United States v. Rivera-Ruiz

United States Court of Appeals
For the First Circuit

No. 98-1538

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS RIVERA-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

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

Ramón M. González for appellant.
Ruth J. Vernet, with whom Guillermo Gil, United States
Attorney, Jorge E. Vega-Pacheco, Assistant United States
Attorney, Chief, Criminal Division, and Camille Vélez-Rivé,
Assistant United States Attorney, were on brief for appellee.

April 5, 2001
 LIPEZ, Circuit Judge. Carlos Rivera-Ruiz appeals his

conviction for one count of conspiracy to possess with intent to

distribute cocaine. He also appeals his sentence of 121 months.

Rivera claims that the evidence presented at trial, consisting

largely of the testimony of one cooperating witness about one

transaction, was insufficient to convict him of participating in

a conspiracy. He also argues that there was an impermissible

variance between the allegations in the indictment and the proof

offered at trial, and that the prosecutor's closing argument

denied him due process of law. Finally, he claims that the

district court made an error in sentencing. Although we

acknowledge the closeness of the sufficiency issue, we affirm

the conviction and sentence.

I. Background

Carlos Rivera-Ruiz ("Rivera") was charged in count six

of a ten-count indictment charging various individuals with

violations of federal drug laws. While some of the other counts

charged substantive drug offenses, Rivera was charged with

conspiracy to distribute cocaine in violation of 21 U.S.C. §§

-2-
841(a)(1)1 and 846.2 The indictment alleged that Rivera,

together with Jaime Padilla Rodríguez ("Padilla"), Jorge Arroyo-

Rivera ("Arroyo"), and two unindicted co-conspirators,3 conspired

to possess and distribute cocaine. All of the other individuals

named in the indictment pled guilty. Trial for Rivera commenced

in mid-September, 1997. Following a three-day trial, the jury

returned a verdict of guilty. The court sentenced Rivera to 121

months in prison.

II. The Sufficiency of the Evidence

Rivera moved for a judgment of acquittal after the

government rested and again at the close of all the evidence.

See Fed. R. Crim. P. 29. The district court denied that motion,

and we review that ruling de novo. See United States v.

Hernández, 146 F.3d 30, 32 (1st Cir. 1998). In considering the

evidence presented at trial, we view the facts and draw all

121 U.S.C. § 841(a)(1) provides that "it shall be unlawful
for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance."
2 21 U.S.C. § 846 provides: "Any person who attempts or
conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt
or conspiracy."
3Unindicted co-conspirator No. 1 was identified as William
Negrón Zapata ("Negrón"), and unindicted co-conspirator No. 2
was identified as Víctor Ramírez de Arellano ("Ramírez").

-3-
reasonable inferences in favor of the prosecution. See United

States v. Baldyga, 233 F.3d 674, 678 (1st Cir. 2000). We have

a limited role in reviewing this evidence.

An appellate court plays a very
circumscribed role in gauging the
sufficiency of the evidentiary foundation
upon which a criminal conviction rests. The
court of appeals neither weighs the
credibility of the witnesses nor attempts to
assess whether the prosecution succeeded in
eliminating every possible theory consistent
with the defendant's innocence.

United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)

(quoting United States v. Noah, 130 F.3d 490, 494 (1st Cir.

1997)). Our inquiry is only whether "the guilty verdict finds

support in a 'plausible rendition of the record.'" United States

v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United

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

A. The Evidence

The evidence presented by the government at Rivera's

trial consisted largely of the testimony of William Negrón

Zapata, who testified that he met Rivera in 1986 through a

mutual friend, Ricardo Maldonado. He further stated that he saw

Rivera on several occasions in 1986, as well as in 1990. The

two would meet at Rivera's home, and Negrón stated that Rivera

sometimes visited him at his automobile repair shop which he

operated out of his home. He successfully identified

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photographs of property owned by Rivera at trial and knew that

Rivera also ran an automobile repair shop out of his home.

Regarding the transactions charged in the indictment,

Negrón testified that he agreed to purchase two kilograms of

cocaine on April 15, 1991 from Amador Irizarry Sanabria, a man

he had known since 1989 and had purchased drugs from on prior

occasions. Negrón paid him a total of $26,000 for the drugs, or

$13,000 for each kilogram. Jaime Padilla Rodríguez, a friend of

Irizarry's, arrived at Negrón's house that day to deliver the

cocaine. Because Negrón had customers in his auto repair shop

when Padilla arrived, he asked Padilla to leave and follow a

specified road to a point where they could exchange the cocaine

more privately. Padilla complied with these instructions.

Negrón, accompanied by his personal bodyguard, Jorge Arroyo

Rivera, met Padilla at the specified location and collected the

package of cocaine.4

After obtaining the two kilograms of cocaine from

Irizarry, Negrón contacted his friend Víctor Ramírez de

Arellano, an attorney. Negrón first met Ramírez in December

1989 when he retained him to represent his uncle in a criminal

matter. Ramírez had purchased drugs from Negrón on several

4
Negrón's testimony regarding this transaction was not
corroborated by other witnesses. Padilla died in 1996, one year
before the trial.

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occasions beginning in February 1991. On April 15, Ramírez

agreed to buy one kilogram of cocaine for $13,500. Ramírez

corroborated Negrón's account of this transaction at trial.

Negrón also called Rivera on the afternoon of April 15,

and Rivera agreed to buy the other kilogram of cocaine from him

for $13,500. The two agreed that they would meet at Rivera's

house at the Anones Ward in Las Marías the following morning.

The prosecution did not offer a record of this phone call at

trial, and Negrón testified on cross-examination that he did not

remember what phone he used to place the call. Early on April

16, Negrón arrived at Rivera's home, unaccompanied, and gave him

the drugs in exchange for $13,500. He stated that this

transaction occurred in a living room on the first floor of

Rivera's house and that only he and Rivera were present when

they exchanged the drugs.

After leaving Rivera's house, Negrón called Padilla

from his cellular phone and asked him to bring an additional two

kilograms of cocaine from Irizarry. As before, Padilla arrived

at Negrón's home and auto shop and the two then left separately

to meet at the same specified location. Negrón gave Padilla

$26,000 for the two kilograms of cocaine he had received the day

before, and Padilla gave him an additional two kilograms.

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 Negrón sold one kilogram to Roberto Rivera Ortiz, to

whom he had sold cocaine on several prior occasions. He sold

the other kilogram to Ramírez the following morning, April 17.

Ramírez testified that he then sold the cocaine to two other

people. Padilla arrived at Negrón's house to collect the

$26,000 payment for the cocaine after Negrón made these sales.

Negrón's testimony about his drug transactions in April

1991 was uncorroborated, except by Ramírez who corroborated

Negrón's account of their two transactions. However, Negrón's

testimony was also uncontradicted. The only witness offered by

Rivera was Ramonita Malavé, his ex-wife. The two were married

for 18 years and divorced in 1989, two years prior to the events

described in the indictment. Malavé testified that a man named

José López, together with his family, was renting the first

floor of the home owned by Rivera where Negrón alleged that the

transfer of cocaine had occurred. She stated that López moved

from the first floor of the home to the second floor sometime

after April 1991, but she was uncertain of the exact date when

questioned on cross-examination. Malavé also testified that

Rivera was able to purchase and maintain several properties

because of the rents he collected and the income he earned from

his automobile repair shop.

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B. Applicable Principles

To establish Rivera's guilt on the conspiracy charge,

the government needed to show "the existence of a conspiracy,

the defendant's knowledge of the conspiracy, and the defendant's

voluntary participation in the conspiracy." United States v.

Morillo, 158 F.3d 18, 23 (1st Cir. 1998). Rivera conceded, both

below and on appeal, that a conspiracy to distribute cocaine

existed. He only disputes his own involvement with that

conspiracy.

Rivera's voluntary participation in the conspiracy

could have been demonstrated by evidence that he intended to

enter into an agreement with the other parties to the conspiracy

and that he intended "to effectuate the commission of the

substantive offense." United States v. Piper, 35 F.3d 611, 615

(1st Cir. 1994). "The agreement itself 'need not be express,

but may consist of no more than a tacit understanding.'"

Echeverri, 982 F.2d at 679 (quoting United States v. Glover, 814

F.2d 15, 16 (1st Cir. 1987)). The proof of Rivera's involvement

in the conspiracy "may consist of indirect evidence, including

reasonable inferences drawn from attendant circumstances." Id.

In determining whether a single conspiracy exists, we

have considered whether the participants shared a common goal.

See United States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999).

-8-
The common goal of selling cocaine for profit satisfies this

element. See id. We have also examined whether there was

overlap among the participants to the conspiracy. See id. Such

overlap exists where a conspiracy is marked by the "pervasive

involvement of a single 'core conspirator,'" or "hub character."

Id. (quoting United States v. Wilson, 116 F.3d 1066, 1076 (5th

Cir. 1997)).

There is no need for a conspirator to know the other

participants in the conspiracy. See United States v. Sepúlveda,

15 F.3d 1161, 1191 (1st Cir. 1993); United States v. Nueva, 979

F.2d 880, 884 (1st Cir. 1992) ("[T]he government need not prove

that the defendant knew all the details or all the members of

the conspiracy."). Additionally, there is no requirement that

a conspirator realize the full extent of the conspiracy to be

found guilty. See United States v. Walters, 904 F.2d 765, 770

(1st Cir. 1990). As we said in Portela, the requisite level of

interdependence among conspirators exists where the defendant

realized that the success of his own drug transactions depended

on the ability of others to obtain drugs from suppliers and to

sell them for profit to other purchasers:

[T]here was sufficient evidence for the jury
to conclude that [the appellant] understood
that his transaction's success depended on
the health of the trafficking and
distribution network focused around [the
seller of drugs], which in turn depended on

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 continued transactions between [the seller]
and other suppliers. Although these other
suppliers were perhaps unknown individually
to [the appellant], the jury could have
reasonably inferred that he must have been
aware of their existence.

Portela, 167 F.3d at 697. Ultimately, our analysis of whether

Rivera was part of a conspiracy does not rest on any particular

element because "this court has looked beyond any . . . lists of

factors to the 'totality of the evidence' in determining whether

there is factual support for a finding of a single conspiracy."

Id. at 696 (quoting United States v. Drougas, 748 F.2d 8, 17

(1st Cir. 1984)).

C. Applying the Principles to the Evidence

1. Transaction between Negrón and Rivera

Rivera claims that Negrón's uncorroborated testimony

regarding the single transaction between them is unreliable

because Negrón agreed to cooperate with the government.

However, credibility determinations are uniquely within the

province of the jury, and we do not evaluate those judgments on

appeal. See Woodward, 149 F.3d at 56. Moreover, Rivera's trial

counsel subjected Negrón to lengthy cross-examination about his

cooperation with the government and his other drug transactions.

Despite these efforts to impeach Negrón, the jury could have

rationally concluded that Negrón was telling the truth about his

sale of cocaine to Rivera.

-10-
 Rivera also attempted to contradict this testimony by

offering the testimony of his ex-wife, Malavé, that his

residence was occupied by a tenant at the time of the alleged

transaction. However, the jury could reasonably have found

Negrón's testimony to be more credible than Malavé's. Malavé's

recollection of the relevant dates was uncertain, especially on

cross-examination, and Rivera's attorney even conceded in his

closing argument that Malavé's testimony had been "all over the

place."

Rivera further contends that, even if the jury found

credible Negrón's uncorroborated testimony that Negrón sold

cocaine to him, this single transaction cannot, as a matter of

law, establish his guilt of the crime of conspiracy. We agree

that a single drug transaction for the personal use of the

purchaser, without prearrangement or other factors indicative of

conspiratorial intent, does not establish a conspiracy. See

United States v. Moran, 984 F.2d 1299, 1304 (1st Cir. 1993).

Nonetheless, we have found, under certain circumstances, that

one drug transaction may provide sufficient evidence for a jury

to find the existence of a conspiracy to distribute cocaine.

See, e.g., Portela, 167 F.3d at 698 ("The evidence . . . was

thus sufficient to have led a reasonable jury to conclude that

[the defendant] was a party to a tacit agreement relating to

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[the seller's] entire continuing enterprise, despite the fact

that there was only a single transaction between them."); Moran,

984 F.2d at 1303 ("Even a single sale for resale, embroidered

with evidence suggesting a joint undertaking between buyer and

seller, could suffice."); United States v. Carbone, 798 F.2d

21, 27 (1st Cir. 1986). Drawing on the body of conspiracy law

we have just described, we evaluate the circumstances that

support the conspiracy conviction.

2. Knowing participation in a conspiracy to possess
with intent to distribute cocaine

Negrón admitted that he sold cocaine for profit, and

he testified that he sold one kilogram of cocaine to Rivera.

Such a large quantity of drugs supports the inference that

Rivera did not intend to use the cocaine merely for personal

consumption, but rather intended to acquire it for

redistribution. See United States v. Jesús-Ríos, 990 F.2d 672,

680 (1st Cir. 1993); United States v. Geer, 923 F.2d 892, 895

(1st Cir. 1991) ("The jury could infer the fact of a conspiracy

to distribute drugs from the quantities of cocaine and hashish

involved - quantities far larger than needed for personal

use."). The inference that Rivera's purchase was for resale is

strengthened by Ramírez's testimony that Ramírez resold the one

kilogram of cocaine he purchased from Negrón.

-12-
 Rivera's cash payment of $13,500 to Negrón also

supports an inference that Rivera was engaged in the business of

buying and selling cocaine. Negrón testified that Rivera agreed

to purchase the cocaine on the afternoon of April 15. Slightly

more than twelve hours later, in the early morning of April 16,

Rivera gave Negrón $13,500 in exchange for the drugs. The

ability to gather such a large amount of cash overnight supports

an inference that Rivera was more than a one-time, casual

purchaser of cocaine. That inference draws further support from

the promptness of Negrón's phone call to Rivera after coming

into possession of the cocaine. Negrón did not make random

calls. He called Ramírez, to whom he had sold drugs on several

occasions, and Rivera, whom he knew. As the government said

during its closing argument: "This is not a supermarket where

you go and you select the product that you want. If you want

drugs you have to know where to get them and who sells them

because William Negrón Zapata would not sell you or any one of

you any drugs unless he knew that you were in the same business

he was."5

5Although Rivera claims on appeal that this was improper
argument, inviting the jury to convict Rivera "merely as a
result of knowing Negrón-Zapata," we find that this was a fair
argument given the evidence presented.

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 Additionally, there was evidence that Rivera owned

multiple properties in Puerto Rico. As the government argues,

it is reasonable to question the source of this wealth,

particularly because Rivera's automobile shop in his home was

not likely to generate the quantity of cash Rivera had available

to purchase cocaine from Negrón.6 A reasonable jury could find,

on these facts, that Rivera's income was supplemented by money

he earned from buying cocaine and selling it for profit.

There is ample evidence, in short, that Rivera and

Negrón shared the common objective of buying and selling cocaine

for profit, agreed on a transaction for that purpose, and

carried it out. See Portela, 167 F.3d at 695. This transaction

was far different than the "unplanned spot sale with no

agreement beyond that inherent in the sale" noted in Moran.

Moran, 984 F.2d at 1302. "[W]here advanced plans are made

regarding the sale of narcotics in wholesale quantities, the

6
Rivera objects to the government's comment, in closing
argument, about his ownership of these properties.
Specifically, he contends that the following comments by the
prosecutor were misleading and may have led the jury to convict
him for an improper reason: "The defendant, you know from the
evidence, is the owner of at least four structures . . . . And
what is the occupation of the defendant? Mechanic body repair
shop. How many people do you know who own a mechanic shop, auto
body repair shop, you see them all over the island, that own
four houses. . . . Look at that house. Big. Commercial
antennas, solar system. The works. What a house. Two stories.
We know that he owns a house. Good." There was no error in
this closing argument, which was based on the evidence.

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participants in the transaction may be presumed to know that

they are part of a broader conspiracy." United States v. Harris,

8 F.3d 943, 946 (2d Cir. 1993) (quotation marks omitted).

With respect to that broader conspiracy, Ramírez

testified that he and Negrón engaged in cocaine transactions on

numerous occasions, and Negrón provided the details of his sale

of cocaine to Rivera. Negrón also testified that he had

"participated in endless numbers of drug transactions with Mr.

Amador [Irizarry]"7 prior to 1991. Negrón and Rivera had known

each other since 1986 and met on several occasions in 1990.

These contacts over a several year period provided an

opportunity for Rivera to know of Negrón's involvement in other

drug transactions, particularly because Negrón had a long

history as a drug dealer. Indeed, Negrón's familiarity with

Rivera is demonstrated by the fact that Negrón chose not to

bring his bodyguard with him when he delivered the cocaine to

Rivera, although he did bring his bodyguard along when he

received the two kilograms of cocaine from Padilla. This

routine quality of Rivera and Negrón's one kilogram transaction

in April 1991 supports an inference of Rivera's awareness of

Negrón's involvement with these other transactions. This

7
For unexplained reasons, the indictment did not allege
that Irizarry was part of this conspiracy.

-15-
knowledge, coupled with Rivera's cash purchase of a large

quantity of cocaine for resale, suffices to establish that

Rivera was aware that his purchase was part of a larger

conspiracy to distribute cocaine, and that he furthered the

purpose of that conspiracy with his purchase. That Rivera did

not fully understand the details of Negrón's many drug

transactions is of no import. See Walters, 904 F.2d at 771 ("It

is not necessary that the government prove that the defendant .

. . knew the extent of the conspiracy."). Thus, a rational jury

could have concluded that Rivera tacitly acquiesced in the

scheme of Negrón and the other co-conspirators to distribute

cocaine for profit when he purchased the kilogram from Negrón.

Such a tacit understanding is sufficient for Rivera to be guilty

of conspiracy. See Echeverri, 982 F.2d at 679.

Rivera relies on our decision in United States v.

DeLutis, 722 F.2d 902 (1st Cir. 1983), to support his contention

that a single act is insufficient to hold an individual

criminally accountable for conspiracy. In DeLutis, however,

there was no drug transaction, no evidence of an intent to sell

the defendant a large quantity of cocaine, and only an inference

that the defendant intended to buy an undetermined amount of

cocaine. See 722 F.2d at 907. Still, we reaffirm the general

proposition advanced in DeLutis that "a single sale of drugs

-16-
without more does not establish a conspiracy." Id. at 906.

Here there was enough additional evidence to establish the

conspiracy charged and to withstand Rivera's sufficiency

challenge.

III. Amendment to the Indictment

Rivera argues that he was prejudiced because the

government, prior to trial, amended the indictment to correct a

clerical error. In the overt acts charged under Count VI, the

conspiracy charge, the government amended the language to

substitute "UCC No. 1" for "UCC No. 2," and vice versa, in every

paragraph except one. In other words, the indictment wrongly

referred to Negrón, UCC No. 1, as UCC No. 2 in the description

of the overt acts, and similarly referred to Ramírez, UCC No. 2,

as UCC No. 1. The correction simply required a substitution of

"No. 1" for "No. 2" and "No. 2" for "No. 1." Rivera has not

explained how this correction failed to give him notice of the

conspiracy charge against him. Moreover, the government was not

even required to prove any overt acts in furtherance of the

conspiracy. See Portela, 167 F.3d at 702. Thus, correcting

this clerical error did not deprive Rivera of notice of the

charge against him.

IV. Variance

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 In a claim closely related to his claim about the

amendment to the indictment, Rivera argues that his conviction

should be vacated because there was a variance between the

conduct alleged in the indictment and the proof offered at

trial. "To be sufficient grounds for reversal, a variance must

be severe enough to affect the defendant's substantial rights."

Portela, 167 F.3d at 700. We review this question de novo. See

id.

As we just explained, the government amended the

indictment prior to trial to exchange the words "UCC No. 1" for

"UCC No. 2" in the description of the overt acts, except for

paragraph four of that description, which remained unchanged.

The relevant portions of the corrected indictment, described as

the overt acts in furtherance of the conspiracy, read as

follows:

3. On or about April 15, 1991 at
approximately 7:30 p.m., UCC No. 1 called
Carlos Rivera-Ruiz to offer him one (1)
kilogram of cocaine for the price of
thirteen thousand five hundred dollars
($13,500.00). Rivera-Ruiz agreed and on the
following date April 16, 1991 UCC No. 1
delivered to Rivera-Ruiz one (1) kilogram of
cocaine located at Road 4406, Anones ward,
Las Marías, Puerto Rico.
4. On or about April 16, 1991 at
approximately 8:00 a.m., UCC No. 1 sold and
delivered to Carlos Rivera-Ruiz one (1)
kilogram of cocaine and was paid for
thirteen thousand five hundred dollars
($13,500.00).

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Rivera argues that paragraphs three and four of the amended

indictment charge him with purchasing two kilograms of cocaine

from Negrón, while the evidence presented at trial established

only that he purchased one kilogram.

We reject this claim. Based on a reasonable reading

of paragraphs three and four, we conclude that the purchase of

one kilogram of cocaine on the morning of April 16 is simply

described twice. The indictment does not allege two separate

purchases. There was no variance. Moreover, as noted, the

prosecution was not required to prove overt acts in order to

establish Rivera's guilt on the conspiracy charge. See Portela,

167 F.3d at 702. Thus, even if we were to adopt Rivera's

strained reading of paragraphs three and four, that reading

would not warrant reversal of his conviction because such an

error in the recitation of the overt acts did not affect his

substantial rights.

V. Closing Arguments

Rivera contends that the prosecutor deprived him of due

process of law by making several improper remarks during his

closing argument. Specifically, he identifies four comments

that he claims could have led the jury to convict him on an

improper basis. Because Rivera did not object to these comments

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at trial, we review his claim for plain error. See Fed. R.

Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725,

731 (1993); United States v. Baldyga, 233 F.3d 674, 681 (1st

Cir. 2000). To correct the alleged error, "we must conclude

that there was error, that the error was plain, and that it

affected the substantial rights of the defendant." Baldyga, 233

F.3d at 681. We may find that the allegedly improper remarks

affected Rivera's substantial rights only if we conclude that

the prosecutor's comments affected the outcome of Rivera's

trial. See id. at 682.

As we noted in our discussion of the sufficiency of the

evidence, Rivera objects to one comment about his ownership of

multiple properties and to another comment where the prosecutor

argued that Negrón would not have called Rivera if the two men

were not in the same business ("the supermarket comment"). We

have already ruled that there was nothing improper about these

remarks. Although Rivera quotes the other two challenged

remarks at length in his brief, we need not discuss these

passages separately because we are convinced that the

prosecutor's closing argument did not affect the outcome of

Rivera's trial, and hence there was no plain error in the

remarks.

VI. Sentencing

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 Finally, Rivera appeals the sentence of 121 months

imposed by the district court, arguing that the court

erroneously based this sentence on the understanding that Rivera

purchased two kilograms of cocaine, rather than only one. We

review this claim for plain error because Rivera did not object

at the time of sentencing. See United States v. Torres-Rosa,

209 F.3d 4, 8 (1st Cir. 2000). Because we find that Rivera

faced a mandatory minimum sentence of ten years regardless of

the amount of cocaine for which he was held accountable, see 21

U.S.C. § 841(b)(1)(B),8 we conclude that there was no plain

error.

More than one year prior to trial, the government filed

an information pursuant to 21 U.S.C. § 851 9 to establish that

Rivera had a prior conviction for importing cocaine into Puerto

Rico. The document served to notify Rivera that the prosecution

intended to seek an increased sentence pursuant to 21 U.S.C.

§ 841(b)(1)(B) because of this prior conviction. Thus, as

8 Section 841(b)(1)(B) provides: "If 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 10 years."
9 Section 851 provides, in pertinent part: "No person who
stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial . . . the United States
attorney files an information with the court . . . stating in
writing the previous convictions to be relied upon."

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Rivera concedes in his brief to this court, he faced a mandatory

minimum sentence of ten years regardless of the amount of

cocaine attributed to him by the sentencing court. Accordingly,

his challenge to the amount of cocaine attributed to him is

irrelevant to his sentence. See, e.g., United States v. Tavano,

12 F.3d 301, 307 (1st Cir. 1993) ("It is unnecessary to address

a dispute over drug quantity if, and to the extent that,

adjudicating it will not . . . bring a different mandatory

minimum sentence into play.").

Judgment and Sentence Affirmed.

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