United States v. Rodriguez-Milian

United States Court of Appeals
For the First Circuit

No. 14-1976

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS E. RODRÍGUEZ-MILIÁN,

Defendant, Appellant.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Selya and Lipez,
Circuit Judges.

Luis A. Guzmán Dupont for appellant.
Jenifer Y. Hernández-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, were on brief, for appellee.

April 19, 2016
 SELYA, Circuit Judge. A party who fails to preserve

potential claims of error in the trial court usually encounters

strong headwinds on appeal. So it is here. Concluding that the

appellant's asseverational array is largely unpreserved and wholly

unpersuasive, we affirm his conviction and sentence. We

nonetheless remand to allow the district court to consider a

sentence reduction under a recent amendment to the sentencing

guidelines.

I. BACKGROUND

We recite the background facts "in the light most

hospitable to the verdict, consistent with record support." United

States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006).

Starting in 2005, a drug-trafficking organization headed by the

notorious Junior Cápsula smuggled cocaine by sea from the Dominican

Republic into Puerto Rico aboard yawls specially retrofitted with

secret compartments. After law enforcement personnel seized two

of the vessels, the drug ring began to consider alternative modes

of transportation (including airplanes).

In June of 2009, defendant-appellant Carlos E.

Rodríguez-Milián became involved with a scheme to fly drug

shipments from the Dominican Republic to Puerto Rico and to ferry

cash on return flights. Shortly after this plot was hatched, the

appellant purchased a small aircraft that he thereafter used to

transport a leader in the drug ring from Puerto Rico to the

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Dominican Republic. Later that summer, the appellant and a

confederate, Jeffrey Núñez-Jiménez (Núñez), transported roughly

$500,000 in illegal drug-sale proceeds from Puerto Rico to the

Dominican Republic.

A subsequent flight by the two men in the appellant's

recently-purchased airplane took place on August 22, carrying a

cargo of no less than 50 kilograms of cocaine. Spotted on radar

when it entered Puerto Rican airspace, their airplane aroused

suspicion because it failed to communicate with anyone, flew past

Borinquen Airport, and descended instead into Arecibo Airport

(which was not an authorized port of entry for international air

traffic). The airplane landed before any law enforcement personnel

arrived to investigate. Two men (later identified as Diego Pérez

and Fernando Nieves) approached the aircraft, while a third man,

José Marrero-Martell, watched from a nearby automobile. Marrero-

Martell testified that Junior Cápsula had told him that he

(Cápsula) had delivered cocaine to the appellant and Núñez. Junior

Cápsula then added that Marrero-Martell should pick up the drugs

from the airport.

An airport security guard became inquisitive at the

sight of all the activity around the appellant's aircraft. When

the guard approached, the appellant told Pérez that he would

distract the guard while the bags were unloaded. The appellant

told the guard (falsely) that Pérez and Nieves had arrived by

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parachute. The guard then instructed the appellant not to take

off until customs officials could arrive, and shortly thereafter

put the appellant on the telephone with a customs agent. The

appellant suggested that the landing at Arecibo was due to

electrical problems and that his real destination was Isla Grande

Airport. In the meantime, the other three men (Pérez, Nieves, and

Núñez) unloaded bags filled with cocaine from the aircraft and

stashed them in a waiting automobile. The car then departed and

— about 35 minutes after landing at Arecibo — the appellant and

Núñez flew away before customs officials could arrive.1

In due season, a federal grand jury returned an

indictment that targeted, among other things, the broad drug-

trafficking conspiracy headed by Junior Cápsula. One count of the

indictment, however, charged the appellant with participating in

a narrower conspiracy to import five or more kilograms of cocaine

into the customs territory of the United States. See 21 U.S.C.

§§ 952(a), 963. At trial, Marrero-Martell and Pérez testified for

the government as cooperating witnesses. The jury found the

appellant guilty on the single count lodged against him and, on

August 22, 2014, the district court sentenced him to serve a 235-

month term of immurement. This timely appeal ensued.

1 No repairs to the aircraft were made (or even attempted) at
Arecibo, and the jury reasonably could have found that the
appellant's tale about electrical problems was a ruse.

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II. ANALYSIS

The appellant, represented on appeal by new counsel,

attacks on several fronts. His claims of error can conveniently

be segregated into four tranches. We address each tranche

separately and then tie up a loose end.

A. Sufficiency of the Evidence.

The appellant's flagship claim is that the government

failed to prove beyond a reasonable doubt his specific intent to

engage in a conspiracy to traffic narcotics. Since the appellant

did not at any time move for judgment of acquittal below, see Fed.

R. Crim. P. 29, we review this claim only for clear and gross

injustice, see United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.

2006); United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.

1982); see also Magee v. BEA Constr. Corp., 797 F.3d 88, 90 & n.2

(1st Cir. 2015). Nothing of the sort occurred here.

In considering a claim of evidentiary insufficiency, "we

must take the facts in the light most hospitable to the

prosecution, drawing all reasonable inferences in its favor."

United States v. Hadfield, 918 F.2d 987, 996 (1st Cir. 1990). We

are not at liberty to question the credibility of witnesses. See

United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).

Moreover, we are constrained to recognize that "[r]eliance on

indirect, as opposed to direct, evidence in a criminal case is

both permissible and commonplace." United States v. Spinney, 65

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F.3d 231, 234 (1st Cir. 1995). Even with respect to a preserved

challenge to the sufficiency of evidence, the verdict must stand

as long as it derives support from a "plausible rendition of the

record." United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992).

To sustain a conviction for conspiracy, the government

must show "beyond a reasonable doubt that a conspiracy existed and

that a particular defendant agreed to participate in it, intending

to commit the underlying substantive offense." United States v.

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). The existence of

a conspiracy, as well as a particular defendant's membership in

it, may be "inferred from the defendant['s] words and actions and

the interdependence of activities and persons involved." United

States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990). "The

government need not show that each conspirator knew of or had

contact with all other members. Nor need it show that the

conspirators knew all of the details of the conspiracy or

participated in every act in furtherance of the conspiracy."

United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st Cir. 2003).

The conspiratorial agreement may be tacit or express and

may be proved by circumstantial evidence. See Sepulveda, 15 F.3d

at 1173. To prove a defendant's participation in a conspiracy,

the government must show two types of intent: the defendant's

intent to join the conspiracy and his intent to perpetrate the

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underlying substantive offense. See United States v. Rivera-

Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). This, of course,

requires a showing that the defendant had knowledge of the

underlying substantive offense and that he "both intended to join

the conspiracy and intended to effectuate the objects of the

conspiracy." United States v. Burgos, 703 F.3d 1, 11 (1st Cir.

2012) (quoting United States v. Dellosantos, 649 F.3d 109, 116

(1st Cir. 2011)).

The record here is more than ample to show that the

appellant knowingly entered into an agreement with other

miscreants to commit the underlying offense: smuggling cocaine

into the United States. The jury reasonably could have found that

the appellant joined members of the drug-trafficking ring, agreed

to transport drugs and drug money by air between the Dominican

Republic and Puerto Rico, undertook the August 22 flight after one

of the coconspirators (Marrero-Martell) received instructions from

the drug kingpin (Junior Cápsula), and knowingly agreed to

participate in the smuggle. The appellant's eager participation

in the venture is evident from his course of conduct: he financed

the purchase of an airplane, flew it from the Dominican Republic

to Puerto Rico, and attempted to cover up the smuggling in his

dealings with both a security guard at the airport in Arecibo and

a customs agent.

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 The appellant now contends that he was merely present,

not culpably present. See Ortiz, 966 F.2d at 712 (explaining the

difference). The record, however, belies this disclaimer: it makes

manifest that the appellant participated knowingly at several key

points in the conspiracy. A jury surely could have inferred — as

this jury did — the existence of a conspiracy and the appellant's

membership in it.

The appellant's fallback position is that the government

never established that he knew that the bags he was transporting

contained cocaine. This position is untenable: the jury reasonably

could have concluded that the appellant traveled to the Dominican

Republic with Núñez for the specific purpose of transporting drugs.

Núñez informed Marrero-Martell that an aircraft could be used for

the specific purpose of smuggling large quantities of cocaine into

Puerto Rico. Núñez and the appellant received the drugs from the

operation's kingpin, Junior Cápsula, and made the trip at his

direction. Once in Arecibo, the appellant distracted the security

guard at the airport while the cargo was unloaded, and lied to

both the guard and a customs official. He then decamped without

waiting for customs officials to arrive. Though it is possible

that the bags contained some innocent cargo (say, cucumbers),

courts and jurors are not expected to put their common sense into

cold storage. Given the record evidence here, there was no clear

and gross injustice in upholding a jury finding that the appellant

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knew the bags contained cocaine. Any other conclusion would blink

reality.

B. Prejudicial Variance.

The appellant next asserts that a prejudicial variance

occurred.2 Because he neglected to advance any such assertion in

the district court, we review only for plain error. See United

States v. Seng Tan, 674 F.3d 103, 110-11 (1st Cir. 2012). To clear

this hurdle, an appellant must show: "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). There is no plain error here.

To prevail on a prejudicial variance claim, an appellant

must show a material factual difference between the crime charged

in the indictment and the crime proved at trial. See United States

v. Fenton, 367 F.3d 14, 18 (1st Cir. 2004). He also must show

prejudice. See id. Here, there was no variance.

The indictment charged both an overarching conspiracy

(count 1), for which the appellant was not charged, and a narrower

2Although the appellant also hints that there may have been
a "constructive amendment" of the indictment, he never developed
that argument in his brief. Consequently, we deem any such claim
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

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conspiracy (count 3), for which the appellant was charged. The

appellant says that although the government charged him with the

narrower conspiracy (involving the smuggling activity that took

place on August 22, 2009), it only proved the broader conspiracy.

We do not agree.

The evidence presented by the government and admitted

against the appellant at trial pertained directly to the particular

conspiracy charged against him. The government proved, step by

step, each and every element of that conspiracy. The fact that

some of the government's evidence also touched upon aspects of the

broader conspiracy, without more, does not work a variance. See

United States v. Fisher, 3 F.3d 456, 463 (1st Cir. 1993); United

States v. Innamorati, 996 F.2d 456, 477-78 (1st Cir. 1993). Here,

there was no "more."

In all events, a claim of prejudicial variance by

definition necessitates a showing of prejudice — and in this case,

there was no prejudice. As in Fisher, the appellant was, at worst,

"convicted of and sentenced for a conspiracy smaller in scope and

breadth than that for which he may have, in fact, been culpable."

3 F.3d at 463 n.19. Given that circumstance, any variance between

the indictment and the proof could not conceivably have affected

the appellant's substantial rights. See, e.g., United States v.

Mangual-Santiago, 562 F.3d 411, 423 (1st Cir. 2009).

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 C. Alleged Trial Errors.

Battling on, the appellant labors to raise claims of

trial error. Because none of these claims was preserved below,

our review is limited to plain error. See Duarte, 246 F.3d at 60.

For the most part, the appellant's claims of trial error

boil down to a single claim: he seeks to persuade us that the

admission of certain coconspirator statements was improper. We

approach this claim mindful that a statement "made by the party's

coconspirator during and in furtherance of the conspiracy" does

not come within the hearsay proscription. Fed. R. Evid.

801(d)(2)(E). For the prosecution to engage the gears of Rule

801(d)(2)(E), however, there must be evidence that a conspiracy

existed involving the declarant and the defendant. See Bourjaily

v. United States, 483 U.S. 171, 175 (1987). Although the trial

court may allow the introduction of such statements de bene, that

court is charged with making a gatekeeper determination before

allowing the jury to consider such evidence. See Ortiz, 966 F.2d

at 715; United States v. Petrozziello, 548 F.2d 20, 22-23 (1st

Cir. 1977); see also United States v. Ciampaglia, 628 F.2d 632,

638 (1st Cir. 1980) (limning proper procedure for making what in

this circuit is known as a "Petrozziello" determination). In

making such a determination, the trial court is to use a

preponderance of the evidence standard. See United States v.

Angiulo, 897 F.2d 1169, 1201 (1st Cir. 1990).

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 Here, however, there is a rub: the appellant did not

object to the admission of the coconspirators' statements, did not

ask the district court to admit them de bene, and did not object

to the district court's omission of a Petrozziello determination.

It is common ground that a defendant's failure to object to the

trial court's omission of an explicit Petrozziello determination

forecloses the defendant from attacking the omission on appeal,

save for plain error. See United States v. Perkins, 926 F.2d 1271,

1283 (1st Cir. 1991); Ciampaglia, 628 F.2d at 638.

Plain error is plainly absent here. The record is

replete with preponderant evidence showing both the existence of

the charged conspiracy and the membership in it of the appellant,

Núñez, Marrero-Martell, Pérez, Nieves, and Junior Cápsula.

With respect to the admitted evidence itself, the

appellant has largely waived any further argument. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He has, with

one exception, failed to identify in his brief the particular

statements that he regards as problematic.

The sole statement identified by the appellant is drawn

from Marrero-Martell's testimony about what Junior Cápsula

purportedly said to him on August 22, 2009. The admission of

Marrero-Martell's testimony about that statement was not plain

error. As said, the government introduced an abundance of

extrinsic evidence to show the existence of a conspiracy in which

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Marrero-Martell, Junior Cápsula, and the appellant, among others,

were participants. What is more, both the content and the context

of Junior Cápsula's instructions to Marrero-Martell support a

finding that those instructions were given during the course and

in furtherance of the charged conspiracy. See United States v.

Rodriguez, 525 F.3d 85, 101 (1st Cir. 2008); United States v.

Marino, 277 F.3d 11, 26 (1st Cir. 2002).

There is one last claim of trial error. The appellant

blithely asserts that the accumulation of errors during trial

demands a new trial. See, e.g., Sepulveda, 15 F.3d at 1195-96.

("Individual errors, insufficient in themselves to necessitate a

new trial, may in the aggregate have a more debilitating effect.").

We reject this assertion out of hand: since the appellant has

failed to identify any cognizable trial errors, there is nothing

to be accumulated.

D. Alleged Sentencing Errors.

The appellant challenges his sentence, arguing that it

is longer than that of Núñez (who accompanied him on the August 22

flight from the Dominican Republic to Puerto Rico) and that the

district court did not explain the rationale for this disparity.

With respect to preserved errors, our review of criminal sentences

is normally for abuse of discretion. See Gall v. United States,

552 U.S. 38, 51 (2007). That review "is bifurcated: we first

determine whether the sentence imposed is procedurally reasonable

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and then determine whether it is substantively reasonable." United

States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).

We start here with the procedural dimension of the

appellant's challenge. This dimension involves the district

court's supposed failure to explicate its sentencing rationale.

Because the appellant neglected to advance any such challenge

below, our review is for plain error. See United States v.

Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1405,

slip op. at 3]; United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir.), cert. denied, 136 S. Ct. 258 (2015). On plain error

review, the absence of an explanation is not dispositive: the

appellant also must show a likelihood that the court, but for the

error, would have imposed a less severe sentence. See United

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).

We need not tarry. Here, the appellant's 235-month

sentence falls at the low end of his guideline sentencing range.

That fact, in itself, lightens the burden of justification. See

Montero-Montero, ___ F.3d at ___ [No. 15-1405, slip op. at 4].

To be sure, the sentencing court did not make a direct

comparison of the appellant's culpability with Núñez's

culpability. As a procedural matter, however, it had no duty to

make such a comparison. See United States v. Ayala-Vazquez, 751

F.3d 1, 30-32 (1st Cir.), cert. denied, 135 S. Ct. 467 (2014).

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 At any rate, we have cautioned that appellate courts

should not "read too much into a district court's failure to

respond explicitly to particular sentencing arguments." Clogston,

662 F.3d at 592. Though the explanation here is lean, the district

court specifically referenced the appellant's personal history,

the nature of the offense, and the goals of deterrence and

punishment in imposing the sentence. The court also heard

arguments from counsel on both sides regarding these issues. On

this record, then, no plain error occurred. See United States v.

Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015).

Although we sometimes consider disparities between

similarly situated codefendants under the rubric of substantive

reasonableness, see, e.g., United States v. Reverol-Rivera, 778

F.3d 363, 366 (1st Cir. 2015), the appellant's remaining challenge

on this ground fares no better.3 The appellant premises this claim

on the disparity between his 235-month sentence and Núñez's 120-

month sentence. For sentencing purposes, however, the appellant

and Núñez are not fair congeners. After all, Núñez — unlike the

appellant — admitted responsibility and chose to plead guilty

before trial. It is settled that a coconspirator who has elected

to plead guilty is not similarly situated to a coconspirator who

3Though this challenge was not voiced below, our standard of
review is uncertain. See Ruiz-Huertas, 792 F.3d at 228 & n.4.
But we need not probe this point more deeply; even under abuse of
discretion review, this challenge lacks force.

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has elected to stand trial. See, e.g., United States v. Dávila-

González, 595 F.3d 42, 50 (1st Cir. 2010). There are, moreover,

other salient differences, not the least of which is that the

appellant furnished and flew the aircraft that was used in the

smuggle.

To say more would be pointless. We reject, without

serious question, the appellant's claim that his sentence is

substantively unreasonable.

E. A Loose End.

There is one loose end. On July 18, 2014, the Sentencing

Commission approved retroactive application of Amendment 782,

which lowered the offense level applicable to the offense of

conviction. See USSG App. C Supp., Amend. 788 (Nov. 1, 2014).

Notwithstanding that his case was then pending on appeal, the

appellant moved for a sentence reduction in the district court.

See 18 U.S.C. § 3582(c)(2). The court purported to grant the

motion.

At the time that it acted, the district court lacked

jurisdiction to enter an order reducing the appellant's sentence.

See United States v. Cardoza, 790 F.3d 247, 248 (1st Cir. 2015)

(per curiam); United States v. Maldonado-Rios, 790 F.3d 62, 64

(1st Cir. 2015) (per curiam). The putative sentence reduction is,

therefore, a nullity. Even so, Federal Rule of Appellate Procedure

12.1 allows us to treat the district court's ineffectual sentence

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reduction order as an indicative notice that, on remand, the

district court is prepared to grant such a reduction. See Cardoza,

790 F.3d at 248; Maldonado-Rios, 790 F.3d at 64-65. We therefore

remand so that the district court, once its jurisdiction has

reattached, may consider reducing the sentence. We caution,

however, that should the court continue to believe that Amendment

782 paves the way for a reduced sentence, it "'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 USSG

§1B1.10(b)(1), p.s.).

III. CONCLUSION

We need go no further. We strike the district court's

improvidently entered sentence reduction order and affirm the

judgment as originally entered by the district court. We remand,

however, for the limited purpose of permitting the district court

to consider anew the appellant's motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2) and Amendment 782.

So Ordered.

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