United States v. Villafane-Jimenez

United States Court of Appeals
For the First Circuit

No. 03-1230

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN E. VILLAFANE-JIMENEZ,

Defendant/Appellant.

No. 03-1231

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE S. RODRIGUEZ-NICHOLS

Defendant/Appellant.

No. 03-1340 UNITED STATES OF AMERICA

Appellee

v.

MANUEL PENA-MARTINEZ,

Defendant/Appellant.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuela Cerezo, U.S. District Judge]
 ____________________

Before

Boudin, Chief Judge,

Howard, Circuit Judge,

Carter,* Senior District Judge.

Gabriel Hernandez-Rivera for appellant Juan E. Villafane-
Jimenez.
Wilberto Mercado for appellant Eddie S. Rodriguez-Nichols.
Lydia Lizarribar-Masini for appellant Manuel Pena-Martinez.
German A Rieckehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, were on brief for appellee.

June 7, 2005

*
Of the District of Maine, sitting by designation.
 Per Curiam.

I. PROCEDURAL BACKGROUND

The Appellants (hereinafter “Defendants”) were convicted after

jury trial in the District of Puerto Rico of the offenses of

conspiracy to distribute cocaine, attempting to distribute cocaine,

both in violation of 21 U.S.C. §§ 846 and 841(a)(1), and of

carrying firearms during and in relation to the commission of a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

Defendants Villafane-Jimenez (hereinafter “Villafane”) and

Rodriguez-Nichols (hereinafter “Rodriguez”) were each sentenced to

prison terms totaling 295 months. Defendant Pena-Martinez

(hereinafter “Pena”) was sentenced to a prison term of 352 months.1

All three Defendants were made subject to supervised release terms

of five years.

The Defendants appeal their respective convictions and

challenge various aspects of their respective sentence

determinations and the imposition of certain specific conditions of

supervised release. This Court has appellate jurisdiction over the

case under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The Court

will consider the issues the Defendants generate on appeal, affirm

1
The total sentences of Villafane and Rodriguez are made up of
concurrent sentences on Counts I and II of 235 months plus a
statutorily mandated consecutive sentence thereto of 60 months on
Count III. Pena’s total sentence is made up of 292 month
concurrent sentences on Counts I and II plus the consecutive 60
month sentence on Count III.

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their convictions and affirm their sentences in part, remanding for

resentencing of each Defendant only with respect to the drug

treatment condition of supervised release.

II. STATEMENT OF FACTS

There is no significant dispute as to the specific acts and

conduct of each of the Defendants that are the basis for their

indictments and convictions. The Defendants admitted to these at

trial. The only dispute goes to the intent with which the

Defendants engaged in that conduct. The conduct itself is

displayed in the record as follows.

Special Agent Jeffrey Pelaez was employed by the Federal

Bureau of Investigation’s (hereinafter “FBI”) Public Corruption

Unit in Washington, D.C. He was assigned to the FBI resident

agency in Fajardo, Puerto Rico, to investigate allegations of

police corruption within the Puerto Rico Police Department

(hereinafter “PRPD”). He was in charge of an operation known as

“Honor Perdido.”2 The operation lasted from June 2000 to June

2001. In the course of the operation, Pelaez recruited ex-police

officer Arturo Ortiz-Colon (hereinafter “Ortiz”) as an informant

and undercover operative. Ortiz had lost his position in the

Puerto Rican police because of prior criminal activity. He had

also witnessed criminal activity of officers within the PRPD.

2
This operation generated this Court’s consideration of issues
not involved in the present case in United States v. Flecha-
Maldonado, 373 F.3d 170 (1st Cir. 2004).

-4-
Pelaez launched Ortiz as his operative in a drug “sting” operation

aimed at corrupt police officers.

Arrangements were made for Ortiz to pose as an actual FBI

agent. He was given credentials, agency business cards, a marked

vehicle, and a gun, all to create the impression that he was an FBI

agent. The FBI rented two apartments at an expensive resort.

Ortiz lived in one of those apartments, which was wired for audio

and video surveillance, and the FBI used the other apartment to

monitor what was happening in Ortiz’s apartment.

The evidence would support a jury finding that Ortiz was to

pretend to be a corrupt FBI agent involved in a drug trafficking

organization in which “the boss” was a fictional Columbian male

named “El Viejo.” Ortiz was to appear to be looking, on behalf of

the fictional El Viejo, for law enforcement officers to transport

El Viejo’s drug shipments, and to protect the shipments from rival

drug gangs and intervening police officers. He was to approach

individuals who he personally knew, or had reason to believe, were

corrupt,3 and solicit them to carry out an illegal drug transport

and be paid to do it.

The Government’s evidence supports a finding that Ortiz did,

in fact, pose to the Defendants as a corrupt FBI officer engaged in

illicit drug trafficking. The jury could reasonably have found

3
Neither Villafane nor Rodriguez were known to Ortiz prior to
the time he recruited them after being introduced to them by Pena.
None of the Defendants had any record of criminal convictions.

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that he approached Pena representing that he needed policemen

willing to assist him in a major illegal shipment of contraband

cocaine by unloading the drugs, transporting the drugs to their

destination, unloading them from the vehicles, and providing

throughout security to the operation as armed, uniformed police

officers.4 Agent Pelaez described at trial a meeting between Ortiz

and the Defendants on May 9, 2001, which he monitored by television

surveillance. Ortiz there discussed with the Defendants the

“specifics” of how the transportation of cocaine would occur. He

told the Defendants that the cocaine was owned by “El Viejo,” who

would be the person paying them for their services. Agent Pelaez’s

testimony also described the Defendants’ videotaped activities in

unloading the drugs from a boat at a marina and putting them in a

Jeep Cherokee on May 11, 2001. All of the Defendants handled and

transported the drugs and Rodriguez patrolled the area with “a

fully automatic machine gun” to protect against any interference

with the conduct of the operation.

Pena and Rodriguez left the marina area where the drugs were

obtained in Ortiz’s vehicle with the drugs and a rifle and their

sidearms. Villafane, also armed, followed them in a marked police

4
The prosecution witnesses testified at trial that they did not
specifically require the Defendants to carry firearms, but that it
was assumed that the Defendants would do so. This assumption was
apparently understood by the Defendants as they appeared on the day
of the transport/escort uniformed and armed. They contended at
trial that this occurred only because they were fresh from other
police duties.

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cruiser “to provide security.” They took the drugs to Ortiz’s

apartment. Their activities there were videotaped.5 At a

subsequent meeting on May 14, the Defendants were each paid $5000

in cash and they discussed the operation and how it could be better

done the next time. Thus, the thrust of the Government’s evidence

was that the three Defendants understood that they were being

recruited by a corrupt FBI agent to participate in an illicit,

major drug trafficking project for which they would receive at

least $4000 and that they willingly participated therein.

Defendants challenge the validity of the drug convictions on

Counts I and II and their convictions on Count III, claiming that

they thought all along that Ortiz was a legitimate FBI officer

seeking their assistance in legitimate law enforcement activities

aimed at curtailing an illegal drug transaction.

The Defendants also attack their convictions on Count III on

the separate basis that they carried their weapons because they

were required by law to do so when in uniform and that the presence

of the firearms at the scene of their drug trafficking activities

was merely coincidental to the drug trafficking activities and not

5
Various videotapes and audiotapes reflecting the interaction
of the Defendants with Ortiz at various stages of the operation
were played to the jury at trial.

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“in relation to” the drug trafficking activities, as the statute,

18 U.S.C. § 924(c)(1)(A), requires.6

III. THE CHALLENGES TO THE CONVICTIONS

A. The Estoppel by Entrapment Defense

Defendants seek reversal of their convictions because, they

allege, their prosecution violates fairness elements of Due Process

of Law under the Federal Constitution. They claim this to be so

6
We note in advancing to a discussion of the substantive
aspects of Defendants’ challenges to their convictions, as
distinguished from the sentencing issues they generate, that these
challenges come to us on two separate procedural footings. We have
reviewed carefully these circumstances and conclude that the
substantive issues are paramount to our resolution of the appeal
and that the procedural nuances below have no impact on that
resolution.

We assume, for reasons of judicial economy, and despite
uncertainties that arise from the contours of his briefing on
appeal, that Defendant Pena intends that his arguments for reversal
of the conviction on Count I also relate to that on Count II.

The standard of review for determining whether the denial of
a Rule 29 Motion is erroneous is de novo. United States v. Rivera-
Ruiz, 244 F.3d 263, 266 (1st Cir. 2001); United States v.
Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). The standard is the
same in conducting a review of the record on appeal to examine the
viability of a free-standing challenge to the sufficiency of the
evidence. United States v. Caron, 64 F.3d 713, 715 (1st Cir.
1995).

We treat the position of all three Defendants in seeking
reversal of the convictions on all three Counts as raising the same
two substantive issues for resolution: (1) whether the evidence was
sufficient to establish beyond a reasonable doubt each Defendant’s
specific intent to commit each of the three crimes by reason of an
estoppel by entrapment and (2) whether the evidence as to Count III
was sufficient to prove beyond a reasonable doubt that each
Defendant’s carrying of a firearm was “in relation to” the
commission of the drug trafficking offenses.

-8-
because they offered evidence, disputed by the Government’s

evidence at trial, that they reasonably relied on representations,

which they allege were made by Ortiz, that the conduct upon which

their convictions are based was part of a legitimate law

enforcement project Ortiz was carrying out in his capacity as an

FBI agent. This, they argue, implicitly represented to them that

their conduct was legal.7 Hence, they assert, the convictions

should be vacated because the Government is estopped from

prosecuting them by reason of their entrapment into the illegal

activity.

The short answer to this contention is that the Defendants

have the burden of proof to establish at trial their defense of

estoppel by entrapment and they failed to do so. They had a full

opportunity to adduce any evidence they wished in support of that

defense, their counsel argued the defense to the jury, and the

district court gave instructions to the jury concerning the defense

(as to which there were no objections), and the defense was

ultimately submitted to the jury on a disputed record. The result

at trial was that the jury found for the Government. We conclude

7
It is to be noted that the record does not disclose that the
Defendants have ever made any specific claim that Ortiz told them
in so many words, that is, made an “affirmative representation,”
that their conduct was, or would be “legal.” Such an affirmative
representation has been held to be required as an element of the
estoppel by entrapment defense, to be proven by the Defendant.
United States v. Ellis, 168 F.3d 558, 561 (1st Cir. 1999). That
argument is not made by the parties here.

-9-
after a careful review of the trial record that the evidence is

sufficient to support that result.

In briefing on this appeal, the Defendants simply reargue the

factual aspects of the defense in juxtaposition to the Government’s

evidence that they, in fact, committed each of the charged

offenses. On a general theory, Defendants assert that all of the

evidence is insufficient to prove that they possessed specific

criminal intent to commit the offense. There is no claim made here

that evidence material to the defense was limited or excluded at

trial. It is not contended that the issues generated by the

defense were not submitted to the jury or that those issues were

taken away from jury consideration on the evidentiary record.

Moreover, it is not contended that there was any defect in the jury

instructions given by the Court in respect to the defense. The

thrust of the arguments as they are made can only be viewed as the

assertion of a claim that the Defendants established at trial the

defense of estoppel by entrapment as a matter of law. Review of

such a claim is plenary because “the issue is whether or not there

was sufficient evidence to support a theory of defense ....”

Caron, 64 F.3d at 715.

In order to establish the subject defense at trial, the

Defendants were required to establish that (1) a governmental

official told them their conduct was legal; (2) they relied on that

representation; (3) their reliance was reasonable in the

-10-
circumstances; and (4) given that reliance, prosecution for the

conduct is unfair. Ellis, 168 F.3d at 561; United States v. Smith,

940 F.2d 710, 715 (1st Cir. 1991).

Our careful review of this record convinces us that there is

no basis to conclude that the Defendants’ proof warranted the

acceptance of the defense as a matter of law. Clearly, the

evidence made, at best, issues of fact for a fact-finder to resolve

as to the viability of the defense.

Whether a reasonable fact-finder should be persuaded of the

validity of the defense depends entirely, in the circumstances of

this record, upon the resolution of any number of disputed issues

of fact and the determination of the credibility, in whole or in

part, of nearly every witness who testified at trial. These are

typical jury functions for the resolution of disputed questions of

fact.

The lynchpin for the resolution of the issue of the

Defendants’ intent is the determination of fact as to what Ortiz

told them (and what they understood) about the legal status of the

operation: either that it was an exercise in legitimate law

enforcement (as the Defendants contend) or that it was to be

assistance to a corrupt FBI agent in illegally transporting,

escorting, and safeguarding a shipment of contraband drugs for a

garden-variety civilian drug trafficker (as the Government

contends). A choice among these two alternatives resolves the

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issue of whether there is sufficient evidence to establish the

Defendants’ guilty intent.

All Defendants asserted in ambiguous language that they were

led to believe that the project was a covert or undercover police

operation. Ortiz and Pelaez testified that the Defendants were

told it was an illegal activity from the beginning. There is

abundant evidence in the record to support the Defendants’

convictions. It could be concluded that the Defendants were told

the operation was an illegal one and that the description and

circumstances of the project would have left them, as experienced

police officers, no room to reasonably believe that it was a

legitimate law enforcement effort. Further, the evidence supports

a finding that they knew, because told by Ortiz, that there would

be no arrest as a result of the seizure and transport of the

contraband, a strange circumstance for a legal police operation.

They were told that they were to be paid a sum of money (not less

than $4000) for their participation in the project that was far in

excess of the usual rate of compensation of line police officers

for an a couple of hours of official work. They were told the

ultimate amount of their compensation would depend upon the amount

of drugs transported by them. They were told that the money for

their compensation would come from the supposed owner of the drugs,

not from FBI funds. They were ultimately paid and accepted $5000

each for their efforts and the payments were made in cash at

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Ortiz’s apartment. The circumstances of their compensation and the

determination of the amount of it were, alone, forceful, persuasive

proof from which a reasonable jury could conclude that the

Defendants knew they were not participating in a legitimate police

operation and were a confirmation of Defendants’ culpable knowledge

and intent from the very beginning of their involvement in the

operation. That confirmation is entirely consistent with all of

the other evidence indicating the guilt of the Defendants.

We conclude that the defense was properly submitted to the

jury on unchallenged instructions, that no error occurred in that

respect, that the record amply supports the jury’s verdict and that

the Rule 29 Motion was properly denied.

B. The Weapons Charge-Count III

We assume the Defendants press the estoppel by entrapment

argument to attack the existence of specific intent on Count III,

but we find that position is without merit in the record. First,

the argument that Rodriguez never drew his sidearm overlooks

entirely that evidence in the record (that was undisputed) that he

was asked to carry a police-owned automatic rifle during the

transport and escort activities to discourage intervention by

others, and that he did, in fact, do so. This evidence, by itself,

is enough to permit a jury to conclude that Rodriguez had the

general knowledge and intent to carry a firearm during and in

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relation to his activity in the transport/escort as charged in

Count III.

The Government did not need to prove that Defendants

specifically intended to use or did use a firearm in the course of

the transport activity in order for a jury to convict them of the

Count III offense. The Government needed only to prove

individually their general intent, e.g., that they each knew that

they carried a firearm during the course of the drug offense

conduct, in order to lay a predicate in the evidence that was

adequate for their convictions on Count III. See United States v.

Brown, 915 F.2d 219, 225 (6th Cir. 1990). We find that the

evidence clearly supports the existence of that level of knowledge

by all three Defendants, beyond a reasonable doubt.

Defendants also advanced below the argument on the Rule 29

Motion, and reiterate it here, that the evidence was insufficient

to satisfy the “nexus” requirement of the violation charged in

Count III. This element of the possession offense is treated at

length in United States v. Grace, 367 F.3d 29 (1st Cir. 2004).

There we said that the current version of the statute does not

require the Government to show that the Defendant “actively

employed” the firearm “in furtherance of” the drug crime. Id. at

35. We held, however, that it must be shown in order to secure a

conviction that the Defendant has “possessed the gun to further the

drug crime.” Id. (emphasis added). In Grace, the underlying

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offenses were possession and distribution of drugs. The Court

there found that the possession of the gun was in furtherance of

the possession and distribution of the drugs. We said that the

“government must illustrate through specific facts, which tie the

defendant to the firearm, that the firearm was possessed to advance

or promote the criminal activity.” Id. (quoting United States v.

Lawrence, 308 F.3d 623, 630 (6th Cir. 2002)).

The evidence material to Count III of this Indictment can

properly be evaluated on the basis that the jury approached its

consideration of this Count having concluded that the Defendants

were guilty on Counts I and II. Once it is established that the

Defendants had the specific intent to engage in a conspiracy to

distribute drugs illegally and to participate actively in the

attempt to distribute them, the question becomes whether the

evidence established a “nexus” between that criminal conduct on

Counts I and II and possession by the Defendants of the firearms.8

As noted previously, in the case of Rodriguez, the existence

of such a nexus is transparently clear because he patrolled the

drug transfer site at Ortiz’s instructions with an automatic rifle

from the Defendants’ police cruiser. It was easily to be deduced

8
The evidence is overwhelming (indeed, it is undisputed) that
each Defendant personally carried at least one firearm during the
transport/escort activities. This evidence is clearly sufficient
to meet the requirement of specific facts which tie the Defendants
to the firearms. Grace, 367 F.3d at 35; United States v. Vazquez
Guadalupe, __ F.3d __, No. 02-2505, 2005 WL 1163678, at *1 (1st
Cir. May 18, 2005).

-15-
by the jury in the circumstances that the obvious intent of that

conduct was to discourage “intervenors” from interfering in the

transfer and escort of the drugs. That conduct was clearly “in

furtherance of” the transport and escort of the drugs.

The situation is little different in the cases of Villafane

and Pena even though they assert (and the record does not

contradict) that they never drew or used their sidearms in the

course of the transport/escort activity. As noted above, the

brandishing or use of firearms is not a necessary element of the

Count III offense. Grace, 367 F.3d at 35. The evidence supports

the conclusion that the sole and mutually understood purpose of

Defendants’ participation in the activity as law officers was to

prevent, by their presence, other drug dealers or other

legitimately motivated police officers from interfering in and

disrupting the transport of the drugs. It is obvious that the

presence of the guns, displayed in the open, by the Defendants as

active participants in the illegal activity, would have a tendency

to discourage interruption of the transport by other persons and

was intended by the Defendants to do so. Further, it could be

fairly inferred by the jury that potential intervenors would likely

also bear arms and that the presence of the Defendants’ firearms in

open view would disabuse any potential intervenor of any thought

that he would enjoy a superiority of force in intervening in the

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situation. The possession of the firearms did, as intended by the

Defendants, “further” the illegal drug trafficking activities.

We are satisfied, viewing the evidence in the light most

favorable to the prosecution, that this record clearly justifies

a rational jury in concluding, beyond a reasonable doubt, that all

of the Defendants possessed their firearms at the time of the

transport/escort activity in order to further the successful

execution of the illegal drug trafficking activity in question.

The possession was “in relation to” that activity. Id. The

verdict on Count III is supported in the record as to all three

Defendants, and the Rule 29 Motion was properly denied.

IV. THE CHALLENGES TO THE ELEMENTS OF SENTENCE

Defendants raise on appeal three distinct issues of substance

in respect to their sentences: (1) that Apprendi v. New Jersey, 530

U.S. 466 (2000), Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005) require a remand for

resentencing in light of the non-mandatory status of the United

States Sentencing Guidelines; (2) that the district court committed

errors in imposing on Defendant Villafane a condition of supervised

release requiring that he submit to searches by his supervising

officer while on his term of supervised release; and (3) that the

district court erred in the structure of the condition of

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supervised release imposed on Defendants Pena and Villafane in

respect to the frequency of their submission to drug testing.9

A. The Blakely/Booker Challenges10

The record makes it clear that in determining all of these

sentences the district court followed the analytical regime in

place before rendition of the decision in Booker. It is to be

presumed and it is, in fact, clear from the record that the

District Judge considered herself required to determine and impose

sentences as established by the Sentencing Guidelines. It is

equally clear that in working out the necessary guideline

determinations, she made several findings of fact critical to the

9
Defendants Pena and Rodriguez also raise issues concerning the
district court’s application of Guidelines § 3C1.1 (obstruction of
justice), § 3B1.3 (abuse of position of public authority), and §
3E1.1 (acceptance of responsibility). We have carefully reviewed
these claims, which were forfeited below, United States v.
Antonakopoulos, 399 F.3d 68, 76 n.7 (1st Cir. 2005), for the
existence of plain error. United States v. Olano, 507 U.S. 725,
733 (1993).

We find that on the records made below at trial and in the
sentencing proceedings these claims of error are facially without
merit and that no semblance of error, plain or otherwise, exists in
the district court’s findings in support of its application of the
subject Guidelines. These claims do not warrant any detailed
discussion. It suffices to say that the record contains abundant
evidence to support the conclusions that Pena obstructed justice by
his testimony at trial, both Pena and Rodriguez abused a position
of public trust and authority by participating in a drug
trafficking transaction as uniformed police officers, and that
neither was entitled to receive a reduction in the offense level
because they had truly accepted responsibility for their acts.
10
This analysis tracks closely that set out in the case of
United States v. Bailey, 405 F.3d 102 (1st Cir. 2005).

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determination of the extent of the final sentences which were not

within the scope of jury findings in determining the guilt of the

Defendants and which were not admitted by the Defendants. It is

also clear that she made those findings upon application of the

preponderance of the evidence standard.

There is now no room for doubt that sentences based upon a

predicate of mandated compliance with the requirements of the

Sentencing Guidelines do not now pass constitutional muster. The

sentences imposed on these Defendants do not comply with the

holding of Booker in that respect.

The Defendants did not, however, object to their sentences on

Sixth Amendment grounds in the district court.11 Because Defendants

11
None of the Defendants made any attack on the sentences in
the district court on Sixth Amendment or other constitutional
grounds. Such an assertion of error was first made under Blakely
by Defendant Rodriquez in his second amended brief filed on July
20, 2004, while this case was pending for argument on this appeal.
Defendant Villafane made his first assertion of a Blakely error in
his Supplemental Brief of Appellant filed on August 18, 2004. Pena
did not challenge the constitutionality of the Sentencing
Guidelines or assert the existence of error under Apprendi in
either the district court or in the first round of briefing on this
appeal.

Thereafter, on January 12, 2005, while this case was under
advisement, the Supreme Court decided Booker, confirming the
application of the holdings in Apprendi and Blakely to sentences
imposed under the United States Sentencing Guidelines. This Court
then entered on March 8, 2005, its standard order in such cases
inviting the briefing of any claims made under Booker and its
antecedent authorities. All three Defendants thereafter filed
supplemental briefs asserting the existence of Booker error and the
government has responded to those assertions by its own
supplemental brief.

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made no arguments in the district court concerning the

constitutionality of the Guidelines or the application of the

Guidelines to their sentences under Apprendi, we review only for

plain error.12 See Antonakopoulos, 399 F.3d at 76.13

Under the four-part plain error test outlined in Olano, we

grant relief only if we find (1) an error, (2) that is plain, and

that not only (3) affected the defendant’s substantial rights, but

also (4) “seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” Antonakopoulos, 399 F.3d at

77 (quoting Olano, 507 U.S. at 736). The Defendants bear the

burden of persuasion with respect to all four elements of the test.

See United States v. Gonzalez-Mercado, 402 F.3d 294, 302 (1st Cir.

2005) (citing Antonakopoulos, 399 F.3d at 77).

The first two prongs are satisfied here because the district

court treated the Guidelines as mandatory at sentencing. See

Antonakopoulos, 399 F.3d at 77. To meet the third prong of the

12
The Defendants could not have challenged in the district
court on the basis of Blakely because that decision had not been
issued at the time of imposition of the sentences.
13
We reject any suggestion that Defendants’ initial challenges
at sentencing were sufficient to preserve the issue of the
constitutionality of the Sentencing Guidelines for plenary review.
Although we treat “almost any colorable claim” as preserving Booker
error, see United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005), here it is clear that the objections at sentencing in the
court below were directed solely to the sufficiency of the evidence
supporting the district court’s findings in determining the Total
Adjusted Offense Level.

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test Defendants must show a “reasonable probability” that the

district court would impose a more favorable sentence to the

Defendants under the now “advisory” Guidelines. Id. at 75. “[W]e

are inclined not to be overly demanding as to proof of probability

where, either in the existing record or by plausible proffer, there

is reasonable indication that the district judge might well have

reached a different result under advisory guidelines.” Heldeman,

402 F.3d at 224; accord United States v. Vega Molina, No. 03-1625,

2005 WL 1177221, at *19 (1st Cir. May 19, 2005).

Each Defendant has failed to present us with any argument of

substance regarding the probability of a sentence reduction on

remand in his case. Rather, they invite us to disregard

Antonakopoulos and accept a per se remand rule in every case where

a Booker error occurs. They argue that we should presume that the

district court would have analyzed the case differently were it not

for the mandatory nature of the Guidelines. That position was

squarely rejected in Antonakopoulos.

We decline the Defendants’ invitation to ignore

Antonakopoulos. Absent unusual circumstances not present here,

panels of this court are bound by prior circuit decisions. See

United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002).14

14
To the extent Defendants seek to distinguish their case from
Antonakopoulos, the effort is unpersuasive. The district court in
Antonakopoulos faced a set of sentencing issues nearly identical to
those presented here. See Antonakopoulos, 399 F.3d at 82 (noting
that the district court had made no less than three factual

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Because Defendants have entirely failed to “advance any viable

theory as to how the Booker error” prejudiced their substantial

rights,15 and because we find nothing in the record to “suggest a

findings resulting in sentence enhancements beyond that authorized
by the jury verdict and also denied a request for a downward
departure).
15
Pena’s only suggestion of a basis for remand is that “[i]n
the instant case, all enhancements could have been disputed in a
different light as they were not mandatory.” Supplemental Brief
for Appellant [Pena], at 15. This is far from a showing, to a
reasonable probability, that on remand the district court would, in
fact, impose a lesser sentence, especially in light of the fact
that Pena presented his arguments on the enhancements at the
original sentencing and they were considered by the district court.
Even though on remand the Guidelines would be “advisory,” no basis
is shown by Pena to believe it to be reasonably probable that a
sentence on remand would actually be more favorable to him.

Villafane likewise makes no showing of reasonable probability
of a more favorable sentence on remand, arguing instead that
“neither the defendant nor this court will be able to know whether
the District Court, knowing [that] the Guidelines now are not
mandatory would apply the sentencing factors set forth ... [in 18
U.S.C. §3553(a)] and determine the same or a lower more reasonable
and appropriate sentence.” Supplemental Brief for Appellant
[Villafane] on “Booker” Errors, at 5. However, absent any
demonstration of some reason to believe it probable that on remand
a lower sentence would actually result, this is nothing more than
an argument for the per se remand rule on occurrence of a Booker
error, expressly rejected in Antonakopoulos. A suggestion of the
possibility of a favorable sentence is not a showing of a
reasonable probability of a more favorable sentence on remand as is
now required. Bailey, 405 F.3d at 114.

Rodriquez argues, in the face of the contrary holdings in
Antonakopoulos and Bailey, that “a Sixth Amendment Booker error is
a structural error as one in which prejudice ought to be presumed.”
Supplemental Brief Pursuant to Invitation by the Court (Rodriguez),
at 6 (unnumbered). He suggests that on remand the district court
could consider more favorably the factors put forth at sentencing
in respect to Defendant’s absence of any criminal record, an
allegedly unblemished police service record, a good reputation in
the community, and his alleged acceptance of responsibility. Id.

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basis for such an inference,” we deny the requests to remand for

Booker-error. Gonzalez-Marcado, 402 F.3d at 303.

B. Pena’s Claim of Sentencing Manipulation

Pena’s contention in respect to a claim of sentencing

manipulation must be addressed, however, as it is external to the

district court’s determination of his sentence.

Pena asserts that he is the victim of sentencing factor

manipulation because the Government devised and controlled the

performance of the sting operation that snared him.16 We have said

that sentencing factor manipulation occurs “when a ‘defendant,

although predisposed to commit a minor or lesser offense, is

at 8 (unnumbered). However, he made no showing that it is
reasonably probable that the district court would, in fact, reduce
the sentence on remand in light of these factors, all of which were
considered at the original sentencing.

It is far from necessarily true, ... that a judge who
found the facts underlying an enhanced sentence would
have reached a different result under a post-Booker
regime .... The use of judicial factfinding, then,
ordinarily cannot alone meet the ‘reasonable probability’
standard of the third Olano prong.

Antonakopoulos, 399 F.3d at 79-80.
16
The Government suggests in brief that Pena has waived this
issue by not raising it in specific terms at the time of imposition
of sentence. We find no waiver. Defendant raised the issue in
objections to the Pre-Sentence Report, and the district court
noticed the issue in its Order of February 6, 2003, ruling on the
objections and overruling all of them. Order (Docket Entry No.
198). Pena, in allocution at the time of imposition of sentence,
argued to the Court that the Government had engaged in misconduct
in allegedly entrapping him into committing the offenses of
conviction.

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entrapped in committing a greater offense subject to greater

punishment.’” United States v. Woods, 210 F.3d 70, 75 (1st Cir.

2000) (quoting United States v. Staufer, 38 F.3d 1103, 1106 (9th

Cir. 1994)). We have very recently limned the nature of conduct

necessary to establish sentencing factor manipulation. We said:

Sentencing factor manipulation occurs where law
enforcement agents venture outside the scope of
legitimate investigation and engage in extraordinary
misconduct that improperly enlarges the scope or scale of
the crime. A manipulation claim can be established by
showing that the agents overpowered the free will of the
defendant and caused him to commit a more serious offense
than he was predisposed to commit.

United States v. Barbour, 393 F.3d 82, 86 (1st Cir. 2004) (internal

citations omitted). We have also acknowledged that a sentencing

court can depart from the Guidelines and statutory minimums based

on sentencing factor manipulation if the Defendant shows that the

Government has engaged in extraordinary misconduct in bringing

about the commission of the offense. United States v. Montoya, 62

F.3d 1, 4 (1st Cir. 1995); United States v. Gibbens, 25 F.3d 28, 31

(1st Cir. 1994).

We review for clear error the district court’s denial of

Pena’s objection on this point. Gibbens, 25 F.3d at 30. There is

no merit to Pena’s claim. The evidence shows that the Government

afforded Pena an opportunity to commit the crimes of conviction,

and that he, being predisposed to do so, readily entered into the

criminal acts proposed by the Government: conspiracy, attempt to

distribute cocaine, and carrying a firearm in relation to a drug

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trafficking offense. The Government did not expose Pena to any

lesser offense involving a lesser punishment than that applicable

to the offenses of his conviction and then later attempt to entice

him into more seriously punishable conduct. The Government’s sole

effort is shown by the evidence to have been to provide an

opportunity to Pena to commit the very offenses of which he stands

convicted. Accord Vazquez Guadalupe, 2005 WL 1163678, at *7.

There is no evidence whatsoever that the Government attempted to

escalate the seriousness of the conduct involved in the offense as

originally proposed. The Government offered an occasion for a

single transaction: a drug transport/escort while armed. Pena

committed the crime he was predisposed to commit. The criminal

conduct was not exacerbated beyond the elements of the baseline

offenses in the course of the execution of the offenses by Ortiz

nor was the conduct otherwise prolonged.17 There was no pressure

put on Pena, despite his assertions to the contrary at sentencing,

17
The evidence does not support any argument that the Count III
firearm offense came about because of any sentence manipulation by
the Government. The opportunity provided by the Government was for
Pena to participate as a police officer in the conduct. As noted
in text, he was not required to carry his sidearm though it was
assumed by Pelaez and Ortiz that he would do so. He understood and
willingly shared in and indulged the assumption. He was asked to
patrol the scene of the transport/escort with a rifle and again
willingly did so without any need to persuade him to do so. This
was all carried out within the usual role of a police officer
acting in his official capacity. As such, the conduct was within
the context of the three offenses he was given the opportunity to
commit. There was no effort to worsen the sentencing consequences
of the three offenses. He committed only the crimes he was
predisposed to commit.

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to engage in the conduct of which he stands convicted. Further,

there is absolutely no evidence in the record of illegitimate

motive on the part of Ortiz as an undercover agent or of misconduct

in his relations as a Government agent with Pena. The district

court’s denial of the objection was properly grounded in the

record.

C. The Conditions of Supervised Release

Two other points involve the question of whether the Court

erred in imposing on each of these Defendants two special terms of

supervised release.

(1) The Search Condition

In supplemental briefing on appeal, Villafane has challenged

(for the first time) the district court’s imposition of a search

condition as part of his supervised release requirements. We need

not address whether the condition satisfies the requirements of

United States v. Giannetta, 909 F.2d 571 (1st Cir. 1990). The

issue is forfeit, and does not amount to a miscarriage of justice

meriting our discretionary review. See Olano, 507 U.S. at 736.

(2) The Drug Treatment Condition

Pena asserts on appeal for the first time that the district

court erred when it delegated to the Supervisory Probation Officer

by the terms of a condition of supervised release the decision to

order him to attend a drug treatment program if he failed a drug

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test. Villafane belatedly joined in the assertion of this claim in

his “Supplemental Brief” of August 18, 2004.

Our review of both claims would be for “plain error.” Here,

however, the Government concedes that the imposition of the

condition constitutes error under United States v. Melendez-

Santana, 353 F.3d 93, 101-02 (1st Cir. 2003), and agrees that “the

challenged drug treatment condition should be vacated and remanded

for re-sentencing.” Government’s Br. at 48. We accept, in the

absence of any objection, the Government’s concession.18 The

district court will reconsider the structure of this condition if

it is imposed in any new sentence of any Defendant. See United

States v. Ayala-Pizarro, No. 04-1038, 2005 WL 1119755, at *4 (1st

Cir. May 12, 2005) (“A remand to correct a delegation error as to

conditions of supervised release does not open up any other aspect

of a sentence for resentencing.”).

V. ORDER

For the foregoing reasons, the conviction of each of the

Defendants herein is AFFIRMED, and the sentence of each Defendant

18
We note that the same drug treatment condition was also
imposed on Defendant Rodriguez. Because the government concedes
the district court’s error, and in accordance with the principles
of Vazquez Guadalupe, we remand the sentences of all three
defendants to the district court to address this issue. Vazquez
Guadalupe, 2005 WL 1163678, at *3 (“In light of the government’s
concession in the companion case, we will also remand the
supervised release portion of Pacheco-Diaz’s sentence for the
limited purpose of determining whether he was similarly sentenced
in error and, if so, for correction of that error.”).

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is AFFIRMED, except for that portion of each Defendant’s sentence

pertaining to the drug treatment condition as a term of supervised

release. The sentence of each of these Defendants is VACATED and

REMANDED for resentencing consistent with this opinion only as to

imposition and structure of the drug treatment condition.

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