United States Court of Appeals
For the First Circuit
____________________
No. 06-2719
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO FELICIANO RODRIGUEZ,
Defendant, Appellant.
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Keenan, District Judge. *
____________________
Linda Backiel for appellant.
German A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Rodriguez Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief for
appellee.
May 13, 2008
*
The Honorable John F. Keenan, United States District Judge
for the Southern District of New York, sitting by designation.
KEENAN, District Judge. Appellant Wilfredo Feliciano
Rodriguez (“Feliciano”) was convicted after a jury trial for his
participation in a multi-drug conspiracy that operated out of the
Nuestra Senora de Covadonga public housing complex in Trujillo
Alto, Puerto Rico (“Covadonga”), from 1998 through 2004. Feliciano
challenges his conviction on the grounds that the cumulative effect
of evidentiary errors deprived him of a fair trial and that the
evidence presented at trial varied impermissibly from the
allegations contained in the indictment. In addition, Feliciano
challenges his sentence on the grounds that the district court
imposed an unreasonable sentence; clearly erred in making findings
regarding drug quantity and the brandishing of a firearm; imposed
a sentence that was above the statutory maximum for the charge of
conspiracy to possess weapons in furtherance of narcotics
trafficking; and erroneously imposed consecutive sentences for two
section 924(c) violations that were based on a single underlying
drug conspiracy. For the following reasons, we affirm Appellant’s
convictions on Counts One, Two, and Six; vacate the conviction on
Count Four; vacate the sentences on Counts Two and Six but not on
Count One; and remand for re-sentencing on Counts Two and Six.
BACKGROUND
Appellant was one of eleven co-defendants charged in a
six-count superseding indictment (the “Indictment”) returned on
March 11, 2004 by a grand jury sitting in the District of Puerto
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Rico. The Indictment charged Feliciano in four counts. Count One
charged him with conspiracy to possess with intent to distribute
five kilograms or more of cocaine, 50 grams or more of crack, one
kilogram or more of heroin, and/or 1000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
846, and 860. Count Two charged him with conspiracy to use
firearms in furtherance of the drug conspiracy, in violation of 18
U.S.C. §§ 924(c)(1)(A) and 924(o). Counts Four and Six each
charged Feliciano with using and/or brandishing firearms in
furtherance of a drug trafficking crime, respectively, on April 10,
2003 and April 19, 2003, in violation of 18 U.S.C. §
924(c)(1)(A)(ii).
Feliciano’s co-defendants pleaded guilty and were
eventually sentenced to terms ranging from 57 to 132 months.
Feliciano opted to go to trial.
The Government’s evidence of Feliciano’s participation in
the drug conspiracy at Covadonga consisted primarily of the
testimony of Omar Medina, a cooperating co-conspirator who was a
drug runner and seller at Covadonga; and the testimony of Oscar
Espada, a government informant who was installed in a vacant
apartment at Covadonga and directed by his police handlers to make
secret videotape recordings of narcotics deals that took place at
the drug point outside his building.
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Medina’s testimony established the following. Between
1998 and 2004, the Covadonga drug point operated as a thriving drug
marketplace in which different dealers sold various brands, or
lines, of crack, cocaine, heroin, and marijuana, with the organized
assistance of runners and lookouts equipped with walkie-talkies.
Feliciano, whom Medina knew since their childhood growing up
together in the housing complex, began working in the drug trade at
Covadonga in 1998, when he was a teenager. Feliciano assisted his
brother-in-law, Bebe, in Bebe’s operation of a drug point by
sorting cocaine into bags and organizing the bags into quantities
of one hundred, or “decks”. Feliciano also acted as Bebe’s runner,
distributing cocaine and collecting the $5 in proceeds from the
sale of each baggie. Feliciano served as a runner on a daily
basis, delivering between 50 and 100 bags of cocaine, two or three
times per eight hour shift.
Feliciano worked for Bebe from 1998 until 2002, when Bebe
was murdered after a power struggle over control of the drug point.
During this period, Medina also worked at the drug point as a
seller and runner of marijuana, crack, cocaine, and heroin. Medina
testified that, after Bebe’s murder, an individual named Luis
Osorio, a/k/a “Trumpi”, assumed power over the drug point and was
joined by Cristian Villegas, a/k/a “Casi”. In April 2003, “Trumpi”
was murdered, “Casi” was driven out of Covadonga, and Feliciano,
along with Alex Trujillo, assumed control. Feliciano acted as a
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leader, or owner, until his arrest on June 1, 2004. Trujillo went
into hiding and, at the time of Feliciano’s trial, remained a
fugitive.
As the owner of a drug point, Feliciano employed various
runners and sellers, including Medina, who sold bags of heroin and
cocaine on Feliciano’s behalf. Feliciano’s heroin was
distinguished from the heroin sold by other dealers at Covadonga by
blue foil packaging, and his cocaine was distinguished by pictures
of a little bus that were stamped onto the bags.
Medina testified that drug workers in Covadonga regularly
carried weapons to protect their drug operations. Medina observed
Feliciano carrying weapons at Covadonga several times in 2003. In
addition, Feliciano authorized the distribution of and supplied
weapons to his drug workers at Covadonga. Medina also testified
that Feliciano himself fired an AR-15 rifle at “shady”-looking cars
that passed through Covadonga.
Espada, a professional photographer who was in the
witness protection program at the time that he agreed to work on
the Government’s behalf, testified about his installation at
Covadonga, his infiltration of the drug ring, and the videotapes he
made of numerous drug transactions that took place at the drug
point that Appellant operated, which was located outside Espada’s
building. Espada surreptitiously videotaped the narcotics activity
from his apartment window. Espada began making recordings upon his
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arrival at Covadonga in October 2002 and stopped only in April
2003, when he fled Covadonga in the wake of “Trumpi”’s murder.
Espada testified that he was mistakenly believed to be associated
with “Casi” and “Trumpi” and that shots were fired at him.
The Government introduced into evidence 78 videotapes
recorded by Espada. Feliciano appeared on four tapes made on four
separate days: December 21 and 31, 2002 and April 10 and 19, 2003.
The videotape of December 21, 2002 showed Feliciano delivering a
package of cocaine to and receiving cash from an individual named
“Junito”, whom Medina identified as one of the sellers at the drug
point. The December 31, 2002 videotape also showed Feliciano
receiving money from a drug sale. The videotapes of April 10 and
19, 2003 corresponded to the overt acts charged in the Indictment
in connection with the section 924(c) violations charged in Counts
Four and Six and showed Appellant and his co-conspirators in
possession of firearms. Espada also testified that he observed
Feliciano on a number of occasions possess and distribute weapons
and cocaine.
Medina was called on to describe the activity that was
depicted on the videotapes and, in particular, to identify
Feliciano. On the April 10 videotape, Medina identified Feliciano
handing a pistol to an individual named “Siese”, whom Medina
described as the owner of a drug point in a housing complex outside
of Covadonga. Also on the April 10 videotape, Medina identified
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“Carli” Rojas, one of Feliciano’s drug sellers, with a firearm in
his waistband, which Medina said Rojas carried for protection. On
the April 19 videotape, Medina identified Feliciano carrying a
firearm in his hand in the company of three men whose functions
Medina did not identify.
In addition to the testimonies of Medina and Espada, the
Government offered at the outset of its case the testimony of Drug
Enforcement Administration Agent Anthony Toro Zambrano (“Toro”),
the lead agent on the case. Agent Toro was qualified as an expert
in the operations of drug conspiracies and testified about the
manner in which a drug point typically functions, including the
hierarchy among leaders, sellers, enforcers, runners, and lookouts,
and the manner in which different brands of drugs are typically
packaged. Toro also testified about his seizure of drugs and drug
paraphernalia from the Covadonga apartment of Alex Trujillo, the
individual who Medina testified “took over” the Covadonga drug
operation along with Feliciano. The drugs and paraphernalia seized
by Toro displayed the markings of several different brands of
narcotics that were sold by different drug owners at Covadonga.
After a ten-day trial, the jury found Feliciano guilty on
all four counts. The jury also found by special verdict form that
the drug conspiracy charged in Count One involved the threshold
drug quantities charged in the Indictment. The district court
sentenced Feliciano to concurrent sentences of life imprisonment on
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Counts One and Two. The court also imposed a sentence of seven
years on Count Four, based on a finding of brandishing, and 25
years on Count Six, the mandatory minimum sentence for a second or
subsequent conviction under section 924(c), with the sentences on
Counts Four and Six to run consecutively to each other and to the
life sentences in Counts One and Two. Thus, Feliciano received
cumulative sentences of life imprisonment plus 32 years. This
timely appeal followed.
DISCUSSION
(I) Alleged Evidentiary Errors
Feliciano claims that the cumulative effect of improperly
introduced evidence deprived him of a fair trial. The evidence to
which he objects consisted of: (a) purportedly improper testimony
of the lead agent, Agent Toro; (b) testimony regarding Medina’s
purchase of a rifle on behalf of Alex Trujillo; and (c) Espada’s
testimony about statements he heard from Feliciano’s drug workers
regarding Feliciano’s status as a drug dealer at Covadonga.
We review adequately preserved objections to rulings
admitting or excluding evidence for abuse of discretion. See United
States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006). If there is
error, “it is settled that a non-constitutional evidentiary error
is harmless (and, therefore, does not require a new trial) so long
as it is highly probable that the error did not influence the
verdict.” United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)
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(internal quotations and modifications omitted). When the
appellant did not assert a timely objection at trial, we review
only for plain error. See id. at 86. The plain error standard
requires this court to “find [1] that there is error [2] that is
plain and [3] that affects substantial rights. When these three
elements are satisfied, an appellate court may exercise its
discretion to correct the error . . . only if the forfeited error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Epstein, 426 F.3d 431, 437
(1st Cir. 2005) (internal quotation marks and citation
omitted)(alterations in original). “For the third prong, the
defendant has the burden of showing prejudice or that the error
‘affected the outcome of the district court proceedings.’” Id.
(quoting United States v. Colon-Munoz, 192 F.3d 210, 222 (1st Cir.
1999)).
(A) Agent Toro’s Testimony
(i) “Overview” Testimony
Feliciano claims that, as a result of improper “overview”
testimony given by Agent Toro at the outset of the Government’s
case, “the jury heard that Appellant was not merely a part of the
conspiracy but its leader” and “was invited to speculate about his
role in the murder of the previous leader, and various shootings,
including at Oscar Espada and Agent Toro.” Because Feliciano
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raised no objection to the testimony at trial, we review only for
plain error.
This court on several occasions has strongly cautioned
the Government against the practice of having a case agent make
conclusory statements about a defendant’s culpability at the
beginning of the prosecution’s case, before any supporting evidence
has been offered. See, e.g., Garcia-Morales, 382 F.3d 12 (1st Cir.
2004); United States v. Casas, 356 F.3d 104, 119 (1st Cir. 2004);
United States v. Mazza, 792 F.2d 1210 (1st Cir. 1986); see also 6
Weinstein’s Federal Evidence § 1006.04[3] (observing that it is
generally viewed as “improper . . . for a party to open its case
with an overview witness who summarizes evidence that has not yet
been presented to the jury”). In Casas, we explained that
[the use of] overview testimony is inherently
problematic: such testimony raises the very real specter
that the jury verdict could be influenced by statements
of fact or credibility assessments in the overview but
not in evidence. There is also the possibility that later
testimony might be different than what the overview
witness assumed; objections could be sustained or the
witness could change his or her story. Overview testimony
by government agents is especially problematic because
juries may place greater weight on evidence perceived to
have the imprimatur of the government.
356 F.3d at 119-20.
The purported “overview” testimony that Appellant claims
to be objectionable is contained largely in the following response
of Agent Toro, on direct examination, to the question of why Espada
stopped making recordings of narcotics activity at Covadonga:
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Q. Why did those recordings stop in April 2003, sir?
A. Well, on April 5, 2003, one of the leaders of the drug
point, whose name was Luis Osorio, also known as Trumpi, was
murdered. Mr. Oscar Espada had developed a good friendship
with Trumpi, with Luis Osorio, and when Mr. Alex Capo Trujillo
and Wilfredo Feliciano Rodriguez took over the leadership of
the drug point, they evicted or ran Mr. Espada out of the
housing, public housing project, because Mr. Espada was
perceived, was seen as being part of the organization, as part
of the group, of Mr. Osorio’s group.
Q. Sir, what happened to Mr. Espada after April ’03?
A. Well, on a Sunday morning he was shot inside the housing
project, the public housing project, and we decided to pull
him out of the apartment.
As the Government concedes, Agent Toro’s statement that
Feliciano and Alex Trujillo assumed leadership of the Covadonga
drug operation after the murder of “Trumpi” and “evicted or ran Mr.
Espada out” of Covadonga, was precisely the sort of improper
overview testimony from a case agent that we have condemned. Agent
Toro’s remarks were not based on his personal observations, and no
evidence had been presented to support his conclusion that
Appellant was in fact a leader of the drug point or that he
participated in Espada’s violent eviction from the housing project.
See Garcia-Morales, 382 F.3d at 17 (finding that it was error to
allow the case agent “to testify that [the defendant] was a member
of the drug conspiracy, even though the prosecution had not yet
introduced evidence supporting this conclusion”). In addition,
Appellant argues that Agent Toro’s statements were particularly
harmful because they implicitly linked Feliciano to the attempted
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shooting of Espada and to the murder of “Trumpi”, thus inculpating
Appellant in two highly prejudicial uncharged acts of violence,
about which the Government presented no admissible evidence.
Although Agent Toro’s statements constituted improper
hearsay testimony, Appellant cannot surmount the high hurdle of
plain error review and show that the improper remarks affected the
outcome of the trial. The determination of whether Agent Toro’s
testimony was harmful “demands a panoramic, case-specific inquiry
considering, among other things, the centrality of the tainted
material, its uniqueness, its prejudicial impact, the uses to which
it was put during the trial, the relative strengths of the parties’
cases, and any telltales that furnish clues to the likelihood that
the error affected the factfinder’s resolution of a material
issue.’” Casas, 356 F.3d at 121 (quoting United States v.
Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).
Agent Toro’s hearsay statement that Feliciano assumed
leadership of the drug point was harmless in light of the ample
evidence subsequently presented by the Government to prove that
Feliciano did in fact act as a leader of the Covadonga drug point
beginning in April 2003, following “Trumpi”’s murder. Omar Medina
testified at length about Feliciano’s leadership role at Covadonga.
Medina’s testimony established that Feliciano employed him, as well
as at least five other sellers and runners, to sell heroin and
cocaine on a daily basis. The evidence also showed that Feliciano
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supplied his drug workers with firearms. In addition, the
videotapes secretly made by Espada showed Feliciano carrying a
weapon and engaging in drug transactions with individuals who
Medina testified worked for Feliciano. Thus, because ample
evidence was subsequently offered to show that Feliciano was, in
fact, a leader of the drug conspiracy at Covadonga, Agent Toro’s
hearsay remarks had minimal impact and were harmless. See, e.g.,
United States v. Guadalupe, 407 F.3d 492, 500 (1st Cir. 2005)
(finding no plain error in admission of purportedly improper
overview testimony where government presented overwhelming evidence
of defendant’s guilt); Casas, 356 F.3d at 122 (finding that case
agent’s hearsay conclusion that defendant was leader of drug
organization was harmless because such a conclusion “was the same
determination that the jury would have drawn in the absence of the
inadmissible testimony,” in light of government’s substantial
evidence).
Similarly, although Agent Toro’s conclusion that
Feliciano and Trujillo ran Espada out of Covadonga remained
unsubstantiated by subsequent evidence and possibly resulted in
some small degree of prejudice against Feliciano, the error was
ultimately harmless. Even if the jury accepted as true Agent
Toro’s conclusory remark about Appellant’s involvement in Espada’s
violent ouster, the tainted material was hardly central to the
Government’s case.
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To support a conviction for the charged narcotics
conspiracy, the Government was not required to prove that Feliciano
attempted to shoot Espada or otherwise participated in his
eviction. See Garcia-Morales, 382 F.3d at 18 (finding improper
testimony harmless in part because the evidence “was not essential
to proving [Appellant’s] involvement in the conspiracy”). Further,
the Government did not make extensive use of Toro’s suggestion that
Feliciano ran Espada out of Covadonga. Apart from the above-quoted
remark from Agent Toro’s testimony, the Government did not link
Feliciano to the attempted shooting of Espada and did not attempt
in its opening or closing arguments to imply that Feliciano played
a role in that incident. Finally, as discussed, the Government
offered substantial evidence of Appellant’s guilt. By contrast,
the defense’s case was relatively weak, largely limited to cross-
examination of the prosecution’s witnesses. In light of “the
strength of the prosecution’s case and the limited impact of the
improperly admitted testimony, we are convinced that the jurors’
judgment was not substantially swayed by the error.” Id. (internal
quotation marks and citation omitted).
To the extent that Appellant objects to Agent Toro’s
testimony on the ground that it permitted the jury to speculate
about whether Appellant played a part in the murder of “Trumpi”,
the argument is without merit. Although Agent Toro stated that
Feliciano became a leader of the drug point after “Trumpi” “was
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murdered,” Toro did not attribute the murder to Feliciano. The
mere possibility that the jury may have speculated that Feliciano
played some role in the assassination of the individual whom he
supplanted as an owner of the drug point does not rise to the level
of plain error.
(ii) Disclosure of Underlying Data
Feliciano argues that Agent Toro, although qualified to
give lay opinion testimony about the general operation of drug
points under Rule 701 of the Federal Rules of Evidence, should not
have been permitted to “reveal to the jury the underlying data on
which he based his opinions, as is permitted, under certain
conditions, for an expert testifying pursuant to Rule 702.” The
only “underlying data” that Appellant identifies is “[h]earsay
gleaned from police reports about [Appellant’s] relation to Alex
Trujillo’s violent take over.”
Rule 703 of the Federal Rules of Evidence provides, in
pertinent part, that “[f]acts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of
the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert’s
opinion substantially outweighs their prejudicial effect.” Fed. R.
Evid. 703. Here, Appellant has failed to identify the underlying
data that Agent Toro purportedly disclosed to the jury in
discussing Alex Trujillo’s role in the drug conspiracy at
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Covadonga. There is no indication that Agent Toro quoted from, or
cited to, police reports, the accounts of non-testifying
informants, or other inadmissible material regarding Trujillo’s
relationship to Appellant or his “violent take-over” of the drug
point at Covadonga. Although Agent Toro did briefly refer to an
indictment filed against Trujillo by the “Mass Murder office,”
which charged Trujillo with drug activity in another housing
project, that indictment had no connection to Trujillo’s
relationship with Appellant or with the drug conspiracy at
Covadonga. Thus, Appellant’s argument is without merit.
(iii) Rule 403
Feliciano claims that Agent Toro’s comments regarding the
murder of “Trumpi”, the shooting of Espada in connection with the
alleged takeover of Covadonga by Feliciano and Trujillo, and
Trujillo’s status as a fugitive wanted by Puerto Rico’s “Mass
Murder office” were unfairly prejudicial, in violation of Rule 403.
Under Rule 403 of the Federal Rules of Evidence even
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” Fed.
R. Evid. 403. Evidence is unfairly prejudicial if it “invites the
jury to render a verdict on an improper emotional basis.” United
States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (stating
that a reviewing court should be “cautious when [evidence] is []
shocking or heinous [and, thus,] likely to inflame the jury”
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(internal quotation marks omitted)); see also United States v.
Currier, 836 F.2d 11, 18 (1st Cir. 1987) (“Unfairly prejudicial
evidence . . . is evidence that triggers the mainsprings of human
action in such a way as to cause a jury to base its decision on
something other than the established proposition in the case.”
(internal quotation marks and brackets omitted)). “[O]nly rarely
-- and in extraordinarily compelling circumstances -- will [this
court], from the vista of a cold appellate record, reverse a
district court’s on-the-spot judgment concerning the relative
weighing of probative value and unfair effect.” United States v.
Charles, 456 F.3d 249, 257 (1st Cir. 2006) (internal quotation
marks omitted).
Murder of “Trumpi” & Shooting of Espada
Because Appellant did not object at trial to Agent Toro’s
statements about “Trumpi”’s murder, the subsequent attempted
shooting of Espada, and Espada’s flight from Covadonga, we review
their admission only for plain error. The statements were not so
unfairly prejudicial as to violate Rule 403. The evidence had
probative value because it helped to explain to the jury, first,
why Espada stopped making videotapes and, second, the circumstances
under which Feliciano assumed power at Covadonga, thus providing
relevant contextual information. By contrast the danger of unfair
prejudice was slight, considering the brevity of the testimony and
the fact that Agent Toro did not expressly implicate Appellant in
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“Trumpi”’s murder or in the shooting of Espada. Appellant has not
shown that the potential for undue prejudice outweighed, let alone
substantially outweighed, the probative value of Toro’s statements.
If there was any error, it was harmless, in light of ample evidence
establishing Appellant’s guilt of the charged crimes. See United
States v. Taylor, 284 F.3d 95, 102 (1st Cir. 2002).
Trujillo’s Fugitive Status
When asked the question, “who is Alex Trujillo,” Agent
Toro stated that Trujillo was a fugitive and that the “Mass Murder
office” had filed an indictment against Trujillo, charging him with
drug trafficking at a different public housing complex. Because
Appellant did not object to these statements or move to strike
them, our review is for plain error. The district court did not
commit plain error in permitting Agent Toro to provide this brief
testimony about Trujillo. Although Trujillo’s status as a fugitive
was not highly probative of any element of the crimes with which
Appellant was charged, the fact that Trujillo was wanted by
Commonwealth and federal authorities for narcotics activity did
provide the jury with helpful context. See United States v. Daly,
842 F.2d 1380, 1388 (2d Cir. 1988) (“The trial court may admit
evidence that does not directly establish an element of the offense
charged, in order to provide background for the events alleged in
the indictment.”), quoted in Flemmi, 402 F.3d at 87. Specifically,
Toro’s remarks clarified for the jury why Toro and other agents
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searched Trujillo’s apartment on July 1, 2003. The search, and its
fruits, were important to the Government’s case. The drugs seized
from Trujillo’s apartment were packaged and “branded” with several
different markings, including markings that Medina testified were
particular to the lines of cocaine and heroin that were sold by
Appellant. That drugs belonging to different owners were found in
a single apartment tended to show that the drug operation at
Covadonga was a cooperative effort.
In addition, the district court restricted the scope of
Toro’s testimony about Trujillo’s fugitive status by precluding the
Government from offering into evidence a document, issued by the
United States Marshals Service, indicating that Trujillo was a
fugitive. Appellant has not shown how the district court plainly
erred in balancing the probative value of Toro’s testimony
regarding Trujillo against its prejudicial impact. Moreover, as
with Toro’s statements regarding the murder of “Trumpi” and the
attempted shooting of Espada, any error was harmless, in light of
the Government’s conclusive proof of Feliciano’s guilt.
(B) Medina’s Testimony about the AR-15 Rifle
While Medina was on the stand, the defense objected to
the prosecution’s attempt to elicit testimony about Medina’s
purchase of an AR-15 rifle for Alex Trujillo. At sidebar, the
prosecution represented that Medina would testify that he
subsequently saw Feliciano carrying the rifle that Medina
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purchased. Medina was then permitted to testify about the purchase
but never actually testified that he witnessed Feliciano carrying
the AR-15 rifle that Medina had bought for Trujillo. Rather,
Medina testified that he saw Feliciano carry a different AR-15
rifle and use the rifle to shoot at “shady”-looking cars that
passed through Covadonga.
Feliciano claims that Medina’s testimony regarding the
rifle that Medina purchased on behalf of Trujillo was irrelevant
and highly prejudicial. The Government concedes that Medina never
testified that he saw Feliciano possess the identical rifle that
Medina purchased for Trujillo. However, the Government contends
that Medina’s testimony regarding Feliciano’s possession of another
AR-15 rifle, and his firing of that rifle at passing cars, was
highly relevant to the charges relating to Feliciano’s use of guns
in relation to drug trafficking.
The issue of the testimony’s relevance is governed by
Federal Rule of Evidence 401, which provides that evidence is
relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Fed. R. Evid. 401. Generally, “all relevant evidence is
admissible,” while “evidence which is not relevant is not
admissible.” Fed. R. Evid. 402. Medina’s testimony about
Feliciano’s use of the AR-15 rifle clearly was relevant. Medina’s
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testimony tended to establish that Feliciano used a rifle to
protect Covadonga from interlopers. While Medina’s testimony about
his purchase of the AR-15 rifle on Trujillo’s behalf may have been
irrelevant to Feliciano’s possession of a different AR-15 rifle, it
was nevertheless relevant to show that Trujillo, as a co-owner of
the drug point and a co-conspirator of Appellant’s, conspired to
possess weapons to protect the drug operation.
Further, Appellant has failed to show how testimony about
Feliciano’s possession of the rifle was unfairly prejudicial under
Rule 403. Ample evidence was offered to establish that Feliciano
carried guns on numerous occasions in order to protect his drug
operation. Testimony about his possession and use of a rifle on
the occasion described by Medina was not so inflammatory as to
require exclusion. The district court did not abuse its discretion
in allowing Medina to testify about Feliciano’s possession of the
rifle.
(C) Espada’s Testimony About Co-Conspirators’ Statements
Espada testified that he first learned about Feliciano’s
role as a drug dealer because “Saul” and “Miguelito”, whom
Feliciano employed as, respectively, a drug runner and seller, told
Espada that Feliciano “was in charge of a drug point where he sold
crack and cocaine . . . .” Espada further testified that “Saul”
and “Miguelito” “talked to me about [Appellant], they pointed him
out to me, and they indicated that he was like the big shot at the
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drug point.” (Id. at 211.) Feliciano contends that these were
highly prejudicial hearsay statements, with no basis in personal
knowledge, and that the record is insufficient to permit a court to
determine that the statements were properly admitted as co-
conspirator statements, under Rule 801(d)(2)(E).
At the outset, we note that, although Appellant made a
timely objection to Espada’s testimony regarding the statements of
“Saul” and “Miguelito”, he “did not seek a ruling regarding co-
conspirator statements pursuant to Fed. R. Evid. 801(d)(2)(E) and
United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).”
United States v. Tom, 330 F.3d 83, 93 (1st Cir. 2003). More
importantly, Appellant did not seek a ruling, as required, “at the
close of all evidence.” United States v. Ciampaglia, 628 F.2d 632,
638 (1st Cir. 1980). “For Petrozziello purposes, the critical
juncture is the close of all the evidence.” United States v.
Candelaria-Silva, 162 F.3d 698, 706 (1st Cir. 1998). Thus, our
review of Appellant’s claim regarding admission of the statements
is for plain error. See Tom, 330 F.3d at 93; United States v.
Woods, 210 F.3d 70, 78 (1st Cir. 2000).
A statement is not hearsay and is therefore admissible if
it is offered against a party and is made “by a coconspirator of a
party during the course and in furtherance of the conspiracy.” Fed.
R. Evid. 801(d)(2)(E). A statement is admissible under Rule
801(d)(2)(E) where the Government demonstrates “by a preponderance
-22-
of the evidence that a conspiracy existed, that the declarant and
the defendant were members of it at the time that the declaration
was made, and that the declaration was in furtherance of the
conspiracy.” Ciampaglia, 628 F.2d at 638. A statement is in
furtherance of the conspiracy if it “tends to advance the objects
of the conspiracy as opposed to thwarting its purpose.” United
States v. Flores-Rivera, 56 F.3d 319, 330 (1st Cir. 1995) (quoting
United States v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985)).
The statements made to Espada by “Saul” and “Miguelito”
were admissible co-conspirator statements under Rule 801(d)(2)(E).
First, the evidence at trial was overwhelming that a drug
conspiracy existed at the Covadonga housing complex.
Second, the Government’s evidence firmly established that
“Saul” and “Miguelito” were Appellant’s co-conspirators in the
distribution of drugs at Covadonga. Medina’s testimony established
that “Saul” was among the drug sellers who, in 2003, regularly sold
$5 bags of heroin and cocaine for Appellant, that “Saul” was in
fact one of Appellant’s most successful sellers, and that he also
acted as one of Appellant’s runners. Officer Quintero, an
undercover agent who posed as a drug buyer and regularly collected
the videotapes made by Espada, testified that “Miguelito” owned a
drug point at Covadonga and also acted as a drug seller.
“Miguelito” was also identified, on one of the videotape recordings
made by Espada, as a participant in a drug transaction.
-23-
Finally, it is also clear from the record that the
statements made by “Saul” and “Miguelito” were in furtherance of
the drug conspiracy. By explaining Appellant’s role in the
Covadonga drug marketplace to Espada, “Saul” and “Miguelito” were
in essence directing a potential customer to the source of
narcotics, thus steering business toward Feliciano and advancing
the objective of the drug ring. The district court did not commit
plain error in admitting the co-conspirator statements.
In sum, the evidentiary rulings identified by Appellant
were either not errors or, if erroneous, were harmless in light of
ample evidence of Appellant’s guilt. The claimed errors,
considered either individually or cumulatively, do not warrant
reversal of Feliciano’s convictions.
(II) Variance Between the Conspiracy Proven and the Conspiracy
Charged
Feliciano argues that he was prejudiced by a variance
between the evidence presented at trial and the crimes charged in
Counts One and Two of the Indictment. Regarding Count One,
Feliciano claims that the Government’s proof showed that he
participated only in one of many small, unrelated drug conspiracies
operating within Covadonga, rather than the single, over-arching
conspiracy charged in the Indictment. Feliciano also contends that
the proof impermissibly varied from the allegations set forth in
Count One because the evidence showed that he acted as a co-leader
with Alex Trujillo, rather than with Cristian Villegas, a/k/a
-24-
“Casi”, as alleged in the Indictment. Regarding Count Two,
Feliciano claims that the evidence failed to show that he conspired
to possess guns in furtherance of the charged narcotics conspiracy
with the specific individuals named in the Indictment. Further,
Feliciano claims that the jury instructions on both Counts One and
Two were erroneous and contributed to the prejudice that resulted
from the variance on both counts.
A prejudicial variance occurs when: “(1) the facts
proved at trial differ from those alleged in the indictment; and
(2) the error affects the defendant’s substantial rights (i.e.,
when the indictment fails to provide the defendant with sufficient
detail to allow him to prepare a defense, avoid unfair surprise at
trial, and plead double jeopardy when appropriate).” United States
v. Pomales-Lebron, 513 F.3d 262, 269 (1st Cir. 2008) (internal
quotation marks and citation omitted). A claim that the
Government’s proof varied impermissibly from the charges contained
in the indictment is essentially a challenge to the sufficiency of
the evidence. See United States v. Martinez-Medina, 279 F.3d 105,
113 (1st Cir. 2002). As with all such claims, “we ‘canvass the
evidence (direct and circumstantial) in the light most agreeable to
the prosecution and decide whether that evidence, including all
plausible inferences extractable therefrom, enables a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime.’” United States v. Perez-Ruiz, 353
-25-
F.3d 1, 5 (1st Cir. 2003) (quoting United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997)).
Where, as here, an appellant claims that the evidence
showed that he participated only in one of several, lesser
uncharged conspiracies, rather than the single overarching
conspiracy as charged in the indictment, we
pay particular attention to factors such as whether the
alleged conspirators shared a common purpose, whether
their actions demonstrated interdependency, and the
extent to which participants overlapped during the life
of the alleged conspiracy. At the end of the day, a
defendant cannot succeed with a sufficiency challenge as
long as a plausible reading of the record supports the
jury’s implied finding that he knowingly participated in
the charged conspiracy.
United States v. Balthazard, 360 F.3d 309, 314 (1st Cir. 2004)
(internal quotation marks and citations omitted).
Here, the Government presented sufficient proof that
Feliciano participated as a drug owner in the charged conspiracy.
The Indictment charged that the object of the conspiracy was to
possess with intent to distribute and to distribute “cocaine,
cocaine base (‘crack’), heroin, and marihuana, at different drug
distribution locations (‘drug points’) in the Nuestra Senora de
Covadonga Public Housing Project . . . for significant financial
gain or profit.” The Indictment further charged that Appellant
acted as one of the “Leaders and Owners” of the charged conspiracy.
As discussed above, the testimonies of Medina and Espada, as well
as the videotapes made by Espada, established that Feliciano acted
-26-
as an owner of a heroin and cocaine drug point within Covadonga
from April 2003 until his arrest on June 1, 2004.
There was little variance (and no material variance)
between the Indictment and the proof presented at trial of
Appellant’s drug trafficking at Covadonga. The Indictment did not,
as Appellant implies, define the drug conspiracy at Covadonga as a
“single,” “master,” or “overarching” conspiracy. Further, as the
Government correctly notes, even if the Indictment could be
construed as charging Feliciano with being a leader of an
overarching drug conspiracy at Covadonga, “the evidence established
that the sub-conspiracies indeed functioned as a part of the
grander drug scheme at Covadonga.” Ample evidence established that
the Covadonga housing project functioned as a busy narcotics bazaar
in which the owners of different “brands” of cocaine, crack,
heroin, and marijuana cooperated to sell their distinctly labeled
products. The success of each owner’s drug operation depended on
the overall security of Covadonga, and look-outs employed by
different drug owners acted for the Covadonga marketplace’s benefit
as a whole. Appellant’s own act of firing a rifle at cars being
driven through Covadonga by perceived outsiders suggests that the
different drug owners at Covadonga maintained a common interest in
securing the housing project against outsiders. There was also
substantial evidence presented of overlap among the different drug
operations, consisting not only of the common use of look-outs, but
-27-
of different owners’ use of the same sellers and runners. For
example, Medina’s testimony established that he sold heroin for two
different owners and marijuana for a third owner. In addition,
cohesion among the different “sub-conspiracies” is also implied by
the fact that drugs “branded” with the marks of different owners
were recovered from Trujillo’s apartment; the jury reasonably could
have inferred that the owners of different drug points used a
common space to store their respective drugs and drug
paraphernalia. In sum, there was sufficient evidence for the jury
reasonably to have concluded that, although many drug owners
operated within Covadonga, the Covadonga drug marketplace itself
functioned as a single drug conspiracy.
Even if some variance existed between the Government’s
evidence and the allegations contained in the Indictment, Feliciano
was not unfairly prejudiced. See United States v. Twitty, 72 F.3d
228, 231 (1st Cir. 1995) (“[S]o long as the statutory violation
remains the same, the jury can convict even if the facts found are
somewhat different than those charged -- so long as the difference
does not cause unfair prejudice.”). Specifically, no prejudice
resulted from the fact that the evidence showed that Appellant was
allied with Alex Trujillo, rather than Cristian Villegas, or that
Appellant ran one of several drug points at Covadonga, rather than
the entire drug organization. Regardless of the identity of
Feliciano’s alleged co-leader or the exact scope of Appellant’s
-28-
control of the drug activity at Covadonga, the Government was
required to prove, and succeeded in proving, that Feliciano acted
as a leader of a Covadonga drug point, as alleged in the
Indictment, by employing different sellers and runners to sell
drugs, and by carrying guns and supplying his underlings with guns.
Thus, Feliciano’s “central defense needed to be that he was not
part of [the Covadonga] organization -- as [an owner of drugs], or
in any other capacity.” United States v. Alicea-Cardoza, 132 F.3d
1, 6 (1st Cir. 1997) (finding no impermissible variance where
defendant was indicted “for being a conspirator/triggerman but the
evidence proved him a conspirator/runner”). The defense mounted by
Feliciano did not center on responding to the particular charge
that Appellant was allied with “Casi”. Nor did Appellant prepare
a defense under the mistaken belief that he could concede his
involvement in a smaller conspiracy and was required to contend
only with the Government’s effort to prove that he oversaw all of
the drug points operating within Covadonga. In sum, Feliciano was
not “misled by the government’s evidence at trial to defend himself
on the wrong grounds” and thus was able to “prepare an effective
defense and avoid surprise at trial.” United States v. Fornia-
Castillo, 408 F.3d 52, 68 (1st Cir. 2005) (internal quotations and
citations omitted).
Similarly, no prejudice resulted to Appellant from the
purported variance between the weapons conspiracy charged in Count
-29-
Two of the Indictment and the Government’s proof. Count Two of the
Indictment alleged that Feliciano conspired to use guns in
furtherance of the drug conspiracy charged in Count One with three
co-defendants named in the Indictment (Jose Claudio Ortiz, Jorge
Rodriguez Rosa, and Alfred Rodriguez Rosa) and one co-conspirator
not named in the Indictment (Juan Carlos Rojas Rodriguez, a/k/a
“Carli”). Feliciano argues that the evidence simply did not show
that he conspired with any of the four named men to possess or use
firearms in furtherance of the charged drug conspiracy.
The Government presented sufficient proof that Feliciano
conspired with others to posses firearms in furtherance of the drug
conspiracy. The “essence” of conspiracy is an agreement to commit
a crime. Iannelli v. United States, 420 U.S. 770, 777 (1975).
Here, the Government proved that an agreement existed between
Feliciano and fellow members of the Covadonga drug market to
possess guns in order to provide protection and enforcement for
their drug trade. For example, Medina testified that in 2003, when
he was working at the Covadonga drug point for Feliciano,
Feliciano, Medina, and other sellers carried weapons. In addition,
Medina testified that the use of weapons by drug point workers had
to be authorized by Feliciano and his co-leader, Trujillo. The
Government also proved the existence of the unlawful agreement by
showing conduct, namely the fact that drug owners and sellers
regularly carried guns at Covadonga while dealing in drugs, from
-30-
which the agreement to possess guns in furtherance of the drug
conspiracy could be inferred. See United States v. Concemi, 957
F.2d 942, 950 (1st Cir. 1992) (stating that an agreement may be
inferred from other evidence including a course of conduct).
The Government offered no evidence, however, to show that
any of the four individuals named in Count Two of the Indictment
directly conspired with Feliciano to possess firearms. In
addition, there appears to have been no evidence to show that
Ortiz, Jorge Rosa, or Alfred Rosa actually possessed firearms.1
Nevertheless, despite the lack of any evidence showing an agreement
to possess weapons between Feliciano and the four named
individuals, it is undisputed that the four individuals named in
the Indictment were members of the drug conspiracy. It is also
undisputed that Appellant, as well as other drug owners and sellers
at Covadonga, regularly carried guns to protect themselves and
their drug business. “Taking this evidence in the light most
favorable to the government, the jury was entitled to conclude that
the possession of firearms, given the dangerous nature of the
conspiracy, was a part of that conspiracy’s common course of
action.” United States v. Sullivan, 455 F.3d 248, 261 (4th Cir.
2006). In other words, the jury reasonably could have inferred an
agreement to possess guns between Feliciano and the four named
1
There was evidence, however, to show that “Carli” possessed a
gun. Specifically, Medina identified “Carli” as carrying a
firearm on one of the videotapes made by Espada.
-31-
individuals because they were all members of the Covadonga drug
conspiracy, and members of the drug conspiracy habitually carried
weapons in furtherance of the drug activity.
In any event, the variance between the allegations in
Count Two of the Indictment and the proof adduced at trial was
slight and did not operate to mislead Appellant. Even if the jury
convicted Feliciano on the basis of his conspiracy to possess
firearms with another co-defendant rather than the four named
individuals, this variance was permissible. See Alicea-Cardoza, 132
F.3d at 6 (finding no prejudice in variance because “error in the
indictment was not so grave as to cause [appellant] to defend
himself on the wrong grounds, especially when the evidence adduced
at trial showed [appellant] to be deeply involved in” the charged
conspiracy). Here, the Indictment charged, and thus Feliciano was
on notice, that he conspired to possess guns in furtherance of the
Covadonga drug conspiracy not only with the four named individuals,
but also “with others, known and unknown.” (Indictment at 10.) As
with Count One, Appellant cannot plausibly claim that he was misled
into mounting a defense against Count Two on the wrong grounds.
Appellant’s defense against the charges in Count Two required that
he contend with the Government’s efforts to prove that he agreed to
possess guns with other drug workers at Covadonga. No unfair
surprise or other prejudice resulted from the Government’s
presentation of evidence that established Appellant’s participation
-32-
in the conspiracy to possess weapons with individuals other than
the four specific persons named in the Indictment. Thus, to the
extent a variance existed, it was permissible.
Feliciano also argues that the district court erroneously
instructed the jury regarding the conspiracies charged in both
Counts One and Two. We first note that Appellant failed to propose
alternate jury instructions or to object in a timely manner to the
district court’s jury instructions. “When a defendant neglects to
interpose a contemporaneous objection to the trial court’s jury
instructions in conformity with Federal Rule of Criminal Procedure
30, subsequent claims of instructional error are, for the most
part, forfeit.”2 United States v. Gomez, 255 F.3d 31, 37 (1st Cir.
2001). A narrow exception exists, however, for plain error. See
United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).
“[T]he plain error hurdle, high in all events, nowhere looms larger
than in the context of alleged instructional errors.” United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); see also United States
v. Weston, 960 F.2d 212, 216 (1st Cir. 1992) (“While reversal of a
conviction predicated on unpreserved instructional error is
2
The rule provides in pertinent part:
No party may assign as error any portion of
the charge or omission therefrom unless that party
objects thereto before the jury retires to
consider its verdict, stating distinctly the
matter to which that party objects and the ground
of the objection.
Fed. R. Crim. P. 30.
-33-
theoretically possible, [it is] the rare case in which an improper
instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.”).
Regarding Count One, Appellant protests that the district
court’s instructions erroneously authorized a conviction upon proof
of a conspiracy other than that charged in the Indictment. The
record indicates, however, that the district court correctly
explained the elements of conspiracy and referred expressly to the
conspiracy charged in the Indictment. Specifically, the court
instructed that the Government must prove beyond a reasonable doubt
the existence of a conspiracy to distribute the charged quantities
of drugs “inside the public housing facility known as Covadonga.”
The court referred to the specific charged conspiracy, namely the
conspiracy to distribute narcotics at Covadonga, several times
during its instruction on Count One. Appellant has not shown how
these instructions were erroneous, let alone how the instructions
were so deficient as to constitute plain error. Compare Paniagua-
Ramos, 251 F.3d at 246 (noting that plain error might theoretically
be found in cases of “glaring omission,” where, for example, “a
trial court fails to instruct a criminal jury on a basic point like
the government’s burden of proof or the presumption of the
defendant’s innocence”).
Similarly, the district court’s instructions on Count Two
did not constitute plain error. The court’s initial instruction
-34-
regarding Count Two instructed that it was a crime “to conspire
during and in relation to a drug trafficking crime, as charged in
count I, to use or carry a firearm or to conspire to possess a
firearm in furtherance of such drug trafficking crime.” As the
Government concedes, this instruction erroneously permitted the
jury to convict Appellant “for a conspiracy to ‘use or carry a
firearm,’ so long as the conspiracy, rather than the use, took
place during and in relation to some drug trafficking crime.” In
other words, the initial instruction wrongfully authorized the jury
to convict by finding that Feliciano agreed with others, at some
point during the drug conspiracy, to possess firearms, without also
finding that the possession was intended to be in relation to the
drug conspiracy.
Almost immediately afterward, however, the district court
repaired its error and issued a correct instruction by stating that
the Government was required to prove that Feliciano “willfully and
intentionally conspir[ed] to commit the offense of using or
carrying a firearm during and in relation to a drug trafficking
crime, or of conspiring to possess a firearm in furtherance of such
drug trafficking crime . . . .” Shortly afterward, in limning the
element of specific intent for Count Two, the court repeated the
correct instruction.
We do not propose that the court’s instruction, including
as it did an initial misstatement of the applicable law, “is either
-35-
letter perfect or insusceptible to any improvement.” Paniagua-
Ramos, 251 F.3d at 246. However, in light of the district court’s
immediate correction and Appellant’s failure to suggest an
alternate instruction or interpose a contemporaneous objection to
the initial, flawed instruction, we find that the instruction as to
Count Two did not rise to the level of plain error.
In sum, we conclude that there was no prejudicial
variance between the crimes charged in Counts One and Two of the
Indictment and the proof of those crimes presented by the
Government at trial. We also find that the jury instructions
relating to Counts One and Two were not plainly erroneous.
(III) Sentencing Errors
Feliciano claims that (a) his sentence was based on an
unreliable calculation of drug quantity; (b) the sentence was
unreasonable because the court failed properly to consider the
relevant statutory factors; (c) his life sentence on Count Two
unlawfully exceeded the statutory maximum of twenty years; (d) the
trial court improperly found that he brandished a firearm in
imposing a seven-year sentence on Count Four; and (e) the
conviction and 25-year sentence on Count Six must be vacated
because it was a second section 924(c) conviction for a single
predicate act and thus violated double jeopardy.
-36-
(A) Drug Quantity
Feliciano argues that the district court erred in finding
that at least 150 kilograms of cocaine were attributable to him.
Although the district court made a clearly erroneous finding as to
drug quantity, the error was harmless in light of substantial
additional evidence in the record that supports the court’s
ultimate finding that Appellant was accountable for more than 150
kilograms of cocaine during the charged conspiracy.
A district court’s factual finding regarding the amount
of drugs attributable to a member of a drug conspiracy will be
disturbed only if it is clearly erroneous. United States v. May,
343 F.3d 1, 6 (1st Cir. 2003). To determine drug quantity, a court
looks to all acts “‘that were part of the same course of conduct or
common scheme or plan as the offense of conviction,’ and takes into
account not only what the defendant knew, but what conduct he
reasonably foresaw.” United States v. Santos, 357 F.3d 136, 140
(1st Cir. 2004) (quoting U.S.S.G. § 1B1.3(a)(2)). “Thus, each co-
conspirator is responsible not only for the drugs he actually
handled but also for the full amount of drugs that he could
reasonably have anticipated would be within the ambit of the
conspiracy.” Id. The trial court’s determination of drug quantity
need only be by a preponderance of the evidence and is not required
to be an exact determination but rather only a reasoned estimate.
See id. at 141. Further, if the trial court bases its estimate on
-37-
one of two plausible views, the determination is not clearly
erroneous. Id.
In determining that Feliciano was responsible for at
least 150 kilograms of cocaine, the district court found that,
during Appellant’s 397-day tenure as a leader of the Covadonga drug
point, the drug point operated for twenty-four hours each day, and
that each day six different sellers, who worked for Appellant, sold
approximately 125 bags of cocaine. Based on these assumptions, the
court calculated that 297,750 bags of cocaine were attributable to
Feliciano. The court further assumed that, based on the testimony
of the Government’s forensic chemist, who weighed the contents of
the fifty bags that Espada purchased from Appellant’s drug point in
a pre-arranged, undercover buy on April 4, 2003, each bag contained
approximately 0.5685 grams of cocaine powder. Thus, the court
calculated, it would take approximately 1,759 bags to constitute
one kilogram of cocaine. Based on these estimates, the court found
that approximately 169 kilograms of cocaine were attributable to
Feliciano. The quantity of 150 kilograms or more yielded a base
offense level of 38. The court imposed a four-level enhancement
for Feliciano’s leadership role and a two-level enhancement for a
protected location,3 for an adjusted offense level of 44, which in
turn yielded a recommendation under the guidelines of life
imprisonment.
3
Feliciano does not challenge the enhancements.
-38-
Feliciano argues, first, that the weight attributed to
each bag of cocaine was improperly based on a minute sampling of
only 50 of the nearly 300,000 bags for which he was held
accountable. Next, Feliciano protests that the court’s assumption
that six sellers were selling 125 bags each, every day for 397
consecutive days exaggerated “the number of bags per day, the
number of sellers, and the number of days.” Feliciano notes that
the 78 videotapes made by Espada tended to show a less vigorous
level of narcotics activity at the drug point than that testified
to by Medina. Feliciano also argues that Medina’s testimony
regarding the number of shifts and number of sellers at most
indicated that each of the six sellers was working every other day,
rather than every day. Finally, Feliciano attacks the reliability
of Medina’s estimates, characterizing Medina as “an interested,
illiterate witness addicted to cocaine and marijuana whose
inability to manage measures of virtually anything was marginal.”
(Id. at 52.)
The district court did not clearly err in determining
drug quantity on the basis of the relatively small sampling of bags
of cocaine that were weighed by the Government’s chemist. The
court’s finding was supported by evidence offered at trial.
Specifically, Medina testified that cocaine was routinely sorted
into quantities of 100 bags, or “decks,” each of which constituted
an “eighth.” From this testimony, the court reasonably could have
-39-
inferred that 100 bags equaled one eighth of a kilogram of cocaine,
which in turn would result in the determination that each of the
297,750 attributed to Appellant contained approximately 1.25 grams
of cocaine. The district court properly relied on the more
conservative estimate of .5685 grams per bag, thereby “‘chos[ing]
between plausible estimates of drug quantity but [] err[ing] on the
side of caution.’” United States v. Hall, 434 F.3d 42, 61 (1st Cir.
2006) (quoting United States v. Marks, 365 F.3d 101, 105 (1st Cir.
2004)).
The district court also did not clearly err in
determining, from Medina’s testimony, the number of days during
which Appellant acted as the owner of the drug point, the fact that
the drug point operated 24 hours each day, or the fact that sellers
worked in three daily shifts and each seller sold an average of 125
bags of cocaine per day. While it is true that Medina was not
especially exact in his description of dates, times, weights, and
numbers, he nevertheless was intimately involved, as both a runner
and seller, in the operation of Appellant’s drug point. Within
wide limits, not exceeded here, it was the exclusive role of the
trial court to decide the weight to give to Medina’s testimony and
whether to use it as the basis of its drug quantity determination.
See United States v. Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)
(“Notwithstanding some minor discrepancies in [the cooperating
witness’s] testimony, we do not think it unreasonable . . . to
-40-
believe that the testimony of a man experienced in drug deals was
sufficient to establish an appropriate drug quantity.”) (internal
quotation marks and citation omitted); see also United States v.
Webster, 54 F.3d 1, 5 (1st Cir. 1995) (upholding district court’s
decision to credit testimony at sentencing from “an admitted
perjurer, a drug user, and a turncoat, who received a substantially
reduced sentence for implicating others”); United States v.
Indelicato, 97 F.3d 627, 632 (1st Cir. 1996) (“Credibility
judgments at sentencing are the trial judge’s province. . . .”)
(citation omitted). Given Medina’s extensive involvement with
Feliciano in the drug activity at issue, it was not clear error for
the trial court to credit Medina’s estimations and use them as the
basis of its calculation of the overall quantity of cocaine that
was attributable to Feliciano. Nor did the court clearly err in
opting to credit Medina’s testimony rather than infer, from the
content of Espada’s videotapes, that the drug trade was less brisk
than Medina described.
The district court committed clear error, however, in
finding that six sellers worked “every day,” selling cocaine,
during the period of Appellant’s leadership. As Medina’s testimony
established, and as the Government concedes, each seller worked
only every other day. Thus, based on Medina’s testimony, the court
reasonably could conclude only that the equivalent of three, rather
than six, sellers worked each day. The district court therefore
-41-
erroneously doubled the quantity of cocaine attributable to
Feliciano during his 397 days of leadership, and on its reasoning
should have found that Appellant was responsible for 84.5 kilograms
of cocaine, rather than 169 kilograms.
If a district court makes an erroneous factual finding
under the sentencing guidelines, yet “there is enough evidence to
support the alternative explanation for the court’s finding, the
error would be harmless and there would be no reason to remand to
the district court when the result will be the same.” United States
v. Pizarro-Berrios, 448 F.3d 1, 8 (1st Cir. 2006); see also United
States v. Brown, 450 F.3d 76, 80 (1st Cir. 2006). We therefore
must decide whether the record supports the finding that Appellant
was responsible for more than 150 kilograms of cocaine.
There was ample additional evidence in the record to
establish that an additional quantity of cocaine, sufficient to
make up for the “lost” 84.5 kilograms, was attributable to
Feliciano by virtue of his activity as a drug runner and packager
for Bebe, from 1998 to 2002. Medina’s testimony (which the court
credited) established that both he and Feliciano acted as runners
for Bebe from 1998 to 2002, and that Feliciano delivered between 50
and 100 bags of cocaine, two or three times per day. As the
Government correctly notes, using the most conservative estimates
of 50 bags of cocaine, twice per day, over a period of four (rather
than five) years, a total of 146,000 additional bags, or
-42-
approximately 84.6 kilograms, of cocaine are properly attributable
to Feliciano. These estimates are especially cautious because they
account only for the cocaine that Appellant personally handled, as
a runner or packager, and not for additional amounts handled by
other runners or sellers who worked for Bebe, such as Medina, and
whose drug activity was reasonably foreseeable by Feliciano.
Although the district court did not make specific drug quantity
calculations relating to Appellant’s conduct as a drug runner and
packager, the court noted in its sentencing memorandum that, in
addition to the drugs attributable to Appellant as a result of his
activity as a leader of the drug point in 2003 and 2004, “defendant
served as a ‘runner’ or decked cocaine at that same [drug] ‘point’
beginning in 1998 and throughout the years 1999, 2000, 2001, and
2002.” Thus, the district court expressly considered Feliciano’s
role as a runner, from 1998 through 2002, as an alternative
explanation for the finding that he was responsible for more than
150 kilograms of cocaine.
In sum, because there is clear record support for the
district court’s finding that Appellant was accountable for more
than 150 kilograms of cocaine during the charged conspiracy, we
need not remand for re-sentencing on this issue.
(B) Reasonableness
Appellant claims that his sentence of life plus 32 years
is unreasonable because the district court failed to pay proper
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consideration to several of the relevant factors set forth in 18
U.S.C. § 3553(a).
Following the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738 (2005), we review
challenges to sentences for reasonableness, regardless of whether
the sentence falls within the range recommended under the United
States Sentencing Guidelines. See United States v. Deppe, 509 F.3d
54, 62 (1st Cir. 2007). “Even though Booker decreed the sentencing
guidelines to be only advisory, the guidelines still play an
important role in the sentencing procedure, so that (as was done
here) a court should ordinarily begin by calculating the applicable
guideline range.” United States v. Gilman, 478 F.3d 440, 445 (1st
Cir. 2007). After calculating the advisory Guidelines range, the
court “must evaluate the factors set out in Section 3553(a) to
consider whether to exercise its discretion to impose a non-
guideline sentence . . . and no less important, the court must
provide a detailed, case-specific explanation for imposing the
chosen sentence.” Id. (internal citations omitted). “The
sentencing court may not mechanically assume that the [Guidelines]
frame[] the boundaries of a reasonable sentence in every case.”
United States v. Martin, No. 06-1983, 2008 U.S. App. LEXIS 5906
(1st Cir. Mar. 21, 2008) (citing Gall v. United States, 128 S. Ct.
586, 169 L. Ed. 2d 445 (2007)). Ultimately, we review a trial
court’s sentence with substantial deference, and as long “as we
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discern ‘a plausible explanation’ for the sentence and a
‘defensible overall result,’ we will not second-guess the district
court’s informed judgment.” Id. (quoting United States v. Jimenez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)).
Feliciano contends that the district court, in imposing
a life sentence, did not sufficiently account for several of the
factors set forth in Section 3553(a). Appellant claims that
aspects of his history should have militated in favor of a more
lenient sentence, including his lack of a criminal record; the
suicide of his father when Feliciano was only eleven years old; and
Feliciano’s upbringing in the housing project amidst poverty,
violence, and drug trafficking. Feliciano also argues that the
need for just punishment is not served because “the sentence
imposed, while it certainly fulfills the need for punishment,
responds to a conception of justice close to revenge.” In
addition, Feliciano asserts that the goal of rehabilitation is
overwhelmed by the accomplishment of specific deterrence, namely
“incapacitation.”
Feliciano’s within-guidelines sentence was not
unreasonable. The district court expressly stated at sentencing
that it had considered the factors set forth in Section 3553(a),
recited the factors, and then gave a specific explanation for the
sentence. The court noted the protracted life span of the drug
conspiracy and Appellant’s long-term participation in the criminal
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enterprise; Appellant’s role as a leader for more than one year;
and Appellant’s use of weapons. The court concluded that, “[a]ll
factors considered, [Feliciano’s] role as a leader of this very
dangerous criminal venture requires that Defendant be sentenced as
recommended by the advisory guideline range, a sentence that is
sufficient but not greater than necessary to meet sentencing
objectives of criminal punishment and deterrence.” That the court
chose to allocate greater weight to the aggravating factors of
Appellant’s crimes, and less to potentially mitigating factors such
as the unfortunate circumstances of Appellant’s upbringing,
“entailed a choice of emphasis, not a sin of omission” and “is not
a basis for a founded claim of sentencing error.” Deppe, 509 F.3d
at 62; see also United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006) (“While a sentencing court must consider all of the
applicable section 3553(a) factors, it is not required to address
those factors, one by one, in some sort of rote incantation when
explicating its sentencing decision.”).
Because the district court considered the relevant
statutory factors and provided a plausible explanation for the
within-guidelines range sentence it imposed, Appellant’s challenge
to the reasonableness of his sentence fails.
(C) Life Sentence on Count Two Exceeded Statutory Maximum
Appellant contends, and the Government concedes, that the
life sentence imposed on Count Two exceeded the twenty year
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statutory maximum sentence on Count Two. See 18 U.S.C. § 924(c) and
(o). We therefore vacate the sentence on Count Two and remand for
the imposition of a sentence of no more than twenty years. See
United States v. Ziskind, 491 F.3d 10, 18 (1st Cir. 2007).
(D) Finding of Brandishing
The district court imposed the statutory mandatory
minimum sentence of seven years on Count Four on finding that
Appellant brandished a firearm in connection with his possession of
a weapon on April 10, 2003, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). Under the statute, a defendant is deemed to have
brandished a firearm when he “display[s] all or part of the
firearm, or otherwise make[s] the presence of the firearm known to
another person, in order to intimidate that person." 18 U.S.C. §
924(c)(4). Appellant argues that there is no basis in the record
for the court’s finding of brandishing and thus the sentence must
be vacated. Although Appellant did not object below to the court’s
finding of brandishing, and we thus review the claim only for plain
error, the Government conceded at oral argument that there was no
record support for the court’s determination that Appellant
brandished a firearm.
Review of the record confirms what the Government now
concedes: there is no evidence that Appellant or his co-
conspirators made the presence of a firearm known to anyone else in
order to intimidate that other person. The Government’s evidence
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relating to Count Four appears to have consisted of portions of the
videotape recorded by Espada on April 10, 2003 as well as Medina’s
commentary about those recordings. The relevant portions of the
videotape simply showed Appellant handing a firearm to a drug
dealer who operated out of another housing complex and showed
“Carli” Rojas, a seller who worked for Feliciano, in possession of
a firearm. The record is devoid of any indication that either
Appellant or his co-conspirator displayed firearms with the purpose
of intimidating other persons. Accordingly, we vacate Appellant’s
brandishing conviction on Count Four.
(E) Consecutive Sentences on Section 924(c) Counts
Feliciano points out that his convictions for Count Four
and Count Six arise from the same predicate offense, namely,
possession or use of a firearm in relation to the same drug
conspiracy, in violation of section 924(c). The only difference
between the two counts is that one incident of gun possession
occurred on April 10, 2003 and the second incident occurred on
April 19, 2003. Feliciano argues that the dual section 924(c)
convictions, arising as they do from the same underlying drug
conspiracy, violated the prohibition against double jeopardy, and
that this was plain error. Thus, Feliciano claims, his sentence on
Count Six should be vacated and he should be sentenced only for his
conviction on Count Four. The Government agrees that Counts Four
and Six are based on a single predicate drug offense and concedes
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that it was improper for the trial court to impose two consecutive
sentences for section 924(c) violations arising from the same drug
conspiracy.
In United States v. Pena-Lora, we adopted the position
taken by the majority of our sister circuits and held that the
imposition of multiple consecutive sentences under subsection
924(c) for using multiple weapons during a single predicate crime
“would impinge upon fundamental ‘double jeopardy’ principles.” 225
F.3d 17, 32 (1st Cir. 2000); see also United States v. Anderson, 59
F.3d 1323, 1334 (D.C. Cir. 1995); United States v. Lindsay, 985
F.2d 666, 674 (2d Cir. 1993); United States v. Privette, 947 F.2d
1259, 1262-63 (5th Cir. 1991); United States v. Taylor, 13 F.3d
986, 994 (6th Cir. 1994); United States v. Cappas, 29 F.3d 1187,
1191 (7th Cir. 1994); United States v. Fontanilla, 849 F.2d 1257,
1258-59 (9th Cir. 1988); United States v. Moore, 958 F.2d 310, 312
(10th Cir. 1992); United States v. Hamilton, 953 F.2d 1344, 1346
(11th Cir. 1992). Accordingly, in Pena-Lora, we found that the
district court had committed plain error in imposing consecutive
sentences for the appellant’s two acts of firearm possession that
had taken place during a single underlying act of hostage-taking.
Here, too, the district court plainly erred in imposing
multiple consecutive sentences for two acts of firearm possession
arising from the same predicate drug conspiracy. Thus, we must
vacate one of the two section 924(c) convictions and remand for re-
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sentencing on the remaining count. Having determined that the
district court erred in finding that Appellant brandished a firearm
in imposing sentence on Count Four, it now “makes no difference
under § 924(c) whether [Feliciano] is convicted and sentenced for
Count [4] or Count [6], since both carry five-year mandatory
minimum penalties and both are supported by sufficient evidence.”
Taylor, 13 F.3d at 994. Thus, we vacate Appellant’s conviction and
sentence on Count Four, affirm Appellant’s conviction on Count Six,
and remand to the district court for re-sentencing on Count Six to
the statutory minimum term of five years, to run consecutively to
the sentences imposed on Counts One and Two.
CONCLUSION
For the foregoing reasons, we AFFIRM Feliciano’s
conviction and sentence on Count One. We AFFIRM Feliciano’s
conviction on Count Two but VACATE the sentence previously imposed
on that count and REMAND for re-sentencing with an order to the
district court to re-sentence Appellant on that count to term of no
more than twenty years. Feliciano’s conviction on Count Four is
VACATED and the special assessment on that count is to be removed.
Feliciano’s conviction on Count Six is AFFIRMED, but we vacate the
sentence previously imposed on that count and REMAND for re-
sentencing with an order to the district court to sentence
Appellant on that count to the statutory mandatory minimum term of
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five years, to run consecutively to the sentences imposed on Counts
One and Two.
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