United States v. Rivera-Donate

United States Court of Appeals
For the First Circuit

No. 08-2441

UNITED STATES OF AMERICA,

Appellee,

v.

EDIBERTO RIVERA-DONATE, a/k/a "YEYE," a/k/a "BALA BLANCA,"

Defendant, Appellant.

No. 08-2541

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN J. GONZÁLEZ-PÉREZ, a/k/a "JUANCHO,"

Defendant, Appellant.

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

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

Before

Torruella, Stahl, and Thompson,
Circuit Judges.

Ignacio Fernández-de Lahongrais, for appellant González-Pérez.
Jorge L. Armenteros-Chervoni, for appellant Rivera-Donate.
Warren Vázquez, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and George A. Massucco-LaTaif, Assistant United States Attorney,
were on brief for appellee.

June 7, 2012

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 TORRUELLA, Circuit Judge. Defendants-Appellants Ediberto

Rivera-Donate ("Rivera") and Juan González-Pérez ("González")

(collectively, the "Defendants") were convicted by a jury on

charges of conspiracy to possess with intent to distribute multi-

kilogram quantities of controlled substances in violation of 21

U.S.C. §§ 841(a)(1) and 846. On appeal, the Defendants

individually raise various challenges to their convictions, with

González also bringing a challenge to his sentence. After careful

consideration, we affirm in all respects.

I. Background

A. The Indictment

In October of 2003, the Drug Enforcement Administration

began an investigation into the drug-trafficking organization run

by Alfredo Martínez-Figueroa ("Martínez") in the area of Ponce,

Puerto Rico. Since 1998, Martínez's organization distributed

cocaine, cocaine base (crack), heroin, and marijuana from drug

points operating in various public housing projects, wards, and

neighborhoods located primarily in the southern region of Puerto

Rico. The organization also shipped narcotics to the continental

United States.

On December 1, 2005, a grand jury returned a multi-count

indictment1 charging forty-two people, including the Defendants in

1
For purposes of this appeal, we limit ourselves to Count One of
the indictment, containing the distribution charges for which the
defendants were convicted.

-3-
this case, with, inter alia, conspiracy to distribute narcotics "at

La Ferrán Ward, Nueva Atenas and Méndez Vigo streets, [the]

Arístides Chavier Public Housing Project, and [the] Ponce Public

Housing Project in Ponce, Puerto Rico." The indictment identified

the Defendants as enforcers of the drug-trafficking organization.

According to the indictment, enforcers were those persons who

possessed, carried, used, and brandished firearms "to provide

protection to the leader of the organization as well as to the drug

operations of the conspiracy from rival drug trafficking

organizations." The Defendants were also both identified as drug

point owners, while Rivera was specifically pegged as a drug

processor and González as a supplier of cocaine for other drug

points. In addition, Rivera was charged with participating in the

March 13, 2005 killing of Luis Torres-Acevedo ("Torres") in

furtherance of the conspiracy.

After the Defendants pled not guilty, Rivera filed

motions to strike the overt act contained in paragraph 27 of the

indictment ("overt act #27") charging him with participation in the

killing of Torres. He also sought to exclude alleged co-

conspirator statements made in furtherance of the conspiracy and to

dismiss the indictment and/or to sever his case. These motions

were denied.

-4-
B. Relevant Testimony at Trial

The government's main cooperating witness at trial was

Jason Barreira-Camacho ("Barreira"), an admitted drug user and

murderer2 who was arrested in 2005 for possession of a firearm.

Barreira testified that he began working for Martínez's

organization in 2001 and held responsibilities as an enforcer,

runner, seller, and processor. In his testimony, Barreira defined

enforcers, including himself, as organization members having the

"duty to kill anybody trying to interfere with the La Ferrán drug

point belonging to [] Martínez." Barreira provided detailed

testimony concerning both Rivera and González's involvement in the

conspiracy.

Barreira testified that he discussed with Rivera the

latter's purchasing of cocaine from Osvaldo Zapata-Cruz (a.k.a.

"Valdo") during 2004, and his subsequent distribution of the drugs

in the Santiago Iglesias housing project. Valdo was Martínez's

right-hand man and in charge of cocaine distribution for the

organization both in Puerto Rico and to the continental United

States. Barreira also identified Rivera as a drug processor for

Martínez's organization and testified that in early 2005 he saw

Rivera processing marijuana along with another co-conspirator at

the house where Barreira resided prior to his arrest. This house

2
Barreira testified to having committed nine murders and two
attempted murders prior to his arrest, during which time he
operated as a member of Martínez's drug trafficking organization.

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was located in Quebrada del Agua, Ponce, which is only a short car

ride away from La Ferrán Ward and the housing projects listed in

the indictment.

Barreira also testified that an unindicted co-conspirator

known as "Chito" confessed to Barreira while in Rivera's presence

that he had accidentally murdered an innocent person as part of a

drive-by shooting in which Rivera participated as the driver.3

According to Barreira, Chito stated that the shooting was meant to

target a person who had allegedly stolen five kilos of cocaine from

Valdo. The unintended victim of the shooting turned out to be

Torres, who had been riding in the car with the intended target.

Barreira testified that, as Chito recounted the events leading up

to the shooting and its aftermath, Rivera confirmed the story

"saying that, yes, it's true, just as Chito told you it happened,

that's how it went down."

According to Barreira's testimony, upon hearing of the

botched drive-by, Valdo became "very, very upset" and asked

Barreira to confiscate Chito's weapon. Subsequently, and at his

request, Chito handed Barreira a .357 Magnum -- the same gun that

the police later found in Barreira's possession on the day of his

arrest. Barreira testified at trial that he incorrectly assumed

3
Barreira testified that "Chito was a real good friend of
Rivera['s]" and had been "working the marijuana along with Rivera"
at Quebrada del Agua.

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this was the same gun that Chito had used to commit the Torres

murder.4

As to González, Barreira testified that, beginning in

2005, González received cocaine from co-conspirator Heriberto

Rodríguez-Rosa ("Rodríguez") for his own distribution. On one

occasion, Barreira personally saw Rodríguez give some cocaine to

González. Subsequently, González approached Barreira directly and

requested a supply of heroin for distribution in the Ponce Housing

Project "because [González indicated that] Rodríguez[] was already

supplying him with crack cocaine." Barreira asserted that González

was distributing the cocaine in the Ponce Public Housing Project.

This testimony was corroborated by Eddie Vidal ("Vidal"), a

government witness and case agent, who indicated that Rodríguez

would give cocaine to González for distribution in the Ponce Public

Housing Project.

In addition, both Barreira and another of the

government's witnesses, Marcos Rentas-Camacho ("Rentas"),

identified González as an enforcer for the organization. Rentas

generally described "enforcers" as members of the gang who "set

order [to] the drug point" and would go to "war" with other gangs.

4
As will be discussed infra, in an affidavit made to state
prosecutors upon his arrest in 2005, Barreira stated that the
pistol the police confiscated from him on the day of his arrest --
a .357 Magnum -- had been the same weapon used to kill Torres on
March 13, 2005. However, ballistics testing would later conclude
that the gun found on Barreira could not have been the murder
weapon.

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Both witnesses testified that González would "hang around" the La

Ferrán drug point, armed and in the company of other charged co-

conspirators; Rentas specified that González would go to La Ferrán

"armed" to "protect the entire drug point." Barreira, in turn,

indicated the kind of weapon that González would carry in the

performance of his duties as an enforcer -- a .45 caliber pistol -–

and that González once handed him such a weapon.

At the close of the government's case the Defendants

moved for judgment of acquittal under Fed. R. Crim. P. 29. The

motions were denied. At the end of trial, the Defendants

unsuccessfully renewed their requests, and on March 3, 2008, they

were found guilty. Subsequent Rule 29 motions by the Defendants

were also denied.

On October 10, 2008, Rivera was sentenced to life

imprisonment, with five years of supervised release if ever

released from confinement. On November 10, 2008, González was

sentenced to a term of imprisonment of two hundred forty months, or

twenty years, followed by a term of supervised release of ten

years. All remaining counts were dismissed against both

defendants. This timely appeal followed.

II. Discussion

Rivera argues that the district court erred by (1)

excluding evidence of certain prior statements made by Barreira,

the government's main witness against him, regarding the weapon

-8-
seized during Barreira's arrest; (2) allowing a conviction based on

evidence that established an impermissible variance to the charges

listed in the indictment against him; and (3) permitting the

government to introduce evidence of the Torres murder via co-

conspirator statements under Federal Rule of Evidence 801(d)(2)(E).

González, on the other hand, claims that (1) the evidence against

him was insufficient to sustain his conviction, and (2) the

district court erred in applying an enhancement to his sentence

based on a prior conviction. We address each issue in turn.

A. Rivera's Challenges on Appeal

1. Exclusion of Barreira's Prior Statements

Rivera claims that the district court improperly denied

the introduction of extrinsic impeachment evidence in the cross-

examination of government witness Barreira and that this violated

his constitutional right to confront the witness against him.

Rivera sought to impeach Barreira with a sworn affidavit given to

state prosecutors upon his arrest. The affidavit contained

Barreira's sworn assertions that the gun that was confiscated from

him on the day of his arrest -- the .357 Magnum that he had taken

from Chito -- was the same gun used for the drive-by shooting and,

consequently, the murder of Torres.5 Subsequent ballistic evidence

5
Rivera also sought to admit certain certified translations of
audio recordings of testimony given by Barreira in state court
proceedings. Counsel for Rivera admittedly failed to submit the
transcripts to the court below as rejected impeachment material for
the record, and Rivera's briefing on appeal is bereft of any

-9-
revealed, however, that the confiscated .357 Magnum was not a match

for the one used in the murder. Accordingly, Barreira's testimony

at trial acknowledged that he had "made a mistake" in his earlier

statements "by incorrectly assuming that [the .357 Magnum] was the

revolver that was used" in the Torres murder. Barreira stated that

he had made this assumption "because [] the day that [he] asked

Chito to give [him] the revolver was the same day that Valdo

ordered [him] to take the revolver from Chito" in connection with

the botched drive-by.

Rivera argues that Barreira's prior sworn statements

establish a discrepancy regarding the gun that makes his testimony

at trial less credible, and his prior statements more significant

for impeachment purposes. We disagree.

"The Confrontation Clause of the Sixth Amendment secures

a right to cross-examination in order to test 'the believability of

a witness and the truth of his testimony.'" United States v.

González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000) (quoting United

States v. Carty, 993 F.2d 1005, 1009 (1st Cir. 1993)). However, as

we have explained, this right is not unlimited. "When a witness's

credibility is at issue, the trial court may limit cross-

examination as long as the court allows 'sufficient leeway to

description whatsoever of what, if any, material statements those
transcripts contain. We nonetheless assume, based on the nature of
Rivera's argument on appeal, that they contain parallel
misstatements by Barreira as to the gun in question and would
therefore have a similar effect upon the question on appeal.

-10-
establish a reasonably complete picture of the witness' veracity,

bias, and motivation.'" Id. (quoting United States v. Laboy-

Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal quotation marks

omitted)).

Thus, on appeal from a trial court's decision to impose

such limitations, we first "review the record de novo to ascertain

whether the court, overall, gave the defendant a reasonable chance

to develop the whole picture." Laboy-Delgado, 84 F.3d at 28

(emphasis added). "If we determine that the defendant's

opportunity to impeach adverse witnesses met or exceeded this

constitutionally-guaranteed threshold, we review for abuse of

discretion the district court's decision to impose reasonable

limits on cross-examination in order to avoid confusion of the

issues or extended discussion of marginally relevant material."

United States v. Byrne, 435 F.3d 16, 21 (1st Cir. 2006) (internal

quotation marks and citation omitted).

Barreira's testimony at trial acknowledged that he had

made a prior statement in which he had mistakenly characterized the

confiscated revolver as the murder weapon. Barreira's

acknowledgment at trial of the discrepancy between his prior

statement and the subsequently-gleaned ballistics information

clarified to the jury the precise conflict that Rivera was

interested in highlighting through the affidavit. The district

court's failure to allow Rivera to introduce Barreira's prior sworn

-11-
statement as extrinsic evidence therefore did not prevent the jury

from obtaining "a reasonably complete picture of the witness'

veracity, bias, and motivation." Laboy-Delgado, 84 F.3d at 28

(quoting United States v. Boylan, 898 F.2d 230, 254 (1st Cir.

1990)). Defense counsel had ample opportunity to explore this

avenue of impeachment and to "ensure[] that the jury understood

[Rivera's] concerns about the witness," at which point "the

district court was entitled to move the trial forward." Byrne, 435

F.3d at 22. See United States v. Innamorati, 996 F.2d 456, 478

(1st Cir. 1993) (noting "no Confrontation Clause issue [was]

presented" where "reasonable opportunity to test [the witnesses']

veracity and motives was offered"). We therefore hold that the

district court did not deprive Rivera of his confrontation rights

by denying his request to admit prior statements by Barreira as

impeachment material.

Moreover, we conclude that the district court's decision

was not an abuse of discretion. While the previous statement might

be superficially inconsistent with Barreira's testimony at trial,

his explanation upon questioning by both parties, i.e., mistaken

belief, did away with the inconsistency; and so the trial court

found. See United States v. Martin, 694 F.2d 885, 888 (1st Cir.

1982) (alleged inconsistent statement of witness made prior to

trial not allowed as extrinsic impeachment evidence where

defendant-appellant was unable to demonstrate that the offered

-12-
testimony was in fact inconsistent with statements made at trial);

see also United States v. Hale, 422 U.S. 171, 176 (1975) ("A basic

rule of evidence provides that prior inconsistent statements may be

used to impeach the credibility of a witness. As a preliminary

matter, however, the court must be persuaded that the statements

are indeed inconsistent.").

2. Prejudicial Variance

Rivera next argues that the government's evidence at

trial established an impermissible variance from the charges listed

in the indictment against him. Specifically, he submits that any

facts pertaining to drug trafficking in the area of Quebrada del

Agua, introduced through Barreira's testimony, are outside of the

charged conspiracy and are, in fact, related to a separate

conspiracy led by Valdo and an individual known as "Lipo." Rivera

bases this contention on testimony at trial to the effect that Lipo

was running the drug point at Quebrada del Agua, which distributed

marijuana to the adjacent town of Peñuelas, and that this drug

point was not "owned" by Martínez, nor did Lipo "work for" him.

Rivera particularly emphasizes the fact that neither Quebrada del

Agua nor Peñuelas were mentioned in the indictment.6

6
The district court denied Rivera's motion in limine in this
regard and his direct objection to Barreira's Quebrada del Agua
testimony; it also denied Rivera's subsequent motion for a mistrial
during the cross-examination of Barreira based on the same
argument. The argument was again raised in Rivera's various Rule
29 motions, which were also denied.

-13-
 Rivera's claim "requires us to determine whether a

variance occurred and, if so, whether that variance prejudiced

[his] substantial rights."7 See United States v. Pérez-Ruiz, 353

F.3d 1, 7 (1st Cir. 2003). This doctrine is also meant to protect

against the prejudicial "spillover" effect that may occur in cases

involving multiple defendants. See United States v. Tormos-Vega,

959 F.2d 1103, 1115 (1st Cir. 1992); United States v. Flaherty, 668

F.2d 566, 582 (1st Cir. 1981) ("If the Government proves more

conspiracies than the one charged in the indictment, a defendant

involved in one conspiracy may not be convicted on the basis of

evidence that relates only to a separate conspiracy."). It is this

last claim that Rivera attempts to raise on appeal.

When, as here, a defendant asserts a claim of variance

that is "premised on the notion that multiple conspiracies existed

and that his activities were not part of the charged conspiracy,

the initial question . . . is one of evidentiary sufficiency."

Pérez-Ruiz, 353 F.3d at 7. We must first determine whether the

government was able to prove the conspiracy charged in the

indictment by applying the typical framework for the review of

sufficiency challenges in criminal cases. See id. Accordingly,

"we canvass the evidence (direct and circumstantial) in the light

7
Our review in this sense is de novo. See United States v.
Dellosantos, 649 F.3d 109, 124 (1st Cir. 2011) ("We review de novo
the question whether a variance affected a defendant's substantial
rights." (quoting United States v. Wihbey, 75 F.3d 761, 774 (1st
Cir. 1996)) (emphasis added).

-14-
most agreeable to the prosecution" to assess if the evidence,

"including all plausible inferences extractable therefrom, enables

a rational factfinder to conclude beyond a reasonable doubt that

the defendant committed the charged crime." Id. (quoting United

States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997)) (internal

quotation marks omitted). In doing so, we resolve all credibility

issues in favor of the verdict, and "[w]e must reject [Rivera's]

claim as long as a plausible reading of the record supports the

jury's implied finding that he knowingly participated in the

charged conspiracy." Id. (citing United States v. Alicea, 205 F.3d

480, 483 (1st Cir. 2000) and United States v. Sepúlveda, 15 F.3d

1161, 1173 (1st Cir. 1993)).8

8
Thus, we are required to address the issue of variance only if
we find that the evidence establishes agreements different from
those charged. United States v. Soto-Beníquez, 356 F.3d 1, 18 n.1
(1st Cir. 2004). See Wihbey, 75 F.3d at 773 (explaining the
framework for analyzing when a variance between the conspiracy
charged and the conspiracy proven constitutes reversible error).
That phase of the inquiry focuses on whether there is sufficient
evidence to permit a well-instructed jury to convict the defendant
of a similar related conspiracy, and if so, whether the variance
between the two conspiracies affected his or her substantial
rights. See United States v. Glenn, 828 F.2d 855, 858 (1st Cir.
1987); Wihbey, 75 F.3d at 773 ("Put differently, '[s]o long as the
statutory violation remains the same, the jury can convict even if
the facts are somewhat different than charged -- so long as the
difference does not cause unfair prejudice.'") (quoting United
States v. Twitty, 72 F.3d 228, 230 (1st Cir. 1995)). Because we
find that the evidence in this case was sufficient to support the
finding of a single conspiracy, however, we need not reach these
additional steps in our analysis. See, e.g., Soto-Beníquez, 356
F.3d at 18 n.1; Pérez-Ruiz, 353 F.3d at 7.

-15-
 In order to determine whether a single conspiracy was

proved by the government, we look at the totality of the evidence

with various factors in mind, "none of which, standing alone, i[s]

necessarily determinative." United States v. Sánchez-Badillo, 540

F.3d 24, 29 (1st Cir. 2008). These factors include "(1) the

existence of a common purpose, . . . (2) the interdependency of

various elements in the plan, . . . and (3) the degree of overlap

among the participants." Soto-Beníquez, 356 F.3d at 18-19. The

government does not need to prove "that each conspirator knew of or

had contact with all other members," nor "that the conspirators

knew all of the details of the conspiracy or participated in every

act in furtherance of the conspiracy." Id. at 19 (citing United

States v. Mena–Robles, 4 F.3d 1026, 1032 (1st Cir. 1993)). Here,

in order to find the single conspiracy charged, with Martínez at

its head, it must have been possible for the jury to "infer from

the acts and statements of the witnesses a single ongoing

'agreement' that embraced [Rivera] and other co-conspirators."

United States v. Jones, 674 F.3d 88, 92 (1st Cir. 2012).

Rivera concedes that the trial evidence is sufficient to

support an overlapping of participants between Martínez's operation

and the Quebrada del Agua operation, particularly as it relates to

Valdo. His concern instead is that the objective of the Quebrada

del Agua drug point owned by Lipo was different and separate from

any of the charged conspiracy's concerns because it focused on

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selling marijuana in neighboring Peñuelas (an area not specifically

mentioned in the indictment) and the evidence reflects that Lipo

did not "work for" Martínez. Given, however, "the wide breadth of

the 'common goal' requirement," Rivera's argument does not take him

far. See Sánchez-Badillo, 540 F.3d at 29 (citing United States v.

Portela, 167 F.3d 687, 695 n.3 (1st Cir. 1999)); see also United

States v. Mangual-Santiago, 562 F.3d 411, 421-22 (1st Cir. 2009)

(noting that "'goal of selling cocaine for profit' or 'furthering

the distribution of cocaine is . . . sufficient evidence' of a

common goal" (quoting Portela, 167 F.3d at 695)).

The evidence shows that the activities that took place at

Quebrada del Agua were in fact linked to Martínez's operation.

Barreira testified that Valdo was in charge of distributing

Martínez's cocaine and that, while he was still an enforcer for

Martínez's operation, "[Barreira] left the heroin point to go help

Valdo with the cocaine kilos at [] Quebrada del Agua." Fairly

read, Barreira's testimony reflects that, while Lipo's marijuana

distribution operation ran separately from Martínez's, Valdo ran

his cocaine laboratory from the Quebrada del Agua residence owned

by Lipo's sister, where he kept a "press" for packaging the kilos

of cocaine. Barreira also indicated that, although he personally

"would not get [any] profits out of [Lipo's marijuana operation],

[] [he] would provide safety and security for the marijuana . . .

stash[ed] at the house."

-17-
 We also note that another of the government's witnesses,

an unindicted co-conspirator named Gerardo Fontánez ("Fontánez"),

testified that he saw Rivera working the marijuana, crack, and

cocaine processing table with both Lipo and Valdo. Fontánez

testified that he was residing in the same house in Quebrada del

Agua when these events took place. In testimony that will also

become relevant in our subsequent analysis, Fontánez indicated that

on one occasion he saw Lipo take a gun from Rivera and another from

Chito around the time of the Torres murder.9

The evidence, therefore, could support a rational

inference that, at the very least, Lipo's drug point shared a

common defense with the Martínez operation and that Martínez's

cocaine supply depended, at least in part, upon Valdo's successful

processing of the substance at the Quebrada del Agua residence.

See Soto-Beníquez, 356 F.3d at 19 (indicating that interdependency

can be shown where "the success of an individual's own drug

transactions depends on the health and success of the drug

trafficking network that supplies him"); Portela, 167 F.3d at 695

("Establishing interdependence among the participants requires

determining whether the activities of one aspect of the scheme are

9
Rivera challenges Fontánez's testimony as having been
inconsistent and "incredible," but it is the prerogative of the
jury to give credence to and interpret the combined testimony of
the various government witnesses and draw any reasonable
conclusions from the same. See United States v. Cianci, 378 F.3d
71, 92 (1st Cir. 2004) (indicating credibility of witnesses "is the
sole function of the trier of fact").

-18-
necessary or advantageous to the success of another aspect of the

scheme." (internal quotation marks and citation omitted)). "Such

interdependence 'makes it reasonable to speak of a tacit

understanding between [a core conspirator] and others upon whose

unlawful acts' his success depends." Sánchez-Badillo, 540 F.3d at

29 (quoting Glenn, 828 F.2d at 858).

Because the jury reasonably could have concluded that the

Quebrada del Agua activities shared a common purpose with

Martínez's operation, had the requisite degree of interdependency,

and were thus a subset of Martínez's master conspiracy, we must

reject Rivera's argument that there was a variance in this regard.

See United States v. LiCausi, 167 F.3d 36, 45 (1st Cir. 1999)

("Whether a single conspiracy or a multiple conspiracy exists is,

of course, a question of fact for the jury."); see also United

States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999) (stating that

"[j]urors are entitled to draw reasonable inferences from proven

facts").

As we stated before, "not every difference between the

indictment and the proof justifies relief." United States v.

Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998). Although

Quebrada del Agua and Peñuelas are not specifically listed in the

indictment, "[t]he government need not recite all its evidence in

the indictment, nor is its trial proof limited to the overt acts

specified therein." Id. It was established at trial that Quebrada

-19-
del Agua is located in Ponce, and the indictment mentioned that the

drug points associated with the conspiracy were "located in Ponce,

Puerto Rico." In addition, aside from overt act #27, discussed

further infra, Rivera was generally charged as a drug point owner,

drug processor, and as an enforcer for the conspiracy. To this

end, the indictment specified that Martínez's subordinates were

tasked, inter alia, with "accompanying him to purchase kilograms of

narcotics in Ponce and San Juan, Puerto Rico, and other locations

for further distribution at the drug points," as well as concealing

drugs at their residences. Although the indictment did not spell

out every single location at which activities related to the

conspiracy took place, it gave a sufficient description of the

manner and means of the same to put Rivera on notice of the charges

against him. See, e.g., Innamorati, 996 F.2d at 477-78 (rejecting

claim of variance because, although certain evidence presented

encompassed acts not listed in the indictment, "[t]he evidence

complained of [] f[ell] squarely within the scope of th[e] alleged

conspiracy, both temporally and substantively"). We find that

Rivera "cannot credibly claim surprise" and, therefore, "the

asserted variance does not warrant setting aside the verdict."

Marrero-Ortiz, 160 F.3d at 773.

3. Admission of Co-Conspirator Statements

Rivera's final challenge to his conviction is another

attack on the district court's evidentiary rulings. He contends

-20-
that any statements made by Chito or Valdo to Barreira in relation

to the murder of Torres -- overt act #27 -- were inadmissible

hearsay. Because Rivera preserved his challenge to the district

court's admission of these statements,10 we review his claim for

abuse of discretion. United States v. Díaz, 670 F.3d 332, 348 (1st

Cir. 2012).

Federal Rule of Evidence 801(d)(2)(E) classifies as non-

hearsay statements made by a defendant's co-conspirators "during

and in furtherance of the conspiracy." As such, these statements

"if admitted, may be considered for the truth of the matter

asserted." United States v. Colón-Díaz, 521 F.3d 29, 35 (1st Cir.

2008). Their admissibility turns on four elements: (1) the

existence of a conspiracy, (2) the defendant's membership in that

conspiracy, (3) the declarant's membership in the same conspiracy,

and (4) that the statement be made in furtherance of the

conspiracy. Id. at 35-36. "A district court faced with a

challenge to the admission of a co-conspirator's statement must

provisionally admit the statement and then wait until the end of

the trial to consider whether, in light of all the evidence,

[these] four conditions are satisfied by a preponderance of the

evidence." Díaz, 670 F.3d at 348 (citing United States v.

10
During trial, the district court denied Rivera's motion in
limine requesting that it exclude evidence in relation to overt act
#27 and Rivera presented an overruled objection in this respect
during Barreira's direct testimony.

-21-
Vázquez–Botet, 532 F.3d 37, 62 (1st Cir. 2008) and United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)). The preponderance

of the evidence required in this context "must necessarily comprise

more than the weight of the statement itself," requiring some

corroborating extrinsic evidence. Portela, 167 F.3d at 703

(quoting Sepúlveda, 15 F.3d at 1181-82).

Rivera contends that the following statements are

inadmissible because they were not made in furtherance of the

conspiracy: (1) Chito's confession to Barreira about the murder of

Torres and his reasons for committing the same, i.e., that the

target had stolen five kilos of cocaine from Valdo, and (2) Valdo's

statements to Barreira in reaction to the news of the botched

drive-by, i.e., his irritation and instruction that Barreira

confiscate Chito's weapon. We find there was no error as to the

latter of these statements because Barreira's testimony regarding

Valdo's reaction was not hearsay. The government offered Valdo's

out-of-court statements to establish the role that Valdo played as

supervisor over both Chito and Rivera. In addition, we have noted

that "[o]ut-of-court statements providing directions from one

individual to another do not constitute hearsay." Díaz, 670 F.3d

at 346 (citing United States v. Bailey, 270 F.3d 83, 87 (1st Cir.

2001)). We therefore proceed to assess only the admissibility of

Chito's statements to Barreira.

-22-
 Rivera's argument here essentially reasserts his variance

claim. Because Barreira's conversation with Chito and Rivera about

the botched drive-by took place at Quebrada del Agua, and none of

the activities at Quebrada del Agua had to do with the charged

conspiracy, so Rivera's argument goes, Chito's statements were

inadmissible. Having dismissed Rivera's premise by finding that

the government in this case was able to prove that a single

conspiracy existed, we need not delve too deeply in assessing this

claim.

The first two elements of the test outlined above are

met. We have already discussed the government's evidence from

which a reasonable juror could have concluded that a conspiracy to

distribute drugs operated under Martínez's leadership in the area

of Ponce, that the Quebrada del Agua operation was part and parcel

of the same drug ring, and that Rivera was a member of the

conspiracy by virtue, inter alia, of his drug processing

activities. As to the third element -- whether Chito, the

declarant, was also a member of the conspiracy -- there is evidence

on the record, aside from Barreira's own testimony, that Chito was

a runner for the group, that he was seen arriving at Quebrada del

Agua in the company of Rivera, that the two of them were seen

meeting with Lipo, and that the latter then took a gun from Rivera

and another from Chito. This testimony was given by government

witness Fontánez and serves as independent corroboration of the

-23-
fact that Chito was an active member of the charged conspiracy.

See, e.g., Díaz, 670 F.3d at 348 (identification by other witnesses

of the declarants as co-owners of the drug point and related

testimony as to their activity there considered sufficient as

evidence other than the out-of-court statements at issue).

Finally, the fourth element is satisfied because Chito's

statement to Barreira, that he and Rivera had performed a (botched)

drive-by in retaliation for the theft of cocaine from Valdo's

stash, pertained to the defense of Martínez's drug trafficking

ring. See United States v. Rodríguez, 525 F.3d 85, 101 (1st Cir.

2008) ("A statement is in furtherance of the conspiracy if it tends

to advance the objects of the conspiracy as opposed to thwarting

its purpose." (internal quotation marks and citation omitted)). At

the very least, the district court could reasonably have determined

that the conversation between Barreira, Chito, and Rivera about the

murder of Torres served to keep the members of the conspiracy up-

to-date on important developments relating to the organization.

See Sepúlveda, 15 F.3d at 1180 (noting as "common ground -- and

common sense -- that the reporting of significant events by one

coconspirator to another advances the conspiracy"); see also United

States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983) ("Statements

between conspirators which provide reassurance, serve to maintain

trust and cohesiveness among them, or inform each other of the

current status of the conspiracy further the ends of the conspiracy

-24-
and are admissible so long as the other requirements of Rule

801(d)(2)(E) are met."). Thus, the district court did not err when

it admitted the co-conspirator statements at issue.11

We move on to consider González's claims on appeal.

B. González's Challenges on Appeal

1. Sufficiency of the Evidence

González contends that the district court erred in

denying his Rule 29 motions for judgment of acquittal based on the

insufficiency of the evidence against him. He argues that the

government's evidence was insufficient to sustain his conviction

because the witnesses' testimonies were "uncorroborated,"

"insubstantial," and "incredible." We find otherwise.

11
Rivera contends that the same evidence does not pass muster
under Crawford v. Washington, 541 U.S. 36 (2004) (holding that
Confrontation Clause bars admission of testimonial hearsay unless
declarant is unavailable and accused had opportunity to cross-
examine). The claim is without merit because "[s]tatements made
during and in furtherance of a conspiracy are not testimonial" and
are, therefore, not subject to Sixth Amendment concerns. United
States v. Malpica-García, 489 F.3d 393, 397 (1st Cir. 2007) (citing
Crawford, 541 U.S. at 56); see also United States v. Hansen, 434
F.3d 92, 100 (1st Cir. 2006) (rejecting Crawford challenge and
finding that statements at issue were nontestimonial because they
were either co-conspirator statements made in furtherance of the
conspiracy, or casual remarks not reasonably expected to be
available for use at a later trial).

We also reject Rivera's additional, overall assertion that the
multiple evidentiary errors he argued, together, caused him
prejudice. Since we rejected all of Rivera's claims of error, "it
necessarily follows that [his] trial was not tainted by cumulative
error and reversal is not warranted." United States v. Brown, 669
F.3d 10, 28 (1st Cir. 2012).

-25-
 Because González moved for a judgment of acquittal on

sufficiency grounds, we review the district court's denial of the

motion de novo. United States v. Troy, 583 F.3d 20, 24 (1st Cir.

2009). As noted earlier, we review the sufficiency of the

government's evidence by examining both the direct and

circumstantial proof, "in the light most favorable to the jury's

verdict," id., to determine "'whether that evidence, including all

plausible inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime,'" id. (quoting United States v. Cruz-

Rodríguez, 541 F.3d 19, 26 (1st Cir. 2008)). To establish that the

defendant is guilty of participating in a drug-trafficking

conspiracy, "the government must prove . . . that 'an agreement

existed to commit the underlying offense, and that the defendant

elected to join the agreement, intending that the underlying

substantive offense be committed.'" United States v. Paret-Ruiz,

567 F.3d 1, 5 (1st Cir. 2009) (quoting United States v. Gómez-

Rosario, 418 F.3d 90, 105 (1st Cir. 2005)). To prove the

underlying offense of "possession with intent to distribute, the

government must show that the defendants knowingly and

intentionally possessed, either actually or constructively, a

controlled substance with the specific intent to distribute."

United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.

-26-
2007). Based on the totality of the evidence, we find that this

standard is met in the case before us.

The government's case against González was mainly based

on the testimonies of Barreira and Rentas. Rentas, who described

himself as a drug user from La Ferrán Ward, told members of the

jury that he was a drug seller who also worked as a lookout and

runner for the drug trafficking organization run by Martínez. He

stated that he agreed to testify pursuant to a plea and cooperation

agreement. Rentas described the role of "enforcers" in the

organization and identified González as an armed enforcer of the

same. He testified that he specifically remembered González

arriving at the drug point, armed, and in the presence of another

charged co-conspirator. Barreira, in turn, identified himself as

a drug user and an admitted murderer, and told members of the jury

that, aside from working as an enforcer, he had worked as a runner,

seller, and processor of drugs within the organization. His

testimony corroborated Rentas's account of what an enforcer's role

was within the organization, pegged González as one, specified the

kind of weapon that González typically carried, and indicated that

González once handed him such a weapon. Barreira also testified

that he saw González receive cocaine from co-conspirator Rodríguez

during the time frame of the conspiracy, and that González once

requested heroin from Barreira himself for distribution in the

-27-
Ponce Housing Project. Barreira's testimony in this regard was

corroborated by Vidal, another government witness.

This evidence is sufficient to support the jury's

reasonable conclusion that González was in fact an enforcer for

Martínez's organization and that he also participated as a

distributor of both cocaine and heroin in furtherance of the

charged conspiracy. In the past, similar evidence has been found

sufficient to sustain a drug-related conspiracy conviction. See,

e.g., United States v. Rivera-Rodríguez, 617 F.3d 581, 599-600 (1st

Cir. 2010) (concluding testimonial evidence sufficient for jury to

find that defendant participated in drug-trafficking conspiracy

where testimony related to defendant's relationships with drug

traffickers and his drug-supplying activities); United States v.

Rodríguez–Lozada, 558 F.3d 29, 39 (1st Cir. 2009) (same). We have

also found that evidence of even a single drug transaction, under

circumstances that reflect the defendant's tacit agreement relating

to the continuing drug-trafficking enterprise, can be sufficient to

sustain a conviction for conspiracy to distribute narcotics. See

United States v. Rivera-Ruiz, 244 F.3d 263, 269 (1st Cir. 2001)

(agreeing with this proposition and citing cases). Here, testimony

that González accepted drugs from Rodríguez for distribution, asked

Barreira for additional drugs also for distribution, carried a

weapon, and was a known enforcer for the operation who carried out

his patrolling duties in the company of other charged co-

-28-
conspirators, are all facts supportive of the jury's determination

that González was a member of the overall drug trafficking scheme.

See Paret-Ruiz, 567 F.3d at 6 ("An agreement between coconspirators

may be proven by circumstantial evidence, and it may be tacit.");

United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992) ("[A]n

agreement . . . may be inferred from a development and collocation

of circumstances.") (quoting United States v. Smith, 680 F.2d 255,

259 (1st Cir. 1982) (internal quotation marks omitted).

González contends that the government could not rest its

case on the testimony of a government cooperator and serial killer

(Barreira) and the minimal and inconsistent corroboration provided

by Rentas, who was also a government cooperator and Barreira's

brother.12 As to Rentas, González points to his initial inability

to list González as one of the enforcers for the organization, and

emphasizes that he was only able to identify González as an

enforcer after the government's repeated questioning. As to

12
It is unclear from González's brief what significance we are
asked to draw from the fact that the two witnesses were brothers,
except perhaps the notion that they would be in cahoots to
coordinate their respective testimonies in a bid to enhance their
value to the government as witnesses. No such argument is
articulated by González, however, and, in any event, this concern
would be one for the jury to weigh as part of its credibility
determination. Cf. United States v. Vázquez-Guadalupe, 407 F.3d
492, 499 (1st Cir. 2005) (deeming testimony of a government
witness, a criminal defendant being paid by the government for his
cooperation, admissible and noting the credibility of that
testimony "is left for the jury").

-29-
Barreira's testimony, González only contends that the same was

stereotyped, general, and vague.

We cannot agree with González that such alleged

deficiencies in the testimonial evidence presented are enough to

render the basis for his conviction insubstantial under the law.

In conducting our sufficiency analysis, we are not called to

"'assess the credibility of a witness, as that is a role reserved

for the jury.'" Rivera-Rodríguez, 617 F.3d at 596 n.6 (quoting

Troy, 583 F.3d at 24); see also United States v. Calderón, 77 F.3d

6, 10 (1st Cir. 1996) ("It [is] well within the jury's province for

it to choose to believe the testimony of [the defendant's]

accomplices -- in the face of cross-examination of their characters

and motives -- and to disbelieve [the defendant's] version of the

story."). Furthermore, "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) (citing United

States v. Rosario–Díaz, 202 F.3d 54, 67 (1st Cir. 2000)). We do

not agree that the testimonies of Barreira and Rentas were facially

incredible and, in fact, their testimonies, in combination with the

testimony of Vidal, corroborated each other.

Having rejected González's challenge to the sufficiency

of the evidence to sustain his conviction, we now consider his

argument against the district court's sentencing determination.

-30-
 2. Sentencing Enhancement

González challenges the applicability to his case of the

sentencing enhancement provided for in 21 U.S.C. § 841(b)(1)(A),

which allows a higher penalty for repeat drug offenders whose prior

convictions have become final. The provision states, in pertinent

part, that any person who violates subsection (a) of Section 841

"shall be sentenced to a term of imprisonment which may not be less

than 10 years or more than life," except that "[i]f any person

commits such a violation after a prior conviction for a felony drug

offense has become final, such person shall be sentenced to a term

of imprisonment which may not be less than 20 years and not more

than life imprisonment . . . ." 21 U.S.C. § 841(b)(1)(A) (emphasis

added). Prior to trial, the government filed an informational

notice under 21 U.S.C. § 851(a)(1)13 to establish González's prior

conviction under the laws of Puerto Rico for a felony drug offense,

that is, possession of a measurable amount of cocaine in violation

of Section 404 of the Commonwealth of Puerto Rico's Controlled

Substances Law. After trial and the jury's finding of guilt under

21 U.S.C. §§ 841(a)(1) and 846, González moved to strike the

government's informational notice, but the district court denied

13
This provision requires that the government provide pre-trial
notice to a defendant of any previous convictions based upon which
he or she might be sentenced to increased punishment for a
conviction under the Controlled Substances Act. See Comprehensive
Drug Abuse Prevention and Control Act of 1970, § 411(a)(1), 21
U.S.C. § 851(a)(1).

-31-
the request in a written order and González was sentenced pursuant

to the enhanced penalty.

On appeal, González reiterates the argument he made

below, that the district court should not have applied the enhanced

penalty provision based on the prior conviction because the same

was not yet "final," as required by Section 841(b)(1)(A), at the

time of his arrest or the issuance of the indictment in the federal

case. He requests that we set aside his sentence and remand his

case to the district court for re-sentencing. "As this argument

presents a question of statutory interpretation, we review it de

novo." United States v. Lino, 493 F.3d 41, 43 (1st Cir. 2007)

(emphasis added); see also Rivera-Rodríguez, 617 F.3d at 608 ("We

review de novo questions of the proper interpretation of statutes,

including whether prior convictions count for purposes of 21 U.S.C.

§ 851."). For the reasons that follow, we affirm the district

court's determination.

The following facts are relevant to González's sentencing

appeal. On or about June 20, 2003 -- during the time frame and

within the territorial limits of the conspiracy charged -- González

was arrested in possession of a measurable amount of cocaine in

violation of Puerto Rico's drug laws.14 On or about September 23,

14
This drug arrest was included as an overt act in the indictment
in this case and the underlying evidence was duly produced by the
government to the defense as part of its discovery obligations.
For reasons not revealed in the record before us, however, the
government did not introduce evidence of this incident at trial,

-32-
2003, pursuant to Rule 247.1 of the Puerto Rico Rules of Criminal

Procedure, P.R. Laws Ann. tit. 34 App. II, R. 247.1, and the

provisions of the state diversionary disposition program known as

"T.A.S.C.," González was placed on a probationary term of two years

for the referenced state drug arrest.15 On or about March 31, 2005,

González was put behind bars in the local system for events

unrelated to this case. In May of 2005, González was arrested

pursuant to the federal charges presently before us, and on

December 1, 2005, he was indicted. Five months later, on or about

May 2, 2006, the Superior Court of Puerto Rico held a hearing and

revoked González's probationary term. The Superior Court then

entered a judgment of guilty for the charged offense, and sentenced

González to a two-year term of imprisonment.

González argues that pursuant to our holding in Lino,

"[a] prior drug conviction" that was based on one of the

transactions that comprises the ongoing, overarching conspiracy at

issue in the federal trial cannot "constitute[] a 'distinct

criminal episode' sufficient to trigger [the Section 841(b)]

nor did it call the arresting officer to the stand.
15
This procedure allows the state court to place a defendant on
probation for the charged drug offense without entering a judgment
of guilt, subject to the revocation of the term of probation (and
the pronouncement of judgment) in the event that any of its
conditions are violated. P.R. Laws Ann. tit. 34 App. II, R. 247.1.
Otherwise, the court, at its discretion, may exonerate the person
and dismiss the charges against him at any time during the period
of probation. Id.

-33-
enhancement" unless "the defendant continued to participate in drug

activity after the conviction became final." 493 F.3d at 43

(quoting United States v. De Jesús Mateo, 373 F.3d 70, 74 (1st Cir.

2004)). González posits that a prior conviction in this sense is

not final for purposes of a Section 841(b) enhancement until the

time for taking a direct appeal on the same has expired. He so

concludes by citing to United States v. Campbell, 980 F.2d 245 (4th

Cir. 1992), wherein, he contends, the Fourth Circuit so held.

Thus, González argues it was not until thirty days after the

Superior Court of Puerto Rico revoked his probationary period and

entered a finding of guilt against González, in May of 2006, that

his state conviction became final for Section 841(b) purposes. See

P.R. Laws Ann. tit. 34 App. II, R. 193 (providing that the

jurisdictional term for filing a direct appeal from a conviction to

the Puerto Rico Circuit Court of Appeals is "thirty (30) days after

judgment is rendered"). In sum, González contends that his state

conviction did not become final until approximately one year after

his arrest in the present case, which renders the Section 841(b)

enhancement inapplicable.

González's reasoning is flawed for the following reasons.

First, whether or not a prior criminal episode constitutes a

"conviction" for purposes of a federal statutory scheme is

determined under "federal -- not state -- law." Rivera-Rodríguez,

617 F.3d at 609; see also id. ("The Supreme Court and our circuit

-34-
indicate that federal law and not . . . Puerto Rico Rule of

Criminal Procedure 247.1 determines whether [prior drug arrests

that resulted in probationary terms] constitute prior convictions

under 21 U.S.C. § 851."). Second, the Fourth Circuit's decision in

Campbell does not stand for the holding that González ascribes to

it. In that case, the Fourth Circuit held that the trial court had

not erred in enhancing the defendant's sentence pursuant to Section

841 as a result of a "prior conviction," where the defendant had

been sentenced (under a similar Virginia drug diversionary program

and statute) to a term of supervised probation without the

imposition of a judgment of guilt prior to the offense date charged

in the federal indictment. 980 F.2d at 249-50.

In circumstances that parallel the case at hand, the

defendant in Campbell violated his probation and the state court

revoked the deferral and entered a final state conviction on a date

after the indictment issued in his federal case, but prior to

Campbell's federal trial and sentencing. The Fourth Circuit

determined that "[a] sentence of probation, though subject to

expunction, constitutes a 'prior sentence' for purposes of sentence

enhancement," since "[t]he possibility of later 'expunction under

state law does not alter the historical fact of the conviction.'"

Id. at 251 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S.

-35-
103, 115 (1983)).16 Thus, Campbell holds that "as a matter of

federal law" a defendant's "deferred sentence under [] state law

constitutes a prior conviction for purposes of section 841." Id.

Our more recent decision in Rivera-Rodríguez addressed

precisely the issue in controversy here and resulted in the same

conclusion as reached by the Fourth Circuit (and the court below in

this case) based on the same case law cited in Campbell. One of

the defendants in the Rivera-Rodríguez appeal had been exposed to

the enhanced sentence provision of Section 841(b)(1)(A) based on a

prior sentence of probation and rehabilitation for the possession

of narcotics, pursuant to Puerto Rico Rule of Criminal Procedure

247.1. 617 F.3d at 609. This defendant argued that the state

sentence of probation could not be considered a prior conviction

because (1) "no appeal could have been taken" from the imposition

of probation in the absence of a finding of guilt, (2) his record

was thereafter expunged by the Puerto Rico Superior Court, and (3)

16
In Dickerson, the Supreme Court had to decide the question
"whether firearms disabilities imposed by 18 U.S.C. §§ 922(g) and
(h) apply with respect to a person who pleads guilty to a state
offense punishable by imprisonment for more than one year, when the
record of the proceeding subsequently is expunged under state
procedure following a successfully-served term of probation." 460
U.S. at 105. The Court held that the statutory disabilities
applied, reasoning that although "there was no written adjudication
of guilt and there was no formal pronouncement of a sentence of
imprisonment for a specified term . . . [i]t was plainly irrelevant
to Congress whether the individual in question actually receives a
prison term . . . . [O]ne cannot be placed on probation if the
court does not deem him to be guilty of a crime . . . ." Id. at
113-14.

-36-
Puerto Rico Rule of Procedure 247.1 explicitly states that the

sentence of probation "shall not be deemed as a conviction." Id.

Citing to both Dickerson and our decision in United States v.

Bustamante, 706 F.2d 13, 14 (1st Cir. 1983), we first concluded

that federal and not state law decided the question. Rivera-

Rodríguez, 617 F.3d at 609. We then went on to hold that the

defendant's prior incidents constituted "convictions" for purposes

of 21 U.S.C. § 851, and agreed with our sister circuits of appeals

who "ha[d] considered this § 841 question" and "counted prior

felony drug convictions even where those convictions had been set

aside, expunged, or otherwise removed from a defendant's record"

for "policy reasons unrelated to innocence or an error of law."

Id. at 609-10 (quoting United States v. Law, 528 F.3d 888, 911

(D.C. Cir. 2008) (citing cases from the Second, Third, Fourth,

Fifth, Seventh, Ninth, and Eleventh Circuits).

Here, González cannot even claim that his prior sentence

of probation should not be counted because it was expunged from his

record. Rather, the Puerto Rico Superior Court sentenced González

to a term of probation (without an adjudication of guilt) prior to

the date on which the federal indictment was returned, but later

revoked it, entering a final order of conviction based on

González's inability to refrain from criminal conduct thereafter.

This confirms the notion that the offense date charged in

González's federal indictment included criminal conduct occurring

-37-
both before and after the Puerto Rico sentence of probation was

entered. Regardless of subsequent events, however, our case law

requires that we consider the state court's imposition of a

sentence of probation for the drug felony charged against González

as a "prior conviction" for purposes of the Section 841

enhancement, whether or not it was subsequently revoked.

Therefore, the district court properly applied the sentence

enhancement in question.

III. Conclusion

We conclude that the district court did not deprive

Rivera of his confrontation rights by denying his request to admit

prior statements by government witness Barreira as impeachment

material, nor did the district court commit an abuse of discretion

by not allowing this evidence. We further conclude that the

government's proof at trial did not establish an impermissible

variance that would warrant reversal of Rivera's conviction.

Moreover, there was sufficient evidence adduced at trial to convict

both Rivera and González of the single conspiracy charged in the

indictment. Finally, the district court did not err with respect

to the sentencing claim made by González. Accordingly, the

judgment of the district court as to each of the Defendants is

affirmed.

Affirmed.

-38-