United States v. Flores-De-Jesus

United States Court of Appeals
For the First Circuit

Nos. 06-2670
06-2671
06-2672

UNITED STATES OF AMERICA,

Appellee,

v.

SAÚL FLORES-DE-JESÚS,
DANIEL FELICIANO-RODRÍGUEZ,
and RAFAEL SABINO-MORALES,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and DiClerico,* District Judge.

Edward J. O'Brien for appellant Flores-de-Jesús.
Luis R. Rivera González for appellant Feliciano-Rodríguez.
Irma R. Valldejuli for appellant Sabino-Morales.
Vernon B. Miles, Assistant United States Attorney, with whom
Rosa E. Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
German A. Rieckehoff, Assistant United States Attorney, were on
brief, for appellee.

June 18, 2009

*
Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. This case requires us to assess

the propriety of the government's use of a law enforcement officer

as the first witness in a multi-defendant drug prosecution to

provide an "overview" of the prosecution's case. While we have

condemned aspects of this practice before, most notably in United

States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must

regrettably revisit the overview witness issue in some detail

because of the abuse of that practice in this case and others.

Appellants Saúl Flores-de-Jesús, Rafael Sabino-Morales,

and Daniel Feliciano-Rodríguez were three of twelve co-defendants

charged in a four-count indictment with various crimes related to

a drug trafficking enterprise at a public housing facility in

Trujillo Alto, Puerto Rico. After a jury trial, all three were

convicted of conspiracy to possess with intent to distribute at

least five kilograms of cocaine, in violation of 21 U.S.C. § 846.

Flores-de-Jesús and Sabino-Morales, but not Feliciano-Rodríguez,

were also charged with conspiracy to possess, use, brandish, or

carry firearms in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) and (o), but only Flores-de-Jesús

was convicted on this count. Flores-de-Jesús, Sabino-Morales, and

Feliciano-Rodríguez were sentenced to terms of imprisonment of 235

months, 210 months, and 121 months, respectively.

Two of the appellants, Flores-de-Jesús and Sabino-

Morales, assert a number of evidentiary errors and contend that the

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district court wrongly denied their motions for acquittal pursuant

to Rule 29 of the Federal Rules of Criminal Procedure. All three

raise distinct objections to their sentences. We affirm the

challenged convictions and the sentence imposed upon appellant

Feliciano-Rodríguez. However, because we find that the district

court improperly applied the manager/supervisor enhancement to

defendants Flores-de-Jesús and Sabino-Morales, we vacate their

sentences and remand for resentencing.

I.

Appellants were convicted for their participation in a

conspiracy that operated out of the Nuestra Señora de la Covadonga

public housing development ("Covadonga") in Trujillo Alto, Puerto

Rico. 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." United States v. Rodríguez, 525 F.3d 85, 93 (1st

Cir. 2008) (summarizing facts established at the trial of Wilfredo

Feliciano Rodríguez, one of the leaders of the drug point).

Appellants and nine other individuals were named in a

four-count superseding indictment rendered by a District of Puerto

Rico Grand Jury on March 11, 2004. Count One charged defendants

with conspiracy to possess with intent to distribute, and

conspiracy to distribute, controlled substances in a public housing

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project, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), 846,

and 860. The indictment alleged that the conspiracy involved the

following drugs: five kilograms or more of cocaine, and/or fifty

kilograms of cocaine base (crack), and/or one kilogram or more of

a substance containing a detectable amount of heroin, and/or one

thousand kilograms or more of marijuana. Flores-de-Jesús and

Sabino-Morales were further charged in Count Two of the indictment

with conspiracy to use, carry, or possess a firearm in violation of

18 U.S.C. § 924(c)(1)(A) and 924(o).

According to the indictment, Flores-de-Jesús and Sabino-

Morales assisted the leaders and organizers of the conspiracy in

the administration of the drug-trafficking organization. Flores-

de-Jesús and Sabino-Morales were also classified as

managers/runners, whose role was to "supervise the operations of

the drug points, to obtain the drugs, and to ensure a sufficient

supply of drugs to the point so that there would be continual

distribution." The managers/runners would "receive packaged

narcotics and would deliver them to the sellers for sale at the

drug points. Then the managers/runners would collect the proceeds

derived from the drug sales." Feliciano-Rodríguez was charged as

a seller who "distribute[d] the drugs at various drug points"

within Covadonga. At trial, the majority of the government's

evidence against appellants was presented through three witnesses:

the lead-off witness, Special Agent Anthony Toro Zambrana of the

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Special Investigations Bureau of the Puerto Rico Department of

Justice; confidential informant (CI) Oscar Espada; and cooperating

co-conspirator Omar Medina Torres. Importantly, the government

introduced surveillance videotapes and photographs of various drug

and firearm transactions at the drug point. Also testifying for

the government was an agent involved in an undercover drug purchase

at the drug point, as well as several forensic chemists. The

chemists presented their analyses of drugs obtained during several

controlled purchases at Covadonga, as well as those seized by Agent

Toro from building 32 of the housing project. The jury convicted

all three defendants on the conspiracy charge, but only Flores-de-

Jesús was convicted on the charge of using or brandishing a firearm

in relation to a drug trafficking crime.1

Feliciano-Rodríguez does not challenge his conviction,

but contends that the trial judge failed to correctly compute the

amount of drugs individually attributable to him for sentencing

purposes. Flores-de-Jesús and Sabino-Morales challenge both their

1
Although the jury verdict states that Sabino-Morales was
found guilty only on Count One (the drug conspiracy charge) and not
Count Two (the firearms conspiracy charge), the judgment actually
entered against him states that he was convicted on both counts.
In January 2008, counsel on behalf of Sabino-Morales moved to
correct his sentence because the court had imposed a special
monetary assessment of $200, suggesting that it was imposed for
both counts. The government agreed that it was a clerical error
that should be corrected. On February 11, 2008, the district court
granted Sabino-Morales's motion and stated that "[a]n amended
judgment shall be issued." To date, an amended judgment has not
been docketed. Accordingly, the district court is directed to
enter the appropriate amended judgment as to Sabino-Morales.

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convictions and their sentences on various grounds. Their primary

claim is that their convictions must be reversed because the

district court improperly admitted the testimony of Agent Toro,

whom the government used as a so-called "overview witness." In

order to address that contention and determine whether the

erroneous admission of portions of Agent Toro's testimony requires

a new trial, we first describe the legal principles applicable to

overview witnesses. Next, we recount Agent Toro's testimony in

significant detail because that detail is crucial to our resolution

of the overview witness issue. We then proceed to the harmless

error analysis, where we describe the most significant inculpatory

evidence against these two defendants. Finally, we briefly address

the remaining objections of Flores-de-Jesús and Sabino-Morales to

their convictions before turning to the various sentencing issues

raised by each of the three appellants. Throughout, the facts are

conveyed in the light most favorable to the verdict. United States

v. Avilés-Colón, 536 F.3d 1, 8 (1st Cir. 2008).

II.

A. The Casas Decision

In Casas, we criticized the government's "misguided use"

of a government agent as an overview witness to "map out its case

and to describe the role played by individual defendants." 356

F.3d at 117. In that case, DEA Agent Stoothoff described an

elaborate drug trafficking organization that he said included the

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defendants, and he testified that this organization handled

"specific massive quantities of cocaine and heroin." Id. at 118.

We held that this testimony was "improper," id. at 120-21, and

"fatally flawed" for a number of reasons. Id. at 119. First, the

agent's testimony "went well beyond his personal knowledge," and he

"did not differentiate the testimony that was based on personal

knowledge from other sources of information, often hearsay." Id.

at 118-19. Second, instead of "present[ing] testimony about the

characteristics of large-scale drug organizations in general," he

"essentially testified that each of the defendants was guilty of

the conspiracy charged." Id. at 119. This was particularly

troubling because there was

no indication that Agent Stoothoff's
conclusions that the defendants were members
of the drug organization were even based on
testimony that was eventually presented at
trial and could be evaluated by the jury
. . . . In fact, Agent Stoothoff's testimony
was likely, at least in part, based on the
statements of a witness that the government
chose not to call at trial; the record shows
that the purported leader of the conspiracy,
Israel Perez-Delgado, cooperated with the
government and provided information. But
Israel Perez-Delgado did not testify. The
defendants had no chance to cross-examine him,
did not know what he had said to the
government, and had no basis to challenge a
conclusion drawn from what he had said.

Id.

Casas identified three characteristics of overview

testimony that make it "inherently problematic." Id. First, "such

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testimony raises the very real specter that the jury verdict could

be influenced by statements of fact or credibility assessments .

. . not in evidence." Id. Second, "there is . . . the possibility

that later testimony might be different than what the overview

witness assumed." Id. at 119-20. Finally, "[o]verview testimony

by government agents is especially problematic because juries may

place greater weight on evidence perceived to have the imprimatur

of the government." Id. at 120.

Unfortunately, prosecutors from the United States

Attorney's Office for the District of Puerto Rico have not heeded

our warning in Casas. Since that opinion was issued, we have

repeatedly been forced to chide the government for its continued

improper use of overview witnesses despite our admonitions about

this practice.2 Indeed, the government itself must now concede

that portions of Toro's testimony were "precisely the type of

testimony condemned by this Court in United States v. Casas." This

statement is eerily familiar. See Rodríguez, 525 F.3d at 96 ("As

2
See Avilés-Colón, 536 F.3d at 21 n.13 ("It is troubling to
us that the government's use of the overview testimony indicates an
unawareness of our decision in Casas."); Rodríguez, 525 F.3d at 95
("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 also United States v. Casas, 425 F.3d 23,
50-51 (1st Cir. 2005) ("Casas II") (criticizing government for
improper use of overview testimony, though trial was held before
Casas was published); United States v. García-Morales, 382 F.3d 12,
16-17 (1st Cir. 2004) (same).

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the Government concedes, Agent Toro's statement . . . was precisely

the sort of improper overview testimony from a case agent that we

have condemned.")3 This regrettable history requires us to address

once again the problematic nature of overview testimony and to

clarify the limited scope of its proper use.

B. Legal Principles Concerning Overview Witnesses

1. The imprimatur problem

The problem with overview testimony is obvious if the

evidence promised by the overview witness never materializes; we

repeat our condemnation of the use of overview witnesses in such

circumstances. However, even if all of the overview testimony is

corroborated during the course of the trial, there is still the

problem with such testimony that was identified in Casas:

"[o]verview 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

120; see also United States v. Garcia, 413 F.3d 201, 214 (2d Cir.

2005) (noting that even if the testimony of an overview witness

does prove to be "a summary of later-admitted evidence, it is

3
The behavior of the U.S. Attorney's Office in Puerto Rico is
particularly troubling because it is not the first time that
numerous warnings from this court have gone unheeded. See United
States v. Martínez–Medina, 279 F.3d 105, 127-28 & n.12 (1st Cir.
2002) (Torruella, J., concurring) (describing our repeated
admonishments, made over the course of fifteen years, to
prosecutors in Puerto Rico concerning improper statements in
closing arguments).

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"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'" and that "[t]he law already provides

an adequate vehicle for the government to 'help' the jury gain an

overview of anticipated evidence as well as a preview of its theory

of each defendant's culpability: the opening statement") (quoting

6 Jack B. Weinstein, Weinstein's Federal Evidence § 1006.04[3]);

Avilés-Colón, 536 F.3d at 21 n.13 (expressing concern about the use

of a government agent "to endorse the testimony of other witnesses,

who testify from personal knowledge about the involvement of the

defendant in the conspiracy, and thereby add the imprimatur of the

government to those witnesses' testimony"). The overview testimony

of a law enforcement official is not simply a repetition (at best)

of other evidence. It is also, in effect, an endorsement of the

veracity of the testimony that will follow. Garcia, 413 F.3d at

213 (noting that an overview witness did more than simply summarize

the trial testimony; in addition, he "told the jury that . . . an

experienced DEA agent[] had determined, based on the total

investigation of the charged crimes, that [the defendant] was a

culpable member of the conspiracy").

We prohibit this endorsement when it takes the form of a

prosecutor affirming a personal belief in the veracity of a

government witness. That practice is called vouching, and it is

prohibited "because of its potential to shore up a witness's

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credibility by putting the prestige of the United States behind him

and thereby inviting the jury to find guilt on some basis other

than the evidence presented at trial." United States v. Vazquez-

Botet, 532 F.3d 37, 53 (1st Cir. 2008); see also United States v.

Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003) ("A prosecutor improperly

vouches for a witness when she places the prestige of her office

behind the government's case by, say, imparting her personal belief

in a witness's veracity or implying that the jury should credit the

prosecution's evidence simply because the government can be

trusted."). In our view, there is no meaningful difference between

the endorsement of credibility offered by the government's overview

witness and the endorsement offered by the vouching prosecutor.

Indeed, Casas itself raised the comparison between overview

testimony and vouching by citing to Perez-Ruiz after observing that

overview testimony by government agents is especially problematic

because of the effect on juries of "evidence perceived to have the

imprimatur of the government." Casas, 356 F.3d at 120.

The problematic nature of overview testimony (even when

the testimony accurately anticipates the testimony of subsequent

witnesses) is further confirmed by the cautious approach that

courts have taken to so-called "summary witnesses," who testify at

the end of the government's case instead of the beginning. The

testimony of a "summary witness" must, by definition, be completely

consistent with the other evidence introduced at trial. United

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States v. Stierhoff, 549 F.3d 19, 28 (1st Cir. 2008). Still,

courts have allowed such witnesses only in limited circumstances.

For example, in United States v. Fullwood, 342 F.3d 409, 413 (5th

Cir. 2003), the Fifth Circuit endorsed the limited use of summary

witnesses in complex cases, but also recognized the inherent

dangers of such testimony where an agent had been "allowed, without

justification, to simply recap substantial portions of the

Government's case-in-chief." Collecting cases, the court

identified several of these potential dangers, including the fact

that the practice unfairly allowed a prosecution witness merely to

repeat the testimony of another, and the possibility that the

credibility of the summary witness may be substituted for the

credibility of the evidence summarized. Id. at 413-14. Other

courts have admitted summary testimony only in the most complicated

of cases, and only where the potential prejudice is minimized

through the use of procedural safeguards such as limiting

instructions and extensive cross-examination. See, e.g., United

States v. Ray, 370 F.3d 1039, 1046-47 (10th Cir. 2004)4 (twenty-

three day drug conspiracy trial with over fifty witnesses); United

States v. Johnson, 54 F.3d 1150, 1161 (4th Cir. 1995).

4
Although Ray was reversed and remanded in the aftermath of
United States v. Booker, 543 U.S. 220 (2005), see Ray v. United
States, 543 U.S. 1109 (2005), the Tenth Circuit later reinstated
all non-sentencing portions of its original opinion. United States
v. Ray, 147 Fed. App'x 32, 34 (10th Cir. 2005).

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 The reluctance of courts to allow the government an

additional opportunity to present its case in a tidy package at the

end of its presentation of evidence, even when the summary evidence

is, by definition, completely consistent with the rest of the trial

record, confirms that the imprimatur problem with such repetitive

testimony is inescapable whether that testimony comes at the

beginning or end of the government's case. There is no

justification for presenting an overview witness who simply

anticipates the testimony of other government witnesses, even if he

does so accurately. However, as we shall explain, there may still

be value and legitimacy in government overview testimony that

serves a different purpose.

2. Summary of the case vs. summary of the investigation

There may be value in having a case agent describe the

course of his investigation in order to set the stage for the

testimony to come about the nature of the conspiracy and the

defendants involved. Indeed, in considering a defendant's

challenge to the testimony of an IRS agent, we have explicitly

distinguished between the kind of "overview" testimony that we

described in Casas and an agent's "description of his

investigation" into the defendant's activities, which is based on

personal knowledge. United States v. Hall, 434 F.3d 42, 57 (1st

Cir. 2006). The officer's testimony, if properly limited to

"constructing the sequence of events in the investigation," could

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be valuable to "provide background information and to explain how

and why the agents even came to be involved with th[e] particular

defendant." United States v. Goosby, 523 F.3d 632, 638 (6th Cir.

2008) (quotation marks and citation omitted).

Absent a basis in personal knowledge, however, the

overview witness may not offer substantive testimony about the

nature of the conspiracy or the involvement of particular

defendants. When a law enforcement witness "express[es] opinions

as to defendants' culpability based on the totality of information

gathered in the course of their investigation[]," Garcia, 413 F.3d

at 211, these conclusory statements often involve impermissible lay

opinion testimony, without any basis in personal knowledge, about

the role of the defendant in the conspiracy. Id. at 211-13; Fed.

R. Evid. 701.

Additionally, such overview testimony may have serious

Crawford/Confrontation Clause implications. In Crawford v.

Washington, 541 U.S. 36 (2004), the Supreme Court held that a

declarant's "testimonial" out-of-court statement is inadmissible

under the Confrontation Clause unless "(1) the declarant testifies

. . . or (2) the defendant had a prior opportunity for cross

examination and the declarant is unavailable . . . or (3) the

evidence is admitted for purposes other than establishing the truth

of the matter asserted." United States v. Maher, 454 F.3d 13, 19-

20 (1st Cir. 2006). Therefore, "[p]ost-Crawford, the admission of

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non-testifying informants' out-of-court testimonial statements,

through the testimony of police officers, is a recurring issue in

the courts of appeals." Id. at 19. Overview testimony frequently

reflects reliance on the statements of non-testifying informants,

who implicate the defendants in criminal activity. The problematic

nature of such testimony is self-evident. Finally, and more

generally, such overview testimony is almost certain to be rife

with hearsay. Rodríguez, 525 F.3d at 96 (overview testimony also

"constituted improper hearsay testimony"). While the subsequent

trial testimony of the out-of-court declarant resolves the Crawford

issue, which is based on the Confrontation Clause, it does not cure

the hearsay problem more generally.

3. The intersection of overview and expert testimony

Delineating the boundaries of acceptable overview

testimony becomes even more complicated when the "overview" witness

is also qualified as an expert. Overview witness testimony is

normally limited by the rule that lay opinion testimony is

admissible only if it is 1) not grounded in scientific or

specialized knowledge but "rationally based on the perception of

the witness," and 2) helpful to the jury in acquiring a "clear

understanding of the witness's testimony or the determination of a

fact in issue." Fed. R. Evid. 701. In contrast, the Federal Rules

permit experts to provide opinions so long as "(1) the testimony is

based upon sufficient facts or data, (2) the testimony is the

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product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the

case." Fed. R. Evid. 702. Experts, unlike lay witnesses, may base

their opinions on facts or data that need not be admissible, as

long as these facts are "of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences

upon the subject." Fed. R. Evid. 703. Facts or data that are

otherwise inadmissible are not to be disclosed to the jury unless

the court determines that their "probative value in assisting the

jury to evaluate the expert's opinion substantially outweighs their

prejudicial effect." Id.

The Casas court thus appropriately noted that "expert

witnesses have leeway other witnesses do not," although the

government had never sought in Casas to qualify Stoothoff as an

expert, and, "[m]ore fundamentally, . . . Agent Stoothoff's

testimony that particular persons were members of the conspiracy

was not an appropriate subject for expert testimony. It was not in

any way linked to the 'specialized knowledge' that Rule 702

requires." Casas, 356 F.3d at 120; see also Johnson, 54 F.3d at

1157 ("Rule [703] does not afford the expert unlimited license to

testify or present a chart in a manner that simply summarizes the

testimony of others without first relating that testimony to some

‘specialized knowledge' on the expert's part as required under Rule

702 of the Federal Rules of Evidence."). Thus, as with any other

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witness, courts cannot allow an overview witness to testify as an

"expert" as to matters that are not appropriately the subject of

expert testimony.

On the other hand, we have often allowed expert testimony

regarding the operation of criminal schemes, "[i]n particular,

expert testimony regarding the description of a typical drug

network." García-Morales, 382 F.3d at 18-19 (quotation marks and

citation omitted). Therefore, we have held that, while portions of

an overview witness's testimony were improperly admitted, other

sections of the testimony were acceptable in his capacity as an

expert qualified to describe the structure and operation of a

typical drug conspiracy. Id. at 17-19.

Nevertheless, even appropriate expert testimony under

Rule 702 "may be excluded under Fed. R. Evid. 403 if its probative

value is substantially outweighed by the risk of unfair prejudice

it creates." United States v. Lopez-Lopez, 282 F.3d 1, 15 (1st

Cir. 2002) (quotation marks and citation omitted). While there is

no prohibition against a witness testifying as both an expert and

a fact witness, "courts must be mindful when the same witness

provides both lay and expert testimony," United States v. Upton,

512 F.3d 394, 401 (7th Cir. 2008), because of the heightened

possibility of undue prejudice. The problem is especially acute

where the dual roles of expert and fact witness are filled by a law

enforcement official, in part because "the jury may unduly credit

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the opinion testimony of an investigating officer based on a

perception that the expert was privy to facts about the defendant

not presented at trial." Id. at 401. See also United States v.

Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003) (observing that "the use

of the case agent as an expert increases the likelihood that

inadmissible and prejudicial testimony will be proffered," in part

because when the case agent functions as an expert for the

government, "the government confers upon him the aura of special

reliability and trustworthiness surrounding expert testimony, which

ought to caution its use") (quotation marks and citation omitted);

United States v. Brown, 776 F.2d 397, 401 n.6 (2d Cir. 1985)

(observing that the risk of a jury conflating expert and fact

testimony "is increased when the opinion is given by the very

officers who were in charge of the investigation") (quotation marks

and citation omitted). The law enforcement/overview witness who

testifies as both a fact witness and an expert thus exacerbates the

imprimatur problem we have noted earlier.

C. Agent Toro's Testimony

Agent Toro was on the witness stand for an entire day of

trial. Some of Agent Toro's testimony suffered from the

infirmities that have led us to condemn overview testimony in the

past. Some of his testimony was acceptable. In the discussion

below, we distinguish between the permissible portions of his

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testimony and those portions that were inappropriate under Casas

and its progeny.

1. Background and qualification as an expert

After taking the stand, Agent Toro first explained that

his division, the Special Investigations Unit, was responsible for

investigating organized crime and governmental corruption in Puerto

Rico. Agent Toro testified that he had worked for the Unit for

eleven years and three months. During that time period, he had

been assigned to a federal agency (the Alcohol, Tobacco and

Firearms Agency) for eight and a half years.

Agent Toro's primary job responsibility was conducting

investigations related to drug trafficking and weapons, which often

involved surveillance, interviewing informers, executing search

warrants, seizing contraband, and making arrests. He testified

that he had, in the past, worked undercover at various drug points,

including in public housing projects. Over the course of his

career, he had been involved with more than seventy-five undercover

"transactions" (though he did not himself conduct any undercover

drug purchases at Covadonga) and had, in the past, been qualified

as an expert for two trials involving another public housing

project in Puerto Rico. The government tendered Agent Toro as an

"expert in sales and distribution of illegal narcotics controlled

substances." Although this phrase is ambiguous, the prosecutor

apparently intended that Toro would testify as an expert on the

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structure and typical operation of drug distribution conspiracies

at Puerto Rico housing projects.

During the course of voir dire by defense counsel, Agent

Toro testified that he had received formal training after being

sworn in as an agent through his participation in the Special

Investigations Unit Academy, the Puerto Rico Police Academy,

several trainings with the DEA, and five trainings at the Institute

of Police and Management in Florida. However, he had received no

specific training as to "drug quantities or the amount of

drugs . . . sold in Puerto Rico" or "the movement and amounts of

drugs specifically as to the public housing project known as

Nuestra Señora de Covadonga." Instead, he presented himself as an

expert "based on [his] daily work for the last eleven years and a

half."

At sidebar, the defense attorneys expressed reservations

about Toro's qualifications as an expert. They protested that Toro

should not testify as to the specific drug quantities for which

each defendant was responsible, stating that he had no "factual

basis to be able to form an opinion as to how much drugs were being

sold at a point in Covadonga," much less the amounts attributable

to each defendant. Defense counsel argued that Toro had only

learned about the case by interviewing informants and therefore his

testimony was based on hearsay rather than personal knowledge. The

government, for its part, maintained that Agent Toro's experience

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made him an expert as to the sale and distribution of controlled

substances at drug points in general, and also that in other

aspects of his testimony (presumably as a fact witness,) he would

be testifying about "Covadonga and the drug conspiracy [of] which

he ha[d] direct knowledge." The government also repeatedly assured

defense counsel and the court that Agent Toro would not attribute

specific drug quantities to each defendant, and that he would

instead provide "expert" testimony as to "drug distribution methods

and so forth, of people involved in this type of operation . . .

and how the drug point was run, the different roles within the drug

point and the quantities sold in Covadonga." The court accepted

Agent Toro as an expert over the vigorous objections of all

defendants.

2. Covadonga and drug points generally

Drawing on his expertise and testifying as an expert

witness,5 Agent Toro explained the basic concept of a drug point,

noting that drug points in public housing projects are

strategically chosen so that the drug dealers may avoid arrest.

5
While Agent Toro was qualified as an expert on the typical
operation of drug conspiracies, see García-Morales, 382 F.3d at 18-
19, we are not suggesting that only an expert could properly
provide similar testimony. See, e.g., United States v. Santiago,
560 F.3d 62, 66 (1st Cir. 2009) (observing that testimony about
coded language in drug transactions may be admissible as either lay
or expert testimony); United States v. Pinillos-Prieto, 419 F.3d
61, 71 (1st Cir. 2005) (holding that case agent's testimony
regarding his experience with general operation of drug
conspiracies was permissible lay opinion testimony under Rule 701).

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Next, on the basis of personal knowledge and testifying as a fact

witness, he described the layout of Covadonga itself, including the

entrances and location of a police precinct at the main entrance.

He explained that his office's involvement in the investigation

into Covadonga began when he met with the police commander

responsible for the area. After that meeting, and based on

documents they received from the Puerto Rico police, his Unit

decided to embark on an undercover investigation of the drug point,

which was located in a common area between buildings 10, 11, and 13

of the housing project. Using an aerial photograph, Agent Toro

again described the layout of the project and pointed out the

location of the drug point, the vehicle entrance, an additional

pedestrian exit, and the police precinct. None of this testimony

was problematic.

3. Installation of Oscar Espada and his role in the
investigation

Agent Toro then recounted the reasons for the NIE's

installation of a confidential informant - Oscar Espada - at the

housing project in October 2002. Espada was a professional

photographer who was "introduced into the public housing project to

become known by and make friendship with the persons involved in

the drug point and to collect evidence and information." The

government installed him in a second-floor apartment in building

13, which overlooked the suspected drug point. From that location,

Espada was able to conduct surveillance of illicit activity in the

-22-
area. Over the course of seven months in 2002 and 2003, he

recorded approximately 70 videotapes documenting the activities at

the drug point. Espada also took still photographs of various drug

and firearm transactions at Covadonga.

Agent Toro appropriately testified that he had watched

Espada's tapes, characterizing them as videos of "people selling

and buying drugs. There will be people with firearms at the drug

points, people collecting money. People counting money. People

delivering drugs." He also permissibly stated, on the basis of his

personal involvement in the investigation, that the agency had

decided to send in Espada to befriend the individuals involved in

the drug trafficking because it was the only way to obtain evidence

about the internal operations of the conspiracy. However, when the

prosecutor asked Toro a question about how Espada was able to make

friends with the conspirators and gain their confidence, defense

counsel objected. In response, the court told the jury that "[t]he

information is based on the information [Espada] gave [Toro]," and

admitted the information conditionally, pending confirmation of

Toro's testimony by Espada.

The judge's instruction to the jury missed the point.

Toro's testimony was unquestionably hearsay. It unnecessarily

anticipated testimony that Espada would give himself. It had the

imprimatur problems we have described. The fact that Espada later

-23-
testified as Toro said he would did not redeem these deficiencies

in Toro's testimony.

4. The shootings at Covadonga

The government asked Agent Toro why Espada's videotaping

stopped in 2003. Despite defendants' protestations, the court

allowed Toro to testify that, following the murder of Luis Osorio,

a/k/a/ "Trompi," one of the leaders of the drug conspiracy, there

was a wave of violence against those who had been associated with

him. Toro explained that Espada had been linked to Trompi and, as

a result, the new owners of the drug point had tried to shoot him

and then set fire to his apartment. Although the source of Toro's

knowledge on these points is unclear, the testimony was not being

offered for the truth of the matter asserted, but rather as an

explanation for the end of the surveillance. Accordingly, it was

not hearsay. Nevertheless, at the defendants' urging, the district

court gave three limiting instructions because of Rule 403

concerns.6

5. Roles in the conspiracy

The most troubling part of Agent Toro's testimony

involved his conclusions about the roles of the defendants in the

6
The court first stated that Toro's testimony was meant to
explain why the surveillance was stopped, and not to imply that
"any of the[] three defendants were connected with any of those
events;" therefore, the jury was to draw no adverse inferences as
to the defendants. Its second and third limiting instructions were
essentially identical.

-24-
conspiracy. He "essentially testified that each of the defendants

was guilty of the conspiracy charged." Casas, 356 F.3d at 119.

Over defendants' objection, and upon receiving the AUSA's assurance

that subsequent witnesses would also testify as to the respective

roles of the co-conspirators, the court allowed Toro to identify by

name and role in the drug conspiracy twenty-five individuals

(including appellants) who, during the course of the video

surveillance, had been "involved in drug distribution activities in

Covadonga." Toro then circled the three defendants' pictures on a

chart that contained the names and photographs of these twenty-five

alleged co-conspirators (the photographs were apparently screen

captures from the videos), stating that Flores-de-Jesús and Sabino

Morales were both sellers and runners, and that Feliciano was a

seller.

The government concedes that this testimony - identifying

the names and roles of the conspiracy members with the use of the

accompanying chart - was "precisely the type of testimony" we

condemned in Casas. This concession was unavoidable. Toro stated

that he had been able to identify the names and roles of the

individuals on the chart using the surveillance videotapes,

information from the company that managed the housing project,

reports from the Puerto Rico police, and information obtained from

-25-
CI Espada. This testimony was not based on Agent Toro's personal

knowledge.7 Most of it was based on inadmissible hearsay.

For example, Toro stated that some of his testimony was

based on information gleaned from interviews with CI Espada. It is

true that defense counsel later had a chance to cross-examine

Espada.8 The fact that Espada confirmed much of Toro's testimony

with respect to the roles of the various defendants is certainly

relevant to the harmless error analysis. Moreover, this

confrontation ensures that there is no Crawford problem with this

aspect of Agent Toro's testimony. Nevertheless, even if

corroborated, the portion of Toro's role testimony that was based

on Espada's statements was still hearsay and squarely raises the

imprimatur issue discussed above. Moreover, neither Espada nor any

other witness corroborated all of Toro's testimony about each co-

conspirator and his role. Finally, to the extent that Toro's role

testimony was based on police reports and information from the

7
Because of the government's concession with respect to this
testimony, and because Agent Toro did not identify which portions
of his testimony, if any, were based solely on the surveillance
tapes, we need not determine whether a law enforcement officer's
personal viewing of surveillance footage would ever be a
permissible basis for such testimony.
8
This situation contrasts with Casas, where we specifically
noted that Agent Stoothoff's testimony was likely based on the
testimony of a cooperating co-conspirator whom the government chose
not to call at trial. Casas, 356 F.3d at 119. This scenario was
particularly problematic because "t[]he defendants had no chance to
cross-examine him, did not know what he had said to the government,
and had no basis to challenge a conclusion drawn from what he had
said." Id.

-26-
manager of the housing project that were never admitted into

evidence, it was improper yet again on hearsay grounds.9

6. Seizure of drugs from Covadonga

Agent Toro then appropriately testified as a fact witness

that on July 1, 2003, he seized heroin, marijuana, and crack from

a vacant apartment on the first floor of building 32 of the housing

project. He later permissibly provided a detailed description of

the kinds (and quantities) of drugs and drug paraphenalia that were

recovered in the specific seizure in which he had participated; he

also identified some of these items, which were introduced by the

prosecution as physical evidence, along with several photographs of

other materials confiscated during the seizure.

7. Testimony about stash houses

Stepping back from the specific raid at Covadonga, Toro

properly explained to the jury, based on "[his] training and

experience as a law enforcement officer," (i.e., in his expert

9
Just before Toro began listing the co-conspirators and
identifying their roles, the trial court asked the government
whether it planned to introduce evidence to corroborate his
testimony. After the government answered in the affirmative, the
court stated to the jury that "[Toro's testimony] will be taken by
the jury as something [that was] related to him." We cannot be
sure what the trial judge was trying to convey to the jury with
this statement. Perhaps he was reminding the jury that Toro
obtained the information and conclusions to which he was about to
testify from other sources, and thus that this evidence was not
based on personal knowledge. Accordingly, the jury could have
inferred that they should not give the testimony as much weight as
they otherwise would have given it. Whatever the purpose of the
judge's instruction, it does not avoid the error in allowing Toro
to give a preview of the testimony of other witnesses.

-27-
capacity), that large quantities of drugs intended for sale at a

drug point are often stored in a remote location so that if the

police arrived at the location where the drugs were sold, they

would only be able to seize a small quantity of the product.

However, Toro then added that there were other stash houses in

Covadonga where drugs were kept (besides the location from which he

had seized the drugs). Upon defendants' objection, the government

inquired as to the basis for his knowledge of the stash houses.

Although Toro responded that he had obtained this information from

"[r]eports from the Puerto Rico Police and information from the

informant," thereby exposing the impropriety of his testimony on

this topic, the court did not strike the testimony from the record.

This ruling was erroneous.

8. Drug quantities and drug sales at Covadonga

The prosecutor asked Agent Toro this question: "Based on

the investigation and based on all of your training and experience

as a law enforcement officer, approximately how much cocaine was

being sold in Covadonga between the years 2002 until [the end of

the investigation in 2003]?" Toro responded with estimates of the

amounts of cocaine, crack, heroin, and marijuana sold monthly

during that time period, stating that his estimates had been

arrived at "using the videos and interview of witnesses and

reports." The government concedes that this drug quantity

testimony was impermissible under Casas.

-28-
 In Casas, part of the overview testimony we found

inappropriate was testimony "that the organization handled specific

massive quantities of cocaine and heroin." 356 F.3d 118. That

statement may account for the government's concession that Agent

Toro's drug quantity estimates were inappropriate. Agent Stoothoff

was not testifying as an expert in Casas, and, based on Agent

Toro's testimony that he had arrived at his drug quantity

estimation based on, inter alia, witness interviews and other

reports, it appears that Agent Toro's testimony as to drug quantity

may not have been offered in his expert capacity but rather as a

fact witness. In any event, in light of the government's

concession, this is not an issue that we need decide here.

Moreover, while we accept the government's concession that Toro's

drug quantity testimony was improper under these circumstances, we

do not imply that a properly qualified expert may never offer valid

drug quantity testimony where that testimony comports with the

other requirements for expert testimony under the Federal Rules.

Additionally, we note that because Agent Toro's drug quantity

testimony appears to have been based at least in part on interviews

with individuals who did not testify at trial, such testimony also

has the potential to raise Crawford problems.

D. Summary

Generally, and based on the principles we described in

Part II.B., supra, Agent Toro's testimony was permissible to the

-29-
extent that he was testifying either 1) as a case agent describing

the course of the investigation and events in which he had

personally participated, or 2) as an expert whose testimony

provided background and context on drug conspiracies and

distribution in public housing projects in Puerto Rico. More

specifically, in his capacity as a case agent and fact witness, the

district court properly allowed Agent Toro to testify to: the

general layout and other specific descriptions of Covadonga and the

course of his unit's investigation of the drug point, including the

use of Oscar Espada as an informant and his own visits to the

project and seizure of drugs from the property. As an expert, Toro

properly described the operation of drug points generally,

including the various "roles" typically involved in an intricate

drug conspiracy and the practice of storing drugs intended for

sale, as opposed to immediate distribution, at a remote location

from the drug point itself.

In contrast, the government concedes that Toro's

testimony "identifying the names and roles of the conspiracy

members, the accompanying chart, and his estimates of the amount of

cocaine sold monthly at Covadonga10 - was precisely the type of

testimony condemned by this Court in United States v. Casas."

Specifically, all of Toro's testimony about the role of the

10
We reiterate that we do not foreclose the possibility that
a properly qualified expert could offer appropriate expert
testimony as to drug quantity.

-30-
defendants in the conspiracy that was based on information gathered

from police reports, other documents not introduced into evidence,

and interviews with CI Espada, cooperating co-conspirator Medina

Torres, or other individuals, was hearsay and inappropriate

overview testimony. Even though some of this objectionable

testimony was later repeated by other witnesses, thereby obviating

any potential Crawford problem, the repetition did not validate the

admission of the overview testimony. Later repetition of testimony

by a witness with first-hand knowledge does not eliminate the

hearsay nature of the initial overview testimony. And the

imprimatur problem remains a barrier to such overview testimony,

even if it is repeated -– a problem that is exacerbated by the

agent's dual role as both a fact witness and an expert. Finally,

the repetition is problematic in itself.

As we have already noted, the law enforcement officer

providing the overview testimony is essentially endorsing the

testimony of other witnesses in what can only be viewed as an

attempt by the government to bolster the credibility of those later

witnesses. From the government's point of view, that enhancement

effort may seem particularly critical in these drug cases where so

much of the government's case relies on the often problematic

testimony of confidential informants with unsavory pasts or

cooperating co-defendants with myriad credibility problems.

Although we do not minimize these problems for the government, we

-31-
cannot condone the use of overview witnesses in the impermissible

ways we have described here to overcome those problems. We made

that view clear in Casas. We restate that view here with renewed

emphasis.

Henceforth, there can be no justification in this circuit

for the government's repetition of the errors that we have

identified here in the use of overview testimony in criminal cases.

If somehow prosecutors in the U.S. Attorney's Office in Puerto Rico

did not get the message before about the dangers of such testimony,

they should surely get it now. And they should draw no comfort

from the fact that the harmless error analysis we are now required

to undertake saves these convictions despite the misuse of overview

testimony. The Supreme Court has made clear that we may not vacate

appellants' convictions simply out of indignation at the repeated

failure of the U.S. Attorney's office in Puerto Rico to abide by

the strictures on the use of overview testimony. That is, the

harmless error inquiry may "not be avoided by an assertion of

supervisory power" to "discipline the prosecutors of [a particular]

jurisdiction." United States v. Hasting, 461 U.S. 499, 505

(1983).11 Nevertheless, if prosecutors fail to heed our guidance

in the future, they may be referred for sanctions to the Department

11
"Supervisory power to reverse a conviction is not needed as
a remedy when the error to which it is addressed is harmless since
by definition, the conviction would have been obtained
notwithstanding the asserted error." Id. at 506.

-32-
of Justice or to the appropriate Puerto Rico attorney disciplinary

body. See id. at 506 n.5 (stating that such disciplinary sanctions

would be more appropriate remedies for prosecutorial misconduct

where the error is harmless). Such conduct will also subject

government counsel to disciplinary actions before this court. See

Rules of Attorney Disciplinary Enforcement for the Court of Appeals

for the First Circuit, Rule IV (2002) (governing our authority to

sanction an attorney admitted to practice before this court for

misconduct).

E. Harmless Error Analysis

We must now undertake a harmless error analysis in order

to determine whether the erroneous admission of the overview

evidence requires the reversal of appellants' convictions.12

The admission of improper testimony is harmless if it is

"highly probable that the error did not influence the verdict."

Casas, 356 F.3d at 121; see also United States v. Garcia-Ortiz, 528

F.3d 74, 80 (1st Cir. 2008). "The government, not the defendants,

bears the burden of establishing harmlessness." United States v.

Rodriguez-Marrero, 390 F.3d 1, 18 (1st Cir. 2004) (quotation marks

and citation omitted). "There is no bright-line rule" as to how to

properly conduct this inquiry; instead, the

12
Because Flores-de-Jesús and Sabino-Morales properly
preserved their claims of error by repeatedly objecting to Agent
Toro's testimony, there is no question that our review is for
harmless error and not plain error.

-33-
 harmlessness determination 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.

United States v. Sepúlveda, 15 F.3d 1161, 1182 (1st Cir. 1993).

Accordingly, it is impossible to assess whether the improper

admission of portions of Agent Toro's testimony was truly harmless

without engaging in a detailed analysis of the evidence against

each defendant apart from Toro's improper testimony. In so doing,

we must be careful not to conflate the standard for harmlessness

with a sufficiency standard. Here, the appropriate inquiry is not

whether a reasonable jury could have looked at the evidence and

reasonably found defendants guilty, but rather whether it is

"highly probable" that the error did not influence the verdict.

1. Flores-de-Jesús

Flores-de-Jesús was the only defendant to be convicted of

both the drug conspiracy and the firearms conspiracy charges. We

turn first to the evidence regarding the drug conspiracy count.

Trial testimony established that in 2002, the leader of

the drug point, Bebe La Rubia, was murdered after a power struggle,

and the point was taken over by Luis Osorio, a/k/a "Trompi," and

Cristian Villegas, a/k/a "Casi." In 2003, Trompi himself was

murdered and Casi was driven out of the drug point. At this point,

-34-
Wilfredo Feliciano Rodríguez ("Wilfre") and Alex Trujillo assumed

control of the drug point, which they maintained until the

organization was dismantled by a series of arrests in 2004.

Confidential informant Espada testified that two or three

days after he had moved into Covadonga in approximately October

2002, he met Flores-de-Jesús in the stairwell of his building,

where Flores-de-Jesús was selling drugs. Espada told him that he

was a professional photographer who was unemployed and had lost his

equipment, and was badly in need of money to support his family.

Flores-de-Jesús promised to help Espada, and Trompi, one of the

leaders of the drug point at the time, eventually gave Flores-de-

Jesús the money to lend Espada so that he could buy a camera. With

his new camera, Espada would take photographs of some of the

individuals associated with the drug point and then print those

pictures on T-shirts for them. Flores-de-Jesús was the first

person Espada contacted about these photographs, one of which was

introduced into evidence by the government.

As part of his undercover operation, Espada purchased

fifty packages of cocaine from "Casi," who was also one of the

leaders of the drug point at that time (the government later played

a videotape of this transaction). Espada also testified that he

had seen all three defendants associating with Casi, at times when

Casi was "distributing substances and weapons." Espada stated that

Flores-de-Jesús and the others working at the drug point took no

-35-
measures to hide their activities and that drug-related activity

was obvious from the first day he moved into the project. This

account was later corroborated by the testimony of cooperating co-

conspirator Omar Medina Torres, who stated that drugs were being

sold at the point 24 hours a day, "in the open air."

Cooperating co-conspirator Omar Medina Torres stated that

he had known Flores-de-Jesús for most of his life. According to

Medina, Flores-de-Jesús started selling drugs at Covadonga in 2000,

and continued until the time he was arrested. Flores-de-Jesús

would almost always work the shift from 2:00 pm until 9:00 pm, the

same shift that Medina worked. When he first began selling drugs,

Flores-de-Jesús sold "black-vial" crack cocaine, $5 "clown" cocaine

(the clown symbol identified the seller), $20 cocaine, and $5

heroin. These sales were for an individual nicknamed "Surdo."

During this period, Medina estimated that Flores-de-Jesús would

sell 200-300 baggies of clown cocaine and maybe five baggies of the

$20 cocaine during one shift.

Medina stated that, over the history of the drug point,

Flores-de-Jesús sold for several different individuals who changed

with the leadership of the drug point: "Surdo" was first, then

"Trompi," and finally Wilfre Feliciano. During the latter part of

his career, when he was selling for Feliciano, Flores-de-Jesús sold

pink-cap crack, black-vial crack, $5 cocaine, and $5 heroin.

Medina estimated that Flores-de-Jesús could sometimes sell 250-300

-36-
of the black vials of crack, the same amount of pink-cap crack, and

50-150 packages of heroin per shift.

Medina also characterized Flores-de-Jesús as a runner and

a manager. He initially served this role for "Trompi," and ended

up working as a runner/manager for Alex Trujillo and Feliciano when

they took over the drug point. As a runner, Flores-de-Jesús would

stay at the point to see that everything was "running OK." He

would go get more drugs if the supplies at the point were running

low, and he would collect the money from the point and deliver it

to whoever was the owner at the time, first to Trompi, and later to

Alex Trujillo and Wilfre Feliciano. Medina knew this was so

because Flores-de-Jesús often worked during shifts when Medina was

selling drugs at the point. Medina stated that, although he was

the best seller at the drug point, Flores-de-Jesús was the second-

best, and would sell about the same quantities of drugs per shift

as Medina (Medina had already provided extensive testimony on

exactly how much this was).

There were also several videotapes introduced into

evidence that corroborated the testimony of Medina and Espada. A

video taken on December 10, 2002, showed Flores-de-Jesús selling

crack and cocaine and holding bags of drugs, along with Medina and

some of the other alleged members of the conspiracy. Another

recording, dated December 16, 2002, showed Flores-de-Jesús selling

drugs, including cocaine and heroin, near Medina and several other

-37-
co-conspirators. Medina testified at trial that he was upset on

the tape because Flores-de-Jesús was "moving in on him."13 A video

taken December 26, 2002, showed Flores-de-Jesús with two other

conspirators "balancing out the shift," i.e., sorting and

distributing the money earned in a particular shift. Later on that

same day, another runner was seen delivering cocaine to Flores-de-

Jesús, who was selling. Another recording dated December 30, 2002,

again showed Flores-de-Jesús selling cocaine. Medina, Flores-de-

Jesús, and Casi all appeared in a January 3, 2003 video in which

Flores-de-Jesús was conducting a drug sale. Finally, Flores-de-

Jesús was also seen selling drugs and holding a walkie-talkie in a

video dated February 12, 2003.

We contrast the "substantial evidence of [a]ppellant's

guilt" that we have described, which included not only the

testimony of two different witnesses, but numerous video recordings

of Flores-de-Jesús conducting drug transactions over the course of

several months, with the "defense's case [which] was relatively

weak, largely limited to cross-examination of the prosecution's

witnesses." Rodríguez, 525 F.3d at 97. None of the cross-

examination yielded any exculpatory evidence with respect to

Flores-de-Jesús (or, for that matter, any of the defendants).

13
Medina testified that at this time he felt that Flores-de-
Jesús was his competition, and that although they sold drugs
"belonging" to different individuals (with the different "lines" of
drugs designated by the packaging), they were both working for the
same individual, Casi.

-38-
There were no witnesses presented to contradict the government's

evidence respecting defendants' involvement in the conspiracy.

Nevertheless, we acknowledge that the evidence against

Flores-de-Jesús came primarily from a confidential informant and a

cooperating co-defendant. As we have mentioned, testimony from

such individuals is often problematic. Moreover, because Agent

Toro's repetition of such testimony was interspersed with proper

expert testimony, the risk of undue prejudice was higher than it

would have been if he were simply a fact witness for the

government. Therefore, the bolstering of the government's case by

the improper overview testimony of Agent Toro was a significant

part of this trial. It squarely implicates the imprimatur problem

that we noted in Casas and that we discussed at length above.

Although the issue is close, we conclude that the

harmless error analysis saves the government's convictions. The

videotapes played for the jury clearly depicted appellant's

interactions with members of the alleged conspiracy, as well as his

involvement with illegal narcotics. The videotapes corroborate the

testimony of the confidential informant and the cooperating co-

conspirator. That corroboration does not depend on any endorsement

of their testimony by Agent Toro through his overview testimony.

Nor did the government, in closing, refer to Agent Toro's improper

testimony or use it to try to prove their case. In short, on these

facts, we conclude that it is highly probable that the improper

-39-
assertion by Agent Toro - that Flores-de-Jesús was a manager and a

runner in the Covadonga drug conspiracy - was "the same

determination that the jury would have drawn in the absence of the

inadmissible testimony." Casas, 356 F.3d at 122.

There is also enough evidence supporting Flores-de-

Jesús's conviction on the firearms conspiracy charge that we find

it "highly probable" that the erroneous admission of Agent Toro's

testimony did not influence the verdict on this count either.

Espada testified that he occasionally photographed some of the co-

conspirators with weapons. In the photograph of Flores-de-Jesús

and three other alleged members of the drug conspiracy that was

introduced into evidence, one of the other individuals was holding

a weapon. Espada also testified that all three defendants often

saw "Casi" carrying weapons at the point. Additionally, Medina

stated that he frequently saw individuals at the drug point

carrying weapons, and that Flores-de-Jesús was often present at

these times. He explained that "there are always going to be

weapons at a drug point, always . . . that's a drug point." More

specifically, Medina stated that he himself would carry a weapon,

a .38 caliber, while selling drugs at the point, and that all three

defendants had seen him carrying it before. He said that not only

the so-called "enforcers" carry weapons, but "nearly all of [the

conspirators] would [go around] with them" in order to protect the

drug point. Finally, a videotape dated December 16, 2002 showed

-40-
Flores-de-Jesús with a radio (perhaps looking out for police), and

then, more importantly, loading a magazine with a bullet. An April

10, 2003 video showed one of the drug conspiracy's "enforcers" with

a pistol; Flores-de-Jesús was present in the frame.14 Because none

of Agent Toro's improper testimony specifically pertained to

whether Flores-de-Jesús conspired with others to use a firearm in

connection with the drug conspiracy, it is highly probable that the

14
In view of the evidence we have described, we summarily
reject Flores-de-Jesús's claim that he is entitled to a judgment of
acquittal on the firearms conspiracy charge pursuant to Federal
Rule of Criminal Procedure 29. "[C]hallenges to the sufficiency of
the evidence and to the denial of the motion for judgment[] of
acquittal raise a single issue," United States v. Morillo, 158 F.3d
18, 22 (1st Cir. 1998), which we review de novo. United States v.
Thompson, 449 F.3d 267, 275 (1st Cir. 2006). We inquire "whether
the evidence presented at trial, together with all reasonable
inferences and viewed in the light most favorable to the verdict,
would allow a rational jury to establish the defendant's guilt
beyond a reasonable doubt." United States v. Combs, 555 F.3d 60,
65 (1st Cir. 2009). In this case, there is no question that the
evidence we have recounted was sufficient to permit a reasonable
jury to conclude that Flores-de-Jesús was guilty of the charged
offense. He was convicted of conspiring to use, carry, or possess
a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(o). Therefore, the jury did not even need to
find that Flores-de-Jesús himself ever used or possessed a firearm
in furtherance of the drug conspiracy. It would be sufficient to
find that he was part of an agreement to do so. In light of the
testimony we have described, there was ample evidence to allow the
jury to reasonably infer that Flores-de-Jesús had agreed with
"fellow members of the Covadonga drug market to possess guns in
order to provide protection and enforcement for their drug trade."
Rodríguez, 525 F.3d at 104; see also id. at 104-05 (jury could have
inferred such an agreement from Medina's testimony that "drug
owners and sellers regularly carried guns at Covadonga while
dealing in drugs" even absent any direct evidence "showing an
agreement to possess weapons between [defendant] and four [other]
individuals" named in Count Two of the indictment).

-41-
error did not influence the verdict. Indeed, when asked on cross

examination whether he had ever seen Flores-de-Jesús with a weapon

on his person, Toro explicitly stated that he had not.

2. Sabino-Morales

Although Rafael Sabino-Morales was charged with both the

drug conspiracy and firearms conspiracy counts, he was convicted

only of the former. Because the witnesses occasionally made

general statements about all three of the defendants at once, some

of the evidence against Sabino-Morales overlaps with the evidence

we recounted above with respect to Flores-de-Jesús.

We first recall Espada's testimony that all three

defendants had associated with "Casi," one of the leaders of the

conspiracy, while he was "distributing substances and weapons."

Espada had also linked Juan Carlos, the individual who had tried to

kill Espada, with all three defendants.

Medina testified that he had known Sabino-Morales for

almost his whole life. Medina had seen Sabino-Morales "working the

table" a few times, decking cocaine. Sabino-Morales began this

work when Bebe la Rubia was still one of the leaders of the drug

point. On one occasion during that time period, Sabino-Morales

packaged the drugs in his own home. Medina also testified that

when Wilfre Feliciano and Alex Trujillo took over the point in

2003, everyone was scared because of the recent power struggles,

and no one wanted to run drugs. At that point, Sabino-Morales

-42-
began to act as a runner and, in fact, because of the tense

atmosphere, he was the only runner at the point for some period of

time.

As a runner, Sabino-Morales would pick up money from the

sellers, including Medina himself, and bring new supplies of drugs

to the point. Sabino-Morales would run drugs and money to and from

the drug point two to three times a day, every day. On several

occasions, Medina saw the leader of the point, Feliciano, in

Sabino-Morales's apartment.

The video evidence against Sabino-Morales was not as

overwhelming as the recorded evidence against Flores-de-Jesús, but

it provided significant corroboration of the witness testimony. A

video showed that on December 26, 2002, Sabino-Morales gave a

seller marijuana. On April 10, 2003, conspiracy leaders Wilfre

Feliciano and Alex Trujillo appeared in a video at the drug point,

and several minutes later, Sabino-Morales appeared on the tape,

collecting money, and, later, holding a bag of cocaine. Once

again, therefore, we conclude that it is highly probably that the

admission of Toro's improper overview testimony did not influence

the verdict against Sabino-Morales.

However, unlike Flores-de-Jesús, Sabino-Morales also

asserts another, more specific, objection related to Agent Toro's

overview testimony. In addition to his general objections about

the impropriety of the overview testimony, Sabino-Morales further

-43-
challenges his conviction by arguing that the district court erred

by admitting into evidence the drugs that Agent Toro identified as

the ones he seized in building 32. Sabino-Morales asserts that

Agent Toro's testimony was the only evidence linking these drugs to

the conspiracy, and that this was an insufficient foundation for

their admission into evidence.

There was no error in the admission of this testimony.

During Medina's testimony, he identified the drugs seized in

building 32 by their packaging as those sold at the Covadonga drug

point with which he was involved, thereby providing a sufficient,

if belated, basis for their admission. Specifically, Agent Toro

stated that heroin seized in building 32 was decked in aluminum

foil, that marijuana was sold in plastic baggies pressure-sealed

with symbols of marijuana leaves, and that crack was packaged in

vials with different colored lids. Medina confirmed that this was

the manner in which all of these drugs were packaged at Covadonga.

Additionally, Medina was even shown samples of the various drugs

that Agent Toro had previously identified as those that he had

seized in Building 32. Medina specifically identified the "weed

baggies" and vials of crack as the kind used at the drug point, and

also stated that the aluminum packaging containing the heroin was

the same kind used at the drug point, although he stated that a

different color had been used. Accordingly, there was no error in

-44-
admitting these drugs, and we reject Sabino-Morales's challenge to

his conviction on this basis.

III.

Flores-de-Jesús also argues that his convictions should

be set aside because he was unfairly prejudiced by the admission

into evidence of certain testimony about several murders and other

violent episodes at Covadonga. Flores-de-Jesús claims that the

erroneous admission of this testimony cannot be considered

harmless.

The challenged evidence of violence at the housing

project came from several witnesses. We have already recounted

Agent Toro's testimony citing the shootings at Covadonga and the

attempt on Espada's life as the reasons that the video surveillance

was terminated. See supra II.C.4 and n.5. We see no error in the

admission of this testimony. However, CI Espada himself also told

the jury about the attempt on his life in April 2003. As he

described these events in detail, including how he had been forced

to flee the housing complex with his wife and child, he became

visibly emotional. Espada further stated that the individual who

had tried to kill him was associated with the defendants as a

lookout for the point. This individual also distributed drugs.

Additionally, Medina was asked about another individual ("Fredito")

who used to be at Covadonga but was no longer there because he had

been gunned down.

-45-
 Espada's testimony about the shootings and attempts on

his life was cumulative and more detailed than necessary to explain

why the video surveillance had ended, a fact which had already been

established. The admission of that detail was erroneous. Medina's

testimony regarding Fredito was also erroneously admitted. The

government's brief merely notes that this testimony regarding

Fredito "does not implicate the defendants in any way," but makes

no further attempt to explain the relevance of this testimony. In

the absence of any apparent relevance, it was unfairly prejudicial

within the meaning of Rule 403. See Fed. R. Evid. 403. The court

did provide a limiting instruction after Espada's testimony,

stating that "[t]he jury will take note of the fact that there was

an attempt on his life, but it is in no means to be attributed to

the defendants on trial." The court gave a similar limiting

instruction after Medina's testimony: "you have heard testimony

concerning a murder here or someone being gunned down. Under no

circumstances are you to impute that to any of the three defendants

in this case."

In considering the significance of these errors, we note

again the substantial evidence against Flores-de-Jesús that we

recounted in the course of our analysis of the improper overview

testimony. In addition to that substantial evidence, we note the

court's repeated curative instructions, and the fact that the

government, in closing, did not even mention this testimony, let

-46-
alone dwell on it. Under these circumstances, we conclude that it

is highly probable that this erroneously admitted testimony did not

influence the jury's verdict against Flores-de-Jesús. Hence, the

error was harmless.15

IV.

Having affirmed the convictions of Flores-de-Jesús and

Sabino-Morales, we now address each appellant's sentencing

challenges in turn.

A. Flores-de-Jesús

The Presentence Investigation Report (PSR) for Flores-de-

Jesús, the only defendant convicted of both the drug conspiracy and

the firearms conspiracy charges, grouped the two counts together

for a combined base offense level of 32. See U.S.S.G. § 3D1.2(c)

(providing for such grouping where one of the defendant's

convictions "embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guideline applicable

to another of the counts"); U.S.S.G. § 2D1.1 (c)(4) (setting a base

offense level of 32 for a conspiracy to possess with intent to

distribute at least five but less than fifteen kilograms of

cocaine). The PSR then added a two-point enhancement for the

15
We have noted that a combination of multiple errors may have
a cumulative effect that is not harmless. See, e.g., United States
v. Meserve, 271 F.3d 314, 332 (1st Cir. 2001). However, the
defendants have not made this argument on appeal; therefore,
without suggesting that the argument would be meritorious, we do
not consider it.

-47-
possession of a firearm in furtherance of the conspiracy, see

U.S.S.G. § 2D1.1(b)(1), and three points for appellant's role as a

supervisor/manager of criminal activity involving five or more

participants, see U.S.S.G. § 3B1.1(b). The total offense level was

thus 37, which, for someone in appellant's criminal history

category of II, yielded a guidelines sentencing range (GSR) of 235-

293 months.

Flores-de-Jesús timely objected to both enhancements. At

the sentencing hearing, the district court stated that it found

"the three level enhancement [] justified on the basis of the

evidence presented in this case" and, regarding the two level

firearm enhancement, similarly stated that "from what I have seen

here, from the evidence, I believe the enhancement is justified."

The court sentenced Flores-de-Jesús to 235 months imprisonment, the

minimum sentence within the GSR, as well as five years of

supervised release on count one and three years on count two, to be

served concurrently. On appeal, Flores-de-Jesús argues that the

court improperly applied both the three-level upward adjustment for

his role as a manger/supervisor in the drug conspiracy and the two-

level firearms enhancement.

For all of appellants' sentencing challenges, we review

the district court's factual determinations for clear error.

United States v. Pierre, 484 F.3d 75, 88 (1st Cir. 2007). "We will

not find clear error unless on the entire evidence we are left with

-48-
the definite and firm conviction that a mistake has been

committed." United States v. Arbour, 559 F.3d 50, 53 (1st Cir.

2009) (internal quotation marks and citations omitted). However,

we review questions of law in sentencing determinations de novo.

United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).

"A question about whether the evidence is sufficient to support a

particular guideline determination is a question of law and,

therefore, engenders de novo review." Id.

1. The Manager/Supervisor Enhancement

U.S.S.G. § 3B1.1(b) prescribes a three-level enhancement

to the base offense level if "the defendant was a manager or

supervisor . . . and the criminal activity involved five or more

participants or was otherwise extensive." Although the terms

"manager" and "supervisor" are not defined in the Sentencing

Guidelines, the terms are described in U.S.S.G. § 3B1.1 cmt.4 as

involving

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. Soto-Beniquez,

356 F.3d 1, 54 (1st Cir. 2004). Evidence of the defendant's role

in the conspiracy "may be wholly circumstantial," and need only

-49-
show that he "exercised authority or control over another

participant on one occasion." García-Morales, 382 F.3d at 19-20.

"It is not enough, however, that the defendant merely controlled,

organized, or managed criminal activities; rather, he must instead

control, organize, or manage criminal actors." United States v.

Ofray-Campos, 534 F.3d 1, 40 (1st Cir. 2008) (emphasis added).

Flores-de-Jesús argues that there is no evidence that he

ever exercised control over other conspirators, since his role was

"simply to deliver drugs to the point and to collect the money and

to sell." The government contends that the record shows that

Flores-de-Jesús also "oversaw" the drug point to make sure the

operation was running smoothly, and that this oversight included

collecting the money from the sellers and restocking the point when

the drugs sold out. The government claims that this establishes

the requisite supervisory or managerial role. We disagree.

The district court did not make specific findings of fact

pertaining to whether the manager/supervisor enhancement should be

applied to Flores-de-Jesús. Nor does the PSR contain specific

findings of fact on this topic; instead, it merely characterizes

appellant as a "manager/runner" whose job was to "supervise the

operation of the drug point, to obtain the drugs, and to ensure a

sufficient supply of drugs to the point so that there would be

continual distribution." Thus, the PSR, like the government's

brief, merely asserts a connection between drug runners and

-50-
"oversight" of the drug point. This link is not borne out by the

record.

Omar Medina Torres, the sole valid source of the "role"

testimony at trial, was asked: "Other than simply selling drugs,

did Saul Flores de Jesús have any other roles or jobs on the drug

point?" Medina answered that appellant was also a runner and a

manager. The questioning continued:

Q: And as a runner, what was his function or
what were his duties?
A: To stay at the point, to see that
everything was running okay. If anything was
needed, to go get it. To collect the money. .
. .

Q: Who ended up as the manager?
A: "Saulito" Flores.
Q: And as the manager, what did "Saulito" do?
What were his responsibilities?
A: Picking up the money and taking more drugs
to the drug point.
Q: So were these jobs or roles
interchangeable, the roles of runners and
managers?
A: The thing is that you all - - in more
decent words, you all say "manager." But we
others, we guys from the housing project, we
say "runners."

Finally, cross examination yielded the following exchange:

Q: You stated in your direct testimony that
you equate - - that you understand that the
Government equates the term "manager" to that
of what you referred to as "runner."
A: Yes.
Q: That is your understanding.
A: Yes, as a runner.
Q: And the runner's job is simply to go take
drugs to the point whenever their supply is
running down, as well as pick up monies that
would be there to take it back to wherever.

-51-
 A: Yes.

Thus, even though Medina used the word "manager" at trial

to characterize appellant's role in the conspiracy, he used this

term interchangeably with "runner," and his particular choice of

language is not a proper basis for the enhancement. As a runner,

Flores-de-Jesús unquestionably played an essential role in the drug

trafficking operation. But keeping the drug point well-stocked and

collecting the proceeds to deliver to the point's owners or leaders

is insufficient to establish the requisite control over another

criminal actor that our case law requires. See, e.g., Ofray-

Campos, 534 F.3d at 40; Ramos-Paulino, 488 F.3d at 464. "[T]he

record is devoid of any evidence to show that [Flores-de-Jesús]

exercised control over any individual . . . [or] oversaw their

activities." Ofray-Campos, 534 F.3d at 40. Although there is

certainly evidence that Flores-de-Jesús was deeply involved in the

operation of the drug point and that he worked with other

individuals to carry out this purpose, there was nothing to show

that these individuals were his "subordinate[s] in the chain of

command" or that he oversaw their activities. Ramos-Paulino, 488

F.3d at 464. Any argument that Flores-de-Jesús "qualified for the

upward enhancement on the basis of his control over the property,

assets or activities of a criminal organization is squarely

foreclosed" by our precedent. Ofray-Campos, 534 F.3d at 41

-52-
(internal quotation marks and citation omitted). The application

of this enhancement was an error.

2. The Firearms Enhancement

We find no merit in Flores-de-Jesús's other challenge to

his sentence. In order to justify an enhancement under U.S.S.G. §

2D1.1(b)(1), the government must prove by a preponderance of the

evidence that "it was reasonably foreseeable that a co-conspirator

would possess a gun in furtherance of the criminal activity."

Casas, 356 F.3d at 129. The evidence presented at trial included

a photograph and a video of Flores-de-Jesús with co-conspirators

holding weapons, a video of Flores-de-Jesús himself loading a

magazine with a bullet, and Medina's testimony that he, like other

co-conspirators, would consistently carry firearms at the drug

point in order to protect it, and that all three appellants had

seen at least Medina with a weapon. This evidence is more than

sufficient to sustain the imposition of the § 2D1.1(b)(1)

enhancement. We therefore find no error in the application of the

firearm enhancement.

B. Sabino-Morales

After finding appellants guilty on the conspiracy count,

the jury filled out a special verdict form indicating its finding

that the drug conspiracy as a whole involved 5 kilograms or more of

cocaine. On January 9, 2006, the district court ordered a United

States Probation Officer to determine the specific amount of drugs

-53-
attributable to each individual defendant in accordance with this

court's decision in United States v Colón-Solís, 354 F.3d 101 (1st

Cir. 2004). After reviewing the trial transcripts, the probation

officer recommended that Sabino-Morales be held responsible for

86.68 kilograms of cocaine, which would have placed him at a base

offense level of 36.16 However, on October 6, 2006, the district

court ruled that, for sentencing purposes, the amount of drugs it

would attribute to each defendant would be the five kilograms found

by the jury. Accordingly, the PSR for Sabino-Morales started with

a base offense level of 32. He then received the same enhancements

for firearms (two levels) and his role as a manager/supervisor

(three levels) as Flores-de-Jesús, yielding a total offense level

of 37. Because he had no criminal record, however, the GSR was

210-262 months, which was lower than the calculated range for

Flores-de-Jesús. The district court sentenced Sabino-Morales at

the lowest end of the sentencing range (210 months), to be followed

by five years of supervised release.

Sabino-Morales now raises the same argument as Flores-de-

Jesús with respect to the manager/supervisor enhancement. He also

claims that the district court failed to adequately compute the

correct amount of drugs individually attributable to him and that

the sentence he received was disproportionate to the offense

16
A similar computation was made with respect to Flores-de-
Jesús. However, he does not challenge the court's drug quantity
determination.

-54-
charged and to the sentences imposed upon other defendants. We

take each argument in turn.

1. The Manager/Supervisor Enhancement

Our analysis of Sabino-Morales's challenge to the

imposition of this enhancement is no different than his co-

defendant's. At Sabino-Morales's sentencing hearing, the court's

only specific findings regarding this enhancement focused on his

role as a runner. The court was

satisfied from what it has heard and from what
appears in the trial transcripts of this case,
and that has been presented to this court that
certainly it is justified. It believes that a
runner has a supervisory role, otherwise he
would not be able to comply with the duties of
a runner.

Thus, the court based its decision to impose the enhancement on its

understanding of the general responsibilities of drug runners. As

we have already explained, the description of runners offered by

Medina-Torres is insufficient to warrant an enhancement that is

designed for individuals who exercise control over other members of

the organization. The record reveals no other basis on which

Sabino-Morales may have warranted this enhancement. Accordingly,

the enhancement was wrongly applied.

2. The Drug Quantity Computation

"In determining drug quantity for purposes of calculating

a defendant's base offense level under the Guidelines, the

sentencing court may attribute to the defendant 'all reasonably

-55-
foreseeable quantities of contraband that were within the scope of

the criminal activity that he jointly undertook.'" United States

v. Jones, 523 F.3d 31, 41 (1st Cir. 2008) (quoting U.S.S.G. § 1B1.3

cmt. n.2(ii)). Absent "an individualized finding as to drug

amounts attributable to, or foreseeable by" a particular defendant,

a court may not automatically assume that he is responsible for the

total amount attributable to the conspiracy as a whole, Colón-

Solís, 354 F.3d at 102-03. However, "a drug dealer who engages in

criminal activity with others to further their collective interests

may be held liable for the quantities of drugs sold by his

partners, if those sales were a reasonably foreseeable consequence

of the jointly undertaken actions." United States v. Laboy, 351

F.3d 578, 582 (1st Cir. 2003). The government must prove drug

quantity by a preponderance of the evidence, and we "will uphold

the sentencing court's estimate as long as it is reasoned and finds

support in the record." Jones, 523 F.3d at 41.

Sabino-Morales argues that the "most the evidence showed

at trial was that defendant-appellant was a late-joining

conspirator, who worked sporadically and was a runner only for a

certain period of time during 2003." He claims that because there

was no evidence that he continued running drugs into 2004, it was

improper for the district court to include 2004 in the

calculations, and that his sentence reflected the court's improper

-56-
attribution to him individually of the drug amount for which the

entire conspiracy was responsible.

This argument is unavailing. In the first place, the

district court obviously understood the need for individualized

drug quantity determinations pursuant to Colón-Solís, because it

asked the probation office to produce reports with respect to each

defendant. Moreover, at a sentencing proceeding involving counsel

for all defendants, the court heard extensive arguments challenging

these determinations, and explained its position that the evidence

amply supported the fact that each defendant could have reasonably

foreseen that the conspiracy would move at least five kilograms of

cocaine. This determination is supported by the record.

The probation officer's report was based on Medina's

testimony. Medina testified that prior to 2003, Sabino-Morales

would sometimes work the table at Covadonga, decking drugs. In

2003 (on one occasion Medina characterized the date as "mid-2003"),

Sabino-Morales began to act as a runner for Wilfre Feliciano.

Indeed, Sabino-Morales was the conspiracy's only runner for at

least some period of time, meaning that during that time period he

was running drugs "every single day." According to Medina, runners

would bring fresh supplies of drugs to the point up to five times

a day. The cocaine would arrive in packages of one-hundred small

baggies. The report also noted the expert testimony of a forensic

-57-
chemist who stated that it would take approximately 1,759 of the

small baggies of cocaine to equal 1 kilogram.

The probation officer's report on Sabino-Morales

calculated that he was responsible for a total of 86.68 kilograms

of cocaine.17 As we have described, however, the district court did

not adopt the report's calculation. Instead, it used only the more

conservative five kilogram quantity to sentence Sabino-Morales.

The record easily justifies that quantity determination, even on

the most conservative assumptions.

If one credits Sabino-Morales's assertion that he worked

as a runner only during 2003, and assumes that Medina was correct

that Sabino-Morales only began working as a runner in the middle of

that year, and assumes further that Sabino-Morales worked for only

one day a week during that time period and not "every single day,"

these factors would still lead to the conclusion that, during his

time as a drug runner, Sabino-Morales personally handled 7.39

kilograms18 of cocaine. Even this estimate, which certainly gives

17
The PSR described the following calculation: assuming that
Sabino-Morales delivered 100 bags of cocaine at least 5 times per
day, 6 days a week, he would deliver 3,000 bags of cocaine per
week. Multiplying this by the 52 weeks in 2003 would yield 156,000
bags of cocaine. Dividing the 156,000 baggies by the chemist's
estimate of bags/kilogram, this yields the 86.68 kilogram amount.
18
Assuming five deliveries of 100 baggies a day, once a week,
this would mean 500 baggies a week. Multiplied by 26 weeks in 2003,
this equals 13,000 baggies. Divided by 1,759 (the number of
baggies in a kilogram), this yield the conservative estimate of
7.39 kilograms of cocaine.

-58-
Sabino-Morales the benefit of the doubt, is more than the five

kilograms used by the district court for sentencing purposes. And

this figure does not even include the drugs foreseeably handled by

other members of the conspiracy. Accordingly, we find no error in

the district court's determination as to drug quantity with respect

to Sabino-Morales.

3. Proportionality

Sabino-Morales contends that the sentence imposed by the

district court is unreasonable under 18 U.S.C. § 3553(a)(6) in

light of certain sentencing disparities between himself and what he

claims are similarly situated defendants. Specifically, Sabino-

Morales points to the sentences received by the leader of the drug

point, Cristian Villegas (135 months), his assistant (108 months),

an enforcer and four sellers (70 months each), and two more co-

defendants with unspecified roles (57 months each). Sabino-Morales

mechanically compares his 210-month sentence with those of the

other defendants, claiming that the lower sentences imposed upon

individuals who were more "culpabl[e], in need of much more

rehabilitation and [who posed] much more danger to the community"

make the disparities "outrageous and untenable."

We disagree. The key difference between Sabino-Morales

and the co-defendants he cites is that all of them pled guilty. A

defendant who chooses to enter into a plea bargain is not similarly

situated to a defendant who contests the charges against him. See,

-59-
e.g., United States v. Rodríguez, 162 F.3d 135, 152 (1st Cir. 1998)

(plea bargains lead to "sentencing disparity for the defendants who

chose to put the government to its burden in proving its case.

Nevertheless, the law allows the government to do this, even if it

results in sentences of such disparity as would strike many as

unfair"). We do not think it unreasonable that Sabino-Morales was

sentenced to significantly more time than other members of the

conspiracy who chose to plead guilty when his sentence was at the

lowest end of a GSR that was arrived at using an extremely

conservative estimate of drug quantity.

C. Feliciano-Rodríguez

The PSR for Feliciano-Rodríguez began with a base offense

level of 32. The PSR once again noted that, although the probation

officer had attributed 17.74 kilograms of cocaine to Feliciano-

Rodríguez individually, a quantity which would have carried a base

offense level of 34, the court had ruled that it would use the five

kilogram quantity for sentencing purposes. The PSR then

recommended the same two-level firearm enhancement that his co-

defendants had received, but also a two-level decrease pursuant to

U.S.S.G. § 3B1.2(b) because his participation in the conspiracy was

minor. Because of several prior convictions, and because

Feliciano-Rodríguez was on probation when he committed the offense,

he fell into a criminal history category of III. Accordingly, the

PSR computed a GSR of 151-188 months.

-60-
 Feliciano-Rodríguez then moved for a downward departure

based on diminished capacity pursuant to U.S.S.G. § 5K2.13. In

support of this motion, he presented the results of several

psychiatric evaluations. The court determined that a two-level

downward departure was warranted under the circumstances, and,

accordingly, sentenced Feliciano-Rodríguez based on a total offense

level of 32 and a criminal history category of II. The court once

again sentenced appellant to the lower end of the guidelines

sentencing range, which was 121-151 months. He was also sentenced

to five years of supervised release.

Feliciano-Rodríguez's sole claim on appeal is one he

shares with Sabino-Morales: namely, that the district court failed

to adequately compute the correct amount of drugs individually

attributable to him. He argues that the evidence does not support

the district court's decision to attribute five kilograms of

cocaine to him for sentencing purposes. Once again, this argument

fails.

The probation officer's report recounted Medina's

testimony that Feliciano-Rodríguez first became involved in the

conspiracy in 1998. He then acted as a runner for "Toño" until

2001. At this time, he ran crack daily. Starting in 2001, Medina

stated that Feliciano-Rodríguez would sell "any [drug] that might

be available" at the point once or twice a week until he was

arrested in early 2004. Medina testified that Feliciano-Rodríguez

-61-
would sell for 24-hour shifts on Sundays. He also stated that

during one seven-hour shift, a person might sell 200-300 small bags

of cocaine. The probation officer's report used this testimony.

Taking account only of Feliciano-Rodríguez's time as a seller, and

not a runner, the officer arrived at an individualized drug

quantity of 17.74 kilograms of cocaine for Feliciano-Rodríguez.19

Once again, however, the district court used the more

conservative estimate of five kilograms, which was certainly a

reasonable amount to attribute to him. Even assuming that he only

sold for one day a week for one year, this would still put the

amount he himself sold over the five kilograms used by the

sentencing court. Once again, this figure does not even take into

account the amount that Feliciano-Rodríguez could have reasonably

foreseen his co-conspirators selling. We therefore reject

Feliciano-Rodríguez's challenge to the sentence imposed on him by

the district court.

V.

For the foregoing reasons, we affirm the convictions of

both Flores-de-Jesús and Sabino-Morales, but vacate their sentences

and remand for resentencing due to the district court's erroneous

imposition of the manager/supervisor enhancement. However, on

19
The report assumed that Feliciano-Rodríguez sold only on
Sundays, selling 200 bags of cocaine each time. In a year, he
would have sold 10,400 bags, and in three, 31,200. Dividing 31,200
by 1759 bags per kilogram yielded 17.74 kilograms of cocaine.

-62-
remand, we leave open the possibility that the government can cite

evidence in the record not relied upon here, nor apparent to us

from our own review of the record, that would justify the

application of the manager/supervisor enhancement. See Ramos-

Paulino, 488 F.3d 465. With respect to Sabino-Morales, we also

direct the court, in accordance with footnote 1 of this opinion, to

enter an amended judgment that accurately reflects his conviction

on Count One of the indictment only. Feliciano-Rodríguez's

sentence is affirmed.

So ordered.

-63-