[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1749

UNITED STATES,

Appellee,

v.

ORLANDO ESCALERA, a/k/a CHINO, a/k/a FRANCISCO A. LINEROS, a/k/a MARCOS LUIS FONTANEZ RODRIGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Stahl, and Lipez, Circuit Judges.

Charles W. Groce, III for appellant. Kevin J. Cloherty, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee. April 25, 2000 STAHL, Circuit Judge. The Defendant, Orlando Escalera,

appeals the sentence he received after pleading guilty to

various drug-related offenses. For the following reasons, we

affirm.

I.

Background

On October 9, 1997, a grand jury indicted Escalera,

Tonya Laythe, Scott Gilley, and Rolando Cartagena on a number of

drug-trafficking charges. Escalera faced one count of

conspiring to possess with intent to distribute cocaine, see

, as well as nine counts of possessing with intent

to distribute and distributing cocaine, see

§ 841(a)(1).

On March 26, 1998, Escalera pleaded guilty to all

counts. Consistent with Rule 32 of the Federal Rules of

Criminal Procedure, a probation officer prepared a presentence

report ("PSR") that described the crimes that Escalera had

committed and also discussed his personal background. See Fed.

R. Crim. P. 32(b)(4). After considering the PSR, hearing

arguments from counsel, and giving the defendant the opportunity

to speak, the district court sentenced Escalera to seventy

months in prison plus five years of supervised release and a

$1000 special assessment.

-3- Under the United States Sentencing Guidelines ("the

Guidelines"), the district court arrived at this sentence using

a base offense level of twenty-six, see U.S.S.G. § 2D1.1(c)(7),

with a two-level increase because Escalera's crimes involved an

underage individual, see id. § 2D1.2(a)(1) ("the underage

enhancement"), and a two-level increase to reflect Escalera's

role in those offenses, see id. § 3B1.1(c) ("the role

enhancement"). The court also reduced Escalera's offense level

by three, finding acceptance of responsibility. See id. §

3E1.1(b). On appeal, Escalera challenges both of the sentencing

enhancements by the district court.

II.

Escalera now contends that the district court should

not have increased his base offense level to reflect the

involvement of an underage individual pursuant to § 2D1.2(a)(1)

of the Guidelines, even though he did not challenge this

enhancement at sentencing. In fact, when the district court

sought to confirm that the enhancement was appropriate,

Escalera's attorney explicitly said, "[y]es." Under these

circumstances, any objections to the enhancement have been

forfeited. See United States v. Pilgrim Market Corp.,

(1st Cir. 1991). We will uphold the trial court's

decision to apply the enhancement unless that decision

-4- constitutes a plain error that affects substantial rights and

that would "seriously affect[] the fairness, integrity, or

public reputation of judicial proceedings" if left unredressed.

Johnson v. United States,

(1997) (citations

and internal quotation marks omitted).

Given this standard of review, we turn to the merits.

Section 2D1.2(a)(1) of the Guidelines prescribes a two-level

increase to the base offense level of a defendant who involves

an underage individual in a drug-related offense. Although

Escalera argues that this provision applies only to some drug-

related crimes and not to others, such as the ones to which he

pleaded guilty, he concedes that another section of the

Guidelines would have provided an alternative basis for the same

sentencing enhancement. See U.S.S.G. § 3B1.4 (prescribing a

two-level enhancement if the defendant "used or attempted to use

a person less than eighteen years of age" in the commission of

an offense). Whether supported by § 2D1.2 or § 3B1.4 of the

Guidelines, it is evident that the district court had the

authority to increase Escalera's offense level by two if he used

someone under eighteen years old to commit the crimes at issue.

During Escalera's plea colloquy, the government made

an offer of proof that from at least May 5, 1997 through

September 29, 1997, Escalera, Laythe, and Gilley had conspired

-5- to traffic cocaine and had sold at least 599.6 grams of cocaine

in nine transactions to an undercover police officer. The

government specifically represented that Laythe was under

eighteen years old during part of this time and that she had

"sold cocaine with and at the direction of Mr. Escalera."

Escalera's PSR similarly stated that Laythe, who "was less than

18 years old for each of the cocaine transactions described in

Counts 2 through 8" of the Indictment, had "sold cocaine with

and at the direction of defendant Escalera." Although Escalera

provided the district court with a letter maintaining that

Laythe sometimes had sold drugs on her own, he never disputed

that she sometimes had sold drugs under his direction while she

was under eighteen.

On these facts, the district court properly concluded

that Escalera had used someone under eighteen years old in the

commission of an offense, thereby warranting a two-level

increase in his base offense level. There was no plain error.

See Johnson,

.

III.

Escalera also argues that the district court erred in

applying the role in the offense enhancement to his sentence.

Before reaching the merits of this claim, we again must consider

-6- whether Escalera has preserved the issue for full appellate

review.

Before Escalera pleaded guilty, the government made an

offer of proof that detailed his involvement in the drug-

trafficking conspiracy. In particular, the government

represented that from at least May 5, 1997 through September 29,

1997:

Laythe sold cocaine with and at the direction of Mr. Escalera. Mr. Escalera arranged for the receipt of cocaine from his source, and Laythe would make and receive telephone calls to arrange the sale of that cocaine and then deliver the cocaine to customers. Laythe received payment for the cocaine which she then gave to Escalera, and she acted on his behalf as an interpreter.

When asked, Escalera advised the district court that he agreed

with this proffer and that he had nothing to add to it.

Escalera's PSR confirmed that Escalera had been the

"decision-maker and leader of the conspiracy." It also

indicated that Escalera had directed not only Laythe but also

Gilley, Cartagena, and an unnamed source of their cocaine

supply. Because the conspiracy appeared to involve five

participants, the PSR urged the district court to apply a four-

level enhancement to Escalera's base offense level. See

U.S.S.G. § 3B1.1(a) (prescribing a four-level increase "[i]f the

-7- defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive").

Rather than challenging whether he had played a

leadership role in the conspiracy, Escalera merely argued that

a two-level instead of a four-level role enhancement was

appropriate because it was unclear exactly how many other

participants he had organized or supervised in addition to

Laythe and Gilley. See U.S.S.G. § 3B1.1(c) (prescribing a two-

level increase "[i]f the defendant was an organizer, leader,

manager, or supervisor in any criminal activity" and less than

five participants were involved). The government agreed with

Escalera's position, and the district court accepted it,

imposing only a two-level role enhancement.

By asking the district court to impose a two-level role

enhancement at sentencing, Escalera almost certainly waived his

right to object to that enhancement on appeal. See United

States v. Mitchell,

(1st Cir. 1996) ("A party

waives a right when it makes an intentional relinquishment or

abandonment of it." (citations and internal quotation marks

omitted)). But even if Escalera's position at sentencing fell

short of an actual waiver, he unquestionably forfeited his

objections to the enhancement by failing to raise them until

-8- now. As a result, we review the propriety of the two-level role

enhancement only for plain error. See Johnson,

.

Escalera's PSR supported the conclusion that the

defendant had been involved in a drug-trafficking conspiracy in

which he controlled a source of supply and directed Laythe,

Gilley, and possibly others to sell cocaine on his behalf.

Although Escalera argued that Laythe and Gilley sometimes had

sold cocaine for their own benefit, he did not dispute that they

sometimes had sold drugs under his direction. Thus, in the

absence of any meaningful evidence to the contrary, the district

court was free to credit the PSR insofar as it suggested that

Escalera had played a leadership role in the conspiracy. See

United States v. Morillo,

(1st Cir. 1993)

("Facts contained in a presentence report ordinarily are

considered reliable evidence for sentencing purposes."). Having

made the requisite factual findings, the district court properly

applied a two-level role enhancement under § 3B1.1(c) of the

Guidelines. There was no plain error. See United States v.

Graciani,

(1st Cir. 1995) ("[B]attles over a

defendant's status and over the scope of the criminal enterprise

will almost always be won or lost in the district court.").

IV.

Conclusion

-9- For the foregoing reasons, we affirm the district

court's sentence.

Affirmed.

-10-