United States Court of Appeals
For the First Circuit
No. 16-1222
UNITED STATES OF AMERICA,
Appellee,
v.
DELFIN ROBLES-ALVAREZ, a/k/a El Indio, a/k/a Delfo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Osvaldo Carlo-Linares, with whom Carlo Law Office, LLC was on
brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, and Julia M. Meconiates, Assistant United
States Attorney, were on brief, for appellee.
October 18, 2017
HOWARD, Chief Judge. Defendant-Appellant Delfin Robles-
Alvarez appeals his convictions and sentence stemming from his
participation in a large-scale cocaine trafficking conspiracy. We
reject the appellant's two claims of trial error, and therefore
affirm his convictions. However, because the district court did
not address the appellant's potentially persuasive argument in
favor of a sentence varying from the advisory guideline range, we
vacate his sentence.
I.
According to the evidence presented at trial, the
appellant became involved in drug trafficking through his cousin
Orlando Robles-Ortiz. Robles-Ortiz himself began trafficking
drugs at the invitation of his co-worker Ivan Ortega. Robles-
Ortiz and Ortega imported cocaine into Puerto Rico from Santo
Domingo, St. Thomas, St. Martin, Tortola, and Antigua. When Ortega
passed away in 2005, Robles-Ortiz's role escalated. He contacted
Eduardo Pérez-Figueroa, another associate of Ortega's, and
proposed an operation to smuggle 105 kilograms of cocaine into
Puerto Rico from Antigua.
The night before his scheduled departure, Robles-Ortiz
met with the appellant, explained the details of the upcoming trip,
and offered him the chance to participate. The appellant accepted.
The two traveled to Antigua by boat, purchased 105 kilograms of
cocaine, and transported it back to Puerto Rico. During their
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return trip, Robles-Ortiz and the appellant stopped in St. Martin
to meet with Enrique Rodríguez, Ortega's former supplier. Robles-
Ortiz offered Rodríguez his services, and the two agreed to speak
again once Robles-Ortiz arrived in Puerto Rico.
Within days of his return from Antigua, Robles-Ortiz
began making smuggling trips to St. Martin, working with both Pérez
and Rodríguez. Robles-Ortiz completed approximately twenty of
these voyages prior to his 2012 arrest, and the appellant joined
him on more than ten. On average, the group imported about 100
kilograms of cocaine on each trip. The members of the conspiracy
also engaged in a variety of schemes to launder the proceeds of
these smuggling operations.
Ultimately, the appellant was arrested and charged with
conspiracy to distribute narcotics, see 21 U.S.C. §§ 959(a),
960(a)(3) & (b)(1)(B), 963; conspiracy to import controlled
substances, see 21 U.S.C. §§ 952(a), 960(a)(1) & (b)(1)(B), 963;
and conspiracy to launder monetary instruments, see 18 U.S.C.
§ 1956(h). The indictment specifically alleged a conspiracy to
import cocaine from St. Martin. It did not mention the Antigua
smuggling incident. After a four-day trial, the jury convicted
the appellant on all counts. The appellant moved for judgment of
acquittal pursuant to Fed. R. Crim. P. 29, arguing that the
government had presented insufficient evidence to support the
charges, but the district court denied that motion.
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The Presentence Investigation Report prepared by the
probation officer indicated that the appellant's guideline
sentencing range was life imprisonment. The appellant agreed that
this calculation was procedurally correct, but he also argued for
a downward variance to avoid sentencing disparities among co-
defendants. The appellant represented that his co-conspirators
were all sentenced to between forty-six and 210 months'
imprisonment. The court nonetheless imposed a life sentence,
without so much as mentioning the disparity argument. This timely
appeal followed.
II.
The appellant presses three arguments on appeal: (1)
that the trial evidence was insufficient to support his
convictions; (2) that the district court erred in admitting
evidence of his participation in the drug smuggling expedition to
Antigua; and (3) that his life sentence was procedurally and
substantively unreasonable. We address each of these contentions
in turn.
A. Sufficiency of the Evidence
We review the sufficiency of the evidence supporting the
appellant's convictions de novo, viewing the evidence "in the light
most favorable to the jury's verdict." United States v. Rivera-
Donate, 682 F.3d 120, 133 (1st Cir. 2012) (citation omitted). In
conducting this inquiry, we do not "assess the credibility" of
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witnesses because "that is a role reserved for the jury." Id. at
134-35 (citation omitted).
The appellant's sufficiency argument is a narrow one.
He does not contend that the government's evidence, if believed,
lacked probative value in support of the charges. Rather, the
appellant argues that Robles-Ortiz's testimony was "the only
evidence" that the two cousins took the drug smuggling voyages
together. Even accepting the appellant's dubious characterization
of the government's proof, this argument overlooks our express
holding that "the uncorroborated testimony of a cooperating
accomplice may sustain a conviction so long as that testimony is
not facially incredible." United States v. Torres-Galindo, 206
F.3d 136, 140 (1st Cir. 2000). As we perceive no facial
incredibility in Robles-Ortiz's testimony, this evidence alone
would have been sufficient to support the jury's verdict.
Moreover, contrary to the appellant's claim, the
government did provide the jury with significant corroboration of
Robles-Ortiz's narrative. Perhaps most notably, it introduced
into evidence the appellant's passport bearing several stamps in
and out of St. Martin during the relevant timeframe. Additional
corroboration included audiotapes of phone calls between the
appellant and other conspirators, evidence of the appellant's
extravagant purchases, and the testimony of another co-conspirator
that the appellant was involved in the smuggling scheme.
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B. Rule 404(b)
The appellant next takes issue with the admission of
evidence relating to his participation in the drug smuggling trip
to Antigua. Prior to trial, the government filed notice of its
intent to introduce this evidence as "inextricably intertwined
with" and "intrinsic to" the charged conspiracy or, alternatively,
pursuant to Fed. R. Evid. 404(b). The district court allowed the
evidence to be admitted, commenting that it was "neither intrinsic
nor 404(b)," but instead represented "the start of the [charged]
conspiracy." We review this ruling for abuse of discretion. See
United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.
1995).
Rule 404(b) prohibits the use of prior bad acts evidence
"to prove a person's character in order to show" action in
conformity therewith. Fed. R. Evid. 404(b). We have previously
held that evidence "concern[ing] matters intrinsic to the crime
charged" does not "trigger" this provision. United States v. Mare,
668 F.3d 35, 39 (1st Cir. 2012). Such "intrinsic" evidence
includes "the necessary description of the events leading up to"
the charged crime. United States v. Souza, 749 F.3d 74, 84 & n.2
(1st Cir. 2014); see also United States v. Green, 617 F.3d 233,
247 (3d Cir. 2010) (explaining that evidence is admissible for
purpose of "allowing the jury to understand the circumstances
surrounding the charged crime" or "completing the story").
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Here, the district court did not abuse its discretion in
admitting evidence of the Antigua smuggling trip because such
evidence was intrinsic to the charged conspiracy. Clearly, the
meeting between the appellant, Robles-Ortiz, and Rodríguez in St.
Martin, during which the group discussed "the possibility of
becoming partners in a drug smuggling operation," was "part of the
necessary description of the events leading up to" the crime.
Souza, 749 F.3d at 84. Absent this evidence, the jury could have
been left wondering about how the various co-conspirators came
together. And, in turn, evidence of the appellant's and Robles-
Ortiz's participation in a drug smuggling trip to Antigua not only
explained why they were passing through St. Martin, but also why
Rodríguez would have trusted the pair and decided to go into
business with them. Cf. United States v. Green, 698 F.3d 48, 55
(1st Cir. 2012) ("[I]n a conspiracy case, evidence of other bad
acts . . . can be admitted to explain the background, formation,
and development of the illegal relationship, and, more
specifically, to help the jury understand the basis for the co-
conspirators' relationship of mutual trust." (citation omitted)).
Even assuming, contrary to the above analysis, that Rule
404(b) applies, the district court still did not abuse its
discretion in admitting evidence of the appellant's participation
in the Antigua trip. Rule 404(b) expressly states that, while
evidence of "other act[s] is not admissible to prove" criminal
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propensity, such evidence may be introduced "for another purpose"
provided that reasonable notice is given. Fed. R. Evid. 404(b).
Our circuit applies a two-part test to determine the admissibility
of evidence under Rule 404(b). "First, the trial judge must
determine whether the evidence in question is offered for any
purpose other than solely to prove that the defendant had a
propensity to commit the crime in question." Aguilar-Aranceta, 58
F.3d at 798. If this "special relevance" is established, the court
must then apply Rule 403 "to determine whether the probative value
of the evidence is 'substantially outweighed by the danger of
unfair prejudice.'" Id. (quoting Fed. R. Evid. 403).
Here, the appellant appears to concede that evidence of
his participation in the Antigua trip held special relevance.
Indeed, the Antigua evidence was clearly relevant to prove his
intent to join the drug trafficking conspiracy. Without it,
defense counsel may have argued that the appellant's mere presence
with Robles-Ortiz on the voyages was not sufficient to support a
conviction. See id. at 799 ("[W]e have held that it is within the
judge's discretion to permit the government to introduce evidence
of prior similar offenses to demonstrate the unlikeliness that the
defendant was merely an innocent and unknowing bystander.").
Turning to the second prong of the Aguilar-Aranceta
test, the district court did not abuse its discretion in finding
that the probative value of the Antigua evidence was not
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substantially outweighed by the danger of unfair prejudice.
Indeed, the government presented evidence of the appellant's
participation in at least ten additional smuggling trips of similar
magnitude. In this context, the evidence of the Antigua trip was
hardly inflammatory.
C. Sentencing
Lastly, we consider the appellant's challenge to his
life sentence. In doing so, we follow a familiar "bifurcated"
review process, assessing, in turn, the procedural and substantive
reasonableness of the sentence. United States v. Ayala-Vazquez,
751 F.3d 1, 29 (1st Cir. 2014) (citation omitted). Here, our
inquiry ends at the first stage. In the unique circumstances of
this case, the district court's failure to address, or even
acknowledge, the appellant's potentially persuasive argument for
a downward variance renders the sentence procedurally
unreasonable.1
The appellant's district court sentencing memorandum
focused on 18 U.S.C. § 3553(a)(6)'s directive that sentencing
judges consider "the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
1Because we vacate the appellant's sentence on this basis,
we need not rule on his separate procedural argument that the
district court failed to recognize the advisory nature of the
sentencing guidelines. The same is true of his contention that
the court failed to accord sufficient weight to various purportedly
mitigating factors.
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found guilty of similar conduct." While this instruction "is
primarily aimed at national disparities," it also permits
consideration of disparities among co-defendants. United States
v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015) (citation
omitted). In the present case, the appellant requested a downward
variance from the guideline sentence of life imprisonment, citing
the fact that his six co-conspirators received incarcerative
sentences ranging from forty-six to 210 months. Moreover, Robles-
Ortiz, who represented the bottom of that range, was "the leader
of the organization" and recruited the appellant to participate.
At the subsequent sentencing hearing, defense counsel renewed this
disparity argument and expressly referenced the memorandum. The
court ultimately sentenced the appellant to life imprisonment
without so much as mentioning the disparity issue.
A sentencing court commits procedural error, and thus
abuses its discretion, by, among other things, "failing to
adequately explain the chosen sentence." Gall v. United States,
552 U.S. 38, 51 (2007); see also 18 U.S.C. § 3553(c) (requiring
that the sentencing judge "state in open court the reasons for its
imposition of the particular sentence"). The precise nature of
this explanation requirement depends heavily on context. See Rita
v. United States, 551 U.S. 338, 356 (2007) ("The appropriateness
of brevity or length, conciseness or detail, when to write, what
to say, depends upon circumstances."). The district court must,
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however, "set forth enough to satisfy the appellate court that
[it] has considered the parties' arguments and has a reasoned basis
for exercising his own legal decisionmaking authority." Id. This
requirement is not onerous in the "typical case" where application
of the guidelines is straightforward. Id. at 357. In those
circumstances, "a court's reasoning can often be inferred by
comparing what was argued by the parties or contained in the pre-
sentence report with what the judge did." United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc),
abrogated on other grounds by Rita, 551 U.S. at 346. By contrast,
where the defendant "presents nonfrivolous reasons for imposing a
different sentence, . . . the judge will normally go further and
explain why he has rejected those arguments." Rita, 551 U.S. at
357.
Several other circuits have held, consistent with the
Supreme Court's guidance, that a sentencing judge may commit
procedural error warranting remand by failing to explain its
rejection of an argument for a downward variance. See United
States v. Pietkiewicz, 712 F.3d 1057, 1062 (7th Cir. 2013) (finding
procedural error where the district court denied a variance request
"without explanation"); United States v. Smith, 541 F. App'x 306,
308 (4th Cir. 2013) (vacating sentence where "the court failed
. . . to provide sufficient explanation for its decision to reject
[the defendant's] request for a variance"); United States v.
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Wallace, 597 F.3d 794, 804 (6th Cir. 2010) (holding sentence
procedurally unreasonable where the district court "did not make
even a cursory mention of the disparity" cited by the defendant).
Moreover, our court has previously, albeit in a split decision,
vacated a sentence where the district judge failed to respond to
the defendant's argument for a downward variance to avoid disparity
among co-defendants. See United States v. Cirilo-Muñoz, 504 F.3d
106, 107 (1st Cir. 2007).
Here, the appellant presented a potentially forceful
disparity argument. He was sentenced to life imprisonment, while
Robles-Ortiz, who was the leader of the conspiracy, recruited the
appellant to join, and participated in significantly more
smuggling runs, received only forty-six months. Moreover, despite
the appellant's repeated attempts to bring this disparity to the
court's attention, the sentencing judge did not even provide a
cursory explanation for its rejection of his argument. In these
unique circumstances, the court's failure to even mention the
disparity issue renders the appellant's sentence procedurally
unreasonable.2
2 In arguing for affirmance, the government cites language
from our opinion in Ayala-Vazquez suggesting that, where the
sentencing court states that it has considered the 18 U.S.C.
§ 3553(a) factors, we may "presume" that it applied § 3553(a)(6)'s
directive to avoid unwarranted disparities. 751 F.3d at 31. The
government's reliance on this precedent is misplaced for two
reasons. First, the purported disparity at issue in Ayala-Vazquez
was less significant than the one cited here. The defendant in
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Because we conclude that the district court committed
procedural error, we need not assess the substantive
reasonableness of the appellant's sentence. See United States v.
Prange, 771 F.3d 17, 37 n.8 (1st Cir. 2014). We do, however, note
that, as a general matter, "a defendant is not entitled to a
lighter sentence merely because his co-defendants received lighter
sentences." Reyes-Santiago, 804 F.3d at 467 (citation omitted).
And here, the appellant concedes two "material differences"
between his circumstances and those of his co-defendants: he did
not (1) plead guilty, see United States v. Rodríguez-Lozada, 558
F.3d 29, 45 (1st Cir. 2009); or (2) cooperate with the government,
see United States v. Rossignol, 780 F.3d 475, 478 (1st Cir. 2015).
Where such material differences exist, we typically leave
"[d]eterminations as to the relative culpability amongst
codefendants" to the district judge. Ayala-Vazquez, 751 F.3d at
33; see also Cirilo-Muñoz, 504 F.3d at 107 (rejecting argument
that case was sentenced to life imprisonment, but his co-defendants
were sentenced to 108, 132, 156, and 180 months, respectively.
See id. at 28-29. Here, by contrast, Robles-Ortiz, whose level of
participation in the drug trafficking conspiracy by all accounts
exceeded that of his cousin, received an incarcerative sentence of
only forty-six months. As explained above, the extent of the
required explanation is largely context-specific, so the greater
disparity in the present case called for a more detailed
explication of the court's rationale. Second, despite language
indicating that consideration of a purported sentencing disparity
could be presumed, our opinion in Ayala-Vazquez also made clear
that the district court had, in fact, expressly discussed and
rejected the defendant's contentions on this point. See id. at
31.
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that the mere "fact of the sentence disparity . . . itself
establishe[d] that the sentence [wa]s unreasonable").
Accordingly, we express no opinion as to the appropriate sentence
on remand, instead leaving that determination to the sound
discretion of the district court.
III.
For the foregoing reasons, we AFFIRM the appellant's
convictions, but VACATE his sentence and remand for further
proceedings consistent with this opinion.
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