United States v. Rivera Calderon

United States Court of Appeals
For the First Circuit
Nos. 05-2650
05-2651
05-2652
05-2839

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ RIVERA CALDERÓN,
JESÚS POMALES-PIZARRO,
LEONARDO RIVERA TORRES,
LUIS ROSARIO-RIVAS,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

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

Laura Maldonado Rodríguez for appellant Leonardo Rivera
Torres.
Saul Roman Santiago for appellant José A. Rivera Calderón.
Rafael Anglada-López for appellant Jesús Pomales-Pizarro.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, District of Massachusetts, for appellant Luis
Daniel Rosario-Rivas.
German A. Rieckehoff, Assistant United States Attorney, with
whom Nelson Pèrez-Sosa, Assistant United States Attorney, Chief,
Appellant Division and Rosa Emilia Rodriguez Velez, United States
Attorney, were on brief, for appellee.

August 26, 2009

*
Of the District of New Hampshire, sitting by designation.
 HOWARD, Circuit Judge. After a thirty-four day trial, a

jury convicted the appellants, Jesús Pomales-Pizarro ("Pomales"),

Luis Daniel Rosario-Rivas ("Rosario"), José A. Rivera Calderón

("Calderón"), and Leonardo Rivera Torres ("Torres"), of conspiring

to possess with the intent to distribute cocaine, cocaine base,

heroin, and marijuana. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

846. They were later sentenced to lengthy prison terms.

The appellants challenge both their convictions and

sentences. They advance a spate of claims in the process, the most

prominent one being a challenge to the sufficiency of the evidence

underlying their convictions. We are not persuaded that any of the

claims justify the granting of relief.
I. Facts

We provide many of the salient facts here, adding more or

elaborating further when discussing particular issues. "Because

the facts stated here are relevant to the appellants' sufficiency

claims, we present them in the light most favorable to the jury's

verdict." United States v. Cruz-Rodríguez, 541 F.3d 19, 25 (1st
Cir. 2008) (citation omitted).

The charged crimes arose from the operation of drug

distribution points in Guaynabo, Puerto Rico. The points were in

operation from 1995 to 2003 in a public housing project. The

eight drug points, which were open twenty-four hours a day, were

all located in La Placida, a square at the center of the project.

Collectively, they offered a buffet of contraband that included

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marijuana, cocaine, crack cocaine, and heroin. The drug points

were controlled by various "point owners," who periodically met

with each other to discuss matters pertaining to the drug

trafficking operation. These discussions addressed a variety of

issues including ownership of points, drug pricing, security, rules

and internal discipline.

Conspiracy members, including some of the point owners,

performed various tasks that facilitated the functioning of the

overall operation. Cookers processed drugs for the point owners.
Runners transferred drugs from the points to the ground-level

sellers who, in turn, sold the drugs to the ground-level customers.

Runners would also relay a portion of the profits from the sales to

the drug point owners. Finally, enforcers protected the network

from various threats and maintained discipline within the network.

To help them perform their roles, enforcers acquired, hid and used

firearms.

After an investigation, which included warrant-based

searches that resulted in the seizure of drugs from the apartments
of appellants Pomales and Calderón, the government obtained a grand

jury indictment. The indictment charged ten individuals, including

the appellants, with conspiring to distribute drugs. The

appellants elected to go to trial and were tried together.

At trial, the government relied predominantly on the

testimony of two cooperating witnesses, Luis Rodriguez Gonzalez

("Rodriguez") and Jesus Rafael Rivera-Santiago ("Santiago"). Both

acknowledged that they were members of the alleged conspiracy. In

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addition to outlining the general structure of the operation,

sketched above, the cooperating witnesses implicated all four

appellants as members of the network.

Both witnesses identified appellant Pomales as the owner

of a crack point. Rodriguez testified that Pomales employed four

people, including Rodriguez himself and appellant Torres, who

cooked cocaine into crack for Pomales.

The cooperating witnesses identified Rosario as

performing, at various times, at least two roles within the network

-- point owner and enforcer. Rodriguez testified that Rosario was

the owner of a cocaine and crack point. Santiago corroborated this

testimony and added that Rosario employed three others, including

Torres, who cooked cocaine into crack for Rosario. With respect to

Rosario's role as an enforcer, Rodriguez testified that Rosario

enforced for himself and for other point owners. In Rosario's

capacity as an enforcer, Santiago testified that Rosario bought and

stored weapons, and indeed killed two people.

Santiago identified Calderón as a point owner,
specializing in marijuana. According to Santiago, Calderón

employed three people as sellers.

Finally, the cooperating witnesses portrayed Torres as a

jack of all trades. Collectively, they testified that Torres

cooked cocaine for Pomales, Rosario and Rodriguez; was a runner for

Pomales and others; was a seller for Santiago; was an enforcer for

Pomales and for others, along with Santiago and Rosario; and

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eventually became a marijuana point owner, employing two people to

sell for him.

The jury found all of the appellants guilty of conspiring

to distribute controlled substances. Challenging the sufficiency

of the evidence, the appellants all filed unsuccessful motions for

judgment of acquittal. See Fed. R. Crim. P. 29(c).
II. Discussion

A. Trial

All four appellants present sufficiency claims. Three of
them also challenge the admission of certain evidence. Although we

might ordinarily consider the admissibility claims up front, for

ease of exposition we first will take up the sufficiency arguments

common to all of the appellants and then address the discrete

admissibility claims. Appellant Pomales also argues that he should

have been tried separately from the other defendants. We address

that claim last.
1. Sufficiency of the Evidence

As each defendant moved for a judgment of acquittal, we
review the sufficiency claims de novo. See United States v.

Jiménez-Torres, 435 F.3d 3, 8 (1st Cir. 2006). We view the

evidence, both direct and circumstantial -- and including all

plausible inferences drawn therefrom -- in the light most favorable

to the verdict. United States v. Fenton, 367 F.3d 14, 18 (1st Cir.

2004). Additionally, we bear in mind that "[c]redibility issues

must be resolved in favor of the verdict." United States v. Pérez-

Ruiz, 353 F.3d 1, 7 (1st Cir. 2003).

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 The appellants were charged with conspiracy to distribute

drugs. To establish that a conspiracy existed, the government had

to prove beyond a reasonable doubt that each defendant knowingly

and voluntarily agreed with others to commit a particular crime.

See Cruz-Rodríguez, 541 F.3d at 26. Such an agreement may be

express or tacit, that is, represented by words or actions, and may

be proved by direct or circumstantial evidence. See United States

v. David, 940 F.2d 722, 733-34 (1st Cir. 1991); see also United

States v. Barnes, 244 F.3d 172, 175 (1st Cir. 2001).
Where, as here, the government has charged multiple

defendants with participation in a single conspiracy, an issue

often arises over whether the evidence established that the

defendants were participants in the single conspiracy charged or

instead established that the defendants were involved in a

conspiracy or conspiracies other than the one charged. See United

States v. Soto-Beníquez, 356 F.3d 1, 18 (1st Cir. 2003). In the

event of a variance in proof, a conviction will be reversed if

there has been "prejudice to the defendant's substantial rights --
that is, when lack of notice regarding the charges deprives the

defendant of his ability to prepare an effective defense and to

avoid surprise at trial." Id. at 27.

Although all of the appellants argue that the evidence

was insufficient to establish their involvement in the single

charged conspiracy, at least two present arguments sounding in

variance, suggesting that the evidence, at best, supports the

existence of multiple, independent drug trafficking conspiracies

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different from the one charged. When such arguments are advanced,

the inquiry ordinarily is, again, one of evidentiary sufficiency.

Pérez-Ruiz, 353 F.3d at 7; United States v. Portela, 167 F.3d 687,

696 (1st Cir. 1999) ("[W]hether a given body of evidence is

indicative of a single conspiracy, multiple conspiracies, or no

conspiracy at all is ordinarily a matter of fact; a jury's

determination in that regard is subject to review only for

evidentiary sufficiency.") (internal quotation marks and citation

omitted). Accordingly, we must ask whether "a rational jury could
have found beyond a reasonable doubt that each defendant joined a

single conspiracy." Portela, 167 F.3d at 696 (emphasis added).
a. Common purpose, interdependence and overlap

In determining whether the proof suffices to establish

the single conspiracy charged, "we ultimately look at the totality

of the evidence." United States v. Mangual-Santiago, 562 F.3d 411,

421 (1st Cir. 2009) (citation omitted). Factors to be considered

in assessing the totality of the evidence include: (1) the

existence of a common purpose, e.g., the distribution of drugs; (2)
interdependence of various elements in the overall plan; and (3)

overlap among the participants. United States v. Escobar-Figueroa,

454 F.3d 40, 48 (1st Cir. 2006).

After reviewing the evidence, we conclude that a

reasonable jury could have convicted each of the appellants of the

single conspiracy charged.

The government introduced evidence, predominately

testimonial, that each of the appellants was a member of a large

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drug distribution network that had the common purpose of selling

drugs for profit. The government's two cooperating witnesses,

Rodriguez and Santiago, identified Pomales, Rosario, Calderón and

Torres as members of the conspiracy. These witnesses testified

that all of the appellants were point owners and that two of them,

Rosario and Torres, performed other roles in the conspiracy as

well.

There was also substantial evidence of the distribution

scheme's interdependence. Interdependence exists where "the
activities of one aspect of the scheme are necessary or

advantageous to the success of another aspect of the scheme."

Mangual-Santiago, 562 F.3d at 422 (citations omitted). Here, there

was evidence that the successful operation of the network depended

in part on agreements reached, and concerted actions taken by, the

drug point owners and their employees. For example, there was

evidence that point owners worked together to maximize profits.

One way they accomplished this goal, both cooperating witnesses

testified, was by setting prices at meetings. Point owners also
maximized profits in another manner -- by influencing competition

within the project. Rodriguez testified that the point owners had

power over point owner membership, observing that before a person

could operate a drug point within the housing project, the

prospective owner had to obtain authorization from the existing

point owners. Corroborating Rodriguez's testimony with an example,

Santiago testified that Rosario acquired a cocaine and crack point

after receiving permission from the other point owners. Operating

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a drug point without clearance, Santiago also testified, could

"cost [a person] his life." This system influenced how much

competition each point owner faced for his particular brand of drug

and thereby allowed participants of the conspiracy oligarchical

freedom from competition.

There was also evidence that the participants acted

interdependently with respect to security at the drug points. In

addition to holding meetings to discuss, inter alia, the protection

of the drug points from "hold-ups," there was testimony that the
point owners actively worked with each other to protect the drug

points from threats. For example, Santiago testified that after

one Wilfredo Sierra-Rosa ("Sierra") threatened to take over

Santiago's, Torres' and Rosario's drug points, Santiago and Rosario

confronted Sierra, and Rosario killed him. See Pérez-Ruiz, 353

F.3d at 7 (concluding that there was no cognizable variance where

evidence showed that the appellant accompanied a self-confessed

member of the conspiracy during a murder committed to further the

interests of the conspiracy).
Also with respect to security, there was testimony that

point owners and their enforcers stored weapons together inside the

project. Santiago testified that Torres, in his role as an

enforcer, stored weapons for Pomales in various places, including

in automobiles which Pomales and Torres had purchased together.

Similarly, Santiago testified that he and Rosario purchased rifles

together to use for security purposes. Santiago further testified

that he and Rosario stored guns and drugs in a Ford Windstar that

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Santiago and Torres had purchased and had customized for the

purpose of secreting weapons and drugs.

Interdependency was also demonstrated by the various

rules established by the participants in the conspiracy. Santiago

testified that, to avoid attracting police attention, the point

owners agreed to prohibit people from stealing drugs within the

project and from bringing stolen cars into the housing project.

Point owners agreed on rules about what types of packaging could be

used for the drugs. Those who failed to follow these rules could
be disciplined. Rodriguez testified that point owners agreed to

discipline out-of-line participants by beating them with a wooden

board or rod. And Santiago testified that if a person was not "in

agreement" with the other participants in the network and did

"something that was incorrect," he "could get shot or his head

bashed in." Both Rodriguez and Santiago testified that a point

owner named Armando Valdes Medina ("Valdes") was told at a meeting

not to sell drugs in a particular type of packaging because that

type of packaging was used by another point owner. After Valdes
failed to follow this directive, Rosario and others murdered

Valdes.

Finally, as to overlap among the participants of the

conspiracy, Santiago testified that Torres cooked crack for

Pomales, Rosario and Rodriguez. Santiago further testified that

Torres stored weapons for Pomales, and also stored weapons with

Rosario and Santiago himself.

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 b. Sufficiency challenges

Each appellant argues that the evidence was insufficient

to establish his involvement in the single charged conspiracy. In

addition to a common assertion that the drug points were operated

independently, three of the appellants also attack specific

purported weaknesses in the proof. Rosario presses the argument

that there was insufficient evidence of interdependency. He

emphasizes that the government failed to show that the participants

explicitly set prices; shared a source of supply and proceeds;
extended credit to each other; or set or controlled working hours.

Torres, Rosario and Calderón argue that the government failed to

produce sufficient evidence of overlap: Torres says that the

government failed to tie him to all of the drug points; Rosario

claims that there was no evidence of a connection between him and

Pomales or between him and Calderón; and Calderón asserts that the

government failed to tie him to any of the other appellants. None

of these arguments is compelling enough to upset the jury's finding

of a single conspiracy.
With respect to Rosario's interdependency challenge, the

government may establish interdependency without proving that the

point owners reached a consensus on all facets of their drug

distribution network or that they organized their network for

maximum operating efficiency. As described above, there was enough

evidence of interdependency to allow a rational jury to conclude

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that a single conspiracy was operating out of the housing project.1

With respect to the ties between the appellants, as we

have said in the past, "each coconspirator need not know of or have

contact with all other members [of the conspiracy], nor must they

know all of the details of the conspiracy or participate in every

act in furtherance of it." United States v. Martínez-Medina, 279

F.3d 105, 113 (1st Cir. 2002). This rule dispatches both Torres'

and Rosario's claims, which amount to requests that the evidence

must establish a direct connection between them and all of the
other participants.

As for Calderón's claim that there was insufficient proof

of a tie between him and any of the other conspirators, there was

evidence of connections to at least three other participants.

First, Calderón and Rosario employed a common seller, an individual

named "Cheo." Second, the government introduced a videotape of

Calderón, Torres and Santiago together at a drug point, where

Calderón and Santiago were counting money. Additionally, the jury

reasonably could have relied on other evidence to link Calderón to
the other appellants and to the conspiracy. Santiago testified

that no one could operate a point within the housing project

without first obtaining the blessing of the other point owners, and

that those who tried to operate a drug point without this approval

1
If more were needed, and we doubt that it is, we also note
that Rosario's suggestion that the government failed to produce
evidence that the point owners set prices for drugs is belied by
the record. When asked on direct examination who "determined the
price" of drugs, Rodriguez testified that it was "the owners." And
when later asked what "type of business" was taken care of at the
meetings of the point owners, Rodriguez mentioned "the prices."

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could be killed. Consistent with this tight control, Santiago

stated that Sierra was murdered when he attempted to gain control

of drug points without approval. Moreover, point owners were

subject to certain rules. Santiago testified that if a point owner

or other participant was not "in agreement" with the others, or

violated certain rules, he could suffer fatal consequences; as

Santiago and Rodriguez both testified, Valdes met that end. Based

on this testimony, a jury could have reasonably inferred that

Calderón, who successfully operated a busy marijuana point within
the project for at least three years, was part of the single

conspiracy charged.

Rosario, Torres, and, to an extent, Calderon, appear to

argue that rather than establishing interdependency and participant

overlap, the evidence established merely that each of them was the

master of his own domain, that each was involved in a separate,

uncharged conspiracy -- with his own runners, sellers, and

enforcers -- to sell a particular brand of drug. In support of

this argument, Rosario in particular notes that Santiago testified
that the points "were always in competition." It is argued that

this testimony suggests that the drug enterprises operating within

the housing project were at odds with each other rather than

unified.

Certainly, the proof would have failed had the evidence

established only that each defendant presided over a cloistered

drug distribution unit that intersected only casually with other

similarly-cloistered units. But, as described above, the

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government presented evidence implicating each of the appellants in

a drug distribution network that was greater than the sum of its

parts. Witnesses testified that a drug point could be operated

within the housing project only with the approval of the other

point owners and that people operating a point without approval

could be and were in fact killed; point owners and their underlings

had to follow certain rules, and a failure to abide by these rules

could and did in fact result in corporal punishment or death; and

participants pooled their efforts with respect to drug pricing,
security and discipline. Because the government introduced

evidence that each of the appellants successfully operated a point

within the housing project, a reasonable jury could have concluded

that they were guilty of the single conspiracy charged. See Pérez-

Ruiz, 353 F.3d at 7 (holding that no variance occurred because

there was sufficient evidence that "appellant's drug point was part

and parcel of the master conspiracy"). As for Santiago's remark

about competition, even if there was some competition between the

points for individual customers, that alone does not detract from
the various ways the appellants conspired together.2 See United

States v. Patrick, 248 F.3d 11, 16, 19-20 (1st Cir. 2001) (finding

the evidence sufficient to convict the defendant for his

involvement in a conspiracy even though the defendant competed with

fellow conspirators for individual customers).

2
We note that there is no other record evidence suggesting
that the point owners were engaged in serious competition (e.g.,
that they took any steps to undercut each others' sales in any
way).

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 In sum, a rational jury could have found beyond a

reasonable doubt that the appellants were guilty of participating

in the charged conspiracy.
2. Evidentiary Rulings

Three of the appellants take issue with certain of the

district court's evidentiary rulings. We examine each of their

arguments in turn.
a. Admission of Santiago's testimony (Torres)

Torres argues that the district court erred when it
allowed Santiago, one of the government's two cooperating

witnesses, to testify. Torres contends that the court should have

excluded Santiago's testimony, because the government committed a

discovery violation when it belatedly disclosed materials to the

defense that related to this testimony.3 Torres alleges that these

delayed disclosures precluded his counsel from adequately

representing him at trial.

We doubt that this delayed disclosure claim has been

preserved, as Torres failed to request a continuance from the trial
judge. See United States v. Van Anh, 523 F.3d 43, 51 (1st Cir.

2008) ("Because the defendants failed to ask for a continuance, we

seriously doubt they have preserved their delayed discovery

claim."); United States v. Smith, 292 F.3d 90, 103-103 (1st Cir.

2002) ("[D]efense counsel must typically request a continuance to

3
Two items were belatedly disclosed: (1) a letter
summarizing Santiago's proposed testimony, disclosed to the defense
four days prior to Santiago's testimony; and (2) Santiago's own
notes of his interviews with federal prosecutors, disclosed to the
defense during Santiago's testimony.

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preserve a claim of prejudice by delayed disclosure of evidence.").

In any event, the district court did not abuse its discretion in

admitting Santiago's testimony.

Where the government is aware of evidence that is

potentially useful to impeach a witness, it must provide that

evidence to the defense in a timely fashion. Id. at 51 n.5 (citing

Giglio v. United States, 405 U.S. 150, 153-54 (1972)). If

disclosure of such evidence is delayed, the delay leads to reversal

if "there is a reasonable probability that, had the evidence been
disclosed to the defense in a timeous manner or had the trial court

given the defense more time to digest it," the outcome of the trial

would have been different. Pérez-Ruiz, 353 F.3d at 8-9 (citing

United States v. Bagley, 473 U.S. 667, 678 (1985)).

Apart from the ultimate question of the probability that

a timely disclosure would have changed the result of the

proceeding, however, we ordinarily require the appellant to first

show that "the delay prevented defense counsel from using the

disclosed material effectively in preparing and presenting the
defendant's case." Van Anh, 523 F.3d at 51; United States v.

Lemmerer, 277 F.3d 579, 587 (1st Cir. 2002). "[T]he defendant must

at a minimum make a prima facie showing of a plausible strategic

option which the delay foreclosed." United States v. Misla-

Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007).

Torres has made no such showing here. Although he

summarily claims that the late disclosure of the evidence prevented

his lawyer from providing effective representation, he has failed

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to identify how it did so. This failure is fatal to his claim.

See United States v. Young, 45 F.3d 1405, 1409 (10th Cir. 1995)

("[A]ppellant's vague assertion that the late disclosure affected

preparation of the defense is not sufficient."). Moreover, we note

that we have held that similar delays did not preclude defense

counsel from using the late-arriving materials effectively. See

Van Anh, 523 at 52 ("It is not surprising that defense counsel

effectively used this evidence [during cross-examination], having

had three days to determine how to best put it to use."); United
States v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir. 1993) (observing

that delayed disclosure did not prevent defense counsel from

effectively preparing and presenting case where counsel received

evidence while the witness was testifying and effectively

incorporated its contents into the cross-examination).
b. Admission of the firearm (Calderón)

At trial, a Puerto Rico police officer testified that he

seized a gun from Calderón. The seizure took place outside of the

housing project. When asked to identify Calderón in court, the
officer identified Pomales instead. The gun was admitted into

evidence over defense objections.

Calderón argues that the court should have excluded the

gun under Rule 403 of the Federal Rules of Evidence because the

firearm's probative value was substantially outweighed by its

unfairly prejudicial impact.4 Fed. R. Evid. 403; United States v.

4
Although appellant Pomales also purports to challenge the
admission of the gun under Rule 403, he fails to develop his
argument in any respect. See United States v. Zannino, 895 F.2d 1,

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Griffin, 524 F.3d 71, 81 (1st Cir. 2008). Calderón minimizes the

relevance of the gun, noting that the government failed to connect

the weapon to the housing project where the alleged conspiracy

operated. He also claims that the court should have considered the

officer's in-court identification of Pomales as the person from

whom the gun was seized as an aggravating factor when conducting

Rule 403's required balancing.

The trial court's decision to admit the weapon is

reviewed for abuse of discretion. United States v. Upton, 559 F.3d
3, 15 (1st Cir. 2009). "[O]nly rarely -- and in extraordinarily

compelling circumstances -- will we, from the vista of a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

effect." United States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)

(internal quotation marks and citation omitted).

The gun clearly was relevant evidence.5 "[I]n drug

trafficking firearms have become 'tools of the trade' and thus are

probative of the existence of a drug conspiracy." United States v.
McGuire, 389 F.3d 225, 230 (1st Cir. 2004) (citations omitted).

Here, the government introduced evidence that the drug distribution

network active at La Placida used guns to further its operation.

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.").
5
"Relevant evidence" is defined as "evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence." Fed. R. Evid. 401.

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Accordingly, that an officer retrieved a gun from a man named José

Rivera Calderón, who was carrying the gun during the life of the

conspiracy and in the vicinity of the housing project, made it

"more probable" that Calderón was a member of this particular

conspiracy. And it was similarly probative of Pomales' connection

to the conspiracy, as the officer identified him in open court as

the person who possessed the gun.

But if the gun was most likely seized from Pomales, as

the officer's in-court identification indicated, then one might
argue that Calderón was unfairly prejudiced by the court's decision

to admit the gun into evidence with his name effectively still

attached to it. Doing so, the argument runs, created a risk that

the jury would convict him of the conspiracy charge based on an

improper basis -- the possession of a deadly weapon. Fed. R. Evid.

403 advisory committee's note ("'Unfair prejudice' within its

context means an undue tendency to suggest decision on an improper

basis.").

But this risk was so small that we cannot say that the
Rule 403 balance weighed in favor of exclusion. The gun was most

clearly associated with Pomales, not Calderón. Given two

opportunities to identify the person who possessed the gun, the

officer identified Pomales both times. Calderón's counsel made a

point to underscore the officer's failure to associate the gun with

his client, noting before the jury that "[the officer] has not been

able to identify [Calderón]." Even the government itself

acknowledged before the jury that the officer had failed to

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identify Calderón as the person from whom the gun was seized. In

fact, the identification problem arguably inured to Calderón's

benefit, as it suggested a weakness in the government's proof

against him.

In any event, any error would be harmless. Fed. R. Crim.

P. 52(a) ("Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded."). As our

sufficiency analysis above indicates, the government introduced

ample evidence of Calderón's involvement in the charged conspiracy.
See United States v. Adams, 375 F.3d 108, 113 (1st Cir. 2004)

("Even if we found a violation of Rule 403, we would regard any

error as harmless because this evidentiary ruling could not have

affected the outcome.") (citation omitted).

c. Admission of murder evidence (Rosario)

The superseding indictment included the murders of Valdes

and Sierra as overt acts undertaken in furtherance of the drug

conspiracy. At trial, the government's cooperating witnesses,

Rodriguez and Santiago, described the murders, implicating Rosario
and others in both of them. In connection with this testimony, the

government introduced photographs of the bodies of the victims,

identification testimony from family members of the victims,

testimony from officers who responded to the scenes of the

shootings, and testimony from pathologists. Prior to this evidence

being admitted, Rosario filed a motion in limine, which the court

denied after a hearing.

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 Rosario argues that the district court erred when it

admitted testimony from Rodriguez and Santiago describing the

murders along with other testimony concerning the murders. His

argument has two parts. First, he contends that the murder

testimony was irrelevant under Rules 401 and 402 of the Federal

Rules of Evidence. In his view, the government failed to establish

that the murders were related to or in furtherance of the charged

conspiracy. Second, and alternatively, he argues that even if the

murder testimony was relevant, the court should have excluded it
because it was unfairly prejudicial under Rule 403. See Fed. R.

Evid. 403. In particular, he argues that the testimony from the

cooperating witnesses, pathologists, firearms examiners and family

members of the victims placed an undue emphasis on the murders.
(1) Relevance

We review the court's relevancy determination, objected

to by Rosario below, for abuse of discretion. United States v.

Wallace, 461 F.3d 15, 28 (1st Cir. 2006). Rosario's Rule 403

claim, however, makes its debut on appeal and we therefore review
it for plain error only.6 Id.

The court did not abuse its discretion in ruling that the

murder evidence was relevant. Each murder was relevant in at least

two respects: (1) to help prove the existence of a single,

6
To satisfy the plain error standard, Rosario "must show an
error that was plain (i.e., obvious and clear under current law),
prejudicial (i.e., affected the outcome of the district court
proceedings), and that seriously impaired the fairness, integrity,
or public reputation of the judicial proceedings." Griffin, 524
F.3d at 76.

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overarching drug conspiracy; and (2) to help prove Rosario's

involvement in that conspiracy.

With respect to the murder of Valdes, Rodriguez testified

that Rosario killed Valdes, who allegedly was a point owner in the

conspiracy, shortly after Valdes refused to adhere to rules about

packaging set by the other point owners. This testimony tended to

show that the point owners made rules that were subsequently

enforced, and therefore helped to establish that a single, cohesive

conspiracy was at work within the housing project. See United
States v. DeCologero, 530 F.3d 36, 54 (1st Cir. 2008) (noting that

a murder was relevant to the RICO conspiracy counts "as it tended

to prove the existence and nature of the RICO enterprise and

conspiracy" (citation omitted)); Soto-Beníquez, 356 F.3d at 32

("The murder furthered the conspiracy by sending the message that

those suspected of stealing from the conspiracy would be treated

harshly.") (citation omitted).

This evidence also helped link Rosario to the conspiracy,

as the jury could infer from the murder that he was enforcing the
conspiracy's directives. See Pérez Ruiz, 353 F.3d at 6-7 (evidence

that the appellant accompanied a conspiracy member during the

assassination of an "apostate drug dealer who had broken [with the

conspiracy]" helped support appellant's conspiracy conviction);

United States v. Rodriguez, 162 F.3d 135, 143 (1st Cir. 1998)

("[Appellant's] violence against a suspected informant is relevant

to prove his membership in the conspiracy and his acceptance of its

objectives.").

-22-
 As for Sierra's murder, Santiago testified that Rosario

shot and killed Sierra because Sierra had threatened to take over

Santiago's, Torres', and Rosario's drug points. The evidence of

this murder helped to establish the existence of a conspiracy in

two ways. First, it showed joint efforts undertaken by co-

conspirators to protect drug territory. See Soto-Beníquez, 356

F.3d at 32 (evidence that a victim was "murdered to protect the

drug territory" was admissible to demonstrate the existence of a

conspiracy). Second, the evidence corroborated the testimony about
concerted discipline: those who attempted to sell drugs without

the approval of the point owners could be killed. Additionally,

similar to the Valdes killing, the murder of Sierra was also

relevant in that it helped establish Rosario's involvement in the

conspiracy, by linking him with fellow accused co-conspirator

Torres and with Santiago, an admitted co-conspirator and

cooperating witness.

Rosario's contention that neither murder was relevant is

unavailing. He begins by broadly challenging the relevance of both
murders, noting that "participation in a drug related murder with

members of a drug conspiracy does not, standing alone, establish

membership in that drug conspiracy." United States v. Garcia-

Torres, 280 F.3d 1 (1st Cir. 2002). We agree. But the government

did not rely on this murder evidence alone to establish Rosario's

membership in the conspiracy. Both Rodriguez and Santiago

testified to Rosario's other conspiratorial activities within the

housing project, including his drug dealing and his efforts to hide

-23-
weapons for security purposes. See Rodriguez, 162 F.3d at 143

("Contrary to [the appellant's] claim, the evidence of the beating

does not stand alone as proof of his membership in the conspiracy

. . . four witnesses testified that they either saw [him] selling

drugs and/or purchased drugs directly from him."). A witness also

placed Rosario at one of the point owner meetings, further

establishing his connection to the conspiracy.

Rosario also attacks the relevance of each murder

independently. He challenges the relevance of the Valdes murder in
two ways. First, he argues that there was no evidence that he was

at the meeting where the point owners told Valdes to stop using a

particular type of packaging. Accordingly, he appears to suggest

that even if he did murder Valdes, that murder cannot be tied to

Valdes' refusal to abide by conspiracy directives.

But a piece of evidence need not conclusively establish

the existence of a fact to be considered relevant. Rather, it need

only have the "tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.

Evid. 401. Here, the point owners ordered Valdes to stop using a

particular type of drug packaging. The government introduced

evidence that, shortly after Valdes' refusal to do so, Rosario

killed him. This evidence made it "more probable" that Rosario was

a member of the conspiracy, as a jury could reasonably infer from

this and other record evidence that Rosario was carrying out the

conspiracy's wishes.

-24-
 Next, Rosario argues that evidence of Valdes' murder was

irrelevant because "absent evidence that the elimination of one

conspirator would increase drug sales or profits, evidence not

present here, no furtherance of the group objective was shown."

The murder of Valdes, however, sent a message that rules set by the

conspiracy would be enforced. Sending such a message would have

been in the conspiracy's economic interests given that some of its

rules, e.g., those dealing with pricing and brand protection,

directly influenced profits.
Rosario's challenge to the relevance of the Sierra murder

is even less substantial. First, he suggests that Sierra's murder

might be irrelevant because during voir dire Santiago testified

that Rosario may have had another reason for wanting to kill

Sierra, that Sierra's brother had been disrespectful to Rosario's

wife. But Santiago identified that motive as an additional reason

that Rosario wanted Sierra dead (in addition to the threat Sierra

posed to Rosario's, Santiago's and Torres' drug points). That

Rosario may have had another reason for killing Sierra that was
unrelated to the furtherance of the conspiracy's objectives went to

the weight rather than to the relevance of the evidence. See

United States v. Rose, 104 F.3d 1408, 1413 (1st Cir. 1997). Next,

Rosario argues that the murder of Sierra, an outsider who had

threatened to take over the points of conspiracy members, could not

have furthered the objectives of the conspiracy. This argument is

a non-starter. As a potential competitor, Sierra posed an obvious

threat to the conspiracy's economic interests.

-25-
 (2) Prejudice

Of course, under Rule 403 relevant evidence "may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice." Fed. R. Evid. 403.7 Rosario makes an

extended Rule 403 argument on appeal. He begins by minimizing the

probative value of the murders, noting that the government did not

charge him or any of the other appellants with murder. He then

argues that the extensive testimony about the murders, elicited

from a number of witnesses, placed an unnecessary and prejudicial
focus on the murders.

Before considering Rosario's Rule 403 argument, we note

what he does not argue. At trial, the court admitted murder scene

photographs depicting the bodies of Valdes and Sierra. These

photographs, especially two in particular, were graphic. When the

photographs of the bodies were admitted, Rosario's counsel

explicitly preserved a Rule 403 objection, which Rosario makes note

of in the fact section of his opening brief.

On appeal, Rosario has waived any argument that the
admission of the photographs caused him unfair prejudice. See

Zannino, 895 F.2d at 17. In developing his Rule 403 argument,

Rosario makes no mention of the photographs. Instead, he focuses

on the testimony elicited from the cooperating witnesses and

7
The rule states in its entirety: "Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence."

-26-
others.8 Moreover, Rosario makes it clear that the Rule 403

argument he presents on appeal is governed by the plain error

standard of review, further indicating that he has abandoned his

preserved objection to the photographs which would have been

reviewed for abuse of discretion. Rosario's reply brief offers

little more. There, he states that he was unduly prejudiced by

"the government's presentation of testimony from family members,

pathologists and firearms examiners as well as some of the

photographs introduced." (emphasis added). Even putting aside
that an argument cannot make its first appearance in a reply brief,

the argument is not sufficiently developed in any event. The reply

brief does not identify which pictures he is referencing and how

they had the capacity to unfairly prejudice him.

What remains is Rosario's challenge to the testimony

about the murders. With respect to the testimony from the

cooperating witnesses, there was no error, much less plain error.

Although none of the defendants was individually charged with the

murders, the murders were relevant to the conspiracy charges
brought against Rosario and the other appellants, and not

marginally so, as Rosario would have us believe. As previously

noted, the murders were charged as overt acts in furtherance of the

conspiracy and helped establish not only the existence of a

8
Rosario's argument heading is illustrative: "The Emphasis
on the Shootings, Overt Acts Rather Than Elements of the Offense,
Through the Testimony of Not Only Percipient Witnesses But
Pathologists, Police and a Family Member, Was Unfairly Prejudicial;
the Admission of the Unnecessary Testimony Was Plainly Erroneous."
(emphasis added).

-27-
conspiracy but also Rosario's connection to it. Moreover, the

testimonial accounts of the murders do not appear to have been

calculated to arouse the passions of the jury. Both Rodriguez and

Santiago described the murders matter-of-factly, stating that the

men were shot but leaving out graphic details. C.f. United States

v. Portillo-Quezada, 469 F.3d 1345, 1354 (10th Cir. 2006) (holding

that the court did not abuse its discretion in allowing partly

"graphic" testimony about the conspiracy defendant's uncharged

murder of a victim). And although the discussion of murder at any
level of detail was bound to leave an impression on the jury,

"trials were never meant to be antiseptic affairs; it is only

unfair prejudice, not prejudice per se, against which Rule 403

guards." Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d

1364, 1372 (1st Cir. 1991).

A somewhat closer question is presented by the court's

admission of the other murder-related testimony including (1)

testimony from Valdes' wife about her identification of Valdes'

body;9 (2) testimony from the pathologists who examined the bodies;
(3) testimony from firearms examiners identifying the caliber of

ammunition used in the murder; and (4) testimony from the police

officers who gathered and processed the evidence of the murders.

On the one hand, admitting this evidence arguably carried

the risk of turning a drug conspiracy case into a murder case. On

the other hand, this evidence was not completely gratuitous. The

9
Pursuant to a stipulation, the government agreed not to
introduce identification testimony from Sierra's father.

-28-
government was relying on the testimony of two admitted drug

dealers and co-conspirators to establish that the murders charged

as overt acts done in furtherance of the conspiracy occurred, and

this evidence corroborated their accounts of these murders.10 Also,

Rosario contested his involvement in the murders, and the evidence

that was presented helped link him to the crimes. For example,

there was testimony at trial that Rosario used a nine-millimeter

gun when committing both murders, and the forensic examiner

testified that nine-millimeter caliber bullets were recovered from
both victims.

Given these tension points, and the great deal of

deference we afford district court rulings of this sort, even were

we to conclude that the court erred in admitting this evidence the

error would not be "clear" or "obvious," as the applicable plain

error standard of review demands. See Griffin, 524 F.3d at 76

(noting that a plain error is one that is "obvious and clear under

current law").
3. Severance

Pomales alone argues that the district court should have

sua sponte severed his trial from that of his co-defendants. He

contends that the murder evidence described above caused him unfair

10
For example, the cooperating witnesses testified as to how
the murders occurred. The testimony of the pathologist
corroborated their version of events, as the pathologist, after
examining the bodies, expressed her opinion with respect to the
likely distance at which the victims were shot, and further
testified as to how many times each victim was shot.

-29-
prejudice as, unlike Rosario, he was not directly implicated in

either of the murders.

Pomales, however, failed to file a severance motion

before trial. "A motion to sever charges or defendants must be

made before trial," United States v. Rodríguez-Lozada, 558 F.3d 29,

45 (1st Cir. 2009) (citing Fed. R. Crim. P. 12(b)(3)(D)), and

"[f]ailure to move for severance before the deadline for filing

pretrial motions constitutes waiver, which may be excused only on

a showing of good cause," id. (citing Fed. R. Crim. P. 12(e)).
Here, Pomales has failed to identify any cause for his failure to

file a severance motion, much less good cause.11
B. Sentencing

The appellants present a number of sentencing claims,

some procedural and others substantive. Most of the alleged

procedural errors concern the district court's calculation of

guideline sentencing ranges. All of the claims of procedural error

involve fact-bound determinations made by the district court.

Review of those issues is thus for clear error. See United States
v. Olivero, 552 F.3d 34, 38 (1st Cir. 2009); see also Cruz-

Rodríguez, 541 F.3d at 31-32 (drug quantity finding reviewed for

clear error). We will not find clear error unless "'on the entire

evidence [we are] left with the definite and firm conviction that

a mistake has been committed.'" United States v. Brown, 298 F.3d

11
Both Pomales and the government framed the issue as whether
the district court committed plain error in refusing to sever
Pomales' trial sua sponte. But, in this situation, the focus under
Rule 12 is on whether his waiver may be excused.

-30-
120, 122 (1st Cir. 2002) (quoting Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 573 (1986)).

The jury found beyond a reasonable doubt that the

conspiracy as a whole was responsible for one kilogram or more of

heroin, five kilograms or more of cocaine, fifty grams or more of

cocaine base/crack cocaine, and one hundred kilograms or more of

marijuana. These amounts, pursuant to 21 U.S.C. § 841(b)(1)(A),

trigger a statutory maximum extending to life imprisonment. See

Pérez-Ruiz, 353 F.3d at 15; see also United States v. Sanchez-
Badillo, 540 F.3d 24, 35 (1st Cir. 2008) ("The applicable statutory

maximum sentence in a drug conspiracy case is determined from a

'conspiracy-wide perspective.'" (citation omitted)).

At sentencing, however, a court must take care not to

"automatically shift the quantity attributable to the conspiracy as

a whole to the defendant." Cruz-Rodríguez, 541 F.3d at 32 (citing

United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004)).

Rather, "[w]here a defendant has been convicted of participating in

a drug-trafficking conspiracy, a sentencing court must determine
the specific quantity of drugs for which the defendant is

[personally] responsible." Cruz-Rodríguez, 541 F.3d at 32 (citing

Colón-Solís, 354 F.3d at 103); see also United States v. Vargas,

560 F.3d 45, 49 (1st Cir. 2009) (recognizing that "a defendant's

offense level is driven largely by the quantity of drugs attributed

to him" (citation omitted)).

A defendant is responsible for "drugs he personally

handled or anticipated handling, and, under the relevant conduct

-31-
rubric, for drugs involved in additional acts that were reasonably

foreseeable by him and were committed in furtherance of the

conspiracy." Sepulveda, 15 F.3d at 1197 (citing United States v.

Garcia, 954 F.2d 12, 15 (1st Cir. 1992)). The quantity finding

must be supported by a preponderance of the evidence, Rodriguez,

525 F.3d at 107; United States v. Rivera-Maldonado, 194 F.3d 224,

228-29 (1st Cir. 1999) (noting that a district court's quantity

finding must have "demonstrable record support" and be based on

reliable evidence), but "the sentencing court may rely on
reasonable estimates and averages." Rivera-Maldonado, 194 F.3d at

228.

Before considering the individual challenges, we make two

additional observations. First, in seeking to establish each of

the appellants' drug quantity exposure, the government relied

almost solely on testimony from its cooperating witnesses --

Rodriguez and Santiago. We note that such testimonial evidence

alone may be sufficient to support a district court's quantity

determination. United States v. Huddleston, 194 F.3d 214, 224 (1st
Cir. 1999) ("The appropriateness of the court's reliance on Morel's

testimony dooms the appellant's drug quantity challenge."); United

States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995). Second, although

challenging the district court's drug quantity assignments in a

number of respects, none of the appellants directly assails the

credibility of these cooperating witnesses.

-32-
 1. Rosario

The court found Rosario responsible for five kilograms of

heroin, five kilograms of cocaine, fifty grams of crack cocaine,

and one hundred kilograms of marijuana. Based on the drug

equivalency tables (which assign non-marijuana drugs a marijuana-

based value) the court found Rosario responsible for 6,305

kilograms of marijuana. U.S.S.G. § 2D1.1(c)(3). This amount of

marijuana resulted in a base offense level ("BOL")of 34. Id. ("At

least 3,000 KG but less than 10,000 KG of Marihuana . . . .").
Rosario's BOL was increased by two levels for his possession of

firearms while part of the drug conspiracy, id. § 2D1.1(b)(1), and

was adjusted upward another four levels for his being a leader or

organizer of a criminal activity that had at least five

participants or was otherwise extensive, id. § 3B1.1(a). The

resulting total offense level of 40 combined with a criminal

history category of IV to yield a sentencing range of 360 months to

life. The court sentenced him to life imprisonment.

Rosario argues that the drug quantity finding is
erroneous for two reasons. First, he contends that the court

improperly saddled him with the drug amounts the jury attributed to

the conspiracy as a whole. For example, he notes that the court

observed, "It's going to have to be at least five [kilograms],

because the jury already made that determination." The jury, of

course, merely concluded that the conspiracy as a whole was

responsible for at least five kilograms of cocaine. Rosario

argues, alternatively, that the court's quantity finding was based

-33-
merely on speculative estimates in reliance on general testimony

from the two cooperating witnesses, Rodriguez and Santiago.

Rosario appears correct that the jury concluded that the

conspiracy as a whole was responsible for at least one kilogram of

heroin, five kilograms of cocaine, fifty grams of cocaine

base/crack cocaine, and one hundred kilograms of marijuana. Those

were the conspiracy-wide floors set by the jury. The court's

finding with respect to Rosario, however, indicates that the court

believed that it was required, due to the jury's determination, to
find him individually responsible for, at a minimum, those amounts.

When making its final quantity determination with respect to

Rosario, the court said:

So using the drug equivalency table to convert
cocaine, crack cocaine and heroin into
marijuana, in this case I will use the lowest
quantity of drugs of 5 kilograms of cocaine,
which converts to 205 kilograms of marijuana;
I use only 5 grams of crack cocaine, that
converts into a thousand kilograms of
marijuana; five kilograms of heroin, which
converts into 5,000 kilograms of marijuana,
and in addition to a hundred kilograms of
marijuana, that converts into 6,305 [kilograms
of marijuana].
(emphasis added).12

12
Although the district court said it was using "5 grams" of
crack cocaine, it is clear that the court actually used the
conspiracy-wide minimum of fifty grams. Under the 2005 guidelines
applicable to this sentencing, fifty grams of crack cocaine would
have been equivalent to 1,000 kilograms of marijuana. Id. § 2D1.1
("1 gm of Cocaine Base = 20 kg of marijuana").

-34-
 The error in the powder cocaine quantity calculation,

however, was harmless.13 This is because, contrary to Rosario's

assertion that the court's quantity findings were based on

speculation, there was credible evidence that Rosario was

personally responsible for those quantities at the very least. The

information with respect to drug quantity came from the two

cooperating witnesses. Both witnesses were drug point owners who

sold drugs contemporaneously with Rosario. Rodriguez testified

that in 1998 Rosario sold approximately a half a kilogram of
cocaine per month, translating into roughly six kilograms of

cocaine for that one year alone.

Rodriguez also testified that in 1998, Rosario sold

approximately a half a kilogram of crack per month (again,

translating into roughly six kilograms of crack per year).

Santiago testified that in 1999, Rosario sold crack at a rate of

about one kilogram per month (or, roughly, twelve kilograms per

year). During 2000 and 2001, Santiago testified, Rosario sold

about one and a half kilograms of crack per month (for a total of
approximately thirty-six kilograms over those two years). All

told, there was testimony that Rosario sold approximately fifty-

four kilograms of crack during that span of time. The district

13
"Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded." Fed. R. Crim. P.
52(a); Rodriguez, 525 F.3d at 108-09 ("If a district court makes an
erroneous factual finding under the sentencing guidelines, yet
'there is enough evidence to support the alternative explanation
for the court's finding, the error would be harmless and there
would be no reason to remand to the district court when the result
will be the same.'" (quoting United States v. Pizzaro-Berríos, 448
F.3d 1, 8 (1st Cir. 2006)).

-35-
court attributed to Rosario only fifty grams, less than a tenth of

a per cent of the amount testified to.

As for heroin, Santiago testified that in 1998 and 1999,

Rosario sold a half a kilogram of heroin per month and, in 2000 and

2001, slightly more than a half a kilogram of heroin per month.

This put Rosario's three year total, conservatively, at twenty-four

kilograms of heroin. The court found him responsible for five

kilograms.

Finally, although no one testified that Rosario sold
marijuana himself, he was present at a point meeting in 1998 and

discussed drug business with Rodriguez who was, at the time, a

fellow point owner selling approximately eight pounds of marijuana

per month (or roughly forty-four kilograms of marijuana for the

year). In a drug conspiracy, a defendant is responsible for "all

reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook."

U.S.S.G. § 1B1.3, Application Note 2.14

Based on this testimony, the sentencing court's apparent
misstatement about the conspiracy-wide minimum was harmless. The

court was conservative in assigning a drug quantity to Rosario.

His crack dealings alone could have placed him at a base offense

level of 38, and the court recognized the abundance of available

14
Although this quantity fell short of the one hundred
kilograms of marijuana the court assigned to Rosario (by fifty-five
kilograms), that made no difference to the ultimate offense level
assigned. The court found Rosario responsible for 6,305 kilograms
of marijuana (once the other drugs were properly converted). This
is well over the 3,000 kilogram amount required to trigger a Level
34 base offense level. Id. § 2D1.1(c)(3).

-36-
evidence.15 Moreover, the quantity determination did not take into

account much of the additional drug activity of the conspiracy that

would have been reasonably foreseeable to Rosario. See Rodriguez,

525 F.3d at 109 ("These estimates are especially cautious because

they account only for the cocaine that Appellant personally handled

. . . and not for additional amounts handled by other[s] . . .

whose drug activity was reasonably foreseeable by [the

Appellant].").

Although Rosario characterizes the testimony of Rodriguez
and Santiago as speaking in "summary generalities," both testified

about the specific bases of their knowledge. Rodriguez stated that

he and Rosario, along with the other point owners, talked about the

amounts of drugs they sold. And Santiago, who was also a point

owner, explained that he was often at the drug points (which, the

court noted, were all located in a relatively small square) and

observed sales. Moreover, the district court had an additional

reason to credit Santiago's estimates, viz., Santiago's and

Rosario's close working relationship -- they stored drugs together
and collaborated on security efforts.

15
The court observed:

I wish to add that there's plenty of evidence in this
case that this Defendant handled much more than these
quantities, but for purposes of eliminating arguments in
the Courts of Appeals, I'm going to use the lowest
quantities. But I want to make a recognition to the
United States that they have guided me to parts of the
record, that I have corroborated, that would provide a
direct handling of quantities much greater than this.

-37-
 Rosario also argues that the district court erroneously

determined that he was a leader of a criminal activity that

involved five or more participants or was otherwise extensive. See

U.S.S.G. § 3B1.1(a). The court's determination resulted in a four-

level increase in Rosario's base offense level. Here again, the

court's factual determinations may be disregarded only if clearly

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

2009) (finding that defendant was a leader/organizer reviewed for

clear error).
"[T]o invoke § 3B1.1(a), a district court must make a

finding as to scope -- that the criminal activity involved five or

more participants or was otherwise extensive -- and a finding as to

status -- that the defendant acted as an organizer and leader of

the criminal activity." Arbour, 559 F.3d at 53 (citing United

States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995)). Both

findings must be supported by a preponderance of the evidence. Id.

Rosario challenges only the court's status finding,

conceding that the criminal activity at issue here either involved
five or more participants or was otherwise extensive. He argues

that, at most, the evidence supported a finding that he was a

manager or supervisor of a criminal activity, not a leader.

The guideline commentary provides a non-exhaustive list

of factors for courts to consider when making the status

determination. U.S.S.G. § 3B1.1(a) application note 4. These

factors include: (1) the exercise of decision-making authority;

(2) the nature of participation in the commission of the offense;

-38-
(3) the recruitment of accomplices; (4) the claimed right to a

larger share of the fruits of the crime; (5) the degree of

participation in planning or organizing the offense; (6) the nature

and scope of the illegal activity; and (7) the degree of control

and authority exercised over others. Id. "There need not be proof

of each and every factor before a defendant can be termed an

organizer or leader." Tejada-Beltran, 50 F.3d at 111.

Here, the evidence amply supports the district court's

status finding. Witnesses testified that Rosario was a point owner
who attended meetings where conspiracy matters were discussed and

conspiracy-related decisions made. See U.S.S.G. § 3B1.1(a),

application note 4 ("exercise of decision-making authority";

"degree of participation in planning or organizing the offense";

"nature of participation in the commission of the offense"). There

was also evidence that when Sierra threatened the exclusivity of

the drug points belonging to Rosario, Torres and Santiago, Rosario

successfully recruited Santiago to join him in confronting Sierra.

Id. ("the recruitment of accomplices"). Finally, the government
put on evidence indicating that Rosario directly led (as an

employer) at least three participants -- Torres, Cheo, and an

individual known only as "Predator." Arbour, 559 F.3d at 56

("[T]he guideline commentary makes plain that a defendant needs

only to have led or organized one criminal participant, besides

himself of course, to qualify as a leader or organizer under §

3B1.1(a).").

-39-
 Rosario's penultimate claim is that the court failed to

adequately explain his sentence. United States v. Gall, 128 S. Ct.

586, 597 (2007) (identifying an inadequate explanation as a

procedural error). Specifically, he asserts that the court failed

to explain whether the sentence reflected the need to provide him

with educational or vocational training or other correctional

treatment, 18 U.S.C. § 3553(a)(2)(D), and that the court also

failed to expressly describe why the shorter sentence requested by

Rosario was inadequate to protect the public, id. at §
3553(a)(2)(C).

"A district court's explanation for a chosen sentence

must be reasoned and case-specific." United States v. Almenas, 553

F.3d 27, 36 (1st Cir. 2008). The explanation here was both. The

court spent some time at sentencing discussing the history and

characteristics of the defendant. The judge noted that Rosario

grew up without any structure in his life and that there was a

history of drug abuse in his family. The judge also discussed

Rosario's criminal history, describing his extensive criminal
record. After considering the nature and circumstances of the

conspiracy offense that Rosario was convicted of, the district

court sentenced Rosario to life imprisonment. The judge explained

that this sentence reflected the seriousness of the offense and the

need to promote respect for the law, to provide just punishment for

the offense, and to provide deterrence. Although the court did not

explicitly mention every single § 3553(a) factor, the explanation

was adequate. See United States v. Dixon, 449 F.3d 194, 205 (1st

-40-
Cir. 2006) ("Although the court's explanation must reflect that the

court considered the various § 3553(a) factors, the court need not

discuss these factors one by one, in some sort of rote incantation

when explicating its sentencing decision."); see also United States

v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006) (noting that

a district court "ordinarily should identify the main factors upon

which it relies").

Finally, Rosario claims that his sentence is

substantively unreasonable. "Review of substantive reasonableness
amounts to review for an abuse of discretion." United States v.

Hall, 557 F.3d 15, 22 (1st Cir. 2009).

Rosario argues that the life sentence imposed on him by

the district court is unreasonable because it is greater than

necessary to accomplish the goals of sentencing. 18 U.S.C. §

3553(a); see also Wallace, 461 F.3d at 30. He submits that, when

sentencing him, the district court unduly accounted for his prior

criminal record. In particular, Rosario contends that the court's

discussion of his past criminal sentences suggests that the court
imposed a life sentence on him for the instant offense to

compensate for what it perceived were inadequate earlier sentences.

There is no doubt that the court considered Rosario's

past criminal conduct when sentencing him in this case. The court

specifically focused on Rosario's 1992 offenses, which included the

attempted murders of two police officers. But a defendant's

criminal history is a relevant factor for a court to consider when

arriving at a sentence. 18 U.S.C. § 3553(a)(1).

-41-
 Although Rosario claims that the court's focus on the

length of the sentences he received for his prior crimes suggests

that it was effectively sentencing him again for these crimes, the

record supports a different inference. The court observed that

after Rosario served a total of six years in prison for his various

crimes, he returned to "a life of violence and of severe

violations." This suggests that the court thought that Rosario's

past sentences had failed to deter him from engaging in criminal

conduct. The court was entitled to take this into account when
sentencing Rosario for the instant offense. Id. § 3553(a)(2)(c)

("the need for the sentence imposed--to protect the public from

further crimes of the defendant").
2. Torres

Torres was assigned a BOL of 38 based on drug amount. He

received a two-level increase for possession of firearms while part

of the drug conspiracy, U.S.S.G. § 2D1.1(b)(1), and a two-level

adjustment for organizing, leading, managing, or supervising a

criminal activity, id. § 3B1.1(c). The resulting total offense
level of 42 combined with a criminal history category of II to

yield a sentencing range of 360 months to life. The court

sentenced him to a non-guidelines sentence of 300 months

imprisonment.

The district court found Torres responsible for eighteen

kilograms of cocaine, seventy-two kilograms of crack, and between

1,000 and 3,000 kilograms of marijuana. These quantities easily

saddled Torres with a base offense level of 38. See U.S.S.G. §

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2D1.1(c)(1) (noting that a defendant qualifies for a base offense

level of 38 if he is responsible for "1.5 KG or more of Cocaine

Base").

The government concedes that the district court erred

when finding Torres responsible for 1,000 to 3,000 kilograms of

marijuana, admitting that the evidence only supported a finding of

245 kilograms. It argues, however, that the error was harmless

because the court's other findings were accurate and qualified

Torres for the offense level assigned.
We agree that the error was harmless. The district

court's finding that Torres was responsible for seventy-two

kilograms of crack cocaine would alone qualify him for an offense

level of 38, as only 1.5 kilograms of crack triggers that offense

level. Regardless of whether the finding of seventy-two kilograms

may be an over-estimate, there is record evidence indicating that

Torres was responsible for well over 1.5 kilograms of crack.

At trial, the government elicited testimony from the two

cooperating witnesses regarding Torres' drug activity. Rodriguez
testified that from 1995 to 1996, Torres cooked approximately a

half a kilogram of crack per week for Pomales. In explaining the

basis for this knowledge, Rodriguez testified that on several

occasions he was present when Torres cooked the crack. Over the

course of a year, this would translate into approximately twenty-

four kilograms of crack. But there was more. Santiago testified

that in 1998, Torres also cooked crack for Rosario. As noted

above, the district court found that in that year Rosario sold

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approximately a half a kilogram of crack per month (translating

into roughly six kilograms of crack that year). Finally, Santiago

testified that Torres cooked crack for Luis "Besito" between 1998

and 1999. Besito sold one and a half kilograms of crack per month,

which translates, conservatively, into twelve kilograms of crack

over the course of a year. Even taking a cautious view of these

estimates, a court could find that Torres was responsible for a far

greater quantity than the 1.5 kilograms required to trigger a base

offense level of 38.

Torres suggests two reasons why he cannot be held

responsible for over 1.5 kilograms of crack cocaine. First, he

argues that the evidence at trial merely showed that he cooked

cocaine into an indeterminate amount of crack. On the contrary,

the cooperating witnesses testified to the weight of the crack

product that resulted from Torres' cooking. Second, he says that

as time went on, his role within the conspiracy shifted from that

of a "crack cocaine cooker" to that of a drug point owner.

Although that is true -- Torres eventually came to own a marijuana
point -- it did not preclude the court from assigning Torres

responsibility for his actions as a cooker of crack cocaine.
3. Calderón

The court assigned Calderón a BOL of 38, which was then

increased by two levels for his having possessed firearms while

part of the drug conspiracy, U.S.S.G. § 2D1.1(b)(1), and adjusted

upward by three levels for his having managed or supervised a

criminal activity that had at least five participants or was

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otherwise extensive, id. § 3B1.1(c). The resulting total offense

level of 43 combined with a criminal history category of I to yield

a sentencing range of 360 months to life. The court sentenced him

to a non-guidelines sentence of 216 months imprisonment.

The district court found that Calderón was responsible

for 1.5 kilograms of crack cocaine, concluding that such quantity

was foreseeable to Calderón. Id. § 1B1.3 application note 2

(noting that a drug conspirator is responsible for "all reasonably

foreseeable quantities of contraband that were within the scope of
the criminal activity that he jointly undertook"). The record

evidence showed that Calderón personally handled marijuana only.

On appeal, Calderón argues that the district court

clearly erred in finding that he could reasonably foresee this

quantity of crack cocaine.16 It is true that the court did not

cite, and the government has not identified, a direct link between

Calderón and crack distribution. Neither of the cooperating

16
Arguably, Calderón forfeited this argument below. When the
question of drug quantity initially came up at sentencing, his
counsel stated:
We're sort of -- respectfully I have to say this, but I
think we're playing a game because, very simple, if we're
going to apply reasonably foreseeable, I think to anybody
there it was reasonably foreseeable that other points
were operating there, and if all those points are
considered all of the same thing, and that they sold
crack, you get to 1.5 kilograms of crack very easily, and
that puts it at a level 38, so we don't have to fiddle
with the record.

Later, when making the quantity determination, the court
stated, "It's very easy to get to 1.5 in crack." Calderón's
counsel replied, "I said that in my first sentence, practically."
Nevertheless, as the government defends the district court's
quantity determination on the merits, we will address the claim.

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witnesses testified that Calderón attended meetings where drug

amounts were discussed, nor did they testify that Calderón was

physically present in the square when crack was being sold.

That said, we cannot say the district court's finding was

clearly erroneous. Calderón was an active point owner in the drug

distribution conspiracy for at least three years. Although

Calderón himself specialized in marijuana in La Placida during

those years, his co-conspirators dealt large quantities of crack

in the same square at the same time. Rosario alone, with whom
Calderón shared a common marijuana seller named Cheo, operated a

drug point in the housing project that sold approximately fifty-

four kilograms of crack during the life of the conspiracy.

Ultimately, given the staggering amount of crack that was being

cooked, packaged, and sold in La Placida during the three years

that Calderón was a member of the conspiracy, the sentencing court

did not clearly err in finding that Calderón would have reasonably

foreseen the 1.5 kilograms of crack the district court assigned to

him.
Calderón also argues that his sentence of 216 months

imprisonment -- well below the guideline sentencing range

applicable to him -- is substantively unreasonable because it was

unjustifiably more severe than the sentences imposed on three co-

defendants who pled guilty. We disagree. As we have said before,

§ 3553(a)(6) "aims primarily at the minimization of disparities

among defendants nationally." Martin, 520 F.3d at 87. Moreover,

the more severe sentence imposed on Calderón was justified because

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he and his co-defendants were not similarly situated: they pled

guilty; he went to trial. There is a "material difference" between

defendants who plead guilty and those who elect to go to trial, and

any sentencing disparity that results from that difference is not

unreasonable. United States v. Rodriguez-Lozada, 558 F.3d 29, 45

(1st Cir. 2009) (citation omitted).
4. Pomales

Pomales' BOL was 38 based on the amount of drugs the

court assigned to him, U.S.S.G. § 2D1.1 (2005), and he received a
two-level increase for possession of firearms while part of the

drug conspiracy, id. § 2D1.1(b)(1), as well as a three-level

adjustment for managing or supervising a criminal activity with at

least five participants, id. § 3B1.1(b). The resulting total

offense level of 43 combined with a criminal history category of I

to yield a sentencing range of 360 months to life. The court

sentenced him to life imprisonment.

Pomales argues that he should have received a two-level

reduction in his base offense level for acceptance of
responsibility. Although Pomales denied responsibility for his

criminal actions in his pre-sentencing interview, at sentencing he

reversed course and expressed remorse for those actions. Review is

again for clear error. United States v. Garrasteguy, 559 F.3d 34,

38 (1st Cir. 2009) (denial of downward adjustment for acceptance of

responsibility reviewed for clear error).

The district court's denial of the requested reduction

was not erroneous. "[D]efendants who proceed to trial and put the

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government to its proof normally do not qualify for any reduction

for acceptance of responsibility." Id.; see also U.S.S.G. § 3E1.1

application note 2 ("In rare situations a defendant may clearly

demonstrate an acceptance of responsibility for his criminal

conduct even though he exercises his constitutional right to a

trial.").

Here, the district judge understood that he had the

capacity to grant Pomales an acceptance of responsibility reduction

despite his decision to proceed to trial. Nevertheless, the judge
concluded that Pomales' extensive criminal activity along with the

statements he made at his pre-sentencing interview outweighed his

expression of contrition at sentencing. See United States v.

Deppe, 509 F.3d 54, 60 (1st Cir. 2007) ("Acceptance of

responsibility entails more than merely mouthing the vocabulary of

contrition."). We discern no error in this conclusion.

Pomales also says that, because the court sentenced him

to life imprisonment based on his crack cocaine dealings, he is

entitled to a resentencing based on the crack cocaine amendment to
the guidelines. In 2007, the United States Sentencing Commission

lowered the offense levels associated with crack cocaine offenses,

see U.S.S.G. App. C, Amend. 706 (2007), and subsequently issued a

declaration of retroactivity with respect to those lowered offense

levels. United States v. Ayala-Pizarro, 551 F.3d 84 (1st Cir.

2008).

The remedy for defendants who believe they are entitled

to resentencing based on the retroactive amendment is to file a

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motion with the district court seeking relief. See United States

v. Chandler, 534 F.3d 45, 51 (1st Cir. 2008). We thus dismiss this

claim by Pomales without prejudice.17
III. Conclusion

For the reasons provided above, we affirm the convictions

and sentences of the appellants.

17
Pomales also makes a general claim that his sentence is
unreasonable, he fails to develop the claim any further.
Accordingly, it is waived. See Zannino, 895 F.2d at 17.

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