Of the Sixth Circuit, sitting by designation. * 

# U nit edStates C ou rt o f App eal s

For t h e Firs t C ircu it

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- G onzalez, 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 State s Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee Rodrigo Campuzano. Luk e C a s s , A s s i s t a n t U n i t e dS t a t e s A t t o r n e y , w i t h w h o mR osaEmilia Rodriguez-Velez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee Jaime Pinillos.

February 13, 2009-3- BOUDIN, Circuit Judge. Jaime Pinil l o s a nd Rodrigo Campusano w ere 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 M i a m i , saying that he had a customer who wanted to buy 100 kilograms of coc a i n e, and could afford the pur chase 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 N a t a ya "Princesa" Posad a , a fellow informant posing as the owner of the drugs, and Special Agent Anthony Toro- Z a mbrana ("Toro") of the Puerto Rican Department of Justice, pretending to be Princesa's bod y guard. 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-4-

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, a s s u ring 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 t r a nsaction. 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 a t t empting 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 enha n c e ments for obstruction of justice under U.S.S.G. § 3C1.1 for perjuring themselves. Both wereUnder 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. -5- then sentenced to 235 months on each count, to be served concurrently.

While their appeals were pending, Booker alte r e dthe

sen t e n cing 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 k i l o s 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 t h e se 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 reas o nably find that the initial bargain was for one hundred kilos; and, although th e situation was perhaps-6-

ambiguous, it was surely not clear error to conclude that the later arrangements for smaller am o unts were merely part of the intended delivery. Rafa was asked on cross-examination w hether the

n egotiations 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 t a l k i n g a b o u t o n e k i l o o r f i v e k i l o s or 25 k i l o s . I t ' s a w a y t o f r a c t i o n a l i z e the deal because nobody is going to bri n g d o wn a hundred-kilo deal all at once. You have to do it first a kilo at a time or five or 25. And really, wh e n they're talking about a kilo they're talking about . . . . [a] sample of the coca i n e t o see what the quality of the merchandise was like. . . . Thus the court was not obliged to a g r e e that Pinillos' initial agreement to purchase one hundred kilos was "mere puffery"

no r t h a t t h e l a t e r d i s c u s s i o n s l i m i t e dt h e s c o p e o f t h e 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
. 2 d 4 9 9 , 508 (1st Cir. 1990) (citations omitted). As for Campusano, there is no direct proof that Pinillos and he discussed the one hundred kilo figu r e ; but there is some indication that C a mp u s ano understood that a large transaction was contemplated and that 25 kilos was to be the initial delivery. The latter would likely be enou g h: "[a] defendant who conspires to-7-

transpor t 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 lar g e . " U nited 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 t h e o n e hundred kilo figure. Instead, his

a r g u m e n t , w h i c h P i n i l l o s a l s o m a k e s , i s t h a t t h e r e i s n o 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 larg e purchase. Indeed, they say that they never had the resources to buy even a single k i lo. The question, however, is

w h e t h e r t h e y p r o v e d t h a t t h e t r a n s a c t i o n c o u l d n o t h a v e been accomplished.

Here, Pinil l o s himself proposed the one hundred kilo figure and told Rafa and Toro that he had s e e n the money for the
up c o m i n gp u r c h a s e . F u r t h e r , t h e d e f e n d a n t s h a v i n gt h e b u r d e n, United States v. Barnes, 244 F.3d 172, 177 (1st Cir. 2 0 0 1 ), the-8-

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 of f e n s e, 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) ( c itations omitted). Since Pinillos proposed the one hundred kilo figure, this is h a r d l ya c a s e i n w h i c h t h e g o v e r n m e n t p r e s s e di n t h e f i r st 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 t h a t the government offered the cocaine at the below-market price of $13,500 per kilo to e n tice a larger purchase but a low price is not itself decisive, United States v. Hulett, 22 F.3d 779, 782 (8th C i r . 1 9 9 4 ) , a n d t h e d e f e n d a n t s o f f e r e d n o e v i d e n c e 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 su s p i c i on as-9-

to whether the sellers m i ght 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 d e f e n dants to commit an offense to which they w e r e n o t predisposed, let alone the "extraordinary misco n d u ct" 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 tes t i m o n y at trial is a standard basis for the enhancement, U.S.S.G. § 3C1.1 & n.4; United States v. Dunnigan, 507
U.S. 8 7 , 9 2

- 9 4 ( 1 9 9 3 ) , s o l o n g a s t h e d i s t r i c t c o u r t f i n ds the specific elements of perjury. United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006).

Here, the district court made the neces s a r yspecific 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 c o mp u t e r s. As for Campusano, he testifi e dt h a t h e w a s i n P u e r t o R i c o s i g h t s e e i n ga n dk n e wn o t h ing about the drug tr a n s a c t i on. Given the guilty verdict, these were central and deliberate falsehoods. Compare United States v. Akitoye, 923 F.2d 221, 228 (1st Cir. 1991).-10- T he defendants' last joint objection is to the reasonableness of the sentence under Gall v. United States, 128 S. Ct. 586 ( 2 0 0 7 ) ; Campusano also asserts that he was entitled to a two-level reduction for havin g a m i n o r role in the offense. See
U.S.S.G. § 3B1.2. Pinillos also argues in less tha n a p a r a g raph that his mental illness vitiates the sentencing court's finding of willful n e s s a s 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., E s s o S tandard 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.