Of the Sixth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1931

UNITED STATES OF AMERICA,

Appellee,

v.

RODRIGO CAMPUSANO,

Defendant, Appellant.

____________________

No. 07-2442

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME PINILLOS,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Boudin, Siler and Howard, *

Circuit Judges.

Johnny Rivera-Gonzalez, by appointment of the court, for

appellant Rodrigo Campusano.

Angela G. Lehman, by appointment of the court, for appellant

Jaime Pinillos.
Germán A. Rieckehoff, Assistant United States Attorney, with

whom Rosa Emilia Rodriguez-Velez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, were on brief for appellee Rodrigo Campuzano.

Luke Cass, Assistant United States Attorney, with whom Rosa

Emilia Rodriguez-Velez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division,

were on brief for appellee Jaime Pinillos.

February 13, 2009
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BOUDIN, Circuit Judge. Jaime Pinillos and Rodrigo

Campusano were tried together in the district court for drug

offenses and convicted. The convictions were upheld, United States

v. Pinillos-Prieto, 419 F.3d 61 (1st Cir. 2005), but both cases

were remanded for resentencing in light of United States v. Booker,

543 U.S. 220 (2005). Both men have separately appealed from their

reinstated sentences and we resolve both appeals in this decision.

Early in 2001, Pinillos met in Colombia with Nelson

"Rafa" Rodriguez, who he understood to be a drug dealer; unknown to

Pinillos, Rafa was an experienced government informant. After the

initial contact, Pinillos called Rafa from Miami, saying that he

had a customer who wanted to buy 100 kilograms of cocaine, and

could afford the purchase price--approximately $1.4 million, or

$13,500 per kilo.

Rafa arranged to meet Pinillos at a bakery in Isla Verde,

Puerto Rico, to finalize the sale of the drugs. On July 9, 2001,

both men met at the bakery; Rafa was joined by Nataya "Princesa"

Posada, a fellow informant posing as the owner of the drugs, and

Special Agent Anthony Toro-Zambrana ("Toro") of the Puerto Rican

Department of Justice, pretending to be Princesa's bodyguard.

Pinillos had brought two companions, one being Campusano.

Pinillos alone approached Rafa, and began negotiating the

terms of the exchange. Pinillos informed the group that "his

friends" wanted to sample one kilo before going forward with the
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purchase. Rafa refused, offering instead to sell the group an

initial twenty-five kilo package. Negotiations then broke off but

resumed later that day between Pinillos, Campusano, Rafa and Toro;

eventually, the parties agreed on a complex scheme to make a

transfer of cash for the package while protecting both sides. 

Subsequently, Pinillos met Rafa and Toro at a parking

lot, assuring them that he had seen the money needed to complete

the transaction. Pinillos was going to test one to five kilos as

a sample before completing the transaction. However, Toro grew

nervous, and after Campusano arrived at the parking lot on foot,

rather than in a car as the parties had agreed, he called nearby

agents who arrested Pinillos and Campusano. 

Pinillos, Campusano and Nolgie Rodriguez (the other man

who had accompanied them to the bakery meeting) were convicted on

two counts--conspiracy to possess with intent to distribute five or

more kilograms of cocaine, 21 U.S.C. § 846 (2006), and aiding and

abetting each other, in attempting to possess with intent to

distribute five or more kilograms of cocaine, id. § 841(a)(1), 18

U.S.C. § 2(a) (2006). 

At sentencing, the trial judge found--over defendants'

objections--that each defendant was responsible for 100 kilograms

of cocaine, triggering an initial offense level of 36. Pinillos

and Campusano received two-level enhancements for obstruction of

justice under U.S.S.G. § 3C1.1 for perjuring themselves. Both were
Under settled law, the government bears the burden of showing 1

quantity under the guidelines by a preponderance of the evidence,

United States v. Nieves, 322 F.3d 51, 54 (1st Cir. 2003), and the

defendants bear the burden of showing that that they lacked the

financial capacity to purchase that quantity. See U.S.S.G. 2D1.1,

n. 12.

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then sentenced to 235 months on each count, to be served

concurrently.

While their appeals were pending, Booker altered the

sentencing landscape by enlarging the trial judge's authority to

vary from the guidelines and, while upholding the convictions, we

remanded for resentencing. A revised PSR was filed and Pinillos

sought a downward departure based on mental illness. The trial

court denied the defendants' objections to the PSRs and the motion

for downward departure, and the judge re-sentenced both defendants

on the same terms as before. 

In the new appeals from the sentence, both defendants

argue that they never intended to buy one hundred kilos and that

they lacked the financial capacity to do so. The trial court found

that the conspiracy and attempt extended to one hundred kilos and

that the defendants had not shown that they lacked the capacity to

carry through. Review of these factual findings is for clear 1

error. United States v. Eke, 117 F.3d 19, 22 (1st Cir. 1997).

Based on Rafa's testimony as to the telephone call, the

district judge could reasonably find that the initial bargain was

for one hundred kilos; and, although the situation was perhaps
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ambiguous, it was surely not clear error to conclude that the later

arrangements for smaller amounts were merely part of the intended

delivery. Rafa was asked on cross-examination whether the

negotiations were really about one, rather than one hundred kilos

of cocaine. He responded:

No, the negotiation[s] were about 100 kilos of

cocaine. . . .You're talking about when we

were talking about one kilo or five kilos or

25 kilos. It's a way to fractionalize the

deal because nobody is going to bring down a

hundred-kilo deal all at once. You have to do

it first a kilo at a time or five or 25. And

really, when they're talking about a kilo

they're talking about . . . . [a] sample of

the cocaine to see what the quality of the

merchandise was like. . . .

Thus the court was not obliged to agree that Pinillos'

initial agreement to purchase one hundred kilos was "mere puffery"

nor that the later discussions limited the scope of the proposed

transaction. It is commonplace that "where there is more than one

plausible view of the circumstances, the sentencing court's choice

among supportable alternatives cannot be clearly erroneous." United

States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) (citations

omitted).

As for Campusano, there is no direct proof that Pinillos

and he discussed the one hundred kilo figure; but there is some

indication that Campusano understood that a large transaction was

contemplated and that 25 kilos was to be the initial delivery. The

latter would likely be enough: "[a] defendant who conspires to
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transport for distribution a large quantity of drugs, but happens

not to know the precise amount, pretty much takes his chances that

the amount actually involved will be quite large." United States

v. De La Cruz, 996 F.2d 1307, 1314 (1st Cir. 1993).

In all events, Campusano does not claim on appeal that he

was unfamiliar with the one hundred kilo figure. Instead, his

argument, which Pinillos also makes, is that there is no evidence

that they had the resources to finance a 100 kilo transaction. We

have reviewed the testimony and pre-sentence report with some care

and are left uncertain how much Campusano was shown to have known;

but we are not disposed to overturn a sentence on a ground raised

neither at sentencing or on appeal.

The guidelines do allow the defense to show that whatever

their commitment, they lacked the resources to purchase the agreed

upon amount, U.S.S.G. § 2D1.1, n.12, and defendants say that the

government never seized the funds that would be associated with such

a large purchase. Indeed, they say that they never had the

resources to buy even a single kilo. The question, however, is

whether they proved that the transaction could not have been

accomplished.

Here, Pinillos himself proposed the one hundred kilo

figure and told Rafa and Toro that he had seen the money for the

upcoming purchase. Further, the defendants having the burden,

United States v. Barnes, 244 F.3d 172, 177 (1st Cir. 2001), the
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district court did not have to credit their denials of capacity to

pay, and in any event Rodriguez was the supposed ultimate purchaser

and there was certainly no attempt made by either defendant to offer

any evidence with respect to his finances.

Both defendants contend lower quantities should have been

adopted because the government was guilty of entrapment but, in this

context, they are in fact alleging what we call "sentencing factor

manipulation." This occurs "when 'a defendant, although predisposed

to commit a minor or lesser offense, is entrapped in committing a

greater offense subject to greater punishment.'" United States v.

Villafane-Jimenez, 410 F.3d 74, 86-87 (1st Cir. 2005) (citations

omitted).

Since Pinillos proposed the one hundred kilo figure, this

is hardly a case in which the government pressed in the first

instance for a figure greatly exceeding what was sought. See United

States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993). The defendants

say that the government offered the cocaine at the below-market

price of $13,500 per kilo to entice a larger purchase but a low

price is not itself decisive, United States v. Hulett, 22 F.3d 779,

782 (8th Cir. 1994), and the defendants offered no evidence of a

supposed higher market price.

Although it appears that at the bakery the defendants did

ask for a smaller delivery, the district judge was free to read the

request in context as reflecting defendants' aroused suspicion as
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to whether the sellers might be policemen and as an effort to

segment the larger transaction to limit liability. If the facts are

so read, this is hardly a matter of enticing defendants to commit

an offense to which they were not predisposed, let alone the

"extraordinary misconduct" which the doctrine seeks to prevent.

United States v. Montoya, 62 F.3d 1, 3-4 (1st Cir. 1995) (internal

quotation marks and citation omitted). 

Defendants both challenge their two-level sentence

enhancement for obstruction of justice based on their testimony at

trial. See U.S.S.G. § 3C1.1. It is not clear that these arguments

were preserved but in any case they are without merit. Material and

deliberately false testimony at trial is a standard basis for the

enhancement, U.S.S.G. § 3C1.1 & n.4; United States v. Dunnigan, 507

U.S. 87, 92-94 (1993), so long as the district court finds the

specific elements of perjury. United States v. Gobbi, 471 F.3d 302,

314 (1st Cir. 2006).

Here, the district court made the necessary specific

findings and they are amply supported. Pinillos testified that he

was not a drug dealer at all, and instead thought that he and Rafa

were discussing the sale of computers. As for Campusano, he

testified that he was in Puerto Rico sightseeing and knew nothing

about the drug transaction. Given the guilty verdict, these were

central and deliberate falsehoods. Compare United States v.

Akitoye, 923 F.2d 221, 228 (1st Cir. 1991).
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The defendants' last joint objection is to the

reasonableness of the sentence under Gall v. United States, 128 S.

Ct. 586 (2007); Campusano also asserts that he was entitled to a

two-level reduction for having a minor role in the offense. See

U.S.S.G. § 3B1.2. Pinillos also argues in less than a paragraph

that his mental illness vitiates the sentencing court's finding of

willfulness as to the perjury that was the predicate for the

obstruction of justice enhancement. 

These claims are without merit (or, in the case of the

mental illness claim, simply undeveloped, e.g., Esso Standard Oil

Co. v. Monroig-Zayas, 445 F.3d 13, 18 n.1 (1st Cir. 2006)), and we

mention them only to show that they have not been overlooked. The

sentences are very substantial but they were lawfully imposed, they

fall within the guideline range and there is no error. 

Affirmed.