United States Court of Appeals
For the First Circuit
Nos. 05-1800, 05-2045 and 05-2047
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID SANCHEZ-BADILLO and RAYMOND MENDEZ-ECHEVARRIA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Rafael F. Castro Lang, for appellant David Sanchez-Badillo.
Raymond Rivera Esteves, for appellant Raymond Mendez-
Echevarria.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
August 27, 2008
HOWARD, Circuit Judge. After a lengthy jury trial,
appellants David Sanchez-Badillo ("Sanchez") and Raymond Mendez-
Echevarria ("Mendez") were convicted of conspiring to distribute
heroin, cocaine, cocaine base and marijuana. Mendez was also
convicted of two counts of illegal weapon possession. They were
sentenced to terms of imprisonment of 292 months and life,
respectively.1 On appeal Mendez and Sanchez both claim that while
they were charged with participating in a single conspiracy, the
evidence adduced at trial demonstrated the existence of separate,
independent conspiracies. Thus, they argue, the jury's conspiracy
verdict was not supported by the evidence. Both men also claim the
trial court made sentencing errors. In addition, Mendez argues
that the evidence was insufficient to support the jury's verdict
against him on the weapons charges, and that prosecutorial
misconduct entitles him to a new trial. Finally, Sanchez claims
that the trial judge made impermissible comments in the jury's
presence, and that he was denied effective assistance of counsel.
We affirm.
I. FACTUAL BACKGROUND
We recount the facts in the light most favorable to the
verdicts being appealed. United States v. Portela, 167 F.3d 687,
1
Sanchez and Mendez were among seventeen defendants named in the
conspiracy indictment. They were tried along with Francisco Muriel-
Castillo, who was acquitted of the drug conspiracy charge on which he
was indicted.
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692 (1st Cir. 1999). The basic facts of the case are outlined
first, with further details added to address particular arguments.
This case involved drug trafficking at the Los Lirios del
Sur housing project ("Los Lirios") in Ponce, Puerto Rico. The
government's case was based, to a large extent, on the testimony of
three cooperating witnesses -- Carlos Ramon Rivera Segarra,
Ferdinand Pagan Flores and Jonathan Negron Torres. According to
extensive trial testimony, the central player in the drug
conspiracy was one Alex Crespo-Echevarria, a/k/a Alex Gatillo
("Gatillo"), the owner of two "drug points" at Los Lirios. As
owner, Gatillo collected "rent" -- generated from drug sales --
from those who ran the day-to-day operations of the drug points.
Gatillo was also known to have enforced his rent collection and his
territorial boundaries with both actual and threatened violence.
One of Gatillo's drug points, known as the "lower point,"
was located near block #10 at Los Lirios. This point was managed
by appellant Sanchez, who, according to trial testimony, was known
to carry a gun. The lower point trafficked primarily in heroin, as
well as marijuana. In order to get the drugs to the street-level
sellers, Sanchez used a "runner," Nelmaris Rodriguez, who was also
responsible for collecting money from the sellers. After the
sellers received their shares of sales proceeds, Rodriguez passed
the balance of the proceeds on to Sanchez.
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Gatillo's other Los Lirios drug point, known as the
"upper point," sold marijuana and cocaine. Gatillo's involvement
with the upper point dated back to 1999, when he removed the
point's original owner. The point subsequently fell under the
control of a rival of Gatillo's, who was driven off by death
threats made by Mendez and his brother, to the benefit of Gatillo.
Mendez's brother took over management of the upper point until his
2002 imprisonment, whereupon Mendez -- who had returned to Puerto
Rico in 2002 after living in Florida for approximately two years --
took over.
In September 2002, a rival marijuana dealer, Felix
Gelbi2, was shot and killed in a park at Los Lirios. Negron Torres
testified that he purchased marijuana from Gelbi at approximately
11 p.m. near the park, and that as he sat on some bleachers to
smoke, saw Gelbi continue through the park. He further stated that
as Gelbi neared a market, Mendez and others called out to Gelbi,
and then fired several shots at him, killing him. A few days
later, Mendez admitted to Negron Torres that he shot Gelbi in the
mouth.
Mendez's involvement with the upper drug point ended when
he was arrested on October 23, 2002. When he was seized by federal
agents, Mendez was a passenger in a pickup truck that was leaving
2
The record contains different versions of the spelling of the
decedent's last name. We will use the one appearing more frequently.
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Los Lirios. The agent who removed the driver from the truck saw a
handgun on the front bench seat. It contained a fully-loaded
magazine and a bullet in the chamber. Shortly thereafter, another
agent found a second handgun under the passenger seat Mendez
occupied. This gun, which was equipped with a laser sight, also
had a full magazine and a round in the chamber ready to be fired.
In late September 2002, Mendez and Sanchez had been
indicted for participating in a drug conspiracy, in violation of 21
U.S.C. §§ 841(a)(1) and 846. In light of the circumstances
surrounding Mendez's October arrest, he was indicted again in
November, for illegal possession of a firearm with an obliterated
serial number, and possession of a firearm while under indictment.
Also, in December, a superseding indictment was returned against
Sanchez and Mendez, restating the drug charges, but adding the
October weapons possessions as an overt act in furtherance of the
conspiracy. Thus, in addition to the two gun charges against
Mendez, he and Sanchez were accused of conspiring to knowingly and
intentionally possess with intent to distribute one kilogram or
more of heroin, five or more kilograms of cocaine, fifty grams or
more of cocaine base, and 100 kilograms or more of marijuana.
In addition to convicting Sanchez and Mendez of the
criminal charges in the indictment, the jury completed special
verdict forms, in which it found Mendez responsible for possessing
with intent to distribute less than 100 kilograms of marijuana,
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that he was a manager of more than five conspiracy members, that he
possessed weapons in furtherance of the conspiracy, and that he
murdered Felix Gelbi in furtherance of the conspiracy. The jury
found Sanchez responsible for thirty or more kilograms of heroin,
less than 100 kilograms of marijuana, and found that he was a
leader or organizer of the conspiracy.
II. DISCUSSION
A. Conspiracy convictions (Mendez and Sanchez)
Both appellants argue that while the indictment alleged
a single conspiracy -- playing a role in Gatillo's organization --
the facts introduced at trial proved the existence of multiple,
independent conspiracies. Where, as here, there was no objection
to the jury instructions, "the issue resolves into a sufficiency-
of-evidence question." United States v. Soto-Beniquez, 356 F.3d 1,
18 (1st Cir. 2004) (citations omitted). Thus, we must affirm if
the jury was presented with evidence sufficient to support its
finding that appellants were guilty of the charged conspiracy. Id.
While we ultimately look at the totality of the evidence
in determining whether a single conspiracy was proved, Portela, 167
F.3d at 696, we consider a number of factors along the way, none of
which, standing alone, in necessarily determinative. These include
(1) the existence of a common goal, (2) interdependence among the
participants, and (3) overlap among the participants. Id. at 695;
Soto-Beniquez, 356 F.3d at 18-19. It is also not necessary to
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prove that "each conspirator knew of or had contact with all other
members. Nor . . . that the conspirators knew all of the details
of the conspiracy or participated in every act in furtherance of
the conspiracy." Id. at 19 (citing United States v. Mena-Robles,
4 F.3d 1026, 1032 (1st Cir. 1993)).
Mendez concedes that the trial evidence was sufficient to
support the finding of a common goal -- selling drugs for profit.
See Portela, 167 F.3d at 695 ("[G]oal of selling cocaine for profit
satisfies the common goal requirement."). Sanchez, however,
disputes this finding, alleging that the objectives of the two drug
points may have been "identical," but were not "in common." Given
that we have noted the wide breadth of the "common goal"
requirement, see id. at 695 n.3 (citing United States v. Richerson,
833 F.2d 1147, 1153 (5th Cir. 1987)), and the testimony that the
Los Lirios drug trade was controlled by Alex Gatillo, we have
little trouble finding that this conspiracy had a common goal of
serving Gatillo's illicit interests.
Both appellants argue that the evidence was insufficient
to prove interdependence among the participants in the conspiracy.
To the contrary, we find substantial evidence of such a
relationship. "Establishing interdependence among the participants
requires determining whether the activities of one aspect of the
scheme are necessary or advantageous to the success of another
aspect of the scheme." Portela, 167 F.3d at 695. Such
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interdependence "makes it reasonable to speak of a tacit
understanding between [a core conspirator] and others upon whose
unlawful acts" his success depends. United States v. Glenn, 828
F.2d 855, 858 (1st Cir. 1987). While Sanchez concedes that the
government's evidence was sufficient to prove that he was involved
with Gatillo in a different conspiracy to sell heroin and marijuana
at the lower point, he maintains that his involvement was
independent of the upper point and of the Gatillo organization as
a whole. Mendez denies any personal involvement with Gatillo, and
further contends that there was no evidence even linking Gatillo to
the upper point. Mendez also argues that his absence from Puerto
Rico from approximately 1999-2000 until May of 2002 commands a
finding in his favor. We do not agree.
Our review of the voluminous trial record yields several
pieces of evidence from which a jury could have concluded that the
government established a tacit understanding among the appellants
and Gatillo, as well as a cross-pollination of the two drug points.
First, the testimony quite explicitly described Gatillo's iron-
fisted control over Los Lirios. From that alone, the jury may have
reasonably inferred that a decision to sell drugs at Los Lirios
constituted a tacit agreement to join Gatillo's organization. In
addition, the evidence indicated that Nelmaris Rodriguez worked for
Gatillo as a runner at the lower drug point before Sanchez became
manager. Thus, when Sanchez became involved with the lower point,
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it was reasonable for the jury to conclude that he was knowingly
linking himself with the street-level dealers that Rodriguez -- on
behalf of Gatillo –- had previously used at the lower point. The
jury also could have concluded that, based on her pre-existing
business relationship with Gatillo, Rodriguez would serve as
Gatillo's "eyes and ears" at the lower point, ensuring the point's
smooth operation on Gatillo's behalf and helping Gatillo keep track
of sales proceeds. Additionally, Pagan Flores testified that he
had peddled drugs through Nelmaris Rodriguez at the lower point,
and also served as a runner at the upper point prior to Mendez's
management there. The jury also could have found interdependence
from Negron Torres's testimony that he worked in the heroin
distribution aspect of the lower point managed by Sanchez and later
in marijuana distribution at the upper point operated by Mendez.
He also testified that Mendez killed rival marijuana dealer Gelbi,
an act that served to bolster Gatillo's control of the Los Lirios
drug trade. Mendez was accompanied by Michael Rivera-Quinones, who
had served as a runner at the upper point. Combining this with his
earlier threats against Mendez's brother's predecessor at the upper
point, a jury could have rationally concluded that Mendez was
serving as an enforcer of Gatillo's dominance.
In addition to these examples of the ties between the
appellants, Gatillo and the two drug points, evidence demonstrated
that the interdependence of the drug points overseen by Gatillo
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extended back as far as 1998 when Rivera-Quinones (known for his
involvement with the upper point), traveling in a pickup truck with
lower drug point operator Santiago Torres-Montanez, was stopped for
a traffic violation. A search of the truck revealed drug
paraphernalia, armor piercing bullets, and approximately $3800 in
small bills held together with rubber bands. After they were
brought to a local police station, appellant Sanchez (identified
with the lower drug point) arrived at the police station, claiming
that the vehicle and the money belonged to him. That claim was
rebuffed, but Muriel-Castillo (involved in the lower point with
Sanchez) was successful in claiming that both the truck and the
bullets belonged to his mother. Eventually, a local judge ordered
all property seized returned to Muriel-Castillo, who then divided
up the returned money to pay for the lawyers representing Rivera-
Quinones and Torres Montanez. From this sequence of events, in
which participants in the two points were arrested together and
were aided by participants in the lower point, the jury could have
concluded that the two points were interdependent.
The evidence here also shows overlap among the
participants. We have stated that "overlap" can be found in "the
pervasive involvement of a single core conspirator, a hub character
. . . ." Portela, 167 F.3d at 695. In this case, the evidence
demonstrated that Gatillo was such a hub character, with those
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working underneath him often serving both Los Lirios drug points,
and competitors suffering harsh, or fatal, consequences.
Mendez's attempt to seek safe harbor in the fact that he
was away from Puerto Rico between 2000 and May 2002 also fails.
Even if he joined the conspiracy late, "as long as he did so
knowingly, he is liable for the conspiracy itself and earlier acts
in furtherance of the conspiracy." Soto-Beniquez, 356 F.3d at 23.
Against this factual backdrop, we find that the totality
of the government's evidence was sufficient to prove the existence
of a single conspiracy, and to prove appellants' knowing
participation in it.
B. Weapons Convictions (Mendez)
Mendez argues that the evidence was insufficient to
convict him on either of the two weapons charges lodged against
him. We disagree.
Mendez was first charged with unlawful possession of a
loaded, 9 mm Highpoint Firearms semi-automatic pistol that had the
manufacturer's serial number obliterated, and which had been
shipped or transported in interstate commerce. He claims that he
neither possessed the weapon at issue nor had the requisite
knowledge of the obliterated serial number.
Pursuant to 18 U.S.C. § 922(k), it is unlawful to
"knowingly . . . possess or receive any firearm which has had the
importer's or manufacturer's serial number removed, obliterated, or
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altered and has, at any time, been shipped or transported in
interstate or foreign commerce."3
Turning first to possession, we have noted that when
Mendez was arrested, the Highpoint pistol was found on the bench
seat of the pickup truck in which Mendez was a passenger. It is
not necessary, however, for the government to prove that Mendez
physically possessed the gun. Instead, proof of constructive
possession is sufficient. United States v. Wight, 968 F.2d 1393,
1397-98 (1st Cir. 1992). "Constructive possession" is proven by
demonstrating that Mendez "'knowingly had the power and intention
at a given time of exercising dominion and control over a firearm
. . . directly or through others.'" United States v. DeCologero,
530 F.3d 36, 67 (1st Cir. 2008) (quoting Wight, 968 F.2d at 1398).
"Constructive possession can be joint," and can be extremely brief:
"'a minute of possession is as much of an offense as a year of
possession.'" Id. (quoting United States v. Zavala Maldonado, 23
F.3d 4, 8 (1st Cir. 1994)).
The fact that the gun was found on the bench seat is
sufficient for the jury to have concluded that Mendez "had the
power to exercise dominion and control over it." See United States
v. Van Horn, 277 F.3d 48, 55 (1st Cir. 2002) (evidence sufficient
to convict defendant of illegal possession of explosives where
3
Mendez does not dispute the "interstate commerce" element of either
of the weapons charges against him.
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defendant sat in back seat of car adjacent to bucket of
explosives.) There was additional supporting evidence, however.
The Highpoint pistol had "smiley face" stickers affixed to it in
the same location as another gun found at the scene to which Mendez
admitted ownership. Also, the government presented expert
ballistics testimony tying the Highpoint gun to evidence found at
the scene of Felix Gelbi's murder. Although cross-examination of
the expert revealed some potential inconsistencies in his
testimony, "it is for the jury to choose between varying
interpretations of the evidence." United States v. Wilder, 526
F.3d 1, 7 (1st Cir. 2008).
In addition to the possession prong of the statute, the
government also had to prove that Mendez had actual knowledge of
the obliterated serial number. United States v. Abernathy, 83 F.3d
17, 19 (1st Cir. 1996). Here, given the fact that the jury
reasonably found that Mendez killed Gelbi with the Highpoint pistol
on September 23, 2002, we cannot say that it was unreasonable for
the jury to conclude that Mendez's use and continued possession of
the gun until his arrest was proof of his knowledge of the
obliterated serial number. Accordingly, we reject Mendez's claim
with respect to the charge under section 922(k).
We need to spend little time on the second gun charge, in
which Mendez was accused of violating 18 U.S.C. § 922(n) by being
"a person under indictment for a crime punishable for a term
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exceeding one year" and receiving a firearm or ammunition which has
been shipped in interstate or foreign commerce. To begin with, a
defendant's "receipt" of a firearm can be proven by his possession
-- actual or constructive -- of it. See United States v. Lamare,
711 F.2d 3, 5 (1st Cir. 1983) (decided under predecessor to §
922(n)). Next, as previously noted, Mendez was originally indicted
on the drug conspiracy charges in September 2002. He was arrested
on October 23, 2002. Having already affirmed the jury's finding
that he possessed the Highpoint pistol, we must reject any argument
that Mendez was not "in receipt of a firearm" while "under
indictment for a term exceeding one year." This conviction is
affirmed.
C. Judge's Comments During Opening Statement (Sanchez)
During his opening statement, Sanchez's counsel stated
that Sanchez had been "targeted" by the government. The judge
overruled the government's objection and denied a request for a
sidebar. The following exchange ensued in the jury's presence:
Court: No. You're not going to approach the
bench. It is not argument. That is he's
stating that's what the evidence will show.
We'll see if it does show or not. We'll see.
I mean he's putting in the goods up front. At
the end of the case we'll see what happens.
No, that's not arguments. He is saying that
is what he's going to prove. That's what the
evidence is going to be.
Government: He's characterizing that the
government has targeted.
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Court: I don't know. That's the argument.
That's what he's stating the evidence will
show. I don't know if it will show that or
not. We will see at the end of the case if
the goods were as he's stating them or not.
No. Overruled. Proceed.
(emphasis added).
Sanchez argues that the highlighted portion of the
judge's comment improperly imposed an evidentiary burden on him.
Pointing to the fact that many of the evidentiary assertions
predicted by defense counsel failed to materialize, Sanchez argues
that it was "probable" that the jury convicted him because he
failed to meet the burden imposed by the judge. We disagree. For
starters, the jury's deliberations took place approximately 34 days
(22 trial days) after the comment at issue. Less obviously, but
more importantly, the jury was instructed on at least two occasions
that the defense is not required to produce any evidence, that the
burden is always on the government to prove "each of the elements
of the crime charged beyond a reasonable doubt," and that the
"defendants have the right to rely upon the failure or inability of
the government to establish beyond a reasonable doubt any essential
elements of a crime charged against them."
As Sanchez did not contemporaneously object to the
judge's comment, we review for plain error. United States v.
Bailey, 405 F.3d 102, 110 (1st Cir. 2005). To vacate Sanchez's
sentence for plain error, we must find that (1) there was error;
(2) the error was plain and obvious; (3) the error affected
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defendant's substantial rights; and (4) the error impaired the
fairness, integrity, or public reputation of the judicial
proceedings. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001); see also United States v. Dominguez Benitez, 542 U.S. 74,
81-21 (2004) (defendant alleging plain error must show a reasonable
probability of a different outcome in order to prove that the error
"affected his substantial rights"). We have held that "a trial
court has broad authority to comment during trial, and in
particular, to comment in a way that will stop the jury from
treating a lawyer's argument as if it were evidence." United
States v. Quesada-Bonilla, 952 F.2d 597, 600 (1st Cir. 1991).
While the trial judge's one-time use of the word "prove" was
inadvisable, we find that it falls far short of plain error. Given
the existence and timing of the various jury instructions that
correctly formulated the burden of proof, we find that any error
did not impair Sanchez's substantial rights and the fairness,
integrity or public reputation of the judicial proceedings were not
impaired.
D. Ineffective Assistance of Counsel (Sanchez)
Sanchez argues that he was deprived of his Sixth
Amendment right to counsel because his lawyer refused to let him
testify and made a variety of other trial blunders. At the outset,
we note that "[w]e have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
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cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Leahy, 473 F.3d 401, 410 (1st
Cir.), cert. denied, 128 S. Ct. 374 (2007). Although an exception
exists where the record is adequately developed to "permit reasoned
consideration of the claim," id., the current record is lacking
details of the reasons behind defense counsel's various strategic
decisions complained of here. As such, Sanchez must pursue such
remedies, if they are warranted, via 28 U.S.C. § 2255.
E. Prosecutorial Misconduct / Curative Instruction (Mendez)
Mendez makes two related arguments stemming from a
prosecutor’s misstatement during closing argument. During his
rebuttal, the prosecutor erroneously told the jury that the
"weapons" seized from the truck during Mendez’s arrest were
connected to Gelbi’s murder. The use of the plural was incorrect,
as only one of the two guns could be forensically tied to the crime
scene. This was the only misstatement alleged by Mendez. It was
soon followed by a curative instruction from the trial judge, in
which he clarified that the singular tense should have been used,
but unfortunately misidentified which of the two seized guns was
connected to the crime scene. Mendez claims that either of these
errors warrant a new trial. We disagree.
Whether a new trial should have been ordered is reviewed
for abuse of discretion. United States v. Riccio, 529 F.3d 40, 45
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(1st Cir. 2008). Here, while the prosecutor's comment was
undoubtedly inaccurate, there is also no dispute that this was an
isolated remark and that the use of the plural -- "guns" -- was
quickly corrected. We find neither an attempt to mislead the jury
nor a likelihood that the jury was misled. Thus, no new trial was
warranted. See United States v. Azubike, 504 F.3d 30, 39 (1st Cir.
2007) (new trial warranted only where prosecutor's misconduct so
poisoned the well that the trial's outcome was likely affected).
Mendez did not object to the district court’s curative
instruction, thus we review only for plain error. See United
States v. Bailey, 405 F.3d 102, 110 (1st Cir. 2005). We find none.
In the first instance, defense counsel quickly pointed out and
corrected the court's error. Also, given the witness testimony
connecting Mendez to the murder, the error, if any, neither
affected Mendez's rights, nor affected the outcome. See United
States v. Martinez-Vives, 475 F.3d 48, 52 (1st Cir. 2007).
Finally, the district court reminded the jurors that it was their
recollection of the trial evidence which controlled, and not the
representations of the evidence made at closing argument. In our
view, this was sufficient to remove any conceivable taint, the
existence of which we doubt in the first place. See United States
v. Allen, 469 F.3d 11, 16 (1st Cir. 2006), cert. denied, 128 S. Ct.
41 (2007).
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F. Sentencing
1. Sanchez
Sanchez's sole sentencing argument is that the district
court made erroneous drug quantity calculations that led to an
improper sentence. As previously noted, Sanchez was sentenced,
following a two-day hearing, to 292 months' imprisonment. The
trial court arrived at this sentence by attributing thirty
kilograms or more of heroin to Sanchez, for a base offense level of
thirty-eight. The judge added two levels for Sanchez's role as a
leader and organizer for a total offense level of forty,4 which
combined with a criminal history category of I to yield a guideline
range of 292-395 months. After considering the factors enumerated
in 18 U.S.C. § 3553(a), including Sanchez's status as a first-time
offender, and the lack of other aggravating factors, sentence was
imposed at the lowest point in the range.
We review claims of legal error de novo. United States
v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007). The trial court's
factual findings -- including those related to drug quantity
calculations -- are reviewed for clear error. United States v.
Marks, 365 F.3d 101, 105 (1st. Cir 2004).
At the outset, we reject Sanchez's claim that the drug
quantity calculation must be proven beyond a reasonable doubt,
pursuant to Blakely v. Washington, 542 U.S. 296 (2004), so long as
4
Sanchez does not appeal the "leader or organizer" increase.
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the resulting sentence does not exceed the statutory maximum based
on the facts found by the jury." United States v. Gonzalez-Velez,
466 F.3d 27, 40 (1st Cir. 2006). The sentencing judge was
permitted to determine facts under the Guidelines by a
preponderance of the evidence. See United States v. Yeje-Cabrera,
430 F.3d 1, 17 (1st Cir. 2005); United States v. Antonakopoulos,
399 F.3d 68, 75 (1st Cir. 2005).5
The applicable statutory maximum sentence in a drug
conspiracy case is determined from a "conspiracy-wide perspective."
United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004)
(citation omitted).6 The court, however, may not automatically
shift the drug quantity attributable to the conspiracy as a whole
to an individual defendant. Id. Instead a defendant-specific
determination of drug quantity is required for an individual's
sentence. Id. In so doing, "the court is required to make an
5
The trial in this case having taken place in the interregnum between
Blakely and United States v. Booker, 543 U.S. 220 (2005), the district
court submitted the drug calculation and leader / organizer questions
to the jury on special verdict forms. The jury found beyond a
reasonable doubt that Sanchez "possessed with intent to distribute"
thirty kilograms or more of heroin during the duration of his
participation in the conspiracy, and that he was a leader or organizer
during that time. With sentencing taking place in the aftermath of
Booker, however, the court undertook an independent analysis of these
issues. The government argues that such a step was unnecessary in
light of the special verdict, and that the jury's pronouncement should
hold sway. The trial court's thorough effort obviates the need to
address this contention, and we will instead focus on the judge's
findings.
6
Under 18 U.S.C. § 841(b)(1)(A), these appellants each faced a
statutory maximum sentence of life in prison.
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individualized finding as to drug amounts attributable to, or
foreseeable by, that defendant." Id. "Drug quantity is to be
derived from all acts 'that were part of the same course of conduct
or common scheme or plan as the offense of conviction.'" Santos,
357 F.3d at 140 (quoting U.S.S.G. § 1B1.3(a)(2)). "The essential
inquiry is not what the defendant knew but what acts were
reasonably foreseeable by him." Id. (citing Colon-Solis, 354 F.3d
at 103). In the end, "each coconspirator 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. (citations omitted). Nor must the
court's determination be exact: an approximation that "represents
a reasoned estimate" suffices. Id. at 141.
As the government put on no witnesses at sentencing, the
trial court relied on the trial testimony of the three cooperating
witnesses and that of police officer Eddie Vidal-Gil, who had
investigated drug trafficking at Los Lirios beginning in 1997.
Officer Vidal-Gil testified that no less than two kilograms per
month were sold at Los Lirios between 1999 and 2002, the time frame
during which Sanchez was involved with the lower drug point.7
Officer Vidal-Gil testified that he based his estimates on his own
7
While there was some dispute as to the exact time frame of Sanchez's
operation of the lower point, the judge was free to choose among
credible alternatives. United States v. Cyr, 337 F.3d 96, 101 (1st
Cir. 2003).
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experiences, including interviews with suspects and informants and
information shared by other officers. In addition to the officer's
testimony, the court credited the trial testimony of Fernando Pagan
Flores, who said that heroin sales produced $20,000 to $25,000 per
day from a drug point which operated three shifts covering twenty
four hours per day. Also, one of the several peddlers working
under Sanchez had testified that he personally sold five kilograms
of heroin between 1999 and 2001. These data points, when taken
together, support the district court's conclusion as "a reasoned
estimate" that Sanchez was responsible for thirty kilograms of
heroin. Santos, 357 F.3d at 141. Thus, we find no error in his
sentencing.
2. Mendez
Mendez, who was sentenced to life imprisonment, posits
two claims of sentencing error. First, he argues that the trial
judge erroneously concluded that Mendez was responsible for at
least one kilogram of heroin. He further claims that his offense
level should not have included an increase for the murder of Felix
Gelbi. We disagree.
Mendez's sentencing proceedings were more protracted than
Sanchez's. First, the Presentence Report (PSR) arrived at a base
offense level of twenty four, based on a drug quantity of between
80 and 100 kilograms of marijuana, the only drug specifically noted
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in the special verdict form addressed to Mendez.8 Addressing the
death of Felix Gelbi, the PSR then applied the murder cross
reference, which resulted in an offense level of forty-three, the
highest level available. See U.S.S.G. §§ 2D1.1(d)(1), 2A1.1.
Although at the highest offense level, the PSR also "added" two
levels for the firearms use and four for Mendez's leadership role.
While an offense level of forty-three and a criminal history
category of I would warrant life imprisonment, the PSR concluded
that a statutory maximum of twenty years would apply based on the
special verdict form's drug findings, which included only
marijuana. See 21 U.S.C. § 841(b)(1)(C).
Mendez objected to the PSR consideration of the murder,
the managerial role, and the drug quantity (marijuana), and argued
that he deserved a downward adjustment for acceptance of
responsibility. The government, for its part, argued that the
court should find Mendez responsible for one kilogram of heroin,
and requested that the judge impose a life sentence.
Following a five-day sentencing hearing during which both
sides presented witnesses, the court concluded that it was
reasonably foreseeable to Mendez that at least one kilogram of
8
There was no explanation given as to why no heroin amount was asked
on Mendez's special verdict form. The trial judge did, however,
recognize that he had the responsibility of making this determination.
He also correctly noted that the verdict form asked the narrow
question of what Mendez "possessed with intent to distribute," but not
what was "foreseeable" to him, a factor which sentencing must take
into account. See Colon-Solis, 354 F.3d at 103.
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heroin would be distributed, leading to an offense level of thirty-
two. The court also applied the murder cross-reference and the
managerial role adjustment, bringing the total offense level to
forty three. Because of the judge's heroin finding, however, the
sentence came within the ambit of 21 U.S.C. § 841 (b)(1)(A) -- with
its maximum sentence of life. The court then sentenced Mendez to
the maximum term. Mendez appeals the drug quantity calculation and
the murder cross-reference.
As for the heroin calculation, we have little trouble
finding that the evidence at trial and the sentencing hearing
supports the trial court's finding. Pagan Flores testified that
Mendez sold heroin at one of Gatillo's drug points in 1997 and
1998. Negron Torres noted that he was a friend of Mendez, and also
a runner for Sanchez at the other drug point. From this, the court
quite reasonably concluded that Mendez could foresee the sales at
the other drug point. Pagan Flores also testified at the hearing
that he saw Mendez selling drugs in twelve-hour shifts. Although
part of this time was prior to the beginning of the charged
conspiracy in 1997, the court noted that Mendez’s direct
participation spanned at least seven months into the existence of
the charged conspiracy.
Against this factual backdrop, the court concluded that
it could easily find that it was foreseeable to Mendez that more
than one kilogram of heroin was sold. Given both his direct
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participation in heroin sales, and the testimony about his
knowledge of the activities of the other drug point, we find no
error in this determination.
With respect to the murder cross-reference, Mendez simply
rehashes the sufficiency argument he made to defeat the conspiracy
charge, viz., that he didn't do it. He first notes that witness
Negron Torres was discredited because of some discrepancies between
his testimony and the forensic evidence. He then points to his own
testimony that he was elsewhere at the time of the killing, and
concludes, "there was evidence . . . which indicated that . . .
Mendez committed the murder and there was evidence presented which
indicated that he did not." Thus he argues, the evidence against
him is "washed out" by his own testimony. It is not surprising
that Mendez cites no authority for the proposition that evidence is
automatically "washed out" by opposing evidence. There is none.
Instead, it is axiomatic that the finder of fact -– whether the
jury at trial or the judge at sentencing –- is free to choose from
among competing versions of events. See United States v.
Sepulveda, 15 F.3d 1161, 1201 (1st Cir. 1993) ("The district
court's credibility determinations are beyond reproach."); see also
Cyr, 337 F.3d at 101 (sentencing court's choice among plausible
alternatives cannot be clearly erroneous). Accordingly we find no
error in the murder cross-reference, and affirm Mendez's life
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sentence. We have reviewed Mendez's remaining sentencing arguments
and find them without merit.
For the reasons set forth herein, appellants' convictions
and sentences are Affirmed.
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