USCA1 Opinion

July 28, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1142
UNITED STATES,
Appellee,
v.
WILFREDO BARRETO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________

Francisco M. Dolz-Sanchez on brief for appellant.

_________________________
Daniel F. Lopez-Romo, United States Attorney, and Warren Vazqu
____________________
____________

Assistant United States Attorney, on brief for appellee.

____________________
____________________

Per Curiam.
__________
claims

that

finding

him

activity

that

the district
to be

court

"an organizer

involved five

otherwise extensive,"
his

Defendant

sentence four

or

U.S.S.G.

levels

appeals his sentence.

He

committed

in

or
more

clear error

leader of

a criminal

participants or

was

3B1.1(a), and in enhancing

pursuant to

that provision.

We

affirm.
I.

BACKGROUND
__________

Appellant Wilfredo
co-defendants
intent

on two

to distribute

counts:

Barreto was indicted

conspiring

with four

to possess

multi-kilo quantities of

with

marijuana in

violation

of 21 U.S.C.

intent to

distribute 85 kilograms of

of 21 U.S.C.

846 (count one) and possession with

marijuana in violation

841(a)(1) and 18 U.S.C.

indictment characterized appellant

(count two).

and co-defendant

The

Carmelo

Rosado as "organizers" and the remaining

three co-defendants

as

testimony

"couriers."

After

two

days

of

by

the

government's witnesses, appellant entered a plea agreement in

which

he

agreed

to

plead

guilty

to

count

one

of

the

indictment and the government agreed to request the dismissal

of

count two against him.

pled

On September

3, 1991, appellant

guilty to count one after a hearing before the district

court.
Pursuant

to Rule

418

of the

Local Rules

of the

United States District Court for the District of Puerto Rico,

-2-

the government filed a

court.

Appellant

statement of facts with

signed onto

rather than prepare his own.

as follows.

the

the district

government's

statement

The facts contained therein are

During December 1990,

appellant conspired with

four

other

marijuana.

persons to

possess

with

intent to

distribute

On December 26, 1990, appellant purchased airline

tickets for co-defendant Reinaldo Cordero-Nieves to travel to

San Diego, California, to pick up marijuana
back to San Juan,

Puerto Rico.

appellant

purchased

also

individuals."

and transport it

According to

airline

the statement,

tickets

Co-defendant Carmelo Rosado

for

"other

purchased airline

tickets on the same day for co-defendants Reinaldo RodriguezVargas and

Anibal Santiago-Martinez

and back for the

to travel to

San Diego

purpose of transporting the marijuana.

December 29, 1990,

co-defendants Cordero-Nieves,

Vargas

and Santiago-Martinez

Diego,

California and

were

Puerto

travelling

Rico when

intercepted and searched pursuant

On

Rodriguezbetween

San

their luggage

was

to warrants.

The searches

uncovered approximately 85 kilograms of marijuana.

The

on January

13,

1992, before the same judge who presided over the trial.

The

district court
that

was

held

determined a base offense level

85 kilograms of marijuana had been seized.

2D1.1(c)
by

sentencing hearing

four

and 2D1.4.
levels

of 24, given
U.S.S.G.

It then enhanced the base offense level

pursuant

to

-3-

U.S.S.G.

3B1.1(a)

for

appellant's

role as an organizer

participants.

The court

or leader of

reduced the offense

five or more
level by

two

levels for appellant's acceptance of responsibility, U.S.S.G.

3E1.1(a), arriving
criminal history
for 63 to
months

at a total

category I,

78 months.

of 26.

the relevant guideline

The court

imprisonment and

offense level

called

sentenced appellant to

four years

At

supervised release

70
and

imposed a special monetary assessment of $50.

The

district court made

the following findings at

the sentencing hearing in support of

appellant's base offense

level for his role in

1) appellant "took affirmative

tickets for

its decision to enhance

the offense:

steps to purchase the airline

his co-defendants,"

and 2)

appellant "imparted

instructions to the couriers relative to the transporting and

delivering of the marijuana seized."

To support

its finding

that appellant was an organizer or leader, the district court

also

adopted the

Presentence Report

(PSI) and

two addenda

thereto prepared by the probation officer.

The PSI set forth the facts of the case in somewhat
more detail

than the

pursuant to Local

government's statement of

Rule 418.

The PSI

facts filed

stated that

Cordero-

Nieves, Rodriguez-Vargas, Santiago-Martinez and

others "were

instructed

Rico to

to

travel round-trip

from

Puerto

San

Diego, California, to bring luggage loaded with marijuana for

Carmelo Rosado and

Wilfredo Barreto."

The PSI also asserted

-4-

that on December 26,

search warrant

1990, U.S. Customs officers

for luggage

checked in by

obtained a

appellant to

the

flight from San Juan to San Diego (via Nashville, Tennessee).

The suitcase was searched and found to contain $105,590.00 in
cash.

The

PSI

noted that

authorities," appellant

"pursuant

and Rosado

to the

were the

governmental
organizers and

leaders of the scheme

"since they arranged for the

group of

couriers to travel to

San Diego, California, to pick

up the

marijuana."
Appellant filed a partial
which

he

inaccuracies

sought
and

government's

to

contested

certain

the

characterization

organizer or leader.
misfortunes

clarify

opposition to the PSI in

PSI's
of

his

career

pregnant wife's

ill

health warranted

the guidelines.

acceptance

the

appellant

Appellant also argued

in

from

alleged

as

an

The probation

amateur

factual
of
as

the
an

that his recent

boxer and

a downward

his

departure

officer, pursuant

to

Local Rule 418, prepared

two addenda to the PSI

to appellant's opposition.
conclusion

that

the

in response

The addenda reconfirmed the PSI's

facts

warranted

enhancement

for

appellant's role in the offense as an organizer or leader.

II.
On
court's

appeal,

factual

enhancement

DISCUSSION
__________

Barreto

findings

and the

contests
underlying

both

the

the

district
four-level

district court's interpretation

of the

-5-

underlying facts to
leader

find that appellant

within the meaning of U.S.S.G.

is an organizer
3B1.1(a).

or

We review

the district court's determination of the appellant's role in

the

offense only for clear

error.

United States v. Panet______________

______

Collazo,
_______

960 F.2d 256, 261 (1st Cir. 1992); United States v.

_____________

Akitoye,
_______

923 F.2d 221, 227 (1st Cir. 1991); United States v.

_____________

Ocasio, 914 F.2d 330,

______

333 (1st Cir. 1990); United States v.

______________

Diaz-Villafane, 874 F.2d 43, 48

(1st Cir.) cert. denied

493

______________

____________

U.S. 862 (1989); 18 U.S.C.

3742(e).

Factual Findings
________________
Appellant
purchased airline
that

the evidence

only for
the

disputes the court's finding that he had

tickets for his co-defendants.
_
was that he

purchased an

co-defendant Cordero-Nieves.

court's

regarding

finding that

he

the transportation and

He states that this

airline ticket

Second,

instructed

He argues

he contests

the co-defendants

delivery of the marijuana.

information was not included in

the PSI

or its addenda.
Appellant argues
ticket
Facts

for Cordero-Nieves.
filed with

appellant pursuant
"on or

The

Government's Statement

plea agreement

to Local

about December

purchased
Nieves

the

that he only purchased an airline

and

Rule 418, however,

26, 1990, defendant

airline tickets

executed by

for

-6-

the

states that

Wilfredo Barreto

defendant Reinaldo

. . . , and other individuals."

______________________

of

Cordero-

At trial, there was

evidence
for

introduced that appellant purchased airline tickets

several persons.

Appellant's attorney

stated at

the

sentencing hearingthat theappellant had bought"some tickets."

The evidence does indicate
whom appellant

purchased

named

as a

co-defendant

court

apparently

relied

that of the persons for

tickets, only
in the
upon

indictment.
the

PSI's

"Carmelo Rosado and

Wilfredo Barreto

[co-defendants] and

other individuals."

erred in

stating that

Cordero-Nieves

was

The district
statement

that

purchased tickets
Even if

for

the court

appellant "took affirmative

steps to

purchase the airline tickets for his co-defendants," any such

_
error is
himself

harmless.
and at

Appellant purchased

least four other

those other persons were

airline tickets for

persons.

At

least two of

identified at trial as part

of the

group which met at the airport on December 26, 1990 to travel

to

San

Diego.

conspiring
persons."

The

with his

indictment

co-defendants

charges

appellant

"and with

with

diverse other

Appellant's leadership status is not diminished by

the Grand Jury's failure to indict all of the co-conspirators

for whom the appellant

purchased tickets.

Any error

in the

court's finding with respect to the status of the persons for

whom appellant purchased tickets is harmless.
Appellant
that he

objects to the

"imparted instructions

the transporting

district court's finding

to the couriers

and delivering of the

relative to

marijuana seized" on

-7-

the ground that this information did not appear in the PSI or
its

addenda.

The

PSI, however, states

that Carmelo Rosado

and appellant purchased airline tickets for the co-defendants

and others and
trip

that "they were

from Puerto

Rico to

instructed to travel

San Diego,

round-

California, to

bring

luggage loaded with marijuana for Carmelo Rosado and Wilfredo

Barreto."

Viewed in isolation, the "they" in the last quoted

phrase may be ambiguous.

which

case

someone

instructing.

"They" could

other

On the
alone,

conclude

appellant

recipients

of

instructions.

the
The

appellant

was

other hand, "they" could

three couriers
that

than

include appellant, in

in which

case

and Carmelo

marijuana,
district

latter interpretation.

it is

court

Rosado,

were

the

doing

the

reference the
reasonable

to

the intended
ones

giving

ostensibly adopted

the

For several reasons, that was a fully

permissible construction.
First, the

PSI also

governmental authorities, [the

states that "pursuant

to the

appellant and Carmelo Rosado]

arranged

for the group of

California,

to pick up

could reasonably

couriers to travel

the marijuana."

to San Diego,

The district court

conclude that appellant instructed

the co-

defendants as part of "arranging for" their travel to pick up

the drugs.
Second, in applying
district court

the sentencing guidelines, the

was not restricted to

the evidence presented

-8-

in

the PSI.

access to,
indicia

provided

6A1.3.

F.2d 33, 36

rely on any information it had

that the

of reliability

U.S.S.G.

(1991).

The court could

to

information

support its

See United States

___ _____________

(1st Cir.

"sufficient

probable accuracy."

v. Zuleta-Alvarez, 922
______________

1990), cert. denied,

____________

Evidence introduced at trial

had

111 S.Ct.

2039

and subject to cross-

examination certainly satisfies this test.

At
December 26,
others at

trial, government

witnesses testified

1990, appellant met with

the airport,

that on

the co-defendants and

distributed airline tickets

to them

and departed San Juan with the group on a plane bound for San
Diego, California (via Nashville, Tennessee).
also

The government

introduced evidence at trial that a suitcase with a tag

bearing appellant's name

and checked onto the

flight to San

Diego was intercepted and found to contain more than $100,000

in cash.
from

The district court could reasonably have concluded

this

testimony

distributed

hence

regarding

who

purchased

necessary for a drug purchase,

immediately in
the

appellant,

and

airline tickets and whose suitcase contained the

large amount of cash

person

that

one
the

control of

giving
transport

the

job in

progress and

to

the

co-defendants

delivery

of

instructions
and

was the

the

drugs.1

____________________
1. At his guilty plea hearing, appellant appeared to admit
that he also purchased the marijuana in San Diego:
Mr. Barreto:

We agreed among each other to bring this

marijuana into Puerto Rico.
-9-

Therefore,
imparted

the

district court's

instructions to his

conclusion

co-defendants is

the evidence and is not clearly erroneous.

that appellant
supported by

Interpretation of the Facts

___________________________
In
district

addition

court's

factual

court's interpretation of
an organizer or leader.
district

court

distinguishing

to
a

to

appellant's
findings, he

also

to

the

contests

the

those facts to conclude that he is

The Sentencing Guidelines direct the

consider

leader

challenge

or

the

following

organizer from

factors

in

manager

or

supervisor:
the
exercise
of
decision
making
authority, the nature of participation in
the commission of
the offense,
the
recruitment of accomplices, the claimed
right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercised over others.
____________________
The
Mr.
The
Mr.
The

Court:
Barreto:
Court:
Barreto:
Court:

Mr. Barreto:
The Court:
Puerto
Mr. Barreto:

And you bought the tickets?

With someone else.
And the group went to San Diego?
Yes.
And you bought the marijuana there in San
Diego?
Yes.
And the marijuana you brought back to
Rico?
Other co-defendants.

There is some ambiguity in this exchange, however, as to

whether "you" refers to appellant himself or to the group.
The PSI made no reference to that admission and we have not
relied on it in determining that the district court's factual
findings are supported by the evidence.
-10-

U.S.S.G.

3B1.1, comment.

(n.3); United States

_____________

v. Sostre,
______

No. 91-1918, slip op. at 12 (1st Cir., June 29, 1992); United
______
States v. Sabatino, 943 F.2d 94,
______
________
not

necessary that

the court

101 (1st Cir. 1991).

find evidence

of all

It is
of the

factors before enhancing a

defendant's sentence for his role

as a leader or organizer.

United States v. Preakos, 907 F.2d

_____________
_______

7, 9 (1st Cir. 1990).

The

district

court's

purchased

airline tickets

regarding

the transportation

findings

that

and instructed
of

appellant

the co-defendants

the drugs

focused on

the

appropriate factors.

See United States v. Panet-Collazo, 960

___ _____________
_____________

F.2d

these factual

at 261.

From

trial testimony
district

court

findings, and

summarized above, it was

to

infer

that

given the

reasonable for the

appellant

exercised

significant degree of decision-making authority in organizing

the transportation of the drugs and exercised control over at
least some of his co-conspirators.
In

light

of

these

reasonable

inferences,

the

district court's decision to enhance appellant's sentence for

his

role in the

offense as an

organizer or

leader was not

clearly erroneous.

See United States v. Preakos, 907 F.2d at

___ _____________
_______

9-10

not

(enhancement

"exercised a
organizing

high

clearly

degree of

a number

of

Maine" and "directed [his

erroneous

where

decision-making

cocaine shipments

defendant

authority

in

from Florida

to

distributors] with regard to their

-11-

role

in the

Ortiz,
_____

various cocaine

878 F.2d

enhancement not

125, 127

others
Castro,
______

enhancement

(concluding that

defendant "made the

the place, the quantity and

the price to

the cocaine" and "gave directions to some of the

involved
908

Cir. 1989)

clearly erroneous where

decision regarding
be paid for

(3d

shipments"); United States v.

______________

in

F.2d
where

transport drugs);

the
85,

transaction");
90

defendant

(6th

Cir.

directed

cf. United States v.

___ _____________

United States
______________
1990)

v.

(upholding

co-defendants

to

Sostre, No. 91-1918,

______

slip op.

at 13-14

(finding that enhancement

for managerial

role in the offense was clearly erroneous where defendant was

merely a "steerer," directing buyers

to sellers, but did not

exercise

co-defendants);

States
______

control
v.

over

Fuller,
______

any of

897

F.2d 1217,

(finding that enhancement for

"organizer,

leader,

erroneous where

the

1221

(1st

United
______

Cir.

1990)

defendant's role in offense of

manager

defendant did

or

supervisor"

was

clearly

not exercise control

over or

organize others in the commission of the offense).

At
alternative

his

sentencing hearing,

interpretation of the

appellant

facts.

He

offered an

argued that a

leader or organizer would not purchase airline tickets or put

his name on luggage filled with cash since such a person does
not want to be identified.
he was paid $1,000

Appellant asserted, instead, that

to purchase the airline tickets

the drugs were to be delivered

and that

to someone else, to whom they

-12-

belonged.

In other

words, appellant took the

position that

he was

working for someone else

organizer and that

given

him a leader

or organizer.

to submit any evidence

his alleged boss

numerous

true leader or

appellant's limited responsibilities were

insufficient to make
did not offer

who was the

or the

as to the

payment of $1,000

opportunities

to

Appellant

make

identity of

although he

such

an

was

offer

in

response to the PSI and at his sentencing hearing.2

Appellant's

argument that

his role

in purchasing

tickets and the presence of his name on the tag

full of

cash imply that he was not a leader or organizer may

be reasonable.

However, the district court's interpretation

of the evidence as
of appellant
entitled to

11 (1st

views of

indicating a leadership role on

is also

reasonable.

choose between these

of the evidence."
7,

470

"The district

the part
court was

reasonable interpretations

United States v. Iguaran-Palmar, 926 F.2d

_____________
______________

Cir. 1991).

"Where

there are

the evidence, the factfinder's

cannot be clearly erroneous."

City,
____

on a luggage

U.S. 564,

574

two permissible

choice between them

Anderson v. City of Bessemer

________
_________________

(1985);

United States v.
______________

Diaz_____

Villafane, 874 F.2d at 49.

_________
____________________
2. Even if the appellant had identified a co-conspirator who
was above himself in the chain of command, this would not
preclude a finding that the appellant was an organizer or
leader. To be an organizer or leader within the meaning of
U.S.S.G.
3B1.1(a), it is not
necessary to be the
participant most involved in the commission of the offense.
United States v. Ortiz, 878 F.2d 125 (3d Cir. 1989).

_____________

_____
-13-

Regardless whether we
conclusion about appellant's
district
deference

court,
to

we are

the

district

Veilleux, 949
________

United States
______________

role in the offense as

mindful of

guidelines to the facts."

v.

18 U.S.C.

F.2d 522,

v. Dietz,
_____

our

court's

950 F.2d

duty to

same

did the
"give due

application

of

the

3742(e); United States

_____________

524 (1st

("Because role-in-the-offense
fact-specific,

would have reached the

50,

Cir. 1991);
52 (1st

see also
___ ____
Cir. 1991)

determinations are necessarily

'considerable respect [must]

be paid

to the

views of the nisi prius court.'" (citation omitted)).

III.

CONCLUSION
__________

The district court's

was an organizer or

determination that

leader within the meaning of

3B1.1(a) focused

on the appropriate enhancement

is

the record.

supported by

therefore,

summarily affirm

We find
pursuant

U.S.S.G.
factors and

no clear
to 1st

appellant

error and,

Cir. Loc.

R.

27.1.

-14-