United States v. Gonzalez-Velez

United States Court of Appeals
For the First Circuit

No. 05-1184

UNITED STATES OF AMERICA,
Appellee,

v.

RAFAEL A. GONZÁLEZ-VÉLEZ,
Defendant, Appellant.

No. 05-1758

UNITED STATES OF AMERICA,
Appellee,

v.

JOSÉ A. RAMOS-ROMERO,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Torruella, Selya, and Dyk,*
Circuit Judges.

María H. Sandoval, for appellant Rafael A. González-Vélez.
José C. Romo-Matienzo, for appellant José A. Ramos-Romero.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, were
on brief, for appellee.

*
Of the Federal Circuit, sitting by designation.
October 13, 2006

-2-
 TORRUELLA, Circuit Judge. On July 12, 2004, a jury

convicted Rafael A. González-Vélez ("González") and José A. Ramos-

Romero ("Ramos") of one count of conspiracy to distribute a

controlled substance in violation of 21 U.S.C. § 846. In addition,

Ramos was convicted of distribution of a controlled substance in

violation of 21 U.S.C. § 841(a)(2). Ramos and González now appeal

their convictions and their sentences.

I. Background

Between 2000 and 2002, a drug point known as "Las

Malvinas" was operated in the Luis Lloréns Torres housing project

in Puerto Rico. José Luis Rivera González ("Rivera") headed the

drug point until his death in 2002. Between the summer of 2001 and

October 2002, the FBI and the Police of Puerto Rico conducted an

investigation of the drug point. This investigation culminated in

a grand jury indictment on February 13, 2003 against nine persons

including González and Ramos. The indictment charged González and

Ramos with conspiracy to distribute controlled substances including

cocaine, crack cocaine, heroin and marijuana in violation of 21

U.S.C. § 846. The indictment also charged Ramos with distribution

of a controlled substance in violation of 21 U.S.C. § 841(a)(2).

Five of the seven other defendants charged in the indictment

pleaded guilty; two others were tried separately. González and

Ramos proceeded to trial on June 30, 2004.

-3-
 A. Jury Selection

Fifty-six jurors were summoned and appeared for trial.

During voir dire, González requested and the district court agreed

to ask potential jurors whether they lived or had lived in a public

housing project. No juror answered affirmatively. After voir dire

concluded and the jury was announced, Ramos objected to the

composition of the jury, arguing that it had "probably no poor

class or anybody relating to the public housing residence" and that

public housing residents formed a distinct class.1 González

concurred in Ramos' objection. The court overruled the defendants'

objection to jury composition.

B. The Trial

At trial, the Government presented testimony from FBI

Agent William Ortiz regarding his surveillance of the Malvinas drug

point. The Government also presented four hours and thirty-five

minutes of videotapes from a surveillance camera placed near the

drug point that showed numerous drug transactions. Police of

Puerto Rico Officer Felipe Casiano Caraballo ("Casiano") testified

that he had observed both Ramos and González near the drug point

and had "intervened" with Ramos on a number of occasions. On

cross-examination, Casiano admitted that he had never observed

1
Counsel for Ramos stated "[The] percentage of people who live in
public housing, this is maybe thirty or forty percent of the
general population, and [Ramos] is being excluded and prejudiced
because of this."

-4-
González committing a crime. Jesús Matías Cruz ("Matías"), a

cooperating witness, testified that he had observed drug sales at

the drug point and had observed Ramos with two weapons while in the

company of Rivera. Matías also testified that he and Ramos "cut"

a "baseball-sized" rock of crack for packaging, during which Ramos

told him that the rock had been provided by González. Matías

further testified that he had overheard Rivera asking González for

"pepper," which was purportedly a code-word for cocaine, and that

he later observed González providing Rivera with a large plastic

bag with "stones" or "bricks" inside. Matías also made a recording

of a conversation between Rivera and González about the packaging,

processing, and payment for cocaine. In addition, Angel Obregón

Fontánez ("Obregón"), one of the defendants charged in the

indictment who pleaded guilty, testified that he had observed

González selling between one-eighth and one-half kilogram of

cocaine on credit to Rivera.2 Obregón also testified that Ramos

was a processor of drugs and a "triggerman" for the enterprise.

Lastly, the Government offered physical evidence, including a

notebook (the "ledger") containing records of cocaine transactions

involving a person named "Junito," which was González's nickname.

2
The number and scope of transactions is in dispute. After being
asked whether he had observed González engage in more than ten drug
sales to Rivera, Obregón said "Yes." However, on cross-
examination, Obregón said that he had seen "a couple." In
addition, Obregón could not explain the difference in quantity
between "an eighth" and "a half" kilogram of cocaine, but stated
that he knew they were different quantities.

-5-
At the conclusion of the Government's case, González and Ramos

moved for judgments of acquittal under Fed. R. Crim. P. 29(a)3.

The court denied the motions.

González presented four character witnesses on his

behalf, all of whom testified that González was law-abiding and had

good character. González and Ramos again moved for judgments of

acquittal under Fed. R. Crim. P. 29(a) after the defense case

concluded; the motions were denied.

C. The Jury Charge and Verdict Form

At the conclusion of the trial, all parties attended a

jury charge conference. At the conference, Ramos objected to the

verdict form and requested a bifurcated verdict which would have

required the jury to find the specific amount of drugs attributable

to each defendant. The court denied the request. The court gave

the jury, in part, the following charge:

Count one of the indictment charges that the
defendants conspired with one another to
distribute controlled substances, that is to
say, five kilograms or more of cocaine and a
detectable amount of cocaine base, both
Schedule II narcotic drug controlled
substances. . . . To find any defendant

3
Fed. R. Crim. P. 29(a) provides: "After the government closes
its evidence or after the close of all the evidence, the court on
the defendant's motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction. The court may on its own consider whether the evidence
is insufficient to sustain a conviction. If the court denies a
motion for a judgment of acquittal at the close of the government's
evidence, the defendant may offer evidence without having reserved
the right to do so."

-6-
 guilty of conspiracy to distribute controlled
[sic] you must be convinced that the
government has proven each of the following
things beyond a reasonable doubt: First, that
the agreement specified in the indictment, and
not some other agreement or agreements,
existed between at least two people to
distribute controlled substances; and Second,
that the defendants knowingly and willfully
joined in that agreement. . . . To find a
defendant guilty of the offense charged in the
indictment, you do not have to find that the
defendant conspired to distribute the specific
amount of controlled substances alleged in the
indictment. To find a defendant guilty, you
need only find that he conspired to distribute
some quantity of controlled substances as
alleged in count one. If you find that a
defendant conspired to distribute some
quantity of controlled substance, you will be
asked to make a special finding as to the
quantity of controlled substance that he
conspired to distribute. . . . Both
defendants are named in count one of the
indictment. The evidence pertaining to each
defendant should be considered separately and
individually. The fact that you may find of
[sic] the defendants guilty or not guilty,
should not control your verdict as to the
other defendant.

Neither party objected to the jury charge. The jury was

given a verdict form which asked the jury to determine the guilt of

each defendant and included a special interrogatory which asked the

jury to find if the amount of cocaine involved in the conspiracy

-7-
was five kilograms or more.4 At the request of the Government, the

verdict form was read to the jury.

On July 12, 2004, the jury returned a verdict finding

both defendants guilty of the charged offenses and a special

verdict finding that the amount of cocaine involved in the

conspiracy was five kilograms or more. After the verdict, González

made a renewed motion for a judgment of acquittal under Fed. R.

Crim. P. 29(c)(1),5 which was denied. Ramos filed a motion to

vacate the conviction and for a new trial under Fed. R. Crim. P.

33(a).6 The court denied the motion.

4
The special interrogatory read, in part:

"3. A. If you find either of the defendants guilty as to Count
One, do you find that the amount of cocaine involved in the
conspiracy was five (5) kilograms or more:

____ ____
YES NO

If you answered YES to question 3(A), sign and date the
verdict form. If you answered NO to question 3(A), then proceed to
question 3(B)."
5
Fed. R. Crim. P. 29(c)(1) provides: "A defendant may move for
a judgment of acquittal, or renew such a motion, within 7 days
after a guilty verdict or after the court discharges the jury,
whichever is later."
6
Fed. R. Crim. P. 33(a) provides: "Upon the defendant's motion,
the court may vacate any judgment and grant a new trial if the
interest of justice so requires. If the case was tried without a
jury, the court may take additional testimony and enter a new
judgment."

-8-
 D. Sentencing

Pre-sentencing reports were transmitted to both

defendants. On December 23, 2004, the court held a sentencing

hearing for González. During the hearing, González argued that the

court needed to make an individualized finding of drug quantity.

The court responded that this was a matter reserved to the jury,

and that the jury had already rendered a sufficient finding. The

court determined an offense level of thirty-two based on the

minimum of five kilograms of cocaine involved in the conspiracy and

a criminal history category of I. The sentencing guidelines

recommended a range of 121 to 151 months of imprisonment; González

was sentenced to 135 months in prison.

On April 8, 2005, the court held a sentencing hearing for

Ramos. The court determined that Ramos was a career offender under

U.S.S.G. § 4B1.1, which gave him a criminal history category of VI.

For the conspiracy charge, the court determined an offense level of

thirty-seven based on the minimum of five kilograms of cocaine

involved in the conspiracy and the fact that Ramos was a career

offender. The sentencing guidelines recommended a range of 360

months to life imprisonment; Ramos was sentenced to 365 months of

imprisonment on the conspiracy charge. On the distribution charge,

Ramos was sentenced to sixty months of imprisonment to be served

consecutively with the sentence for conspiracy. González and Ramos

-9-
now present various challenges to their convictions and sentences

on appeal.

II. Discussion

We will first address the claims made jointly by González

and Ramos regarding the jury instructions and special verdict form,

and then proceed to González's and Ramos' individual claims.

A. The Jury Instructions and Special Verdict Form

The essence of González's and Ramos' appeals as to the

jury instructions and special verdict form can be boiled down to

two arguments. First, González and Ramos argue that to be found

guilty of conspiracy to distribute a controlled substance, the jury

instructions and the special verdict form should have required the

jury to make individualized findings of the amount of cocaine

attributable to each defendant rather than to the conspiracy as a

whole. Second, González and Ramos argue that the Supreme Court's

holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 542 U.S. 296 (2004), required individualized

findings as to drug quantity for the purposes of sentencing. We

find both claims to be meritless.

In order to determine whether "all factual issues

essential to the judgment . . . were fairly presented to the jury,"

we review properly preserved objections to the trial court's jury

instructions and verdict forms de novo. Sánchez-López v. Fuentes-

Pujols, 375 F.3d 121, 134 (1st Cir. 2004) (internal quotation marks

-10-
and citation omitted). If the objection to jury instructions or

verdict forms has not been properly preserved by the defendants, we

review newly raised objections using a plain error standard.7 Id.

To satisfy the plain error standard, a criminal defendant must

show: "(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). This standard is exceedingly

difficult to satisfy in jury instruction cases: "[T]he plain error

hurdle, high in all events, nowhere looms larger than in the

context of alleged instructional errors." United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).

1. The Jury Instructions

Neither González nor Ramos entered any objections to the

jury instructions. Thus, we will look to see if the instructions

constituted plain error. Our examination of jury instructions

focuses on "whether they adequately explained the law or whether

7
The Government suggests that by failing to raise their
objections at the time the jury was charged, González and Ramos
have waived, rather than forfeited their objections and that we may
not review their claims. However, as we noted in United States v.
Nelson-Rodríguez, for an objection based on Apprendi, "[W]e think
it sufficient if the defendant raises the issue at sentencing."
319 F.3d 12, 47 (1st Cir. 2003). Although there is some
discrepancy between the parties as to whether the objection was
raised by either or both parties during sentencing, "we prefer to
assume rather than decide that the issue was preserved in these
circumstances." Id. at 48.

-11-
they tended to confuse or mislead the jury on the controlling

issues." Federico v. Order of Saint Benedict, 64 F.3d 1, 4 (1st

Cir. 1995).

González and Ramos were charged with conspiracy to

distribute controlled substances under 21 U.S.C. § 846. The

elements of a conspiracy are "the existence of a conspiracy, the

defendant's knowledge of the conspiracy, and the defendant's

voluntary participation in the conspiracy." United States v.

Gómez-Pabón, 911 F.2d 847, 852 (1st Cir. 1990). The quantity of

drugs is not an element of conspiracy under § 846, nor is it an

element of the underlying controlled substances offense under § 841

(a)(2). See United States v. Lindia, 82 F.3d 1154, 1160 (1st Cir.

1996).8 The district court's instructions plainly instructed the

jury to consider the aforementioned elements of conspiracy for each

defendant, explicitly stating that, "[T]he evidence pertaining to

each defendant should be considered separately and individually."

8
Some courts have suggested that, post-Apprendi, distinctions
between sentencing factors and substantive elements of § 841 are
somewhat untenable. See, e.g., United States v. Westmoreland, 240
F.3d 618, 632 (7th Cir. 2001) ("In light of Apprendi, we could no
longer look to the clear demarcation between the elements of the
crime defined by § 841 and the penalty provisions of that section
as a means of avoiding the constitutional issues raised by the
placement of drug quantity determination in the hands of the
sentencing judge."). However, as we emphasize throughout this
opinion, regardless of whether drug quantity is a sentencing factor
or a substantive element, the drug quantity that determines the
maximum sentence for a drug conspiracy charge under § 846 is the
conspiracy-wide quantity, which the jury did determine in the
present case.

-12-
It was only after each defendant's culpability was determined

individually that the jury was asked to find the conspiracy-wide

drug quantity--a finding that the court would need for sentencing.

As we have stated, "the maximum statutory penalty available to the

district court at sentencing for a defendant convicted of a drug

conspiracy is based on the drug quantity and amount reflected in

the jury verdict attributable to the conspiracy as a whole."

United States v. Irizarry, 404 F.3d 497, 504 (1st Cir. 2005).9

Because the jury was instructed to consider the charges against

each defendant individually, the instructions did not constitute

error as to the finding of guilt.

Furthermore, the jury instructions did not constitute

error under Apprendi or Blakely, which require a jury to make a

factual finding for any element which increases a defendant's

sentence beyond the statutory maximum penalty. 530 U.S. at 490;

542 U.S. at 301. The district court instructed the jury to find

the amount of cocaine involved in the conspiracy as a whole.10 The

9
This is also clear from the language of the statute, which,
without any reference to an individual's role in a conspiracy, says
that "[a]ny person who attempts or conspires to commit [a
controlled substance offense] shall be subject to the same
penalties as those prescribed for the offense." 21 U.S.C. § 846
(2006).
10
We do not see any merit to Ramos' claim that the instructions
were flawed because they make reference only to cocaine.
Participation in a conspiracy to distribute cocaine alone would be
sufficient to sustain a conviction under 21 U.S.C. § 846, and much
evidence regarding to Ramos' involvement in the processing and
selling of cocaine was presented at trial. The fact that Ramos was

-13-
amount of cocaine involved in the conspiracy sets the statutory

maximum penalty for § 846. Irizarry, 404 F.3d at 504. Thus, the

instructions to determine only the conspiracy-wide amount of

cocaine posed no risk that the jury would fail to find an element

of the offense that increased the statutory maximum penalty.

Accordingly, the jury instructions did not constitute error as to

sentencing.

2. The Special Verdict Form

Because Ramos made a timely objection to the verdict

form, we will review the verdict form de novo as to his claims.

González made no such objection; his claims will be reviewed for

plain error. The purpose of a special verdict form is to allow

"juries to specifically identify the predicates for the general

verdict." United States v. Cianci, 378 F.3d 71, 91 (1st Cir.

2004). In the present case, the verdict form asked the jury to

make a finding of guilty or not guilty as to each defendant for

each charge and then, if either defendant was found guilty, asked

the jury to determine the amount of cocaine involved in the

conspiracy. As we have already stated, neither the offense of

conspiracy, Lindia, 82 F.3d at 1160, nor the determination of the

maximum penalty for conspiracy, Irizarry, 404 F.3d at 504, requires

an individualized finding of the amount of drugs attributable to a

also involved in trafficking of heroin and marijuana would not
change the outcome of the case.

-14-
specific defendant. Rather, the amount of drugs involved in the

conspiracy as a whole is a predicate for sentencing purposes. See

id. Because the special verdict form provided for individualized

findings of guilt on each charge, the special verdict form would

not have misled or confused the jury as to their determination of

guilt. Thus, the special verdict form did not constitute error as

to the finding of guilt.

Furthermore, there were no Apprendi or Blakely errors in

the special verdict form. The jury used the special verdict form

to make a finding of conspiracy-wide drug quantity. The quantity

of drugs in the conspiracy determines the statutory maximum

sentence.11 See Irizarry, 404 F.3d at 504. Thus, because the

statutory maximum was determined by the conspiracy-wide drug

quantity, there was no need under Apprendi or Blakely for the

special verdict form to allow jurors to make an individualized

determination of drug quantity for each defendant. Accordingly,

the special verdict form did not constitute error as to sentencing.

11
González suggests that jurors were "puzzled" at the special
interrogatories asking them to determine "artificial floors"
corresponding to the amount of drugs involved in the conspiracy.
These floors determine the maximum sentences prescribed in 21
U.S.C. § 841(b). Given the extensive testimony in the case
regarding the quantity of drugs flowing through the Malvinas drug
point, we think the jury was up to the task of determining whether
the conspiracy involved more or less than five kilograms of
cocaine.

-15-
 B. Claims Raised by González

González raises two claims: that there was insufficient

evidence to find him guilty of conspiracy to commit drug

trafficking under 21 U.S.C. § 846 and that the sentence he received

was not issued in accordance with our decisions in United States v.

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

Vásquez-Molina, 389 F.3d 54 (1st Cir. 2004), or the Supreme Court's

decision in United States v. Booker, 543 U.S. 220 (2005).

1. Insufficiency of Evidence

González argues that the evidence presented at trial was

insufficient for a jury to find him guilty of conspiracy to

distribute cocaine. We will review de novo a district court's

denial of a defendant's motion for acquittal under Fed. R. Crim. P.

29. United States v. Rivera Ruiz, 244 F.3d 263, 266 (1st Cir.

2001). The standard is whether the evidence, "taken in the light

most amicable to the prosecution, together with all reasonable

inferences favorable to it, would allow a rational fact-finder to

conclude beyond a reasonable doubt that the defendant was guilty as

charged." United States v. Maraj, 947 F.2d 520, 523 (1st Cir.

1991). The Government "need not exclude every reasonable

hypothesis of innocence, provided the record as a whole supports a

conclusion of guilt beyond a reasonable doubt." United States v.

Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir. 1990).

-16-
 González was charged with conspiracy to distribute

cocaine under 21 U.S.C. § 846. To prove that González was guilty

of conspiracy to distribute cocaine, the Government needed to prove

beyond a reasonable doubt "that an agreement existed to commit the

underlying substantive offense (here, the distribution of drugs),

that the defendant knew of the agreement, and that he opted to join

in it, intending to commit the substantive offense." United States

v. Gómez, 255 F.3d 31, 35 (1st Cir. 2001). During the trial, the

Government offered testimony from an FBI agent, a Police of Puerto

Rico officer, two cooperating witnesses, as well as hours of

videotape that, taken in the light most favorable to the

prosecution, shows that Rivera and others agreed to distribute

cocaine and other drugs at the Malvinas drug point. A jury could

reasonably infer from the testimony of the two cooperating

witnesses regarding the sales of cocaine by González to Rivera, the

audiotape recordings of González's conversations, and the presence

of González's name in the ledger, that González was aware of the

conspiracy to distribute controlled substances. See United States

v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("[F]actfinders may

draw reasonable inferences from the evidence based on shared

perceptions and understandings of the habits, practices, and

inclinations of human beings."). A jury could further infer from

the testimony about González's regular sales of cocaine to Rivera

that González joined the agreement for the purpose of and with the

-17-
intent to distribute cocaine. In light of the substantial amount

of evidence presented, the fact that one witness could not explain

the difference between an eighth and a half kilogram of cocaine or

that another witness described the drugs as "stones" or "bricks"

does not make irrational the jury's conclusion that González was

guilty of conspiracy. See United States v. Nishnianidze, 342 F.3d

6, 14 (1st Cir. 2003) ("[T]he jury's duty is to assess credibility,

and it may accept or reject, in whole or in part, any testimony.").

Accordingly, we believe that the court was correct to deny

González's motion for acquittal.

2. Sentencing Errors

González challenges his sentence on the ground that the

district court refused to make an individualized finding of the

quantity of drugs that could be attributed to his participation in

the conspiracy. Since González challenges the sentencing court's

conclusion of law that such a finding was unnecessary, we will

review it de novo. United States v. Brennick, 337 F.3d 107, 110

(1st Cir. 2003).

In Colón-Solís, we held that "when a district court

determines drug quantity for the purpose of sentencing a defendant

convicted of participating in a drug-trafficking conspiracy, the

court is required to make an individualized finding as to drug

amounts attributable to, or foreseeable by, that defendant." 354

F.3d at 103. A defendant can only be sentenced on the basis of

-18-
drugs he handled, anticipated handling, or for drugs he could

reasonably foresee being used in the conspiracy; all of the drugs

in a conspiracy may not be automatically assigned to an individual

defendant. United States v. Sepúlveda, 15 F.3d 1161, 1197 (1st

Cir. 1993).

Both González and the Government agree that the

sentencing court failed to make such an individualized finding and

that this constitutes error. Their only difference is remedy:

González believes that the jury needed to determine drug quantity

and thus a new trial is merited, whereas the Government believes

that a judge could make the determination without the jury and

resentencing would be sufficient. On this subject, we have been

quite clear: "[O]nce the jury has determined that the conspiracy

involved a type and quantity of drugs sufficient to justify a

sentence above the default statutory maximum and has found a

particular defendant guilty of participation in the conspiracy, the

judge lawfully may determine the drug quantity attributable to that

defendant and sentence him accordingly." Derman v. United States,

298 F.3d 34, 43 (1st Cir. 2002). The principal enunciated in

Derman survives the Supreme Court's subsequent decisions in Blakely

and Booker. See United States v. Malouf, No. 05-2245 (1st Cir.

Oct. 13, 2006). Consequently, we remand González's case for

resentencing in accordance with our decisions. Because we have

remanded González's case for resentencing on this ground, we do not

-19-
need to decide now the merits of González's other sentencing

claims.

C. Claims Raised by Ramos

Ramos makes two claims. First, Ramos argues that the

trial was flawed because jury selection violated the Sixth

Amendment and the Supreme Court's decisions in Taylor v. Louisiana,

419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979),

requiring that juries be selected from a pool representative of the

community at large. Ramos argues that the jury pool was flawed

because it did not include persons who lived in public housing.

Second, Ramos argues that his sentence was flawed under Apprendi,

530 U.S. 366, and United States v. Vaughn, 430 F.3d 518 (2d Cir.

2005), because the jury did not find that Ramos was individually

involved in the distribution of five kilograms of cocaine and thus

the court could not sentence him using the maximum penalty set by

21 U.S.C. § 841(b)(1)(A).

1. Jury Selection

We review de novo a district court's rulings of law.

United States v. Royal, 174 F.3d 1, 5 (1st Cir. 1999). The

district court denied Ramos' motion for a new trial on the ground

that the jury pool was unfairly composed. In order to establish a

claim that the jury selection process violates the constitutional

requirement that the jury be selected from a pool representative of

the community at large, the challenging party must establish: "(1)

-20-
that the group alleged to be excluded is a 'distinctive' group in

the community; (2) that the representation of this group in venires

from which juries are selected is not fair and reasonable in

relation to the number of such persons in the community; and (3)

that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process." United States v. Benjamin,

252 F.3d 1, 12 (1st Cir. 2001) (citing Duren, 439 U.S. at 364).

The burden is on the challenging party to establish a case of

unconstitutional underrepresentation. United States v. Pion, 25

F.3d 18, 22 (1st Cir. 1994).

Ramos has presented no evidence that would establish any

one of the three prongs of the Duren test. As for the first prong,

Ramos admits that there is no case law supporting the argument that

public housing residents are a distinctive group. Ramos argues

that public housing residents form a distinctive group because the

Department of Housing and Urban Development restricts eligibility

for public housing. This argument is clearly insufficient -- it

would allow a defendant to make a constitutional claim out of the

fact that a jury pool lacked a person from any group that limits

its membership. See United States v. Lynch, 792 F.2d 269, 271 (1st

Cir. 1986) ("[I]f this grouping qualifies as a 'cognizable group'

for purposes of Duren v. Missouri analysis, it is hard to see what

grouping will not similarly qualify. The result could soon be that

any defendant showing that the venire deviated statistically from

-21-
a perfect community cross-section would have established a prima

facie violation of the Sixth Amendment.").

Furthermore, Ramos has presented no evidence that the

representation of public housing residents in the jury pool is

unfairly or unreasonably disproportionate. Counsel for Ramos told

the court that he estimated that public housing residents formed

between 30% and 40% of Puerto Rico's population but offered no

support for this contention. Ramos now uses the population of just

one of ten public housing projects in Caguas, a town of 142,161

residents, to conclude that 10% is a "fair estimate" of the

proportion of the population of Puerto Rico living in public

housing. No reasonable person would find this evidence sufficient

to establish that, because a jury pool of fifty-six persons had no

public housing residents, they are unfairly or unreasonably

underrepresented in juries.

Lastly, Ramos presents no evidence that there has been a

systematic exclusion of public housing residents. To the contrary,

as the Government points out, the Jury Plan for the United States

District Court for the District of Puerto Rico forms its jury pool

from voter registration lists, a method previously upheld by this

court. See United States v. Butera, 420 F.2d 564, 573 (1st Cir.

1970) ("It has become well-established that voter registration

lists are appropriate for use in jury selection systems."). Jurors

are also required to be United States citizens, at least eighteen

-22-
years old, and residents of Puerto Rico for at least one year, none

of which would suggest systematic exclusion of public housing

residents. Last, jurors are required to be proficient in English,

a requirement we have held to be justified by "the overwhelming

national interest served by the use of English in a United States

court." United States v. Aponte-Suárez, 905 F.2d 483, 492 (1st

Cir. 1990). Accordingly, we do not find that Ramos has sustained

his Sixth Amendment claim regarding jury selection.

2. Sentencing Error

We review the legal conclusions of a sentencing court de

novo but apply a clear error standard to the factual determinations

of the court. United States v. Mateo, 271 F.3d 11, 13 (1st Cir.

2001). Ramos argues that his sentence violates the Supreme Court's

decision in Apprendi, 530 U.S. 466, as interpreted by United States

v. Vaughn, 430 F.2d 518, 525 (2d Cir. 2005), because the jury did

not make an individualized finding that he was involved with more

than five kilograms of cocaine.12 Specifically, Ramos argues that,

12
Because he was sentenced as a career offender, Ramos does not
make the argument, as González did, that his sentence was flawed
under Colón-Solís, 354 F.3d 101. Under Sentencing Guidelines
§ 4B1.1, a career offender, such as Ramos, convicted of an offense
for which the maximum penalty is life imprisonment, such as
conspiracy to distribute five or more kilograms of cocaine, is
assigned an offense level of 37. Based on an offense level of 37
and a criminal history category of VI, the sentencing guidelines
recommend a sentence range of 360 months to life imprisonment.
U.S.S.G. § 5A. Thus, unlike González, for whom sentencing required
an individualized determination of drug quantity under U.S.S.G.
§§ 1B1.3 and 2D1.1(c), the determination of Ramos' sentence was
based solely on his prior criminal history.

-23-
because the jury did not find that he was individually involved

with all five kilograms of cocaine, the maximum sentence should be

dictated by 21 U.S.C. § 841(b)(1)(c), which provides a maximum

sentence of twenty years for the distribution of any amount of a

controlled substance.

In Apprendi, the Supreme Court stated that "any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury." 530 U.S. at 490. A jury

found Ramos guilty of conspiracy to distribute cocaine under 21

U.S.C. § 846. Section 846 provides that a person found guilty of

conspiracy to distribute cocaine shall be subject to the penalties

for the offense that was the subject of the conspiracy. Thus,

regardless of the amount of cocaine that he was individually

involved in distributing, Ramos was subject to the penalty imposed

for the conspiracy-wide amount of cocaine. After extensive

testimony by multiple witnesses about the precise quantities of

cocaine that passed through the Las Malvinas drug point on a weekly

basis, the jury found in its special verdict that the conspiracy

involved the distribution of five or more kilograms of cocaine.

Under 21 U.S.C. § 841(b)(1)(A)(1), the maximum penalty for the

distribution of five or more kilograms of cocaine is life

imprisonment. Accordingly, life imprisonment is also the maximum

penalty for participation in a conspiracy to distribute five or

more kilograms of cocaine. Ramos was sentenced to 365 months of

-24-
imprisonment for his participation in the conspiracy. Because

Ramos' sentence did not exceed the statutory maximum penalty, there

can be no Apprendi error. See United States v. Johnstone, 251 F.3d

281, 285 (1st Cir. 2001) ("No Apprendi violation occurs, however,

when the district court sentences a defendant below the statutory

maximum."). The district court sentenced Ramos to 365 months of

imprisonment because it found that Ramos was a career offender

under U.S.S.G. § 4B1.1, and the sentencing guidelines recommended

a sentencing range of 360 months to life imprisonment. As we have

stated previously, a sentence that is less than the statutory

maximum penalty does not violate Apprendi "even if a fact

determined by the court under a preponderance standard lengthens

the sentence imposed." Johnstone, 251 F.3d at 285; see also

Vaughn, 430 F.2d at 525 ("[D]istrict courts' authority to determine

sentencing factors by a preponderance of the evidence endures and

does not violate the Due Process Clause of the Fifth Amendment.").

Accordingly, Ramos' claim of improper sentencing is meritless.

III. Conclusion

For the reasons stated above, we vacate González's

sentence and remand the matter of González's sentencing to the

district court for an individualized determination of drug quantity

attributable to González. With respect to all other matters, we

affirm the decisions of the district court.

-25-
 The conviction and sentence in No. 05-1758 is affirmed.

The conviction in No. 05-1184 is affirmed. The sentence in No. 05-

1184 is vacated and that case is remanded for resentencing.

-26-