflected
that all three participants, including De la Cruz, were no
"ordinary mules but, rather, persons of trust within the
sentencing hearing took place on October 13, 2016. There, De
la Cruz renewed his request for a mitigating role adjustment.
After the district court stated that it would not award the
adjustment, De la Cruz argued for a downwardly variant
sentence "to what would have been [his] sentence had the
Court granted the role adjustment." The district court
then calculated De la Cruz's Guidelines sentencing range
("GSR"). It determined that De la Cruz's base
offense level was thirty-six under U.S.S.G. §
2D1.1(c)(2) because the offense involved "the possession
and importation of at least 150 kilograms but less than 450
kilograms of cocaine." The court granted a two-level
reduction because De la Cruz complied with the provisions in
18 U.S.C. §§ 3553(f)(1)-(5) and U.S.S.G.
§§ 5C1.2(a)(1)-(5) (the safety valve). Finally, it
granted a three-level reduction pursuant to U.S.S.G.
§§ 3E1.1(a) and (b) due to De la Cruz's
acceptance of responsibility, resulting in a total offense
level of thirty-one. This, in conjunction with De la
Cruz's criminal history category of I, yielded a GSR of
108 to 135 months of imprisonment.
court then addressed De la Cruz's request for a variant
sentence. In so doing, it considered the 18 U.S.C. §
3553(a) sentencing factors, emphasizing De la Cruz's
personal history and characteristics, including his status as
a first offender, and the nature of the offense. Ultimately,
the court denied De la Cruz's request for a downwardly
variant sentence and sentenced De la Cruz to 120 months of
imprisonment, in the middle of the GSR. This timely appeal
Procedural Reasonableness of De ...