United States v. Rodriguez-Reyes

United States Court of Appeals
For the First Circuit

Nos. 11-1013
11-1038
11-1322
11-1478

UNITED STATES,

Appellee,

v.

JERRY OMAR RODRÍGUEZ-REYES, a/k/a Quiri;
MELVIN MÉNDEZ-ROLDÁN, a/k/a Mel;
HÉCTOR MANUEL GONZÁLEZ-SUÁREZ, a/k/a Palomo; and
JOSÉ L. CABRERA-COSME, a/k/a Luis Villalobos,
a/k/a Luis Canales,

Defendants, Appellants.

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

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Alan D. Campbell for Jerry Omar Rodríguez-Reyes.
Johnny Rivera González for Melvin Méndez-Roldán.
Lydia Lizarribar-Masini for Héctor Manuel González-Suárez.
Elfrick Méndez Morales for José L. Cabrera-Cosme.
Julia M. Meconiates, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodriguez-Velez, United States Attorney, were on brief, for
the United States.
April 11, 2013
 LYNCH, Chief Judge. In this consolidated appeal, four

defendants challenge their jury convictions and sentences for drug

and firearm crimes. A federal jury in Puerto Rico convicted each

defendant on one count of conspiracy to possess with intent to

distribute narcotics and one count of conspiracy to use or carry

firearms in furtherance of a drug trafficking crime. The district

court, after considering all of the evidence, including evidence of

seven murders committed in furtherance of the narcotics conspiracy,

sentenced each defendant to life in prison on the first count and

ten years' imprisonment on the second count, to be served

consecutively.

Finding that the evidence was sufficient to support the

guilty verdicts as to each defendant; that the district court did

not err in imposing the life sentences as to defendants Méndez-

Roldán, González-Suárez, and Rodríguez-Reyes; and that the court

did not err in denying severance as to defendant Cabrera-Cosme, we

affirm.

I.

Because this appeal follows the defendants' convictions,

we recite the trial evidence in the light most favorable to the

jury's verdicts. See United States v. Poulin, 631 F.3d 17, 18 (1st

Cir. 2011).

The cocaine and marijuana distribution conspiracy and

related use of firearms in this case took place in and around two

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public housing projects in San Juan, Puerto Rico -- Nemesio R.

Canales and Lloréns Torres -- during the years 2003 through 2006.

In the Canales project, there was a straightaway spanning some of

the buildings, which was known as La Recta; this was where most of

the drugs at issue were sold. The government offered four co-

conspirator witnesses, surveillance videos, and seized evidence

such as drugs (including crack vials and bags of marijuana),

firearms, and bullets to prove the extent of the drug conspiracy at

La Recta.

"Mel" -- defendant Melvin Méndez-Roldán ("Méndez") --

personally controlled all crack cocaine sales at La Recta during

2003. He did not sell the crack himself, but instead employed a

runner, Delia Sánchez-Sánchez ("Sánchez"), who testified for the

prosecution at trial. Sánchez said that she, with the help of

others, sold one-eighth of a kilogram of crack per week on Méndez's

behalf. Sánchez received packages from Méndez that each contained

25 vials of crack, and she distributed the packages among various

sellers, who made the sales directly to the purchasers. Méndez's

profit from each package was $4000.

In addition to these crack sales, Méndez charged a

monthly rent to other drug "owners" who wanted to sell marijuana at

La Recta. Until his arrest in 2003, Méndez did not allow anyone

else to sell crack there.

-4-
 Méndez himself regularly patrolled La Recta with

firearms, and he frequently used violence, including lethal

violence, to maintain control of the drug point. He shot and beat

up various drug addicts at La Recta when they lingered there

(because he feared they would attract the police), and he shot at

a group of rival crack dealers who had opened a new drug point

nearby. In January 2003, Méndez and three others ambushed and

killed Alexis Rivera Feliciano ("Rivera"), whom they believed to be

a federal informant. When the police arrived at the scene where

Rivera's body lay, Méndez reappeared and began laughing.

There was more. Méndez told Sánchez that he suspected

that the wife of Luis Ortiz Santos ("Ortiz"), a/k/a "Cleca," an

addict at the Canales project, was also an informant. In May 2003,

Sánchez saw Méndez follow Ortiz behind a building; she heard a

gunshot, then saw Méndez and two others put what appeared to be a

body wrapped in a shower curtain into the trunk of a car. The

police found Ortiz's body three days later, covered in a shower

curtain. Méndez bragged about his role in both of these murders to

one of the marijuana distributors at La Recta, Rey Manuel

Rodríguez-Esperón, a/k/a "Reyito."1

Méndez was arrested in 2003, but he continued to exert

control over the crack sales at La Recta from his prison cell. For

1
Rodríguez-Esperón was indicted along with the four
defendants in this appeal, but his trial was severed and he later
testified at trial in this case against his former codefendants.

-5-
example, during the summer of 2005, Méndez ordered Reyito to shut

down a crack point Reyito had opened, through a message delivered

by Méndez's brother-in-law, defendant José Cabrera-Cosme

("Cabrera"), a/k/a "Luis Villalobos." After Méndez's arrest,

Cabrera took over direct control of crack sales at La Recta.

Sánchez testified that Cabrera supplied her with crack just as

Méndez had, and that Cabrera continued to collect rents from the

marijuana owners on Méndez's behalf. Cabrera also sold his own

crack at La Recta, sometimes using the same sellers who sold

Méndez's crack.

Defendant Héctor González-Suárez ("González"), a/k/a

"Palomo," was allowed by Cabrera to begin selling crack at La Recta

in February 2004. González was a friend of Méndez's. Although

González was from Lloréns Torres, he came to sell at La Recta

because he was in a "war" with another drug point at Lloréns

Torres. González paid a monthly rent to Méndez and used the same

prices, runners, and sellers as Méndez did. He carried a gun while

he sold drugs at La Recta.

Defendant Jerry Rodríguez-Reyes ("Rodríguez"), a/k/a

"Quiri," began selling marijuana at La Recta in 2004. Like

González, Rodríguez was from Lloréns Torres but stopped selling

there because of the war. At La Recta, he used Sánchez as a seller

and occasionally paid her husband to package his marijuana.

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Rodríguez sold approximately one pound of marijuana every two to

three days, and he also carried a gun.

After Méndez's arrest, the other three defendants

continued using violence to protect, and try to expand, the drug

business. For instance, González and Cabrera formed a plan to try

to take over the drug point at Calle 4 in Lloréns Torres, where

González's rivals were based. On the night of July 12, 2004,

González, Rodríguez, and three others drove a stolen SUV to Calle

4 and opened fire on the dealers there. Three people died in the

shooting. At the scene, the police recovered an AK-47 and shell

casings from other long guns, such as M-16s or AR-15s. González

later boasted about his participation in the shootout.

In 2005, Reyito told Cabrera and González that someone

known as Indio had started selling crack nearby without permission,

and Cabrera and González agreed that they should kill Indio.

González recruited Reyito and two others to help him locate Indio,

telling them not to shoot Indio until González gave the signal.

The group could not find Indio at that time, but three days later

Reyito saw him near La Recta, and González shot him. Sánchez

testified that she witnessed the murder from the balcony of her

apartment, and González later told Reyito that he had killed Indio.

Also in 2005, a marijuana owner known as Agustín began

acting erratically, including brandishing guns around La Recta;

later that year, he killed another marijuana dealer. Cabrera,

-7-
González, Rodríguez, Reyito, and two others discussed Agustín's

behavior and decided to kill him. González provided Rodríguez with

a pistol, but since Rodríguez already had his own gun, he gave the

pistol to Reyito. Cabrera also gave his pistol to one of the

members of the group. González, Rodríguez, and Reyito then located

Agustín near one of the buildings in the housing project, and while

González greeted Agustín with an embrace, Rodríguez shot Agustín in

the back of the head. When Agustín fell to the ground, González

and Rodríguez continued to shoot him. Agustín died of the gunshot

wounds.

González was indicted on September 15, 2006, on federal

drug and firearm charges. Méndez, Cabrera, and Rodríguez, along

with González and 22 others, were indicted five days later on

federal drug and firearm conspiracies.

II.

The second superseding indictment, under which all four

defendants were ultimately tried, charged each defendant with one

count of conspiracy to distribute, and possess with intent to

distribute, both marijuana and over 50 grams of crack cocaine

within 1000 feet of a public housing facility and public school, in

violation of 21 U.S.C. §§ 841 and 860; and one count of conspiracy

to possess, use, carry, brandish, and discharge firearms in

furtherance of, or during and in relation to, a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (o).

-8-
 Before trial began, Cabrera moved to sever his trial from

that of his codefendants, claiming that the evidence regarding

several of the murders was "spillover" evidence as to him and that

he would be prejudiced by its introduction. The district court

noted this motion; while it did not rule specifically at that time,

the court proceeded to try all four defendants together,

effectively denying the motion. On June 11, 2010, the jury found

each defendant guilty on both counts.

Both after the close of the government's evidence and

after the verdict, each defendant moved for a judgment of

acquittal, on the ground that the evidence was insufficient to

support conviction. Specifically, they argued that the evidence

failed to prove that there had been one overarching conspiracy as

charged, but rather showed that there had been multiple

conspiracies. The jury had, at defendants' request, been

instructed on multiple conspiracies. The district court denied

each of these motions.

The district court held a separate sentencing hearing for

each defendant. The relevant details of these hearings are

recounted below. In all of the hearings, the court applied the

"murder cross-reference" of U.S.S.G. § 2D1.1(d)(1) to reach an

advisory Sentencing Guidelines calculation of life imprisonment for

Count 1. This cross-reference provides that, for a drug

trafficking crime, "[i]f a victim was killed under circumstances

-9-
that would constitute murder under 18 U.S.C. § 1111 had such

killing taken place within the territorial or maritime jurisdiction

of the United States," then the court should "apply § 2A1.1 (First

Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate,

if the resulting offense level is greater than that determined

under" the drug trafficking guideline. U.S.S.G. § 2D1.1(d)(1).

For each defendant, the district court applied § 2A1.1,

which resulted in a Guidelines sentence of life imprisonment.

Finding this an appropriate measure of punishment for each

defendant under 18 U.S.C. § 3553, the court sentenced each of them

to life imprisonment on Count 1.2

III.

A. Sufficiency of the Evidence

All four of the defendants challenge the sufficiency of

the evidence to support their convictions on Counts 1 and 2. See

Fed. R. Crim. P. 29. We review each challenge de novo, asking

"whether any rational factfinder could have found that the evidence

presented at trial, together with all reasonable inferences, viewed

in the light most favorable to the government, established each

element of the particular offense beyond a reasonable doubt."

United States v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005)

2
The district court also sentenced each defendant to a ten-
year term of imprisonment on Count 2, to be served consecutively.
See 18 U.S.C. § 924(c)(1)(A)(iii), (c)(1)(D)(ii); U.S.S.G.
§ 3D1.1(b)(1). None of the defendants challenge their Count 2
sentences on appeal.

-10-
(quoting United States v. Richard, 234 F.3d 763, 767 (1st Cir.

2000)) (internal quotation marks omitted). "The court's only

inquiry is whether the guilty verdict 'is supported by a plausible

rendition of the record.'" Poulin, 631 F.3d at 22 (quoting United

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)). We assume the

credibility of all testimony favorable to the government. See

United States v. Fenton, 367 F.3d 14, 18 (1st Cir. 2004).

Méndez, Rodríguez, and González present a common argument

on the sufficiency of the evidence; Cabrera filed a separate brief

with a similar point. Namely, they argue -- as they did in their

motions for acquittal -- that the evidence did not prove that there

was one single conspiracy, but rather that each defendant acted in

the sole interest of his own drug sales. The argument is that

there were many smaller conspiracies to distribute drugs, but not

the cooperation and interdependence of an overarching conspiracy.

They argue that there were separate brands of crack cocaine and

marijuana, with different color-coded vials and baggies to maintain

market differentiation.3 This purported variance between the

conspiracy charged in the indictment and the evidence presented at

trial requires, they argue, acquittals for all defendants on all

counts. We will reverse a conviction based on a variance in proof

3
For instance, Méndez's vials of crack had blue caps,
González's had green caps, and Cabrera's were smaller and had gold
caps. Rodríguez's baggies of marijuana were purple, whereas
Reyito's were green and other dealers used stickers.

-11-
only when there has been "prejudice to the defendant's substantial

rights." United States v. Soto–Beníquez, 356 F.3d 1, 27 (1st Cir.

2004).

In determining whether a single conspiracy existed, we

consider "the totality of the circumstances, paying particular heed

to factors such as the existence of a common goal, evidence of

interdependence among the participants, and the degree to which

their roles overlap." Fenton, 367 F.3d at 19. An agreement to

join a conspiracy "may be express or tacit . . . and may be proved

by direct or circumstantial evidence," United States v. Rivera

Calderón, 578 F.3d 78, 88 (1st Cir. 2009), including evidence of

"acts committed by the defendant that furthered the conspiracy's

purposes," United States v. Brandon, 17 F.3d 409, 428 (1st Cir.

1994) (quoting United States v. Gómez-Pabón, 911 F.2d 847, 853 (1st

Cir. 1990)) (internal quotation mark omitted). Further, "each

coconspirator need not know of or have contact with all other

members [of the conspiracy], nor must they know all of the details

of the conspiracy or participate in every act in furtherance of

it." United States v. Martínez–Medina, 279 F.3d 105, 113 (1st Cir.

2002).

The evidence at trial easily permitted a reasonable jury

to conclude that each of the four defendants was involved in a

single conspiracy to distribute narcotics at La Recta. The

evidence supported a finding that the defendants operated under a

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common scheme, first headed by Méndez and then, under Méndez's

control from prison, by his brother-in-law Cabrera, which divided

authority to sell crack and marijuana among the various "drug

owners." Despite selling different "brands" of crack and

marijuana, the defendants shared common runners and sellers,

coordinated at least some of their drug prices (including raising

prices for the greater good of the overall conspiracy), and joined

together to commit violent acts in order to prevent others from

infringing on their drug business. This evidence was more than

enough for the jury to infer an agreement. The government's

evidence went far beyond showing that the defendants merely

associated with one another. See Rivera Calderón, 578 F.3d at 89-

90 (affirming jury's finding of a single conspiracy where

defendants controlled who could sell at the drug point, set prices,

and jointly defended the drug point from hold-ups).

The fact that the defendants sold crack vials with

different-colored caps would not prevent a reasonable jury from

finding that they worked together to maintain the drug conspiracy

as a whole. See id. at 92. The evidence relating to the violence

and murders vividly demonstrated that the defendants would band

together to protect their group's status and exclusivity at La

Recta. For instance, Cabrera and González both sold crack at La

Recta (Cabrera on behalf of both himself and Méndez), apparently

without any conflict between them, yet when another person, Indio,

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began selling crack nearby, Cabrera and González formed a plan to

kill him, and González eventually shot him to death. Agustín's

murder likewise followed discussions among Cabrera, González, and

Rodríguez about how to handle Agustín's disruptive behavior, and

the defendants shared firearms among themselves and other

conspirators in preparing to execute the murder.

This evidence, along with the other evidence regarding

the murders of Rivera, Ortiz, and the Lloréns Torres dealers,

likewise supports a reasonable jury's finding that each defendant

conspired to use, carry, or possess firearms in furtherance of a

drug trafficking crime. There was extensive testimony that Méndez,

Gonzáles, and Rodríguez each discharged firearms with the purpose

of protecting La Recta from threats to their business and/or

expanding their drug operations. In the Agustín and Lloréns Torres

murders, Gonzáles and Rodríguez even directly worked together to

carry out the killings. Although the evidence did not show that

Cabrera personally shot a firearm, witnesses testified that he had

been seen carrying a gun at La Recta and that he helped distribute

firearms for use in Agustín's murder.4

Under these circumstances, the jury's verdicts against

all four defendants are "supported by a plausible rendition of the

4
Cabrera argues that, while he was seen armed at the drug
point, the evidence failed to show that he "used" firearms or that
any "use" was during and in relation to drug trafficking. Since a
jury could easily find that he did carry weapons to protect the
drug point and thus further drug sales, the evidence suffices.

-14-
record." Ortiz, 966 F.2d at 711. The convictions must be

affirmed.

B. Sentencing Challenges

Three of the four defendants -- Méndez, Gonzáles, and

Rodríguez -- challenge the district court's imposition of life

sentences on Count 1. As the defendants' claims vary in the

applicable standards of review and in the arguments on which they

rely, we take each defendant's claim in turn.

1. Méndez

Recall that Méndez controlled the drug point at La Recta,

and that he beat, shot, and murdered others in furtherance of the

drug conspiracy.

Méndez's presentence investigation report ("PSR")

attributed to him a drug quantity of 54 kilograms of crack cocaine,

based on Sánchez's testimony about the amount of crack she had sold

as a runner. However, the PSR did not reach its base offense level

recommendation by using this quantity. Instead, it explained that,

"since seven (7) victims were killed in order to keep control of

the drug point and/or in an effort to take over the drug point in

another housing project, a Cross Reference to USSG § 2A1.1 is

authorized pursuant to USSG § 2D1.1(d)(1), establishing[] a base

offense level of forty-three (43)." The PSR then added 4 levels

for Méndez's leadership role and 2 levels for using minors in the

commission of the offense, for an adjusted offense level of 49.

-15-
But because the Guidelines treat an offense level greater than 43

as an offense level of 43, see U.S.S.G. ch. 5, pt. A, app. n.2,

Méndez's final offense level was 43. His Guidelines sentence was

life imprisonment.

Méndez filed written objections to the PSR, in which he

argued, inter alia, that the recommendation of a life sentence was

unreasonable. He noted that he had never been charged with the

murders on which the cross-reference was based, and he argued that

this situation presented a Confrontation Clause problem. He also

asserted that the life sentence guideline allowed the government to

circumvent the requirements of 18 U.S.C. § 3559(c), which addresses

mandatory life sentences for certain repeat violent offenders.

Finally, he argued that a life sentence conflicted with the

purposes of sentencing under 18 U.S.C. § 3553. Méndez did not

object to the PSR's use of the murder cross-reference (instead of

the drug quantity) to establish the base offense level, but rather

argued generally against any Guidelines recommendation of life

imprisonment.5

At the sentencing hearing, Méndez's counsel recounted the

defendant's difficult childhood and asked that the court consider

a term of 30 years. Méndez's counsel did not allude to the murder

5
The district court granted certain of Méndez's factual
objections to the PSR, none of which is relevant to this appeal.
In its ruling on the other objections, the court did not address
Méndez's objection to the Guidelines recommendation.

-16-
cross-reference. And Méndez expressed no remorse in his

allocution. The government, meanwhile, sought life sentences on

both counts, given the extensive testimony about Méndez's violence,

including murder, and the fact that he was responsible for the sale

of at least 18 kilograms of crack cocaine each year during the life

of the conspiracy.

The district court, in calculating the Guidelines range,

applied the first-degree murder cross-reference, stating that

"seven victims were murdered as a manner or means of furthering the

conspiracy." It also applied the two enhancements suggested in the

PSR and concluded that the Guidelines range was life imprisonment.

The court then considered the § 3553(a) sentencing factors. While

recognizing the hardships of Méndez's upbringing, the court

concluded that Méndez had been "one of the major players of the

drug trafficking organization" at La Recta. With regard to the

murders, the court found:

There is also video and testimonial evidence
of Defendant Mendez Roldan's direct
participation in the murder of Alexis Rivera
Feliciano, also known as pata de palo and as
gemelo, on January 7, 2003. Defendant is seen
in the video of the January 7, 2003, shooting
of Rivera Feliciano carrying a shoulder
weapon, and a Government witness testified
that she saw Defendant with a rifle shooting
directly at Rivera Feliciano, and that in her
presence Defendant said that Rivera Feliciano
had been arrested by federal authorities, yet
had served no time.
There is also trial evidence that
Defendant killed Luis A. Ortiz Santos, also
known as Cleca, on May 27, 2003, not because

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 Defendant suspected him to be an informant,
like Rivera Feliciano, but in reprisal of
Ortiz Santos' wife being an informant at the
Canales housing project.
Now, this evidence established that
these killings were in furtherance of the drug
conspiracy charge.

Ultimately, the court found that the advisory guideline of life

imprisonment adequately served the § 3553(a) purposes of punishment

and deterrence in Méndez's case, and it imposed a sentence of life

imprisonment on Count 1 and a consecutive sentence of ten years'

imprisonment on Count 2.

On appeal, Méndez makes three types of arguments against

the life imprisonment sentence. First, he argues that the district

court made a procedural error in applying the murder cross-

reference because the court allegedly "acted under the false and

restricted notion that it lacked any discretion to impose a

different sentence [than life imprisonment] because § 2D1.1(d)(1)

necessarily prohibited any sentence other than natural life under

custody." See United States v. Politano, 522 F.3d 69, 72 (1st Cir.

2008) (appellate review of a district court's sentence first

entails asking whether the court made any "procedural errors,"

including "treating the Guidelines as mandatory" (quoting Gall v.

United States, 552 U.S. 38, 51 (2007))). Because Méndez did not

raise this objection before the district court, our review is only

for plain error. See United States v. Colon-Nales, 464 F.3d 21, 26

(1st Cir. 2006). Plain error is a very difficult standard to meet:

-18-
the defendant must show "that the trial court committed an error,

that the error was 'plain,' . . . that the error affected the

substantial rights of the [defendant, and that] . . . the error

'seriously affect[ed] the fairness, integrity or public reputation

of judicial proceedings.'" Id. at 25 (quoting United States v.

Olano, 507 U.S. 725, 736 (1993)).

Méndez's contention would fail under any standard of

review, let alone the exacting standard of plain error. There is

no evidence in the record that the district court believed a life

sentence to be mandatory; to the contrary, the court specifically

recognized the advisory nature of the Guidelines calculation. The

court also explicitly considered potentially mitigating information

under the § 3553(a) factors, though it ultimately rejected those

arguments. And it plainly was correct in rejecting the proposition

that, under § 3553(a), a sentence of life imprisonment is never

permissible.

At oral argument in this appeal, Méndez offered a

variation on his procedural challenge. This time, he asserted that

the district court's error was its failure to make specific

findings that Méndez's actions satisfied the first-degree murder

requirements of 18 U.S.C. § 1111(a), which were necessary to

support the application of § 2A1.1. He had not asked the district

court for such findings. He also argued that the district court

erred in failing to calculate a drug quantity, since without that

-19-
calculation the court could not have determined whether the murder

offense level was "greater than" the drug trafficking offense

level. See U.S.S.G. § 2D1.1(d)(1). These arguments, at best, call

for plain error review, even assuming they were not waived.

We find no error in the district court's application of

§ 2A1.1. Although the court, when it articulated its Guidelines

calculations, did not specifically explain its reasons for applying

the first-degree murder cross-reference, the court made specific

findings as to Méndez's role in two murders shortly thereafter,

while explaining its sentence. These findings make it clear that

the court concluded that Méndez met the premeditation scienter

requirement for first-degree murder, and thus for application of

§ 2A1.1. See 18 U.S.C. § 1111(a) (defining first-degree murder as

including, inter alia, any "willful, deliberate, malicious, and

premeditated killing").

The court first explained the trial evidence showing that

Méndez had formed plans to kill Rivera and Ortiz, and that he had

participated in killing both victims because of the perceived

threat they posed to the drug operation at La Recta. These

findings were consistent with the unchallenged facts recited in

Méndez's PSR. There is no doubt that the district court's

statements reflect a finding that these murders were premeditated,

and the evidence at trial was more than sufficient to support such

a finding by a preponderance of the evidence. The court then

-20-
connected these planned murders to the § 2D1.1(d)(1) cross-

reference by specifying that the killings were in furtherance of

the drug conspiracy.

This was enough to support application of the cross-

reference. Since § 2A1.1 imposes the highest offense level allowed

by the Guidelines, no further calculation was necessary: the base

offense level under § 2D1.1 necessarily would have been less than

or equal to the offense level under § 2A1.1. Méndez thus faced an

offense level of 43 regardless of whether it was grounded in the

cross-reference or in § 2D1.1.6

Méndez's second argument is that the life sentence was

substantively unreasonable. See Politano, 522 F.3d at 72-73 (even

when there is no procedural error, the appellate court may review

a district court's sentence for substantive reasonableness).

Méndez argues that his sentence was unreasonable because the court

failed to properly weigh the § 3553(a) factors and the sentence

failed to fulfill the sentencing purposes of deterrence and

rehabilitation.

6
Méndez also challenges on appeal the imposition of the four-
level increase for leadership, see U.S.S.G. § 3B1.1(a), and the
two-level increase for use of a minor in the offense, see U.S.S.G.
§ 3B1.4. "We review the imposition of [a leadership] enhancement,
and any predicate factual findings, for clear error." United
States v. Appolon, 695 F.3d 44, 70 (1st Cir. 2012). Again, the
offense level could go no higher than 43. Even if the enhancements
had been in error -- a highly doubtful proposition, given the
record -- they could not have affected Méndez's sentence. Thus,
any error would have been harmless. See Martínez-Medina, 279 F.3d
at 124.

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 Méndez -- age 30 at sentencing -- did raise these

arguments at least in part in his objections to the PSR, although

he did not renew all of them at the sentencing hearing. Even if we

treat Méndez's objections as preserved, and accordingly evaluate

them under an abuse of discretion standard, see United States v.

Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009) (citing Gall,

552 U.S. at 51), his arguments fail. When it comes to substantive

reasonableness, "a sentencing court's ultimate responsibility is to

articulate a plausible rationale and arrive at a sensible result."

Id. at 30. The district court fulfilled that responsibility here.

The district court considered Méndez's counsel's

arguments about Méndez's history, characteristics, and the

possibility for rehabilitation if he were not given a life

sentence. The court reasonably concluded that the nature and

circumstances of the offense -- particularly the extensive evidence

of Méndez's acts of violence -- meant that the Guidelines sentence

properly reflected the needs for punishment and deterrence. This

choice of emphasis among the statutory factors was well within the

court's discretion. See United States v. Gibbons, 553 F.3d 40, 47

(1st Cir. 2009) ("We will not disturb a well-reasoned decision to

give greater weight to particular sentencing factors over others

. . . .").

Méndez makes a third set of miscellaneous arguments. He

alleges that his sentence infringed his Confrontation Clause

-22-
rights; that it circumvented the requirements of 18 U.S.C.

§ 3559(c) and 21 U.S.C. § 851; and that, because he was not charged

with murder in the indictment, it violated Apprendi v. New Jersey,

530 U.S. 466 (2000). The Apprendi argument rests on the fact that

the indictment did not include murder as a charged offense,

although it did allege the murders as among the overt acts

committed in furtherance of the charged conspiracy. Again, Méndez

raised some of these arguments in his objections to the PSR but did

not renew them at the sentencing hearing. At any rate, however,

these arguments misapprehend the relevant law. We take the

arguments in turn.

First, the jury found that the quantity of crack cocaine

involved in the Count 1 conspiracy was fifty grams or more, which,

at the time of the conviction, triggered a statutory maximum

sentence of life on Count 1. See 21 U.S.C. § 841(b)(1)(A)(iii)

(2010). Méndez's Apprendi argument fails because Apprendi provides

only that a jury must find any facts (other than a prior

conviction) that would increase the penalty for a crime beyond the

otherwise applicable statutory maximum. See 530 U.S. at 490. In

fact, we have previously rejected the specific Apprendi argument

that Méndez makes.7 See United States v. Newton, 326 F.3d 253, 266

7
González and Rodríguez purport to "join" Méndez's Apprendi-
based due process argument. Even if we assume that this statement
is enough to avoid waiving the issue, we reject the argument as to
González and Rodríguez for the same reasons stated in the text as
to Méndez.

-23-
(1st Cir. 2003) ("[Defendant] now requests that we expand Apprendi

to require juries to find beyond a reasonable doubt that the

defendant committed murder before the sentencing court is permitted

to apply the 'cross-reference' provision of section 2D1.1(d)(1).

We decline this invitation to expand Apprendi . . . .").

Second, 18 U.S.C. § 3559(c) and 21 U.S.C. § 851 are

irrelevant to this case. Those provisions address mandatory life

sentences for certain repeat violent offenders and the procedural

requisites for increasing sentences based on prior convictions.

Here, the government did not seek, nor did the district court

purport to impose, a mandatory life sentence based on Méndez's

prior convictions. As noted above, the court repeatedly

acknowledged that the Guidelines range of life imprisonment was

advisory, and it was based on Méndez's culpability for the present

offense. Finally, there was no Confrontation Clause problem with

the sentence. Méndez does not allege that he was denied the

opportunity to confront witnesses against him during his trial, and

the district court's sentence was based on facts established at

that trial.

2. González

To recap, González came to La Recta from Lloréns Torres

in early 2004, distributed cocaine at La Recta as part of Méndez's

operation, participated in a shootout at the Calle 4 drug point,

murdered Indio, and participated in the murder of Agustín.

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 As with Méndez, González's PSR attributed to him a drug

quantity of 54 kilograms of crack cocaine, then used the first-

degree murder cross-reference to reach a base offense level of 43.

The PSR then added 4 levels for González's leadership role and 2

levels for using minors in the commission of the offense, for an

adjusted offense level of 49, which was treated as an offense level

of 43. González's Guidelines sentence was life imprisonment.

González filed objections to the PSR, in which he argued,

inter alia, that the leadership enhancement was excessive because

he was not the main leader of the conspiracy, and that, "in the

interest of justice," the murder cross-reference should not be

applied because he had been acquitted of the murders in state court

and the government's witnesses were unreliable. González conceded

that the § 2A1.1 cross-reference was "authorized . . . in the

instant case."

The district court denied these objections in a written

order before the sentencing hearing. It found that González

qualified as a leader under the standard articulated in United

States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995),

regardless of whether he was the "top" leader. The court also

found that González's acquittal in state court was irrelevant

because the evidence at the federal trial had "abundantly

established both that seven murders were committed in order to

further the interests of the drug conspiracy, and that [González]

-25-
participated either in the planning or execution of four of those

murders" -- those of Indio and the three Lloréns Torres dealers --

such that the district court could find by a preponderance of the

evidence that the cross-reference applied.

At his sentencing hearing, González -- then age 37 -- did

not renew his objections. Indeed, at his instruction, his counsel

did not make arguments. González stated in his allocution that he

had had a religious conversion and was now a different man; he

needed to be free in order to help others.

In calculating the Guidelines range, the district court

applied the first-degree murder cross-reference, stating that

"seven victims were murdered as a manner or means of furthering the

conspiracy." It also applied the two enhancements and concluded

that the Guidelines sentence was life imprisonment. The court then

considered the § 3553(a) factors. It recounted González's history

of violent crime and admitted drug use, as well as his leadership

role at La Recta. With regard to his personal participation in the

murders, the court found:

The Defendant also planned and executed the
murders of several persons to further the
interests [o]f the drug conspiracies. He
personally participated in the planning and
execution of the killings of Richard Figueroa
Perdomo, also known as El Indio, Charles West
Isaac, Melvin Reyes Rivera and Oneill Irizarry
Mendoza, as a means of advancing the
conspiracy.

-26-
The court concluded that life imprisonment adequately reflected the

"very serious nature of the offenses" as well as González's history

and characteristics. The court noted that, while González's

religious awakening was "encouraging," this did not "erase the

extreme gravity of the criminal behavior that brought him as a

Defendant before this Court." González received a sentence of life

imprisonment on Count 1.

On appeal, González argues that the district court erred

in applying § 2A1.1 because the court's findings were insufficient

on the question of whether he had the requisite mental state for

first-degree murder. This argument is unpreserved, and the

standard of review is plain error. See Colon-Nales, 464 F.3d at

26.

We conclude that the district court's findings supported

the application of the first-degree murder cross-reference. While

the court did not delve into the trial evidence in detail, it

clearly stated that González "planned" and helped to commit four

murders. The court had also already found, in its order prior to

the sentencing hearing, that the trial evidence "certainly

established by a preponderance that the co-defendants tried to

overtake [the Calle 4] drug point to expand their drug business and

that [González] participated in that quest." These statements

clearly evince a finding of premeditation, and the trial evidence

supports such a finding. González, along with Cabrera,

-27-
masterminded the shooting of the three men at the Calle 4 drug

point and the plan to kill Indio. The Calle 4 attack was intended

to eliminate competition and protect the defendants' own drug

trafficking activity. In both cases, González recruited other

members of the drug conspiracy to assist him in committing the

murders, and in both cases González later bragged about his

participation.8

González also challenges the imposition of the leadership

enhancement, arguing that the testimony at trial was that Méndez

was the leader of the conspiracy. Even when such a challenge is

preserved, "[w]e review the imposition of this particular

sentencing enhancement, and any predicate factual findings, for

clear error." United States v. Appolon, 695 F.3d 44, 70 (1st Cir.

2012). There was no such error. The relevant inquiry is only

whether González was a leader of the conspiracy, not whether he was

the leader. There can be more than one leader of a conspiracy.

See United States v. Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir.

2009). The trial evidence revealed that González both led a team

that sold crack at La Recta and led various conspiracy members in

plans to murder Indio, Agustín, and the Lloréns Torres dealers.

The district court found that the evidence at trial "clearly

established" that five or more people participated in the

8
In addition, the trial evidence demonstrated that González
planned and helped to execute the murder of Agustín, during which
González distracted the victim while Rodríguez shot him.

-28-
conspiracy; that González was one of the "key players" in the

conspiracy; that he helped plan four murders in furtherance of the

conspiracy; and that he, "along with other codefendants, engaged in

virulent conduct to eliminate competition . . . and to protect

their own drug trafficking activities." On this record, we cannot

say that imposition of the leadership enhancement was clearly

erroneous.

Moreover, given our conclusion that the district court

properly applied § 2A1.1, the imposition of the leadership

enhancement is immaterial to González's sentence, since even before

the enhancement he was already subject to the highest offense level

of 43. Thus, even if there had been error in adding four levels

for leadership -- and there was not -- it would have been harmless

error. See Martínez-Medina, 279 F.3d at 124.

3. Rodríguez

Again, Rodríguez personally sold multiple pounds of

marijuana each week at La Recta as part of the drug conspiracy; he

participated in the triple murder at Calle 4; and he helped plan

the murder of Agustín, whom he shot in the head.

Rodríguez's PSR attributed to him the conspiracy-wide

drug quantity of 54 kilograms of crack cocaine, then used the

first-degree murder cross-reference to reach a base offense level

of 43. The PSR then added 2 levels for Rodríguez's leadership role

and 2 levels for using minors in the commission of the offense, for

-29-
an adjusted offense level of 47, which was treated as an offense

level of 43. Rodríguez's Guidelines sentence was life

imprisonment.

In his sentencing memorandum, Rodríguez did not object to

the PSR's Guidelines calculations, arguing instead that the court

should impose a variant sentence. He also argued that the PSR

erred in treating him as part of the conspiracy charged in the

indictment, but the district court rejected this argument, noting

that it was insupportable in light of the jury's verdict. The

court also found that the evidence at trial supported the PSR's

conclusions that "the violent deaths and possession of firearms in

connection to the drug point at La Recta were proved to be a joint

effort by the defendants to further their common interest of

protecting the drug point and expanding their illegal drug

trafficking activities," and that the conspirators had "shar[ed]

and exchang[ed] . . . weapons during the planning of Agustín['s]

and Indio's murder[s]."

At the sentencing hearing, Rodríguez's counsel discussed

Rodríguez's difficult background, including child abuse,

illiteracy, and emotional problems, and urged the court to consider

his potential for rehabilitation. Rodríguez -- age 30 at the

time -- argued at allocution that he was innocent of the crimes

charged, that the four videos of him at La Recta did not show he

was armed, that the testimony against him was false and secured by

-30-
promises of reduced prison sentences, and that he had never

admitted that he had shot Agustín. Rodríguez neither accepted

responsibility nor showed any remorse.

In calculating the Guidelines range, the district court

applied the first-degree murder cross-reference, based on the

murder of seven victims "as a manner or means of furthering the

conspiracy." It also applied the two-level leadership enhancement

because Rodríguez had "supervised other sellers," as well as the

two-level enhancement for use of a minor. The court concluded that

the Guidelines sentence was life imprisonment. The court then

considered the § 3553(a) factors. It acknowledged Rodríguez's

difficult childhood, lack of education, and drug addiction, but

also found that Rodríguez was part of a "violent drug trafficking

organization." With regard to the murders, the court found:

Now, during the life of that conspiracy, the
Defendant -- and the co-conspirators charged
-- planned and executed the deaths of several
persons to further that drug conspiracy, and
the Defendants engaged in unrelenting ruthless
conduct to further their common interests.
Defendants would also jointly plan, as part of
the conspiracy, to murder outsiders in order
to eliminate competition and to expand their
drug activity beyond the territorial confines
of the Canales housing project.
According to the testimonies at trial,
the Defendant, Rodriguez Reyes, personally
participated in the planning or in the
execution of some of these murders, such as,
the killing of Richard Figueroa Perdomo, known

-31-
 as Indio, and of Jose A. Medina Nieves, known
as Agustin.[9]
Now, this conduct, the Court
understands, is a reflection of a total
disregard by Defendant of human life, and it
also points to recurrent virulence.

The court concluded that the advisory Guidelines sentence

of life imprisonment adequately reflected the nature of the

offenses, Rodríguez's history and characteristics, and the need for

punishment and deterrence. The court sentenced Rodríguez to life

imprisonment on Count 1.

Rodríguez argues on appeal that the district court

committed procedural error by failing to make specific findings

about the parts of the conspiracy's conduct for which Rodríguez

could be held personally responsible. He claims that this error

caused the court to incorrectly calculate the Guidelines range.

Because Rodríguez did not object to the Guidelines calculations or

to the sufficiency of the court's findings until this appeal, the

standard of review is plain error.

Rodríguez first objects to the PSR's drug quantity

calculation, arguing that he cannot be held responsible for the

conspiracy-wide quantity of crack. However, the district court did

not rely on the drug quantity in reaching Rodríguez's sentence;

rather, the court applied the cross-reference to § 2A1.1. And with

regard to the murders on which the court based the use of the

9
As described below, the court's statement was in error as to
the murder of Indio.

-32-
cross-reference, the court did make specific findings as to

Rodríguez's personal involvement and responsibility.

Admittedly, the district court erred in its

identification of the murders with which Rodríguez was involved.

The court stated that Rodríguez had participated in the planning

and execution of the murders of Indio and Agustín, but the

government concedes that Rodríguez was not involved in Indio's

murder. However, the court correctly found that Rodríguez had

helped to plan and execute the Agustín murder; indeed, the evidence

at trial showed that Rodríguez was part of the group that decided

to murder Agustín and that Rodríguez was the one who ultimately

shot Agustín in the head. That finding alone would support the

application of the first-degree murder cross-reference, rendering

a drug quantity finding superfluous. Further, the district court

also would have been entitled to rely on the unchallenged finding

in the PSR that Rodríguez participated in the triple murder at the

Lloréns Torres drug point. The error thus did not affect

Rodríguez's substantial rights, and we will not vacate the

sentence.

To the extent that Rodríguez challenges the substantive

reasonableness of the district court's sentence, there was no

error. Rodríguez challenges the district court's balancing of the

§ 3553(a) factors, but as we noted with regard to Méndez, "[w]e

will not disturb a well-reasoned decision to give greater weight to

-33-
particular sentencing factors over others." Gibbons, 553 F.3d at

47. Given the district court's findings about the violent nature

of the drug conspiracy and Rodríguez's participation in at least

one murder, it was not unreasonable for the district court to weigh

the need for punishment and deterrence over the potentially

mitigating effects of Rodríguez's personal background.

C. Motion for New Trial

While Cabrera does not challenge his sentence, he does

advance an additional argument not asserted by his codefendants:

that he is entitled to a new trial because the district court

erroneously denied his motion for severance. He argues on appeal,

as he did in his original motion, that he was prejudiced by

"spillover" evidence about those of the seven murders in which he

played no role.

This court reviews the denial of a motion to sever for

abuse of discretion. Soto-Beníquez, 356 F.3d at 29. "To

demonstrate abuse of discretion, [a] defendant[] must show that

joinder deprived [him] of a fair trial, resulting in a miscarriage

of justice." Id. "Because the general rule is that those indicted

together are tried together to prevent inconsistent verdicts and to

conserve judicial and prosecutorial resources, severance is

particularly difficult to obtain where, as here, multiple

defendants share a single indictment." Id.

-34-
 The district court did not abuse its discretion in trying

Cabrera along with his three codefendants. The evidence of the

murders presented at trial was not so unrelated to Cabrera's

conduct that its admission was prejudicial to him at all, let alone

so prejudicial that it constitutes a miscarriage of justice.

Cabrera directly participated in the decisions to murder Indio and

Agustín, as well as in the planning of the Lloréns Torres shootout

that killed three others. The evidence further established that

Cabrera was a leader in the drug conspiracy and that all seven

murders were committed in furtherance of that conspiracy. The

murder evidence thus would have been admissible against Cabrera

even in a separate trial. See United States v. Levy-Cordero, 67

F.3d 1002, 1007-08 (1st Cir. 1995).

IV.

The convictions and sentences of Melvin Méndez-Roldán,

José Cabrera-Cosme, Héctor González-Suárez, and Jerry Rodríguez-

Reyes are all affirmed.

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