United States Court of Appeals
For the First Circuit
No. 16-1009
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL HUMBERTO CELAYA VALENZUELA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Julie K. Connolly, with whom Julie Connolly Law, PLLC was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief for appellee.
February 24, 2017
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. Beginning in May of 2009, the FBI
launched a sting operation, codenamed Operation Dark Water,
targeting the Sinaloa Drug Cartel. Undercover agents held
themselves out as an organized crime operation, led by an Italian
mafia boss who went by the name El Viejo ("the Old Man"), which
sought to procure a long-term source of cocaine from the cartel.
Among the high-level cartel members eventually ensnared by this
investigative web was Rafael Humberto Celaya Valenzuela
("Celaya"), a financial planner and lawyer with close personal
ties to the Cartel's then-leader, Joaquin Guzman-Loera, known more
commonly as "El Chapo." Celaya was charged in the District of New
Hampshire with conspiracy to distribute and possess with intent to
distribute controlled substances, in violation of 21 U.S.C. § 846.
He was convicted following a five-day jury trial and sentenced to
210 months imprisonment, and now appeals both his conviction and
sentence. Finding no merit to his various claims, we AFFIRM.
I. Facts & Background
Celaya first came to the attention of law enforcement in
August 2010, when he accompanied Jesus Manuel Gutierrez-Guzman
("Guzman"), El Chapo's cousin and close confidant, and other co-
conspirators to a meeting with the undercover agents (the "FBI
Organization") in Hallandale, Florida.1 At that meeting, Celaya
1 Of course, the conspiratorial agreement was among members
of the Chapo Organization, because a defendant cannot be guilty of
-2 -
was introduced as a lawyer and financial planner. The parties
discussed how their partnership could move forward, with the FBI
Organization expressing a preference for using seaports on the
east coast of the United States as a transit point for shipments
of cocaine from South America to Europe. The FBI represented to
the Chapo Organization that because of their contacts in the
longshoremens' unions at the ports, they could ensure smooth entry
into and out of the ports, while avoiding detection by customs
authorities. They suggested this method would be advantageous
because shipments sent directly from South America to Europe would
be more likely to raise suspicion. The specific ports discussed,
and subsequently included on code sheets drawn up by the Chapo
Organization for use in future communications, were Philadelphia,
Newark, Providence, and Portsmouth, New Hampshire.
Celaya made statements at this meeting that it was his
understanding that the FBI Organization had contacts in the
stevedores' unions that would allow the drugs to be repackaged and
sent on to Europe. He reiterated that the Chapo Organization did
not have a preference for a particular port, but would simply
"prefer the port that you say is the safest one for you." When
Guzman expressed concerns that "the gringos are really fucking
with everyone about coming into the United States," the defendant
conspiring to commit crimes with government agents. See, e.g.,
United States v. Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir. 2003).
- 3 -
sought to allay these fears by suggesting that "if the product is
sent directly [to] Europe it will have a red flag on it already
. . . Once it's brought in [to U.S. ports], relabeled and sent
. . . [i]t practically goes preapproved." The defendant added
that using U.S. ports, where the FBI Organization had local
dockworkers in on the scheme, would be a "green light." The
following day, the parties met again to discuss methods for
laundering the proceeds from the drug sales. Celaya was a central
player in these discussions, apparently because of his legal and
financial expertise.
On April 21, 2011, Guzman met with El Viejo, the FBI
agent purporting to be the head of the crime organization, at a
hotel in New Hampshire near Portsmouth. The purpose of the meeting
was to discuss the first shipment on which the two sides would be
cooperating, which would originate in Ecuador and be shipped to
Spain. While Guzman explained that it was El Chapo's preference
for this first shipment to proceed directly from Ecuador to Spain
without stopping in any U.S. ports, he said that the Chapo
Organization was open to "modifying" the delivery method in the
future.
Also in that meeting, El Viejo told Guzman that the
cocaine provided by the Chapo Organization would be distributed in
Europe and the United States, because he had many clients that
needed the drugs, including in Florida and New Hampshire. El Viejo
- 4 -
told Guzman that "everybody thinks I'm a legitimate businessman,"
adding that "I'm like the American Donald Trump . . . except I
don't have the hair" and "there is going to be an explosion of
business" once El Viejo could obtain El Chapo's "high quality
product." Guzman replied that he understood that distribution in
the United States was one of El Viejo's objectives. Guzman also
made reference to the defendant, telling El Viejo that Celaya was
a trusted member of the Chapo Organization and that he had
personally met with El Chapo and "explained everything to him."
Other meetings followed, including one in Boston in August 2011 at
which the defendant was present.
Initially, a series of delays, including the Chapo
Organization's desire to run several test shipments without
contraband, prevented the actual shipment of cocaine to Europe.
In order to maintain the goodwill of the FBI Organization, on June
7, 2012, Guzman arranged for the delivery of heroin to the FBI
Organization in Detroit, Michigan. In July 2012, the Chapo
Organization finally sent 346 kilograms of cocaine from Brazil to
Algeciras, Spain, bypassing U.S. ports. The following month,
Guzman traveled to Spain to meet with El Viejo. At that meeting,
El Viejo reiterated that the United States would be one of the
destinations for the cocaine shipped by the Chapo Organization in
the future, to which Guzman replied, "Yes, sir."
- 5 -
Shortly after this meeting, Spanish authorities placed
Celaya under arrest. After Celaya waived his Miranda rights, the
FBI then interviewed him. In that interview, Celaya admitted that
he had conspired to distribute cocaine, and that in March 2011,
after one of the initial meetings, he had travelled to Mexico to
personally meet with El Chapo. At that meeting, he told El Chapo
that he believed the FBI Organization was a real drug cartel and
that El Chapo should proceed with the plan to supply it with
cocaine.
Celaya was indicted in the District of New Hampshire and
charged with conspiring, between March 2009 and September 2012, to
distribute and possess with intent to distribute a quantity of
heroin, methamphetamine, and 1,000 kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1). The case proceeded
to a jury trial. At the close of the government's case-in-chief,
the defendant moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29, claiming that there was insufficient
evidence that he had participated in the conspiracy, and that there
was insufficient evidence of venue. More specifically, he argued
that at the time the actual shipments took place, he "was no longer
in the picture" and was not involved in the conspiracy. On the
venue point, he argued that the only overt act in furtherance of
the conspiracy that occurred in New Hampshire was the Portsmouth
meeting, and since it was an FBI source who drove Guzman from
- 6 -
Boston's Logan Airport to the meeting, the government had
"manufactured" venue in New Hampshire.
The district court denied this motion, and after a five-
day trial, the jury returned a guilty verdict against Celaya. Six
months after the verdict, Celaya filed a motion to reconsider the
denial of his earlier Rule 29 motion, raising for the first time
the argument that the overarching conspiracy did not have a
sufficient jurisdictional nexus to the United States, and that the
government had failed to present any evidence that Celaya knew
that an object of the conspiracy was to possess or distribute
controlled substances in the United States. The district court
denied this motion as untimely, but also concluded that the
defendant's argument on jurisdictional nexus would have failed on
the merits in any event since the evidence introduced at trial was
sufficient for a jury to conclude that the conspiracy envisioned
the distribution of drugs into the United States and the use of
seaports on the east coast of the United States as transit points
on the way to Europe, and that overt acts in furtherance of the
conspiracy took place on U.S. soil.
At sentencing, the district court calculated that the
defendant's criminal conduct warranted a total offense level of 38
(largely as a result of the weight of drugs attributed to the
conspiracy) and a criminal history category of I, which yielded a
guideline sentence range of 235 to 293 months imprisonment. The
- 7 -
district court rejected a defense counsel request for a
minimal/minor role downward adjustment under U.S.S.G. § 3B1.2,
concluding that the defendant was a "top level negotiator . . .
with access to the highest levels of the cartel." The court
ultimately did allow a minor downward variance to bring Celaya's
sentence in line with that of Guzman (who had pleaded guilty),
eventually settling on 210 months' imprisonment. This appeal
followed.
II. Discussion
On appeal, Celaya challenges three aspects of the
district court's ruling below. First, he argues that the
government failed to prove that the conspiracy in question had a
"jurisdictional nexus" to the United States. Second, he argues
that the government "manufactured" venue in the District of New
Hampshire by driving Guzman, a co-conspirator, from Boston's Logan
Airport across the border into New Hampshire for a meeting. As a
derivative of those arguments, Celaya contends that the district
court's failure to instruct the jury on jurisdictional nexus and
manufactured venue was in error. Third, he argues that his 210-
month prison sentence was substantively unreasonable. We address,
and dispose of, each of these arguments seriatim.
- 8 -
A. Jurisdictional Nexus
i. Standard of Review
The first group of challenges that Celaya presents
concerns the sufficiency of evidence against him at trial and the
district court's denial of both his Rule 29 Motion for a Judgment
of Acquittal and his Motion for Reconsideration of his Motion for
Judgment of Acquittal. The Court of Appeals reviews the denial of
a motion to reconsider for an abuse of discretion. See United
States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). However, when
a Rule 29 motion (or a Motion to Reconsider a previous Rule 29
motion) presents a new argument not previously presented to the
district court, appellate review is more circumscribed. See United
States v. Castro-Lara, 970 F.2d 976, 980 n.2 (1st Cir. 1992)
("Where a Rule 29 motion is not preserved for appeal, the defendant
forfeits the benefit of the customary standard of review, thereby
negating any claim of evidentiary insufficiency unless affirming
the conviction would work a 'clear and gross injustice.'") (quoting
United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988)).
We find that the “jurisdictional nexus” argument was not
timely raised in the district court, either at trial or in Celaya’s
original Rule 29 motion. The only arguments made by the defendant
in his original Rule 29 motion were that (1) he was not actually
a member of the conspiracy, and (2) there was insufficient evidence
of venue in New Hampshire. At no point did he raise the objection
- 9 -
that the alleged conspiracy was entirely extraterritorial in
nature and thus insufficient, as a matter of law, to convict him
for a violation of 21 U.S.C. § 846 if the jury found that he was
a member of the conspiracy. In fact, in his Rule 29 Motion, Celaya
conceded that "there was substantial evidence introduced by the
Government that could reasonably be understood by the jury to show
that the Sinaloan cartel wanted to expand its drug trafficking
network into Europe, and perhaps the United States." After
conceding this point, however, the defense argued that "the
evidence failed to demonstrate that the cartel actually agreed to
include Celaya in that conspiracy."
Six months later, in his Motion for Reconsideration,
Celaya switched gears, arguing that while the jury may have found
that he was a member of the conspiracy, the evidence adduced at
trial "can only be reasonably and fairly understood as establishing
that the [sic] Celaya and his coconspirators agreed to the common
goal of shipping cocaine from South America to Europe" and nothing
in the record "remotely shows, or even suggests, that Celaya
knowingly agreed to participate in a conspiracy to distribute or
possess with intent to distribute illegal drugs in New Hampshire
or anywhere else in the United States, so as to violate §§ 841(a)
and 846." Indeed, at oral argument before the district court
accompanying their motion for reconsideration, defense counsel
- 10 -
admitted that this was a new argument that they had not previously
presented to the court.2
We have routinely emphasized that a party’s decision to
adopt this sort of shifting litigation tactic results in an
elevated standard of review. See, e.g., United States v. Marston,
694 F.3d 131, 134 (1st Cir. 2012) ("[W]hen a defendant chooses
only to give specific grounds for a Rule 29 motion, all grounds
not specified are considered waived and are reviewed under [the]
less forgiving 'clear and gross injustice' standard.") (quoting
United States v. Upham, 148 F.3d 532, 537 (1st Cir. 1999), cert.
denied, 527 U.S. 1011 (1999)); United States v. Foley, 783 F.3d
7, 12 (1st Cir. 2015) (stating that when a "sufficiency challenge
[is] unpreserved," the appeals court "review[s] for clear and
gross injustice only").
2 THE COURT: As I read this argument, it is not an argument
you've ever made before you filed this motion; is that right?
COUNSEL: That's right, your Honor.
...
COUNSEL: I think that the papers readily concede that the
lawyers did not present this argument to you, so it's not that we
presented it and you missed it. It was that this is a new argument
that wasn't presented before and it would result in a manifest
error of law if it were to stand going forward, and therefore we're
presenting it to the Court now and giving the Court an opportunity
to consider it.
- 11 -
Because a Motion for Reconsideration of the denial of a
previous Rule 29 motion is not the appropriate time to raise new,
much less contradictory, arguments, we will affirm the district
court’s ruling unless doing so would produce a “clear and gross
injustice." Cheung, 836 F.2d at 730 n.1. Under this "stringent
standard, which we have described as a particularly exacting
variant of plain error review," Foley, 783 F.3d at 12, the "already
high bar for plain error becomes even higher." United States v.
Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir. 2013). Even to
prevail under the more lenient plain error review, a defendant
must show (1) that an error occurred, (2) which was clear or
obvious, (3) that affected the defendant's substantial rights, and
(4) seriously impaired the fairness, integrity, or public
reputation of the judicial proceedings. United States v. Flemmi,
402 F.3d 79, 86 (1st Cir. 2005). As we explain below, there was
no error in finding that an adequate jurisdictional nexus existed
between the conspiratorial agreement and objectives and the United
States, and Celaya therefore cannot prevail under plain error
review, much less under the more exacting "clear and gross
injustice" standard.
ii. Jurisdictional Nexus
The question of what is required to prove a sufficient
jurisdictional nexus with the United States to prosecute a § 846
conspiracy is an issue that has not been squarely addressed by
- 12 -
this Court. However, both parties agree that some jurisdictional
nexus is required. This conclusion is bolstered by the general
presumption that Congress does not legislate with extraterritorial
effect unless clearly specified.3 Finally, this Court has held
that § 841, which covers distribution or possession with the intent
to distribute controlled substances, does not cover purely
extraterritorial crimes. See United States v. Hayes, 653 F.2d 8,
15 (1st Cir. 1981); see also United States v. McKenzie, 818 F.2d
115, 118 (1st Cir. 1987) (holding that § 841 is triggered if the
3In a case decided last June, the Supreme Court
clarified its test for deciding whether a statute applies
extraterritorially. See RJR Nabisco, Inc. v. European Cmty., 136
S. Ct. 2090, 2101 (2016).
Morrison and Kiobel reflect a two-step framework for
analyzing extraterritoriality issues. At the first
step, we ask whether the presumption against
extraterritoriality has been rebutted—that is, whether
the statute gives a clear, affirmative indication that
it applies extraterritorially. We must ask this question
regardless of whether the statute in question regulates
conduct, affords relief, or merely confers jurisdiction.
If the statute is not extraterritorial, then at the
second step we determine whether the case involves a
domestic application of the statute, and we do this by
looking to the statute's "focus." If the conduct
relevant to the statute's focus occurred in the United
States, then the case involves a permissible domestic
application even if other conduct occurred abroad; but
if the conduct relevant to the focus occurred in a
foreign country, then the case involves an impermissible
extraterritorial application regardless of any other
conduct that occurred in U.S. territory.
Id. (citing and discussing Morrison v. Nat'l Austl. Bank Ltd., 561
U.S. 247 (2010) and Kiobel v. Royal Dutch Petroleum Co., 133 S.
Ct. 1659 (2013)).
- 13 -
defendant intended that the controlled substances be distributed
in the United States, even if no actual distribution took place,
or if the defendant possessed the controlled substances in the
United States with the intent to distribute the drugs abroad).
Because a conspiracy under § 846 is an agreement to violate § 841,
it stands to reason that the same jurisdictional requirement needs
to be met. However, in this case, several specific factors,
including the meeting in New Hampshire between Guzman and El Viejo,
the discussion of using eastern seaboard ports for future
trafficking, and the shipment of heroin and methamphetamine to
Detroit in June 2012, combine to clearly satisfy the required
jurisdictional nexus.
Celaya first contends that the meeting in New Hampshire
between Guzman and El Viejo, the undercover FBI agent posing as a
mafia boss, is not enough evidence to establish a jurisdictional
tie to the United States. Celaya makes the same argument with
respect to the meetings in Florida and Boston that he himself
attended. In support of this argument, he cites United States v.
Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), for the proposition
that meetings inside the United States are not sufficient to
establish a jurisdictional nexus when "the object of the conspiracy
was to possess controlled substances outside the United States
with the intent to distribute outside the United States." Id. at
1313. This is true enough, and the government in this case
- 14 -
concedes that mere meetings in the United States to discuss the
details of an entirely international drug distribution scheme
would not be sufficient.
However, the problem for Celaya with this argument is
twofold. First, there was other evidence suggesting that members
of the conspiracy, including Guzman, saw distribution in the United
States as one of the objects of the conspiracy. In a meeting, El
Viejo informed Guzman that their goal in acquiring cocaine from
the Chapo Organization was to distribute the drugs in the United
States, among other places, and Guzman responded affirmatively
that he understood this. Celaya protests that it was the
government agent, not Guzman, who discussed plans to distribute
drugs in the United States. However, this is a distinction without
a difference when dealing with conspiracy liability, as
conspirators who have previously entered into a criminal agreement
among themselves, in concert with government agents, can be
convicted based on the distribution plans articulated by
government agents if they fail to object to those plans. See
United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987) (finding
that even though the two defendants' role was limited to importing
cocaine from Colombia to the West Indies, liability still attached
because they "agreed to arrange and carry out the cocaine sale
after being told by agents . . . of the latters' plans to import
the cocaine for distribution in the New York area").
- 15 -
Second, Celaya's argument that he did not know about the
New Hampshire meeting fails because there is no governing law in
this circuit which suggests that Celaya's alleged lack of knowledge
of the actions of his co-conspirator is a defense to liability.
Indeed, one out-of-circuit case appears to suggest the opposite.
See United States v. Manuel, 371 F. Supp. 2d 404, 409 (S.D.N.Y.
2005) (holding that where a crime is within the jurisdiction of
the United States, it is not necessary that the defendant know the
facts that establish jurisdiction). Such a rule fits with the
broader principles of conspiracy liability enforced by courts,
including the First Circuit. See United States v. Barnes, 244
F.3d 172, 176 (1st Cir. 2001) (noting that "[o]nce a participant
knowingly helps to initiate the agreement and set it in motion, he
assumes conspirator's responsibility for the foreseeable actions
of his confederates within the scope of the conspiratorial
agreement, whether or not he is aware of precisely what steps they
plan to take to accomplish the agreed goals").
Two more points undermine Celaya’s argument. First,
Guzman, one of his co-conspirators and a close cousin and
lieutenant of El Chapo, arranged for a delivery of drugs (heroin
and methamphetamine) to Detroit in June 2012 in order to maintain
the goodwill of the FBI Organization and to make amends for having
failed to disclose that one of the first shipments to Spain was a
test run that did not contain any actual drugs. It is immaterial
- 16 -
that Celaya did not “explicitly or tacitly agree[] to the delivery
of drugs to Detroit," as he argues in his brief. The discussions
between the Chapo Organization and the FBI Organization were
sufficient to find that members of the Chapo Organization entered
into a major, transnational conspiracy in which they agreed to
regularly supply the FBI Organization with drugs for distribution
primarily in Europe, but also the United States. The Detroit
shipment was designed to build goodwill and maintain the
relationship in light of frustrations on the part of the FBI
Organization with some of the delays and expense connected with
the initial cocaine shipment to Spain. It was not, therefore, a
one-off event, nor was it a separate conspiratorial agreement.
Rather, the Detroit shipment was part of the ongoing conspiracy.
There was no gross injustice in finding that Celaya was a part of
this conspiracy and that the Detroit shipment, when coupled with
Guzman's knowledge that some of the drugs were to be delivered
into the United States and with the meeting in New Hampshire to
advance these plans, was sufficient to establish the required
jurisdictional nexus to the United States.4
4 We also find Celaya's argument that he was no longer a
member of the conspiracy at the time of the Detroit shipment to be
without any factual basis in the record. As counsel for Celaya
conceded at oral argument, this would require a showing that Celaya
had withdrawn from the conspiracy sometime between 2011 and the
June 2012 shipment, and he has made no such showing.
- 17 -
Second, the jury reasonably could have found that the
parties continued to contemplate the use of seaports on the east
coast of the United States, even if the one shipment of cocaine to
Spain which actually took place did not proceed via a U.S. port.
At meetings in Madrid, Spain, in March 2011, a representative of
the Sinaloa Cartel, Jose Locheo del Rio, expressed concern about
the use of American ports when the drugs originated in Ecuador (as
they were scheduled to in the initial shipment), because this would
mean the drugs would have to travel through the Panama Canal. In
particular, Del Rio expressed concern that the use of the Panama
Canal would require a transfer by train which could render the
drugs susceptible to hijackings and also to law enforcement
interdictions. However, representatives from the Chapo
Organization also emphasized at various points during their
meetings that the drugs would originate in various South American
countries, including some along the Atlantic Ocean, and they never
definitively ruled out the use of U.S. ports as a transit point
that might reduce law enforcement suspicion. Therefore, a jury
could reasonably have found that the use of eastern seaports in
the continental United States continued to be contemplated by the
parties for future shipments, as agreed to during the August 2010
Florida meetings.
In conclusion, unlike in Lopez-Vanegas, there was
sufficient evidence for a jury to find that this was not an
- 18 -
entirely "international" drug distribution scheme which, but for
the meetings in the United States, would have had no connection to
the country. As previously discussed, Celaya himself conceded in
his Rule 29 motion that "there was substantial evidence introduced
by the Government that could reasonably be understood by the jury
to show that the Sinaloan cartel wanted to expand its drug
trafficking network into Europe, and perhaps the United States."
Our holding does not rest on any individual factor
identified above, rather, taken together, we think they clearly
meet the jurisdictional nexus requirement, and the district
court’s decision to deny Celaya’s Rule 29 Motion and his Motion
for Reconsideration did not result in a “clear and gross
injustice.” Finally, because we have found that there was more
than sufficient evidence for a jury to find that the conspiracy
both involved the intent to distribute controlled substances in
the United States and, on one occasion, did include such a
shipment, we find no error in the district court’s failure to
specifically instruct the jury on jurisdictional nexus.
B. Venue
Celaya's second argument for acquittal is that there was
insufficient evidence that the conspiracy was "begun, continued or
completed" in the District of New Hampshire, and thus venue was
improper. Because this argument was included in the defendant's
original Rule 29 motion, we undertake de novo review. See, e.g.,
- 19 -
Marston, 694 F.3d at 134. With respect to sufficiency of venue,
the government must prove venue by a preponderance of the evidence.
United States v. Scott, 270 F.3d 30, 34 (1st Cir. 2001).
According to Celaya, the three pieces of evidence
offered by the government to establish venue in New Hampshire, (i)
including Portsmouth on the list of possible transit ports for
shipments; (ii) representing that El Viejo would distribute his
cocaine in New Hampshire, among other places; and (iii) bringing
Guzman to New Hampshire from Logan Airport to meet with El Viejo,
were all insufficient. This argument fails because an overt act
in furtherance of the conspiracy, the meeting between Guzman and
El Viejo, clearly took place in Portsmouth, NH. At that meeting,
Guzman and El Viejo discussed detailed plans for the Chapo
Organization's role in providing cocaine to the FBI Organization.
This discussion represented a key part of the planning process
after the various members of the Chapo Organization had reached an
agreement among themselves to provide cocaine to the FBI
Organization. Since Guzman was a clear co-conspirator of Celaya,
it is immaterial that Celaya himself was not present at this
meeting. See United States v. Santiago, 83 F.3d 20, 25 (1st Cir.
1996) ("[I]n a conspiracy case venue is proper in any district in
which an act in furtherance of the charged conspiracy has taken
place, even if a particular coconspirator was not himself
physically present in that district.")
- 20 -
Celaya's fallback argument is that because it was a
government agent who drove Guzman from Boston's Logan Airport to
the Portsmouth meeting, the government "manufactured" venue in New
Hampshire, and therefore this fails as a matter of law. However,
the First Circuit has never accepted the existence of a
"manufactured venue" doctrine, and most circuits have rejected the
concept of manufactured venue or "venue entrapment." See, e.g.,
United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir.
2006) ("[Government] agents may influence where the federal crime
occurs, and thus where venue lies, as well as whether the crime
comes under federal rather than state law. The entrapment doctrine
protects the defendant against manufactured offenses (unless the
defendant is predisposed); it does not limit venue."); see also
United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) ("There
is no such thing as 'manufactured venue' or 'venue entrapment.'");
United States v. Spriggs, 102 F.3d 1245, 1250 (D.C. Cir. 1996)
("[W]e are uncertain whether there is such a thing as 'venue
entrapment.' It is a little hard to conceive of a person
predisposed to commit a federal crime––but not in some specific
district.")5
5Even the two circuits that have not categorically refused
to rule out manufactured venue have emphasized that it would only
be viable in cases of extreme government misconduct. See United
States v. Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012)
(electing not to reach the question of whether a manufactured venue
challenge might succeed because there was nothing “extreme” about
- 21 -
The better rule appears to be that to the extent that
prosecutorial forum shopping "is a concern in a given case, it is
more appropriately handled at the trial level by a transfer to a
more reasonable forum" under Federal Rule of Criminal Procedure
21. Andrews v. United States, 817 F.2d 1277, 1279-80 (7th Cir.
1987). Indeed, it is hard to understand what the underlying logic
for "venue entrapment" would be, since entrapment in criminal law
is designed to avoid punishment for "an 'otherwise innocent' person
whose 'alleged offense' is 'the product of the creative activity'
of government officials," United States v. Gendron, 18 F.3d 955,
961 (1st Cir. 1994) (quoting Sorells v. United States, 287 U.S.
435, 451 (1932)), not to avoid punishment for a defendant involved
in a wide-ranging global narcotics conspiracy because government
agents drove one of his co-conspirators an hour from Boston to
Portsmouth, NH, for a meeting to discuss a planned drug
an Immigration and Customs Enforcement undercover operation, based
in San Diego, deciding to cash the foreign defendant's money order
for arms sales in a bank in San Diego, thus leading to venue in
the Southern District of California); United States v. Myers, 692
F.2d 823, 847 n.21 (2d Cir. 1982) (not precluding a possible
manufactured venue defense "in which key events occur in one
district, but the prosecution, preferring trial elsewhere, lures
a defendant to a distant district for some minor event simply to
establish venue," but finding that standard inapplicable in that
case). Indeed, in a more recent case, the Second Circuit noted
that "[i]n the quarter century since Myers, this court has never
vacated a conviction on the basis of manufactured venue." United
States v. Rommy, 506 F.3d 108, 127 (2d Cir. 2007).
- 22 -
distribution network. The high-level meeting in New Hampshire
involving Guzman, a co-conspirator and close confidant of El Chapo
-- the Sinaloa Cartel's chief -- suggests an even stronger argument
for venue than previous acts found sufficient for venue in federal
courts, including telephone conversations. See, e.g., United
States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) (noting that
phone calls from defendants outside of Puerto Rico to a co-
conspirator in Puerto Rico was likely sufficient for venue to lie
in Puerto Rico because the offense "continued" in that forum, but
finding the appellants' argument waived in any event).
We therefore join the other circuits in rejecting the
manufactured venue doctrine. However, even if such a doctrine
were to be available in extreme cases of government misconduct,
that would simply not be the case here. The undercover agent drove
Guzman from Boston’s Logan Airport to a Portsmouth, NH-area hotel
for a meeting (a drive of roughly an hour). We see no reason why
the government could not bring its case in an adjacent
jurisdiction, when it could have arranged the meeting just a few
miles south in Massachusetts and secured venue there without any
possible objection.
C. Reasonableness of the Sentence
Celaya's final argument is that his 210-month prison
sentence was unreasonable, on the grounds that the district court
erred by failing to give him a downward adjustment for what he
- 23 -
claims was a minor role in the conspiracy, and also erred in
applying the sentencing factors under 18 U.S.C. § 3553. We are
not convinced.
To qualify for a three-level reduction for a
minimal/minor role in the offense under U.S.S.G. § 3b1.2(b), a
defendant bears the burden of showing that he is less culpable
than his confederates and less culpable than "most other miscreants
convicted of comparable crimes." United States v. Montes-Fosse,
824 F.3d 168, 172 (1st Cir. 2016) (quoting United States v. Ortiz-
Santiago, 211 F.3d 146, 149 (1st Cir. 2000). Because "[r]ole-in-
the offense determinations are notoriously fact-sensitive," the
district court's "decision to apply a minor-role reduction is
subject to clear error review." Id. (citing Ortiz-Santiago, 211
F.3d at 148-49).
Here, the district court properly considered whether the
reduction was appropriate, and found that it was not.
Specifically, the court noted that Celaya was at the negotiating
table with the FBI Organization and, in light of his legal and
financial background, was a leading voice in discussing the money
laundering aspects of the conspiracy. He also admitted to meeting
with El Chapo personally in the mountains in Mexico to recommend
that the Sinaloa Cartel enter into a partnership with the FBI
Organization. We find no reason to conclude that the district
- 24 -
court committed plain error in not applying the three-level
reduction.
Finally, Celaya argues that his sentence was
substantively unreasonable because he received a sentence that was
longer than those of his co-conspirators, who received sentences
ranging from 60 months to 192 months. The latter sentence was
handed down to Guzman, and Celaya contends that it was unreasonable
to sentence him to a term of imprisonment that was eighteen months
longer than Guzman, who was El Chapo's right-hand man and
"dominated the conspiracy proven at trial" by attending every
single meeting with the undercover agents and orchestrating the
shipment of drugs to Detroit. This sentencing decision, according
to Celaya, resulted in a misapplication of the § 3553(a) factors,
which require that a Court "avoid unwarranted sentencing
disparities among defendants with similar records who have been
found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).
This argument fails for two reasons. First, it is not
clear from the record that Guzman was necessarily a more central
player than Celaya, who met with El Chapo and was intimately
involved in the planning process for the conspiracy. Therefore,
the fact that his sentence exceeded that given to Guzman and other
co-conspirators may well constitute a "plausible sentencing
rationale and a defensible result," United States v. Rivera-
Gonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (quoting United States
- 25 -
v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), as required under
this court's standard of review for the substantive reasonableness
of a sentence. Secondly, if that is not enough, there was a
crucial difference between Celaya and his co-defendants: Celaya
was the only one who elected not to plead guilty. Therefore, while
Guzman and other co-defendants were entitled to a three-level
reduction for acceptance of responsibility, Celaya was not. This
court "routinely [has] rejected disparity claims" where
"complaining defendants . . . fail to acknowledge material
differences between their own circumstances and those of their
more leniently punished confederates." United States v. Reyes-
Santiago, 804 F.3d 453, 467 (1st Cir. 2015). A decision to proceed
to trial, rather than to plead guilty alongside other co-
defendants, is a permissible factor that a court may consider in
determining a possible sentencing disparity between a defendant
and his other coconspirators. See, e.g., United States v. Ortiz-
Islas, 829 F.3d 19, 29 (1st Cir. 2016). For both of the above
reasons, Celaya's claim that the sentence was substantively
unreasonable fails.
III. Conclusion
For the aforementioned reasons, we AFFIRM Celaya's
conviction and sentence.
- 26 -