United States Court of Appeals
For the First Circuit
No. 16-2226
UNITED STATES OF AMERICA,
Appellee,
v.
ASHLEY FLORES-CARTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Boudin, and Kayatta,
Circuit Judges.
Javier A. Morales-Ramos and Law Offices of Javier A. Morales-
Ramos on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Thomas F. Klumper, Assistant United States Attorney, Acting Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
May 18, 2018
BOUDIN, Circuit Judge. Between 2013 and 2015, Ashley
Flores-Carter ("Flores") participated in a drug conspiracy
involving the smuggling of cocaine from Puerto Rico to the
continental United States. With kilograms of cocaine hidden in
the lining of their suitcases, Flores and her co-conspirators
traveled on commercial flights from Puerto Rico to several U.S.
cities. On September 30, 2015, the government charged Flores with
conspiracy to possess cocaine with the intent to distribute,
21 U.S.C. §§ 846, 841(a)(1), asserting that Flores's role in the
drug conspiracy was two-fold: Flores herself flew from Puerto
Rico to the United States with cocaine-filled suitcases; later,
Flores recruited others to participate as drug mules.
Flores then made an incriminating post-arrest statement
to the DEA, negotiated with the government, spent time in jail
after bail was revoked, and received Jencks Act material, including
grand jury testimony, 18 U.S.C. § 3500(b); see also Fed. R. Crim.
P. 26.2. She then entered a straight plea of guilty without any
agreement with the government. On September 7, 2016, Flores was
sentenced to 84 months in prison, followed by five years of
supervised release.
Flores presents three main arguments on appeal,
ultimately seeking a remand for re-sentencing. First, Flores
argues that at sentencing the government misled the district court
as to Luis Pintor, one of Flores's thirty-six co-defendants who
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had pled guilty pursuant to a negotiated plea agreement. In her
post-arrest DEA interview, Flores had admitted to completing a
drug-trafficking trip to New York with Pintor in early 2013.
During Flores's sentencing hearing, the district court briefly
inquired as to Pintor's sentence; the government responded that it
believed Pintor received a 70-month sentence and stated:
"[Pintor's] role within this conspiracy was even more limited than
this defendant." The Court replied: "Oh, okay." Defense counsel
then stated: "We don't believe so." The judge did not revisit
the issue.
Conceivably, the sentence of another defendant,
sentenced by a different judge but involved in some aspect of the
same criminal enterprise, might in some instances matter to the
district judge, were the judge sure of relative culpability. But
many judges might think the game not worth the candle. The judge
here apparently thought this since he made no finding and showed
no interest in such a dubious detour. Rule 32, Fed. R. Crim. P.
32(i)(3)(B), calls on the court to resolve disputed material facts
or say that the dispute does not matter, but neither side here
invokes the rule with respect to this claim.
Further, defense counsel was apparently satisfied with
the district court's disinterest in drawing any inference as to
relative culpability and certainly did not oppose leaving the
matter unexplored. Having failed to object to the judge's evident
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intent to leave the disagreement unexplored, pursuing the matter
now would require at the very least plain error. United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Defense counsel makes no
such claim and nothing here would support a claim of plain error
if one had been made.
The sentencing transcript confirms that the district
court engaged in a proper and individualized sentencing. While
the Presentence Report ("PSR") included a two-point enhancement
for obstruction of justice based on Flores's messages to a
potential witness, the court rejected this recommendation after
hearing from both Flores's attorney and the government, stating:
"I also considered that the texts as such are somewhat ambiguous
. . . I don't believe that . . . the government proved by a
preponderance of the evidence that the obstruction of justice
should be granted."
The district court also considered the three different
drug quantities proposed--48 kilograms in the government's
sentencing memorandum, 8 kilograms in Flores's sentencing
memorandum, and 41 kilograms in the PSR--before ultimately
accepting the PSR's quantity. The judge gave due attention to
disputes where they seemed to matter. A fleeting reference to a
co-defendant and his sentence did not taint the sentencing hearing,
especially when examined under the plain error standard.
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Additionally, Flores says that both the PSR and the
government's sentencing memorandum contained factual errors as to
the quantity of cocaine properly attributable to her. The PSR
concluded that she was responsible for at least 41 kilograms; the
sentencing memorandum put the figure at 48. Both attributed to
Flores the drugs handled by individuals she recruited. Under
either calculation (41 or 48 kilograms), Flores's base offense
level would be 32. U.S.S.G. § 2D1.1(c)(4)(2015). Flores's counsel
argued for level 30, holding Flores accountable for 8 kilograms
that Flores personally smuggled into the continental United
States.
The district court held Flores responsible for the PSR's
quantity: 41 kilograms. Flores's sentencing memorandum generally
disputed the PSR's drug quantity of 41 kilograms but did not raise
the argument that Flores now presents on appeal, namely, that the
drugs smuggled by co-conspirators she recruited should not be
counted. Rather, Flores argued (and still argues) over the number
of trips she took carrying drugs, but not to an extent that would
have reduced her base offense level below 32 given the amounts
carried by her recruits.
Since Flores admitted to recruiting at least four
individuals, and it was clear that the government's sentencing
memorandum and the PSR considered Flores's recruits when
calculating the drug quantity, we see no excuse for Flores's
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failure to develop below the argument she now raises. Defense
counsel argued that one putative recruit was not sufficiently
recruited to count but never made the claim now advanced that true
recruits should not be counted. The claim is forfeited and would
not be rescued by a claim of plain error, if attempted.
At sentencing, the district court makes findings as to
drug quantity under a preponderance of the evidence standard,
United States v. Walker-Couvertier, 860 F.3d 1, 17 (1st Cir. 2017),
and the court "has wide discretion to decide whether particular
evidence is sufficiently reliable to be used at sentencing."
United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).
A participant in a drug trafficking conspiracy "is
responsible . . . for drugs he himself sold, transported, or
negotiated, as well as for drug quantities attributable to others
that are reasonably foreseeable to him . . . ." Id. at 5
(alterations in original) (internal quotation marks omitted). The
41 kilogram figure is amply supported and unflawed by material
error.
Finally, Flores argues that the district court did not,
but should have, considered the grand jury testimony cited in her
sentencing memorandum--testimony procured by Flores under the
Jencks Act, 18 U.S.C. § 3500(b).
Shortly prior to Flores's scheduled trial, the
government provided Flores with Jencks Act material, which
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included the grand jury transcripts at issue. 18 U.S.C. § 3500(b);
see also Fed. R. Crim. P. 26.2. After pleading guilty, Flores
used the disclosed grand jury transcripts to bolster various
arguments in her sentencing memorandum. The government argued
that Flores's use of such material was improper since the
transcripts were provided for the sole purpose of potential use at
trial. But the district court did consider the material. Noting
that Flores's reliance was "unusual," the court stated that it had
reviewed her sentencing memorandum, which included citations to
the grand jury testimony.
Since the district court did consider the information,
the premise of Flores's argument is wrong and the argument fails.
Whether material secured under the Jencks Act can be used in
sentencing, or only for the assigned purpose of cross-examining
government witnesses, is a question which has apparently rarely
arisen and need not be pursued on this appeal.
Affirmed.
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