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United States of America v. Kevin Rafael Granados-Ortiz
Case Number: 18-1354
Judge: Michael Boudin
Court: United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Plaintiff's Attorney: Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney
Boston, MA - Criminal defense lawyer represented defendant charged with one count of conspiracy to possess with intent to distribute cocaine.
Kevin Rafael Granados-Ortiz pled
guilty to one count of conspiracy to possess with intent to
distribute cocaine and was sentenced to 121 months in prison. On
appeal, he challenges his sentence as procedurally unreasonable.
He challenges his plea on the grounds that he did not enter into
his plea agreement knowingly and voluntarily.
Granados-Ortiz was charged with five counts of crimes
relating to distribution at drug points located within the Columbus
Landing Public Housing Project in Mayaguez, Puerto Rico:
conspiracy to distribute narcotic drug controlled substances,
aiding and abetting in the distribution of cocaine, crack cocaine,
and marijuana, and conspiracy to possess firearms in furtherance
of drug trafficking crimes.
Granados-Ortiz pled guilty to the first count--
conspiracy to distribute controlled substances--and admitted the
following: that he "was a member of the drug trafficking
organization that operated at Columbus Landing Public Housing
Project"; that he "conspired to possess with intent to distribute
at least 2.0 kilograms but less than 3.5 kilograms of cocaine";
that he "decked the marihuana, cocaine and cocaine base for further
distribution at the drug points"; and that he "collected the
proceeds of the drug sales from other co-conspirators, and paid
the sellers." In exchange, the prosecution agreed to dismiss the
- 3 -
The parties agreed on a total offense level of 29: This
reflected various adjustments from a base offense level of 26,
given the quantity of cocaine involved, including a two-level
enhancement for being an "[o]rganizer, leader, manager or
supervisor" in the conspiracy. They then agreed to "recommend to
the Court a sentence of imprisonment at a total offense level of
29, and not lower than 92 months if Defendant's [criminal history
category] is I or II." The judge was not bound by these proposals.
Compare Fed. R. Crim. P. 11(c)(1)(A)–(B)(not binding), with Fed.
R. Crim. P. 11(c)(1)(C)(binding).
Granados-Ortiz agreed to an appeal waiver that would
apply only if he was "sentenced in accordance with the terms and
conditions set forth" in this sentencing recommendation provision,
but we have determined that this appeal waiver was not triggered,
because the sentencing judge derived Granados-Ortiz's sentence
from a total offense level of 30 rather than the agreed-upon
offense level. See United States v. Almonte-Nuñez, 771 F.3d 84,
88 (1st Cir. 2014). Thus the waiver issue falls out of the case.
What remains disputed is the court's determination, recommended by
the probation officer, that Granados-Ortiz receive a three-level
adjustment as a "manager or supervisor" of an "extensive"
conspiracy. U.S.S.G. § 3B1.1(b). Although Granados-Ortiz
disputes the determination, it was clearly correct.
- 4 -
As the district court said, the defendant was "entrusted with
managing the money that was collected from the sale of drugs."
"[H]e's supervising sellers; he receives the money back, and has
to make a tally of how much was sold vis-a-vis how much was
received. He's paying the sellers. . . . [s]o there's a
supervisory capacity." With the three-level enhancement and a
sentencing range of 108-135 months, the court sentenced GranadosOrtiz to 121 months.
Granados-Ortiz argues that he did not enter into the plea
agreement knowingly and voluntarily, see United States v.
Chambers, 710 F.3d 23, 27–28 (1st Cir. 2013), because he was not
informed that the government could recommend a sentence higher
than 92 months, and the government here recommended a sentence of
121 months. Even putting aside his failure to raise the issue
below, see United States v. Ortiz-Álvarez, 921 F.3d 313, 317 (1st
Cir. 2019), the government never agreed to recommend a sentence of
only 92 months. If the defendant thought otherwise, he was