United States Court of Appeals
For the First Circuit
Nos. 06-1988, 06-2004
06-2336, 06-2337
UNITED STATES OF AMERICA,
Appellee,
v.
ELÍAS RODRÍGUEZ-LOZADA AND
NELSON RIVERA-GARCÍA, AKA NELSON CONEJO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and DiClerico,* Senior District Judge.
Lydia Lizarríbar-Masini, for appellant Rivera-García, and
Rafael Anglada-Lopez, for appellant Rodríguez-Lozada.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief for
appellee.
February 24, 2009
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Nelson Rivera-Garcia and
Elias Rodriguez-Lozada were tried together and convicted of drug
and weapons crimes charged in two consolidated cases. Rodriguez-
Lozada (“Rodriguez”) appeals his convictions and sentence. He
contends that the district court erred in denying his motions to
suppress and to sever, that the jury did not represent a fair cross
section of the community, and that the evidence was insufficient to
sustain his convictions. He also challenges his sentence. Rivera-
Garcia (“Rivera”) raises three issues, all pertaining to his
sentence. Rodriguez’s convictions and sentences on the gun charges
are vacated; his convictions and sentences are otherwise affirmed.
Rivera’s sentence is affirmed.
I.
Members of the Rivera-Garcia family, including Nelson
Rivera-Garcia, were involved in a drug trafficking organization,
known as “Callejón de los Conejos,” that operated in Ponce, Puerto
Rico. A federal grand jury returned an indictment, dated September
27, 2002, charging Rivera and nine others, including his three
brothers and his mother, with a drug conspiracy that operated from
1995 until the date of the indictment (Criminal Case No. 02-391).
An arrest warrant was issued for Rivera.
The United States Marshals Service learned that Rivera
was living at an apartment in Cataño, Puerto Rico. On September
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29, 2003, Deputy United States Marshals and Puerto Rico Special
Response Team (“S.R.T”) officers went to that apartment to arrest
Rivera. The S.R.T. officers knocked on the apartment door and
announced their presence. One of the officers saw a man, whom he
recognized, look out of a window near the door.1 When no one
responded to their knocking, the S.R.T. officers knocked down the
door and entered the apartment behind an officer carrying a bullet-
proof shield.
As the S.R.T. officers entered, they saw Rodriguez,
wearing a leg brace but not using a crutch, walking toward them.
They also saw Rivera looking out of the slightly-open bedroom door,
holding a gun. The officers secured Rodriguez. Rivera closed and
locked the bedroom door, but after an officer kicked the door
twice, Rivera opened the door and came out without the gun. The
officers secured Rivera.
The S.R.T. officers and federal marshals entered the
bedroom. A crutch was on the bed. They found heroin, cocaine,
packaging for the drugs, and money. Clothing and cell phones were
also found in the room. They discovered a loaded Taurus 9 mm
pistol under a pillow on the bed and a loaded Glock .45 caliber
1
The S.R.T. officer recognized the man from an event the week
before when S.R.T. officers and marshals went to an apartment
complex in Rio Grande, Puerto Rico, where they believed Rivera was
staying. The S.R.T. officer saw the same man, who was wearing a
leg brace, get out of the marshals’ vehicle. That man was later
determined to be Rodriguez.
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pistol in a box under the bed. They found additional equipment for
processing and packaging drugs in the kitchen. Rivera and
Rodriguez were arrested.
A grand jury indicted Rivera and Rodriguez on October 10,
2003, for crimes arising from the circumstances of their arrest in
Cataño (Criminal Case No. 03-284). They were charged with
possessing heroin, cocaine, cocaine base, and marijuana with the
intent to distribute, in violation of 21 U.S.C. § 841(a)(1); with
possession of firearms in furtherance of a drug trafficking scheme
in violation of 18 U.S.C. §§ 924(c)(1) and (2); and with aiding and
abetting each other in those crimes. Rivera and Rodriguez were
each charged, separately, with being a felon in possession of
firearms in violation of 18 U.S.C. § 922(g)(1). In December of
2003, a grand jury returned a superseding indictment in Criminal
Case No. 02-391, charging Rivera and Rodriguez with conspiring with
ten other co-conspirators, including Rivera’s brothers and mother,
to possess with the intent to distribute heroin, cocaine, cocaine
base, and marijuana in violation of § 841(a)(1). The court granted
the government’s motion to consolidate the two cases.
Rivera and Rodriguez moved to suppress the evidence found
in the Cataño apartment, and a hearing was held on the motions on
August 23, 2004. At the hearing, the court realized that an issue
existed as to whether the defendants had standing to challenge the
evidence. The court denied Rodriguez’s motion, due to his lack of
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standing, and gave Rivera an opportunity to brief the issue. A
further hearing on Rivera’s motion to suppress was held on November
5, 10, and 12, 2004. The court denied Rivera’s motion on December
23, 2004.
Jury selection was held on April 27, 2005. On May 2,
2005, counsel gave their opening statements, and the government
called its first witness. Evidence continued each day through
Thursday, May 5. On May 6, Rodriguez filed a motion to sever his
trial from Rivera’s trial, arguing that if they were tried
separately, Rivera would provide exculpatory testimony for
Rodriguez, based on Rivera’s testimony at the suppression hearing.
The court held a hearing on Rodriguez’s motion on Monday, May 9.
The government objected to severance.
Despite noting that the motion to sever was untimely, the
court decided to sever the trial of Criminal Case. No. 02-391 from
Criminal Case No. 03-284. Under the new schedule, both defendants
would be tried on the charges in Criminal Case No. 02-391 first,
and a separate trial for Criminal Case No. 03-284 would be held at
a later time. Following the lunch break the same day, however, the
court reconsidered the severance issue and denied the motion as
untimely. Trial proceeded, as originally planned, on the charges
against both defendants in both cases.
After the conclusion of the government’s case, both
defendants moved for judgment of acquittal under Federal Rule of
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Criminal Procedure 29. The motions were denied. On May 18, 2005,
the jury returned its verdict finding Rivera and Rodriguez guilty
on all charges.2
Presentence reports were prepared and submitted. Rivera
objected to the drug quantities and other parts of his presentence
report. Rodriguez requested that new counsel be appointed to
represent him for sentencing, and the court appointed new counsel
on November 17, 2005.
Rodriguez’s sentencing hearing was held on May 17, 2006.
The court found a total offense level of 34 and a criminal history
category of II resulting in an advisory guideline range of 168 to
210 months. After reciting the factors set forth in 18 U.S.C. §
3553(a) and discussing the extent of Rodriguez’s drug transactions,
the nature of his offenses and his role in them, his injuries, and
his possession of weapons, as noted in the presentence report, the
court concluded that a sentence at the high end of the range was
appropriate. Rodriguez was sentenced to 210 months on Count One in
Criminal Case No. 02-391; 210 months on Counts One, Two, and Three
in Criminal Case No. 03-284; 60 months on Count Four; and 120
months on Count Seven of Criminal Case No. 03-284, all such terms
to run concurrently. In addition, he was sentenced to 60 months on
2
The judgment entered for Rodriguez on May 26, 2006, docketed
in Criminal Case No. 02-391 at docket no. 498, indicates that
Rodriguez pled guilty in that case. That entry appears to be in
error.
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Count Five in Criminal Case No. 03-284, said sentence to be served
consecutively to the other sentences imposed resulting in a total
sentence of 270 months. Terms of supervised release were also
imposed.
Rivera’s sentencing hearing began on March 17, 2006, and
was continued to August 16, 2006. The court found a base offense
level of 38 and applied a four-level increase based on Rivera’s
leadership role, which yielded an adjusted offense level of 42.
The court found a criminal history category of VI based on his
status as a career criminal. A criminal history category of VI,
combined with a total offense level of 42, resulted in an advisory
guideline range of 360 months to life.
Rivera was sentenced to life in prison on Count One of
Criminal Case No. 02-391. In Criminal Case No. 03-284, Rivera was
sentenced to life in prison on Counts One and Three and to terms of
40 years on Count Two, 60 months on Count Four, and 120 months on
Count Six, all such terms to run concurrently. In addition, he was
sentenced to a term of 60 months for his conviction on Count Five
in Criminal Case No. 03-284, which was to be served consecutively
to his other sentences in Criminal Case No. 03-284. Terms of
supervised release were also imposed.
Rivera and Rodriguez filed timely notices of appeal.
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II.
On appeal, Rodriguez challenges the district court’s
denial of his motions, the make-up of the jury, the sufficiency of
the evidence, and his sentence. Rivera raises issues pertaining to
his sentence. We consider the issues raised by the parties in
turn.
A. Rodriguez’s Appeal
Rodriguez contends that the district court erred in
denying his motion to sever his trial from Rivera’s trial and in
denying him a hearing on his motion to suppress evidence found at
the apartment in Cataño, where he was arrested with Rivera. He
also argues that the jury did not represent a fair cross-section of
the community, that the evidence was insufficient to sustain his
conviction, and that his sentence was unreasonable. The government
responds that some of the issues Rodriguez raises were waived and
that the issues lack merit.
1. Motion to Suppress
Both Rodriguez and Rivera moved to suppress the evidence
found at the Cataño apartment. At the beginning of the suppression
hearing, Rodriguez’s counsel sought additional evidence, including
the address of a witness who had some involvement in the
circumstances of the arrest, for the purpose of obtaining a
subpoena. After a sidebar conference, the district court stated on
the record:
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I was under the misapprehension that the
subpoena that was requested by [Rodriguez]
concerned the person who had the possession or
the custody or the use of the place where the
defendants were arrested. It turns out that
she is not the owner nor did she have that
apartment under any type of rent or under her
control. Also during this conference, it
appeared that [Rodriguez] was there visiting
and in those circumstances then he would have
no standing to challenge any search that was
done at that time and there[fore] his motion
to suppress is hereby denied on the basis of
standing to file the motion to suppress.
Supp. Hr. T., 8/23/04, at 8-9. The court then ordered Rivera to
brief the issue of whether he had standing to move to suppress the
evidence. Another hearing on Rivera’s suppression motion was held
in November, and the motion was denied on December 23, 2004.
On appeal, Rodriguez argues that he had standing to move
to suppress the evidence found in the Cataño apartment, despite his
status as a guest in the apartment, and that the district court
should have heard his motion. The government contends that
Rodriguez waived the standing issue by not raising it in the
district court.3 Alternatively, the government argues that the
district court did not abuse its discretion in denying Rodriguez a
hearing on his motion.
Before a court may reach the merits of a motion to
suppress, “the defendant carries the burden of establishing that he
3
The government does not distinguish between waiver and
forfeiture. See, e.g., United States v. Walker, 538 F.3d 21, 23
(1st Cir. 2008).
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had a reasonable expectation of privacy with respect to the area
searched or, as in this case, the items seized.” United States v.
Lipscomb, 539 F.3d 32, 35-36 (1st Cir. 2008), cert. denied, ___ S.
Ct. ___, 2009 WL 56596 (U.S. Jan. 12, 2009). Although the
threshold requirement is referred to as standing, it is more
properly considered under a Fourth Amendment analysis. Id. at 36.
“[F]ailure to present evidence with respect to such an expectation
prevents a defendant from making a claim for suppression under the
Fourth Amendment.” United States v. Samboy, 433 F.3d 154, 162 (1st
Cir. 2005).
In the district court, Rodriguez failed to address the
question of whether he had a reasonable expectation of privacy with
respect to the Cataño apartment or the items seized there. On
appeal, Rodriguez asserts, based on his status as a casual visitor
for a brief period at Rivera’s apartment, that he had a reasonable
expectation of privacy in the area searched. He is mistaken. See
United States v. Torres, 162 F.3d 6, 10 (1st Cir. 1998). The
district court properly denied his motion, due to his lack of
standing, without further consideration.
2. Motion to Sever
On May 6, 2005, Rodriguez filed a motion to sever trial
of the charges against him from Rivera’s trial. He argued that
Rivera’s testimony at the suppression hearing in November of 2004,
about the drugs, guns, and money found in the apartment in Cataño,
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was exculpatory evidence which he wanted to present in his defense.
He further argued that Rivera would testify on his behalf if the
charges against them were tried separately.
The district court addressed the motion on the morning of
May 9, 2005. Rodriguez’s counsel explained the exculpatory nature
of the testimony he expected from Rivera. The court asked whether
Rivera would testify on Rodriguez’s behalf, and Rivera’s counsel
said that he would testify only if the charges against him were
severed from Rodriguez’s trial and if Rivera were tried first. The
government objected to the motion on the ground that it was
untimely, because the trial had already progressed into the second
week, and argued that the totality of Rivera’s testimony was not
exculpatory. After initially deciding to sever the two
indictments, the district court denied Rodriguez’s motion as
untimely.
A district court’s decision to deny a motion to sever is
reviewed for manifest abuse of discretion. United States v.
DeCologero, 530 F.3d 36, 52 (1st Cir.), cert. denied, 129 S. Ct.
513 & 129 S. Ct. 515 (2008). A motion to sever charges or
defendants must be made before trial. Fed. R. Crim. P.
12(b)(3)(D). Failure to move for severance before the deadline for
filing pretrial motions constitutes waiver, which may be excused
only on a showing of good cause. Fed. R. Crim. P. 12(e); United
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States v. Pena-Lora, 225 F.3d 17, 33 (1st Cir. 2000); United States
v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997).
On appeal, Rodriguez argues the merits of his severance
motion. The government points out that the motion was denied as
untimely and that Rodriguez failed to show good cause for the
untimely filing. At oral argument before this court, Rodriguez’s
counsel represented that the motion to sever was timely, having
been filed on the first day of trial following jury selection. In
support of his position, counsel filed a letter, pursuant to
Federal Rule of Appellate Procedure 28(j), in which counsel stated:
“Said motion was filed on May 6, 2005, after jury selection but
before the start of jury trial, day one, on May 9, 2005.”4
Counsel’s representation is contrary to the record and to
the statement of the case presented in Rodriguez’s own brief.5
Jury selection was held on April 27, 2005. The first day of
evidence was May 2 and trial continued through May 5. Therefore,
the motion to sever, filed on May 6, 2005, was untimely.
4
Rule 28(j) provides a mechanism for a party to advise the
court of “pertinent and significant authorities” that come to light
after the brief is filed or after oral argument. Counsel in this
case made improper use of Rule 28(j) to raise additional argument
and evidence.
5
In his brief, Rodriguez states that voir dire and jury
selection were held on April 27, 2005, that “[o]n May 2, 2005,
first day of trial was held,” and that the testimony of government
witnesses continued on May 3, May 4, and May 5. Rodriguez’s Brief
at 9-10.
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In the district court, Rodriguez’s counsel explained that
the motion was filed on May 6 because he had only received the full
transcript of the suppression hearing earlier that week. Counsel
further stated that after reading the transcript, he realized that
Rivera’s testimony was exculpatory. The district court found,
however, that because counsel attended the suppression hearing in
November of 2004 and heard the testimony at that time, he did not
need the transcript before filing the motion.
Based on the circumstances presented here, the motion for
severance was untimely, and Rodriguez failed to show good cause for
an untimely filing. The district court correctly denied the
motion. No abuse of discretion occurred.
3. Jury Selection
Rodriguez argues, for the first time on appeal, that the
requirement that jurors serving in the District of Puerto Rico be
proficient in English violated his Sixth Amendment right to a jury
made up of a fair cross section of the community. Issues not
raised before the district court are forfeited and subject to
review only for plain error. See United States v. Cruz-Rodriguez,
541 F.3d 19, 35 (1st Cir.), cert. denied, 77 U.S.L.W. 3429 (U.S.
Jan. 21, 2009); Walker, 538 F.3d at 23. “The plain error standard
requires this court to ‘find [1] that there is error [2] that is
plain and [3] that affects substantial rights.’” United States v.
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Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008) (quoting United States
v. Epstein, 426 F.3d 431, 437 (1st Cir. 2005)).
We have previously considered the English proficiency
requirement and held that it was “justified by the overwhelming
national interest served by the use of English in a United States
court.” United States v. Gonzalez-Velez, 466 F.3d 27, 40 (1st Cir.
2006) (internal quotation marks omitted); United States v. Dubon-
Otero, 292 F.3d 1, 17 (1st Cir. 2002). Rodriguez provides no basis
to reconsider our previous holding in the circumstances of this
case. No error occurred.
4. Sufficiency of the Evidence
Rodriguez contends that the evidence at trial was
insufficient to convict him of the conspiracy charged in Criminal
Case No. 02-391 and the weapons charges in Criminal Case No. 03-
284. We review the district court’s denial of a Rule 29 motion for
judgment of acquittal under the de novo standard. United States v.
Giambro, 544 F.3d 26, 29 (1st Cir. 2008). In doing so, however, we
view “the evidence in the light most flattering to the jury’s
guilty verdict [and] assess whether a reasonable factfinder could
have concluded that the defendant was guilty beyond a reasonable
doubt.” Lipscomb, 539 F.3d at 40.
With respect to the conspiracy conviction, Rodriguez
argues that relatively little evidence was presented at trial that
linked him to the Conejos drug operations in Ponce and that the
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evidence presented showed that he played only a minor role.6 To
prove that Rodriguez was part of a drug conspiracy, the government
was required to prove “that a conspiracy existed, that [Rodriguez]
had knowledge of it, and that [Rodriguez] participated voluntarily
in it.” United States v. Famania-Roche, 537 F.3d 71, 78 (1st Cir.
2008). A “conspiratorial agreement may be ‘express or tacit and
may be proved by direct or circumstantial evidence.’” Cruz-
Rodriguez, 541 F.3d at 26 (quoting United States v. Gomez, 255 F.3d
31, 35 (1st Cir. 2001)). The underlying criminal activity of the
conspiracy charged was a violation of § 841(a)(1), which involves
manufacturing, distributing, or dispensing drugs, or possession
with the intent to manufacture, distribute, or dispense drugs.
Rodriguez’s co-defendant, Sigilfredo Rivera-Rubero, who
became a government witness, testified that he first met Rodriguez
during a drug transaction in 1996 or 1997 when he bought marijuana
from Rodriguez. Rivera-Rubero testified that initially, in 1996
and 1997, Rodriguez sold him marijuana in the amount of thirty
pounds every two weeks. Rivera-Rubero described the Conejos drug
organization and identified its members, which included himself,
Rivera, and others. He further testified that beginning in 1999,
he had a business relationship with Rodriguez, selling drugs, and
6
A relatively minor role in a conspiracy, however, does not
preclude a conviction on that charge. See United States v. Flores-
Rivera, 56 F.3d 319, 325 (1st Cir. 1995) (discussing potential
prejudicial effect of evidence in a joint trial of co-
conspirators).
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a social relationship with him. At that time, Rodriguez supplied
cocaine, marijuana, and heroin to Rivera-Rubero, although Rivera-
Rubero also had other suppliers. In addition, Rivera-Rubero
testified that Rodriguez sold drugs to other members of the Conejos
organization. Rodriguez’s wife testified about Rodriguez’s
contacts with Rivera and that Rodriguez called Rivera “Boss.”
“It is not the role of the reviewing court to weigh the
evidence; our role is merely to ensure that some evidence exists to
support sufficiently the jury’s determination.” United States v.
Liranzo, 385 F.3d 66, 70 (1st Cir. 2004) (internal quotation marks
omitted). The evidence is more than sufficient for a rational jury
to find that Rodriguez was part of the Conejos drug trafficking
conspiracy. Rodriguez’s long drug-related relationships with
Rivera-Rubero and Rivera, along with supplying drugs to other
members of the Conejos organization, support a finding that he
knowingly and voluntarily participated in the Conejos drug
organization. Therefore, the evidence was sufficient to sustain
his conspiracy conviction in Criminal Case No. 02-391.
Rodriguez also argues that evidence is lacking to support
his conviction on Count Five in Criminal Case No. 03-284, that he
possessed a weapon in furtherance of a drug trafficking scheme in
violation of § 924(c)(1), and aided and abetted Rivera in doing so,
and on Count Seven, that he was a felon in possession of a firearm,
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in violation of § 922(g)(1).7 He argues that he was only a visitor
at Rivera’s apartment in Cataño where the guns were found. The
government contends that the evidence proved that Rodriguez aided
and abetted Rivera in possessing guns and also that Rodriguez was
in constructive possession of the guns found in the apartment.
Section 922(g)(1), charged in Count Five, requires that
Rodriguez have had knowing possession of the guns.8 “Knowing
possession under § 922(g)(1) can be established by proving that
[Rodriguez] had constructive possession of [the guns]; that is,
that he knowingly had the power and the intention at a given time
of exercising dominion and control over a firearm, directly or
through others.” DeCologero, 530 F.3d at 67 (internal quotation
marks omitted).
In Count Seven, Rodriguez was charged with violation of
§ 924(c)(1) by possessing, in furtherance of drug trafficking, and
aiding and abetting Rivera in possessing the two guns found at the
Cataño apartment when they were arrested. To convict under §
924(c)(1), the government must prove possession of the guns and a
significant nexus between the guns and the drug crime, meaning that
“the firearm facilitates or has the potential to facilitate the
7
The weapons charged in those counts were the guns found at
the Cataño apartment: “a Glock semi automatic pistol, 45 caliber
serial number BZC308, and a Taurus semi-automatic pistol, model
PT92, 9mm. caliber, serial number TLD4401-8D.”
8
Rodriguez does not contest his status as a felon or the
interstate commerce requirement of § 922(g)(1).
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drug trafficking offense.”9 United States v. Roberson, 459 F.3d
39, 48 (1st Cir. 2006), cert. denied, 127 S. Ct. 1261 (2007). 18
U.S.C. § 2 provides that one who aids or abets another in
commission of a crime “is punishable as a principal.”
Constructive possession is shown if Rodriguez knowingly
had the power and intention to exercise “dominion and control over
a firearm directly or through others.” United States v. Sanchez-
Badillo, 540 F.3d 24, 31 (1st Cir. 2008), cert. denied, --- S. Ct.
---, 2009 WL 56548 (Jan. 12, 2009) (internal quotation marks
omitted). “Constructive possession can be joint, does not require
actual ownership of the firearm, and can be established through
circumstantial evidence . . . .” DeCologero, 530 F.3d at 67.
On the other hand, mere presence with or proximity to
weapons or association with another who possesses a weapon are not
enough to prove constructive possession. United States v. Duval,
496 F.3d 64, 78 (1st Cir. 2007), cert. denied, 128 S. Ct. 952 &
128 S. Ct. 2499 (2008); United States v. McLean, 409 F.3d 492, 501
(1st Cir. 2005). Instead, the government must show “some action,
some word, or some conduct that links the individual to the
contraband and indicates that he had some stake in it, some power
over it.” McLean, 409 F.3d at 501 (internal quotation marks
omitted).
9
To the extent that Rodriguez argues that the government
failed to prove that he used a firearm, he misstates the crime with
which he was charged.
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As the S.R.T. officers entered the Cantaño apartment,
they saw Rodriguez walking from the area of the bedroom and saw
Rivera standing in the bedroom doorway, holding a gun. Rivera
closed and locked the bedroom door before the officers could enter.
The officer in charge arranged his personnel around the closed and
locked bedroom door and then kicked the door. Rivera did not
respond immediately, but after several kicks, Rivera opened the
door and was no longer holding the gun. The officers arrested
Rivera and then entered the bedroom where they saw Rodriguez’s
crutch on the bed and found drugs, drug paraphernalia, money, and
two loaded guns - one under a pillow and the other in a box under
the bed. They also found clothes and cell phones.
Based on that evidence, which is taken in the light most
favorable to the guilty verdict, the jury could have found beyond
a reasonable doubt that Rodriguez had been in the bedroom with
Rivera and that Rivera was holding one of the loaded guns when the
officers entered the apartment. Rodriguez, however, was only a
temporary visitor at the apartment, where Rivera was living. He
did not own the apartment or its contents, including the guns. The
government does not contend that any of the clothes, cell phones,
or other property found in the bedroom, other than the crutch,
belonged to Rodriguez. The record includes no evidence that
Rodriguez owned or actually possessed either gun.
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It is not necessary, however, for Rodriguez to have owned
or physically possessed the guns to satisfy the possession
requirements of § 922(g)(1) and § 924(c)(1) because possession may
be constructive. While the evidence shows that Rodriguez was
present in the bedroom with the guns and was near Rivera, who was
seen holding a gun, evidence is lacking to link Rodriguez to the
guns. In the absence of evidence that Rodriguez knowingly
possessed the guns found in Rivera’s bedroom, either actually or
constructively, a reasonable jury could not have found him guilty
of being a felon in possession of a firearm as charged in Count
Seven of Criminal Case No. 03-284. Therefore, Rodriguez’s
conviction and sentence on Count Seven are vacated.
With respect to Count Five, Rodriguez was also charged
with aiding and abetting Rivera to violate § 924(c)(1), possessing
guns in furtherance of a drug crime. A defendant is guilty of
aiding and abetting in a crime if the principal committed a crime,
and “the defendant consciously shared the principal’s knowledge of
the underlying criminal act, and intended to help the principal.”
United States v. Garcia-Carrasquillo, 483 F.3d 124, 130 (1st Cir.
2007). “Again, mere association with the principal or presence at
the scene of the crime is insufficient, even with knowledge that
the crime is to be committed.” Id. Instead, to be guilty as an
aider and abettor in violation of § 924(c)(1), the accomplice must
both know, to a practical certainty, that the principal would
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possess a gun in furtherance of the drug crime and must also
facilitate that possession. United States v. Medina-Roman, 376
F.3d 1, 4-5 (1st Cir. 2004).
Because Rivera was convicted of violating § 924(c)(1),
which was not appealed, it is established that the principal
committed the crime of possessing guns in furtherance of a drug
crime. The evidence at trial supports an inference that Rodriguez
knew Rivera was engaged in criminal activity related to drug
trafficking; indeed, they had a long-standing relationship in the
drug trafficking business.
Evidence was introduced that Rodriguez knew that Rivera
had guns at the Cataño apartment, which were involved in the drug
business. Rodriguez was seen walking from the area of the bedroom,
where Rivera was looking out of the door and holding a gun.
Rodriguez’s crutch was found on the bed in the bedroom. Officers
found the guns hidden in the bedroom, along with drugs, money, and
drug paraphernalia. The proximity of the guns and the drugs
indicates a link between them. Witnesses also testified that
Rivera was always armed. That evidence, taken in the proper light,
could support a jury’s conclusion that Rodriguez knew, to a
practical certainty, that Rivera had a gun or guns and would use a
gun to protect and defend his drug business. Cf. United States v.
Spinney, 65 F.3d 231, 239 (1st Cir. 1995) (finding insufficient
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evidence of knowledge to sustain aiding and abetting conviction
under § 924(c)).
The record offers no evidence, however, that Rodriguez
facilitated Rivera in possessing or using the guns. For example,
the record lacks evidence that Rodriguez bought or supplied the
guns, arranged for their delivery, or assisted in any other respect
in making the guns available for Rivera. See United States v.
Luciano-Mosquera, 63 F.3d 1142, 1150-52 (1st Cir. 1995) (discussing
evidence of knowledge and facilitation sufficient to sustain
conviction of aiding and abetting violation of § 924(c)(1)).
To sustain a conviction for aiding and abetting a
violation of § 924(c)(1), the evidence must be sufficient to show
both that the defendant knew, to a practical certainty, that the
principal would possess a gun in furtherance of the drug crime and
that the defendant facilitated that possession. Medina-Roman, 376
F.3d at 6. Because evidence of facilitation is lacking in this
case, Rodriguez’s conviction and sentence for violating §
924(c)(1), Count Five, are also vacated due to insufficient
evidence.
5. Sentencing
Rodriguez challenges the drug quantities the district
court used in determining his sentence and argues that his
sentences were unreasonable. We review a sentencing court’s
factual findings, including drug quantity calculations, for clear
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error. United States v. Jones, 523 F.3d 31, 40-41 (1st Cir.),
cert. denied, 129 S. Ct. 228 (2008). We review the substantive
reasonableness of a sentence for abuse of discretion. United
States v. Morales-Machuca, 546 F.3d 13, 25 (1st Cir. 2008).
At the sentencing hearing, Rodriguez’s counsel argued
that evidence was lacking to calculate an amount of drugs
attributable to Rodriguez and that, based on testimony at the
suppression hearing, the drugs found at the Cataño apartment
belonged to Rivera and not Rodriguez. The district court ruled
that for purposes of Rodriguez’s sentencing, Rivera’s suppression
hearing testimony was irrelevant and would not be considered.10 The
court relied on the presentence report’s drug quantity
calculations.
The court explained that based on Rivera-Rubero’s trial
testimony, Rodriguez supplied him with approximately thirty pounds
of marijuana on a bi-weekly basis, between 1996 and 1998, for a
total of 978 kilograms. After 1999, Rodriguez supplied Rivera-
Rubero with heroin on many occasions, although Rivera-Rubero also
had other heroin suppliers. The court calculated that Rodriguez
supplied one kilogram per year of heroin from 1999 until January of
2002. When converted to the marijuana equivalent, that amount
totaled 1000 kilograms of marijuana. The court found that the
total amount of drugs found at the Cataño apartment equaled 1930.4
10
Rodriguez does not dispute that ruling on appeal.
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kilograms of marijuana. Adding all of the amounts together, the
court found that Rodriguez’s drug activities involved 5,908.8
kilograms of marijuana.
Rodriguez contends that the drugs found at the Cataño
apartment are not attributable to him and argues that those drugs
should not have been considered in determining his sentence.
Because he was convicted of drug trafficking crimes based on the
drugs found at the Cataño apartment, however, his argument is
without merit. Rodriguez does not otherwise contest the court’s
calculations of the drug quantities, and the record supports the
court’s quantity findings.
Under the Guidelines, a crime involving at least 3,000
kilograms but less than 10,000 kilograms of marijuana yields a base
offense level of 34. Because there were no other adjustments, the
total offense level was also 34. Based on a total offense level of
34 and a criminal history category of II, the advisory guideline
sentencing range was 168 to 210 months. After considering the
factors set forth in § 3553(a), which were addressed in the
presentence report, the court decided that a sentence at the top of
the range was appropriate for Rodriguez. The district court noted
that Rodriguez had physical impairments due to his injuries from a
serious accident, but found that despite his impairments, Rodriguez
continued to be involved in criminal activity.
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The district court followed the sentencing protocol that
we have prescribed. See United States v. Smith, 531 F.3d 109, 111
(1st Cir. 2008). “If the court has calculated the GSR correctly
and has supplied a plausible explanation for the sentence imposed,
we generally defer to the district court’s judgment.” Id. That is
the case here.
B. Rivera’s Appeal
Based on the presentence report calculations and evidence
heard at the sentencing hearing, the district court found that
Rivera’s drug offenses involved more than 30 kilograms of heroin,
which converted to 30,000 kilograms of marijuana. As a result, the
applicable base offense level was determined to be 38. A four-
level enhancement was added because of Rivera’s leadership role in
the offenses, resulting in a total offense level of 42. The court
also found a criminal history category of VI.
Rivera was sentenced to life in prison on Count One of
Criminal Case No. 02-391. In Criminal Case No. 03-284, Rivera was
sentenced to life in prison on Counts One and Three and to terms of
40 years on Count Two, 60 months on Count Four, and 120 months on
Count Six, all such terms to run concurrently. In addition, he was
sentenced to a term of 60 months for his conviction on Count Five
in Criminal Case No. 03-284, which was to be served consecutively
to his other sentences in Criminal Case No. 03-284. Rivera argues
that his sentences were not reasonable, that the drug quantity
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determination was erroneous, and that the court erred in imposing
a four-point adjustment based on his role in the drug operations.
We begin by considering Rivera’s claims of procedural irregularity
before addressing the reasonableness of his sentence.
1. Drug Quantity
At the sentencing hearing, the district court explained
that a government witness, Rivera-Rubero, testified at trial that
he supplied Rivera, for his drug point in Ponce, with two or three
eighths of a kilogram of heroin weekly for the time after Rivera
left prison in September of 1999 until Rivera-Rubero went to jail
in January of 2002. The district court determined that period
included 29 months or 116 weeks. Taking the lesser amount, two
eighths of a kilogram of heroin per week, the district court
calculated that Rivera’s drug transactions as part of the Conejos
conspiracy involved 29 kilograms of heroin. The court added the
1.260 kilograms of heroin found in the Cataño apartment, which
brought the total over 30 kilograms of heroin. Based on Sentencing
Guideline § 2D1.1(a)(3), which refers to the Drug Quantity Table at
subsection (c), 30 kilograms or more of heroin results in a base
offense level of 38.
Rivera argued at the sentencing hearing and argues on
appeal that Rivera-Rubero did not supply heroin to him as regularly
as the court found because Rivera had other suppliers. As the
district court stated at the sentencing hearing, Rivera-Rubero’s
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testimony established that Rivera was buying two to three eighths
of a kilogram of heroin every week during the period between the
end of September of 1999 to January of 2002, although his suppliers
were not always the same. Therefore, Rivera’s argument that
Rivera-Rubero, himself, did not always supply heroin to Rivera does
not change the drug quantity calculation.
The district court’s factual findings as to drug quantity
are reviewed for clear error. Sanchez-Badillo, 540 F.3d at 34.
The district court did not add drug quantities pertaining to the
time Rivera was in prison, as Rivera mistakenly asserts. Instead,
the court explicitly considered only the period of the conspiracy
from the end of September of 1999 until January of 2002. Further,
the drug quantity was calculated using the lesser amount indicated
by the testimony and without considering the other drugs Rivera
sold or possessed. The district court’s drug quantity calculation
was conservative and well-supported by the evidence at trial.
Therefore the drug quantity finding is not clearly erroneous.
2. Leadership Role
Under Sentencing Guidelines § 3B1.1(a), a defendant’s
base offense level is raised by four levels if he “was an organizer
or leader of criminal activity that involved five or more
participants or was otherwise extensive.” “The Guidelines provide
a nonexclusive list of factors to guide the determination of
whether a defendant held a leadership or organizational role.”
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United States v. Ziskind, 491 F.3d 10, 17 (1st Cir. 2007), cert.
denied, 128 S. Ct. 1305 (2008). We review a district court’s
decision to impose an enhancement for clear error. Id.
Rivera argues that he was not the main organizer or
leader of the Conejos conspiracy, particularly because he was in
prison from 1995 to 1999. Instead, he contends, his brother,
Richard, was in charge of their drug points. Rivera also contends
that he did not have five or more subordinates whom he directed or
supervised.
In determining a defendant’s role in the criminal
activity, the court considers, among other things,
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, cmt. 4; see also United States v. Yelaun, 541
F.3d 415, 421 (1st Cir. 2008). Witnesses testified that Rivera and
his brother, Piolo, owned and operated a drug point selling cocaine
and heroin in the Conejos organization after Rivera was released
from prison in 1999.11 As the district court found, testimony at
11
Although Rivera’s brother, Richard, testified that he owned
the drug point and that Rivera was not involved in the drug
business, the jury believed other witnesses about Rivera’s
involvement in criminal activity.
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trial established that more than five co-conspirators were involved
with Rivera at the Conejos drug point. The witnesses’ testimony
established that Rivera made the decisions as to which drug
suppliers he would use for the drug point. Evidence shows that
Rivera ran the drug point and sold drugs from it.
Even if Rivera were subordinate to Richard in the
hierarchy of the conspiracy, that would not negate Rivera’s
leadership role. See United States v. Arango, 508 F.3d 34, 49 (1st
Cir. 2007), cert. denied, 128 S. Ct. 1101 & 128 S. Ct. 1904 (2008);
United States v. Ventura, 353 F.3d 84, 89 (1st Cir. 2003). The
evidence supports the district court’s finding that Rivera had a
leadership role in a criminal activity that involved five or more
participants.
3. Reasonableness
Rivera contends that the presentence report and the
district court treated the Sentencing Guidelines as if they were
mandatory and ignored the factors provided by § 3553(a), resulting
in an unreasonable sentence. In particular, Rivera argues that his
life sentence was greater than necessary, that the court failed to
consider his particular characteristics and history, and that the
four-level enhancement he received for his role in the conspiracy
is unreasonable because other co-conspirators, including his
brother Richard, received only a three-level enhancement.
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We review a sentence for procedural error, including the
district court’s application of § 3553(a), and then consider a
challenge to the substantive reasonableness of a sentence, both of
which are reviewed for an abuse of discretion. Rodriguez, 527 F.3d
at 224. “In considering objections to a sentence’s substantive
reasonableness, we examine the district court’s contemporaneous
oral explanation of the sentence, its near-contemporaneous written
statement of reasons, and what fairly can be gleaned by comparing
what was argued by the parties or proffered in the PSI Report with
what the sentencing court ultimately did.” United States v.
Martin, 520 F.3d 87, 93 (1st Cir. 2008).
Section 3553(a)(6) directs a sentencing court to consider
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” A consideration of sentencing disparities under
that section, however, “aims primarily at the minimization of
disparities among defendants nationally.” Martin, 520 F.3d at 94.
In addition, as the district court noted, Richard and the other co-
conspirators pled guilty, pursuant to plea agreements that
addressed their roles under U.S.S.G. § 3B1.1. Given the material
difference between the defendants who pled guilty pursuant to plea
agreements and Rivera who did not, no disparity in sentencing
occurred in this case that would amount to an abuse of discretion.
See United States v. Brandao, 539 F.3d 44, 65 (1st Cir. 2008).
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Rivera’s counsel argued at the sentencing hearing that
because of Rivera’s young age and a corrupt system that encouraged
illegal drug activity in Ponce, the court should not sentence
Rivera to life in prison. Counsel also argued that Rivera was a
fugitive before he was arrested in September of 2003 based on the
advice of his former counsel. Counsel acknowledged that Rivera’s
“life had been one of crime for many years” and that he had “been
in jail most of his adult life,” but she blamed corruption in the
system for making him a criminal and perpetuating his life of
crime.
After explaining the total offense level, the criminal
history category, and the applicable guideline range of 360 months
to life in prison, the district court stated that the Sentencing
Guidelines were advisory. The court recited the sentencing
considerations provided by § 3553(a). With reference to the
presentence report, which had been addressed extensively during the
sentencing hearing, the court discussed Rivera’s activities in
light of the § 3553(a) considerations. The court found that
although Rivera was young, he had an extensive history of
recidivism, involving both violent crimes and drug crimes. As a
result, the court concluded that a life sentence, the high end of
the advisory guideline range, was appropriate.
The record shows that the district court considered the
§ 3553(a) factors and imposed a reasonable sentence after
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considering Rivera’s particular circumstances. The court did not
abuse is discretion.
III.
For the foregoing reasons, Rivera’s sentence is
affirmed. Rodriguez’s convictions and sentences are affirmed as to
Criminal Case No. 02-391 and Counts One, Two, Three, and Four of
Criminal Case No. 03-284. Rodriguez’s convictions and sentences on
Counts Five and Seven in Criminal Case No. 03-284, however, are
vacated. The case is remanded for proceedings not inconsistent
with this opinion.12
Affirmed in part, and Vacated and Remanded in part.
12
We note that the judgment entered as to Rodriguez in Criminal
Case No. 02-391 suggested that the sentence entered in that case
was to be served consecutively to the sentence entered on Count
Five in Criminal Case No. 03-284. Entry of amended judgments will
correct that potentially ambiguous statement.
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