United States Court of Appeals
For the First Circuit
No. 03-1584
No. 03-1617
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX VEGA,
and
MANUEL FERNÁNDEZ CARRERA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Lynch, Circuit Judge.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, were
on brief, for appellee.
Ramon M. Gonzales for appellant Felix Vega.
Laura Maldonado Rodríguez for appellant Manuel Fernández
Carrera.
February 24, 2005
LYNCH, Circuit Judge. Felix Vega and Manuel ("Jesús")
Fernández Carrera, were convicted after trial, along with two other
co-defendants, for conspiracy to distribute cocaine in excess of
five kilograms, in violation of 21 U.S.C. § 846. Vega was
sentenced to 120 months' imprisonment and a five year supervised
release term. Fernández Carrera was sentenced to seventy-eight
months' imprisonment and a five year supervised release term. In
these consolidated appeals, Vega challenges his sentence while
Fernández Carrera challenges both his conviction and a portion of
his sentence. We consider each challenge in turn.
Vega's Sentencing Appeal
Vega mounts two challenges to his sentence. First, he
argues that neither the jury nor the district court made an
individualized finding that more than five kilograms of cocaine
were attributable to or foreseeable by him as part of his
involvement in the conspiracy, and therefore the application of the
statutory mandatory minimum of 120 months that attaches to such a
finding was error. Second, he argues that it was error for the
district court to adopt the findings of the Presentence
Investigation Report (PSR) assigning him a Criminal History
Category of II.
The trial for all four co-defendants lasted twelve days.
At the close of evidence, on September 26, 2002, the court gave
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extensive instructions to the jury. The instructions relevant to
Vega's appeal were:
Now, it is alleged that the defendants and
others conspired to knowingly and
intentionally distribute a controlled
substance. If you find beyond reasonable
doubt that the defendants conspired to
knowingly distribute the controlled substance
–- in this case the controlled substance
alleged is cocaine –- you shall then determine
whether the government has proven beyond
reasonable doubt that the conspiracy involved
more than five kilograms of cocaine as charged
in Count 1.
Please note that a defendant who knowingly and
willingly participates in a drug conspiracy is
accountable not only for his own acts, but he
or she may also be held responsible for the
acts of others, if those acts or actions of
others were reasonably foreseeable by the
individual defendant and those acts or actions
were committed in furtherance of the
conspiracy.
Vega has not challenged the correctness of the instructions.
The jurors were then given both a general verdict form
and special verdict form for each defendant. The general verdict
form asked the jury to state whether it found each defendant guilty
or not guilty of Count I of the indictment: conspiracy to possess
with intent to distribute a controlled substance. Vega's special
verdict form asked:
If you find the defendant Felix Vega guilty of
the conspiracy charged in Count I, please
answer the following question:
1) Do you unanimously agree, by proof beyond a
reasonable doubt, that the quantity of cocaine
which was distributed and/or intended to be
distributed as part of the conspiracy was more
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than five (5) kilograms as charged in the
indictment?
This instruction was consistent with the law of this circuit at the
time, which allowed for the jury to make a finding as to the
quantity of drugs attributable to the conspiracy as a whole, and
allowed the district court to make individualized quantity
determinations for each co-conspirator for sentencing purposes.
See Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002).
The following morning, September 27, 2002, during jury
deliberation the jury submitted a note to the court asking for
clarification:
If the evidence shows that an individual is
part of a conspiracy and the conspiracy
network has distributed in excess of 5 kilos
of cocaine does it automatically make every
single individual guilty of distributing in
excess of 5 kilos of cocaine?
That question may well have been intended to explore the gap
between the instructions and the special verdict form. After
receiving the note, the district judge met in chambers with the
attorneys for the defendants and the government. The judge said
that she thought the jurors were confused as to whether they must
consider the evidence against each defendant individually, and
proposed an instruction in response that would clarify that issue.
She asked the attorneys for the defendants if they objected to this
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clarifying instruction, and they did not object.1 The court then
responded to the jury in writing that the answer to their question
was no, and that it would instruct the jury on "giving separate
consideration to each individual defendant." The court's
instruction stated:
Members of the jury, the case of each
defendant and the evidence pertaining to that
defendant should be considered separately and
individually. The fact that you may find one
of the defendants guilty or not guilty should
not control your verdict as to any other
defendant.
The jury then continued with its deliberation. That afternoon the
jury reached a verdict of guilty for Vega, as well as all three co-
defendants, on Count I, and answered yes to Vega's special verdict
question that more than five kilograms of cocaine was attributable
to the conspiracy. There was no request from defense counsel for
clarification of the verdict.
Several months later, at Vega's sentencing hearing,
Vega's counsel said that he discussed with Vega fully the findings
of Vega's PSR, and that there were no objections to the PSR. The
1
Only counsel for the government raised to the district
court during this conference the possibility that the jurors may
have already decided the question of guilt and were confused about
the special verdict question and individualized quantity
determinations. The court then restated its understanding of the
jury's concern, and explained to counsel that "[i]f there is a
different concern in their mind, they can come back to the Court to
state that, if I have not answered completely or correctly." No
defense counsel spoke up to share the government's possible
concern, and none objected to the district court's response to the
jury's question.
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PSR stated that Vega's offense involved more than five kilograms
but less than fifteen kilograms of cocaine, which triggers the
mandatory minimum of 120 months under 21 U.S.C. § 841(b)(1)(A)(ii).
Vega said that he understood his counsel's explanation of the PSR.
Neither Vega nor his counsel argued that more than 5 kilograms of
cocaine could not be attributed to him. Vega's counsel then argued
that nothing in the PSR required the court to sentence Vega above
the statutory mandatory minimum of 120 months, and that Vega should
receive that minimum. The government also requested a sentence of
the mandatory minimum. The court then sentenced Vega to the
mandatory minimum of 120 months' imprisonment.
For the first time on appeal, Vega challenges the
application of the mandatory minimum sentence. Vega does not argue
the jury was required to make this finding of drug quantity. See
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004); c.f.
United States v. Cotton, 535 U.S. 625, 634 (2002). He argues that
neither the jury nor the district court made an individualized
determination as to drug quantity, but rather applied the
conspiracy-wide drug quantity to him automatically, as did the
probation office in his PSR. Relying on a subsequent decision in
United States v. Colon-Solis, 354 F.3d 101 (1st Cir. 2004), he
argues that the district court committed error by automatically
applying the conspiracy-wide drug quantity to him, and therefore
erred in applying the mandatory minimum sentence. He does not
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explain why the judge, who properly instructed on the law as to the
need for personalized findings of drug quantity, would have
suddenly shifted to adopt a per se rule.
Vega's belated challenge gets him nowhere. First, Vega
has arguably waived the issue of drug quantity by affirmatively
agreeing to the 120-month mandatory minimum sentence at his
sentencing hearing. United States v. Ruiz-Garcia, 886 F.2d 474,
476 (1st Cir. 1989) (holding that defendant waives objection to
existence of a sentencing factor raised for first time on appeal
where defendant conceded that factor below). In any event, by not
raising an objection below, Vega has at least forfeited the issue,
and he cannot demonstrate that the district court committed plain
error. See United States v. Barbour, 393 F.3d 82, 89 (1st Cir.
2004). Whether or not the instruction is ideal under later
developed law, there is no indication that the jury would probably
have reached a different result under a perfect instruction, or
that an injustice has resulted. See United States v. Dominguez
Benitez, 542 U.S. ___, 124 S. Ct. 2333, 2340 (2004); United States
v. Olano, 507 U.S. 725, 736 (1993).2
Accordingly, we affirm Vega's sentence.
2
Vega further claims that the district court improperly
calculated his Criminal History Category by improperly counting a
prior conviction for a minor offense. Given that Vega's sentence
is a result of a statutory mandatory minimum, which we have upheld,
this second claim is moot.
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Fernández Carrera
Fernández Carrera challenges the sufficiency of the
evidence to support his conviction for conspiracy to distribute
cocaine. In order to overturn his conviction, this court must
find, viewing the evidence in the light most favorable to the
prosecution, that no rational jury could have found Fernández
Carrera joined the conspiracy. United States v. Reyes, 352 F.3d
511, 517 (1st Cir. 2003).
Fernández Carrera was known to his friends as "Jesús."
Fernández Carrera argues that the evidence suggests there was a
person named "Jesús" involved in the conspiracy, but that it was
someone else, another "Jesús." He points primarily to the fact
that some of the principal members of the conspiracy were taped
stating that they were going to see what "Jesús says" on December
4, 1999. This was two days after the defendant was arrested for
possession of cocaine and while he was still in custody at the MDC-
Guaynabo facility. From this, he argues, he could not have talked
with them and that the conspirators had to have known that he was
in jail and so they could not see him. And that, he argues, means
he should have been acquitted, because it had to have been a
different "Jesús" to whom the co-conspirators referred.
His argument fails on several fronts. There was adequate
other evidence of his participation in the conspiracy. And the
fact that he was imprisoned on December 4 proves nothing, much less
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that he is not guilty. Special Agent Juan de Jesus identified
Fernández Carrera as the speaker in, or subject of, multiple
conversations having a direct bearing on his knowledge of and
participation in the conspiracy. In the first, occurring on
December 2, 1999, the date of Fernández Carrera's arrest, Juan
Espiritu Santo, one of the principal members of the conspiracy,
told Fernández Carrera about an incident that had occurred on
November 28, 1999, during which some conspirators had dumped drugs
into the ocean when their boat was intercepted by the Coast Guard.
During this conversation Juan also agreed to meet Fernández
Carrera. As further evidence that the "Jesús" on this call was in
fact Fernández Carrera, the government introduced evidence from
Fernández Carrera's arrest report where he revealed that the number
which Juan had called on December 2, 1999 was his home phone
number.
Later that day, December 2, 1999, police officers came to
Fernández Carrera's house, following a 911 call about a domestic
violence dispute, and received permission to enter and search the
premises. They found four brick-shaped packages of cocaine,
weighing approximately four kilograms, and arrested Fernández
Carrera. The following day he was taken into federal custody and
brought to the federal jail at MDC-Guaynabo, where he remained in
custody until December 9, 1999.
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Two days later, on December 4, 1999, Juan Espiritu Santo
spoke with Cristobal Garcia, the ringleader of the conspiracy, and
stated that he had given four "shoe boxes" to Jesús, which Agent
Juan de Jesus testified referred to his giving four kilograms of
cocaine to Fernández Carrera. The government then submitted
transcripts of subsequent calls, all occurring on the same day,
between Juan and Cristobal in which first they are trying to
ascertain what happened to Jesús. Cristobal tells Juan to go and
"see what Jesús says," and finally they learn that he had an
"accident," which the Special Agent interpreted to mean he had been
arrested. In a later call that day, introduced by the defense,
Cristobal again tells Juan to go and see Jesús.
Fernández Carrera attempts to use the fact that he was in
jail at the time Juan and Cristobal talked on December 4 about
going to see "Jesús" as evidence that there must have been another
Jesús they were trying to see, as they knew Fernández Carrera was
in jail and could not have possibly gone to see him. This argument
misrepresents the record. The Agent testified that while on
December 4, 1999, Juan and Cristobal discovered that Jesús (clearly
Fernández Carrera) had been arrested at some point, the phone
conversations did not indicate that Juan and Cristobal knew that
Fernández Carrera was still in jail.
The evidence shows that Juan stated in coded drug
language that he had given four kilograms of drugs to "Jesús," that
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Fernández Carrera was arrested in his home with four kilograms of
drugs, and that Juan and Fernández Carrera spoke with one another
about a shipment of drugs that had gone bad just a week earlier;
there was more than adequate evidence for a rational jury to find
that Fernández Carrera knew of and joined the conspiracy.
Supervised Release
Fernández Carrera also raises for the first time on
appeal the argument that the district court impermissibly delegated
to the probation officer the authority to decide whether the
defendant should undergo drug treatment if he tests positive for
drugs during his term of supervised release. See United States v.
Melendez-Santana, 353 F.3d 93, 103 (1st Cir. 2003). The government
concedes that the delegation constituted plain error, id. at 106,
and agrees that this court should remand for resentencing both on
this issue, and the related issue of the number of drug tests
Fernández Carrera should be forced to undergo. As we are bound by
the decision of the earlier panel in Melendez-Santana on this
issue, we accept the government's position and remand for limited
adjustment of the drug treatment portion of the sentence.
Accordingly, we vacate Fernández Carrera's sentence only
to the extent it delegates the terms of his drug testing and
treatment during the period of his supervised release, and remand
for resentencing on this sole issue. In all other respects,
Fernández Carrera's conviction and sentence are affirmed.
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