Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 07-2423

UNITED STATES OF AMERICA,

Appellee,

v.

HERIBERTO ARROYO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin, Circuit Judge,

and Schwarzer, District Judge. *

Robert L. Sheketoff for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief for

appellee.

October 27, 2008
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BOUDIN, Circuit Judge. Heriberto Arroyo, formerly a

police officer in the city of Worcester, Massachusetts, was

convicted by a jury on two different drug conspiracy counts. On

this appeal, he challenges his sentence on two grounds, one legal

and one mostly factual. Since the latter turns in part on

sufficiency of the evidence, we recite the evidence in the light

most favorable to the government. United States v. David, 940 F.2d

722, 732-33 (1st Cir. 1991), cert. denied, 504 U.S. 955 (1992).

Thomas Vigliatura, an amateur bodybuilder and owner of T

Vig's Sports Supplements, ran a drug ring from the T Vig's store

and out of his home in Worcester. Arroyo, then a police officer,

purchased GHB and GBL for personal use and to provide to friends.

GHB (gamma-hydroxybutyric acid) is a regulated drug with limited

medical uses that is sold illegally for its euphoric and bodybuilding qualities. GBL (gamma butyrolactone) is an associated

drug that converts to GHB on ingestion. 

Arroyo also purchased cocaine from Vigliatura and used it

with him. In addition, Arroyo at various times possessed both

cocaine and ecstasy (an illegal euphoric drug) and used the drugs

with various other individuals. In July 2005, both Arroyo and

Vigliatura were indicted, with several others, in a multi-count

federal indictment; two of the counts named Arroyo.

Count I charged Arroyo, Vigliatura and two other

defendants with conspiring to distribute, and to possess with
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intent to distribute, GHB and GBL in and around Worcester, in

Massachusetts, and elsewhere from around summer 2000 to around

summer 2004. Count II charged Arroyo, Vigliatura and one of the

other count I defendants with conspiring to possess cocaine and

ecstasy in Massachusetts and elsewhere during the same time period.

Both counts charged violations of 21 U.S.C. § 846 (2006), which

criminalizes drug conspiracies.

At trial, the government offered evidence from

Vigliatura's former girlfriend as to Vigliatura's sale of GHB and

GBL to Arroyo, Arroyo's social use of GHB and GBL and cocaine, and

Arroyo's supply of the drugs to others. Additional witnesses told

of Arroyo's possession of cocaine or ecstasy or both on various

occasions; one witness (a Vigliatura customer and later a

distributor of GHB and GBL) had seen Arroyo at Vigliatura's office

with a bag of white powder and a scale and testified that

Vigliatura had told the witness that Arroyo was there "to measure

up some cocaine."

The jury convicted on count I only as to the lesser

included offense of conspiracy to possess GHB and GBL; the jury

also convicted on count II, which was already limited to

possession. The district court, rejecting a defense claim at

sentencing that only one conspiracy existed, sentenced Arroyo to

nine months in prison on each of the two counts of conviction to be
To the extent that the district court relied upon the sharing 1

of the drugs, Arroyo makes no objection. In fact, the guideline

commentary suggests that supplying drugs to others may warrant a

departure. See U.S.S.G. § 2D2.1 cmt. n. 1. 

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served concurrently, a year of supervised release, and on each

count a $1,000 fine and a $25 special assessment--both mandatory.

The guideline sentencing range for the two possession

conspiracies taken together, see U.S.S.G. § 3D1.2(b), keyed to

cocaine as the most serious drug, id. § 2D2.1, would have been zero

to six months (because Arroyo had no prior criminal convictions).

Id. ch. 5, pt. A (sentencing table). The district court rejected

possible adjustments to the offense level but chose to depart

upward from the guideline sentence, justifying the departure on two

grounds: first, because Arroyo was a police officer, and second,

because the quantity of drugs and other circumstances indicated

that Arroyo had intended to share the drugs with others.

On appeal, Arroyo's main challenge is to the decision to

impose a non-guideline sentence based in part on Arroyo's

occupation as a police officer. The gist of the argument is that 1

it is irrational, thus certainly unreasonable, and a violation of

his substantive due process and equal protection rights under the

Constitution to give Arroyo a higher sentence based on his

occupation. Some judges, Arroyo adds, might well have given a

police officer a sentence below the guideline range, citing the

tensions of police work.
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Arroyo says that his constitutional challenge should be

reviewed de novo, while the government says that review should be

for plain error since he made no constitutional claim below. It

does not matter in this instance. The district judge's

determination was not irrational. And, apart from any

constitutional constraint or legal infirmity, a non-guideline

sentence is tested primarily under a generous abuse of discretion

standard, Gall v. United States, 128 S. Ct. 586, 591 (2007), which

the sentence meets.

The guidelines identify various sentencing facts and

factors, some of which are encouraged or discouraged bases for

adjusting a sentence, e.g., U.S.S.G. §§ 5H1.2, 5H1.7; others may be

forbidden, e.g., id. § 5H1.10; still others require adjustments up

or down in calculating the guideline range, see, e.g., id. § 3A1.1.

Pertinently the guidelines say that education and vocational skills

are "not ordinarily relevant" except where a defendant used special

skills or abused a position of trust, see id. §§ 3B1.3, 5H1.2.

Here, the district court did not find either a special

skills or abuse of a position of trust adjustment appropriate;

Arroyo suggests that any other consideration of occupation is

irrational. But even without abuse of authority or special skills,

the district court plausibly found that in this instance the very

bad example set by having a police officer buying and making

available illegal drugs enhanced the seriousness of the crime.
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That judgment is not irrational. Indeed, the judge is expected to

consider the history and characteristics of the defendant and the

need for the sentence to reflect the seriousness of the offense and

promote respect for the law. See 18 U.S.C. § 3553(a) (2006). 

The district judge did not adopt an abstract general rule

that every police officer who commits a crime gets a higher

sentence. Arroyo had in fact worn his uniform for some of the

purchases, and some of those who obtained drugs from him socially

knew his position and could have deemed his furnishing of the drugs

as trivializing the seriousness of the offense--enhancing a risk

already present where use is recreational and liable to be brushed

off as nothing to worry about. 

Nor did "occupation" stand alone in the district court's

calculus. The district judge mentioned the quantity of drugs--this

was certainly not a case of one-time use or use during a brief

period--and also the fact that Arroyo did not merely possess the

drugs but made them available to others, even if he did not take

payment for them. So not only was Arroyo's occupation plausibly an

aggravating factor, but it was only one of several related

circumstances that seemed to the judge to take this out of the mine

run of cases where the conviction is for simple possession.

Arroyo may be right that other judges might choose to

reduce the sentence for a police officer; he cites us to United

States v. Mays, 470 F. Supp. 642 (S.D. Tex. 1979), where a court
See Gall, 128 S. Ct. 586; Kimbrough v. United States, 128 S. 2

Ct. 558 (2007); Rita v. United States, 127 S. Ct. 2456 (2007);

United States v. Booker, 543 U.S. 220 (2005). 

Arroyo's brief says that it was erroneous to impose sentences 3

for both counts, "and one of the convictions should be vacated,"

but counsel at oral argument stated that his "real double jeopardy

argument is you can't double sentence for this," and there is no

indication that he challenged the second conviction on double

jeopardy grounds in the district court.

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refused to incarcerate two police officers who were convicted of

killing a criminal suspect after a high speed car chase. Yet the

possibility that a fact or factor like occupation cuts one way in

one case and a different way in another means nothing, so long as

a different context makes that sensible.

It is perhaps more troubling that on exactly the same

facts another judge might have chosen not to impose an above

guideline sentence. Yet this merely shows that rational judges can

give somewhat different weight to the myriad incommensurable

factors that may bear on sentencing. Perfect equality in result

could be achieved only by rigidly binding guidelines and tight

review--an approach with its own costs and one firmly rejected by

the Supreme Court in a set of recent cases.2

Arroyo's independent second attack on the sentence is

that the two separate conspiracies for which he was convicted were

really one, and therefore it violated the Double Jeopardy Clause of

the Constitution to sentence him for both convictions. See United 3

States v. Shea, 211 F.3d 658, 673 (1st Cir. 2000), cert. denied,
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531 U.S. 1154 (2001). Little of consequence turns on this issue

since the sentences were concurrent save for the double fine

($1,000 on each count) and assessment ($25 on each count), and the

fine could easily have been the same if the conduct for the two

conspiracies were included in a single count. 

Arroyo is still entitled to review on his single

conspiracy claim, cf. Rutledge v. United States, 517 U.S. 292, 302-

03 (1996), but the relatively short argument in his brief pivots on

this single, conclusory argument:

The drug activity, possession of GHB, ecstasy,

and cocaine, occurred during the same time

frame, in the same district, among the same

crowd (including three of the same named and

indicted core co-conspirators), for the same

purpose (to party), using the same means

(sharing). The evidence used to prove the

"conspiracies" was virtually identical. 

This is the whole argument apart from citation to and quotation

from general case law dealing with the question of one versus

several conspiracies and a truncated version of the evidence

presented in the fact section of the brief.

A defendant arguing for one rather than two conspiracies

is ordinarily arguing that a reasonable fact finder could only

conceive the pattern of events in a single way. David, 940 F.2d at

732-33. Drug conspiracies are rarely express and are usually

inferred from an assemblage of conduct recounted through various

witnesses. To support a single conspiracy argument would normally

take a meticulous assembly of evidence (taken favorably to the
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verdict) and its association with different conspiracy factors.

Nothing like that is attempted by Arroyo in this case.

The government says that the issue has been forfeited

because Arroyo was convicted by the jury (under a beyond a

reasonable doubt standard) of two conspiracies, did not present

this one conspiracy argument to the jury, and made it only to the

sentencing judge--who employs a preponderance standard, United

States v. Anderson, 452 F.3d 87, 92 n.3 (1st Cir. 2006). We need

not resolve this objection, for Arroyo has not made an argument

sufficiently complete to counter the government's position.

The government's brief conceded that the two conspiracy

finding was a close call, but it argued in detail that the

conspiracies differed as to the drugs and the likely geographic

scope of the activities; that evidence indicated an overlap but not

complete identity of conspirators; and that some of the incidents

related only to one of the two supposedly separate conspiracies.

The argument may be forced but is not frivolous, especially because

assigning different conspiracy labels to complex overlapping drug

activities is an imprecise art. See David, 940 F.2d at 732-35.

In scanting the issue in his opening brief and forgoing

a reply, Arroyo's able and experienced counsel doubtless concluded

that a $25 stake did not warrant detracting from Arroyo's main

attack on the use of his occupation to increase the jail time

imposed. Having concluded that the district judge's two
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conspiracies determination is colorable, we think that Arroyo's

summary argument against it is satisfied by a summary disposition,

there being no conceivable threat of injustice.

Affirmed.