United States v. Garcia-Torres

United States Court of Appeals
For the First Circuit

Nos. 02-1085
02-1086
02-1087
02-1088

UNITED STATES,

Appellee,

v.

ANDRÉS GARCÍA-TORRES, ANGEL MANUEL GARCÍA-TORRES,
DERI VENTURA-GARCÍA, and WALTER BATÍZ-RIVERA,

Defendants, Appellants.

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

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Ignacio Fernández de Lahongrais for appellant Andrés García-
Torres.
Ramón García García for appellant Walter Batíz-Rivera.
Enrique Vélez Rodríguez for appellant Angel Manuel García-
Torres.
Sonia I. Torres Pabón, Assistant United States Attorney, with
whom H.S. García, United States Attorney and Nelson Pérez-Sosa,
Assistant United States Attorney, were on brief, for appellee.

August 22, 2003
 LIPEZ, Circuit Judge. These consolidated appeals arise

from an indictment alleging that the appellants, along with over

seventy other co-defendants, participated in an extensive drug

smuggling and distribution network in southwest Puerto Rico from

1994 to 1997. The appellants were all convicted at trial and

sentenced to lengthy prison terms. They make various assignments

of error with regard to the jury charge, a post-trial denial of a

motion for a new trial on Brady grounds, and sentencing. With

respect to the latter, we must decide whether the grouping of

offenses pursuant to § 3D1.2 of the United States Sentencing

Guidelines ("Guidelines") precludes consecutive sentences.

Concluding that it does not, we affirm all of the convictions and

sentences.1

I.

We begin with a brief precis of the facts giving rise to

these appeals. We provide further factual development as necessary

in the sections addressing the appellants' various claims. For

more extensive background information, we refer the reader to the

prior appeals of other co-defendants — United States v. García-

1
Three of the appellants (Andrés García-Torres, Manuel
García-Torres, and Walter Batíz-Rivera) have, through counsel,
filed a consolidated brief. Appellant Deri Ventura-García, through
counsel, has filed his own brief in which he only challenges the
district court's denial of his motion for a new trial. See infra
Part III.

-2-
Torres, 280 F.3d 1 (1st Cir. 2002); and United States v. Martínez-

Medina, 279 F.3d 105 (1st Cir. 2002).

All of the appellants in this case allegedly participated

in an extensive drug importation and distribution ring headed by

Angela Ayala-Martínez ("Ayala"). Through contacts in Colombia,

Ayala would arrange for large quantities of drugs to be air-dropped

into the ocean off the coast of Puerto Rico. She would then send

several of her associates — including Manuel Pérez-Colón ("Pérez-

Colón") and appellants Andrés García-Torres ("Andrés") and Deri

Ventura-García ("Ventura") — to recover the drugs from the ocean.

The drugs would then be stored by members of Ayala's organization

and "decked" (i.e., prepared for distribution) by Ayala's

confederates — including appellants Walter Batíz-Rivera ("Batíz"),

Ventura, Andrés, and Andrés's brother, appellant Angel Manuel

García-Torres ("Manuel"). The drugs were then distributed by these

persons and others to places in Puerto Rico and elsewhere in the

United States.

Locally, Ayala supplied and controlled distribution sites

(called "points") which were "owned" (i.e., run) by individual

dealers. Several of these points were located near housing

projects in and around the city of Ponce. For example, the point

at Atocha was owned by Edward Meléndez-Negrón, a.k.a. Danny

Gongolon ("Gongolon"). The point at Los Lirios del Sur housing

project was owned by Pérez-Colón, and the point at Tibes belonged

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to Ayala herself. Of particular significance to these appeals, the

La Cantera drug point belonged to Tommy García-Torres ("Tommy"),

the brother of Andrés and Manuel, until August 1995 when he was

murdered. The La Cantera drug point was then "inherited" by Manuel

and Ventura.

Ayala's drug distribution network and the various drug

points were maintained through violence or threatened violence, and

a number of killings took place over several years. The network

processed hundreds of kilos of cocaine and generated a sizeable

amount of cash receipts. Ayala, along with her coconspirators,

concealed these sums of cash by money laundering them through the

purchase of goods and services, in particular air conditioners and

expensive vehicles that were registered under different names.

In December 1997, a grand jury returned a superceding

indictment alleging, inter alia, that from mid-1994 to mid-1997,

seventy-six individually named defendants participated in a

conspiracy to distribute illegal narcotics (Count I). See 21

U.S.C. §§ 841(a)(1), 846. The indictment also alleged that twenty-

nine of these defendants conspired to launder money (Count II).

See 18 U.S.C. § 1956(a), (h). The vast majority of the defendants

pleaded guilty and were sentenced to lengthy prison terms. The

four appellants herein, together with Ayala, Pérez-Colón, and

Marcos Martínez-Medina ("Martínez"), were convicted following a

jury trial that lasted over forty days. The jury found appellants

-4-
Andrés and Manuel guilty on Counts I and II (drug conspiracy and

money laundering conspiracy), and appellants Ventura and Batíz on

Count I (drug conspiracy) only. Andrés and Manuel were sentenced

on each count to twenty years of imprisonment, the terms to be

served consecutively, for a total of forty years of imprisonment.

Ventura and Batíz were each sentenced to twenty years for their

convictions on Count I.

II.

Andrés and Manuel were convicted in Count II of violating

18 U.S.C. § 1956, which provides in pertinent part:

(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of
some form of unlawful activity, conducts or
attempts to conduct such a financial transaction
which in fact involves the proceeds of specified
unlawful activity —

(A) (i) with the intent to promote the carrying
on of specified unlawful activity; or

* * *

(B) knowing that the transaction is designed in
whole or in part —
(i) to conceal or disguise the nature, the
location, the source, the ownership, or the
control of the proceeds of specified unlawful
activity . . . .

shall be sentenced to a fine . . . or imprisonment for
not more than twenty years, or both.

Id. (emphasis added). Subsection (A)(i) can be described as the

"promotion" element of the statute, and subsection (B)(i) can be

described as the "concealment" element of the statute. As the

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statute unambiguously indicates, a conviction may be predicated on

either the promotion prong or the concealment prong.

The superceding indictment in this case alleged that

Andrés and Manuel, in conjunction with others, conspired to violate

§ 1956, with the language of the indictment closely tracking that

of the statute with one exception. The indictment alleged that

Andrés and Manuel had conspired to conduct unlawful financial

transactions "with the intent to promote the carrying on of

specified unlawful activity and knowing that the transactions

[were] designed in whole or in part to conceal or disguise the

nature, the source, the ownership, or the control of the proceeds

of specified unlawful activity" (emphasis added). Thus, while the

statute puts the promotion and concealment elements of § 1956 in

the disjunctive, the indictment alleged them in the conjunctive.

The district court, for its part, properly instructed the

jury in the disjunctive:

Section 1956(a)(1) of Title 18 of the
United States Code makes it a crime to,
knowing that the property involved in a
financial transaction represents the proceeds
of some form of unlawful activity, conduct or
attempt to conduct a financial transaction
which in fact involves the proceeds of
specified unlawful activity.

One, with the intent to promote the
carrying on of a specified unlawful activity;
or

Two, knowing that the transaction is
designed in whole or in part to conceal the
nature, the location, the source, the

-6-
 ownership, or control of the proceeds of
specified unlawful activity.

(emphasis added). Andrés and Manuel now argue that it was

reversible error for the district court to instruct the jury in the

disjunctive while the indictment alleged the violation of § 1956 in

the conjunctive. Moreover, the argument goes, if the district

court had properly instructed the jury in the conjunctive, the

government would have had to prove both the concealment prong and

the promotion prong beyond a reasonable doubt. Andrés and Manuel

claim that the government did not adduce any evidence on the

concealment prong, and, therefore, they are entitled to have their

conviction reversed on the money laundering count.

In evaluating this claim, we first note that Andrés and

Manuel failed to object to the jury instruction they now say was

erroneous. Hence their argument about the jury instruction has

been forfeited. See United States v. Paniagua-Ramos, 251 F.3d 242,

246 (1st Cir. 2001) ("[I]t is settled beyond peradventure that a

party's failure to object to the charge in strict conformity with

the prerequisites of Rule 30 forfeits most instructional errors.").

Although the appellants can still invoke plain error review, this

standard is notoriously difficult to meet.

To vault this hurdle, a defendant must make
four showings. First, he must show that an
error occurred. Second, he must show that the
error was clear or obvious. Third, he must
show that the error affected his substantial
rights. Fourth, he must show that the error so
seriously impaired the fairness, integrity, or

-7-
 public reputation of the proceedings as to
threaten a miscarriage of justice.

Id.; see Johnson v. United States, 520 U.S. 461, 466–67 (1997);

United States v. Olano, 507 U.S. 725, 732 (1993).

While we have not previously had occasion to consider the

argument presented by Andrés and Manuel, the Ninth Circuit has. In

United States v. Booth, 309 F.3d 566 (9th Cir. 2002), the defendant

was convicted of violating 18 U.S.C. § 1956(a)(1). The indictment

had "alleged conjunctively that [the defendant] conducted the

unlawful financial transactions 'with the intent to promote the

carrying on of the specified unlawful activity and knowing that the

transaction was designed . . . to conceal and disguise' the

proceeds." Booth, 309 F.3d at 571–72 (modifications in original).

At the close of the trial, however, the court instructed the jury

in the disjunctive: "the jury was permitted to convict if it found

that [the defendant] had conducted the money laundering

transactions either with the intent to promote the unlawful

activity or knowing that the transactions were designed to

conceal." Id. at 572.

As the Ninth Circuit succinctly put it, "[t]here was no

reversible error in this sequence of events." Id. "Quite simply,

the law is well established that where an indictment charges in the

conjunctive several means of violating a statute, a conviction may

be obtained on proof of only one of the means, and accordingly the

jury instruction may properly be framed in the disjunctive."

-8-
United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000). As

we indicated over thirty years ago in United States v. Barbato, 471

F.2d 918 (1st Cir. 1973), a prosecution for fraud under 18 U.S.C.

§ 1010:

Where a statute . . . sets forth several
different means by which an offense may be
committed, it is permissible for a count in an
indictment to allege all or several of these
means in the conjunctive. A conviction on
such a count will stand if the evidence
establishing one or more of the means of
commission alleged is sufficient to support a
jury verdict.

United States v. Barbato, 471 F.2d 918, 922 n.3 (1st Cir. 1973);

see also United States v. Miller, 471 U.S. 130, 134–38 (1985)

(indicating that, if indictment gave clear notice of charges, there

is no reversible error when jury convicts on proof of only one of

several means of committing crime alleged in the indictment). As

a result, "proof of any one of those acts conjunctively charged may

support a conviction." United States v. LeDonne, 21 F.3d 1418,

1427 (7th Cir. 1994); United States v. Fontana, 948 F.2d 796, 802

(1st Cir. 1991). There was no error in the jury instruction on the

crime of money laundering. Andrés and Manuel concede that the

government presented sufficient evidence to satisfy the promotion

prong of § 1956. We therefore affirm the convictions of Andrés and

Manuel on Count II.

-9-
 III.

Following their convictions but prior to sentencing, all

four appellants, together with Martínez, moved for a new trial

under Brady v. Maryland, 373 U.S. 83 (1963), claiming that the

government had improperly withheld a sworn statement containing

exculpatory and impeachment evidence. In July 1999 the district

court conducted a two-day evidentiary hearing on the motion. In a

thorough opinion and order dated May 18, 2000, the district court

denied the request for a new trial. The appellants now assign

error to this ruling. Before addressing the appellants' claim of

error, however, we must first describe in some depth the evidence

presented at trial concerning the murders of Michael and Eddie

Vázquez, an event that is central to the new trial motion. Many of

the facts described below have already been recounted in Martínez-

Medina, 279 F.3d at 112-13.

A. Factual Background

At the La Cantera drug point, a dispute arose in 1994

when Tommy (the brother of Andrés and Manuel) fired "Gerardito,"

his brother-in-law and a drug runner, for having allegedly stolen

over $35,000 in drug proceeds. Following his ouster, Gerardito and

his brother "Nelsito" began to associate with Michael Vázquez

("Michael") and his father Eddie Vázquez ("Eddie"). While the

Vázquezes had no demonstrated connection with the drug trade, they

did have a sizable cache of weapons and were willing to help

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Gerardito seek revenge against the García brothers. A violent feud

soon developed with the Garcías and their allies (including

Ventura, Ayala, Martínez, Batíz, and Gongolon) on one side, and

Gerardito and his faction (including Nelsito, the Vázquezes, and

the Vázquezes' employee, José Negrón-Santiago, a.k.a. "Bejumen") on

the other.

Over the next few years, this rivalry turned deadly. In

1995 Tommy and a confrere were murdered in separate incidents.

That same year, a friend of Gerardito, "Gordo," was also murdered.

Each side blamed the other. The following year, Eddie shot and

wounded Gongolon. The ongoing violence targeted the drug points of

the García faction and caused the García brothers and their

colleagues to fear that Gerardito's clan was bent on revenge and

the takeover of their business. Moreover, the violence at the

points had attracted the attention of the local police, causing

sales figures to drop. So, from 1995 to 1997, the García brothers

and their colleagues repeatedly attempted to find and kill

Gerardito, Nelsito, the Vázquezes, and Bejumen to put an end to it

all.

They eventually succeeded. On February 14, 1997, Bejumen

and his wife were shot and killed in their automobile. Gamaliel

Goglas-Valentin ("Goglas"), an auto shop employee who also stored

drugs and guns for the Garcías, testified at trial that Andrés,

Manuel, and Martínez drove into his shop and celebrated openly that

-11-
they had "finally got the bastard," Bejumen. He also testified

that Andrés reported that the three of them had ambushed Bejumen's

car, and that Martínez and Andrés then opened the car door and shot

Bejumen and his wife repeatedly at close range.

Danny Gongolon testified at trial that a few days after

Bejumen's murder, Ventura approached Gongolon and told him that

Manuel knew some kidnappers who knew where the Vázquezes lived.

For a $20,000 fee, these kidnappers were willing to pose as police

officers and "arrest" Michael and turn him over to the García

faction. The $20,000 price tag was to be split among Manuel,

Gongolon, Ventura, and Ayala. At a meeting later that day,

Gongolon, Andrés, Manuel, Ventura, and Batíz made plans to carry

out the abduction and murder.

As we indicated in Martínez-Medina, what happened next is

not altogether clear.

Although the testimony of various witnesses is
somewhat unclear as to the precise chain of
events, it appears that the kidnappers handed
Michael Vázquez over to associates of the
García group — including Manuel and Andrés
García, Gongolon, Ventura, and Batíz — who
drove away with him and killed him. They also
found and shot Eddie Vázquez.

279 F.3d at 112. Goglas testified that the morning after the

Vázquez murders, Manuel and Ventura came to his shop to have him

repair bullet damage to their vehicle. At that time, Manuel and

Ventura recounted the Vázquez murders to him. A couple of weeks

afterwards, he ran into Andrés who also spoke of his role in the

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abduction and murders. Gongolon testified that immediately after

the Vázquez killings, he called Ayala to announce that he had some

good news; he also told her to prepare breakfast and that he would

be right over. He then drove to Ayala's house and immediately told

her of the Vázquezes' deaths. Ayala expressed elation at the news,

and after breakfast she drove to the scene of the murders to see

for herself.

B. The Purported Brady Material

The motion for a new trial is based on a sworn statement

by Jaime Morales-Rivera ("Morales") that was given to the Puerto

Rico state prosecutor in May 1998 during the course of an

investigation into the Vázquez murders. The appellants first

learned of the existence of Morales's statement at a preliminary

hearing in the state prosecution of Manuel and Ventura for the

Vázquez murders, four months after the verdict had been entered

against them in the federal case.2

In the statement, Morales declared that he joined the

Puerto Rico police in 1992. While an officer, he participated in

various criminal activities, including burglary, kidnapping,

murder, and planting of evidence. For example, Morales assisted

José Galiany-Cruz ("Galiany") in an attempt to kidnap someone on

2
Manuel, Andrés, and Ventura eventually pleaded guilty in
state court to the murder of Michael Vázquez.

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behalf of Galiany's employer, Santos Martínez ("Santos"), a drug

dealer apparently unconnected to Ayala and the Garcías.

In his statement, Morales goes on to say that Galiany

approached him about another job for Santos in February 1997

involving the kidnapping of someone whose father, according to

Galiany, owed Santos four million dollars. That "someone" turned

out to be Michael Vázquez, whose father was Eddie Vázquez. The

statement then provides details of Morales's involvement in

Michael's abduction and murder. While Morales's account of what

happened the night of the Vázquez murders varied in some minor ways

from the testimony presented at trial, the substance of his

testimony did not vary significantly from the testimony of Goglas

and Gongolon.

C. The Motion for a New Trial

Upon learning of the existence of the statement,

appellants Andrés, Manuel, Ventura, Batíz, and co-defendant

Martínez all moved for a new trial. They claimed that the

government had intentionally withheld the statement and that it

contained exculpatory and impeachment evidence of such probative

value that it undermined confidence in the verdict. According to

the defendants, the statement was exculpatory because it

demonstrated that the Vázquez murders were not part of the

conspiracy charged in this case, and because it could be used to

impeach the testimony of Gongolon and Goglas regarding the

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defendants' involvement in the Bejumen and Vázquez murders. In

response, the government conceded that it was in possession of the

sworn statement well before the start of trial and that it should

have been divulged to the defendants. The government maintained,

however, that the withholding of the evidence was unintentional and

not in bad faith. Moreover, according to the government, the

statement would have been ultimately inadmissible and/or

immaterial, and, therefore, its absence did not undermine

confidence in the verdict.

The district court conducted a two-day hearing which

included testimony from Morales, Galiany, the local district

attorney, and an FBI agent assigned to the case. Galiany testified

that he had been approached by Manuel who told him that he was

having problems with Michael and Eddie Vázquez, and that Manuel

suggested a plan in which Galiany would kidnap them and turn them

over to Manuel so that he could kill them. Galiany then contacted

Morales and relayed to him the plan which they eventually executed.

At the hearing, Galiany admitted to having told Morales

that he had been contracted by Santos. Galiany went on to testify,

however, that he had told Morales this lie in order to protect the

identity of the person who had actually hired him — Manuel. The

substance of Morales's testimony at the hearing was the same as

contained in his prior sworn statement, with a few additional

details concerning the abduction of Michael Vázquez.

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 The district court, after asking for post-hearing

briefing, denied the motion for a new trial in an exhaustive

opinion and order that dismissed the impeachment and exculpatory

value of Morales's statement, determined that the government had

not withheld the evidence in bad faith, and raised serious

questions about the evidence's admissibility. For purposes of its

analysis, however, the court assumed that the evidence would be

admissible. The court then concluded that the probative value of

the evidence did not merit a new trial:

After reviewing the rest of the evidence about
defendants' involvement in the charged
conspiracy, the Court finds that even in the
absence of the Morales [] statement[,]
defendants received a fair trial which
resulted in a confidence-worthy verdict.
Contrary to their contention, the Vázquezes
murders was not the only evidence the
government had to link defendants to the
charged conspiracy. At trial, the government
presented the testimony, among others, of
unindicted coconspirator [Goglas], who
testified about the participation of
[Martínez], Manuel and [Andrés] in the murders
of rival gang member Bejumen and his wife.
Evidence was also presented of Manuel,
[Andrés] and [Ventura's] drug dealings with
Angela Ayala-Martínez. The evidence also
established that [Batíz] used to work for
[Ventura] and Manuel decking drugs at La
Cantera drug point. All this evidence
sufficiently established that defendants were
part of the charged, and not a separate and
distinct, conspiracy.

In a previous appeal, we upheld the denial of the motion for a new

trial with respect to defendant Martínez, stating that Morales's

statement did not directly undermine Goglas's testimony concerning

-16-
Martínez's involvement in Bejumen's murder — the murder that

"provided the main link between Martínez and the drug conspiracy."

Martínez-Medina, 279 F.3d at 126. Rather, Morales's statement went

only to the Vázquez murders. "Such weak impeachment evidence," we

indicated, "on an issue tangential to the conviction is not

sufficient to warrant the drastic remedy of a new trial." Id. at

127.

D. The Legal Standard

When a Brady claim is raised in a motion for a new trial,

we review the denial of that motion for abuse of discretion.

United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002); United

States v. Josleyn, 206 F.3d 144, 151 (1st Cir. 2000).3 Under Brady

and its progeny, a new trial is warranted on a Brady claim only if

the withheld evidence is "material." See id. at 151–52. That is

to say, a new trial is warranted only if there is a "reasonable

probability" that the evidence would have changed the ultimate

outcome. United States v. Bagley, 473 U.S. 667, 682 (1985). The

Supreme Court further clarified the "reasonable probability"

concept when it stated: "The question is not whether the defendant

would more likely than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence."

3
However, "[w]here it is contended that the district court
applied an incorrect legal standard, that contention is reviewed de
novo." Josleyn, 206 F.3d at 151. There is no such claim here.

-17-
Strickler v. Greene, 527 U.S. 263, 289–90 (1999) (quoting Kyles v.

Whitley, 514 U.S. 419, 434 (1995)).

Both impeachment evidence and exculpatory evidence can

provide grounds for a new trial. Wrongly withheld impeachment

evidence can merit a new trial when "the evidence is highly

impeaching or when the witness' testimony is uncorroborated and

essential to the conviction." Martínez-Medina, 279 F.3d at 126.

However, "impeachment evidence that is merely cumulative or

collateral is insufficient to establish prejudice under Brady."

Conley v. United States, 323 F.3d 7, 30 (1st Cir. 2003). As for

exculpatory evidence, such evidence must still be material, and

"[t]he materiality standard is not met by 'the mere possibility

that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial.'" United

States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997) (quoting

United States v. Agurs, 427 U.S. 97, 109-10 (1976)). Instead, once

again, the exculpatory material must be of such probative value

that there is a "'reasonable probability' that the evidence would

have changed the result." United States v. Sepulveda, 15 F.3d

1216, 1220 (1st Cir. 1993).

E. Analysis

The appellants claim that, notwithstanding our earlier

rejection of Martínez's Brady claim, they are entitled to a new

trial because Morales's statement would have had different

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consequences for them than for Martínez. They assert that the

principal prosecution witness against them was Goglas, and that his

testimony concerning their involvement in the Bejumen and Vázquez

murders provided "the main link between appellants and the Angela

Ayala conspiracy." They claim that Morales's statement

sufficiently undermines Goglas's testimony regarding both sets of

murders as to make all of his testimony unreliable. As for the

Vázquez murders, they insist that Morales's statement would have

demonstrated that their involvement in them was only the result of

a grudge and not the Ayala conspiracy. Therefore, they claim, the

withheld evidence sufficiently undermines confidence in the verdict

to warrant a new trial. We disagree.

As we noted in Martínez's case, the exculpatory and/or

impeachment value (if any) of Morales's statement only directly

pertains to the Vázquez murders. As the district court noted, if

the appellants had managed to get the Morales statement admitted

into evidence (a questionable proposition), the government would

have then been entitled to call Galiany as a witness, and Galiany

would have likely testified (as he did at the Brady hearing) that

he had fabricated the story about Santos having ordered the

kidnapping in order to keep Morales from learning that the García

group was behind the plan. Moreover, any impeachment value of the

statement, as the district court noted, would have been minimal

since the deviations in substance concerning the mechanics of the

Vázquez murders were negligible.

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 Additionally, as the district court noted in its

opinion, the Vázquez and Bejumen murders were hardly the only

evidence linking Andrés, Manuel, and Ventura with the Ayala drug

distribution network. There was testimony from other witnesses

that cash and drugs repeatedly exchanged hands among these three

appellants and Ayala, and that Andrés and Ventura helped Ayala

retrieve airdropped drugs from the sea. Witnesses also testified

about the control Ventura and Manuel exercised over the La Cantera

drug point, as well as the intimate role that Batíz played in La

Cantera's administration.

Finally, the appellants exploited other opportunities to

attack Goglas's credibility, such as his inconsistencies and

omissions between his trial and grand jury testimony. Therefore,

in light of the weak evidentiary value of Morales's statement, and

the substantial other evidence of the appellants' involvement in

the conspiracy, we cannot say that the government's failure to

produce the Morales statement "undermine[s] [our] confidence in the

verdict." Martínez-Medina, 279 F.3d at 126 (quoting Kyles, 514

U.S. at 435). The district court properly denied the appellants'

motions for a new trial.

IV.

The appellants make three arguments related to their

sentencing. Manuel and Andrés claim that the sentencing court

erred in failing to group the drug conspiracy and the money

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laundering convictions under section 3D1.2 of the Guidelines. They

also claim that the court erred in sentencing them to the statutory

maximum on the money laundering count. Finally, Manuel and Batíz

claim that the court erred when it sentenced them without the

benefit of an updated Pre-Sentence Report.

A. Grouping

Section 3D1.2 of the Guidelines provides that closely

related counts should be "grouped" for purposes of sentencing.

Manuel and Andrés's respective Pre-Sentence Reports ("PSR")

contained identical paragraphs regarding the grouping of their

convictions on Count I (drug conspiracy) and Count II (money

laundering conspiracy):

Offense conduct comprising drug trafficking
and money laundering are normally grouped
together into a combined group as the offense
conduct involves substantially the same harm
within the meaning of Guideline § 3D1.2(b); to
wit: the counts involve the same victim
(society) and two or more acts or transactions
connected by a common criminal objective or
constituting part of a common scheme or plan.
However, the offense conduct comprising count
one not only involved generalized drug
trafficking activities, but also involved
murder. As such, the two counts are not
groupable under the provisions of Guideline
§ 3D1.2 and are treated as to [sic] distinct
counts to be grouped under the provisions of
Guideline § 3D1.4, Determining the Combined
Offense Level.

The defendants objected to this reasoning, arguing that Counts I

and II should have been grouped according to the plain language of

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U.S.S.G. § 3D1.2(c) and (d),4 and they renew this argument on

appeal. The government, citing no authority, responds by simply

stating that since the drug conspiracy involved murder, Count I was

somehow "exempt" from grouping under any provision of the

Guidelines.

These arguments reflect a shared failure by appellants

and the government to understand that the district court did, in

fact, group the two counts for sentencing purposes. The

misunderstanding apparently arises because of the court's

imposition of consecutive sentences, which the appellants and the

4
Section 3D1.2 of the Guidelines provides, in pertinent part:

All counts involving substantially the same
harm shall be grouped together into a single
Group. Counts involve substantially the same
harm within the meaning of this rule:
* * *
(c) When one of the counts embodies conduct
that is treated as a specific offense
characteristic in, or other adjustment to,
the guideline applicable to another of the
counts.
(d) When the offense level is determined
largely on the basis of the total amount
of harm or loss, the quantity of a
substance involved, or some other measure
of aggregate harm, or if the offense
behavior is ongoing or continuous in
nature and the offense guideline is
written to cover such behavior.

[The following offenses] are to be
grouped under this subsection:

Subsection (d) then goes on to identify the offenses which it
covers. Drug conspiracy and money laundering are included in that
list.

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government interpret as a rejection of "grouping." There was no

such rejection by the district court.

Early in Manuel's sentencing hearing, the court indicated

its inclination to adopt the factual findings of the PSR with

respect to Count I. Relying on the guideline for a drug

conspiracy, U.S.S.G. § 2D1.1(c)(3), the court calculated a base

offense level of 38 since the offense of conviction involved more

than 150 kilograms of cocaine. Then the court indicated that it

was inclined to add a four-level enhancement pursuant to § 3B1.1(a)

because of Manuel's leadership role; a two-level enhancement

pursuant to § 2D1.1(b)(1) because of his possession of dangerous

weapons during the offense; and a two-level enhancement pursuant to

§ 3C1.1 because of his attempts to obstruct justice in connection

with police investigations into the Bejumen and Vázquez murders,

resulting in an adjusted offense level ("AOL") of 46. Given that

the maximum possible offense level under the Guidelines is 43, the

court stated that it was inclined to use that number. According to

the Sentencing Table in Part 5 of the Guidelines, an AOL of 43

results in a guideline sentencing range ("GSR") of life in prison,

irrespective of criminal history.5 The court said nothing about an

offense level for Count II. The court did state, however, that it

was inclined to exercise its "discretion" under § 5G1.2(d) and

5
The court did state that it was inclined to set the criminal
history category of Manuel at III.

-23-
impose the statutory maximum sentence (20 years) on each count, the

terms to run consecutively.6 The court then heard from counsel.

Manuel raised many objections to the court's sentencing

rationale, all of which were overruled. In particular, he argued

— in an apparent reference to the imposition of consecutive

sentences — that the court had to "group" the two counts for

sentencing and hence could not impose consecutive sentences. The

sentencing court responded with an explanation that reflected a

clear understanding of the rules of grouping, as that term of art

is used in § 3D1.2:

Regarding consecutive sentences, the
guidelines provide and it is mandatory that we
group counts 1 and 2 for sentencing purposes
we have no discretion in that sense. We are
mandated by the guidelines to group them
together. To determine the maximum guideline
range of the 2 counts and than [sic] apply
that guideline range. In this case what the
court proposes to do, and according to the
findings that I just stated, we group counts 1
and 2 as mandated by the guidelines. We
determine the guideline range for count one
which gives a guideline range of life. That
is the highest guideline range for both
counts. Count one, the maximum statutory is
20 years, . . . the court will not impose over
20 years regarding count 1. Regarding count
two, the guideline range is life imprisonment,
it is the same guideline sentencing range.7

6
Section 5G1.2 of the Guidelines is captioned "Sentencing on
Multiple Counts of Conviction" and is discussed in more detail,
infra.
7
The applicable guideline for the money laundering count
provides that the offense level for that count is "[t]he offense
level for the underlying offense from which the laundered funds

-24-
 However the statutory maximum is 20 years. So
we will apply the statutory maximum. That is
how this court has arrived at those sentencing
maximums. Regarding the consecutive part, we
believe this court is authorized under section
5G1 of the guidelines to provide that these
sentences be consecutive in order to provide
that the total punishment of these guidelines
be complied as much as possible within the
statutory maximums.

(emphasis added). Under the relevant "grouping" section of the

Guidelines, § 3D1.3(a), "the offense level applicable to a Group is

the offense level . . . for the most serious of the counts

comprising the Group." The district court's decision to focus on

Count I, and only calculate an AOL and GSR for that count, is

therefore consistent with the rules regarding grouping.8 Hence,

contrary to Manuel's position on appeal, the district court did not

fail to "group" Counts I and II for sentencing.9 As far as we can

were derived," U.S.S.G. § 2S1.1(a)(1), that is to say, the same
offense level as the drug conspiracy.
8
Even if the sentencing court had not grouped the two counts,
the combined offense level would have been the same as the offense
level arrived at by the district court. The base offense level for
money laundering is the same as that for the underlying criminal
activity. See U.S.S.G. § 2S1.1(a)(1). As a result, the combined
offense level for the two ungrouped counts would have been the same
as the offense level applicable to both crimes. See id.
§ 3D1.4(a). Thus, even a decision not to group would have had no
net effect.
9
We realize that at the end of the hearing, when the court
was orally imposing Manuel's sentence, the court appears to have
read some of the text of the PSR when, according to the transcript,
the court stated:

Offense conduct comprising drug trafficking and money
laundering are normally grouped together into a combined

-25-
tell, Manuel's grievance is with the court's decision to impose

consecutive rather than concurrent sentences, apparently on the

theory that grouping precludes consecutive sentences.

Section 5G1.2(d) of the Guidelines provides that:

If the sentence imposed on the count carrying
the highest statutory maximum is less than the
total punishment, then the sentence imposed on
one or more of the other counts shall run
consecutively, but only to the extent
necessary to produce a combined sentence equal
to the total punishment. In all other
respects, sentences on all counts shall run
concurrently, except to the extent otherwise
required by law.

The "total punishment," as described in this section, "is the

sentence arrived at for all counts through application of the

Guidelines, including determination of the base offense levels,

application of grouping provisions, and calculation of other

adjustments." United States v. Lott, 310 F.3d 1231, 1242 (10th

group as the offense conduct involves substantially the
same arm [sic] within the meaning of guideline section
3D1.2(b) to wit the counts involve the same victim,
society and 2 or more acts or transactions connected by
a common criminal objective or constituting part of a
common scheme or plan. However, as the offense conduct
comprising count 1 not only involved generalized drug
trafficking activities but also involved murder, the 2
counts of conviction are not groupable under the
provisions of section 3D1.2.

Immediately after making these comments, however, the court
calculated Manuel's sentence by looking only to the most serious
offense, i.e., Count I, a method of calculation appropriate only if
the court was, in fact, grouping the two counts. Compare U.S.S.G.
§ 3D1.3 (explaining how to determine offense level for grouped
counts) with id. § 3D1.4 (explaining how to determine combined
offense level for ungrouped counts).

-26-
Cir. 2002). The sentencing court fixes this "total punishment"

somewhere within the applicable GSR. See U.S.S.G. § 5G1.2,

comment. (n.1) ("The combined length of the sentences ('total

punishment') is determined by the court after determining the

adjusted combined offense level and the Criminal History

Category."). Since Manuel's GSR was not truly a range, but rather

"life" only, the sentencing court had no option but to fix Manuel's

"total punishment" at life imprisonment. However, the two counts

on which Manuel's conviction rested each had a statutory maximum

sentence of only twenty years. The sentencing court indicated that

it would therefore exercise its "discretion" under U.S.S.G.

§ 5G1.2(d) and impose sentences on the two counts consecutively in

order to get as close to a life term as possible.

Like every other circuit that has considered the issue,

we have previously stated that the language of § 5G1.2(d) —

indicating that sentences "shall run consecutively" (emphasis

added) — is mandatory in order to achieve, to the greatest extent

possible, a combined sentence "equal to the total punishment."

United States v. Saccoccia, 58 F.3d 754, 787 (1st Cir. 1995); see

United States v. Lafayette, No. 01-3067, 2003 WL 21766619, at *6

n.12 (D.C. Cir. Aug. 1, 2003) (collecting cases).10 That is, if the

10
In Saccoccia, we explained the application of this mandatory
requirement in these terms:

When, as in this instance, the maximum sentence for each
offense of conviction is lower than the minimum

-27-
combined statutory maximum sentences on the counts of conviction

are less than the "total punishment" set by the judge within the

GSR, then the court must impose maximum consecutive sentences on

each count in an attempt to get as close as possible to this "total

punishment." See U.S.S.G. § 5G1.2(d).

The grouping of Manuel's two counts pursuant to § 3D1.2

does not preclude the imposition of consecutive sentences on each

of them. See United States v. Chase, 296 F.3d 247, 251 (4th Cir.

2002). As explained persuasively in Chase, "grouping and stacking

are separate concepts relevant in different stages of the

sentencing process." Chase, 296 F.3d. at 251. Grouping is one of

the first steps undertaken during the sentencing process, and is

done "[i]n order to limit the significance of the formal charging

decision and to prevent multiple punishment for substantially

identical offense conduct," U.S.S.G. ch. 3, pt. D, intro. comment.

In fact, the grouping of counts will often result in an appreciably

lower offense level and correspondingly lower GSR than if the

punishment mandated by the applicable GSR, the guidelines
require imposition of consecutive sentences "to the
extent necessary to produce a combined sentence equal to
the total punishment."

Saccoccia, 58 F.3d at 786 (quoting U.S.S.G. § 5G1.2(d)); see also
id. at 787 ("[T]he court below possessed the power — indeed, the
responsibility — to impose a series of consecutive sentences
effectuating the clearly expressed command of U.S.S.G. § 5G1.2.").
In United States v. Quinones, 26 F.3d 213 (1st Cir. 1994), we
indicated that a sentencing court may disregard the mandate of
§ 5G1.2 only "if, and to the extent that, circumstances exist that
warrant a departure." Id. at 216.

-28-
counts had not been grouped. See, e.g., United States v. Sedoma,

332 F.3d 20, 23–24 (1st Cir. 2003).

After the sentencing court has determined the offense

level (including all upward and downward adjustments) — whether for

a group of counts, a combination of individual counts, or multiple

groups — then, as explained above, the court fixes the "total

punishment" within the applicable GSR. While grouping plays a

critical role in these early stages of the sentencing calculus,

once the court has fixed the "total punishment" somewhere within

the GSR, the Guidelines provide no further role for grouping in the

sentencing process. If one of the underlying counts of conviction

has a statutory maximum sentence greater than or equal to the

"total punishment," the court will then impose the "total

punishment" on that count, with sentences on any other counts

running concurrently. See U.S.S.G. § 5G1.2(d). If, however, none

of the underlying counts of conviction have a statutory maximum

sentence greater than or equal to the "total punishment," the

Guidelines mandate the imposition of consecutive sentences in order

to achieve (as close as possible) the "total punishment." See id.

Hence, "as a purely logical matter, there is no obstacle to

stacking a defendant's sentences for grouped offenses." Chase, 296

F.3d at 251.

Other courts have repeatedly held that grouped counts may

be "stacked" at sentencing. See id.; see also Lott, 310 F.3d at

-29-
1242 (indicating that sentencing court must apply § 5G1.2(d) on

grouped counts); United States v. Miller, 295 F.3d 824, 828 (8th

Cir. 2002) (affirming consecutive sentences on grouped counts);

United States v. Gordon, 291 F.3d 181, 195 (2d Cir. 2002)

(indicating that grouped counts may be stacked); United States v.

McWaine, 290 F.3d 269, 274 n.4 (5th Cir. 2002) (affirming

consecutive sentences on grouped counts); United States v.

Buckland, 289 F.3d 558, 572 (9th Cir. 2002) (en banc) (same);

United States v. Griffith, 85 F.3d 284, 289 n.2 (7th Cir. 1996)

(indicating same in dicta); United States v. Perez, 956 F.2d 1098,

1102–03 (11th Cir. 1992) (affirming consecutive sentences on

grouped counts). Indeed, we have already indicated in dicta that

the grouping of counts poses no bar to the imposition of

consecutive sentences when necessary to achieve a combined sentence

equivalent to the total punishment. See United States v.

Hernandez-Coplin, 24 F.3d 312, 320 n.9 (1st Cir. 1994).

Finally, we agree with the Chase court that the stacking

of grouped offenses furthers the policies underlying the

Guidelines. The Guidelines were intended, in part, to create "a

system that imposes appropriately different sentences for criminal

conduct of differing severity." U.S.S.G. ch. 1, pt. A(3).

However, "[i]f stacking for grouped offenses were prohibited, then

two defendants guilty of multiple crimes might receive roughly the

same sentence even though one was subject to a higher guideline

-30-
range as a result of more harmful conduct or a more egregious

criminal history." Chase, 296 F.3d at 253.

In sum, the plain language of the Guidelines contemplates

that consecutive sentences may be imposed on grouped counts; it has

been the practice of other courts to do so; and such a practice

furthers the policies underlying the Guidelines. We therefore

conclude that the grouping of Counts I and II did not preclude the

imposition of consecutive sentences on the grouped offenses, and we

affirm Manuel's sentence.

As for Andrés's sentencing hearing (which occurred

immediately after Manuel's), the court followed the same approach.

It alluded to the PSR's claim that the two counts should not be

grouped, but, ultimately, the court did group them when it

calculated the GSR by looking only to Count I. The court

determined that the base offense level for Count I, as in Manuel's

case, was 38. The court then made a two-level adjustment for

weapons possession, and arrived at an AOL of 40. Cross-referencing

to a CHC of III, the court arrived at a GSR of 360 months to life.

The court determined that within that range, a total punishment of

life was appropriate "due to all the facts of this case[,] the

defendant[']s participation, his disregard for life, for murders

and all of the other incidents that this court saw throughout the

three months of trial." Having thus fixed the total punishment at

life, the district court was obligated under § 5G1.2(d), as it was

-31-
in Manuel's case, to impose a 20-year sentence (the statutory

maximum) on each count, the sentences to run consecutively. We

discern no error in the sentencing of Andrés.

B. The Money Laundering Count

Manuel and Andrés argue that the sentencing court erred

when it sentenced them to the maximum term on the money laundering

count "without making any particularized findings of fact"

regarding the value of the funds laundered. As explained in the

preceding section, however, the district court made no findings

whatsoever on the money laundering count because the court grouped

the two counts and calculated Manuel and Andrés's GSRs only

according to its findings on the "most serious" count, i.e., the

drug count. Once the court determined the total punishment for

Manuel and Andrés, it was then obligated to sentence them to the

statutory maximum on each count, and impose those sentences

consecutively, in order to achieve a final sentence that most

closely approximated that total punishment. Thus, if the district

court had made particularized findings on the money laundering

count, they would have had no effect on the ultimate sentence

imposed. We therefore reject this assignment of error.

-32-
 C. The "Post-Sentence" Report

Appellants Manuel11 and Batíz argue that the trial court

erred when it sentenced them without the benefit of an updated PSR.

Initial PSRs for Manuel and Batíz were prepared by the Probation

Office on April 20, 1999. Because of various post-trial motions,

including some based on Apprendi v. New Jersey, 530 U.S. 466

(2000), their sentencing was postponed until December 2001. Manuel

and Batíz also lodged several objections to the PSR's calculations.

At their sentencing, they objected to a murder cross-reference on

Count I, and, in the case of Manuel, certain findings regarding

Count II. As indicated in Part IV.A, supra, however, the court

ultimately did not apply a murder cross-reference on Count I, and

with regard to Manuel's sentencing, the court made no findings on

Count II since the court grouped that count with Count I. A month

after the court had imposed its sentence, the probation office

issued updated PSRs that no longer reflected the murder cross-

reference. Manuel and Batíz claim that, as a result of the

issuance of this "Post-Sentence Report" (as they call it), they are

entitled to be resentenced.

11
The consolidated brief indicates that this argument is being
advanced by Manuel and Batíz. The Supplemental Appendix, however,
only contains copies of revised PSRs for Andrés and Batíz.
Regardless of who is actually pressing this claim, we find it to be
meritless.

-33-
 The version of Rule 32 of the Federal Rules of Criminal

Procedure in effect at the time of sentencing provided in pertinent

part:

The probation officer must make a presentence
investigation and submit a report to the court
before the sentence is imposed, unless:

(A) the court finds that the information
in the record enables it to exercise
its sentencing authority meaningfully
under 18 U.S.C. § 3553; and
(B) the court explains this finding on the
record.

Fed. R. Crim. P. 32(b)(1) (2001). Section 6A1.1 of the Guidelines

contains almost identical language.

Our examination of the sentencing transcript reveals that

the sentencing court complied with these requirements. At the

sentencing hearing the court indicated that it was setting the

offense levels on Count I based on its recollections of the

evidence presented at trial, and on the factual findings contained

in the original PSRs. The court was aware of the defendants'

objections to those factual findings, and the court overruled them.

As explained above, the court ignored the PSRs' cross-referencing

of murder. The fact that a subsequent PSR, completed post-

sentencing, reflected the court's decision, is simply irrelevant.

The court had sufficient information before it "to exercise its

sentencing authority meaningfully," and we therefore affirm the

sentences imposed.

-34-
 V.

For the foregoing reasons, we AFFIRM the convictions and

sentences of all four appellants.

SO ORDERED.

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