United States v. Ceferino Cruz

Citations: 120 F.3d 1; 1997 U.S. App. LEXIS 19244; 1997 WL 410784Docket: 95-1908

Court: Court of Appeals for the First Circuit; July 28, 1997; Federal Appellate Court

Combined Opinion SummaryCombined Opinion Original

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The appeal addresses the sentencing enhancement of Ceferino Cruz based on his perceived aggravating role in the offense, under USSG § 3B1.1(c). Initially, a panel of the court found clear error in the sentencing court's application of this guideline, but due to the frequent relevance of role-in-the-offense determinations, the case was reconsidered en banc. The court ultimately upheld the district court's decision.

The facts were derived from the plea colloquy, presentence investigation report, and the sentencing hearing transcript, all of which are considered reliable evidence. The court noted that it could use information from a coconspirator's trial if the defendant was notified and had a chance to challenge it.

On July 28, 1994, Cruz, owner of La Tambora restaurant, interacted with DEA agent Pam Mersky, having sold her crack cocaine and a handgun a week earlier. During Mersky's visit to the restaurant, Alejandro Vega, a later-indicted coconspirator, initially feigned ignorance of Mersky’s drug inquiry but subsequently communicated with Cruz privately. Mersky returned to find Vega and another individual, Jeanette Marquez, present. Marquez, identified as Cruz's girlfriend, delivered crack cocaine to Mersky. Later, Vega arranged for Mersky to purchase a gun, which he obtained from Cruz, indicated by the cold temperature of the firearm, suggesting recent storage in a freezer.

On August 3, Vega consulted with the defendant before supplying Mersky with bullets. On August 16, after Mersky indicated a desire for more crack and firearms, Vega informed him that guns were readily available, but the crack required delivery. They proceeded to La Tambora, where Vega instructed Mersky to go behind the food counter. Marquez, upon seeing them together, returned with a bag containing two guns, which he handed to Vega, who then gave it to Mersky. Mersky inspected and purchased one weapon. They subsequently awaited the crack cocaine delivery. When the courier, Sixto Garcia, arrived, he privately met with Cruz, who ultimately handed a plastic bag containing crack cocaine to Mersky, who paid Vega for it. 

Cruz was indicted and convicted for conspiracy to possess crack cocaine with intent to distribute and illegal firearms sales, leading to a sentencing recommendation that included a two-level upward adjustment for Cruz's leadership role in the offenses. The district court accepted this recommendation, resulting in a guideline sentencing range (GSR) of 135 to 168 months, and imposed a 165-month sentence. It was acknowledged that without the role adjustment, the GSR would have been less severe.

The assessment of an individual's role in the offense is fact-specific and requires appellate deference. The court's determinations can only be overturned for clear error, absent a legal mistake. Role-in-the-offense adjustments reflect the relative responsibility of participants in a criminal activity. An increase in offense level is warranted if the defendant is found to be an organizer or leader among at least two other participants, with the government responsible for proving this by a preponderance of the evidence.

The evidence supports the district court's conclusion that Cruz was a central figure in organized drug and weapon sales at his restaurant. He employed individuals as facilitators and go-betweens to minimize his visible involvement, a tactic common in sophisticated illegal operations. The district court specifically identified Cruz as the principal motivator of the drug distribution scheme and a manager regarding associates Vega and Marquez. The court noted that Cruz’s supervision of Marquez during a particular transaction justified enhancements in his sentencing. The court's findings, based on circumstantial evidence, indicated that Cruz provided the drugs and exerted control over Marquez, who was young and pregnant, suggesting she acted under his direction. The likelihood that Marquez was influenced by Cruz was deemed stronger than the possibility of her independent actions. Although there was a debate on whether Cruz could be classified as an organizer or manager, the court's inferences were permissible and not clearly erroneous, confirming that the determination of Cruz's role was fact-specific and should not be disturbed by appellate review. The court affirmed the district court's decision.

Senior Circuit Judge Bownes dissents, asserting that the original panel opinion was correct despite Chief Judge Torruella's absence from the proceedings. Bownes emphasizes that the Presentence Investigation (PSI) Report provided the necessary advance notice required by case law. The critical facts for the appeal stem from the PSI and the defendant's involvement in prior drug and firearm purchases facilitated by a DEA informant at La Tambora. Under the Sentencing Guidelines, the counts of conviction are treated as separate units, according to USSG §3D1.2. Furthermore, the government's agreement not to seek an enhancement does not limit the district court's discretion, as the sentencing judge retains ultimate authority to make sentencing decisions, even if contrary to an agreement. Additionally, Bownes notes that if Vega and Cruz jointly controlled Marquez, Cruz would still qualify as a manager under the guidelines per USSG §3B1.1, comment n.4.