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United States v. De la Cruz-Gutierrez

United States Court of Appeals, First Circuit

January 31, 2018

UNITED STATES OF AMERICA, Appellee,
v.
ADOLFO DE LA CRUZ-GUTIERREZ, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          George 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.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         Defendant-appellant 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.

         I. Factual Background

         Because 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. 2017).

         On 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"), [1] all three individuals took turns navigating the vessel, [2] and he was offered $20, 000 for his role in the trip.

         De la 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[3] -- De la Cruz filed a motion requesting that the district court grant him a three-level reduction for his role in the offense.[4] 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 organization."

         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.

         The 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 followed.

         II. Discussion

         A. Procedural Reasonableness of De ...


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