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
-2-
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
-3-
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
-4-
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).
-5-
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
-6-
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
-7-
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
-8-
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
-9-
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.
-10-
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
-11-
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."
-12-
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
-13-
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).
-14-
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.
-15-
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
-16-
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,
-17-
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.
-18-
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
-19-
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.
-20-
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.
-21-
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. §
-42-
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
-43-
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
-44-
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.
-45-
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
-46-
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
-47-
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
-48-
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.
-49-