United States v. Nieves-Canales

United States Court of Appeals
For the First Circuit

Nos. 11-2328
12-1442
12-2412

UNITED STATES OF AMERICA,

Appellee,

v.

RAMÓN LANZA-VÁZQUEZ, a/k/a Ramoncito;
LUIS R. NIEVES-CANALES, a/k/a Sito;
RAFAEL GALÁN-OLAVARRÍA, a/k/a Galán,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

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

David Shaughnessy for appellant Rafael Galán-Olavarría.
Lydia Lizarríbar-Masini for appellant Luis Nieves-Canales.
Inga L. Parsons for appellant Ramón Lanza-Vázquez.
Olga B. Castellón-Miranda, 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.
August 27, 2015
 HOWARD, Chief Judge. Ramón Lanza-Vázquez ("Lanza"), Luis

R. Nieves-Canales ("Nieves"), and Rafael Galán-Olavarría ("Galán"),

(collectively, "the defendants"), appeal convictions and sentences

resulting from their participation in a drug distribution

conspiracy. They lodge a litany of challenges covering nearly

every aspect of the proceedings below. Finding no reversible

error, we affirm.

I.

We begin by briefly sketching the facts most relevant to

our analysis.1

A. The Drug-Trafficking Operation

This case arises from a drug trafficking operation at the

Jardines de Sellés Housing Project in San Juan, Puerto Rico

("Sellés"). On January 26, 2000, the leader of that operation,

Luis Daniel Rivera, was murdered. This created a leadership

vacuum, which Alberto Carillo-Morales ("Alfalfa") swiftly moved to

fill. Within two days, he had succeeded in taking control.

Upon taking power, Alfalfa adopted an unforgiving and

oppressive management style. He held regular meetings with his

1
The background facts of the conspiracy and the defendants'
roles in the conspiracy are relevant to Nieves' sufficiency of the
evidence challenge. We therefore view them in the light most
favorable to the jury verdict. See United States v. Burgos, 703
F.3d 1, 4 n.1 (1st Cir. 2012). We consider the remaining facts --
those relevant to the remaining challenges that we discuss in this
opinion -- in a "balanced" manner. See United States v. Burgos-
Montes, 786 F.3d 92, 99 (1st Cir. 2015).

-3-
closest co-conspirators to discuss the operation and to plot

strategy. If an individual sold drugs at Sellés, he or she was

doing so on Alfalfa's behalf or with his blessing. Indeed, the

jury could have concluded that Alfalfa would order his gang to kill

or harm any individual who either disobeyed that rule or who merely

expressed disagreement with his decisions.

As for the drug business itself, Alfalfa implemented a

number of changes. The jury heard evidence that Alfalfa instituted

a hierarchical system: drug "owners" were responsible for obtaining

drugs (and benefitted most from the sales); "runners" transported

the drugs and money from owner to seller; and "sellers" positioned

themselves at drug points to distribute the goods. "Enforcers"

were also tasked with protecting the drug points at Sellés, which

operated 24 hours a day. Relatedly, Alfalfa expanded the number of

drug points at Sellés, and his subordinates sold a variety of drugs

including crack cocaine, powder cocaine, heroin, and marijuana.

The bags containing his drugs typically included a sticker bearing

the face of Osama Bin Laden.

After tightening his grip on power at home, Alfalfa

turned outwards. Around 2004, Alfalfa ordered his men, armed with

guns, to take over the operation at the El Prado housing unit.

They successfully did so. Around the same time, he took over Las

Flores, a housing project in nearby Aibonito. He also briefly took

control of the Liborio Ortiz Housing Project. These territorial

-4-
grabs consistently ignited shootings and fights among the different

drug-trade organizations.

B. The Defendants

The three defendants in this case each joined Alfalfa's

operation at different times and in distinct ways. For instance,

the jury could have found that Defendant Nieves was one of

Alfalfa's initial co-conspirators. From the beginning, he was a

drug owner; he specifically owned the "$12 bag" of marijuana. In

addition to selling that product at Sellés, he served as an

enforcer and protector at drug points. Although he lawfully

possessed a number of guns, he also carried several illegal

firearms. Moreover, he participated in shootings with rival gangs

when it suited his boss's interests.

The evidence likewise supported the finding that

Defendant Galán joined Alfalfa's operation as a seller at Sellés.

Early on, he expressed an interest in rising through the ranks of

the organization, as he wanted to become a drug owner himself.

Alfalfa's expansion into El Prado provided Galán with that

opportunity. He became an owner of a brand of marijuana at El

Prado and enlisted José Serrano-Ayuso ("Serrano") to serve as his

runner. The two met nightly at Galán's apartment, where Serrano

would deliver money and the men would count it together.

Finally, evidence established that Lanza joined Alfalfa's

group after leaving a rival organization. He served as a seller,

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enforcer, and (occasionally) as a runner. As time progressed, his

role became more substantial; for instance, he was invited to join

Alfalfa's weekly meetings. He also became owner of the "green-

capped" crack at El Prado. As a result, Lanza was spotted

conducting business at El Prado on a nearly nightly basis.

C. The Investigation and Indictment

These illicit activities did not go unnoticed, and an

investigation into Alfalfa's operation by a San Juan Metro Strike

Force accelerated in May and June of 2007. As part of that

investigation, agent Jorge L. Cedeño surveilled the El Prado

apartments. He positioned himself in a parking lot facing Galán's

apartment building. According to Cedeño's affidavit, he quickly

became familiar with the building's layout, and knew that the

second floor had two apartments: one to the left and one to the

right (Galán's purported home). From his usual position, he said,

he could not see the actual door to the apartment on the right, but

he could see the door to the apartment on the left and he could

view the stairs leading to the third floor (along with the exit on

the third floor).

On at least two occasions between May 30 and June 6,

Cedeño purportedly saw Galán walking up to the second floor,

turning right, and disappearing for a period of time. Cedeño

concluded (since he would have seen Galán go anywhere else) that

Galán must have been entering the apartment. On a third occasion,

-6-
according to the agent, he also saw an individual with a black

pistol take the same path. Agent Cedeño stated that he also

witnessed Galán with certain contraband, including: containers

ordinarily used to hold drugs; bags with what appeared to be

cocaine inside; and a police radio scanner. Finally, Cedeño

claimed that he saw Galán sitting in the stairwell manipulating

product.

As noted, Cedeño submitted an affidavit detailing these

(and other) observations, and a judge of the San Juan Municipal

Court approved a search warrant for Galán's apartment. During the

search, the police recovered: a police radio scanner that was

turned on; a firearm cleaner; a loaded AK-47 with two magazines;

$1,064 in cash; two social security cards; pressure-sealed baggies;

and stickers/seals depicting Osama Bin Laden's face. The officer

also found registrations for three cars and a driver's license.

One of the registrations matched a vehicle seen in video

surveillance at a Sellés drug point.

At the conclusion of the investigation, a federal grand

jury indicted 121 defendants, including the three in this case. It

charged: (count I) conspiracy to possess with intent to distribute

drugs; (count II) aiding and abetting possession with intent to

distribute heroin; (count III) aiding and abetting possession with

intent to distribute crack cocaine; (count IV) aiding and abetting

possession with intent to distribute cocaine; (count V) aiding and

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abetting possession with intent to distribute marijuana; and (count

VI) conspiracy to possess a firearm during and in relation to drug

trafficking. Galán was also charged as being a felon in possession

of a firearm, (Count VII). Galán, Lanza, and Nieves were jointly

tried.

D. The Trial, Verdict, and Sentence

At trial, the government relied on physical evidence

(such as the items found in Galán's apartment), the testimony of

law enforcement officers (such as Agent Cedeño) and, perhaps most

importantly, the testimony of several co-conspirators. Three were

prominent.

The first was Wilberto Pizarro-Santiago ("Pizarro") who

was a drug seller at Sellés from 1998 to 2005. He subsequently

worked for a rival gang. At trial, he testified extensively about

Alfalfa's operation and made clear that if an individual sold drugs

at Sellés it was on Alfalfa's behalf. He discussed the

organization and provided details about the murder of "Geno" -- an

associate who had expressed disagreement with Alfalfa's decisions.

Pizarro specifically identified Nieves as the owner of the "$12

bag" of marijuana and referenced specific instances in which he saw

Nieves carrying firearms. Indeed, he alleged that Nieves was

"always armed." In addition to identifying Nieves, Pizzaro also

testified that Lanza attended Alfalfa's inner-circle meetings and

was an enforcer within the organization.

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 The second co-conspirator, Serrano, worked at El Prado as

a runner and enforcer for Galán. At trial, he identified Lanza as

part of the operation, described Alfalfa's takeover of El Prado,

and explained how he came to work directly for Galán. Since he was

Galán's runner, Serrano was able to provide substantial detail on

their interactions. Serrano also admitted that he was generally

armed to protect Galán.

Finally, José Díaz-Martínez testified about his

experience working for Alfalfa at both Sellés and El Prado. He

described the general framework of the operation and Alfalfa's

style of management. He, too, specifically identified Nieves and

Galán as being drug owners within the organization. He further

explained how Lanza became owner of the green-capped crack at El

Prado.

After an eighteen-day trial, a jury returned verdicts

finding all three defendants guilty on distinct counts. It first

found all three guilty on the initial count of participating in the

overarching conspiracy, count I. Additionally, the jury found

Lanza guilty of the substantive crack cocaine charge; it found

Nieves guilty on the substantive crack cocaine charge, the

substantive cocaine charge, the substantive marijuana charge, and

the firearm conspiracy charge; and, finally, it found Galán guilty

on the substantive marijuana charge, the firearm conspiracy charge,

and the felon in possession of a firearm charge. The court then

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sentenced Lanza to 240 months in prison, Nieves to 240 months, and

Galán to 405 months.

These timely appeals followed.

II.

Galán, Lanza, and Nieves present a laundry-list of claims

ranging from minor evidentiary concerns to broad assertions of

cumulative error. We have considered each and have conducted an

extensive review of the record. Ultimately, only five issues have

merit sufficient to warrant an in-depth exploration.2 We thus

narrow our focus to: (1) Galán's challenge to the search of his

apartment; (2) the defendants' concerns respecting the judge's

intervention during trial; (3) the defendants' protests respecting

the charge to the jury; (4) Nieves' arguments respecting the

sufficiency of the evidence against him; and, (5) Nieves' Alleyne

sentencing contention.3

A. Challenge to the Search of Galán's Apartment

Galán gets the ball rolling with a challenge to the

search of his apartment. His central accusation is that Agent

2
We have considered the remaining arguments and find them to
be unpersuasive.
3
In addition to bypassing detailed discussion of several of
the defendants' claims, we note the government's concern that the
defendants improperly joined each others' appellate arguments and
that each defendant failed to independently object at trial. In a
closer case, these points could be fruitful. Here, we not need
resolve these issues as defendants cannot succeed regardless of
their validity.

-10-
Cedeño intentionally falsified observations in the affidavit

submitted to obtain a warrant for Galán's residence. The district

court, in Galán's view, then erred in ruling otherwise after a

Franks hearing. Franks v. Delaware, 438 U.S. 154 (1978) (providing

a mechanism for a defendant to challenge the veracity of statements

in affidavits submitted to obtain search warrants). He thus asks

us to reverse the district court's Franks determination and

conclude that the fruits of the search should have been suppressed.

Where, as here, a Franks hearing was held and the

challenge is targeted at its results, "[w]e bypass the question of

whether [the defendant] made the 'substantial preliminary showing'

necessary to invoke a Franks hearing," and, instead, "review de

novo the district court's ultimate decision to suppress [or not

suppress] the evidence obtained pursuant to the warrant at issue."

United States v. Tzannos, 460 F.3d 128, 135-36 (1st Cir. 2006).

Any antecedent factual findings are reviewed for clear error. Id.

at 136.

To succeed in challenging the affidavit, Galán must show

by a preponderance of the evidence that "the affiant in fact made

a false statement knowingly and intentionally, or with reckless

disregard for the truth," and, "that with the affidavit's false

material set to one side, the affidavit's remaining content is

insufficient to establish probable cause." Id. at 136. While a

knowing and intentional falsehood requires proof of intent,

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recklessness can be inferred "from circumstances evincing obvious

reasons to doubt the veracity of the allegations." United States

v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002). A material omission

can also form the basis of a Franks violation. United States v.

Castillo, 287 F.3d 21, 25 (1st Cir. 2002).

Galán fails at the first prong. He homes in on Agent

Cedeño's repeated statement in the affidavit that he observed Galán

or other individuals "entering" or "exiting" the apartment. At the

Franks hearing, however, Cedeño testified that he could not

technically see the entrance to Galán's apartment because the door

was obstructed by a concrete staircase. That inconsistency, Galán

insists, exposes an intentional falsehood in the affidavit. Since

those alleged observations by Cedeño were the only statements

connecting the crime with the apartment, Galán believes that once

the statements are excised, no probable cause for the search

exists.

We do not evaluate this argument on a blank slate.

Instead, the district court made extensive factual determinations

and credibility assessments to which we defer unless clearly

erroneous. Notably, the magistrate judge (whose decision was

adopted by the district court), found that Cedeño

testified knowing that there are two
apartments on the second floor. To the left,
there is one apartment, and to the right is
the only other door on that floor. He knows
this because he has gone up those stairs on
several occasions and the distribution is

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 always the same. The door cannot be seen
because the stairs to the third floor cover
the door and if the defendant would have gone
up to the third floor, the officer would have
seen him because of the visibility. The
officer knew that the defendant entered the
apartment because there is no other door . . .
[h]e stated that he would have seen him going
up to third floor.

In the magistrate judge's view, its decision then turned on

Cedeño's credibility. The court found Cedeño's explanation to be

truthful. Accordingly, the magistrate judge ruled that no Franks

violation had occurred.

Regardless of the standard of review, the record -- one

which details Cedeño's familiarity with the apartment complex and

the intensity of his investigation -- compels the same finding. No

evidence supports Galán's belief that Cedeño had any intent to

falsify statements or to omit critical information, nor can we even

say that there were any actual falsehoods in the affidavit. The

circumstances also do not suggest that Cedeño was somehow reckless

in writing "entering/exiting" instead of the more precise "I

inferred that he entered or exited." Simply put, neither the

affidavit nor the hearing transcript supports Galán's view.

Instead, as the district court correctly concluded, Cedeño made an

obvious and natural inference from his observations. See United

States v. D'Andrea, 648 F.3d 1, 14 (1st Cir. 2011) (upholding

-13-
denial of a Franks claim when the factual question turned on the

reasonableness of the inference from the facts available).4

We note that accepting this clear and obvious inference

on this record is entirely consistent with the broader purposes

underpinning Franks: to ensure that a warrant judge has adequate

information to make a decision, and to dissuade officers from

misrepresenting their observations. At its core, this requires

that the officer is being "truthful in the sense that the

information put forth is believed or appropriately accepted by the

affiant as true." Franks, 438 U.S. at 165. Here, the warrant

judge had sufficient and accurate information with which to base a

decision, and nothing in the affidavit (or from the hearing

transcripts) leads us to question Cedeño's belief in the statements

he provided. We thus find no reason to disturb the lower court's

Franks determination.5

B. Judicial Conduct at Trial

Lanza and Galán next assert two, interrelated challenges

to the judge's conduct during trial: (1) the judge purportedly

4
Galán also points us to two state court cases to support
his position. See Commonwealth v. Stewart,13 N.E.3d 981 (Mass.
2014); Harris v. State, 184 S.W.3d 801, 813 (Tex. App. 2005). But,
neither of those cases presented a factual background establishing
that the officer's inferences were both obvious and reasonable.
5
The government also offers the good faith exception as a
fall-back position. The clear absence of any error in the
affidavit makes going down this potentially dubious path, see
United States v. Leon, 468 U.S. 897, 922 n.24 (1984), unnecessary.

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intervened exclusively on behalf of, and associated herself with,

the prosecution; and (2) the judge allegedly made improper comments

about Galán's attorney. The parties dispute whether these claims

were preserved or whether plain error review applies. Given that

the defendants cannot succeed under either standard, we need not

dither. Under the usual framework for judicial bias claims, a

party must still show (1) that "the [judge's] comments were

improper" and (2) that there was "serious prejudice." United

States v. Ayala-Vázquez, 751 F.3d 1, 24 (1st Cir. 2014); see also

United States v. Laureano-Pérez, -- F.3d --, 2015 WL 4577763 at *17

(1st Cir. July 30, 2015).

The defendants' first contention is that the judge

excessively interfered on behalf of, and associated herself with,

the prosecution. They begin this argument by focusing on the

instances when the court allegedly assisted the government. The

defendants cite nearly twenty examples where defense counsel

objected to the prosecution's question, and the court, rather than

merely ruling on the objection, responded by asking the witness a

question in a non-objectionable way or by instructing the

government on how to properly phrase the question. E.g., ("So

counsel, what you want to ask is . . . how [the list] comports to

what he used to prepare."); ("[Y]ou stated that at the police

headquarters you actually saw what was seized, is that correct?");

("[A]sk him if he was the arresting agent he will say no and then

-15-
you will ask him if he knows who arrested them. [A]nd then he

testified he alerted the other agents."); ("He wants to know how

did you get the latent print to look at from the object.") In

doing so, the defendants say, the trial judge essentially doffed

her judicial robe and joined the prosecution.

Of course, the mere fact that the judge intervened is not

enough for us to find error. It is well-established that a judge

"is not a mere moderator, but is the governor of the trial for the

purpose of assuring its proper conduct and of determining questions

of law." Quercia v. United States, 289 U.S. 466, 469 (1933). He

or she thus "has a perfect right -- albeit a right that should be

exercised with care -- to participate actively in the trial

proper." Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997). We

do not examine a single comment by a judge on its own but, instead,

must view it in the context of the entire transcript. United

States v. Espinal-Almeida, 699 F.3d 588, 607 (1st Cir. 2012).

As a comprehensive review of this transcript establishes,

the judge skirted near the line on discrete occasions but, on the

whole, never crossed it. Broadly, the trial lasted 18 days and was

a massive, multi-defendant conspiracy case which the court had the

authority to move through expeditiously. Cf. Deary v. City of

Gloucester, 9 F.3d 191, 194 (1st Cir. 1993) ("The trial judge has

discretion to maintain the pace of trial.") Indeed, the judge was

quite explicit that this was the court's goal. See, e.g., ("I ask

-16-
that the government use the time [a 15 minute break] to identify

the specific spots where they need to go because we need to move

faster.").

More concretely, a pattern emerges with respect to the

judge's participation. The court generally intervened after a

party made a consistent (sometimes repetitive) string of

objections, or when an objection was lodged immediately after the

parties completed a lengthy bench conference discussing that very

same evidentiary issue. In other words, the judge interrupted when

the case was unnecessarily slowing down. While it is true that

this was generally done to the benefit of the prosecution --

though, contrary to what the defendants insinuate, not exclusively

so -- the interactions were largely driven by defense counsels' own

conduct. Defense counsel asserted a plethora of objections (often

repeatedly so or after the judge had made her rulings clear), while

the prosecution exhibited more restraint. Diligent defense of a

client is certainly encouraged, but technical and repetitive

interruptions may properly prompt the trial judge to intervene to

proceed the trial. Indeed, the judge indicated this on several

occasions by saying, for example, "Stop basically, you should stop

objecting on the same grounds it is clear . . . You can further

inquire on cross." The judge was not, despite the defendants

insistence, gratuitously interfering.

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 With respect to this initial claim, Lanza and Galán also

invoke instances where they allege that the judge affirmatively

identified herself with the government and thus, in their view,

turned the jury against the defendants. Three statements, at first

blush, could appear fairly damaging. For example, at one point the

judge said, "Then you get the name in, just to avoid the hearsay

that you got . . .[b]ecause the jury is able to compare,

corroborate or discredit whatever the informant said. We need that

in." (emphasis added). On another occasion, the judge alluded to

the defendants' guilt, stating that, the "proper time" for an

argument "would be at the sentence." Finally, in response to a

defendant's objection, the judge said "the government does not have

any interest to portraying something that is not and it is clear

that the pictures were taken after the search was executed."

These statements in which the judge allegedly

"associated" herself with the prosecution are ultimately not

concerning. In a vacuum, each conceivably could be deemed

problematic. In context, however, they were not inappropriate for

the simple reason that the targeted statements were made outside of

the jury's presence. Since our focus centers on whether the

statements affected the jury (or whether they are so egregious on

their own as to demand significant scrutiny -- which was not the

case here) statements that occur outside of the jury's presence are

generally kosher. United States v. Rivera-Rodriguez, 761 F.3d 105,

-18-
111 (1st Cir. 2014) (citing cases emphasizing that the analytical

question for us is whether the jury perceived bias). Thus, this

first claim respecting the judge's intervention falls flat.

In addition to claiming that the judge unduly assisted

the prosecution, Lanza and Galán advance a second argument

respecting the judge's actions; they point to instances when the

judge allegedly badgered Galán's trial counsel. For example, the

judge said "I'm losing my patience with you," and "I want you to

pay attention because I don't want you to open the door, and you

are quite capable." She further stated that he was "mumbling,"

"exhausting her," and was a "very hyper person and how should I

say, extroverted." These statements, they assert, poisoned the

jury against the defendants.

Here, the court's comments, again, were largely prompted

by trial counsel's conduct. Counsel regularly attempted to re-

litigate matters despite the judge's firm rulings or, at other

times, simply lacked traditional courtroom decorum. For instance,

he arrived late to court (on more than one occasion), spoke too

loudly at counsel table or during bench conferences and, at least

once, simply walked out of the courtroom while the judge was

speaking. It is understandable that the judge responded as she

did. Equally relevant, the bulk of the statements that the

defendants point to either occurred at sidebar or were made before

the jury even entered the courtroom. Since the jury never heard

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most of these statements, and since the comments were justifiable,

we find no error.

Even if we were to conclude that the judge's

interventions and comments were improper, and that the jury heard

all of them, the defendants still cannot succeed. Rather than

really engaging on the question of prejudice, they attempt to argue

that we should view any error here as structural. In other words,

the argument runs, the judicial interventions per se require

reversal. The defendants thus posit that we can bypass any

evaluation of prejudice.

That position, however, runs head first into our

precedent which has consistently required proof of "serious

prejudice." We have recently defined that term as requiring "a

reasonable probability that, but for the claimed error, the result

of the proceeding would have been different." Rivera-Rodríguez,

761 F.3d at 112. We have found such prejudice in the past where

the judicial interventions related to an essential piece of

evidence, bolstered a key witnesses's testimony, or constituted a

decree on an issue more properly reserved for a jury. See, e.g.,

Rivera-Rodríguez, 761 F.3d at 111-12; Espinal-Almeida, 669 F.3d at

606; United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008).

As noted, the defendants have not offered much that might

show serious prejudice. To the extent that they focus on specific

interactions, Lanza merely says that "Lanza was convicted on very

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scanty proof and acquitted of four offenses. The judge intervened

most on witnesses who were testifying as to the conspiracy and the

crack cocaine: Serrano and Martínez in particular. Those were the

only two substantive charges which Lanza was found guilty." Galán

only adds that "Galán's trial counsel was the object of much of the

district court's disdain."

Even assuming that this amounts to a developed argument

and is thus not waived, see United States v. Oladosu, 744 F.3d 36,

39 (1st Cir. 2014) ("Because the argument is underdeveloped, it is

waived."), we discern no critical evidence that was either enhanced

or admitted solely on account of the judge's interactions.

Further, even if we were to strip away the judicial interventions

highlighted in the fact section of the defendants' briefs, there

remains enough evidence (when viewing that evidence in a neutral

way) to sustain the convictions. Indeed, three co-conspirators, in

significant detail, tied Lanza directly to the conspiracy and

explained his role as an owner, runner, and enforcer. Two of those

three testified specifically to Lanza's ownership of the green-

capped crack. For Galán, there was not only significant testimony

respecting his interactions with his runner and his drug-ownership,

but there was also substantial physical evidence linking him to the

conspiracy. Simply put, the parties point us to nothing (nor could

we find anything) that would establish the necessary level of

prejudice to sustain this claim.

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C. Jury Charge

Lanza and Galán next point to a number of purported

problems with the judge's charge to the jury. Since the defendants

did not preserve these objections, we review only for plain error.

The defendants must therefore establish that "(1) an error

occurred, (2) the error was obvious, (3) the error affected

substantial rights, and (4) the error seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. LaPlante, 714 F.3d 641, 643 (1st Cir. 2013).

The defendants first take issue with the judge's

instruction on conspiracy. After the initial charge, the jury

returned with the question "what is conspiracy?" The parties all

agreed that the judge would bring the jury back into court and

simply re-read the previously provided instruction. At one point,

the court intended to say "[m]ere similarity of conduct among

various people or the fact they may have associated with each other

or discussed common aims and interests does not necessarily

establish proof of the existence of a conspiracy, but you may

consider such factors." However, the judge skipped over the phrase

"interests does not necessarily establish."

Although an error undoubtedly occurred, it can only

constitute plain error where the instruction was reasonably likely

to have misled the jury. United States v. Troy, 618 F.3d 27, 33

(1st Cir. 2010). We evaluate any such error in the context of the

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entire instruction. United States v. Brown, 669 F.3d 10, 29 (1st

Cir. 2012).

Our recent case of United States v. Pennue, 770 F.3d 985

(1st Cir. 2014), provides guidance. There, the district court

erred in discussing the government's burden of proof by, as here,

inadvertently omitting part of the intended instruction. Pennue,

770 F.3d at 989 (noting that the discussion of reasonable doubt was

missing a "negative"). Critically, we found no plain error

because: the word could have been inferred from the context of the

specific instruction; the broader instructions correctly and

repeatedly emphasized the government's burden; and the lack of an

objection manifested the relative unimportance of the mistake.

These factors animate the same result here. First, no

impermissible instruction could have been inferred by the jury as

a result of the mistake. That is, the judge skipped the phrase

"interests does not necessarily establish" before saying, "but you

may consider it such" when discussing what did and what did not

constitute a conspiracy. That limiting phrase ("but you may

consider it") only makes sense if the prior proposition is limited

in some way; i.e. it would be impossible to reconcile "does

necessarily" establish proof of a conspiracy with "but you may

consider it such." In other words, even if the jury were confused

by the omission, it would have been impossible for the jury to have

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assumed that similarity in interests and conduct did automatically

permit a finding of a conspiracy.

Moreover, at the point the judge made this mistake, the

court had already properly defined a conspiracy both during the

initial charge and again in response to the jury question. The

court properly placed the burden on the prosecution to prove "that

the agreement specified in the indictment . . . is one, to have one

common objective, the illegal possession with the intent to

distribute drugs and not some other agreement or agreements existed

between two people to possess with intent to distribute heroin and

or the crack cocaine and or the cocaine and or the marijuana."

Further, the judge stated that the prosecution needed to show "that

the defendant willfully joined in that agreement," and that "those

that were involved share a general understanding of the crime . . .

to act voluntarily and intelligently with the specific intent that

the underlying crime be committed." Perhaps most critically, the

judge added "on the other hand a person who has no knowledge of a

conspiracy but simply happens to act in a way that furthers some

object or purpose of the conspiracy, does not thereby become a

conspirator." We are satisfied that, as a whole, the instructions

conveyed the proper definition of a conspiracy. See United States

v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006).

We note finally that, just as in Pennue, no one objected

to the missing instruction. Although not dispositive on its own,

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the fact that three defense attorneys failed to catch the mistake

sheds light on its de minimis impact. This error is thus far from

significant enough to have affected either the meaning of the

instructions or the jury's verdict. No remand is therefore

warranted.

Galán next challenges the judge's instruction (or lack

thereof) on the intersection of the jury's drug quantity finding

and the ultimate sentence imposed. He specifically takes aim at

the phrase "I advise you that sentencing, under the law, is an

issue that remains within the sole discretion of the Court. If you

find any one of the defendants guilty, it will then be my job to

decide what punishment should be imposed." He contends that this

violated the requirement in Alleyne v. United States that a jury

must make certain factual findings when they implicate a mandatory

minimum sentence. 133 S.Ct. 2151, 2156 (2013).

No error occurred here. As a factual matter, Galán

ignores another part of the jury instructions. There, the judge

specifically noted that the jury would have to make findings "under

the standard of proof beyond a reasonable doubt," respecting the

quantity of the substances involved "which may affect the potential

sentence." Compare United States v. Pizarro, 772 F.3d 284 (1st

Cir. 2014) (finding error where the court fails to instruct at all

on the requirement of the drug quantity finding). If there were

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any doubt, the special verdict form also emphasized that the jury

had to make that determination beyond a reasonable doubt.

More pointedly, there was nothing legally incorrect about

the cited instruction. We have noted since Alleyne that sentencing

remains in the hands of the judge regardless of whether certain

facts that implicate a mandatory minimum or statutory maximum go to

the jury. See United States v. Breton, 740 F.3d 1, 19 (1st Cir.

2014). Since the judge remains responsible for sentencing after

Alleyne, it is perfectly acceptable -- assuming, of course, that

the requirements of Alleyne are actually satisfied -- for the court

to inform the jury of this uncontroversial proposition.6

D. Evidentiary Sufficiency and Prejudicial Variance

Unlike Galán and Lanza, who focus on a wealth of

different issues, Nieves' appeal principally targets the adequacy

of the evidence. In doing so, he asserts a traditional sufficiency

of the evidence claim and a prejudicial variance charge. We

address each in turn.

We start with the sufficiency claim, which engenders de

novo review, viewing the evidence in the light most favorable to

the jury's verdict. United States v. Appolon, 695 F.3d 44, 55 (1st

6
We make one passing note respecting the court's special
verdict form. That form implied that the jury needed to find the
defendants not guilty beyond a reasonable doubt. We have recently
admonished the use of this form in United States v. Rodríguez, 735
F.3d 1, 11-14 (1st Cir. 2013). Nonetheless, we concluded in that
case that its use did not constitute plain error. We have no
reason to rule otherwise in this case.

-26-
Cir. 2012). Nieves argues that, at most, the evidence established

that he was present at the El Prado housing complex; he protests

that it did not show that he was part of the conspiracy. Instead,

he contends that all of the evidence tying him to the conspiracy

was "minimal, general, and devoid of details." He goes to great

lengths to attack the credibility of the co-conspirators and urges

us to minimize, if not outright ignore, their testimony. For

instance, he says that Pizzaro's testimony was general and

internally inconsistent (e.g., he never mentioned Nieves to

officers during an initial investigation into the case). Nieves

also points to the absence of testimony respecting his intent to

join the conspiracy.

Nieves' plea to the contrary, we do not make credibility

determinations when assessing the evidence, but instead ask whether

sufficient evidence existed to support a conviction. United States

v. Rivera-Rodríguez, 617 F.3d 581, 595 n.6 (1st Cir. 2010). Here,

we need not dwell -- the testimony of several witnesses connected

Nieves directly to Alfalfa's organization, which would have

permitted any reasonable jury to find him guilty on count I of the

indictment.

For example, Pizarro testified that Nieves owned the "$12

bag" of marijuana and that Alfalfa permitted Nieves to sell it.

Pizarro further explained that Nieves was always armed and that he

engaged in shootings as part of his protective duties. Pizarro

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next discussed how Nieves was related to others in the

organization, how he took marijuana from him at a drug point on a

specific occasion, and why, as a key enforcer, he was dubbed

"sergeant." Pizarro's testimony alone was sufficient to sustain

the conviction on this count. See, Foxworth v. St. Amand, 570 F.3d

414, 426 (1st Cir. 2009) ("[A] criminal conviction can rest on the

testimony of a single eyewitness. Even if the eyewitness's

testimony is uncorroborated and comes from an individual of dubious

veracity, it can suffice to ground a conviction.").

Additional testimony and evidence also connected Nieves

to the conspiracy. Díaz-Martinez, for example, identified Nieves

as the owner of the "$12 bag" of marijuana, and noted that he had

tallied money with him. Díaz-Martinez further testified that he

witnessed Nieves carrying firearms at Sellés and that Nieves

provided protection at drug points. Relatedly, law enforcement

officers testified to physical evidence that was tied to Nieves.

Such physical evidence included shavings of marijuana, an illegal

firearm, two rifles, and three pistols. In sum, this evidence was

enough to permit a jury to reasonably infer that Nieves intended

to, and then did, join the conspiracy. See, e.g., United States

v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).

Nieves next asserts that even if he can be tied to the

"$12 bag" of marijuana, a conviction on that basis constitutes a

prejudicial variance from the charge in the indictment. If

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anything, he argues, the evidence tied him to a different drug and

different housing unit than those identified in the charging

document.

"A variance occurs when the crime charged remains

unaltered, but the evidence adduced at trial proves different facts

than those alleged in the indictment." United States v. Mangual-

Santiago, 562 F.3d 411, 421 (1st Cir. 2009). Any variance must be

"prejudicial" for reversal to be appropriate. Id. Usually, our

inquiry focuses on whether the defendant received adequate notice

to permit him or her to defend against the charges. See United

States v. Rodríguez, 525 F.3d 85, 102 (1st Cir. 2008).

It is true that the government described each defendant's

specific role in the indictment. With respect to Nieves, it

classified him as "the owner of a powder cocaine distribution point

within the Las Flores and Liborio Pubic Housing Projects and acted

as an enforcer and seller within this conspiracy." However, at

another place in the indictment, it details the specific charge

against Nieves. The charge was: "knowingly and intentionally

conspir[ing] . . . to posses with intent to distribute heroin,

cocaine, crack cocaine, marijuana, within 1,000 feet of public

housing unit."

We have consistently found that where the government

charges an individual defendant as part of a broad conspiracy, but

alleges his or her involvement in a specific way, it is not a

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material variance for the government to then prove that the

defendant was part of the very organization in a distinct manner.

For instance, in Rodríguez, the government charged a defendant as

part of a broad conspiracy but linked him to a specific individual

within the organization and accused him of being a leader in the

conspiracy. 525 F.3d at 102-03. Nonetheless, the government

proved that the defendant, although he was part of the conspiracy,

was actually tied to another individual and had a more

circumscribed role. Id. Although the evidence was slightly

different, we still determined that no material variance occurred.

In a similar vein, in United States v. Alicea-Cardoza,

the government charged the defendant as being part of a conspiracy

but described him as a runner, even though at trial it was

established that the defendant was a triggerman. 132 F.3d 1, 6

(1st Cir. 1997). We noted that "the error in the indictment was

not so grave" since the defendant knew he was on trial for being

part of the broader conspiracy. Id. Indeed, "so long as the

statutory violation remains the same, the jury can convict even if

the facts found are somewhat different than those charged - so long

as the difference does not cause unfair prejudice." Id.

These cases emphasize that our focus is targeted to

whether the government has proved the specific elements of the

conspiracy alleged in a manner that does not vary from the

indictment to an extent that unfairly handicaps or misleads the

-30-
defense. United States v. Mubayyid, 658 F.3d 35, 48-54 (1st Cir.

2011). This rule makes sense since the goal of the prejudicial

variance analysis is, in part, to determine whether the indictment

put the defendant on notice of the charge the government was going

to seek to prove at trial. Rodríguez, 525 F.3d at 102 (citing

United States v. Balthazard, 360 F.3d 309, 314 (1st Cir. 2004)).

Nieves, like the defendants in the cases discussed, has

failed to show how any prejudicial variance occurred. Although the

government proved that he was involved in the organization in a

slightly different way than originally charged (that is,

responsible for a different drug type and centered at a different

housing unit), the government nevertheless: (1) alleged and

established the existence of the conspiracy; and (2) alleged and

proved Nieves' involvement in that very conspiracy. The

discrepancy between what was alleged in the indictment and what

was established at trial, was not so different that Nieves can now

claim that he lacked notice of the crime that the government was

seeking to prove. Nor are there any other hints in this record

that he was otherwise prejudiced from the minor differences.

Accordingly, no material variance exists under these circumstances.

E. Alleyne and Conspiracy Drug-Quantity Findings

The three defendants finally take aim at their sentences.

Principally, they disagree with the district court's adoption of

certain Guidelines enhancements. We find no errors, and single out

-31-
only one point for discussion: Nieves' argument in his Federal Rule

of Appellate Procedure 28(j) letter that the district court

violated Alleyne in making certain drug-quantity findings. As it

is not preserved, we review the claim for plain error.

In establishing Nieves' base-offense level under the

Guidelines, U.S.S.G. §2D1.1(c)(1), the district court adopted the

jury's findings respecting the amount of drugs that Nieves was

responsible for on count one, the broad conspiracy charge. This

contributed to setting his base-offense level at 34. Nieves argues

that the district court committed an Alleyne error when it made

this drug-quantity determination as it subjected him to an

"enhanced sentence." He also seems to argue, although just barely,

that the court utilized these findings to subject him to a

statutory mandatory-minimum.

Nieves' argument that the district court violated Alleyne

by finding certain facts for Guidelines purposes is foreclosed by

our precedent. As we have noted, "factual findings made for

purposes of applying the Guidelines, which influence the sentencing

judge's discretion in imposing an advisory Guidelines sentence and

do not result in imposition of a mandatory minimum sentence, do not

violate the rule in Alleyne." United States v. Ramírez-Negrón, 751

F.3d 42, 48 (1st Cir. 2014); see also United States v. Correy, 773

F.3d 276, 280 n.4 (1st Cir. 2014). Accordingly, Nieves' contention

necessarily fails.

-32-
 To the extent that Nieves argues that the court

improperly subjected him to a statutory mandatory-minimum based on

its drug-quantity findings, the record appears to show that the

court actually imposed a sentence based purely on Guidelines

considerations. As Ramírez-Negrón noted, Alleyne only applies

where "the defendant has been convicted and sentenced under the

aggravated version of the statute -- that is, where an enhanced

mandatory minimum applies." Ramírez-Negrón, 751 F.3d at 49

(emphasis added). Although the district court in this case made a

passing reference that the amount of drugs "is the minimum pursuant

to the statutory minimum," its actual sentencing decision was based

purely on Guidelines considerations and the factors enumerated in

18 U.S.C. § 3553(a). See id. at 50. Indeed, even where the court

made the drug quantity findings, it did so exclusively in the

context of determining the defendant's base-offense level under the

Guidelines. We are thus inclined to say that Alleyne does not even

apply in this case.

In any event, we need not conclusively make that

determination since, even assuming that Alleyne applies, no error

occurred. Our decision in United States v. Acosta-Colón, 741 F.3d

179 (1st Cir. 2013), is instructive. In that case, the jury, like

the one in this case, made individualized findings that each

defendant conspired to possess and distribute a specific quantity

of drugs. The judge then utilized that precise number to determine

-33-
the quantity of drugs the defendant was responsible for. Id. at

192. We found no error because "the jury's individualized drug-

quantity findings still [the defendant's] cry that no

individualized findings drove this part of the judge's sentencing

decision." Id.

As in Acosta-Colón, the district court here utilized a

special verdict form requiring the jury to make certain drug-

quantity findings. The form asked the jury, with respect to each

drug type and each defendant, "Do you unanimously agree, by proof

beyond reasonable doubt, that the quantity of substance containing

a detectable amount of [drug] which the defendant conspired to

posses with the intent to distribute was: [amount]." Since the

jury did just that, the court acted appropriately in attributing

that precise amount to Nieves.7

III.

Accordingly, we affirm the appellants' convictions and

sentences.

7
Nieves also contends that the amount attributed to him was
clearly erroneous. He is incorrect. The evidence was more than
enough to both situate Nieves as part of the broad conspiracy and
to connect him to the specific amount of drugs he could reasonably
have foreseen as flowing through the conspiracy. Indeed, given the
length of time that Nieves was involved in the conspiracy (seven
years), and his significant role in it, the amount adopted by the
jury (1 kilo of heroin, 50g of crack, 5 kilos of cocaine, 100 kilos
of marijuana) was on the low end of what a reasonable fact-finder
could have attributed to him.

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