United States Court of Appeals

For the First Circuit

No. 08-1377

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR VARGAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Lynch, Chief Judge,

Selya and Boudin, Circuit Judges.

Edward J. O'Brien and O'Donnell, Trossello & O'Brien, LLP on

brief for appellant.

Michael J. Sullivan, United States Attorney, and Sandra S.

Bower, Assistant United States Attorney, on brief for appellee.

March 17, 2009
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SELYA, Circuit Judge. Defendant-appellant Victor Vargas

pleaded guilty to a charge of conspiring to possess with intent to

distribute five or more kilograms of cocaine. See 21 U.S.C. §§

841(a)(1), 846. The district court sentenced him to an 87-month

term of immurement.

In this venue, he advances three claims of sentencing

error. These claims relate to (i) the court's refusal to grant a

downward role-in-the-offense adjustment; (ii) its ostensible

failure sufficiently to consider factors made relevant to the

imposition of sentence by 18 U.S.C. § 3553(a); and (iii) a

perceived sentencing disparity. Concluding, as we do, that all of

these claims lack merit, we affirm.

I. BACKGROUND

Where, as here, a sentencing appeal follows a guilty

plea, we glean the relevant facts from the change-of-plea colloquy,

the unchallenged portions of the presentence investigation report

(PSI Report), and the record of the disposition hearing. United

States v. Mateo-Espejo, 426 F.3d 508, 509 (1st Cir. 2005); United

States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

As a result of a Boston-based wiretap operation involving

seventeen different cellular telephones and ten different

individuals, the government learned of a planned shipment of

cocaine. Acting on this information, law enforcement agents

surveilled both a truck thought to be transporting the contraband
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and a restaurant thought to be the delivery site. When federal

agents stopped the truck on September 13, 2006, the appellant — who

owned the truck and was driving it — consented to a search. The

search revealed a hidden compartment, in which approximately thirty

kilograms of cocaine were secreted.

The appellant admitted that he had been paid $3,500 by

someone he could not identify to transport an unknown cargo from

Texas to New Jersey. He later backtracked, conceding that he knew

the person who hired him and that he had participated in telephone

conversations relating to future deliveries. He nonetheless

continued to maintain that he did not learn the nature of his cargo

until after the trip had begun.

Indictment and arraignment followed apace. The appellant

maintained his innocence. Then, on October 4, 2007, he entered a

guilty plea. 

In due season, a probation officer prepared the PSI

Report. In it, the probation officer recommended, among other

things, a three-level downward adjustment for acceptance of

responsibility, see USSG §3E1.1, and a two-level reduction

attributable to the appellant's minor role in the offense of

conviction, see id. §3B1.2(b). The latter recommendation was

premised on the appellant's lack of knowledge of the quantity of

drugs being hauled and his limited involvement in the overall

conspiracy. The probation officer also noted that the safety valve
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provision would apply if the appellant, a first offender, satisfied

the requisite five-part test. See 18 U.S.C. § 3553(f); USSG

§5C1.2. In this regard, the probation officer observed that,

absent the safety valve, the appellant would be subject to a 120-

month mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A);

USSG §5G1.1(b). 

The government objected to both the proposed minor role

adjustment and the suggested deployment of the safety valve. These

objections were grounded largely on the input of a cooperating

witness who, according to the government, would cast serious doubt

on the appellant's veracity anent the extent of his knowledge and

his degree of complicity.

Confronted with this aposematic objection, the appellant

opted for a third proffer session. During that session, he finally

admitted that he had known all along that he was transporting

narcotics; indeed, he had helped load the drugs into the "hide" in

his truck. He also admitted having been paid $900 to haul a

shipment of drugs on a prior occasion.

The sentencing court convened the disposition hearing on

March 10, 2008. The court granted the appellant both safety valve

and acceptance of responsibility reductions but denied him any

mitigating role adjustment. With a total offense level of 29 and

a criminal history category of I, the guideline sentencing range

(GSR) was 87 to 108 months. The court declined to vary from that
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range and sentenced the appellant at the low end. This timely

appeal ensued.

II. ANALYSIS

Following the Supreme Court's decision in United States

v. Booker, 543 U.S. 220, 245 (2005), we created a by-now-familiar

roadmap for sentencing under an advisory guideline regime: 

[A] sentencing court ordinarily should begin

by calculating the applicable guideline

sentencing range; then determine whether or

not any departures are in order; then mull the

factors delineated in 18 U.S.C. § 3553(a) as

well as any other relevant considerations;

and, finally, determine what sentence, whether

within, above, or below the guideline

sentencing range, appears appropriate.

United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006)

(citing United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st

Cir. 2006) (en banc)). 

In this instance, the district court traveled the

designated route. The appellant's challenge implicates three of

the district court's subsidiary determinations. We deal with those

three items sequentially.

A. Mitigating Role Adjustment.

A sentencing court may adjust a defendant's offense

level, up or down, if the defendant's role in the offense of

conviction appears more or less significant than the norm. United

States v. Quiñones-Medina, 553 F.3d 19, 22 (1st Cir. 2009).

Pertinently, the guidelines authorize a two-level decrease in
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offense level when "the defendant was a minor participant in [the

relevant] criminal activity." USSG §3B1.2(b). The appellant

claims that the district court erred in refusing to grant him such

a boon.

Due to the fact-specific nature of the inquiry into a

defendant's role in the offense, appellate review of such

determinations is generally deferential. See United States v.

Graciani, 61 F.3d 70, 75 (1st Cir. 1995). "Consequently, we review

a district court's resolution of the facts relative to a minor role

adjustment for clear error, applications of law to those raw facts

somewhat less deferentially, and purely legal questions de novo."

Quiñones-Medina, 553 F.3d at 22. Given this algorithm, factbound

battles over a defendant's role in an offense "will almost always

be won or lost in the district court." Graciani, 61 F.3d at 75. 

The appellant's first foray is an attempt to secure de

novo review. He argues that the sentencing court precluded him as

a matter of law from a minor role adjustment by holding him

responsible for only the drugs actually transported in his truck

(as opposed to the more sizable quantities distributed by the

conspiracy as a whole). 

This argument strikes a counter-intuitive chord. In

narcotics cases, a defendant's offense level is driven largely by

the quantity of drugs attributed to him, see, e.g., United States

v. Colón-Solis, 354 F.3d 101, 103 (1st Cir. 2004), and it is
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unusual for a defendant to complain about being held responsible

for a smaller quantity. 

Here, however, the appellant wishes, figuratively, to

have his cake (i.e., to gauge his offense level by a lesser drug

quantity) and eat it too (i.e., to gauge his role in the offense

with reference to the overall conspiracy, which handled greater

quantities of drugs). Despite the apparent inconsistency, there is

nothing wrong with that approach: a defendant may accept the

sentencing court's restricted drug-quantity finding (limited to a

single shipment) and nonetheless argue that the relevant crime, for

purposes of a role-in-the offense adjustment, is the broader

conspiracy. 

So it is here. While not challenging the sentencing

court's drug-quantity finding as such, the appellant argues that

the court, in focusing too intently on this finding, impermissibly

rejected his assertion that he occupied a minor role in the overall

conspiracy without further inquiry. 

This argument has two aspects. First, the appellant

quotes the sentencing court's statement that he was being "held

responsible only for the amount of drugs in his truck, not for the

drugs distributed by the whole conspiracy," and suggests that this

statement and others like it somehow show that the court foreclosed

a minor role adjustment as a matter of law. This suggestion

misconceives the thrust of the sentencing court's finding. 
 Those facts were not available to the probation officer who 1

composed the PSI Report.

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We do not read the record as showing that the sentencing

court precluded the appellant from arguing for a mitigating role

adjustment. Putting the statements in context, it is readily

evident that the court considered the appellant's plea for a minor

role adjustment on the merits. It weighed all the facts,

particularly those unearthed at the third and final proffer

session, and reasoned that the appellant was not a minor player in 1

light of his prior participation in the transportation of

contraband, his help in loading the truck, the amount of money

paid to him, the quantity of drugs that had been entrusted to his

care, and his willingness to discuss a role in future deliveries.

This was a factual determination, pure and simple, not the

preclusion of a mitigating role adjustment as a matter of law.

Second, the appellant posits that the sentencing court

misinterpreted the guidelines when it focused its consideration of

his level of participation on the drugs found in his truck. This

complaint lacks force.

It is, of course, true that a defendant's role in the

offense should not be predicated "solely on the basis of elements

and acts cited in the count of conviction." USSG Ch.3, Pt.B,

intro. cmt. This means that a defendant's role must be evaluated

based on his relevant conduct as a whole. See United States v.
Although the record contained evidence of the appellant's 2

participation in an earlier drug transport, there was no evidence

linking that shipment to the charged conspiracy. The telephone

calls noted in the record related to the possibility of unspecified

future deliveries. Those calls were relevant to show the

appellant's knowledge of the broader conspiracy but not to show

actual participation in it. 

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Rodríguez De Varón, 175 F.3d 930, 940-41 (11th Cir. 1999); United

States v. García, 954 F.2d 12, 15 (1st Cir. 1992); see also USSG

§1B1.3(a)(1)-(4). But when the offense of conviction is a

conspiracy, acts not forming the basis of the count of conviction

may "be included as relevant conduct . . . [so long as] those acts

were reasonably foreseeable by the defendant and committed in

furtherance of the conspiracy." García, 954 F.2d at 15. Where a

defendant is hired to transport a single shipment of drugs and does

not otherwise participate in the larger conspiracy, his relevant

conduct ordinarily will be limited to that shipment. See USSG

§1B1.3, cmt. (n.2(c)(3)).

Viewed charitably, the appellant's involvement in the

conspiracy was along those lines. He drove a delivery truck

containing a single shipment of cocaine. There was no evidence

that he had any actual involvement in other facets of the

conspiracy. Thus, the district court supportably confined his 2

relevant conduct to the single thirty-kilogram haul. 

The appellant contends that this relevant conduct

determination somehow constrained the court to preclude a minor

role adjustment as a matter of law. That contention confuses plums
 This application note, adopted in 2001, resolved a circuit 3

split on this issue. After the amendment's adoption, courts

uniformly have followed Rodríguez De Varón. See, e.g., United

States v. Rodríguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004).

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with pomegranates: limiting a defendant's relevant conduct to one

phase of a conspiracy does not preclude an independent role-in-theoffense inquiry. See Rodríguez De Varón, 175 F.3d at 943

(explaining that a defendant is not automatically precluded from a

mitigating role adjustment where he is held accountable only for

the amount of drugs that he personally handled); see also USSG

§3B1.2, cmt. (n.3(A)) (noting that "a defendant who is convicted of

a drug trafficking offense, whose role in that offense was limited

to transporting or storing drugs and who is accountable under

§1B1.3 only for the quantity of drugs the defendant personally

transported or stored is not precluded from consideration for an

adjustment under this guideline"). The record makes clear that 3

the district court realized as much. The question was whether the

appellant occupied a minor role in the conspiracy as a whole, and

that is precisely the question that the district court endeavored

to answer. 

The appellant's final argument on this point asserts that

the sentencing court failed properly to assess his role. This is

a factbound inquiry, and we review the lower court's determination

only for clear error. See Quiñones-Medina, 553 F.3d at 23. 
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A defendant who seeks a minor role adjustment bears the

burden of proving his entitlement thereto. Mateo-Espejo, 426 F.3d

at 512; United States v. Sánchez, 354 F.3d 70, 74 (1st Cir. 2004).

In order to carry that burden, he must show, by a preponderance of

the evidence, that he was less culpable than both his confederates

and the mine-run of other wrongdoers who have committed similar

crimes. United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.

1990).

In this instance, the appellant claims that the

sentencing court improperly fixated on the amount of drugs in his

truck. This was error, he says, because he was a mere courier,

which made him less culpable than his comparators both within the

charged conspiracy and in drug-trafficking conspiracies generally.

The appellant seems to assume that couriers are

automatically entitled to mitigating role adjustments. That is an

incorrect assumption. See, e.g., Quiñones-Medina, 553 F.3d at 23;

Mateo-Espejo, 426 F.3d at 512; United States v. Paz Uribe, 891 F.2d

396, 399 (1st Cir. 1989). Some couriers are more central to the

plot than others. 

The defendant also seems to assume that because he

participated in only one phase of the conspiracy, he necessarily

played a minor role. That, too, is an incorrect assumption. A

defendant who participates in only one phase of a conspiracy may

nonetheless be found to play a non-minor role in the conspiracy as
 The court observed, for example, that the appellant was more 4

culpable than a courier "who gets on [an airplane] with something

strapped to their chest." 

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a whole. See, e.g., United States v. Ortiz-Santiago, 211 F.3d 146,

149 (1st Cir. 2000); United States v. Buenrostro, 868 F.2d 135, 138

(5th Cir. 1989). 

The facts here are not hospitable to the appellant's

claim. While he strenuously insists that he played only a

peripheral role in the overarching conspiracy, the record (for

reasons already discussed) supports the sentencing court's finding

that he was no less culpable than the mine-run of drug traffickers.

The appellant's "fixation" argument does not undermine

this conclusion. Although the sentencing court commented

specifically on the large quantity of drugs hauled by the

appellant, that was a relevant datum in assessing his role in the

conspiracy. See Rodríguez De Varón, 175 F.3d at 943. 

In any event, the sentencing court did not "fixate" on

this one fact. It viewed the appellant's participation as a whole

and concluded that his role was not minor when compared to other

couriers.4

The decision as to where on the status continuum a

particular defendant falls is, within wide limits, best left to the

sentencing court. See Ocasio, 914 F.2d at 333. Those limits were

not exceeded (or even closely approached) in the instant case. It
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follows that the district court's finding of "no minor role" was

not clearly erroneous.

B. 18 U.S.C. § 3553(a).

We turn next to the appellant's claim that the sentencing

court did not sufficiently address the factors enumerated in 18

U.S.C. § 3553(a). We evaluate this claim under a deferential

abuse-of-discretion standard. See Gall v. United States, 128 S.

Ct. 586, 591 (2007); United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008). 

There is no doubt but that, in sentencing, the district

court should treat the GSR merely as a starting point. Martin, 520

F.3d at 91. The next steps "should include hearing argument from

the parties as to the proper sentence in the particular case,

weighing the applicability of the sundry factors delineated in 18

U.S.C. § 3553(a), reaching an ultimate sentencing determination,

and explicating that decision on the record." Id. In this

evaluative process, the court should remain cognizant that

variances from the guidelines — even substantial variances — are

not always beyond the pale. Id.

None of this means, however, that a sentencing court is

required to provide a lengthy and detailed statement of its reasons

for refusing to deviate from the GSR. The opposite is true. See,

e.g., United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007);

United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.
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2006). There is no need for the sentencing court to engage "in

some sort of rote incantation when explicating its sentencing

decision." United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006).

In this case, the appellant complains that the court

below did not provide a plausible explanation as to why a nonguideline sentence would not have sufficed to satisfy the

legitimate objectives of sentencing. In support, he claims that

the court did not adequately address certain of the section 3553(a)

sentencing factors, including his "lack of a prior record,

legitimate work history, lack of violent behavior [and] scant

potential of recidivism."

The record contradicts this plaint. The sentencing

court, after calculating the GSR, invited the appellant to argue

under section 3553(a) for a below-the-range sentence. After

hearing that argument, weighing all the facts, and citing a number

of specific considerations (e.g., the appellant's prior involvement

in drug trafficking), the court concluded that nothing in the

appellant's "personal history and characteristics" warranted a

variant sentence below the bottom of the GSR. The court's

reasoning is plausible, the result defensible, and the record

barren of anything suggestive of either procedural or substantive

error. Accordingly, we reject this assignment of error. 

 
The appellant has not impeached the veracity of that 5

proffer, nor does he suggest that its contents were unknown to the

sentencing judge. 

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C. Disparity.

We need not linger over the appellant's last claim. He

asseverates that his sentence was substantively unreasonable

because it was longer than the sentence meted out to a more

culpable codefendant. This argument is hopeless.

Section 3553(a) encourages a sentencing court to

consider, as a basis for ameliorating a prospective sentence, a

perceived "need to avoid unwarranted sentence disparities among

defendants with similar records." 18 U.S.C. § 3553(a)(6). In

enacting this provision, Congress's concern was mainly with

minimization of disparities among defendants nationally rather than

with disparities among codefendants engaged in a common conspiracy.

See Martin, 520 F.3d at 94; United States v. Navedo-Concepción, 450

F.3d 54, 60 (1st Cir. 2006); United States v. Smith, 445 F.3d 1, 5

(1st Cir. 2006). 

At any rate, the appellant and the codefendant whom he

identifies were not similarly situated. We have reviewed the

material that the government has proffered under seal. The facts 5

disclosed satisfy us that the two men are not fair congeners.

There were ample reasons to give the codefendant a shorter sentence

— reasons that did not pertain to the appellant.
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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the conviction and sentence.

Affirmed.