USCA1 Opinion

April 25, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1352
UNITED STATES,
Appellee,
v.
JAIRO GIRALDO-PARRA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Luis Rafael-Rivera for appellant.
__________________

Jos
A. Quiles-Espinosa, Senior Litigation Counsel, with w
________________________
Guillermo Gil, United States Attorney, was on brief for appellee.
_____________
____________________
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

defendant-appellant
possess

cocaine and

U.S.C.

846; and

intent to distribute,
convicted

under the

Jairo
heroin

Giraldo

Parra

with intent

possession

of cocaine

jury convicted

of

conspiracy to

to distribute,
and

21

heroin with

21 U.S.C.

841(a)(1).

He was

also

"principals"

statute, 18

U.S.C.

2.

Defendant was sentenced to 151 months of incarceration.

There

are two issues

on appeal:

(1) whether the

district court erroneously denied defendant's Rule

for acquittal and (2)

29 motion

whether the district court incorrectly

applied the Sentencing Guidelines in

determining defendant's

sentence.
I.
I.
THE EVIDENCE
THE EVIDENCE
____________
We review the relevant evidence and draw reasonable
inferences

therefrom, in

government.

the

United States v. Mena-Robles, 4

_____________
___________

(1st Cir.

1993); United States

_____________

311

Cir. 1993).

(1st

followed

light most

a Drug

Five others were also

indicted along

Defendant's

arrest and

spanning the last five

F.2d 307,
indictment

(DEA) sponsored
months of 1991.

caught in the undercover net

with defendant.

the

F.3d 1026, 1029

v. Hernandez, 995
_________

Enforcement Administration

undercover operation

favorable to

Although defendant

and were
was the

sole defendant at trial, the co-conspirators' names appear in

the

record and

are

essential to

-22

understand the

evidence:

Oscar Gonzalez Lopez; Daniel Alberto

Atilio Adinolfi; Victor

Rodriguez Alvarez;

Edgardo Rodriguez;

Jorge Omar Lopez

operation,

John

Doe, a/k/a

Almeida.

As is usual in

and

a drug undercover

many of the conversations, telephone and face-to-

face, were recorded.

Defendant

was the

owner-operator of

called "Mi

Pequena Colombia"

Hato

The

Rey.

1991, when
member

located on Domenech

undercover operation

DEA Agent

a restaurant

started on

Jefferson Moran

and

Avenue in
August 21,

Pablo Rivera,

of the Police of Puerto Rico assigned to the DEA, met

with Oscar Gonzalez Lopez (Oscar) at a shopping center in Rio

Piedras,

Puerto Rico.

Oscar by

Agent Rivera as being interested

or heroin.
booth.

He then

agents to

headed
returned

Agent Moran

was introduced

asked

in

the

the agents

to

in buying cocaine

Oscar made a telephone call from

samples of heroin.
the

DEA

for $250

a public phone
to obtain

two

After obtaining the money, he accompanied

Domenech Avenue,
direction

shortly and

where he

of defendant's

gave Agent

left the

car and

restaurant.

He

Moran a

cigarette package

containing two separate samples of heroin.

Between August 23

and 29, Oscar and Agent Moran discussed, mostly by telephone,

the purchase of an ounce of heroin for $7,500.

On August 29,

Oscar and the two agents met and went together to defendant's
restaurant.

At the restaurant they were introduced to Victor

Rodriguez Alvarez (Victor).

Victor asked for the payment of

-3-

$7,500 before turning over

the heroin.

money,

restaurant

he

went

bartender, Edgar
gave Victor

called and

Edgar and was

who

gave

delivered it

into the restaurant and

Edgar

said "No."

it to
Edgar

to Agent

the
then

Moran.

asked if defendant

Later,

defendant called

told that Victor had delivered the merchandise

and he, Edgar, had the $7,500.

to

and

receiving the

Rodriguez Velazquez (Edgar).1

the heroin,

Victor went back

had

into the

After

the restaurant and

Sometime later defendant came

the $7,500 was turned

over to him by

13, 1991, Agent Rivera

was called by

Edgar.
On September
Victor and it

was agreed

ounce of heroin for

defendant's
Defendant

$7,000.

restaurant and

sell Rivera

Agent Rivera then

asked

Edgar

at the pizzeria.

from him an ounce

nearby pizzeria.
He paid Victor

of heroin.

After the

an

proceeded to

where Victor

was present when the inquiry was made.

told that Victor was at a

"buy"

that Victor would

was.

Rivera was

Rivera made

the

$7,000 and received

transaction, Victor

went to defendant's restaurant and met with defendant, Edgar,

and

Daniel Alberto Atilio Adinolfi (Atilio).

The $7,000 was

given to Atilio, who passed it to Edgar, who put it under the

counter.

____________________
1.

Named in indictment as John Doe a/k/a Edgardo Rodriguez.

-44

On
defendant's
answered
line.

September
restaurant

25,
and

the phone and after

Moran

asked Edgar to

1991,
asked

Agent
for

have Victor

Victor

delivered

payment of $7,000.

to

Edgar on the
Later
the

Before meeting Rivera

restaurant and

Defendant and Edgar

at the time the heroin

the heroin

Defendant

call him.

went to defendant's

obtained an ounce of heroin from Atilio.

were at the restaurant

called

set up a meeting at

pizzeria near defendant's restaurant.

pizzeria, Victor

Victor.

the inquiry, put

Victor called Agent Rivera and they

at the

Moran

Rivera in

Victor returned to the

was obtained.
return

for the

restaurant, gave

the money to

Atilio and

asked for his

commission.

Atilio

refused to give Victor a commission; instead he referred

to defendant.
be paid
Victor's

Defendant told Victor that no commission would

because Victor owed him

dealings with the

defendant

him

$200.

This was

undercover agents.

the end of
Presumably,

and his cohorts found out that he had been dealing

with a DEA agent.

In

late

November

or

early

December,

the

DEA

recruited a confidential informant, Eliezer Gallegos, to join

its undercover operation.

On December 5,

Gallegos met with

defendant and Atilio at the restaurant where the purchase

one-half of a
On December
restaurant.

kilogram of cocaine for

6, another negotiation
At

the end

of the

of

$5,000 was discussed.

meeting was held

conversation,

at the

Atilio told

-55

Gallegos that they would

take a ride and complete

Defendant had told Atilio:

take him
it."

around for a

"If he is going to buy

ride so

Gallegos understood

the deal.

he will get

the car,

acquainted with

this to mean that the

cocaine was

in a car.

Gallegos and Atilio left the restaurant, got into

a car, and drove around the block.

The "buy" was made in the

car; Gallegos paid Atilio $5,000 and received half a kilogram

of

cocaine.

followed

by

motorcycle.

During the
Jorge

drive around

Omar Lopez

the block

Almeida,

who

they were

was

riding a

Presumably, this was to protect the "buy."

Later that same day, Gallegos called the restaurant

and told Edgar that the half kilo of cocaine was short by six
grams.

On December

that the
amount

cocaine he had bought

agreed upon.

make up

for $200.
Defendant

Gallegos
was at

Atilio

was

at another

Atilio

for the six grams

package.

Atilio

went to the

table

than the

a sample of

restaurant the next

with two

unknown persons.

with Edgar.

Gallegos asked

of cocaine and

the heroin sample.

wait because defendant was busy.

went over
passed

told him

Gallegos that he would

day and sell him

a table

He was told by Atilio to

little later Atilio

was six grams less

Atilio promised

the shortage the next

heroin
day.

11, Gallegos called Atilio and

the

to defendant who
package

to

gave him

Gallegos.

contained six grams of cocaine and a heroin sample.

-66

A
a
It

The next

day Gallegos went to

the restaurant and paid Edgar

$200 for

the heroin sample.

It

was stipulated

undercover agents and

as heroin and cocaine.

that

the drugs

bought by

the confidential informant

the

tested out

-77

II.
II.
DISCUSSION
DISCUSSION
__________
A.
A.

The Rule 29 Motion2

The Rule 29 Motion
Defendant argues that

denying

his

acquittal.
consider

Fed.R.Crim.P.
In reviewing

all the

the district court

29

motion

for

judgment

the denial of a Rule 29

evidence, draw

erred in

all reasonable

of

motion, we
inferences

therefrom, and resolve all issues of credibility in the light

most

favorable

to the

government,

in

order to

determine

whether a jury could have reasonably concluded that defendant

was guilty beyond a reasonable doubt.
1031;

Mena-Robles, 4 F.3d at
___________

Hernandez, 995 F.2d at 311.

_________
The thrust

of defendant's argument is

that he was

simply

an

honest

misadventure

it

businessman

was

that

premises without his

drug

the myriad

restauranteur

dealers

operated

blessing, knowledge, or

In support of this position,

of

and

whose
on

participation.

defendant points out that

DEA recordings

or photographs

none

introduced at

trial capture him conducting an illicit drug transaction.

have

his

We

reviewed the record carefully and, while we concur with

defendant's contention

that the

government did

not produce

____________________
2. Fed.R.Crim.P. 29 states, in relevant part: "The court on
motion of defendant or on its own motion shall order the
entry of judgment of acquittal of one or more offenses
charged in the indictment or information after evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses."
-88

any direct evidence

his premise and
basis.

To

of his complicity,

we must reject

his conclusion, because neither has

the contrary, it is

evidence

a legal

a well-established principle

that,
[t]he

both

[introduced against

the

defendant at trial] may

be entirely
circumstantial, and
need not exclude
every reasonable hypothesis of innocence,
that is, the factfinder may decide among
reasonable
interpretations
of
the
evidence.
United States v. Batista-Polanco,
_____________
_______________

927 F.2d 14, 17 (1st

Cir.

1991)(citations omitted).
Defendant
as a

has attempted to rely on "mere presence"

defense to the

distribution.

Of

charges of conspiracy,
course,

in

possession, and

establishing

conspiracy

charge, the prosecution must prove intent to agree and commit

the

substantive

Robles,
______

F.3d

offense beyond
at 1031.

The

reasonable
evidence

however, may be either express or inferred

if

circumstantial

evidence

raises

doubt, Mena_____

for such

proof,

from conduct, and

reasonable

inferences

sufficient to refute the claim of mere presence, it is enough

to sustain the verdict. Id.; Batista-Polanco, 927 F.2d at 18.
___ _______________
Further informing

this analysis

that participants

in a

permit or tolerate the

a

jury is

presumed

is the

oft-repeated truism

criminal conspiracy are

unlikely to

presence of extraneous observers, and

capable of

drawing such

an inference.

United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).
_____________
_____

-99

In the case at bar, the evidence shows that all the

drug transactions which form the basis of the indictment took
place

in

and

restaurant.

around

"Mi

There is

present either before,

The jury
were

Pequena

ample

evidence

could reasonably

source of

supply.

defendant's

that defendant

after, or during each

infer that the

authorized and controlled by

the

Columbia,"

was

of the "buys."

drug transactions

defendant and that he was

Accordingly, we

reject defendant's

contention that the evidence of his guilt was insufficient.

B.
B.

Sentencing Claims
Sentencing Claims
The

by

court enhanced defendant's

four levels

for

his role

trafficking conspiracy,
for

as an

U.S.S.G.

organizer in

3B1.1, and

obstruction of justice, U.S.S.G.

time, the

court denied defendant's

downward

adjustment

Defendant

argues

for

that

At the same

request for a

court erred

of
in

the drug

by two levels

3C1.1.

acceptance

the

base offense level

two level

responsibility.
each

of these

determinations.
We will

disturb supported findings of a sentencing

court only when our review of the record "convinces us that a

grave

mistake was made."

United States v. Bradley, 917 F.2d

_____________
_______

601, 605 (1st Cir. 1990).

1.
1.

Role in the Offense

Role in the Offense

Based on
nature

of

the number of

the enterprise,

and

individuals involved,
the defendant's

the

leadership

-1010

role,

the

district

court

imposed

four

level

upward

adjustment to defendant's base offense level under U.S.S.G.

3B1.1(a).3

Because role

necessarily fact
court are

specific, the

the

offense adjustments

findings

reviewed under a deferential

States v. Morillo, 8
______
_______

of

review

adjustment for

(1st Cir. 1991).

F.2d 221, 227

for

the

are

sentencing

standard. See United

___ ______

(1st Cir. 1991).

sentencing

defendant's leading

[is] clear error."

of the

F.3d 864, 873 (1st Cir. 1993);

States v. Akitoye, 923

______
_______
"standard

in

court's

United
______
The
upward

role in the

offense ...

United States v. Reyes, 927

_____________
_____

F.2d 48, 50

The
took

place

evidence established
almost

restaurant.

exclusively in

took

place only

leaving, or physically
the

judge

defendant was the

dealers.

and

the drug
around

activity

defendant's

Moreover, there was testimony to the effect that

transactions

alone

that

when defendant

present at the restaurant.

could

have

organizer and

Added to this we have

co-conspirators, Victor
operation, and

was entering,
From this

reasonably

concluded

that

leader of a

group of

drug

the testimony of one of the

Rodriguez,

that he alone could

that defendant

ran

the

determine whether Victor

was to be paid a commission on the sales he made.

____________________
3. Section 3B1.1(a) provides that "If the defendant was an
organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive, increase by
4 levels."
-1111

We

reject defendant's

claim

of error

as to

the

four-levelenhancement for hisrole in theoffense as meritless.

2.
2.

Obstruction of Justice
Obstruction of Justice

At trial, Victor Rodriguez testified that defendant

had

approached

requested

that

explaining that
charged

him

during

their

Victor write

defendant had

in the indictment.

pretrial

letter to

detention
the

trial judge

no involvement in
This letter was

and

the counts

solicited as a

quid pro quo, in exchange for which defendant would see to it

____ ___ ___
that Victor's family was adequately provided for while Victor
was incarcerated.

Victor also testified, and the presentence

report

states,

Victor

would be harmed if

the government.
justice.

that co-conspirator
he were to

of

enhancement, like

threatened that

provide assistance to

This was clearly an attempted obstruction of

Section 3C1.14

enhancement

Atilio

two

of

levels

the guidelines
for

such

calls

conduct.

for an
Such

an

that for a leadership role in the offense,

is fact-based and therefore reviewed for clear error.

United
______

States v.
______

1993);

Gonzales,
________

Akitoye, 923
_______

F.2d at

12

F.3d

229.

298,
There

299
was no

(1st

Cir.

error, clear

or

____________________
4. Section 3C1.1 states:
"If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation,
prosecution, or sentencing of the instant offense, increase
the offense level by 2 levels."
-12-

12

otherwise,

by

the

court

in applying

the

obstruction

of

justice guideline.
3.
3.

Acceptance of Responsibility
Acceptance of Responsibility

Defendant
lower court's
downward

has a threshold problem in attacking the

determination that

adjustment for

Gonzales, we held that

________
for

an

acceptance

of

he did

acceptance of

not qualify

for a

responsibility.

In

"[o]nly 'extraordinary cases' qualify

responsibility credit

following

an

enhancement for obstruction of justice." Gonzales, 12 F.3d at

________
300,

(quoting

case,

U.S.S.G.

there was

hearing

3E1.1, comment

testimony at

showing

that,

trial

even

after

(n.4)).

and at

In this

the sentencing

being

incarcerated,

defendant actively sought to mislead the trial court in order

to escape responsibility for the
are

the

same

charges for

charges against him.

which

he

now

These

alleges to

have

accepted responsibility.
Only
allocution at

at

his

presentence

the sentencing

hearing

interview

and

did defendant

in

his

accept

responsibility

for

limited manner.
had not"

his actions,

and he

did

so only

in a

The district judge found that "the defendant

accepted responsibility within the

guidelines, and

that the

and was devoid of remorse.

acceptance made was

1, 4-5

not authentic

Findings as to these factors will

not be reversed absent clear error.

Rivera, 991 F.2d
______

meaning of the

United States v. Ocasio_____________

_______

(1st Cir. 1993);

United States
_____________

v.

-1313

Royer,
_____

895

F.2d

28,

sentencing judge has the

defendant, hearing his

29

(1st

Cir.

1990)

("Because

the

unique opportunity of observing the

allocution, and evaluating acceptance

of responsibility . . . against the backdrop of the case as a

whole,hisdetermination isentitled toagreat dealof respect.").
Accordingly,
was

entitled

to a

two

we reject

defendant's claim

level reduction

for

responsibility.
The judgment of the district court is

that he

acceptance of

Affirmed.
Affirmed.
________

-1414