United States v. Alejandro-Montañez

United States Court of Appeals
For the First Circuit

Nos. 12-2035
12-2037
12-2041

UNITED STATES OF AMERICA,

Appellee,

v.

JOSUÉ ALEJANDRO-MONTAÑEZ, JULIO SEVERINO-BATISTA,
and EDDIE ALEJANDRO-MONTAÑEZ,

Defendants, Appellants.

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

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

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

David A.F. Lewis for appellant Josué Alejandro-Montañez.
Leslie W. O'Brien for appellant Julio Severino-Batista.
Joshua L. Gordon for appellant Eddie Alejandro-Montañez.
Carlos R. Cardona, Assistant United States Attorney, with whom
Francisco A. Besosa-Martínez, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

February 18, 2015
 KAYATTA, Circuit Judge. Criminal defendants Josué

Alejandro-Montañez, Julio Severino-Batista, and Eddie Alejandro-

Montañez ("Defendants") appeal from convictions and sentences

related to a criminal conspiracy to import cocaine. Defendants

argue that the district court: (1) erred in denying their motions

for judgment of acquittal; (2) erred in determining cocaine quantity

at sentencing; (3) abused its discretion in fashioning their

sentences; (4) violated their Sixth Amendment right to a public

trial; and (5) erred in applying a two-level sentencing enhancement

for the foreseeable presence of a firearm. We reject each of

Defendants' arguments. Nevertheless, in light of newly promulgated

Amendment 782 to the United States Sentencing Guidelines, we accept

the parties' joint request that we remand for reconsideration of the

sentences.

I. Background

Along with four other co-conspirators, Defendants were

indicted and convicted for a conspiracy that spanned from June 2008

to March 2009. In considering a challenge to the sufficiency of the

evidence supporting a guilty verdict, we recount "the facts in the

light most favorable to the verdict." United States v. Adorno-

Molina, 774 F.3d 116, 119 (1st Cir. 2014).

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A. The Charged Conspiracy

In June 2008, the Drug Enforcement Agency ("DEA") paid a

confidential informant ("CI")1 to lure large-scale, Puerto Rican drug

traffickers into a sham drug-purchasing scheme. Their target was

Raúl Feliciano-López ("Fora").

CI first met Fora on June 20, 2008, at a restaurant in

Isla Verde, Puerto Rico. CI proposed an ambitious deal to import

1000 kilograms of cocaine, via commercial air carrier, from Colombia

to Puerto Rico, and from Puerto Rico on to Miami. Fora responded

that he could receive, store, and distribute drugs, as well as

provide related services. On June 26, at a restaurant in Puerto

Nueveo, Fora introduced CI to a crooked cop named Victor Esquilin-

Rosa, who could provide security. On August 28, again in Puerto

Nueveo, Fora introduced CI to an unidentified person who knew people

who could transport the cocaine by sea. This August 28 introduction

was the last conspiratorial activity for a six-month period, during

which CI was in Colombia.

On February 24, 2009, CI reinitiated contact with Fora and

Esquilin, letting them know that he had returned to Puerto Rico. CI

scaled back the shipment amount to 200 kilograms. A series of

recorded phone calls took place between CI, Fora, and others, with

1
We identify the informant as CI "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).

-3-
at least one involving defendant Julio Severino. On February 25,

CI, Fora, Esquilin, and Severino met where CI and Fora had first met

at a restaurant in Isla Verde. CI stated that he now expected a

500-kilogram cocaine shipment, and asked if he could count on them

for "everything" including "security [and] firearms." Fora

responded, "yes."

On March 4, CI, Fora, and Severino met at another

restaurant in Isla Verde to discuss particulars, specifically, where

and how to receive the cocaine. The plan was to transport and

receive the cocaine by sea rather than by a commercial air carrier,

as originally discussed. The following day, the same three men met

at a parking lot and then drove to a beach in the Dorado area of

Puerto Rico, scouting spots to unload the drugs. On March 10, they

scouted locations near El Corcho Beach in Humacao. The defendants

Alejandro brothers were supposed to join this second scouting

expedition, but did not arrive in time. Later that day, the

Alejandro brothers met CI,2 and spoke about their roles in assisting

the drug delivery. The brothers suggested a different beach on

which to receive the drugs, and Eddie gave CI his telephone number.

On March 12, CI called Eddie to verify if "everything

[was] ready." The next day, Fora called CI and said that Josué

informed him that weather conditions were poor. On March 14, Fora

called CI and said that they were ready. On March 15, CI called

2
Fora and Severino were also at this meeting.

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Fora and Eddie, telling them that the drugs would be delivered later

that night.

In the early morning on March 16, the drug deal took place

at a pier in Peñuelas. CI met Fora, Severino, and the Alejandro

brothers. CI told them that the current shipment would be 300

kilograms of cocaine. CI observed Eddie carrying a firearm. To

receive the shipment, the conspirators brought in total four

vehicles, including the Alejandro brothers' SUV, which Eddie drove.

A vessel, manned by DEA agents, pulled up to the pier with four

sacks of sham cocaine. Severino and Josué Alejandro walked out to

the pier to retrieve the sacks of sham cocaine. Eddie Alejandro

waited by his SUV. DEA and Puerto Rico police then swooped in and

made arrests. Police seized a pistol from Eddie's person. Police

later searched the Alejandro brothers' SUV, finding two handguns and

a rifle.

B. Trial and Sentencing

Fora and Esquilin pled guilty and were sentenced to 150

and 144 months, respectively. Josué Alejandro, Julio Severino, and

Eddie Alejandro went to trial and were found guilty.

The court sentenced Severino first. In calculating

Severino's Sentencing Guidelines range, the district court held him

accountable for 200 kilograms of cocaine, which, at that time,

yielded a base offense level of 38. U.S. Sentencing Guidelines

Manual § 2D1.1(a)(1) (2011). Under United States Sentencing

-5-
Guidelines section 2D1.1(b)(1), he was subject to a two-level

increase for the foreseeable presence of a firearm during the

offense. His Guidelines sentencing range was 292–365 months. In

crafting a below-Guidelines 192-month sentence, the district court

noted Severino's lack of criminal history, the fact that he did not

personally carry a weapon, and his age (53 years).

The court then sentenced Josué and Eddie Alejandro. In

applying the Sentencing Guidelines, the district court also held

Josué and Eddie Alejandro accountable for 200 kilograms of cocaine,

which, at that time, yielded a base offense level of 38. Id.

§ 2D1.1(c)(1). At the same time, after observing that CI controlled

the actual amount of ersatz drugs involved, the district court

assigned them the base offense level (36) applicable for 50 to 150

kilograms of cocaine. Under United States Sentencing Guidelines

section 2D1.1(b)(1), they were also subject to a two-level increase

for the foreseeable presence of a firearm during the offense. The

resulting Sentencing Guidelines range for both brothers was 235–293

months. The district court sentenced each to 240 months in prison.

II. Analysis

A. The Sufficiency of the Evidence

Defendants argue that the district court erred in denying

their motions for judgment of acquittal. We review the denial of

such motions de novo. United States v. Rosado-Pérez, 605 F.3d 48,

52 (1st Cir. 2010). All reasonable inferences are drawn in favor of

-6-
the prosecution. Id. "If a reasonable jury could find the

defendants guilty beyond a reasonable doubt of all elements of the

charged offense, we must affirm the conviction." Id. Testimony

from even just "one witness can support a conviction." United

States v. De La Paz-Rentas, 613 F.3d 18, 25 (1st Cir. 2010); see

also United States v. Torres-Galindo, 206 F.3d 136, 139–40 (1st Cir.

2000) (noting that "uncorroborated testimony of a cooperating

accomplice may sustain a conviction so long as that testimony is not

facially incredible").

Here, Defendants challenge (1) the sufficiency of the

evidence to convict them of any conspiracy, and (2) the sufficiency

of the evidence to convict them of the indictment's overarching

conspiracy. After quickly disposing of their first challenge, we

give some attention to their second before concluding, similarly,

that the evidence was more than sufficient.

1. Sufficiency of the evidence to convict Defendants of
any conspiracy.

"To sustain a conspiracy conviction, the government must

show that the defendant knowingly agreed with at least one other

person to commit a crime, intending that the underlying offense be

completed." United States v. Ledee, 772 F.3d 21, 32 (1st Cir. 2014).

"The agreement need not . . . be express, [and] may consist of no

more than a tacit understanding." United States v. Dellosantos, 649

F.3d 109, 115 (1st Cir. 2011) (internal quotation marks omitted).

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 Here, the record is replete with evidence that Defendants

knowingly agreed to import and distribute a shipment of cocaine that

involved more than five kilograms, as charged in the indictment.3

At trial, the government introduced recorded phone calls during

which the Defendants planned logistics. CI also recorded in-person

meetings with Defendants, discussing cocaine amounts in the hundreds

of kilograms. Moreover, police arrested Defendants while they were

actually in the process of unloading four sacks of fake cocaine, in

the middle of the night, with four cars, and multiple weapons. CI

testified at trial and relayed all of this first-hand information to

the jury. In short, the evidence virtually compelled a finding that

Defendants conspired to import and possess five kilograms or more of

cocaine.

2. Sufficiency of the evidence to convict Defendants of
the indictment's overarching conspiracy.

We turn to the Defendants' fall-back argument, that the

evidence was insufficient to convict them of the specific

overarching June 2008–March 2009 conspiracy charged in the

indictment.

Defendants argue that the evidence at trial showed at

least two conspiracies: a June–August 2008 conspiracy to import

larger amounts of cocaine from Colombia to Miami, and a separate

3
The fact that the cocaine was, unbeknownst to Defendants,
fake, offers them no escape hatch. See, e.g., Dellosantos, 649 F.3d
at 115 ("The agreement is the sine qua non of a conspiracy.").

-8-
February–March 2009 conspiracy to import smaller amounts of cocaine,

with no Miami distribution plans. Defendants argue that the six-

month lull between the 2008 conspiratorial activities and the 2009

conspiratorial activities prevents a reasonable jury from finding

them guilty beyond a reasonable doubt of the charged conspiracy.

Defendants joined the conspiracy after the six-month lull and thus,

their argument runs, they cannot be convicted of a conspiracy

including the events of June–August 2008.

Whether the evidence evinces one or multiple conspiracies

"is a question of fact for the jury and is reviewed only for the

sufficiency of the evidence." United States v. Niemi, 579 F.3d 123,

127 (1st Cir. 2009). With the jury properly instructed, as here,4

on the need to determine whether the defendants were guilty of the

charged conspiracy, the guilty verdict "can be seen as an effective

rejection of the multiple conspiracy theory." United States v.

Wihbey, 75 F.3d 761, 775 n.8 (1st Cir. 1996) (citing United States

v. Sepulveda, 15 F.3d 1161, 1191 (1st Cir. 1993)). While there may

be conflicting inferences, as long as the evidence is adequate to

permit a reasonable trier of fact to find a single conspiracy beyond

a reasonable doubt, "the jury's finding will not be disturbed on

appeal." United States v. Mangual-Santiago, 562 F.3d 411, 421 (1st

Cir. 2009).

4
Defendants do not challenge the jury instructions.

-9-
 When evaluating whether the evidence can support the

existence of a single conspiracy, "we ultimately look to the

totality of the evidence." Id. We "pay[] particular heed to

factors such as the existence of a common goal, evidence of

interdependence among the participants, and the degree to which

their roles overlap." Niemi, 579 F.3d at 127 (quoting United States

v. Fenton, 367 F.3d 14, 19 (1st Cir. 2004)).

Looking at the totality of the evidence, a reasonable

jury, drawing inferences from the record, could find beyond a

reasonable doubt the "common goal," "interdependence," and "overlap"

factors satisfied here. Specifically, the jury could find that the

conspirators maintained the common goal of importing large

quantities of cocaine from Colombia into Puerto Rico for profit;

that each conspirator's role was individually necessary for the

success of the overall conspiracy; and that Fora was the

conspiracy's leader throughout its lifetime, satisfying the overlap

factor, see United States v. Portela, 167 F.3d 687, 695 (1st Cir.

1999) (noting that "[t]he overlap requirement can be satisfied by

the pervasive involvement of a single core conspirator") (internal

quotation marks omitted).

The common goal factor is given a "wide breadth." United

States v. Sanchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008); see also

Portela, 167 F.3d at 695 (finding common goal factor satisfied by

each defendant's "interest in furthering the distribution of

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cocaine"). Here, Defendants attempt to carve one conspiracy into

two, based on differences between the 2008 and 2009 plans, plus the

six-month hiatus. In 2008, the plan involved using a commercial air

carrier to bring larger amounts of cocaine from Colombia to Puerto

Rico, and ultimately on to Miami. In 2009, the plan involved

maritime transportation, a smaller cocaine quantity, and no Miami

distribution plans. That the plan changed does not prevent the jury

from finding one conspiracy existed. Here, too, the last meeting

before the lull foreshadowed the move to a maritime conveyance. The

conspirators maintained a broader unitary goal of importing cocaine

across the 2008 and 2009 time frames. That constant objective

satisfies the common goal factor. See Portela, 167 F.3d at 695.

Interdependence among the conspirators "requires

determining whether the activities of one aspect of the scheme are

necessary or advantageous to the success of another aspect of the

scheme." Id. (internal quotation marks omitted). "[E]vidence of

another individual participant's understanding of the

interdependence of the co-conspirators' activities is evidence--

often the best evidence--of tacit agreement between the individual

and his co-conspirators." Id. Here, Defendants note that none of

them was involved in 2008. While true, that does not diminish the

interdependence that ultimately existed between them and the other

conspirators. Each conspirator played a necessary role in the

conspiracy. Fora was the organizer who connected Esquilin and

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Defendants to CI. While Defendants joined at the eleventh hour,

their roles were no less important for it. Defendants provided

security, firearms, and vehicles--necessary support to ensure safe

transportation of the drugs. That Defendants joined late and were

not involved in the early planning stages does not prevent the jury

from finding a single conspiracy on this record. See id. at 696

("The fact that every defendant did not participate in every

transaction necessary to fulfill the aim of their agreement does not

transform a continuing plan into multiple conspiracies." (internal

quotation marks omitted)). It would be perfectly reasonable for a

jury to find a single, continuing plan, starting in June 2008 and

coming into fruition in March 2009. The June 2008 preliminary

planning meetings gave rise to the February–March 2009 events. The

evidence here was "adequate to permit a reasonable trier of fact to

have found a single conspiracy beyond a reasonable doubt." Mangual-

Santiago, 562 F.3d at 421. As such, "the jury's finding will not be

disturbed." Id.

Additionally, even accepting Defendants' contention that

the evidence shows two separate conspiracies, it would make no

difference to the outcome here. At worst, we would have a

nonprejudicial variance between the charged crime and the evidence

adduced at trial. See id. ("[A] variance is grounds for reversal

only if it is prejudicial.").

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 Here, all of the drugs, indeed all sentencing factors,

attributed to Defendants arose from the latter part of the

conspiracy. Had they only been charged with that part, they would

be in exactly the same position. And the overwhelming evidence

against them eliminates any plausible concern that evidence

pertinent only to the earlier stages of the conspiracy might have

prejudicially distracted the defense effort or in any other way

tipped the balance against Defendants.

B. Cocaine Quantity Instructions

Defendants argue that the district court committed error

under Alleyne v. United States, 133 S. Ct. 2151 (2013), because the

jury allegedly did not find the amount of cocaine attributable to

each defendant (an element of the offense) beyond a reasonable

doubt.5 The district court, however, specifically instructed the

jurors for both the possession and importation counts that they

needed to find, beyond a reasonable doubt, that the agreement

specified in the indictment "existed between at least two people to

[possess/import] with intent to distribute five (5) kilograms or

more of a mixture or substance containing a detectable amount of

cocaine; and . . . that the defendant willfully joined in that

agreement." Finally, the district court had jury verdict forms for

each individual defendant on which the jurors specifically found

5
Five kilograms of cocaine is the threshold for the most
aggravated form of drug distribution, and carries a mandatory
minimum of 10 years. 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(B).

-13-
that the amount of cocaine involved in the offense was more than

five kilograms.

Defendants also argue that the district court should have

instructed the jury on the lesser included (i.e., lower amount)

offenses under 21 U.S.C. § 841(b)(1)(B),(c). But they never asked

for such an instruction, cite no authority for why it was

nevertheless required, and, in any event, cannot establish plain

error prejudice given the overwhelming evidence of a quantity in

excess of five kilograms. See United States v. Dominguez Benitez,

542 U.S. 74, 81 (2004) (plain error must have "a prejudicial effect

on the outcome of a judicial proceeding").

C. Sentencing Disparities

Defendants next argue that the disparity between

Defendants' sentences and those of similarly-situated co-defendants

manifests an unreasonable application of 18 U.S.C. § 3553(a)(6),6

which requires the district court to "consider the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct." They claim

that the district court did not explain how the least culpable

conspirators ended up with the harshest sentences. But the district

court did supply a sufficient reason for the disparity between

6
Presumably because his sentence was four years shorter than
those given to the Alejandro brothers, Severino does not argue that
the court erred in failing to reduce his base offense level as it
reduced the levels for the Alejandro brothers.

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Defendants and other conspirators: namely, the other conspirators

pled guilty before trial.7 See United States v. Vaszquez-Rivera, 470

F.3d 443, 449 (1st Cir. 2006) ("Although a district court may

consider disparities among co-defendants in determining a sentence,

we do not find [a defendant's] sentence to be unreasonable simply

because his co-defendants agreed to help the government in exchange

for reduced sentences."); see also United States v. Yeje-Cabrera,

430 F.3d 1, 26–27 (1st Cir. 2005) ("[A] defendant simply has no

right to a sentence, after trial, that is as lenient as a sentence

he could have had earlier in a plea bargain.").

D. Public Trial Right

In his brief to this court, Josué Alejandro argues for the

first time that the district court excluded Defendants' family

members from the courtroom during jury selection.8 Because

Defendants did not object at trial, we review only for plain error.

See United States v. Colon, 744 F.3d 752, 757 (1st Cir. 2014).

Here, Defendants trip at the first hurdle of plain error review.

The record fails to support their claim that the courtroom was ever

closed, during voir dire or at any other time.

7
The district court considered additional factors, including
that Eddie Alejandro provided weapons and transportation.
8
Julio Severino and Eddie Alejandro subsequently incorporated
this argument into their briefs.

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E. Two-level Firearm Sentencing Enhancement

Defendants were each subject to a two-level enhancement

under United States Sentencing Guidelines section 2D1.1(b)(1) for

the foreseeable presence of a firearm during the drug offense.

"That guideline applies if a dangerous weapon was possessed during

the course of a drug-trafficking offense, provided that the presence

of the weapon was known to, or reasonably foreseeable to, the

defendant." United States v. Fermin, 771 F.3d 71, 82 (1st Cir. 2014)

(citing United States v. Quiñones-Medina, 553 F.3d 19, 23 (1st Cir.

2009)). The Alejandro brothers were acquitted of a firearm charge,

but were still subject to the two–level enhancement. Severino was

not charged with the firearm violation, but was also ultimately

subject to the enhancement. Defendants acknowledge the state of the

law on this issue, but seek to preserve their claim for Supreme

Court review. We review the district court's Sentencing Guidelines

interpretation de novo and its factual findings for clear error.

United States v. Ortiz-Torres, 449 F.3d 61, 77 (1st Cir. 2006).

As the law now plainly stands, "acquitted conduct, if

proved by a preponderance of the evidence, . . . may form the basis

for a sentencing enhancement." United States v. Gobbi, 471 F.3d

302, 314 (1st Cir. 2006). The district court's factual findings

were not clearly erroneous. Eddie and Josué Alejandro brought a

vehicle to the pier that had three weapons hidden in a secret

compartment. Eddie was arrested with a firearm on his person.

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Severino similarly was with these other men throughout planning

meetings, on the night of the drug deal, and was hired in part to

provide additional security. With this record, the district court

did not clearly err in finding that Severino also foresaw that a

firearm would be present in the course of the offense.

F. Recent Amendments to the Federal Sentencing Guidelines

Defendants filed a supplemental brief seeking to reduce

their sentences based on Amendment 782 to the Sentencing Guidelines,

which became effective on November 1, 2014, and retroactively

reduced most drug quantity base offense levels by two levels. See

U.S. Sentencing Guidelines Manual. app. C. After oral argument, the

government replied, conceding that this court should remand to

determine whether to reduce Defendants' sentences.

District courts "may" reduce prison terms if the

defendant's sentence was "based on a sentencing range that has

subsequently been lowered by the Sentencing Commission . . . if such

a reduction is consistent with applicable policy statements issued

by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The

Sentencing Commission permits a sentence reduction under section

3582(c)(2) if an amendment, declared retroactive, lowers a

defendant's applicable Guidelines range. U.S. Sentencing Guidelines

Manual § 1B1.10(a)(1). The Sentencing Commission expressly made

-17-
Amendment 782 retroactive, effective as of November 1, 2015.9 See

id. § 1B1.10(d), (e)(1) (2014). When considering a sentence

reduction, the district court "shall substitute the amended

Guidelines range for the initial range and shall leave all other

guideline application decisions unaffected." Dillon v. United

States, 560 U.S. 817, 831 (2010) (quoting U.S. Sentencing Guidelines

Manual § 1B1.10(b)(1)).

Defendants' sentences were based on a sentencing range now

reduced by Amendment 782. We therefore grant Defendants' unopposed

request that we remand their cases back to the district court for a

determination of whether and to what extent a sentencing reduction

is warranted for that reason.

III. Conclusion

For the foregoing reasons the judgment of the district

court is affirmed. These cases are nevertheless remanded to the

district court so that it may consider a sentencing reduction in

accord with Amendment 782.

So ordered.

- Concurring Opinion Follows -

9
Amendment 782 became immediately effective for defendants
sentenced on or after November 1, 2014. For defendants who were
sentenced prior to the effective date, like the Alejandro brothers,
Amendment 782 does not have retroactive effect until November 2015.
U.S. Sentencing Guidelines Manual § 1B1.10(e)(1) (2014). A
district court may accept motions for retroactive application prior
to November 1, 2015, provided that any potential sentencing
reduction not take effect until November 2015. Id. § 1B1.10 cmt.
n.6.

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 TORRUELLA, Circuit Judge (Concurring). I join the court's

opinion but write separately to note my continued disagreement with

the current state of the law regarding certain sentencing

enhancements. As I have stated previously, see generally United

States v. St. Hill, 768 F.3d 33 (1st Cir. 2014) (Torruella, J.,

concurring), and thus will not rehash in detail here, I believe it

is inappropriate and constitutionally suspect to enhance a

defendant's sentence based on conduct that the defendant was either

(in the case of Severino) not charged with or (in the case of the

Alejandro brothers) acquitted of. The two-level "gun-bump"

enhancement falls squarely into this category.

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