United States v. Vazquez-Larrauri

United States Court of Appeals
For the First Circuit

No. 13-1061

UNITED STATES,

Appellee,

v.

ISMAEL VÁZQUEZ-LARRAURI, a/k/a El Gordo, a/k/a Junito,
a/k/a Tara,

Defendant, Appellant.

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

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Kayatta, Circuit Judges.

Paul M. Glickman, with whom Glickman Turley LLP was on brief,
for appellant.
George A. Massucco-LaTaif, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United
States Attorney, were on brief, for appellee.

February 13, 2015
 KAYATTA, Circuit Judge. A jury convicted Ismael Vázquez-

Larrauri ("Vázquez") of drug and firearm offenses after a nine-day

trial for leading a conspiracy to distribute drugs in Puerto Rico

public housing projects. The district court sentenced Vázquez to

concurrent life sentences on all six counts of conviction. Vázquez

now appeals, arguing that prosecutorial misconduct--primarily

improper vouching for a government witness--and evidentiary errors

warrant a new trial. He also challenges his sentence, claiming

that the district court failed to make an individualized drug

quantity finding and that the life sentence on the firearm count

exceeded the applicable statutory maximum. Failing all else, he

also claims ineffective assistance of trial counsel. We affirm

Vázquez's convictions on all counts and his life sentences on the

five drug counts, but remand for a modified sentence on the one

firearm count. We decline to address his ineffective assistance of

counsel claim on direct appeal.

I. Background

Vázquez does not challenge the sufficiency of the

evidence to support his conviction. We recently noted the lack of

clear consensus in this circuit whether to recite the facts in the

light most favorable to the verdict, or to present the facts in a

more balanced or neutral manner, when the defendant does not raise

a sufficiency of the evidence claim. United States v.

Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014). Because the

-2-
standard used to review the facts would make no difference for this

appeal, we decline to decide the issue and instead simply present

a neutral version of the facts based on the trial testimony. See

id.

The charged crimes in this case arise from a drug

trafficking organization's distribution of large quantities of

heroin, cocaine, cocaine base ("crack cocaine"), and marijuana

through multiple drug points from 1994 until 2008. Trial witnesses

testified that Vázquez's initial role in this organization was

managing sales at drug points located in the Jardines de Montellano

and Luis Muñoz Morales public housing projects in Cayey, Puerto

Rico. At first, he shared responsibility for running the drug

points with others, including an individual known as Cheo Cabezon.

Vázquez and Cheo Cabezon then took over complete control and supply

of these two drug points sometime in the 1990s. In 2001, Vázquez

expelled Cheo Cabezon from the organization and assumed sole

leadership. Vázquez grew his enterprise and eventually either

controlled or became the exclusive supplier for additional drug

points in the El Polvorín and Las Vegas wards in Cayey, Santa

Isabel, Salinas, Coamo, and the Borinquen ward in Guayama.

The government began investigating Vázquez in 2005 and

obtained a grand jury indictment against him and seventy other

individuals in 2008. The indictment charged Vázquez with six

counts: Count I charged conspiring to distribute and/or to possess

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with intent to distribute specified quantities of heroin, crack

cocaine, cocaine, and/or marijuana, within 1,000 feet of a public

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

860; Counts II-V charged aiding and abetting in possession with

intent to distribute heroin, crack cocaine, cocaine, and marijuana

within 1,000 feet of a public housing project, in violation of 21

U.S.C. §§ 841(a)(1), 860, and 18 U.S.C. § 2; and Count VI charged

conspiring to possess firearms during and in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924(o).1

At trial, the government's case depended heavily on the

testimony of three cooperating witnesses to establish Vázquez's

leadership role in the conspiracy: "L.O.," "J.S.," and "F.R."2 All

three cooperating witnesses testified that Vázquez assumed control

and was "the boss" of the drug points. L.O. testified that she

joined the charged conspiracy in the 1990s by collecting the

"tallies," or money from drug sales, for the drug point at

Jardines, where she also lived. Most importantly for this appeal,

she testified that Vázquez ordered the murders of three individuals

who threatened his control over the drug points: the expelled co-

1
The indictment also contained a forfeiture allegation (Count
VII) not at issue in this appeal.
2
We have assigned initials instead of using real names "in
light of concerns about the safety of cooperating witnesses raised
by the Committee on Court Administration and Case Management of the
Judicial Conference of the United States." United States v.
Etienne, 772 F.3d 907, 910 n.1 (1st Cir. 2014).

-4-
leader Cheo Cabezon; an ambitious drug seller named Mamart; and

L.O.'s son, known as El Arabe. After her son's death in 2004, L.O.

became a confidential informant for the government. She was later

indicted for her role in the drug conspiracy and testified against

Vázquez pursuant to a plea agreement.

J.S. testified extensively about drug quantities

distributed through the drug points and the manner in which Vázquez

operated the conspiracy. Beginning in 2000 or 2001, J.S. worked

for Vázquez's cockfighting operation. J.S. testified that he

regularly attended cockfighting matches with Vázquez and fifteen to

twenty other individuals. J.S. and the others placed bets of up to

$20,000 with money that Vázquez instructed J.S. to collect from the

various drug points while working with Hiram Torres-Aviles

("Torres"), who was in charge of tallying drug proceeds and

preparing drugs for distribution. After a few months, Vázquez and

Torres taught J.S. how to prepare and package the heroin, crack

cocaine, cocaine, and marijuana for distribution. J.S., who had

trained in accounting, testified in detail about the technique and

quantities used to prepare drugs for the various drug points.

J.S. testified that he stored kilograms of cocaine and heroin for

Vázquez in his Jardines apartment.

J.S. also testified about the enforcement side of the

drug conspiracy. He stated that at Vázquez's direction he stored

up to 31 firearms, some of them machine guns, and that Vázquez

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would order others to use the firearms. J.S. recalled that Vázquez

told J.S. that, if he turned on Vázquez, J.S. would end up dead

like Cheo Cabezon. J.S. also testified that he was present at the

meeting at which Vázquez and other members of the conspiracy

decided that El Arabe had to be killed because he was trying to

take over the Jardines drug point. J.S. later became a

confidential information for the government--for which the

government paid him $18,000--and then stopped working for Vázquez

in 2006.

F.R. testified pursuant to a plea agreement he had

entered for his involvement in a different drug conspiracy. He

told the jury that he supplied drugs to and rented the Jardines

drug point in the early 1990s, while Vázquez managed the sales at

the drug point. F.R. explained that Vázquez and Cheo Cabezon took

over the Jardines drug point after F.R. retired in 1995 to run

local stores. F.R. maintained contact with cocaine suppliers,

however, and, on at least twenty occasions between 1995 and 2006,

he used these contacts to supply Vázquez with a half-kilogram or

more of cocaine when Vázquez's normal supply ran dry.

The government also presented testimony from fourteen law

enforcement agents about controlled drug purchases, arrests, and

seizures of money, guns, and drugs at the Jardines and Morales drug

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points and at co-conspirators' residences.3 None of this testimony

directly implicated Vázquez, although at least two of the arrests

and seizures were the result of information provided by J.S. and

corroborated parts of his testimony. The lead case agent, Ricardo

Cruz-Vázquez, testified about wiretaps obtained on the phones of

co-conspirators, including a wiretap on Vázquez's phone. Vázquez

was a participant in some of the recorded conversations played for

the jury, but only two arguably involved discussions about the drug

operation.4 Vázquez called no witnesses in his defense.

3
The parties stipulated as to the types and quantities of
drugs seized. The total quantity seized was 40.427 grams of
heroin, 56.33 grams of crack cocaine, 600.23 grams of cocaine, and
265.39 grams of marijuana.
4
Both phone calls were between Vázquez and an individual
known as Pakay. The first occurred on February 16, 2008, and was
translated and transcribed as follows:

[Vázquez]: Uh, do you already have that money for
Barre? It's seven and a half.

Pakay: Yes. I know it's seven and a half but not
until Zandy gives me this. Remember, I
have . . .

[Vázquez]: Don't be a [expletive.] It's that I need
that money.
. . .
Bring down what you have and . . . at the
end, when you're finished you square it
off.

The second conversation occurred on February 25, 2008, and was
translated and transcribed as follows:

[Vázquez]: How about that thing? . . . Everything
worked out well?

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 The jury found Vázquez guilty on all six counts. For the

drug offenses, the jury checked off boxes on the verdict form

indicating that it found that Vázquez conspired to possess and

possessed with intent to distribute the quantities of heroin,

cocaine, crack cocaine, and marijuana specified in the indictment

and on the verdict form. The district court sentenced Vázquez to

concurrent terms of life in prison on all six counts.

On appeal, Vázquez asks us to vacate his conviction based

on prosecutorial misconduct, evidentiary errors, and ineffective

assistance of counsel, and to set aside his sentence based on a

lack of individualized drug quantity finding and because the life

sentence on the firearm count exceeded the statutory maximum. We

address each argument in turn.

II. Standard of Review

With one exception that we note below, Vázquez failed to

raise below the errors he now asserts on appeal. We review these

unpreserved claims for plain error, and thus require Vázquez to

meet the "heavy burden" of showing "(1) that an error occurred; (2)

that the error was clear or obvious; (3) that the error affected

his substantial rights; and (4) that the error also seriously

Pakay: I worked everything heavy weight.

[Vázquez]: Yeah.

Pakay: We up to the kilo, forget it.
Everything's very well.

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impaired the fairness, integrity, or public reputation of judicial

proceedings." United States v. Colon, 744 F.3d 752, 757 (1st Cir.

2014) (internal quotation marks omitted).

III. Analysis

A. Prosecutorial Misconduct

Vázquez first directs us to several remarks by the

prosecutor during the opening statement and closing argument that

Vázquez claims were prosecutorial misconduct. Having not objected

at trial to any of these remarks, he concedes that the plain error

standard applies. See United States v. Kasenge, 660 F.3d 537, 541

(1st Cir. 2011). In the context of prosecutorial misconduct, we

reverse only if the prosecutor's remarks "so poisoned the well that

the trial's outcome was likely affected." Id. at 542 (internal

quotation marks omitted). We make this determination considering

the following factors: "(1) the severity of the prosecutor's

misconduct, including whether it was deliberate or accidental; (2)

the context in which the misconduct occurred; (3) whether the judge

gave curative instructions and the likely effect of such

instructions; and (4) the strength of the evidence against the

defendant[]." Id. (internal quotation marks omitted).

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 1. Witness Vouching

Vázquez's first charge of prosecutorial misconduct is

that the prosecutor improperly vouched for L.O.'s credibility

during the government's initial closing argument. Improper

vouching encompasses statements by the prosecutor that "place[] the

prestige of [the prosecutor's] office behind the government's

case." United States v. Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003).

The precise line between improper vouching and permissible argument

is a "hazy one." United States v. Vizcarrondo-Casanova, 763 F.3d

89, 96 (1st Cir. 2014) (internal quotation marks omitted). We

therefore begin by describing a few types of argument that fall

fairly clearly on either side of that line.

It is generally permissible for the government to offer

specific "reasons why a witness ought to be accepted as truthful by

the jury." United States v. Rodríguez, 215 F.3d 110, 123 (1st Cir.

2000) (not improper for prosecutor to argue that cooperating

witness was credible because his testimony put him and his family

in danger). One such reason is that the witness testified pursuant

to a plea agreement that required the witness to testify truthfully

to receive the benefit of the bargain. See, e.g., United States v.

Hansen, 434 F.3d 92, 101-02 (1st Cir. 2006) (not improper for

prosecutor to remind jury that witness testified that he agreed to

tell the truth in a plea agreement); United States v. Henderson,

320 F.3d 92, 106 (1st Cir. 2003) (same). Another proper

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credibility argument is that a witness would have told a better,

more consistent story if the witness had been lying, see, e.g.,

Pérez-Ruiz, 353 F.3d at 9-10 ("If they were all going to get up and

make up a story, wouldn't it have been a better story?"), at least

as long as the argument does not assert that the lack of

consistency was viewed as a sign of credibility by the government

itself, see Vizcarrondo-Casanova, 763 F.3d at 96 (possibly error,

but not clear or obvious error, when prosecutor's statement that

"the Government knew that the [witnesses'] versions were going to

conflict" could have been understood as "a suggestion that the

government itself concluded that the stories were credible.").

In contrast, several forms of credibility argument

plainly cross over into improper vouching. The first form occurs

when the prosecutor tells the jury that the prosecutor takes

personal responsibility or ownership of the case and thus directly

places the government's credibility at issue. See, e.g., United

States v. Rojas, 758 F.3d 61, 64 (1st Cir. 2014) ("[I]f you have

any issues with the way this investigation was run, blame me. I'm

in charge. I'm responsible."); United States v. Josleyn, 99 F.3d

1182, 1197 (1st Cir. 1996) ("I'm a married person with a family,

and I go home at night with a sound conscience. I have worked very

hard on this case. . . . And we are very proud of what we have

done. We have done nothing to be ashamed of."). The second form of

prohibited vouching occurs when the prosecutor "impart[s] her

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personal belief in a witness's veracity," Pérez-Ruiz, 353 F.3d at

9, or in the defendant's guilt, see United States v. Andújar-Basco,

488 F.3d 549, 560-61 (1st Cir. 2007) ("I feel comfortable and the

United States feels comfortable that they have proven beyond a

reasonable doubt that this man delivered five kilograms of

cocaine."). Bare assertions that a witness was honest or correct

are therefore improper. See, e.g., United States v.

Rodríguez-Adorno, 695 F.3d 32, 40 (1st Cir. 2012) ("Was [the

passenger] credible? Was he honest? Of course, he was." (alteration

in original)); United States v. Gomes, 642 F.3d 43, 46 (1st Cir.

2011) (telling a jury that a police detective "gave you honest,

candid, truthful testimony" (emphasis removed)); United States v.

Castro-Davis, 612 F.3d 53, 67 (1st Cir. 2010) ("I think [the

identity witness's] testimony was very clear . . . . It seems to

me, and I submit to you, that [the witness] is right on the money."

(emphasis removed)).

It is this latter form of improper vouching--the personal

assurance of a witness's credibility--that Vázquez accuses the

prosecutor of employing during his initial closing argument. The

alleged vouching, emphasized and accompanied by the surrounding

argument, went as follows:

Now, let's talk about [L.O.]. She had a third grade
education. I submit to you she was a difficult witness,
difficult to get her story out. Difficult to get from
her the things that she had to tell. You saw her on the
stand, you were able to evaluate her credibility.

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 And I ask you, was she telling you the truth? I
submit to you that she was.

Now, do you think she minimized things? Do you
think she didn't want to tell you about the verdugo brand
of drugs? Possibly. Possibly. But is there any doubt
that she was a member of [Vázquez's] conspiracy,
beginning in the early 1990s, all the way up until 2004?

There should be no reasonable doubt based on the
evidence you heard of her participation, and more
particularly, of this Defendant's involvement in a
conspiracy, and when it began . . . . You heard that
testimony. You remember that.

Vázquez argues that the emphasized language improperly conveyed to

the jury the prosecutor's personal opinion that L.O. was truthful.

We doubt the foregoing statement amounted to improper

vouching. The prosecutor did not claim to think or believe the

point asserted. Cf. Castro-Davis, 612 F.3d at 67. Also, the

prosecutor's words as printed on the page are ambiguous. "Submit"

can mean "to present or propose to another for review,

consideration or decision." Merriam-Webster's Collegiate

Dictionary 1244 (11th ed. 2012). In this sense, it is

unobjectionable. See Hansen, 434 F.3d at 102 ("[Witness's] [plea]

deal here is to tell the truth, and I submit to you, that is

precisely what he did during this trial," was not improper

vouching); United States v. Marshall, 109 F.3d 94, 100 (1st Cir.

1997) ("They say, I submit to you, they have told the story the way

it truly unfolded," was not improper). "Submit" can also mean "to

put forward as an opinion or contention." Merriam-Webster's

Collegiate Dictionary 1244 (11th ed. 2012). Whether a juror would

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hear the spoken words as conveying a proposition for review, or

conveying what the prosecutor himself thinks, likely depends on

tone, context, and the juror's disposition.

Defense counsel heard the prosecutor's tone, in context.

His lack of any objection suggests that neither tone nor context

pointed toward vouching. See Marshall, 109 F.3d at 100 ("[A]n

excellent test [for determining whether the prosecutor's statement

was a personal endorsement] is whether counsel contemporaneously

thinks the line has been crossed, and objects, which, in turn,

enables the court to instruct the jury."). The prohibition against

vouching is widely understood by defense counsel, the objection is

easy to make, and the collateral effects of scoring a correction in

the prosecutor's closing are often advantageous for the defendant.

Even on the cold page, context suggests that the message

as conveyed and received was not one of personal vouching. The

prosecutor's immediately preceding statement ("[y]ou saw her on the

stand, you were able to evaluate her credibility") drew the jurors'

attention to its proper focus--their evaluation of L.O.'s

credibility based on their observations during her testimony. And

immediately afterward the prosecutor anticipated and addressed the

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defense's point that L.O. minimized her involvement in the

conspiracy.5

In sum, the prosecutor's statement upon which Vázquez

principally bases his argument was likely not vouching,6 and in any

case was not clearly or obviously vouching. See

Vizcarrondo-Casanova, 763 F.3d at 96 ("While the prosecutor

unwisely put his toes up to the line, if there was error it was not

'clear and obvious.'"). For that reason alone we must reject this

grounds for appeal.

2. Comment on Failure to Testify

Vázquez next argues that during rebuttal the prosecutor

improperly commented on Vázquez's decision not to testify. See

United States v. Wihbey, 75 F.3d 761, 769 (1st Cir. 1996). The

challenged comment came in response to defense counsel's closing

5
The prosecutor developed this point in rebuttal, and in
doing so emphasized to the jury that it alone was to determine the
truthfulness of L.O.'s testimony:

You can determine whether [L.O.] was completely lying,
whether she was shading the truth, or whether everything
that she said was the truth. That's your job as jurors.
. . . And I submit to you the evidence of [L.O.] that
she presented to you is telling. You can make the
determinations of where she shaded and where she was a
little hesitant. Make those determinations.

6
We also reject Vázquez's additional contention that the
prosecutor somehow vouched for the witness when he pointed out her
lack of education, thereby implying, says Vázquez, that she could
not have made up a lie. As we have already noted, supra, there is
nothing wrong with pointing out facts that may be viewed as bearing
on credibility. See Rodríguez, 215 F.3d at 123.

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argument, which focused on the government's three main witnesses--

L.O., J.S., and F.R.--and what those three witnesses had to gain by

testifying. The prosecutor then began his rebuttal as follows:

Members of the jury, I submit that in response to
defense counsel said [sic], if this were such a simple
case, why are [sic] we here two weeks? . . .

I submit to you that the witnesses that you heard
and the testimony you heard and the evidence that you
heard took two weeks to get in before you.

The three witnesses, the three key witnesses, there
weren't three witnesses against the Defendant, members of
the jury. There were 17, 18, 19, 20, 21 witnesses--I
don't have the exact count. But every witness that came
and testified before you was a witness against the
Defendant; every police officer, every agent, every
cooperating defendant, every cooperating witness. Every
one of them was a witness against the Defendant. Not
just three.

(emphasis added).

It is well-established that "[c]omment by a prosecutor on

a defendant's failure to testify violates the Fifth Amendment

guarantee against self-incrimination." Wihbey, 75 F.3d at 769

(citing Griffin v. California, 380 U.S. 609, 615 (1965)). When a

statement is not obviously a comment on the defendant's failure to

testify, we ask "[w]hether, in the circumstances of the particular

case, the language used was manifestly intended or was of such

character that the jury would naturally and necessarily take it to

be a comment on the failure of the accused to testify." United

States v. Newton, 327 F.3d 17, 27 (1st Cir. 2003) (quoting United

States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987)).

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 In context, the prosecutor's comment was not improper.

See United States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)

("In assaying the appropriateness of a prosecutor's remarks,

context frequently determines meaning."). Although in isolation

the statement "every witness that came and testified before you was

a witness against the Defendant" might support the negative

inference that Vázquez did not himself testify, this was not the

comment's "manifestly intended" or "natural[] and necessar[y]"

meaning when read in the context of the defense's closing argument.

Newton, 327 F.3d at 27. We will "not lightly infer that a

prosecutor intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through a lengthy exhortation, will

draw that meaning from the plethora of less damaging

interpretations." United States v. Taylor, 54 F.3d 967, 979 (1st

Cir. 1995) (internal quotation marks omitted). This is especially

true when the ambiguous remark draws no objection, as was the case

here. Id. ("We are especially reluctant to 'fish in the pool of

ambiguity' when . . . the complaining party failed to bring a

dubious comment, easily corrected on proper notice, to the

immediate attention of the trial court." (quoting Sepulveda, 15

F.3d at 1188)). The more natural, plausible interpretation of the

prosecutor's statement is simply that he was rebutting the claim

that the government's case rested on the testimony of only three

witnesses.

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 In any event, even if the prosecutor's comment had

crossed the line, it would not rise to the level of plain error.

The district court gave the jury clear instructions on Vázquez's

right not to testify and the burden of proof.7 These instructions,

and the significant evidence of Vázquez's guilt, made it unlikely

that the prosecutor's statement affected the outcome of the trial.

See Wihbey, 75 F.3d at 770-71.8

7
The relevant jury instructions were as follows:

Members of the jury, a defendant has a
Constitutional right not to testify, and therefore, no
inference of guilt or of anything else may be drawn from
the fact that the Defendant does not testify.

For any of you, the jurors, to indulge in such an
inference would be wrong. Indeed, it would be a violation
of your oath as a juror. The fact that Mr. Ismael
Vázquez-Larrauri did not testify or offer any evidence
must not be considered by you in any way, or even
discussed by any of you during your deliberations.

I remind you, members of the jury, that it is up to
the Government to prove the Defendant, Ismael
Vázquez-Larrauri, guilty beyond a reasonable doubt. It is
not up to the Defendant to prove that he is not guilty.

8
To the extent Vázquez further contends that the challenged
comment impermissibly shifted the burden of proof, this argument
also fails. See United States v. Glover, 558 F.3d 71, 77 (1st Cir.
2009). Ascribing a burden-shifting meaning to the prosecutor's
comment is even more of a stretch than interpreting it as a comment
on Vázquez's failure to testify.

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 3. Duty to Acquit

During the initial closing, the prosecutor told the

jurors, "I ask you and I advise you it's your duty as jurors, if

you have reasonable doubt, you must acquit [Vázquez], you must

acquit him. That's your job." Vázquez argues that advising the

jury of its duty somehow inflamed its passions and interfered with

its impartiality. We disagree. There is nothing wrong with the

government asking the jury to acquit if it finds the government

failed to meet its burden, and the court in fact instructed the

jury to do the same.9 Cf. United States v. Ayala-García, 574 F.3d

5, 17-18 (1st Cir. 2009) (it was inappropriate for the prosecutor,

after several inflammatory remarks, to tell the jury, "I charge you

to do your job, find the Defendants guilty.").

4. Misstating the Evidence

For the remaining challenged comments, Vázquez

essentially complains the prosecutor misstated or exaggerated the

evidence in the record. Several of these challenges are

perfunctory, undeveloped, and therefore waived. United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event, we find

none of these comments improper and briefly address each in turn.

9
The court instructed the jury that, "if after a fair and an
impartial consideration of all the evidence you have a reasonable
doubt as to the Defendant's guilt of a particular offense, it is
your duty to acquit him of that offense."

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 Vázquez first challenges a statement during the

government's initial closing argument that "[Vázquez] got rid of

anybody that represented a threat to him, beginning with Cheo,

continuing with Mamart, and El Arabe. That's how the drug

trafficking organization worked." Vázquez argues that the use of

"anybody" was an unsupported extrapolation from the three murders

in evidence and referred to the excluded evidence of other murders,

but this statement merely summarized the testimony of L.O. and J.S.

that Vázquez got rid of all three of the threats that they

testified about--Cheo Cabezon, Mamart, and El Arabe. J.S.

testified that Vázquez told him much the same thing, "that whoever

would be against him, the same thing would happen to that person

than [sic] to the ones who are dead."

Vázquez next challenges the prosecutor's promise during

his opening statement that the jury would "hear what happened to

[L.O.'s] son [El Arabe] at the hands of [Vázquez]." Although

Vázquez correctly notes that there was no evidence that he killed

El Arabe literally with his hands, both L.O. and J.S. testified

that Vázquez ordered El Arabe killed. It was therefore hardly

impermissible to make the figurative argument that El Arabe died

"at the hands of" Vázquez when killed by Vázquez's crony at his

behest. Vázquez similarly challenges the prosecutor's statement

during the initial closing argument that "[L.O.] got up here and

testified that this man here, Ismael Vázquez, destroyed her life,

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that's what she testified, he destroyed her life. . . . [T]hat's

why [L.O.] says the Defendant destroyed her life, because her son

never made it to Christmas 2004." This merely restated L.O.'s

admissible testimony, see infra, that Vázquez ordered her son's

death and in doing so "destroyed [her] life."

Finally, Vázquez challenges two of the prosecutor's

comments to the jury about drug quantity. First, during the

opening statement, the prosecutor referred to Vázquez as "the

largest drug dealer in Cayey." Vázquez argues that there was no

basis for this comment because there was no evidence of other drug

dealers' sales in Cayey during this time. It would be reasonable

to infer that Vázquez was the largest drug dealer in Cayey,

however, given the testimony that he controlled "the mega drug

point[]" at Jardines, which was "the largest . . . housing project

of Cayey," as well as drug points at Morales and El Polvorín in

Cayey, and that he ordered potential competitors killed. In any

event, we doubt the jury would have changed its verdict if it

turned out he was the second- or third-largest dealer in the area.

Similarly, we find nothing objectionable in the prosecutor's

plausible suggestion that the total quantity of drugs distributed

over the fourteen years of Vázquez's leadership was greater

(probably significantly greater) than that distributed over a

three-year snapshot.

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B. Evidentiary Challenges

1. The Murder Testimony

Two of the government's cooperating witnesses, L.O. and

J.S., testified that Vázquez ordered the killings of three

individuals--L.O.'s son El Arabe, Cheo Cabezon, and Mamart--who

posed a threat to his drug points. The district court refused to

admit additional testimony or evidence about these three murders or

any evidence about two other murders. Vázquez argues that this

testimony was inadmissible because "its probative value is

substantially outweighed by a danger of . . . unfair prejudice."

Fed. R. Evid. 403.

We review preserved evidentiary challenges for an abuse

of discretion. Vizcarrondo-Casanova, 763 F.3d at 94. Vázquez did

object at sidebar before J.S.'s testimony about the murders of El

Arabe and Cheo that such testimony would be unfairly prejudicial.

He failed to timely object, however, to L.O.'s earlier testimony

about the three murders. We therefore review the admission of her

testimony for plain error. Regardless of the standard of review,

however, "[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." Id.

(alteration in original) (internal quotation marks omitted).

-22-
 There are no such compelling circumstances here, under

either abuse of discretion or plain error review. The indictment

charged that it was "part of the manner and means of the conspiracy

that some of the co-conspirators would use violence, force and

intimidation against members of their own drug trafficking

organization and rivals in order to maintain control of the drug

trafficking operations." Both witnesses testified that Vázquez

ordered the murders because Vázquez viewed the victims as threats

to his control over the drug points. The district court correctly

determined that this testimony was highly probative to show the

manner in which the drug conspiracy operated and the way its

members furthered its goals, as charged in the indictment. See

United States v. Rivera Calderón, 578 F.3d 78, 96 (1st Cir. 2009).

More importantly, the testimony showed that Vázquez led the

conspiracy by enforcing its rules and protecting it from internal

and external threats. See id.

Nor did any unfair prejudice from this testimony

substantially outweigh its probative value. The murder evidence

was limited to testimony from the first two witnesses in a nine-day

trial and was not overly graphic.10 There was no testimony from

10
The most graphic testimony came from L.O. In describing her
son's death, she said, "I pick up my son. He tells me to stand him
up, that he was bleeding out too much in the upper part of the leg
through a vein." With regard to Mamart's death, she testified,
"Well, you could feel a whole bunch of shooting. You could just
hear a whole mess of shooting. And we went downstairs where
everybody was screaming. Mamart was already on the ground and he

-23-
ballistics experts, pathologists, or crime scene investigators.

Cf. id. at 98-99 (such testimony was not unfairly prejudicial in

drug conspiracy case). The only photographs the jury saw were of

El Arabe's body (cleaned, apparently in a morgue, and used for

identification purposes) and the bloody stairwell where he was

shot. Moreover, after the government elicited testimony from L.O.

about her son's death, the district court took steps to screen for

unfair prejudice by requiring the prosecutor to first make a

proffer of any further murder testimony. There was no abuse of

discretion or plain error in admitting this testimony.

2. Leading Questions

Vázquez also claims that the government improperly used

leading questions during the direct examinations of two of its

witnesses, L.O. and Agent Cruz-Vázquez. Because Vázquez did not

object to any of the questions he now challenges on appeal, we

review for plain error. Federal Rule of Evidence 611(c) provides

that "[l]eading questions should not be used on direct examination

except as necessary to develop the witness's testimony." We afford

the district court "extensive discretion over the phrasing of

questions," because "the trial judge is best situated to strike a

practical and fair balance." Hansen, 434 F.3d at 105 (internal

quotation marks omitted).

was already dead, with his head sort of squished by the shots."

-24-
 Vázquez cites two examples of allegedly improper leading

questions during L.O.'s testimony. The first question was not even

leading--the prosecutor merely referenced in his question L.O.'s

prior testimony that Vázquez fired Cheo Cabezon from the drug

conspiracy.11 In the second example, the prosecutor led L.O.

through some basic arithmetic to clarify the year her son died.12

This was hardly improper. United States v. Mulinelli-Navas, 111

F.3d 983, 990 (1st Cir. 1997) (not always improper for prosecutor

to use leading questions "to assist in developing coherent

11
The exchange between the prosecutor, L.O., and the court
went as follows:

Q. Now, Cheo, you testified was one of the
leaders, correct?

A. Yes.

Q. Do you know why--you testified yesterday
also that he was kicked out.

A. Yes.

. . . .

The Court: Don't become a witness . . . .

[Prosecutor]: Your Honor, I was just recapping the
testimony from yesterday.

The day before this exchange, L.O. had testified that Vázquez
"fired" Cheo Cabezon.
12
L.O. could not remember whether her son had died in 2004 or
2005, but knew that the seventh anniversary of his death had been
in December 2011. (She testified in 2012.) Vázquez takes issue
with the prosecutor's clarifying question: "So would you agree with
me that 11 minus 7 is 4, and so it would be 2004?"

-25-
testimony"). Although the government did use leading questions

with Agent Cruz-Vázquez, these questions laid a foundation for

playing wiretap recordings. The district court did not err, let

alone clearly or obviously err, in allowing these questions, and in

any event Vázquez faces "an insurmountable hurdle" on plain error

review because he has made no "effort to show that such error

likely affected the outcome below." Hansen, 434 F.3d at 105.

C. Sentencing Challenges

Vázquez challenges his life sentences primarily on the

basis that the district court committed plain error in failing to

make an individualized finding on drug quantity when determining

the Guidelines Sentencing Range. He also makes a fleeting, passing

assertion that a life sentence exceeds the "maximum penalty" for

the firearm offense (Count VI). We address each contention in

turn.

1. Guidelines Calculation

Vázquez's Presentence Investigation Report (PSR)

recommended that he be held accountable for at least 48 kilograms

of heroin and 48 kilograms of crack cocaine based only on a four-

year sample of the conspiracy. This recommendation was based on

"information made available by the U.S. Attorney's Office." The

PSR also noted that according to testimony at trial, Vázquez used

his farm to store and sell drugs by the kilogram. Vázquez did not

file any written objections to the PSR.

-26-
 At sentencing, the district court grouped together the

five drug offenses, see U.S.S.G. § 3D1.2(d), and the firearm

offense, see id. § 3D1.2(c), to determine Vázquez's Base Offense

Level of 38.13 The district court made no specific finding on drug

quantity and did not state that it was relying on the PSR's finding

that Vázquez was responsible for at least 48 kilograms each of

heroin and crack cocaine. Instead, the district court simply

announced that

The guideline for a 21 U.S. Code, section 846,
offense is found in Guideline Section 2D1.1, which
provides that offenses involving in excess of 30
kilograms of heroin and in excess of 8.4 kilograms of
crack cocaine, have a base offense level of 38 under
Guideline Section 2D1.1(c)(1).

The district court then applied twelve levels of enhancement14 to

arrive at a Total Offense Level of 50. Because the maximum Total

Offense Level under the Guidelines is 43, the district court

assigned Vázquez a Total Offense Level of 43. See id. ch. 5, pt.

13
The district court relied on the November 1, 2012,
Guidelines, the edition in effect on the date of sentencing. See
United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010).
Citations in this opinion are to the 2012 Guidelines.
14
The district court applied a two-level enhancement for
committing the offense in a protected location, U.S.S.G.
§ 2D1.2(a)(1), a two-level enhancement for possession of a
dangerous firearm in furtherance of a drug trafficking offense, id.
§ 2D1.1(b)(1), a two-level enhancement for directing the use of
violence, id. § 2D1.1(b)(2), a two-level enhancement for
maintaining a premises for the purpose of distributing a controlled
substance, id. § 2D1.1(b)(12), and a four-level enhancement for
being a leader of a drug trafficking organization with five or more
participants, id. § 3B1.1(a).

-27-
A, cmt. n.2. Based on a Criminal History Category of II, the

district court calculated Vázquez's Guidelines Sentencing Range as

life in prison. After reviewing the 18 U.S.C. § 3553(a) sentencing

factors, the district court sentenced Vázquez to concurrent

sentences of life in prison for all six counts.

Neither party made any objections during the sentencing

hearing. Vázquez's defense counsel noted that Vázquez preached at

the correctional facility and suggested only that the court

recommend theology courses. Vázquez personally did not make any

arguments about his sentence.

The Base Offense Level for drug offenses depends mostly

on the quantity of drugs involved in the offense. U.S.S.G.

§ 2D1.1(c). When fashioning a Guidelines recommended sentence for

a drug conspiracy or possession offense, the district court must

make a finding of drug quantity by a preponderance of the evidence.

United States v. Pizarro, 772 F.3d 284, 294 nn.13 & 14 (1st Cir.

2014). This finding must be "an individualized finding as to drug

amounts attributable to, or foreseeable by, that defendant."

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

see also United States v. Escobar-Figueroa, 454 F.3d 40, 51 n.3

(1st Cir. 2006) (applying Colón-Solís to Guidelines calculations).

Here, the district court did not make the required

individualized drug quantity finding. The bare recitation of the

heroin and crack cocaine threshold quantities for a Base Offense

-28-
Level of 38 under U.S.S.G. § 2D1.1(c) does not qualify as such a

finding. See Colón-Solís, 354 F.3d at 103-04. However, because

Vázquez never lodged an objection at sentencing, we review his

claim for plain error. United States v. Medina-Villegas, 700 F.3d

580, 583 (1st Cir. 2012). Although the district court's failure to

make an individualized drug quantity finding was an error that was

clear and obvious, Vázquez cannot make the requisite showing that

this error affected his substantial rights or "seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Id. (quoting United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001)). In particular, for at least two reasons he

cannot show that "but for the error, the district court would have

imposed a different, more favorable sentence." Id. (internal

quotation marks omitted).

First, because Vázquez did not object to the PSR, the

district court could have relied on the PSR's recommended finding

that Vázquez was responsible for at least 48 kilograms each of

heroin and crack cocaine. See Fed. R. Crim. P. 32(i)(3)(A) ("At

sentencing, the court . . . may accept any undisputed portion of

the presentence report as a finding of fact."); United States v.

Ocasio-Cancel, 727 F.3d 85, 92 (1st Cir. 2013) ("When a fact is set

out in a presentence investigation report and is not the subject of

a timely objection, the district court may treat the fact as true

for sentencing purposes."); see also United States v. Medina, 167

-29-
F.3d 77, 81 (1st Cir. 1999) ("The unchallenged portions of the PSR

provide us with an independent ground on which to justify our

decision."). The PSR's unchallenged recommended quantity finding

was more than adequate to meet the threshold of 30 kilograms of

heroin or 8.4 kilograms of crack cocaine required for a Base

Offense Level of 38. U.S.S.G. § 2D1.1(c).

Second, even relying only on the lesser quantities of

drugs for which the jury found Vázquez responsible beyond a

reasonable doubt, Vázquez still would have been subject to a

Guidelines Sentencing Range that included life in prison. Vázquez

does not challenge the twelve levels worth of enhancements the

district court applied to determine his Total Offense Level.

Therefore, a Base Offense Level of 31 or more would have resulted

in the same maximum Total Offense Level of 43 and the same

Guidelines Sentencing Range of life in prison. And indeed,

considering only the four possession counts (Counts II-V) and

leaving aside the conspiracy count (Count I), the jury found beyond

a reasonable doubt that Vázquez possessed with intent to distribute

enough of each drug that his Base Offense Level would have been 32

based only on the jury's findings. See U.S.S.G. § 2D1.1(c)(4). The

verdict form completed by the jury asked, for Counts II through V,

"[d]o you find beyond a reasonable doubt that the quantity of

controlled substances that [Vázquez] possessed with the intent to

distribute was" equal to or more than one kilogram of heroin, 50

-30-
grams of crack cocaine, five kilograms of cocaine, and 100

kilograms of marijuana. The jury checked "yes" in response to each

question. One kilogram of heroin or five kilograms of cocaine

alone would be sufficient for a Base Offense Level of 32. Id.

Alternatively, grouping together the quantities found by the jury

yields a total offense quantity equal to 2,278.55 kilograms of

marijuana equivalents.15 See id. §§ 3D1.2(d), 3D1.3(b) (grouping

drug offenses); 2D1.1 cmts. 8(B), (D) (combining different

controlled substances using marijuana equivalents). Because this

amount is between 1,000 and 3,000 kilograms of marijuana, it too

yields a Base Offense Level of 32. Id. § 2D1.1(c)(4).

A Base Offense Level of 32, with the unchallenged twelve

levels of enhancement, would have resulted in a Total Offense Level

of 44. The Total Offense Level must be reduced to the maximum of

43, id. ch. 5, pt. A, cmt. n.2, the same Total Offense Level that

the district court used in sentencing Vázquez to life in prison.

Therefore, the district court's clear and obvious error did not

affect Vázquez's sentence, and does not require reversal on plain

error review.

15
One kilogram of heroin is equivalent to 1,000 kilograms of
marijuana; 50 grams of crack cocaine is equivalent to 178.55
kilograms of marijuana; and five kilograms of cocaine is equivalent
to 1,000 kilograms of marijuana. U.S.S.G. § 2D1.1 cmt. 8(D). The
total grouped marijuana equivalents for Counts II to V is therefore
1,000 kilograms + 178.55 kilograms + 1,000 kilograms + 100
kilograms = 2,278.55 kilograms.

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 2. Life Sentence in Excess of Statutory Maximum on
Count VI

In his opening brief, Vázquez mentions in passing that

his life sentence for the firearm offense (Count VI) exceeded "the

maximum penalty."16 He did not develop this point in any of his

briefs or at oral argument. Usually, we deem such a perfunctory

challenge to waive a challenge to many types of claimed error.

Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived."). Here, though, where the error that comes to

our attention on direct review is a plainly unlawful and excessive

sentence (albeit on one count only), we may set aside the error to

prevent a miscarriage of justice. See United States v.

García-Ortiz, 528 F.3d 74, 85 (1st Cir. 2008) (deciding to address

otherwise waived argument that life sentence on one count exceeded

statutory maximum to prevent a miscarriage of justice, even though

defendant was still subject to life sentence on another count).

16
This passing reference reads in full, "[h]ere, where the
defendant was issued a life sentence on counts one through six of
the indictment, exceeding the maximum penalty for counts three,
five, and six of the indictment, the failure to perform the
required analysis of drug amount affected the defendant's
substantive rights and the fairness, integrity or public reputation
of the judicial proceedings." His suggestion that the life
sentences on the crack cocaine and marijuana possession charges
(Counts III and V) exceeded the statutory maximum is without merit.
Vázquez faced a statutory maximum of life imprisonment on those two
counts based on a prior felony drug conviction and the quantities
of crack cocaine and marijuana (fifty grams and one hundred
kilograms, respectively) that the jury found Vázquez possessed with
intent to distribute. See 21 U.S.C. § 841(b)(1)(B)(iii), (vii).

-32-
 The error here is Vázquez's life sentence for the firearm

offense, Count VI, which exceeds the applicable statutory maximum.

18 U.S.C. § 924(o) (a defendant convicted of conspiracy to possess

a firearm in furtherance of a drug offense "shall be imprisoned for

not more than 20 years"); see United States v. Almonte-Nuñez, 771

F.3d 84, 92 (1st Cir. 2014) ("Guideline calculations simply cannot

usurp a maximum level of imprisonment established by Congress.").

Section 924(o) does provide for a maximum life sentence "if the

firearm is a machinegun or destructive device, or is equipped with

a firearm silencer or muffler," but there was no such finding by

the jury here.

As a practical matter, Vázquez's overall sentence of life

in prison will not change even if we vacate his above-the-maximum

sentence for the firearm possession offense, because the life

sentences on his other five counts (Counts I-V) will remain. We

recently observed that "[w]e have not adopted a uniform rule about

whether, without a preserved claim of error, a defendant who is

sentenced to a term of imprisonment in excess of a statutory

maximum is entitled to relief even though his overall period of

immurement will not be affected." Almonte-Nuñez, 771 F.3d at 92.

Despite the lack of a uniform rule, we further noted that

"[a]lthough particular cases may differ, flexibility exists and,

under normal circumstances, our discretion should be exercised in

favor of trimming back an excessive sentence." Id. In

-33-
Almonte-Nuñez, we decided to exercise this discretion in favor of

modifying a 150-month sentence on one count that was in excess of

the 120-month statutory maximum, even though the defendant still

faced a concurrent 150-month sentence on another count. Id. Two

factors influenced our decision. First, "leaving intact a sentence

that exceeds a congressionally mandated limit may sully the

public's perception of the fairness of the proceeding." Id.

Second, we found it "unwise and unfair" to ask a defendant to bear

the risk of "difficult to predict" "collateral consequences [that]

may arise as a result of an above-the-maximum sentence imposed on

a particular count." Id.

Here, Vázquez faces a smaller risk of harm from

collateral consequences than the defendant in Almonte-Nuñez

because, regardless of our decision, he must serve five concurrent

life sentences on five other counts. But leaving in place the

plainly unlawful sentence for Count VI could sully public

perception of the proceeding. And, at least in theory, collateral

review or other unpredictable events might alter someday the impact

of the conviction on the other counts. We therefore remand to the

district court with instructions to enter a modified sentence of

twenty years in prison for the firearm offense (Count VI). See id.

at 92-93.

-34-
D. Ineffective Assistance of Counsel

Vázquez's final challenge is that his trial counsel was

constitutionally deficient for failing to object to leading

questions on direct examination, inadmissible hearsay testimony,

testimony about the murders, and the prosecutor's allegedly

improper remarks during closing. See Strickland v. Washington, 466

U.S. 668 (1984). As a general rule, this court does not review

ineffective assistance of counsel claims on direct appeal. United

States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). There is an

exception "where the critical facts are not genuinely in dispute

and the record is sufficiently developed to allow reasoned

consideration of an ineffective assistance claim," United States

v. Reyes, 352 F.3d 511, 517 (1st Cir. 2003) (internal quotation

marks omitted), but "why counsel acted as he did [is] information

rarely developed in the existing record," and this information is

crucial to resolve an ineffective assistance claim. United States

v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006). Because we can

only speculate based on this record as to "why counsel acted as he

did," id., we decline to review Vázquez's ineffective assistance of

counsel claim on direct appeal.

IV. Conclusion

For the foregoing reasons, we affirm Vázquez's

convictions on all six counts. We also affirm his life sentences

-35-
on Counts I, II, III, IV, and V, but order the district court to

enter a modified sentence of twenty years on Count VI.

So ordered.

-36-