993 F. 2d 1531 - United States v. Rosa-Hernandez

This sentencing appeal has two foci. We consider each in turn.

First, defendant-appellant Carlos Daniel Rosa-Hernandez claims that the district court erred in refusing to treat him as a minor player in the offense of conviction (a drug-trafficking crime). See U.S.S.G. § 3B1.2(b) (providing for a two-level reduction in the applicable offense level if the defendant is a minor participant). Absent mistake of law, we review a trial judge's role-in-the-offense assessments only for clear error. See United States v. Garcia, 954 F.2d 12, 18 (1st Cir. 1992); United States v. Akitoye, 923 F.2d 223, 227 (1st Cir. 1991). We approach this task mindful that, "[a]s with other sentence-decreasing adjustments, a defendant must shoulder the burden of proving his entitlement to a downward role-in-the-offense adjustment." United States v. Ocasio-Rivera, No. 92-2100, slip op. at 5 (1st Cir. April 1, 1993).

Appellant did not challenge the factual underpinnings of the presentence investigation report. From the contents of that report, the district court could permissibly have found that appellant actively participated in a meeting on April 16, 1992 with his cohort, Miguel Rodriguez-Gonzalez, and a confidential informant (who was acting as an internuncio for the prospective purchaser, a government agent); that, when the undercover agent joined the trio, appellant made it clear that he did not want anybody to see his (appellant's) face; that, after the men had shooed the purchaser away, the informant emerged from a further meeting with appellant and Rodriguez-Gonzalez, met with the agent, and gave him instructions, attributed to appellant, for delivery of the purchase money to a specific site (a shopping center); that, thereafter, appellant transported Rodriguez-Gonzalez and the informant to the shopping center, where he introduced the informant to Julio Gomez-Gonzalez; and that, later the same afternoon, the informant and Gomez-Gonzalez attempted to consummate the sale of five kilograms of cocaine for $85,000. At the time of the arrest, appellant was still at the shopping center, standing by his truck, and (or so the court could have found) either overseeing or keeping watch to safeguard the transaction.

To be sure, appellant was not a direct, hands-on participant at the time of sale. Nevertheless, based on the facts recounted above, the lower court supportably could have found that appellant was a full-fledged player in the venture. In short, given, especially, the burden of proof, we do not believe that the court was legally required to accept appellant's self-serving claim that he was a minor participant. Compare, e.g., Ocasio-Rivera, slip op. at 5-7; United States v. Ortiz, 966 F.2d 707, 717 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993); United States v. DiIorio, 948 F.2d 1, 5-6 (1st Cir. 1991); United States v. Rosado-Sierra, 938 F.2d 1, 1-2 (1st Cir. 1991) (per curiam); United States v. Osorio, 929 F.2d 753, 764 (1st Cir. 1991); United States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990). In the final analysis, when there are several plausible views of the record, "the sentencing court's adoption of one such view cannot be clearly erroneous." United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992). So it is in this case.

Appellant's remaining asseveration is no more hardy. He claims that, as part of a plea agreement, the government promised that it would "not oppose [his] request for a downward adjustment for his role in the offense," Appellant's Brief at 11, but reneged on the promise. The problems with this argument are many-and they are insurmountable. The most fundamental difficulty is the ephemeral nature of the alleged agreement: the record does not contain a whisper of a hint of an intimation of the supposed promise. Moreover, appellant, who was represented at all times by able counsel, did not assert the existence of any such promise in the written petition that accompanied his request to the district court for permission to plead guilty, in the colloquy that transpired during the change-of-plea hearing, see Fed. R. Crim. P. 11, or in his written objections to the presentence report. In point of fact, on the first two of these occasions, appellant explicitly denied that any promises, not previously disclosed, had been made to him.

We see no reason to look behind appellant's own statements. We have repeatedly refused to imply plea agreements or plea agreement provisions out of thin air, see, e.g., United States v. Doyle, 981 F.2d 591, 594 & n.3 (1st Cir. 1992); United States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992); Garcia, 954 F.2d at 17; United States v. Hogan, 862 F.2d 386, 388-89 (1st Cir. 1988), and we adhere to that view today. If there was a promise-and we emphasize that we have found no sign of one-it should have been made known to the district court no later than the date of the Rule 11 hearing, not kept hidden amidst counsel's or defendant's unspoken reveries. See Garcia, 954 F.2d at 17 n.3; Hogan, 862 F.2d at 389 n.4.

The upshot is that appellant has no case. Because it clearly appears that Rosa-Hernandez was lawfully sentenced and that his appeal presents no substantial question, we need go no further. See 1st Cir. Loc.R. 27.1.

Affirmed.

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