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United States v. Reverol-Rivera

United States Court of Appeals, First Circuit

February 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JORGE REVEROL-RIVERA, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.

Liza L. Rosado-Rodríguez, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, Héctor E. Guzmán-Silva, Jr., Federal Public Defender, Hector L. Ramos-Vega, Assistant Federal Public Defender, Supervisor, Appeals Section, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Stahl, and Barron, Circuit Judges.

OPINION

Page 364

BARRON, Circuit Judge.

Jorge Reverol-Rivera and an accomplice both pled guilty to importing cocaine to the United States. In this appeal, Reverol challenges the District Court's decision to give him a much longer sentence than his accomplice, even though both piloted the boat used to import the cocaine. Because the sentencing disparity between these co-defendants was reasonably justified by the difference in culpability that the District Court expressly found, we affirm the sentence.

I.

Reverol and an accomplice piloted a small boat to a rendezvous with another boat in international waters and then back towards Puerto Rico. After the two men entered United States territorial waters, law enforcement agents boarded the boat and discovered what was later confirmed to be 148.5 kilograms of cocaine.[1]

Pursuant to an agreement, see Fed. R. Crim. P. 11(c)(1)(A), (B), Reverol pled guilty to importing (and aiding and abetting his accomplice in importing) into the United States at least five kilograms of a substance containing cocaine. 21 U.S.C. § § 952(a), 960(a)(1), 960(b)(1)(B); 18 U.S.C. § 2. The government and Reverol agreed to " recommend a sentence at the lower end of the applicable advisory guideline range." [2]

The Sentencing Guidelines recommend a range of sentences based on two variables. See U.S.S.G. § 5A. The first variable is the offense level, expressed as a point value determined initially by the seriousness of the offense and then adjusted upward or downward to account for aggravating or mitigating factors. See id. § 2 introductory cmt. The second variable is the defendant's criminal history. See id. § 4A1.1.

The statement of facts that accompanied the plea agreement stipulated that Reverol " captained the vessel" that transported the cocaine. The plea agreement's recommended guidelines calculation, however, did not apply the guideline that enhances a defendant's offense level by two points " [i]f the defendant unlawfully imported or exported a controlled substance under circumstances in which . . . the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance." U.S.S.G. § 2D1.1(b)(3)(C). The government also promised not to seek further enhancements.

The pre-sentence report, independently prepared by a probation officer, contained its own recommended guidelines calculation. See Fed. R. Crim. P. 32(d). The report took a different approach and applied the captain enhancement. ...


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