United States Court of Appeals

For the First Circuit

No. 05-1566

UNITED STATES OF AMERICA,

Appellee,

v.

OMAR PARRILLA ROMÁN,

Defendant, Appellant.

____________

No. 05-1863

UNITED STATED OF AMERICA,

Appellee,

v.

CARLOS JAVIER ORTIZ SANTIAGO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Selya and Tashima,* Senior Circuit Judges.
Ramón García García on brief for appellant Parrilla Román. 

Jorge L. Armenteros-Chervoni for appellant Ortiz Santiago.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom

Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief,

for the United States.

May 9, 2007

__________

*Of the Ninth Circuit, sitting by designation.
Originally, the airline listed Ortiz's job title as "ramp 1

agent." He later became a fleet service clerk. The district court

and the parties seem to have employed the two titles

interchangeably. Because nothing turns on this nomenclative point,

we use the latter title.

-3-

SELYA, Senior Circuit Judge. These sentencing appeals

reverberate with the echo of a question that we thought we had laid

to rest in United States v. Reccko, 151 F.3d 29 (1st Cir. 1998).

This question involves the application of the two-level enhancement

for abuse of a position of trust under the current version of the

federal sentencing guidelines. See USSG §3B1.3 (2006).

Concluding, as we do, that the district court erred in its

application of this guideline, we vacate the defendants' sentences

and remand for resentencing consistent with this opinion.

I. BACKGROUND

Because these appeals follow the entry of guilty pleas,

we take the relevant facts from the defendants' change-of-plea

colloquies, the uncontested portions of the presentence

investigation reports, and the transcripts of their disposition

hearings. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.

1991). The tale follows.

In more tranquil times, defendants-appellants Carlos

Javier Ortiz Santiago (Ortiz) and Omar Parrilla Román (Parrilla)

worked as fleet service clerks for American Airlines at the Luis

Muñoz Marín International Airport in Carolina, Puerto Rico. Fleet 1

service clerks are responsible for loading and unloading cargo onto
-4-

and off of passenger aircraft, handling mail and freight for

shipment by air, and cleaning the interior areas of passenger

aircraft. They also drive airline vehicles, operate machinery,

guide aircraft through ground-level arrival and departure

maneuvers, and help to de-ice airplanes when required. Judging by

the defendants' rates of pay, fleet service clerks earn from $10.00

- $12.50 an hour.

In 2003, the defendants supplemented their workload (and,

presumably, their income) by conspiring with others to transport

cocaine from Puerto Rico to various destinations on the mainland.

The basic scheme, with minor variations from caper to caper,

operated as follows. Ortiz would receive a suitcase containing

cocaine, which he would then carry or drive through security

checkpoints without inspection. He then ensured that the suitcase

was stowed safely aboard a designated departure-bound airplane.

For his part, Parrilla made sure that his confederates knew that

"the bird is in flight"; that is, that a cocaine-laden suitcase had

been placed aboard a pre-selected flight. On at least two

occasions, he provided coconspirators with a baggage claim ticket,

flight information, and the assumed name that had been used for

such a suitcase.

In due season, federal agents unearthed the plot. An

indictment followed apace. To make a tedious tale tolerably terse,

both Ortiz and Parrilla eventually pleaded guilty to a count that
-5-

charged conspiracy to possess with intent to distribute five or

more kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846.

The district court sentenced Parrilla on March 11, 2005.

The main battle was over the applicability vel non of the positionof-trust enhancement. See USSG §3B1.3. Parrilla argued that,

given his duties as a fleet service clerk, he had no managerial

discretion, played no supervisory role, and thus could not be

deemed to occupy a position of trust. Parrilla buttressed his

argument with a copy of the job description for the fleet service

clerk position. The argument was in vain. The district court

imposed the position-of-trust enhancement, stating:

Now, you have submitted a copy of the

job description, and that is fine. But let's

take it one step prior to the job description.

If [Parrilla] did not have a security

clearance from the Ports Authority whereby he

had to comply with certain conditions to

obtain the security clearance, he would not

have been able to be employed by American

Airlines.

. . . . 

The facts that your client accepted

when he pled guilty include[] the fact that

once inside the airport, the suitcase was

provided to the co-defendant, who insured that

the suitcase made it on board . . . . 

. . . . 

. . . But he is there in that position

because he held a position of trust or a

secured position within the airport, as

authorized by Ports Authority. 
-6-

So if he had not had that security

clearance, he would not have been in a

position to insure that the luggage got on the

airplane. And that is why his position of

private trust did contribute in some

significant way to facilitating the commission

of the crime. Otherwise, the suitcases would

not have been put on board.

Combined with Parrilla's base offense level, other adjustments, and

criminal history category (I), the offense level increase yielded

a guideline sentencing range (GSR) of 87-108 months. Without the

enhancement, the GSR would have been 70-87 months. The court

levied an 87-month incarcerative term — the bottom of the

calculated GSR.

The district court convened Ortiz's disposition hearing

on April 28, 2005. The hearing unfolded and concluded in much the

same manner. Pertinently, Ortiz argued that, as a mere baggage

handler, he had no professional or managerial discretion and could

not be deemed to occupy a position of trust. The government

countered that because he had a security clearance that enabled him

to pass unchallenged through security checkpoints and transport

drugs through restricted areas of the airport without being

stopped, he occupied a position of trust. 

The district court accepted the government's logic. It

reasoned:

[N]ot everybody can qualify for [the fleet

service clerk] position. First of all, they

have to go through a security check of the

airport. They have to submit background

information. They have to submit background
-7-

records. They have to have a police clearance

from the police that no criminal record is

involved, and after going through all that,

then the airport personnel provides this

individual with a pass, which they have to

carry all the time with their photograph,

which allows them to go into a secured area.

 

So in that sense, the Defendant is

being allowed to go into a secured area

because he holds a position of trust.

Otherwise, he wouldn't be going into the

secured area. Once . . . he is identified as

being a person of trust within the secured

area of the airport, then he's able to move in

and out from the secured area to the other

areas of the airport to bring in suitcases

without having them inspected, and

furthermore, to being able to place them in

the airplanes . . . . 

With this predicate in mind, the district court concluded that

Ortiz, like Parrilla, should receive a position-of-trust

enhancement because his position had contributed significantly to

the commission of the offense of conviction.

The court increased Oritz's offense level accordingly.

Combined with his base offense level, other adjustments, and

criminal history category (I), this increase yielded a GSR of 87-

108 months. Without the enhancement, the GSR would have been 70-87

months. The court sentenced Ortiz to serve a low-end 87-month

incarcerative term and to pay a $5,000 fine.

Both Parrilla and Ortiz appealed their sentences. This

court consolidated the two appeals.
-8-

II. DISCUSSION

The principal issue on appeal is the defendants' claim

that the district court erred in imposing the position-of-trust

enhancements. Ortiz also attempts to raise a further claim that

the district court abused its discretion in failing to reconsider

the imposition of the fine. We consider these claims sequentially.

Our standard of review is familiar. Following the

Supreme Court's decision in United States v. Booker, 543 U.S. 220,

245 (2005), which rendered the federal sentencing guidelines

advisory, the guidelines remain the starting point for sentencing

determinations. See United States v. Gobbi, 471 F.3d 302, 313 &

n.7 (1st Cir. 2006); United States v. Jiménez-Beltre, 440 F.3d 514,

518-19 (1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 928

(2007). This means that, as a first step in the sentencing pavane,

the district court must calculate a defendant's GSR. In the

typical case, the correctness of that calculation is a necessary

precondition to a reasonable sentence. See, e.g., United States v.

Robinson, 433 F.3d 31, 35 (1st Cir. 2005). 

In reviewing such a calculation, we accept the sentencing

court's findings of fact unless they are clearly erroneous. See

United States v. Dixon, 449 F.3d 194, 200 (1st Cir. 2006). We

review de novo, however, the court's interpretation and application

of the guidelines. See United States v. Pho, 433 F.3d 53, 60 (1st

Cir. 2006).
-9-

A. Position of Trust.

The guideline at issue here provides:

If the defendant abused a position of public

or private trust . . . in a manner that

significantly facilitated the commission or

concealment of the offense, increase [the

defendant's offense level] by 2 levels.

USSG §3B1.3. An application note elaborates:

'Public or private trust' refers to a position

of public or private trust characterized by

professional or managerial discretion (i.e.,

substantial discretionary judgment that is

ordinarily given considerable deference).

Persons holding such positions ordinarily are

subject to significantly less supervision than

employees whose responsibilities are primarily

non-discretionary in nature. For this

adjustment to apply, the position of public or

private trust must have contributed in some

significant way to facilitating the commission

or concealment of the offense (e.g., by making

the detection of the offense or the

defendant's responsibility for the offense

more difficult). This adjustment, for

example, applies in the case of an

embezzlement of a client's funds by an

attorney serving as a guardian, a bank

executive's fraudulent loan scheme, or the

criminal sexual abuse of a patient by a

physician under the guise of an examination.

This adjustment does not apply in the case of

an embezzlement or theft by an ordinary bank

teller or hotel clerk because such positions

are not characterized by the above-described

factors.

Id., cmt. n.1.

Consistent with this guideline and the quoted application

note, we have constructed, and directed sentencing courts to use,

a two-step process for determining whether a position-of-trust
-10-

enhancement should be imposed. The sentencing court must first

answer the status question: Did the defendant occupy a position of

trust? If not, the inquiry ends. If, however, the status question

produces an affirmative response, the court must then answer the

conduct question: Did the defendant use that position to facilitate

significantly the commission or concealment of the offense? See

Reccko, 151 F.3d at 31; United States v. Gill, 99 F.3d 484, 489

(1st Cir. 1996); United States v. Santiago-Gonzalez, 66 F.3d 3, 8

(1st Cir. 1995). The two steps are separate. As we explained in

Reccko, 151 F.3d at 32, care must be taken not to conflate them.

In imposing a position-of-trust enhancement pursuant to

section 3B1.3, the Reccko district court incorrectly determined

that the defendant, a switchboard operator at a municipal police

headquarters, held a position of trust precisely because her job

provided her with the access needed to commit the charged crime

(unlawfully tipping off a suspect to an impending raid). See id.

The sentencing court's determination here suffers from much the

same infirmity. Rather than first posing the status question —

asking whether the fleet service clerk position was characterized

by professional or managerial discretion and minimal supervision —

the court jumped immediately to the conduct question, zeroing in on

the defendants' ready access to restricted areas of the airport.

The court then used that access as the basis for a blanket answer
-11-

to both the status and the conduct questions. That analysis merged

the two distinct steps that Reccko requires.

Recognizing the inconsistency between the district

court's approach and the Reccko paradigm, the government tries to

distinguish Reccko on the ground that there was no evidence in that

case to suggest that the defendant had obtained a security

clearance. To support the relevance of this suggested distinction,

the government cites United States v. Castagnet, 936 F.2d 57 (2d

Cir. 1991), for the proposition that "[t]he primary trait that

distinguishes a person in a position of trust from one who is not

is the extent to which the position provides the freedom to commit

a difficult-to-detect wrong." Id. at 61-62 (citation and internal

quotation marks omitted). Castagnet is inapposite: that decision

dealt with a now-obsolete version of section 3B1.3 that antedated

the Sentencing Commission's clear focus on professional or

managerial discretion and minimal supervision. See Reccko, 151

F.3d at 33. Without more, the security clearance awarded to Ortiz

and Parrilla cannot transmogrify a menial position into a position

of trust. Cf. United States v. Edwards, 325 F.3d 1184, 1187 (10th

Cir. 2003) (rejecting position-of-trust enhancement for clerical

position where government alleged "virtual exclusive control" over

customer accounts).

Relatedly, the government indulges in an unabashed

attempt at bootstrapping. It says that since the defendants were
-12-

successful for a time in smuggling contraband into the airport,

their positions must have entailed minimal supervision. That turns

the guideline on its head: it does not follow that, merely because

a defendant's position enables him to commit an offense, the

position must have been unsupervised and, thus, a position of

trust. Cf. id. (explaining that "[o]pportunity and access" do not

equate with substantial discretionary judgment); United States v.

Sierra, 188 F.3d 798, 802 (7th Cir. 1999) (explaining that the

ultimate success of the criminal enterprise is not an independent

measure of significant facilitation).

The government's citation to our decision in United

States v. Casas, 356 F.3d 104 (1st Cir. 2004), is equally

unhelpful. While the district court in that case imposed a myriad

of upward adjustments, including a position-of-trust enhancement,

on a defendant who worked as a baggage handler for American

Airlines, the status question was not an issue on appeal. Rather,

insofar as the position-of-trust enhancement was concerned, the

panel dealt only with an Apprendi challenge. See id. at 128

(discussing Apprendi v. New Jersey, 530 U.S. 466 (2000)). We were

not asked to decide, nor did we decide, whether the position-oftrust enhancement comported with the guideline. 

There is no need to tarry. At bottom, the government's

arguments vividly illustrate its lack of comprehension of (or,

perhaps, its stubborn unwillingness to accept) the standard that we
-13-

delineated in Reccko. That is particularly unfortunate here

because the facts, as developed in the district court, will not

support a finding that the fleet service clerk positions are

positions of trust within the meaning of USSG §3B1.3. After all,

the government concedes that neither Ortiz nor Parrilla was

afforded discretion to establish policies or to supervise coworkers. Moreover, nothing in the record suggests that either of

the two men toiled under minimal supervision. To the contrary, the

kinds of tasks typically required of fleet service clerks (e.g.,

loading and unloading cargo, cleaning cabin interiors, and guiding

taxiing aircraft) are the kinds of tasks that almost invariably

require oversight.

In all events, the government bears the burden of proving

the applicability of the position-of-trust enhancement. See United

States v. Connell, 960 F.2d 191, 197 (1st Cir. 1992). It suffices

to say that the government has not carried that burden here. The

fleet service clerk position appears to be on par with the

switchboard operator position described in Reccko and with the bank

teller and hotel clerk positions identified by the Sentencing

Commission as non-trust positions. See USSG §3B1.3, cmt. n.1; see

also United States v. West, 56 F.3d 216, 220 (D.C. Cir. 1995)

(courier). Because neither of the defendants held a position of

public or private trust, the district court erred in enhancing

their offense levels under section 3B1.3.
-14-

B. The Fine.

As a postscript of sorts, we briefly address Ortiz's

objection to the $5,000 fine imposed by the district court (an

objection that he couches in the form of an objection to the denial

of his serial motions to reconsider the fine). As we explain

below, he has waived his right to appeal that impost.

Ortiz pleaded guilty pursuant to a negotiated plea

agreement with the government (the Agreement). The Agreement

included an explicit commitment that as long as the district court

accepted the Agreement and sentenced him in accordance with its

terms, he "waive[d] and surrender[ed] his right to appeal the

judgment and sentence in this case." The district court accepted

the Agreement and, in doing so, received appropriate assurances

that this waiver was knowing and voluntary. The court proceeded to

sentence Ortiz within the parameters of the Agreement.

In his appellate brief, Ortiz does not mention this

waiver. It is easy to see why: the waiver was unequivocal. The

only reservation of a right to appeal concerned the possible

application of the hotly contested position-of-trust enhancement.

See supra Part II(A).

We consistently have upheld properly phrased waivers of

the right to appeal from criminal sentencing decisions. See, e.g.,

United States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007); United

States v. Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006); United
Although it may be tantamount to carting coal to Newcastle, 2

we note that a sentencing court has wide discretion in deciding

whether or not to impose a fine. See United States v. Savoie, 985

F.2d 612, 620 (1st Cir. 1993). The presumption is that a

sentencing court should "impose a fine in all cases, except where

the defendant establishes that he is unable to pay and is unlikely

to become able to pay any fine." USSG §5E1.2(a). The defendant

bears the burden of showing that this presumption should not

operate in his case. United States v. Peppe, 80 F.3d 19, 22 (1st

Cir. 1996). To carry that burden, he must show an inability to pay

the fine either presently or in the future. United States v. Rowe,

268 F.3d 34, 38 (1st Cir. 2001). Given Ortiz's work history, a

finding of likely future ability to pay a relatively modest fine

was well within the sentencing court's discretion.

-15-

States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). There is no

apparent reason to depart from this praxis today. See Miliano, 480

F.3d at 608 (explaining that where "the defendant simply ignores

the waiver [of appeal] and seeks to argue the appeal as if no

waiver ever had been executed, he forfeits any right to contend

either that the waiver should not be enforced or that it does not

apply"). The waiver, then, undercuts Ortiz's attempt to appeal

from the imposition of the fine.2

It makes no difference that Ortiz has couched his claim

of error in terms of the denial of his serial motions to reconsider

the fine. Because Ortiz waived his right to appeal the fine

itself, see text supra, we discern no legally cognizable basis on

which he can challenge the denial of motions to reconsider its

imposition. A criminal defendant who, like Ortiz, knowingly and

voluntarily waives his right to appeal all or some part of his

sentence, cannot evade the effects of that waiver by the simple
-16-

expedient of moving to reconsider the unappealable sentence and

then appealing the denial of that motion. Cf. United States v.

Joiner, 183 F.3d 635, 645 (7th Cir. 1999) (explaining that waiver

of appeal of sentence constitutes an implied waiver of the right to

raise an ineffective assistance of counsel claim based on "gardenvariety attacks on his sentence . . . in the guise of a claim of

ineffective counsel").

III. CONCLUSION

We need go no further. Because the district court erred

in imposing position-of-trust enhancements, we vacate the

defendants' sentences and remand for resentencing without resort to

those enhancements. The guidelines are, of course, advisory in

nature, see Booker 543 U.S. at 245, and the district court remains

free, after properly calculating the guideline range, to impose

reasonable sentences of such duration as it deems fitting. That

court, if it so chooses, may also reimpose the disputed fine.

Vacated and remanded.