United States v. Rivera-Moreno

United States Court of Appeals
For the First Circuit

No. 08-1961

UNITED STATES OF AMERICA,

Appellee,

v.

RICARDO RIVERA-MORENO, a/k/a Richi

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Matthew A. Kamholtz, with whom Feinberg & Kamholtz, was on
brief for appellant.
Julia M. Meconiates, 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.

July 19, 2010
 TORRUELLA, Circuit Judge. Appellant Ricardo Rivera-

Moreno was tried as a street seller and "runner"1 in a vast, four-

year drug-trafficking conspiracy, Las Avispas Dos, operating in

Guayama, Puerto Rico. On the sixth day of trial, he pled guilty to

a charge of conspiracy to distribute controlled substances. The

district court sentenced Appellant to 365 months in prison, plus a

fifteen-year term of supervised release. On appeal, Appellant

contends that the sentencing court inappropriately attributed to

him the full weight of the conspiracy's drug amounts and did not

make individualized findings as to the quantity of drugs he

distributed. Appellant also argues that the district court's

sentence was procedurally and substantively unreasonable. After

careful review of the record and the law, we find that the district

court did not commit clear error in its factual findings, including

the calculations of the drug quantities, and that the district

court did not abuse its discretion in imposing Appellant's

sentence. Accordingly, we affirm the district court's order and

judgment in all respects.

1
José Rivera-Díaz ("Rivera-Díaz"), a co-defendant who became a
cooperating witness for the government, testified at trial that a
runner "is in charge of keeping the material in his house to then
bring it over to the drug point and hand it over to the seller, and
then to collect the monies and keep it for the owner of the
material." Also based on Rivera-Díaz’s testimony, the "owner" is
the person who purchased the drug materials for Las Avispas Dos.

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 I. Background and Procedural History

As Appellant's guilty plea is based on the indictment, we

present pertinent aspects of that indictment. See United States

v. Cadieux, 500 F.3d 37, 47 (1st Cir. 2007) (under Shepard v.

United States, 544 U.S. 13 (2005), an appellate court can look to

the indictment when reviewing sentencing determinations following

a guilty plea). Also, "[b]ecause this appeal follows a guilty

plea, we draw the facts from the change-of-plea colloquy, the

presentence investigation report (PSI Report), and the transcript

of the disposition hearing." United States v. Cintrón-Echautegui,

604 F.3d 1, 2 (1st Cir. 2010).

A. Evidence, Guilty Plea, and Sentencing (2007-2008)

In 2003 a series of major arrests crippled Las Avispas

Uno, the predecessor of Las Avispas Dos's drug distribution

operation. The remaining members of Las Avispas Uno held a meeting

to decide who would take over prominent positions within a new drug

conspiracy.2 At that meeting, Appellant's brother, Joe, assumed

the top leadership role in the reconstituted Las Avispas (in

English, "The Wasps"), Las Avispas Dos.

On March 19, 2007, a grand jury sitting in the District

of Puerto Rico returned a two-count indictment against Appellant

2
At trial, Rivera-Díaz testified that Appellant attended this
meeting, which Appellant admits in his appellate brief.

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and forty-one co-conspirators.3 Count One of the indictment

charged that, between approximately 2003 and 2007, the group of

forty-two defendants conspired to possess with intent to distribute

and did distribute narcotics, in violation of 21 U.S.C.

§§ 841(a)(1), 846, and 860.4 The indictment made multiple

references to "the drug trafficking organization" in which

Appellant was accused of being a member, "Las Avispas."5

The indictment alleged that the co-conspirators,

including Appellant (1) operated multiple "drug distribution

points" within the municipality of Guayama; (2) possessed firearms

"to protect themselves from other competing drug trafficking

organizations, and to maintain control over the above mentioned

'drug distribution points'[;]" and (3) killed and attempted to kill

"members of the organization and members of rival drug trafficking

organizations in order to intimidate them and to maintain and

further their control over 'drug distribution points.'"

3
In the companion case of Cintrón-Echautegui, 604 F.3d at 2, one
of Appellant's co-conspirators in Las Avispas Dos also pled guilty
to the conspiracy count.
4
Count Two, relating to forfeiture of property upon a conviction
under Count One, 21 U.S.C. § 853(a)(1) and (2), was dismissed at
Appellant's disposition hearing.
5
Although the indictment itself did not mention the organization
by name, it is identified by the parties in briefs and the change
of plea colloquy, the PSI Report, and the disposition hearing as
"Las Avispas."

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 The indictment specifically alleged that Appellant, along

with three other indicted co-conspirators, "killed" Ricardo

Haddock-Collazo ("Haddock-Collazo") and then disposed of his body,

on or about September 12, 2004, "since they believed he was

providing information about the drug distribution organization to

law enforcement authorities." The PSI Report also noted this

allegation, based on the testimony of a cooperating witness.

Appellant and nine indicted co-conspirators proceeded to

trial on February 11, 2008. On the sixth day of trial, February

19, 2008, Appellant pled guilty, without any plea agreement, to

Count One on the indictment. Appellant did not admit to the

allegations that he participated in the death of Haddock-Collazo or

subsequent disposal of his body.

During Appellant's pre-sentence interview conducted by

the probation department, he admitted that he was a seller and "on

occasions he acted as a runner" for Las Avispas Dos. Based on

Rivera-Díaz's testimony at trial, the PSI Report observed that

while Las Avispas Dos "runners" mostly used the AK-47 rifle,

Appellant and other sellers who were close to leaders of the

organization were also allowed to use the weapon. Also based on

that testimony, the PSI Report stated that from 2003 to 2007, Las

Avispas Dos engaged in "many shoot outs" against their enemies "in

order to obtain control of the drug points."

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 The indictment stated that "[s]ome members [of the

conspiracy] would exhibit on their body a tattoo depicting a

'[b]ee' in order to identify themselves as loyal members of the

organization."6 The PSI Report stated that Appellant neglected to

disclose the fact that he has a "[b]ee" tattoo on his chest;

however, his mother corroborated this fact. At Appellant's

disposition hearing, the sentencing court found that the tattoo of

a wasp or a bee on his chest "was the insignia for the [Las Avispas

Dos] organization."

Additionally, the PSI Report referenced that Las Avispas

Dos prepared capsules of crack cocaine in a house next to the Luis

Muñoz Elementary School and that only a wall separated the house

from the school. The PSI Report reiterated Rivera-Díaz's testimony

at trial as to the amounts, locations, and times that Las Avispas

Dos sold drugs. With Rivera-Díaz's testimony that Las Avispas Dos

sold 1,100 to 1,300 capsules of cocaine base each day for 364 days

per year and a chemist's testimony that each capsule of crack that

Las Avispas Dos sold contained .075 grams of cocaine base, the PSI

Report concluded that the conspiracy sold 27.3 kilograms of cocaine

base annually and an estimated 109.2 kilograms of cocaine base over

6
Although the indictment and the PSI Report refer to a "[b]ee"
tattoo on Appellant, Rivera-Díaz testified at trial that the tattoo
is of a wasp. Appellant does not contest this discrepancy on
appeal and so we need not address it.

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the life of the conspiracy.7 The base offense level for offenses

involving at least 4.5 kilograms of crack is 38. U.S.S.G.

§ 2D1.1(c)(1). The PSI Report additionally applied the murder

cross-reference for Appellant's participation in the murder of

Haddock-Collazo, which increased the base offense level to 43.

U.S.S.G. § 2D1.1(d)(1). The PSI Report then subtracted two levels

for acceptance of responsibility, establishing a total offense

level of 41. The PSI Report assigned Appellant criminal history

category II for a prior juvenile conviction for selling drugs as a

member of Las Avispas Uno. With an offense level of 41 and a

criminal history category of II, the PSI Report provided an

advisory guideline sentencing range ("GSR") of 360 months to life

imprisonment.

During the disposition hearing the government stated

that:

[W]e believe that the evidence presented at
trial was that this defendant was a runner.
And, as a runner, he would have other
individuals under his supervision that would
be lookouts, Your Honor.

And at some point during the conspiracy,
[Appellant] became the right hand of Eduardo
Pab[ó]n when in 2005 Pab[ó]n attempted or
began to take over the drug trafficking
operations.

7
This figure is based upon an estimate that 1,000 capsules of
cocaine were sold a day, multiplied by .075 grams of cocaine base
per capsule, multiplied by the 364 days a year that Las Avispas
distributed drugs, multiplied by the length of the conspiracy,
which was four years (2003-2007).

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The sentencing court accepted these representations as the court

stated "[t]his individual certainly had some degree of control.

And he was the . . . right hand of individuals known as Gabby and

Pab[ó]n as well."8

Appellant filed a Sentencing Memorandum making two

objections that are relevant to this appeal. First, he objected to

applying the murder cross-reference, arguing that the evidence at

trial did not support the conclusion that he participated in the

murder. Second, Appellant objected to the entire weight of the

drug conspiracy being attributed to him, arguing that he could not

reasonably foresee the acts of his co-conspirators.

The court sustained defendant's first objection. The

court decided not to apply the murder cross-reference despite the

fact that it found that "there is ample evidence on the record" of

Appellant's involvement with the death of Haddock-Collazo and also

noted that "Rivera-Díaz testified that Ricardo Rivera Moreno was

present at the time in which this individual was killed by

codefendant [Excel A.] Munis." The sentencing court did not impose

the murder cross-reference "out of an abundance of caution" and

8
The court here referred to Gabriel "Gabby" Rivera-Rodríguez
("Rivera-Rodríguez") and Eduardo Pabón-Mandrell ("Pabón”). Rivera-
Rodríguez and Pabón were two of Appellant's co-defendants and were
found guilty of Count One. They have appealed their convictions
and sentences in another case before us. See United States v.
Rivera-Rodríguez, Nos. 08-1799, 08-1822, 08-1828, 08-1960, 08-2143.

-8-
because evidence of Haddock-Collazo's death was not presented at

trial until after Appellant entered his plea.

The sentencing court made a number of factual findings

related to the drug activities of Las Avispas Dos generally and

Appellant specifically. The sentencing court established the

extent of Las Avispas Dos's operations, concluding that the drug

conspiracy maintained at least two sellers per drug distribution

point, operated multiple drug points per shift, and conducted three

shifts per day, on a daily basis, 364 days per year (every day

except Holy Friday) over the life span of the organization, from

2003 to 2007.

The sentencing court established the number of capsules

of crack cocaine Las Avispas Dos sold per day. Based on the

evidence at trial, the sentencing court concluded that, during each

of the morning and afternoon shifts, Las Avispas Dos could sell 200

to 400 capsules of crack cocaine. The sentencing court further

concluded that, during the evening shift, Las Avispas Dos could

sell 700 capsules of crack cocaine, for a total of 1,100 capsules

of crack cocaine sold per day. The sentencing court concluded that

"the evidence clearly shows that . . . the amounts of drugs that

were distributed by far exceeded the 4.5 kilograms of cocaine."

The sentencing court established that Appellant "had a

lengthy, lengthy participation in this case as a member of the

former organization [Las Avispas Uno] and a member of the new

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organization [Las Avispas Dos]." The court then estimated the drug

quantity for which Appellant was responsible. In making this

calculation, the sentencing court assumed that Appellant worked

three shifts per week and sold at the low end of the range per

shift, 200 capsules. Using the figure of 200 capsules per shift,

with each capsule containing .075 grams of cocaine base, times

three shifts per week, the sentencing court found that Appellant

sold forty-five grams of cocaine per week. The court then took

this weekly figure of forty-five grams multiplied by fifty-two

weeks and found that Appellant sold 2.34 kilograms of cocaine base

per year; multiplying that number by the length of the conspiracy,

four years, the sentencing court concluded that Appellant sold 9.2

kilograms of cocaine base over the life of the conspiracy.

Finding that Appellant sold 9.2 kilograms of cocaine base

triggered a base offense level of 38. U.S.S.G. § 2D1.1(c)(1). The

sentencing court then added four additional levels: a two-level

enhancement because the offense took place near a protected

location (a public elementary school), U.S.S.G. § 2D1.2(a)(1), and

an additional two-level enhancement because Appellant possessed a

dangerous weapon, U.S.S.G. § 2D1.1(b)(1). The sentencing court

found that Appellant's prior juvenile conviction for illegal

possession with intent to distribute marijuana in 2002 for Las

Avispas Uno was essentially subsumed within the instant conspiracy

and therefore declined to assign Appellant any criminal history

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points. Thus, with a criminal history category of I, the GSR was

360 months to life imprisonment, which was the same GSR calculated

by the PSI Report using the murder cross-reference. However, the

sentencing court reduced Appellant's base offense level to 40 as

the court subtracted two levels for Appellant accepting

responsibility. With a base offense level 40, and a criminal

history category of I, the GSR was 292 months to 365 months

imprisonment.

Defense counsel pointed to several § 3553(a) factors

weighing in Appellant's favor, such as Appellant's upbringing in a

“culture” of drugs and violence (both his father and older brothers

were involved in drug dealing), with the hope of mitigating the

harshness of any sentence imposed. See 18 U.S.C. § 3553(a)

(requiring courts to consider a number of factors in imposing

sentences, including "the nature and circumstances of the offense

and the history and characteristics of the defendant"). The

sentencing court was unpersuaded, however, and determined that

Appellant needed "a total reprogramming" and that "a short period

of incarceration will certainly expose the community to further

danger and defendant to recidivisms." Therefore, the sentencing

court imposed the maximum sentence that was still within the GSR:

365 months.

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 On June 25, 2008, the sentencing court sentenced

Appellant to 365-months imprisonment, followed by a fifteen-year

term of supervised release.

B. Appeal (2008)

On July 7, 2008, Appellant filed a timely notice of

appeal and raised two issues. One claim concerns the

individualized drug quantity determination. Appellant argues that

the sentencing court, in calculating his sentence according to the

GSR, erroneously found that he was individually responsible for at

least 4.5 kilograms of crack cocaine. Appellant contends that the

sentencing court calculated the weight of the cocaine base for the

entire conspiracy, without the benefit of detailed defendant-

specific findings regarding the scope of Appellant's personal drug

selling activities. A second claim concerns the imposition of the

365-month sentence. Appellant argues that the sentence was greater

than necessary and therefore unreasonable. For both issues,

Appellant requests that we vacate and remand for resentencing. We

conclude that the district court appropriately made individualized

findings as to the quantity of drugs he distributed and that the

sentence was procedurally and substantively reasonable.

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 II. Discussion

A. Appellant's Sentencing Based on Drug Quantity Responsibility

1. Standard / Scope of Review

"When sentencing a participant in a drug-trafficking

conspiracy, the district court must make an individualized finding

concerning the quantity of drugs attributable to, or reasonably

foreseeable by, the offender." Cintrón-Echautegui, 604 F.3d at 5

(citation omitted).

Where, as here, a defendant admits that the
conspiracy to which he belonged handled drug
quantities sufficient to trigger a mandatory
minimum sentence, he becomes potentially
eligible for the mandatory minimum -- but that
provision cannot be applied in his case
without an individualized finding that the
triggering amount was attributable to, or
foreseeable by, him.

United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004).

"Because the question of whether the district court's

drug quantity determination was based on an individualized

determination or not presents a question of law, our review is de

novo. If, however, the district court has engaged in an

individualized determination, our review is for clear error."

Cintrón-Echautegui, 604 F.3d at 5 (citation omitted). "The

sentencing court must determine drug quantity only by a

preponderance of the evidence." Id. at 6. "A finding of drug

quantity need not be exact so long as the approximation represents

a reasoned estimate of actual quantity. In making such a reasoned

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estimate, the court is entitled to draw reasonable inferences from

information contained in the sentencing record." Id. at 6-7

(citations omitted).

2. Analysis

In entering a straight guilty plea, Appellant admits that

the conspiracy as a whole, though not he himself individually,

handled more than 4.5 kilograms of cocaine. Appellant's

contention, however, that the district court used the conspiracy-

wide findings to sentence Appellant is without merit.9 The

district court made an individualized drug finding as to

Appellant's accountability and correctly stated that this

individualized calculation "has been extremely conservative."

The district court assumed that Appellant sold 200

capsules per shift, during one shift, three times a week, for a

total of 600 capsules per week. The district court's determination

of the frequency with which Appellant worked was a reasonable

9
Appellant suggested for the first time at oral argument that he
only sold drugs at one of Las Avispas's two drug points, the La
Pluma drug point, and that the La Pluma drug point sold less drugs
than the other drug point, Las Vías. Therefore, counsel argued
that Appellant's drug quantity should have been greatly reduced.
We find that no such evidence was presented at the change-of-plea
colloquy, or is referenced in the PSI Report, or the transcript of
the disposition hearing to support these assertions. "We have
steadfastly deemed waived issues raised on appeal in a perfunctory
manner, not accompanied by developed argumentation." Hostar Marine
Transp. Sys. v. United States, 592 F.3d 202, 208 (1st Cir.
2010)(citation omitted). In any case, "because [Appellant] raised
this argument for the first time at oral argument, we refuse to
consider it." Pleasures of San Patricio, Inc. v. Méndez-Torres,
596 F.3d 1, 7 n.2 (1st Cir. 2010).

-14-
inference from information contained in the sentencing record.

Appellant admitted to working one shift a week. The district court

reasonably inferred, from the fact that Las Avispas Dos operated

continuously and the lack of credibility Appellant exhibited on

other issues,10 that Appellant worked more times per week than he

admitted.

The district court's determination of the number of

capsules per shift Appellant sold was also a reasonable inference

from information contained in the sentencing record. Appellant

admitted to selling drugs during evening shifts. The district

court reasonably inferred, from its conclusion that Las Avispas Dos

could sell 700 capsules of crack cocaine during evening shifts and

that multiple individuals operated as sellers simultaneously, that

Appellant sold about one-quarter of the full amount Las Avispas Dos

sold during the shift to which Appellant admitted working.

These reasonable inferences make this an individualized

finding specific to Appellant as well as different than the

conspiracy-wide calculation. Although Appellant's individualized

drug quantity determination yields the same base offense level as

the conspiracy-wide amount because under the Sentencing Guidelines

any amount over 4.5 kilograms of crack cocaine would trigger a base

offense level of 38, U.S.S.G. § 2D1.1(c)(1), the district court did

10
For example, the sentencing court found that Appellant's
continued denial of weapons use was belied by the organization's
frequent participation in shoot outs and his own role as a runner.

-15-
indeed perform a separate calculation specific to Appellant

himself.

As the PSI Report noted, the sentencing court could have

linked defendant to the full crack cocaine amount of the

conspiracy, 109 kilograms of cocaine base, by applying U.S.S.G.

§ 1B1.3(a)(1)(A), under which a defendant engaged in "jointly

undertaken criminal activity" may be sentenced for "all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken activity." U.S.S.G. § 1B1.3(a)(1)(A);

Cintrón-Echautegui, 604 F.3d at 5.

As we stated in the companion case, Cintrón-Echautegui:

In this instance, the court derived its drug
quantity determination by making plausible
extrapolations from the available information.
The court used the average drug weight per
capsule suggested by the scientific evidence
and the average drug sales per shift suggested
by the cooperating witness to arrive at a
sensible starting point.

604 F.3d at 7. In sum, under de novo review, we determine that the

district court made an individualized determination, and we do not

find that the district court clearly erred in calculating

Appellant's sentence according to the Sentencing Guidelines to

determine that Appellant was individually responsible for at least

4.5 kilograms of crack cocaine. Appellant's first claim of error

thus fails.

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B. The Reasonableness of Appellant's Sentence

1. Standard / Scope of Review

We review the reasonableness of a criminal sentence under

an abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 51 (2007). "In reviewing a sentence, we seek to ensure that it

is both procedurally sound and substantively reasonable." United

States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010)

(citation omitted). A sentence is procedurally sound so long as

the district court did not commit a procedural error in arriving at

the sentence. Examples of procedural errors include: "failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range." Gall, 552 U.S. at 51. We must first determine

that the district court committed no significant procedural error

and then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard. Id. When

conducting this review, we take into account the totality of the

circumstances, including the extent of any variance from the GSR.

Id. "[T]he linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible overall result." United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

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 2. Analysis

First, Appellant argues that the sentencing court made a

procedural error by not giving appropriate weight to the § 3553(a)

factors he raised. Among other factors, defense counsel argued at

the sentencing hearing that Appellant came from a very

dysfunctional family, which steered him towards a life of crime

from an early age; witnessed violence in his childhood; began using

drugs and carrying weapons at the age of fourteen; abandoned school

in the ninth grade; and never held a steady job for more than ten

months.

The sentencing court carefully and deliberately evaluated

the § 3553(a) factors. The court stated:

Considering the 3553 factors, the Court can
certainly not ignore that it's true as stated
by counsel that this individual comes from a
very dysfunctional family . . . . [E]ven
though this is argued by counsel as a
mitigating factor, it[,] as well[,] is a clear
depiction of the fact that from early
childhood [Appellant] . . . learned to live in
an illegal pathway that turned to be part of
[his family’s] livelihood to the point in
which [Appellant] cannot express or
state . . . how is it that he thinks that
there were no ways to obtain money by legal
means.

I think this individual has witnessed violence
since childhood. That's the conduct that was
learned since an early stage of his life.
That's the same pattern of conduct in which he
seems or appears to have engaged afterwards.
And that a total reprogramming, if we may say
so, is needed.

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 Further construing the § 3553(a) factors, the sentencing

court went on to note the other factors defense counsel raised

concerning Appellant's drug use, weapons possession, and

educational and employment history. The court additionally found

that Appellant did not learn from being placed on probation as a

juvenile.

The sentencing court had all of these § 3553(a) factors

in mind when it imposed Appellant's sentence. Considering Las

Avispas Dos's extensive drug distribution venture and Appellant's

"participation in actions of violence as well as his full

knowledge, though he denies it, of the existence and use of weapons

from the daily activities and events that transpired," the court

reasoned that Appellant "certainly needs time in which to gain

incite [sic]" and "that a short period of incarceration will

certainly expose the community to further danger and defendant to

recidivisms." As a result, the court concluded that a sentence on

the high end of -- but still within -- the advisory GSR was

appropriate.

Although defense counsel may have presented some

information in order to show mitigating factors, we do not find

that the district court abused its discretion in weighing that

evidence. The record demonstrates that the sentencing court

considered the § 3553(a) factors and imposed a reasonable sentence

after considering Appellant's particular circumstances.

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Accordingly, we find that Appellant "has not carried the heavy

burden of proving that his within-the-range sentence was

unreasonable or an abuse of discretion." United States v.

Innarelli, 524 F.3d 286, 292 (1st Cir. 2008)(holding that the

sentencing court did not overvalue the Sentencing Guidelines or

undervalue the § 3553(a) factors as "[t]he sentence imposed . . .

was more than defensible considering the gravity of [Appellant's]

crimes").

We next turn to Appellant's claims that the sentence

imposed was not substantively reasonable. Appellant argues that

the sentence was substantively unreasonable because the court's

findings that he had "some degree of control" in Las Avispas Dos,

or that he had any particular connection with Rivera-Rodríguez or

Pabón, or that Appellant was their "right hand" were clearly

erroneous. We find that the district court did not abuse its

discretion in making these findings.

It was not an abuse of discretion for the district court

to find that Appellant had "some degree of control" in Las Avispas

Dos. Appellant was involved with this conspiracy for four years.

Furthermore, based on Rivera-Díaz's testimony as cited in the PSI

Report, Appellant had use of Las Avispas Dos's AK-47 and, based on

Appellant's own admission, he was present at the initial planning

meeting to establish Las Avispas Dos and to decide who would assume

various positions. He also admitted that he was a seller and

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runner of drugs for Las Avispas Dos and thus had access to and

control over illicit money and narcotics. As the government noted

during the disposition hearing, the nature of Rivera-Díaz's role as

a runner included the fact that he supervised others. It was thus

not an abuse of discretion for the district court to conclude,

based on the combination of Appellant's lengthy involvement with

the conspiracy, his permission to use the gun, his presence at the

inaugural meeting of the organization, and his authority over

drugs, money, and subordinates as a seller and runner, that he had

"some degree of control" within the conspiracy. See, e.g., United

States v. Picanso, 333 F.3d 21, 24 (1st Cir. 2003)("While the

pillars may be individually weak, taken together they [can] provide

somewhat stronger support for the district court's ultimate

finding" that a defendant exercised control within a drug

conspiracy).

Regarding Appellant’s relationships with Rivera-Rodríguez

and Pabón, the sentencing court was looking to the evidence in the

record when it found that Appellant was their "right hand." The

record contains the trial testimony of Rivera-Díaz in which he

testified that Rivera-Rodríguez was the "owner" of crack for Las

Avispas Dos. Appellant admitted that he was a seller and

occasional runner of crack cocaine for Las Avispas Dos. Appellant

admits in his appellate brief that Pabón controlled the drug

distribution point at which Appellant worked. Any error the

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district court made with respect to the closeness of Appellant's

ties to Rivera-Rodríguez and Pabón was harmless because, as with

the extent of Appellant's "control" within the conspiracy, this

matter was not dispositive of his sentence since the other evidence

of his involvement was overwhelming.

Appellant further claims that "the District Court

intended to sentence [him] as if he were responsible for the murder

of Ricardo Haddock-Collazo, even though the Court declined to find

that he was." There is no evidence to support the claim that the

district court was seeking to arrive at the identical sentence as

if it had imposed the murder cross-reference. The court correctly

applied the Sentencing Guidelines and merely noted that the two

calculations reached similar results. That coincidence does not

render the sentence unreasonable.

We also note that, as we stated in our companion case,

Cintrón-Echautegui, the "starting point was, in itself, favorable

to the appellant because it left out of the equation drugs other

than crack cocaine (e.g., heroin, marijuana) routinely marketed by

Las Avispas [Dos] at the two drug points." 604 F.3d at 7.

For all of these reasons, the district court did not

abuse its discretion in imposing its sentence upon Appellant. The

record of Appellant's protracted involvement in a violent,

widespread, multi-year drug conspiracy within blocks of a public

elementary school reflects a plausible rationale for the district

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court's selected sentence and the overall result is defensible. In

sum, Appellant's contentions miscarry and we find that the imposed

sentence was reasonable.

III. Conclusion

We conclude that the district court appropriately made an

individualized finding as to Appellant's drug quantity and did not

attribute the weight of the conspiracy's drug amounts to Appellant.

We further conclude that the district court's sentence was neither

procedurally nor substantively unreasonable, and in any case, was

not an abuse of the court's discretion. Accordingly, we uphold

Appellant's sentence.

Affirmed.

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