United States v. Plutarco De La Cruz

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-2210
UNITED STATES,
Appellee,
v.
PLUTARCO DE LA CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alexander Zeno on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, and Rosa Emilia
Rodríguez-Velez, United States Attorney, on brief for appellee.
December 19, 2007

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Per Curiam. Defendant-appellant Plutarco de la Cruz
pled guilty to possessing marijuana with intent to distribute
and conspiring to import marijuana into the United States after
being intercepted with six others in a vessel off the coast of
Puerto Rico carrying approximately 2,500 kilograms of
marijuana. The defendant requested a downward adjustment in
his federal sentencing guidelines offense level, arguing that
he had been only a minor participant in the offenses. The
district court denied the adjustment and, after several days of
sentencing hearings in which the defendant testified, granted
him a "safety valve" adjustment. The court sentenced the
defendant to 70 months in prison (the bottom of the applicable
guideline imprisonment range).
On appeal, the defendant raises five issues. Because
we find none of them to have merit, we summarily affirm his
conviction and sentence.
I. Guilty Plea
The defendant argues that he is entitled to specific
performance of the government's alleged initial "partial
oral/written agreement" pursuant to which he and his co-defendants
were permitted to plead guilty while reserving their rights to
appeal from the denial of their motion to suppress. The defendant
concedes in his brief, however, that he "pleaded guilty afterwards,
not based on the unfulfilled promise of the prosecutor."

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Appellant's Brief at 30. Even assuming that at the time of the
initial change-of-plea hearing in October of 2004 there existed an
"informal agreement" that the defendant would be permitted to plead
guilty without waiving the right to appeal from the denial of the
suppression motion, he does not argue that the actual plea, entered
three months later, was pursuant to such an agreement. His "plea
was thus in no sense the product of governmental deception; it
rested on no 'unfulfilled promise.'" Mabry v. Johnson, 467 U.S.
504, 510 (1984). Consequently, the defendant is not entitled to
specific performance of the alleged initial "partial oral/written
agreement."
II. Role in the Offense
The defendant claims that the district court erred in
denying his request for a two-level reduction for his minor role in
the offenses of conviction. "[A] defendant who aspires to be
classified as a minor participant bears the burden of proving that
he is both (i) less culpable than most other participants in the
offenses of conviction, and (ii) less culpable than the average
miscreant involved in offenses of the same genre." United States v.
Sanchez, 354 F.3d 70, 74 (1st Cir. 2004). "Review of the decision
to deny a downward adjustment for minor role is for clear error."
United States v. Morales-Madera, 352 F.3d 1, 14 (1st Cir. 2003).
"If the record supports at least two permissible inferences, the
factfinder's choice between or among them cannot be clearly

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erroneous. Accordingly, we rarely reverse a district court's
decision regarding whether to apply a minor role adjustment."
United States v. Bravo, 489 F.3d 1, 11 (1st Cir.), cert. denied,
128 S.Ct. 344 (2007).
In determining that the defendant was not a minor
participant, the sentencing court relied upon the defendant's own
testimony that 1) he had been given a cell phone and assigned
responsibility for making the contact with the intended recipient
of the drugs when the vessel reached Puerto Rico, and 2) that he
had originally been recruited to participate in the drug smuggling
scheme because of his familiarity with the coastline of the
Dominican Republic, the original planned destination.
The defendant maintains in his brief that "[t]here is no
factual controversy" regarding the role in the offense and that the
issue he raises "turns merely on whether or not [Plutarco's
admitted] conduct can be considered minimal, minor or average." In
this regard, he argues that the court erred in relying upon the
second factor -- his knowledge of the Dominican coastline. Because
the drugs were brought into the United States and the boat never
traveled to the Dominican Republic, he argues that the second
factor was irrelevant.
We disagree. The court relied upon the fact that the
defendant "was hired initially as the man that was going to
navigate the boat through the waters of Santo Domingo." Although

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the boat did not end up traveling to the Dominican Republic, it
does not appear clearly erroneous for the court to have inferred
that a person chosen to navigate the boat into the port of arrival
was also a person charged with responsibility for other important
tasks.
The defendant also argues that his role in the offenses
should have been assessed in the context of the "whole scenario,"
and in comparison with the roles of "the sellers and buyers of the
shipment" and the distributors in the United States. He contends
that his role was minor because it was limited "to aid[ing] in the
transportation of drugs from one point to the other." However,
"role-in-the-offense adjustments depend . . . on comparing each
offender's actions and relative culpability with the elements of
the offense." United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.
1990). Here, the defendant was not charged with distribution of
the drugs. He was charged with possession with intent to
distribute and with conspiring to import drugs. Therefore, he "had
a hand in each of the essential elements of the offense of
conviction," id., and the district court did not clearly err in
failing to compare his role with unidentified purchasers, sellers,
and distributors of the marijuana.
III. Failure to Depart
The defendant claims that the sentencing court erred in
not granting him a downward departure on the ground of duress, as

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was granted to several of his co-defendants. He testified at his
sentencing hearing that when he learned that the drugs were to be
delivered to Puerto Rico instead of the Dominican Republic, he
wanted to abandon the venture, but felt that he "had no alternative
but to get in the boat."
The defendant's failure to seek a downward departure on
this basis in the district court forecloses our consideration of
the issue. See United States v. Morales-Madera, 352 F.3d 1, 14 (1st
Cir. 2003). Moreover, even if the court had denied a request by
the defendant for a departure on this ground, "on appeal, we only
have jurisdiction to review if 'the sentencing court's failure to
depart did not represent an exercise of factfinding or discretion,
but was instead the product of the court's miscalculation about
whether it possessed the authority to depart.'" Bravo, 489 F.3d at
12-13. Given that the court granted downward departures for duress
for some co-defendants, it was clearly aware of its authority to
depart on that basis.
IV. Booker Error
The defendant argues that United States v. Booker, 543
U.S. 220 (2005), prohibited the sentencing court from increasing
his sentence based on judicial findings of fact, including role in
the offense, and that such determinations must be made by a jury.
As an initial matter, the court did not increase the defendant's
sentence based on judicial findings of fact regarding his role in

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the offense; it merely declined to reduce his sentence on that
basis. Moreover, where as in this case the sentence does not
exceed the statutory maximum for the offenses to which defendant
pled guilty, this court has held that "[u]nder Booker, a judge may
do such fact finding in determining the Guidelines range. Nothing
in Booker requires submission of such facts to a jury so long as
the Guidelines are not mandatory." United States v. Antonakopoulos,
399 F.3d 68, 80 (1st Cir. 2005). The sentencing court applied the
advisory guidelines and there was no Booker error.
V. Judicial Bias
The defendant claims judicial bias by the judge who
sentenced him and seeks resentencing before a new judge. We review
for abuse of discretion the refusal of a trial judge to recuse
himself. United States v. Ayala, 289 F.3d 16, 27 (1st Cir. 2002).
"[D]isqualification is appropriate when 'the facts asserted provide
what an objective, knowledgeable member of the public would find to
be a reasonable basis for doubting the judge's impartiality.'" Id.
(citation omitted). Here, the issue of bias was raised in a motion
filed by defense counsel on April 1, 2005, to withdraw from
representing the defendant. The motion cited as "evidence" of
potential bias the judge's comments critical of the attorney's
performance during the March 31, 2005 sentencing hearing.
[J]udicial remarks during the course of trial
that are critical or disapproving of, or even
hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or

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partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). The defendant
has not alleged an extrajudicial source from which the alleged bias
was derived. The transcript of the sentencing hearing does not
reveal "such a high degree of favoritism or antagonism as to make
fair judgment impossible." Id. The defendant's bias claim relies
largely upon the district court's tone of voice rather than the
words themselves. At bottom, then, his claim relies upon
"expressions of impatience, dissatisfaction, annoyance, and even
anger," which the Supreme Court has ruled do not establish bias or
partiality. Id. at 555-56. When the sentencing hearing resumed on
April 4, 2005, the court specifically denied any animus toward
defense counsel and explained that it was concerned about the lack
of legal basis for some of the arguments made by counsel. At this
point, counsel for the defendant confirmed that he did not feel
that the court had been "ironic" with him during that day's
hearing.
The other grounds on which the defendant rests his
present claim of judicial bias implicate judicial rulings in the
case, including the denial of the defendant's request for a two-
level reduction for a minor role in the offenses. It is settled

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that "judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. . . . Almost invariably, they are
proper grounds for appeal, not for recusal." Id. at 555. Such is
the case here, where the rulings neither show a reliance upon an
extrajudicial source nor display the requisite "deep-seated
favoritism or antagonism that would make fair judgment impossible."
Id. Instead, the transcripts of the sentencing hearings reveal
that the district court went to great lengths to ensure fairness in
the defendant's sentencing.
The conviction and sentence are affirmed. See 1st Cir. R.
27(c).

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