USCA1 Opinion

May 3, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-2327

UNITED STATES OF AMERICA,

Appellee,

v.

CRISTOBAL SORIANO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

William C. Dimitri with

__________________

whom Dimitri & Dimitri was on brief

__________________

appellant.

Sheldon Whitehouse, United States Attorney, with whom Margaret

__________________
_________
Curran and
______

Zechariah Chafee, Assistant United

________________

on brief for the United States.

States Attorneys, w

____________________

____________________

Per Curiam.
___________

"Cristobal Soriano,"

whose real

name is

David De LaCruz Hiciano, was arrested with two others, Rafael

Vidal and Johana Ovando, in

August 1994, after selling crack

cocaine

agent.

to

conspiring

count

an

to distribute

each

distribution,

LaCruz

undercover

of

drugs, 21

possession

21 U.S.C.

pled guilty

He

to all

counts.

charged

with

846, and

one

distribute

and

U.S.C.

with intent

841(a)(1).

was

to

On March

8, 1995, De

The quantity

triggered a mandatory minimum ten-year sentence.

of drugs

21 U.S.C.

841(b)(1)(A)(iii).

De

LaCruz suffers

will not survive

in November

from a

terminal illness

the mandatory minimum term.

1995, De LaCruz sought relief

valve" provision,

18 U.S.C.

and likely

At sentencing

under the "safety

3553(f) and U.S.S.G

5C1.2,

which would allow him--if he met the five

the mandatory minimum and

criteria--to avoid

be sentenced under the guidelines.

The court calculated his guidelines range to be 87-108 months

(including

probable

departures), and

De

LaCruz asked

for

several additional departures to further reduce his sentence.

The government argued that

relief under

section 3553(f)

disclosure of

subsection (5).

failed

information

De LaCruz was ineligible for

because

about the

he had

offenses

not made

required

the

by

The court disagreed but found that De LaCruz

different

condition--subsection

-2-2-

(4)--because

he

controlled the drug enterprise.

less culpable

was

not

defendants and applies only

an organizer,

others in the

offense."

issue on appeal is

clear

error.

op. at 10

The safety valve is aimed at

leader,

18

manager,

U.S.C.

if "the defendant

or supervisor

3553(f)(4).

of

The main

whether this fact-bound determination was

United States v.
_____________

Montanez, No. 95-2096, slip.

________

(1st Cir. Apr. 24, 1996).

The pertinent evidence

is as follows.

On August 21,

Cherry Street

1994, an

in Pawtucket,

agent went to

Rhode Island, and

from Vidal and another unidentified man.

later

that month

present;

drugs

to

buy more.

he telephoned

De

at another location.

an apartment

This

bought crack

The agent went back

time only

LaCruz, who

at

Vidal was

apparently had

While waiting for

the

De LaCruz to

arrive, the agent gave Vidal $50 in marked bills.

De LaCruz

gave the agent

arrived a

crack that

short time

later with Ovando

the agent had

already paid

and

for.

Ovando explained to the agent that she and De LaCruz would be

moving to a new address and that from now on the agent should

go

there if the

agent wanted more

drugs.

The agent left.

Minutes later the defendants were arrested.

The $50 that the

agent had given Vidal was found on De LaCruz.

Agents subsequently searched an apartment at Rand Street

in Central Falls, Rhode Island.

Ovando; and she and De LaCruz

This apartment was leased to

had been at the apartment (and

-3-3-

under surveillance) on August 21 when Vidal telephoned him to

arrange the

bags

delivery.

and other

This search

drug-trade

De

revealed scales, plastic

paraphernalia and

indicating

that

apartment.

In an adjoining basement, agents found a stash of

73.8 grams of crack

$100 in marked

LaCruz

also

occupied

also evidence

or

used

and $3900 in cash--including $60

bills the

agent had given

the

of the

Vidal during

the

first buy.

At sentencing

equal

De LaCruz insisted that he and Vidal were

partners and that Vidal

and money at

also had access

Ovando's apartment.

registered at that address.

In fact

to the drugs

Vidal's car

was

But the district court concluded

that De LaCruz was "in charge," finding that De LaCruz stored

the

drugs in the Rand Street apartment he shared with Ovando

and supplied

them to Vidal,

who merely arranged

the sales.

Later in the hearing, the district court said:

If he wasn't the leader I don't

This is

a three

charge.

It was

person

operation and

his operation.

do with it?

can't.

I'd

like to give

can to

go back to

with

know who was.

he was

What more

can't, I've wrestled with it

his relatives.

can you
and I

him every opportunity

the Dominican Republic

in

and die

But he's going to have to die

in a federal penitentiary, that's what it comes to.

And this is costly.

This is costly to

the United

States government.
. . .

But that's the way it works.

discretion
throw
and

away
so I

to just

throw away

Congress' mandatory
have to apply

them. .

I don't have the

the guidelines

or

minimum sentences
. .

have no

choice, I have to apply the mandatory minimum which

is 120 months in prison.

-4-4-

Conceivably, the district court

other way.

safety

The

probation officer recommended

valve provision,

reservation

at

and

sentencing

"leader."

But the final

court, and

it was rational

held

could have come out the

the prosecutor

about

calling

expressed some

De

determination is for

to conclude that

the drugs and money--was in charge.

applying the

LaCruz

the

the district

De LaCruz--who

De LaCruz's equal-

partners gloss

burden

to show

is

plausible but,

clear

error and

on appeal,

cannot

he bears

prevail simply

the

by

putting forth a reasonable alternative interpretation.

This would resolve matters entirely but for the district

court's brief

know who

was."

comment, "[i]f

In the

he wasn't

the leader

abstract, this might

I don't

imply a belief

that someone is necessarily the leader in a group sale.

belief would

deemed leaders

U.S.S.G.

be

error, since

unless one

3B1.1;

or both

United States
_____________

equal

controlled others.

v. Frankenhauser,
_____________

154266, at *11 (1st Cir. Apr. 9, 1996).

likely that the comment

partners cannot

Such

be

See
___

1996 WL

We think it far more

was merely a way of

emphasizing the

court's view that De LaCruz was in fact the leader.

De LaCruz may share this latter view because he does not

raise this

issue on

appeal

limited to "plain error."

1770, 1777-79 (1993).

statement

could qualify

and our

review is

accordingly

United States v. Olano, 113 S. Ct.

_____________
_____

It may be doubtful that

as

plain error

-5-5-

an ambiguous

although we

might

still be entitled

Olano
_____

to seek clarification.

still requires a

113 S. Ct. at 1779.

But relief

miscarriage of justice

under

or the like.

For a reason not mentioned by either the

district court or the government, such a conclusion would

be

hard to reach in this case.

Despite De LaCruz' attempt

to exculpate Ovando, her own

role in the August 24 sale indicates that she played a

role

in the

transaction.

guilty and De LaCruz

Indeed,

Ovando herself

told his probation officer that

minor

pleaded

he was

"sorry for getting Johana Ovando implicated in something that

reaped her

no benefit."

If he did not lead Vidal, De LaCruz

certainly appears to have

Ramirez, 948
_______

F.2d 66,

67

led Ovando.

(1st Cir.

See United States v.

___ ______________

1991) (husband

deemed

leader where wife a minor participant).

This is a distressing case.

The offenses underlying the

judgment are serious, but few would think that they warranted

having the defendant die in prison rather than in the care of

his

family

in his

minimum prescribed

own country.

by Congress,

But given

it appears that

only avenue for relief is executive clemency.

Affirmed.
________

the mandatory

De LaCruz'

-6-6-