United States Court of Appeals

For the First Circuit

No. 10-1252

UNITED STATES OF AMERICA,

Appellee,

v.

ORLANDO CARRERO-HERNÁNDEZ, A/K/A BUHO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Lipez, Circuit Judges.

Rafael F. Castro-Lang for appellant.

Carlos R. Cardona, Assistant United States Attorney, with whom

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division,

and George A. Massucco-LaTaif, Assistant United States Attorney,

were on brief, for appellee.

July 6, 2011
TORRUELLA, Circuit Judge. In September 2009, Orlando

Carrero-Hernández ("Carrero") pled guilty in federal district court

to two felony drug charges stemming from his involvement in a

scheme to import large quantities of cocaine into Puerto Rico. On

appeal, Carrero raises two challenges to the sentence he received. 

First, Carrero contends that the district court improperly imposed

a two-level sentencing enhancement to his base offense level based

on the court's finding that he recklessly endangered others during

a flight from the police. Second, he argues that the district

court improperly imposed a four-level enhancement based on its

finding that he led or controlled others in the scheme. After

considering the issues presented, we now affirm.

I.

The facts are largely uncontested. In the early part of

2008, Carrero was involved in a plot to smuggle cocaine into Puerto

Rico. On January 10, 2008, Carrero met with Richard Avilés Abdul

("Avilés"), an undercover Puerto Rico police officer posing as a

not entirely upstanding boat captain. The meeting was arranged by

a criminal informant named David Quesón, a/k/a "El Gordo." At the

meeting, Carrero sought Avilés's aid in importing a large quantity

-- initial discussions were for six hundred kilograms -- of cocaine

from the Dominican Republic. Carrero offered Avilés $270,000 to

retrieve the cocaine from a Dominican ship at a meeting point

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located some forty-three miles out in open water. During this 1

meeting, Carrero and Avilés discussed logistics for the transfer,

as well as Avilés's compensation. In addition, Carrero told Avilés

that he had used the same offloading point to import twenty-two

previous drug shipments, that he did not hire young boys, that one

of his other boat captains could not work on account of a hand

injury, and that as long as Avilés "deal[t] well" with him, he

would guarantee him work "for a long time." The following day,

Carrero advised Avilés that "they" had reduced the shipment to

three hundred kilograms, but (according to Carrero's presentence

report ("PSR")) that there were two thousand kilograms of cocaine

waiting to be brought over from the Dominican Republic in

subsequent trips, presumably if the initial run was successful. In

light of the reduced size of the shipment, the two agreed to reduce

Avilés's compensation to $160,000.

A few days later, Carrero informed Avilés that the

transfer was scheduled to occur the following day, and arranged for

El Gordo to deliver $450 to Avilés to cover the cost of fuel for

the trip. The next day, however, Carrero had to inform Avilés that

the transfer had to be called off because the ship from the

Dominican Republic had been unable to secure the necessary permits. 

Carrero agreed to pay Avilés $400 for his troubles, and they

Carrero later clarified that the drop-off point was forty-one 1

miles offshore, not forty-three.

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arranged to meet with El Gordo and Carrero's associate (and

eventual co-defendant), Joaquín Lassalle-Velázquez ("Lassalle")

later that day. At the meeting, Lassalle paid Avilés the $400.

Shortly thereafter, on January 16, Lassalle phoned Avilés

to tell him that the permit problem had been resolved, and that the

hand-off was scheduled for January 17. Later that day, Avilés met

with Lassalle in person to receive the precise coordinates and code

word for the transfer. Avilés, accompanied by law enforcement

officers, traveled to the exchange point at the designated time,

but the Dominican ship never arrived and Avilés returned emptyhanded. After some back and forth, Carrero agreed to reimburse

Avilés $3,000 for his expenses, including damage sustained by the

boat. Lassalle paid Avilés the $3,000 at a meeting on January 23. 

When Avilés complained about the amount, Lassalle responded that he

could not pay Avilés more than $3,000 because he needed to pay "the

boys," and that the costs of the delayed shipment would come out of

his own profits, whereas for Avilés "the profit is solid." 

Lassalle further indicated that his employees were not paid if they

returned empty-handed, and that he had recently fired one of his

employees for failing to count the kilos after receiving the

transfer.

Avilés met again with El Gordo, Lassalle and Carrero two

days later. At this meeting, Lassalle once again gave Avilés the

coordinates for the hand-off, now scheduled for later that evening,

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and Carrero paid Avilés for his anticipated fuel costs. This time

the Dominican ship arrived and, after Avilés pronounced the code

word, its four crew members loaded nine bales of cocaine onto

Avilés's boat. An aircraft from the Air and Marine Unit of United

States Customs and Border Protection was following the transaction

and obtained photographs and video of the events, and vectored the

coordinates to a United States Coast Guard cutter. After leaving

the rendezvous point, the Coast Guard cutter intercepted the

Dominican vessel, arrested its four crew members and seized several

items, including a semi-automatic handgun and ammunition.

Meanwhile, Avilés headed back to Puerto Rico, stopping en

route to exchange the real cocaine for a fake substitute. As he

neared the coast, Avilés phoned Carrero to ask if he was ready to

take delivery of the cocaine. Carrero indicated that both he and

Lassalle were present at the offload site. Police surveillance at

the offload site detected the presence of six individuals. Just as

the offloading was set to begin, the police sprung the trap and

moved in to make arrests. Unfortunately, however, things did not

go according to plan and a shootout ensued. Lassalle beat a hasty

retreat in his red pickup truck, firing parting shots at the police

as he fled. Both he and Carrero managed to evade capture that

evening. Arrest warrants were issued, and a search began.

Early in the evening of January 28 -- a few days after

the failed shipment -- Carrero was spotted driving around

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Aguadilla. The police, including Avilés, took up the pursuit. 

Once Carrero realized he was being pursued, he quickly accelerated,

reaching speeds later estimated (by Avilés) of around forty to

forty-five miles per hour. Carrero was at this point driving on

small back roads in the early evening, in a residential

neighborhood in which one could assume that people might be out and

about. Carrero did not stop or slow at intersections. After

hitting a dead end, Carrero abandoned the truck and fled on foot

through the woods. The police followed suit, and one police

officer fell and injured his chin in the process. Carrero again

managed to evade arrest, and was not finally run to ground until

some two months later. Carrero was ultimately arrested without

incident on April 4, 2008.

At sentencing, Avilés testified that Carrero was driving

too fast for the area, that the pursuit went over a large hill with

obstructed sight lines, and that the police lost him because it

would have been "pretty irresponsible" for them to pursue him at

the speed he was driving. When asked whether pedestrians were

present during the chase, Avilés replied: "[t]his happened very

fast. I can tell you that after he left, abandoned the vehicle

. . . [the area] got full of kids, of females, males, everything,

everybody."

Carrero and Lassalle, along with four co-defendants, were

charged with two felony drug counts, and a joint trial began on

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September 14, 2009. Carrero and Lassalle entered straight guilty 2

pleas prior to the trial's conclusion, and the four remaining codefendants were convicted.

Carrero's PSR recommended the two sentence enhancements

that are the subject of this appeal. The first was a two-level

enhancement for reckless endangerment during flight, pursuant to 

United States Sentencing Guidelines Manual ("U.S.S.G.") § 3C1.2

(2009), relating specifically to Carrero's flight from the police

on the evening of January 28. Second, the PSR recommended a fourlevel enhancement on account of his role in the offense pursuant to

U.S.S.G. § 3B1.1(a). Carrero objected to both sentencing

enhancements. At sentencing, the district court entertained

testimony and arguments on both issues. The court overruled both

of Carrero's objections. The court then sentenced Carrero to 360 3

months' imprisonment and a five-year term of supervised release. 

Judgment was entered on February 1, 2010, and Carrero appealed that

same day.

Carrero's co-defendants were the four crew members from the 2

Dominican "mother ship." The individuals present with Carrero and

Lassalle at the offloading point remain unknown.

Sentencing wasn't a complete wash for Carrero. The district 3

court also rejected the government's request for an enhancement

based on the weapon found on board the Dominican supply boat, under

U.S.S.G. § 2D1.1(b)(1), and, over the government's objections,

deducted two points for acceptance of responsibility, pursuant to

§ 3E1.1(a) of the Sentencing Guidelines.

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II.

A.

Carrero claims the district court made two mistakes in

sentencing him. The first, he claims, is that the district court

should not have increased his base offense level by two steps,

pursuant to U.S.S.G. § 3C1.2, on account of his flight from the

police.

Section 3C1.2 provides that:

if the defendant recklessly created a

substantial risk of death or serious bodily

injury to another person in the course of

fleeing from a law enforcement officer,

increase by 2 levels.

Recklessness requires that the defendant was "aware of the risk

created by his conduct and the risk was of such a nature and degree

that to disregard that risk constituted a gross deviation from the

standard of care that a reasonable person would exercise in such a

situation." U.S.S.G. § 2A1.4, cmt. n.1; see id. § 3C1.2, cmt. n.

2.

As we have previously noted, the Sentencing Commission

promulgated § 3C1.2 in order to adopt the view that "mere flight

from arrest was not sufficient for an adjustment, but that flight

plus endangerment was enough." United States v. Bell, 953 F.2d 6,

10 (1st Cir. 1992). The question is what level of endangerment is

called for.

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Carrero contends that his conduct -- driving forty-five

miles per hour in a residential neighborhood -- was not nearly so

dangerous as other § 3C1.2 enhancement cases. He further points

out that Avilés conceded that the chase was brief, and that the

street filled with people after Carrero had abandoned the truck,

presumably implying that the streets were quiet during the chase

itself. Therefore, Carrero urges, his flight did not create a

substantial risk of death or serious bodily injury, and it was

error to apply the § 3C1.2 enhancement.

B.

We review a district court's interpretation of the "legal

meaning and scope" of a sentencing guideline de novo. United

States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994). However, "we

review the court's factfinding for clear error, giving due

deference to the court's application of the guidelines to the

facts." Id.

It is true that § 3C1.2 cases often involve rather more

egregious conduct. See United States v. Cruz, 213 F.3d 1, 5 (1st

Cir. 2000) (affirming a § 3C1.2 enhancement because the defendant

led police officers on a high-speed chase, rammed several police

vehicles, drove onto the sidewalk and crashed his vehicle); United

States v. Alicea, 205 F.3d 480, 482, 486 (1st Cir. 2000) (affirming

§ 3C1.2 enhancement involving similar conduct as in Cruz, with the

additional excitement of gunshots fired at the pursuing officers). 

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We have not held, however, that such wildly dangerous conduct is

the minimum required under § 3C1.2.

Other courts have concluded that less egregious, though

still reckless, conduct can indeed qualify under § 3C1.2. For

instance, United States v. Fernandez, 436 F. Supp. 2d 983, 985

(E.D. Wis. 2006), involved very similar facts to the present case. 

The court there imposed a § 3C1.2 enhancement after the defendant

led the police on a 1.8-mile chase that "did not greatly exceed the

posted speed limit," reached a dead end and then, for reasons that

are not immediately apparent from the record, "abandoned his

vehicle, climbed an embankment and jumped into Lake Michigan," from

which he later had to be retrieved by a K-9 unit. Id. In United

States v. Luna, 21 F.3d 874, 885 (9th Cir. 1994), the Ninth Circuit

upheld a § 3C1.2 enhancement after the defendant led the police on

a short car chase and then fled on foot, abandoning the car in a

residential area with the engine running. Finally, in United 4

States v. Chandler, 12 F.3d 1427 (7th Cir. 1994), the Seventh

Circuit upheld a § 3C1.2 enhancement after a car chase that passed

through a residential neighborhood at dusk, and during which the

defendant "traveled at speeds that ranged from thirty-five to fifty

miles per hour while swerving from lane to lane to prevent the

Unlike the present case, in Luna there was evidence that the 4

driver stopped and, as a police officer approached on foot, reached

toward the floorboard of the car, where a gun was later found. 

Luna, 21 F.3d at 885. It does not appear that any firearms were

involved in Carrero's January 28 flight.

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police from going around him." Id. at 1433. The court noted that

this conduct "might very well have resulted in injury" to others. 

Id.

Returning to the facts of the present case, it is surely

relevant that the chase, even if brief and not conducted at

stupendously high speeds, occurred on small back roads in a heavily

populated area during the early evening. The record indicates that

the streets along which Carrero was driving were lined with houses,

and that Carrero took several turns at a high rate of speed. 

Indeed, Avilés testified that the pursuing officers had to

"basically stop" at those corners to make sure that they themselves

did not cause injury, and that continuing the chase at the speed

Carrero was going would have been "pretty irresponsible." Avilés

further testified that Carrero led the pursuing officers over a

large hill, and that "when you're more or less in the middle of the

hill, you can't see absolutely nothing what's in the other side. 

Absolutely nothing." Under these conditions, the risk of serious

injury or death could hardly have been more obvious. As the

district court recognized, Carrero's driving created a high

likelihood of collision with pedestrians and/or oncoming traffic,

with what could very well have been disastrous results. In

imposing the enhancement, the court noted that although the chase

"[c]ould have been a lot worse," still Carrero "could have killed

somebody with a car. The agents could have killed some pedestrian

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with a car. And other things could have happened, a crash, God

knows what." We agree.5

III.

A.

Carrero also contends that the district court erred in

imposing, pursuant to U.S.S.G. § 3B1.1(a), a four-level enhancement

based on its finding that he was a leader or organizer in the drug

running scheme.

Section 3B1.1(a) of the guidelines authorizes increasing

a defendant's offense level "[i]f the defendant was an organizer or

leader of a criminal activity that involved five or more

participants or was otherwise extensive." Government agents and

criminal informants are not "participants" under the guideline. 

U.S.S.G. § 3B1.1, cmt. n.1; see also United States v. RamosPaulino, 488 F.3d 459, 463-64 (1st Cir. 2007). Enhancement under

§ 3B1.1(a) requires a district court to make (1) a "status

determination," i.e., that "the defendant acted as an organizer or

leader of the criminal activity," as well as (2) a "scope

determination," i.e., "that the criminal activity met either the

The district court appeared to place at least some weight on the 5

fact that a police officer sustained a minor injury while pursuing

Carrero after Carrero abandoned his vehicle and lit off on foot. 

It is not clear what relevance this injury has to the analysis, as

§ 3C1.2 operates on the basis of risk, not outcomes. In any case,

we do not further consider whether any of Carrero's actions after

he abandoned his car satisfied § 3C1.2's requirements, as the risk

imposed by Carrero's reckless driving is sufficient on its own to

sustain the enhancement under § 3C1.2.

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numerosity or the extensiveness benchmarks established by the

guideline." United States v. Tejada-Beltrán, 50 F.3d 105, 111 (1st

Cir. 1995). Here, Carrero has not contested the scope requirement,

and so the only question before us is status.

In order to meet § 3B1.1(a)'s status requirement, the

defendant must have either organized or led at least one other

participant in the offense. U.S.S.G. § 3B1.1(a), cmt. n.2. As we

have noted on an earlier occasion, 

section 3B1.1 does not apply to a defendant

who merely organizes or supervises criminal

activity that is executed without the aid of

others. Instead, the defendant must have

exercised some degree of control over others

involved in the commission of the offense or

he must have been responsible for organizing

others for the purpose of carrying out the

crime.

United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). 

While a defendant "may be classified as an organizer, though

perhaps not as a leader, if he coordinates others so as to

facilitate the commission of criminal activity," Tejada-Beltrán, 50

F.3d at 112, our cases distinguish between organizing criminal

activities and organizing criminal actors. Only the latter may be 6

The application notes to § 3B1.1 make clear that a "participant" 6

is a "person who is criminally responsible for the commission of

the offense, but need not have been convicted." U.S.S.G. § 3B1.1,

cmt. n.1. In considering whether a criminal enterprise was

"otherwise extensive," for purposes of the scope prong, on the

other hand, one may look at whether it used the "unknowing service

of many outsiders." Id. at n.3. Thus, it appears that criminal

culpability is a prerequisite for the "status" inquiry (i.e.,

whether the defendant acted as an organizer, leader, manager, or

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used to ground an enhancement under § 3B1.1(a). See United States

v. Jones, 523 F.3d 31, 43 (1st Cir. 2008) ("[I]t is not enough that

the defendant merely controlled, organized, or managed criminal

activities[; he] must instead control, organize, or manage criminal

actors."); see also United States v. Cruz, 120 F.3d 1, 3 (1st Cir.

1997) (en banc) (noting that upward adjustment under § 3B1.1(c)

requires a finding that "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") (emphasis added).

Carrero maintains that the evidence did not establish

that he exercised control over any of the other participants, that

his role was rather limited to "coordination of activities," and

that Lassalle was actually the leader of the organization. Carrero

insists that his role was only to recruit boat captains to pick up

the drugs. Although Carrero clearly exercised supervisory

authority over Avilés -- he recruited him into the venture,

negotiated his cut, paid his expenses, and told him where and when

to make the pick up -- Carrero notes, correctly, that neither

Avilés nor El Gordo can be considered participants under

§ 3B1.1(a), as the former was a government agent and the latter a

criminal informant. As for the other participants in the scheme,

supervisor) but not for the "scope" inquiry, where that inquiry is

premised on extensiveness rather than numerosity.

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Carrero insists that (a) the Dominican crew members were supervised

by the sender in the Dominican Republic, not Carrero; and (b) the

offload crew in Puerto Rico was under Lassalle's control, as

according to Carrero, Lassalle was the one who actually owned the

drugs and made those staffing decisions. Carrero concedes that he

played an "important role in the conspiracy" insofar as his role

was to make contacts and provide information and coordinates, but

argues that this role constitutes organization of the scheme's

activities, not of its (bona fide) participants.

B.

At sentencing, the burden is on the government to show

that an upward role-in-the-offense adjustment is appropriate by a

preponderance of the evidence. United States v. Al-Rikabi, 606

F.3d 11, 14 (1st Cir. 2010). We have cautioned that "[a]ssessing

a defendant's role in the offense is a fact-specific task,"

requiring that "considerable respect be paid to the views of the

nisi prius court." Tejada-Beltrán, 50 F.3d at 110 (citing United

States v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990)). 

Therefore, "unless a mistake of law looms . . . a sentencing

court's determination of a defendant's role will be set aside only

for clear error." Id. at 110-11; Alicea, 205 F.3d at 485. Because

any error must be clear, it stands to reason that "when there are

two plausible views of the record, the sentencing court's adoption

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of one such view cannot be clearly erroneous." United States v.

St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992).

The record does not present a perfectly clear picture of

the relationship between Carrero and Lassalle. Much of it suggests

that Carrero and Lassalle were partners. Notably, Lassalle stated

to Avilés that neither he nor Carrero was authorized to speak

without the other's approval, that his profit was less because he

had to "pay all the guys" and that he had recently had to fire an

employee. In addition, Lassalle assured Avilés that he would be

given the "pick up," noted that he was "always offering [Avilés]

jobs," and occasionally negotiated with Avilés about his

compensation. Carrero also at times referred to Lassalle as his

"partner."

On the other hand, the evidence does suggest that on at

least some occasions, Carrero exercised at least some degree of

leadership or organizational control over Lassalle and others. 

After negotiating with Avilés, Carrero arranged for Lassalle to

deliver money to compensate Avilés for the damage to his boat, and

Carrero also arranged for Lassalle to deliver the coordinates of

the transfer point to Avilés. In urging Avilés to meet with 7

Lassalle, Carrero at one point stated that "his" system would not

The evidence does not, however, support the government's 7

suggestion that it was solely Carrero's decision to compensate

Avilés. What El Gordo reported to Avilés was that Carrero and

Lassalle would pay him "with money from their pockets" because "the

Dominicans" had refused to pay for the damages. (Emphasis added).

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work without Lassalle's cooperation. This is enough to satisfy

§ 3B1.1(a)'s status requirement, which, as previously noted,

requires only that the defendant must have either organized or led

at least one other participant in the offense. U.S.S.G.

§ 3B1.1(a), cmt. n.2.

In light of his role supervising Lassalle, it cannot be

said that the record does not support a finding that Carrero was a

leader or organizer within the sense contemplated by § 3B1.1(a). 

Because we are not "left with the definite and firm conviction that

a mistake has been committed," we do not find that the enhancement

under § 3B1.1(a) was clear error. United States v. GonzálezMeléndez, 594 F.3d 28, 35 (1st Cir. 2010) (citing United States v.

Arbour, 559 F.3d 50, 53 (1st Cir. 2009)); see also St. Cyr, 977

F.2d at 706 ("[W]hen there are two plausible views of the record,

the sentencing court's adoption of one such view cannot be clearly

erroneous.").8

The government also contends that the upward role adjustment was 8

justifiable based on the fact that Carrero exercised control over

the assets of the drug operation. This contention is without

merit. Finding that a defendant managed the assets of a criminal

enterprise "may ground an upward departure but not an upward rolein-the-offense." Ramos-Paulino, 488 F.3d at 464. Therefore,

although a finding that a defendant managed a criminal enterprise's

assets may warrant a discretionary departure from the sentencing

guidelines, such a finding does not warrant a sentencing

enhancement under § 3B1.1(a). Unlike the government, the district

court made no such error in applying the guideline.

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IV.

For the reasons given above, Carrero's sentence is

affirmed.

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