United States Court of Appeals
For the First Circuit
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Boudin, Selya and Lipez,
Cynthia A. Young, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
Robert B. Mann and Mann and Mitchell on brief for appellant.
June 8, 2009
Per Curiam. Luis Zayas appeals from the statutory
mandatory minimum sentence of 120 months that was imposed following
his guilty plea to possession with intent to distribute and
conspiracy to possess with intent to distribute and to distribute
fifty or more grams of cocaine base. He challenges the sentencing
court's determination that he was an "organizer, leader, manager,
or supervisor," warranting a two-level increase in his offense
level pursuant to U.S.S.G. § 3B1.1(c), and precluding safety-valve
relief pursuant to 18 U.S.C. § 3553(f)(4). The government has
moved for summary affirmance. Only the sufficiency of the evidence
claim was raised at sentencing; as to all of appellant's other
claims, plain error review applies. For the following reasons, we
grant the government's motion and summarily affirm Zayas's
I. Judicial Factfinding Re: Safety-Valve Eligibility
Zayas relies upon Apprendi v. New Jersey, 530 U.S. 466
(2000), Blakely v. Washington, 542 U.S. 296
(2004), and Cunningham
v. California, 549 U.S. 270
(2007), to argue that the district
court was prohibited by the Sixth Amendment from making factual
findings that rendered him ineligible for safety-valve relief by a
preponderance of the evidence. Zayas concedes that this court's
decision in United States v. Bermudez, 407 F.3d 536
(1st Cir. 2005)
is on point; that opinion held under similar circumstances that
Blakely was not implicated when judge-found facts precluded
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application of the safety-valve to authorize a lower sentence. Id.
Zayas's argument is that Bermudez was decided before the
Supreme Court issued its decision in Cunningham, and is no longer
good law after Cunningham. Specifically, Zayas contends that the
role-in-the-offense factfinding by the sentencing court had the
effect of increasing the "statutory maximum," as that term is
defined in Cunningham, 549 U.S. at 275.
Zayas's reliance on Cunningham is misplaced. The Court
held there that California's determinate sentencing law "by placing
sentence-elevating factfinding within the judge's province,"
violated the defendant's Sixth Amendment right to jury trial,
following Apprendi, Blakely and United States v. Booker, 543 U.S. 220
(2005). Cunningham, 549 U.S. at 274 (emphasis added). The
Cunningham Court applied the definition of statutory maximum
articulated in Blakely, 542 U.S. at 303-304:
"[T]he relevant 'statutory maximum,'" this
Court has clarified, "is not the maximum
sentence a judge may impose after finding
additional facts, but the maximum he may
impose without any additional findings."
Blakely, 542 U.S., at 303-304 (emphasis in
Cunningham, 549 U.S. at 275.
In Zayas's case, the statutory maximum sentence that he
could receive based solely upon his guilty plea to counts 1 and 4,
which specified drug quantities of fifty or more grams of cocaine
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base, was life in prison and the minimum was ten years. See 21
U.S.C. § 841(b)(iii). Therefore, using the definition employed in
Cunningham, the relevant "statutory maximum" was a life sentence.
Clearly, no judicial factfinding resulted in imposition of a
sentence above that level. To the contrary, judicial factfinding
regarding Zayas's role in the offense resulted in his receiving the
statutory minimum sentence.
Before and after Cunningham, refusal to reduce a
statutory sentence based on judicial factfinding does not violate
the Sixth Amendment. Bermudez, 407 F.3d at 545. There was no error
in the sentencing court's reliance upon judicial factfinding in
determining that Zayas was ineligible for safety-valve relief.
II. Mandatory Application of Safety-Valve Criteria after
Zayas argues that the district court erred in concluding
that it did not have the authority to sentence him below the
mandatory minimum sentence because he did not satisfy all the
safety-valve factors. He contends that because the safety-valve
requirements reference the guidelines and Booker made the
guidelines advisory, then the safety-valve requirements are also
advisory. That argument has been rejected by all the courts of
appeals that have considered it. See, e.g., United States v.
Tanner, 544 F.3d 793
, 795 (7th Cir. 2008) (holding that the
sentencing judge "cannot treat as advisory the guideline provisions
that are preconditions for safety-valve relief, namely 18 U.S.C. §§
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3553(f)(1) and (4)"); United States v. McKoy, 452 F.3d 234
, 240 (3d
Cir. 2006) (reasoning that "[i]nterpreting § 3553(f) as advisory
would effectively excise that section from the statute," and
therefore would be inconsistent with Booker, which left § 3553(f)
intact). We agree. Thus, Zayas has failed to demonstrate that the
sentencing court erred in treating § 3553(f) as mandatory rather
III. Allocation of Burden re: Safety-Valve Prerequisites
Appellant argues that because the statutory provision, 18
U.S.C. § 3553(f)4), incorporates the sentencing guidelines, the
government bears the burden of proof. Under the statute, it is a
prerequisite for safety-valve relief that the defendant was not an
organizer, leader, or supervisor of others in the offense "as
determined under the sentencing guidelines." 18 U.S.C. §
3553(f)(4). Guideline § 5C1.2(a)(4) employs the same language, and
in an application note explains that it "means a defendant who
receives an adjustment for an aggravating role under §3B1.1."
U.S.S.G. §5C1.1, cmt. (n.5).
"The government bears the burden of proving the
legitimacy of an upward role-in-the-offense adjustment by a
preponderance of the evidence." United States v. Alicea, 205 F.3d 480
, 485 (1st Cir. 2000). However, "the burden of proof rests with
the [defendant] to establish the five criteria set out in
subsection 3553(f)." United States v. Rodriguez-Ortiz, 455 F.3d
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18, 25 (1st Cir. 2006). Therefore, the cross-reference to U.S.S.G.
§ 3B1.1 creates uncertainty about where the burden lies with
respect to the fourth criterion for safety-valve relief.
Zayas concedes that "there was never any objection by the
defense with respect to the issue of who had the burden of proof as
to the role in the offense." Appellant's Brief, 60. Consequently,
plain error review applies. Given that this court has not
addressed the issue, and other circuits faced with the issue have
declined to resolve it, see, e.g., United States v. Holguin, 436 F.3d 111
, 119 (2d Cir. 2006), the district court's placement of the
burden upon the defendant for safety-valve purposes was not plain
error. In all events, the allocation of the burden does not seem
to be a determinative factor in this case. For the reasons
discussed below, the record evidence amply supported the sentencing
court's finding that, more likely than not, Zayas was an organizer,
leader, manager or supervisor.
IV. Sufficient Evidence to Support Role-in-Offense
Zayas's final argument is that the evidence, while it
supports a finding that he was a significant dealer, does not
support a finding that he was an "organizer, leader, manager or
supervisor of others in the offense," as this court's case law has
defined those guideline terms.
We review a sentencing court's findings of
fact for clear error. We afford de novo
review, however, to questions of law involved
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in sentencing determinations. A question
about whether the evidence is sufficient to
support a particular guideline determination
is a question of law and, therefore, engenders
de novo review.
United States v. Ramos-Paulino, 488 F.3d 459
, 463 (1st Cir. 2007).
We have defined the requirements for a two-level role-in-the-
offense enhancement as follows:
Role-in-the-offense adjustments address
concerns of relative responsibility. [A two-
level increase] is justified if the sentencing
court supportably finds that (1) the criminal
enterprise involved at least two complicit
participants (of whom the defendant may be
counted as one), and (2) the defendant, in
committing the offense, exercised control
over, organized, or was otherwise responsible
for superintending the activities of, at least
one of those other persons.
United States v. Cruz, 120 F.3d 1
, 3 (1st Cir. 1997)(en banc). We
have emphasized that "the management of criminal activities (as
opposed to the management of criminal actors) may ground an upward
departure but not an upward role-in-the-offense adjustment." Ramos-
Paulino, 488 F.3d at 464.
The sentencing court stated that it "seems . . .
inconceivable on these facts that Mr. Zayas was not an organizer or
leader." The sentencing court made specific findings that Zayas
was the "source" and "importer" of the drugs involved in the
offense; that he intentionally placed some of the drugs in the home
of his codefendant; that other individuals were involved in the
offense conduct, including someone referred to as "Chino;" and that
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the defendant was delivering drugs to "various people in the
Springfield area." But the court did not make a specific finding
identifying one or more persons whom Zayas organized or led.
Zayas argues that the record does not contain sufficient
evidence to support the finding that he was an organizer, leader,
manager or supervisor under U.S.S.G. § 3B1.1(c). Where the
district court "did not base the enhancement on specific findings
as to whom the defendant may have organized, led, managed, or
supervised," our review includes a "search [of] the record
(including the PSI Report) in an endeavor to identify any such
underlings." Id. at 463.
The presentence investigation report (PSI Report) states
that Zayas "used two or three individuals to sell his crack cocaine
on Allendale Street." That fact is also included in the
government's recitation at the change-of-plea hearing of the facts
it would prove if the case went to trial. Zayas indicated his
agreement with the government's version of the facts. The PSI
Report recounted two separate incidents in which the cooperating
witness (CW) contacted Zayas to arrange a drug sale and Chino
provided the CW with the amount of drugs requested. Zayas did not
object to that portion of the PSI Report. The CW gave testimony
consistent with the facts contained in the PSI Report at Zayas's
trial on count 7. The PSI Report related that the CW saw co-
defendant Eddie Matos handing cash to Zayas. From the above, it
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easily can be inferred that Chino delivered the drugs to the CW "at
[Zayas's] express or implied direction." United States v. Ofray-
Campos, 534 F.3d 1
, 41 (1st Cir.), cert. denied, 129 S.Ct. 588
(2008). To summarize, the evidence in the record is sufficient to
support the sentencing court's two-level role-in-the-offense
enhancement. See United States v. Jones, 523 F.3d 31
, 43 (1st Cir.)
(holding that evidence was sufficient to support § 3B1.1(c)
enhancement where Jones "coordinated the actions of a number of
drug sellers . . . and determined to a considerable extent when and
where they would make deliveries"), cert. denied, 129 S.Ct. 228
(2008); United States v. Soto-Beniquez, 356 F.3d 1
, 54(1st Cir.
2003)(upholding two-level enhancement for supervisory role where
defendant controlled a drug point and had people "selling for
him"); Cruz, 120 F.3d at 4 (holding that defendant's supervision of
another person in connection with a single drug transaction
provided an adequate basis for § 3B1.1(c) enhancement).
We need go no further. The government's motion is
granted and appellant's conviction and sentence are affirmed.
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