United States v. Gomez-Rosario

United States Court of Appeals
For the First Circuit

No. 03-2719

UNITED STATES,

Appellee,

v.

FERNANDO GÓMEZ-ROSARIO,

Appellant, Defendant.

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

[Hon. Daniel R. Domínguez, U.S. District Judge]
[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Andrew Nathanson, with whom Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo, P.C. was on brief, for appellant.
Germán A. Reickehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, were on brief, for appellee.

August 12, 2005

_________________________
* Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Following a jury trial, defendant

Fernando Gómez-Rosario ("Gómez") was acquitted of conspiring to

import heroin, see 21 U.S.C. §§ 952(a), 963, but convicted of

conspiring to possess heroin, see 21 U.S.C. §§ 841(a)(1), 846. The

district court subsequently sentenced the defendant under the

mandatory guidelines to 121 months in prison and three years of

supervised release. On appeal, Gómez asserts, inter alia, (1) that

the district court1 violated his Sixth Amendment rights by denying

his request to proceed pro se, (2) that the court's instructions to

the jury constructively amended the indictment in violation of the

Fifth Amendment, (3) that there was insufficient evidence to

support his conviction, (4) that the delay between his arrest and

the filing of the superseding indictment violated his

constitutional rights, and (5) that he should be resentenced in

light of United States v. Booker. Although the first claim poses

important questions regarding the right of self-representation and

the appointment of standby counsel, we ultimately conclude that

1
We refer throughout this opinion to "the district court," a
generic term which might suggest that a single judge presided over
all the proceedings that culminated in this appeal. That is not
the case. At least three different district court judges, and an
array of magistrate judges, have been involved in different stages
of this case. Judge Domínguez handled the October 2001 and March
2003 motions to proceed pro se that are discussed in Section II.A.,
while Judge McAuliffe presided over the first trial, which ended in
a judgment of acquittal on two counts and a mistrial on one count,
and Judge Singal presided over the second trial, which resulted in
Gómez's conviction for conspiracy to possess drugs with intent to
distribute. Only rulings of Judge Domínguez and Judge Singal are
at issue in this appeal.

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Gómez’s right to conduct his own defense was not violated in this

case. The second, third and fourth claims are also without merit.

Concluding that Booker error was present here, however, we remand

for resentencing.

I.

We turn to the trial record for the following background,

presenting the facts in the light most favorable to the verdict.

See Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 229 (1st

Cir. 2005).

A. The heroin transaction

On April 21, 2000, customs agents intercepted Eugene

Sarruco at the airport in Carolina, Puerto Rico following his

arrival on a flight from Curacao. Suspecting that Sarruco was a

drug courier, the agents took him to the airport's medical facility

where he was arrested after passing five pellets of heroin, each

containing slightly less than eight grams of heroin.

Sarruco told agents that he had ingested eighty-five

heroin pellets2 and carried them to Puerto Rico on behalf of a drug

dealer in Curacao named Andrés Hueck. Upon his arrival in Puerto

Rico, Sarruco was under instructions to go to the Hotel San Jorge

or the Hotel Iberia. The buyer -- whose identity Sarruco did not

2
Sarruco expelled the remaining eighty pellets at the San Juan
Health Center under the supervision of two customs agents. In
total, he carried approximately 678 grams of heroin.

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know -- would meet him at the hotel with a bottle of laxatives and

pick up the heroin in exchange for $7,000.

With Sarruco's cooperation, the agents set up a

"controlled delivery" of the heroin pellets. They had Sarruco call

Hueck with a message that he was in Room 209 at the Hotel Iberia.

Hueck told Sarruco that someone would be coming, presumably to pick

up the heroin. Agent Luis Carmona, who was enlisted to act

undercover as Sarruco's stand-in, took the five pellets that

Sarruco had expelled to Room 209 of the Hotel Iberia. Agent

Carmona put one of the pellets in a drawer in the night stand and

put the other four pellets, wrapped in toilet paper, in a dresser

drawer. Other agents set up audio and video surveillance of Rooms

209 and 210, as well as surveillance outside the hotel.

Sometime after 4 p.m. on April 21, 2000, Gómez drove up

to the Hotel Iberia in a green Ford Windstar. He parked the van,

leaving two passengers inside, and went into the hotel. A Datsun

parked in front of the van, and its driver also went inside the

hotel. When the Datsun's driver returned, two agents detained him

for questioning until a third agent exited the hotel, yelling that

they had the wrong person and that the man in the room was the

driver of the green van. One of the passengers in the van jumped

into the front seat and drove away. The agents pursued the van to

a dead end street, where the van's passengers fled on foot. Upon

searching the van, the agents found a loaded gun in plain view

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between the front seats. They also seized a rental agreement

listing Fernando Gómez as an "additional renter."

In the meantime, Gómez arrived at Room 209 of the hotel,

where Agent Carmona was waiting pursuant to the instructions that

Hueck had given Sarruco. Carmona, posing as Sarruco, invited Gómez

inside and gave him the four pellets wrapped in toilet paper. When

Gómez asked Carmona how many he had swallowed, he responded eighty-

five. Carmona told Gómez that he was having trouble expelling the

remaining pellets. Gómez told him that he needed a laxative and

offered to get him one. Gómez then placed the pellets back in the

dresser drawer. Carmona went into the bathroom, ostensibly because

he was having stomach cramps. Another agent, who had been hiding

in the closet, then came out and arrested Gómez.

B. Legal proceedings

1. First indictment

On May 3, 2000, a grand jury returned a three-count

indictment against Gómez and Sarruco. Count One charged them with

aiding and abetting the importation of approximately 975 grams of

heroin into the United States in violation of 21 U.S.C. §§ 952(a)

and 963. Count Two charged the defendants with aiding and abetting

the unlawful possession with intent to distribute approximately 975

grams of heroin in violation of 21 U.S.C. § 841(a)(1). Count Three

charged Gómez with possessing a firearm in furtherance of a drug

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crime (specifically, possession of heroin with intent to

distribute) in violation of 18 U.S.C. § 924(c)(1)(A).

Gómez went to trial on February 19, 2003.3 The

government presented several witnesses, including Sarruco and Agent

Carmona, and played the audio and video surveillance tapes of

Gómez's interaction with Agent Carmona. Gómez rested without

presenting any evidence. At the close of evidence, he moved for a

judgment of acquittal on all counts. The district court granted

the motion as to Counts Two (possession of heroin with intent to

distribute) and Three (possession of a firearm). With respect to

Count Two, the court reasoned that Gómez did not exercise dominion

and control over the drugs when he briefly inspected them in the

hotel room, nor had he aided and abetted Sarruco's possession of

drugs because the two did not have a prior relationship. Because

Count Three alleged possession of a gun in furtherance of the crime

of drug possession, it necessarily turned on Count Two. Count One

(importation) went to the jury, which could not agree on a verdict.

The court declared a mistrial and ordered the case to be reset for

trial.

2. Superseding indictment

Instead of retrying Gómez on the importation count, the

government obtained a two-count superseding indictment on March 12,

2003. Count One charged Gómez with conspiring to import into the

3
Sarruco pled guilty before the trial.

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United States approximately 975 grams of heroin in violation of 21

U.S.C. §§ 952(a) and 963. Count Two charged Gómez with conspiring

to possess with intent to distribute approximately 975 grams of

heroin in violation of 21 U.S.C. §§ 841(a) and 846.

The charges in the superseding indictment were tried

before a jury in June 2003. The government presented substantially

the same evidence that it had offered during the first trial. The

defense presented two witnesses, Gómez and his mother, neither of

whom had testified at the first trial. Gómez testified to an

alternative version of events on the afternoon of his arrest.

According to his testimony, he went to the Hotel Iberia on April 21

to visit a woman named Bonnie whom he met the previous night while

out with friends. He knocked on the door of Room 209 believing

that it was Bonnie's room, and was surprised when a male (Agent

Carmona, posing as Sarruco) emerged from the room. As soon as

Gómez entered the room, the man told him that he was not feeling

well and began to rub his stomach. Gómez asked the man if he was

all right. The man responded that he needed something to help him

"evacuate," and Gómez asked if he meant a laxative. The man then

handed Gómez a package (the four heroin pellets wrapped in toilet

paper), which Gómez put down without looking at its contents.4

4
Gómez's testimony on this point is inconsistent with the
account offered by Agent Carmona, who testified that Gómez looked
through an open end of the package before putting it down and then
asked how many he had swallowed. Based on such inconsistencies,
the court found at sentencing that "the defendant . . . perjure[d]

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After saying that he had been in pain for several hours, the man

excused himself to use the restroom and Gómez was arrested.

Gómez's mother testified regarding her relationship with Gómez and

her contact with him in the week leading up to his arrest.

After approximately seven hours of deliberations, the

jury found that Gómez was not guilty as to Count One (conspiracy to

import) but guilty as to Count Two (conspiracy to possess with

intent to distribute). In response to a question on the jury

verdict form, the jury decided that the amount of heroin involved

was less than 100 grams.

On November 4, 2003, the district court sentenced Gómez

to 121 months in prison, the bottom of the applicable guidelines

range, and three years of supervised release.

II.

A. Request for Self-Representation

It is well-settled that the Sixth Amendment encompasses

a right to self-representation by criminal defendants. See Faretta

v. California, 422 U.S. 806, 814-17 (1975). A criminal defendant

has the right to "conduct his own defense, provided only that he

knowingly and intelligently forgoes his right to counsel and that

he is able and willing to abide by rules of procedure and courtroom

protocol." McKaskle v. Wiggins, 465 U.S. 168, 173 (1984).

himself during trial when he was claiming that he was at the hotel
to find this unknown female in an unknown room. I find that in
fact he went to the hotel to pick up the drugs."

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 1. History

To set Gómez's Sixth Amendment claims in context, we

begin by reviewing the history of his representation in this case.

By April 2002, some two years after he was arrested and

nine months before his first trial, Gómez -- though represented by

counsel -- had already filed more than two dozen pro se motions,

many of them long, confusing, contradictory, and devoid of merit.

Denied bail early on, he nonetheless continued to seek release on

bail. He sought mandamus against the government several times. A

number of motions repeatedly sought dismissal of the indictment on

fanciful theories or claims of misconduct. One, for example, was

captioned "Motion to dismiss the indictment based on some or all

the violation committed by the government against federal and state

laws and defendants constitutional rights or for appeal." Other

motions asked the court to explain why it had denied earlier

motions or to reconsider the denials and rule in his favor. He

thus filed repetitive motions on subjects already ruled on.

Further, some of Gómez's filings were not motions in the

proper sense, but instead rants directed at the district court and

attorneys for both sides. On July 31, 2001, for example, Gómez

submitted a motion entitled "Motion to set time and place for the

trial," in which he argued that his trial should be held in Florida

"due to all the complecety and friendship that there is between

attornney and U.S. Attorneys" and because "it is the law that the

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personal wishes or convenience of the judge are not factor to be

considered in determining the proper place of trial." And on

August 29, 2001, Gómez filed a motion entitled "Pro-se motion

claiming duprocess violation by the court by dismissing defendant's

pro-se motion under not justifiable grond, after the defendant

being wheting way over two month for this honorable court to rules

up on those motion."

On April 12, 2002, Gómez asked the court to permit his

then-counsel Bruce McGiverin to withdraw so that he could proceed

pro se. The court agreed, but in order to minimize pro se motions

that were so incomprehensible as to be a "total waste of time" for

the court, the court appointed McGiverin as standby counsel and

told him to read Gómez's pro se motions, "advis[e] the court what

motions you as a professional would adopt," and offer Gómez

drafting advice. The court stated that regardless of McGiverin's

opinions, Gómez would be free to file the motions, which would then

be filtered by a magistrate judge.

After the April 12, 2002 order, Gómez filed several dozen

more pro se motions, including many after he retained a new counsel

of record, Linda George, and despite the fact that his various

counsel had filed all of the customary discovery and other motions.

These new pro se motions were confusing and many were meritless.

On May 14, 2003, for example, Gómez filed an eight-page, single-

spaced motion, accompanied by a four-page affidavit, asking that

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the case be dismissed for "double jeopardy" (of which there was

none). The motion stated that "even knowing" that Gómez's

affidavit was based on government perjury, "the District Court

. . . has desregarded and/or ignored the matter by not holding a

hearing as to the issue."

We quote such passages not to make light of Gómez's

motions, but to emphasize the difficulties they created for the

district court. The court received dozens of such filings over a

three-year period, many of them quite long and packed with muddled,

contradictory, meritless legal argument. Each needed a response

from the court, and many led to hearings, not to mention

appearances by counsel and replies from the government. Despite

the burden Gómez's pro se motions imposed, the district court did

not treat them lightly. It ruled on many of them, denying the vast

majority but allowing some. Most of those it found to have merit

had to do with Gómez's various requests for dismissal of his

lawyers, for extensions of time, and for transcripts of previous

hearings.

By May 2003, the defense had filed more than 95 motions,

the majority of which were pro se. One such pro se motion, which

Gómez filed on March 28, 2003, sought the withdrawal of his then-

counsel George. The court held a hearing on Gómez's motion on May

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22, 2003.5 The court first informed Gómez that it would not allow

George to withdraw and to be replaced by a court-appointed attorney

because Gómez had not offered a valid reason for his

dissatisfaction with George.

George suggested that Gómez proceed pro se while she

acted as standby counsel. The court initially rejected that

proposal, noting that it had made a similar arrangement with

McGiverin but that "there were a considerable [number] of motions

that were filed that were either thoroughly out of bounds or were

simply not indicated for this type of case. So therefore, I have

to stop him. There is a moment when the court has to stop

receiving all those motions." After several more exchanges, the

court agreed to allow Gómez to proceed pro se with George acting as

standby counsel. The court explained the duties it assigned to

George, now acting as standby counsel:

Court: [T]he first thing I have to ask you is to examine
all the motions that he's filed [pro se], and to see
which ones you're going to adopt. And then adopt them
. . . by doing a refiling. The court . . . will not

5
Gómez cites the two-month interval between the filing of his
motion and the hearing as evidence of the district court's
"indifference to the defendant's assertion of an absolute Sixth
Amendment right." This claim is manifestly unfair to the district
court, which expended a great deal of effort in attempting to
accommodate Gómez. Moreover, there was good reason for the delay.
Shortly after Gómez filed his motion, the district court judge
temporarily recused himself from the case and reassigned all
pending motions to a magistrate judge. The magistrate promptly
issued an order giving George an opportunity to respond to the
motion to withdraw, and scheduled the hearing a month later, by
which point the district court judge had returned to the case.

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 authorize his participation pro se unless you do a
screening of the motions.
George: I will, Your Honor. I'll go over every one.
Court: That's the only way I'm going to permit it. Pro
se is out of the question. It's out of the question
because you cannot handle what is appropriate. You don't
know enough law, what is appropriate for a case. And you
keep filing motions that are totally out of bounds with
the facts and with the law. . . . I'm not going to have
the U.S. Attorney answer some of these motions that I
understand are totally out of bounds.
George: I will review those and I'll refile them.
Court: Refile those that you understand, that you . . .
as a member of the court deem to be applicable to this
case. And I urge that you use your discretion as a
lawyer and your reputation as a lawyer before this court.
That's all I have to say. I feel totally at ease if you
do that.
George: Okay.
Court: All right. And that's the only way I'm going to
allow you to represent yourself in this case. That's it.
Gómez: Your Honor, if that's what you want, I mean --
Court: It's not what I want. This is what the court must
do, considering the history of motions that have been
filed in this case.
Gómez: Your Honor, but the thing is most have been filed
because they need to be filed. Any of the motions --
Court: As long as they are reviewed by counsel, I have no
problems.

The court thus allowed Gómez to proceed pro se but imposed the

condition that George review motions written by Gómez and refuse to

file those that were, in the court's words, "totally out of bounds

with the facts and with the law."

Following the May 22 hearing, Gómez participated fully in

jury selection. Trial then began before a different district court

judge. Before the jury was sworn in on the trial's first day,

there was some confusion as to Gómez's status. The judge indicated

that he thought Gómez was proceeding with counsel. However, Gómez

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and George quickly clarified that the May 22 order allowed Gómez to

represent himself. Gómez told the court, and George verified, that

"I was supposed to be represented by myself, pro se." He went on

to explain that "Mr. Domínguez, the judge . . . addressed the

matter and he decided for me to be represented by myself with Linda

George as helping counsel. I was permitted to address the court."

After hearing this, the judge questioned Gómez to confirm that he

had knowingly and voluntarily waived the right to counsel.6 The

judge then agreed that Gómez could represent himself, and noted

that George was standby counsel "in the event that [Gómez] ha[s]

questions or any information [he] need[s] from her." When it came

time for Gómez to deliver his opening statement, however, Gómez

informed the trial judge that he did not have a statement prepared.

The judge told Gómez that he could make (or waive) the statement

6
Before concluding that the waiver of the right to counsel was
knowing and voluntary, the trial judge took great pains to ensure
that Gómez had "a sense of the magnitude of the undertaking,"
Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 1976). For
example, the judge warned Gómez:

I think it is unwise of you to try to represent yourself.
You are not familiar with the law in spite of what you
think. You are not familiar with court procedure . . .
and you are not familiar with the Rules of Evidence in
spite of what you think. This is a very serious set of
charges. If you represent yourself, you're going to be
bound by the result and you can't come back to me later
and say, 'Gee, I made a horrible mistake and now, I think
I ought to do it all over again with an attorney. I urge
you strongly, in the strongest possible terms, because I
think you are making a big mistake, not to try to
represent yourself.

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himself, retaining his pro se status, or allow George to make the

statement, relinquishing his pro se status. Faced with waiving his

opening statement, Gómez allowed George to take over his

representation.

Although George represented Gómez at trial, Gómez

continued to file pro se motions after the trial pursuant to the

guidelines set forth in the court's May 22 order, i.e., screening

by George. Gómez was also permitted to participate actively in a

post-judgment motions hearing on August 27, 2003.7 As the court

explained at the hearing, "[y]ou're authorized to speak to the

court. . . . One thing is to speak to the court and another is to

be filing motions. Two totally different things." With the

court's permission, both Gómez and his counsel participated at his

sentencing hearing on November 4, 2003.

2. October 2001 motion to proceed pro se

Gómez first argues that the district court erred in

handling his October 2, 2001 motion to remove his then-counsel

McGiverin8 and to proceed pro se. Specifically, Gómez maintains

7
The August 27, 2003 hearing involved another change of
counsel. Gómez had filed a civil suit against George, creating a
conflict of interest between the two. The court concluded that in
light of the conflict of interest, it had to allow George to
withdraw. The court again agreed to let Gómez "proceed pro se with
standby counsel" subject to a limitation that "standby counsel is
the only person authorized to sign motions," and appointed attorney
Miriam Ramos Grateroles as the standby counsel.
8
Gómez claimed that McGiverin would not file motions that
Gómez believed were necessary to his defense and to preserve his

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that the court did not comply with its duty to determine whether

the motion constituted a valid waiver of his right to counsel and

that, instead, the court "effectively ignored the motion, failing

to conduct a hearing on it for more than six months" and then

rejected the motion "out of hand."

Gómez's account of these proceedings does not square with

the record. The court did not "effectively ignore[]" Gómez's

motion to proceed pro se. To the contrary, the court scheduled a

hearing on the motion for October 15, 2001, two weeks after it had

been filed. The hearing had to be rescheduled, however, after the

United States marshals informed the court that Gómez was out of

control, exhibiting violent behavior and expressing ill will toward

his mother and his lawyer. Faced with this information, together

with the fact that McGiverin was the fifth attorney that Gómez

fired or sought to have removed, the court concluded that it had

"no other alternative but to order [Gómez's] psychiatric evaluation

immediately." Such an evaluation was entirely appropriate under

the circumstances, see Godinez v. Moran, 509 U.S. 389, 400 (1993)

(noting that a court must determine that a defendant seeking to

waive counsel is competent), and Gómez does not contend otherwise.

The sealed psychiatric examination was filed with the

court on February 1, 2002. On February 15, 2002, the court issued

a sealed order finding the defendant competent to stand trial. The

appellate rights.

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court subsequently granted a motion by Gómez to discuss his legal

representation, scheduling a hearing for April 12, 2002. At the

April 12 hearing, the court expressed concern about Gómez's ability

to represent himself effectively, noting that he had "fill[ed] this

record with totally incoherent motions, which are contradictory and

taken totally out of context." Nevertheless, the court granted

Gómez's motion to proceed pro se, subject to a requirement that he

have standby counsel.9

A court may appoint standby counsel even over the

defendant's objections. See United States v. Kneeland, 148 F.3d 6,

13 (1st Cir. 1998) (noting that "a trial court may appoint standby

counsel against a defendant's wishes"). Thus, the requirement that

McGiverin act as standby counsel in this case was not inconsistent

with Gómez's pro se status. Cf. United States v. Walsh, 742 F.2d

1006, 1007 (6th Cir. 1984) (per curiam) (holding that standby

counsel did not eviscerate the defendant's right to self-

representation where the defendant "was required to submit his

motions to advisory counsel for review"). Indeed, Gómez

represented himself at a bail hearing within days of the court

granting his motion for self-representation. Although McGiverin

also participated in the bail hearing by delivering a final

9
Although there was some ambiguity during the hearing as to
McGiverin's exact role as standby counsel, the court ultimately
explained that it wanted McGiverin to examine Gómez's pro se
motions, but that Gómez retained control over their filing.

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argument, he did so only in response to an explicit request by

Gómez.10

In short, Gómez's claims that the court rejected his

October 2, 2001 motion for self-representation "out of hand" and

that "[a]t no time did the [district court] allow [him] to

represent himself" are flatly incorrect. The court did not err in

handling the motion to proceed pro se.

2. May 22, 2003 screening order

Gómez next faults the court's handling of his motion to

have his counsel -- this time, his sixth attorney, Linda George --

withdraw and to proceed pro se. Emphasizing that Gómez's previous

pro se motions had been incomprehensible, the court ruled on May

22, 2003 that Gómez could represent himself only if George filtered

and approved his motions before they were filed. On appeal, Gómez

asserts that this ruling violated his Sixth Amendment right to

self-representation. We disagree.

Gómez first contends that the court's May 22 order denied

his request to proceed pro se and therefore violated his Sixth

Amendment right of self-representation. See Faretta, 422 U.S. at

807. The record does not support this claim. The court did not

deny Gómez's request to proceed pro se. Rather, as we have

10
Gómez employed this hybrid representation arrangement again
at a motions hearing on August 15, 2002, representing himself
throughout much of the hearing but asking McGiverin, his standby
counsel, to cross-examine a witness about an evidentiary issue.

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described, it granted the request but imposed one limitation on

Gómez's self-representation -- namely, a requirement that George,

as standby counsel, screen Gómez's motions. Gómez was permitted to

represent himself in other areas, including at jury selection. As

the court explained during a hearing on August 27, 2003, the May 22

order left Gómez free to "speak to the court," just not to "file

motions on your own." We therefore reject Gómez's claim that the

court denied his request to represent himself "out of hand."

Perhaps anticipating this result, Gómez also asserts that

George's unwelcome participation as standby counsel -- i.e., her

screening of the motions -- so interfered with his right of self-

representation as to "effectively render[] his right to self-

representation meaningless." Armant v. Marquez, 772 F.2d 552, 558

(9th Cir. 1985). We consider this claim under the standards set

forth in McKaskle v. Wiggins, which dealt with the role that

standby counsel, present at trial over the defendant's objections,

may play without eviscerating the Faretta right of self-

representation. The McKaskle Court identified two criteria as

being central to its analysis:

First, the pro se defendant is entitled to preserve
actual control over the case he chooses to present to the
jury. . . . If standby counsel's participation over the
defendant's objection effectively allows counsel to make
or substantially interfere with any significant tactical
decisions . . . or to speak instead of the defendant on
any matter of importance, the Faretta right is eroded.

Second, participation by standby counsel without the
defendant's consent should not be allowed to destroy the

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 jury's perception that the defendant is representing
himself.

465 U.S. at 178.

Gómez first asserts that as a result of the court's

screening order, he was "unable to submit motions that counsel did

not approve of." Because this contention pertains solely to

George's participation in Gómez's motions practice, which occurred

outside the presence of the jury, only the first prong of the

McKaskle analysis is relevant to our inquiry. See id. at 179.

("Participation by standby counsel outside the presence of the jury

engages only the first of these two limitations."). Gómez has not

demonstrated that his Faretta right was "eroded" according to this

standard.

Although it is true that he could not submit a motion

without George's approval, Gómez has not identified on appeal any

motions that George prevented him from filing. Indeed, the record

includes a number of pro se motions that were drafted by Gómez and

filed by George after the court's May 22 order. Moreover, George's

ability to block Gómez from filing motions that were irrelevant or

"totally out of bounds" cannot be said to constitute either

interference with a "significant tactical decision" or a preemption

of Gómez's ability to speak on a "matter of importance." McKaskle,

465 U.S. at 178. Rather, the court designated George as standby

counsel, and defined her role, to "ensure the defendant's

compliance with basic rules of courtroom protocol and procedure,"

-20-
a practice that does not infringe on a pro se defendant's Faretta

rights. Id. at 183.

Basic rules of courtroom protocol and procedure impose an

obligation, both on counsel and on individuals acting as their own

counsel, to comply with court rules and not file frivolous motions.

Federal courts "possess discretionary powers to regulate the

conduct of abusive litigants." Cok v. Family Court of Rhode

Island, 985 F.2d 32, 34 (1st Cir. 1993). This power includes the

ability to enjoin a party -- even a pro se party -- from filing

frivolous and vexatious motions. Sires v. Fair, No. 96-1454, 1997

WL 51408 (1st Cir. Feb. 10, 1997) (unpublished); Castro v. United

States, 775 F.2d 399, 408 (1st Cir. 1995) (abrogated on other

grounds by Stevens v. Dep't of the Treasury, 500 U.S. 1 (1991)).

This court reviews such orders for abuse of discretion. Castro,

775 F.2d at 408. In fact, in a parallel situation, we upheld a

district court order which enjoined a pro se litigant "from filing

any motions, pleadings or papers . . . without prior leave of the

Court," Hart v. United States, No. 92-1801, 1994 WL 89442, at *1

(1st Cir. Mar. 22, 1994), where the defendant had "deluged the

court with at least sixty-six different motions, most of them pro

se." Id. (quoting United States v. Hart, 933 F.2d 80, 81-82 (1st

Cir. 1991)).

-21-
 Gómez nevertheless maintains that George's screening role

was inconsistent with his right of self-representation. His

argument relies on the Court's statement in McKaskle that

Faretta rights [to self-representation] are adequately
vindicated in proceedings outside the presence of the
jury if the pro se defendant is allowed to address the
court freely on his own behalf and if disagreements
between counsel and the pro se defendant are resolved in
the defendant's favor whenever the matter is one that
would normally be left to the discretion of counsel.

McKaskle, 465 U.S. at 179. Gómez asserts that as long as George

was screening his motions, he was unable to "address the court

freely" and that by allowing George, rather than Gómez, to decide

which motions to file, the court failed to resolve disagreements in

favor of the defendant, all in contravention of McKaskle.

The statement from McKaskle on which Gómez relies cannot

be read in isolation. That statement was a reiteration of the

first prong of the test set forth earlier in the opinion, namely

the requirement that standby counsel's unwelcome participation not

"substantially interfere with any significant tactical decisions"

or result in counsel "speak[ing] instead of the defendant on any

matter of importance." Id. at 178 (emphasis omitted). This

formulation informs the meaning of the reiteration relied upon by

Gómez. Moreover, that reiteration must also be read in conjunction

with the Court's subsequent statement that there is no "significant

interference with the defendant's actual control over the

-22-
presentation of his defense, and thus no infringement of his

Faretta rights, when "counsel merely helps to ensure the

defendant's compliance with basic rules of courtroom protocol and

procedure." McKaskle, 465 U.S. at 183. The McKaskle Court also

emphasized that "[t]he trial judge may be required to make numerous

rulings reconciling the participation of standby counsel with a pro

se defendant's objection to that participation; nothing in the

nature of the Faretta right suggests that the usual deference to

'judgment calls' on these issues by the trial judge should not

obtain here as elsewhere." Id. at 177 n.8.

Taken together, these explanations of permissible

participation by standby counsel indicate that the pro se

defendant's right to "address the court freely" is not absolute.

Rather, the court may use standby counsel to facilitate the orderly

functioning of the proceedings so long as the defendant retains

control over "significant tactical decisions" and "on any matter of

importance." George's screening role was consistent with that

standard. In light of Gómez's long history in this case of filing

irrelevant and frivolous motions, George's responsibility for

preventing the filing of such motions did not deprive Gómez of

control over his defense. Cf. United States v. Collins, 920 F.2d

619, 627 (10th Cir. 1990) (noting that "an attorney may be

dismissed for pursuing frivolous theories"); United States v.

Masat, 896 F.2d 88, 92 (5th Cir. 1990) (same); Model Rules of

-23-
Prof'l Conduct R. 3.1 (2003) (noting that "[a] lawyer shall not .

. . assert . . . an issue . . . unless there is a basis in law and

fact for doing so that is not frivolous").

Gómez also asserts that George's unwelcome standby

participation violated the limits set forth in McKaskle because it

left him unable to call witnesses who would have corroborated a

certain aspect of his testimony. Gómez's argument appears to rely

on the following logic: the court's May 22 order regarding George's

screening role led him to believe that he would not be permitted to

proceed pro se at trial; Gómez therefore arrived at trial

unprepared to represent himself; although the trial judge agreed to

let Gómez proceed pro se, Gómez's lack of preparation forced him to

ask George to take over his representation before his opening

statement;11 this relinquishment of his pro se status meant that

George, rather than Gómez, chose which witnesses to present. In

short, Gómez contends that, but for George's screening role, he

would have represented himself at trial and called witnesses that

George chose not to call.

It is true that the judge presiding over Gómez's second

trial initially was confused as to whether the court's May 22 order

11
As already noted, when it became apparent that Gómez had not
prepared an opening statement, the trial judge informed Gómez that
he could make (or waive) the statement himself, retaining his pro
se status, or allow George to make the statement, relinquishing his
pro se status. Faced with waiving his opening statement, Gómez
allowed George to take over his representation and to conduct his
defense.

-24-
restricted Gómez's pro se status only with regard to motions, or

with regard to his self-representation more generally. Given

Gómez's claim on appeal that he was unprepared because he did not

believe he would be allowed to represent himself, however, it is

Gómez's understanding of the pre-trial record, rather than the

trial judge's understanding, that is relevant. As we have already

observed, Gómez told the trial judge that he was "supposed to"

represent himself and that the previous district court judge had

"decided for me to be represented by myself with Linda George as

helping counsel. I was permitted to address the court." These

statements indicate that Gómez thought that he had been granted pro

se status prior to the trial, undermining his claim that he

interpreted the court's May 22 screening order to preclude him from

representing himself at trial. Gómez's lack of preparation at the

outset of the second trial was his own fault. His decision to

relinquish his pro se status as a result of that lack of

preparation was entirely voluntary. The claim that George's

screening role prevented Gómez from representing himself at trial

and calling particular witnesses is therefore without merit.12

12
Nor is there merit to Gómez's claim that the court should
have granted a continuance on the morning of trial, sua sponte, to
give him additional time to prepare, or alternatively, allowed a
hybrid representation arrangement under which George could make the
opening statement before allowing Gómez to resume his self-
representation. See United States v. Betancourt-Arretuche, 933
F.2d 89, 95 (1st Cir. 1991) (discussing both the court's discretion
to permit hybrid representation and the relevance of timeliness of
requests for pro se representation and/or a continuance).

-25-
B. Constructive amendment of the indictment

Count Two of the superseding indictment charged Gómez

with conspiracy to possess with intent to distribute approximately

975 grams of heroin. At the close of the second trial, the jurors

were given a special verdict form that read, in part:

COUNT II. CONSPIRACY TO POSSESS WITH INTENT TO
DISTRIBUTE HEROIN
3. We, the jury, find the defendant Fernando Gómez-
Rosario (guilty/not guilty).

4. (Answer only if you have answered "Guilty" to Question
#3.)
(a) Was the amount of heroin at least 100 grams or
more?
Yes No
(b) [Answer only if you have answered "no" to
Question #4(a).]
Was the amount of heroin less than 100 grams?
Yes No

Gómez did not object to the special verdict form, which presumably

was designed to comply with the requirement set forth in Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000), that a jury find, beyond

a reasonable doubt, any facts needed to impose a sentence in excess

of the default statutory maximum. See United States v. Perez-Ruiz,

353 F.3d 1, 15 (1st Cir. 2003) (applying Apprendi to drug type and

quantity determinations), cert denied, 541 U.S. 1005 (2004).13

13
The default statutory maximum for conspiracy to possess with
intent to distribute heroin in violation of 21 U.S.C. § 841(a), the
crime specified in Count II of the superseding indictment, is

-26-
 After approximately three hours of deliberations, the

jury sent a note asking the court to explain "the importance of 100

grams of heroin when the defendant is guilty or not guilty." The

court asked counsel for a suggested response. Gómez's counsel

responded that "I think the court should just read what was on the

verdict sheet again. I don't think we should get into any

explanation." The court substantially complied with this

suggestion, instructing the jury that "under the law, on a finding

of guilty, the jury is required to answer the question regarding

quantity. On a finding of not guilty, the jury should not answer

the question regarding quantity." The jury subsequently determined

that Gómez was guilty on Count II but that the amount of heroin

involved was less than 100 grams.

On appeal, Gómez argues that through the special verdict

question regarding drug quantity and the corresponding jury

instructions, the district court constructively amended the

superseding indictment in contravention of the Fifth Amendment. A

constructive amendment, which is prejudicial per se, "occurs when

the charging terms of the indictment are altered, either literally

twenty years. See Perez-Ruiz, 353 F.3d at 15. Because the
superseding indictment alleged 975 grams of heroin, a conviction
had the potential to trigger a sentence above the default maximum.
See 21 U.S.C. § 841(b)(1)(B)(i) (providing a 40-year maximum
sentence for violations involving 100 grams or more of heroin).
For a conviction to actually trigger the higher statutory maximum,
however, the jury had to find beyond a reasonable doubt that the
conspiracy was responsible for at least 100 grams of heroin. See
Perez-Ruiz, 353 F.3d at 15.

-27-
or in effect, by prosecution or court after the grand jury has last

passed upon them." United States v. Fisher, 3 F.3d 456, 462-63

(1st Cir. 1993) (internal quotation marks and citation omitted).

Gómez contends that the district court changed the terms of the

superseding indictment in this case when it allowed the jury to

determine, via the special verdict form, whether Gómez was part of

a conspiracy to possess less than 100 grams of heroin. In support

of this contention, Gómez asserts that because the superseding

indictment charged him with conspiring to possess approximately 975

grams of heroin, it must have referred to a conspiracy with Hueck

and Sarruco to possess all eighty-five heroin pellets that Sarruco

swallowed (which actually weighed 678 grams). He reasons that if

the jury had found him guilty of this conspiracy, it would have

indicated on the special verdict form that the amount of heroin was

more than 100 grams. Because the jury found instead that the

amount of heroin was less than 100 grams, Gómez contends that it

must have convicted him of a conspiracy other than the one charged

-- specifically, an ad hoc conspiracy with Agent Carmona (posing as

Sarruco) to possess the four heroin pellets present in the hotel

room, which weighed approximately 32 grams. We disagree.

No specific drug quantity needs to be proven for a jury

to convict a defendant of conspiracy to possess with intent to

distribute. See United States v. Restrepo-Contreras, 942 F.2d 96,

99 n.1 (1st Cir. 1991). It is therefore not erroneous per se to

-28-
allow a jury to find that a defendant is guilty of the crime

charged but responsible for a lesser quantity of drugs than that

specified in the indictment. See, e.g., United States v. Ruiz

Solorio, 337 F.3d 580, 589-91 (6th Cir. 2003), cert. denied, 540

U.S. 1063 (2003). Gómez does not contend otherwise. He argues

instead that, in this particular case, the effect of the special

verdict question regarding drug quantity was to allow the jury to

consider two different conspiracies, one charged and one uncharged.

While Gómez's argument is creative, it is ultimately

unpersuasive. The court asked the jury to determine the drug

quantity not to present it with an uncharged conspiracy, but rather

to ascertain a fact necessary for sentencing. The court instructed

the jury that it should convict Gómez on Count II only upon a

finding that "the agreement specified in the indictment, and not

some other agreement or agreements, existed between at least two

people to possess a controlled substance with intent to distribute

it" (emphasis added). It further instructed the jury that it

should reach the question of drug quantity only upon a finding that

Gómez was guilty. Nothing in these instructions suggests that the

jury was free to convict Gómez for a conspiracy other than the one

charged in the superseding indictment. See United States v. Owens,

167 F.3d 739, 756 (1st Cir. 1999) (noting that "our system of trial

by jury is premised on the assumption that jurors will scrupulously

follow the court's instructions"). Rather, the instructions and

-29-
special verdict form left room for the jury to determine that Gómez

had participated in the charged conspiracy but to limit his

responsibility to a lower amount. Neither the special verdict form

nor the instructions accompanying it constituted a constructive

amendment of the superseding indictment.14

C. Sufficiency of the evidence

To establish that the defendant is guilty on a conspiracy

charge, the government must prove that "an agreement existed to

commit the underlying substantive offense, and that the defendant

elected to join the agreement, intending that the underlying

offense be committed." United States v. Medina-Martinez, 396 F.3d

1, 5 (1st Cir. 2005), cert. denied, 125 S. Ct. 1955 (2005). Gómez

asserts that there was insufficient evidence to convict him of a

conspiracy in this case because there was no one with whom he could

have conspired. We review a sufficiency of the evidence claim de

novo, considering the evidence in the light most favorable to the

14
Gómez asserts that the district court could have avoided the
alleged constructive amendment by explaining to the jury that its
finding on drug quantity was relevant only to sentencing. Gómez
failed to preserve an objection to the jury instructions, in which
the court properly told the jury that it should answer the drug
quantity question only if it found that Gómez was guilty. Gómez
did not object to the instruction after it was given. Moreover,
when the court asked for input on a response to the jury's note
about "the importance of 100 grams of heroin," Gómez agreed that no
additional explanation regarding the significance of the drug
quantity was necessary. Even if the instruction that he suggests
on appeal would have been useful in avoiding jury confusion, the
court's failure to give it certainly was not reversible error.

-30-
verdict. See United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st

Cir. 2001). "Our inquiry is only whether the guilty verdict finds

support in a plausible rendition of the record." Id. (internal

quotation marks omitted). The remedy for a successful sufficiency

of the evidence challenge is an order directing a judgment of

acquittal. See Burks v. United States, 437 U.S. 1, 18 (1978)

("Since we hold today that the Double Jeopardy Clause precludes a

second trial once the reviewing court has found the evidence

legally insufficient, the only 'just' remedy available for that

court is the direction of a judgment of acquittal.").

1. Evidence of an ad hoc conspiracy with Carmona

Gómez's first sufficiency of the evidence claim rests on

his contention that the jury convicted him of an ad hoc conspiracy

formed with Agent Carmona in the hotel room, rather than the

charged conspiracy involving Hueck, Sarruco, and others.

Emphasizing that "there can be no conspiracy as a matter of law

solely between a defendant and a government agent," United States

v. Castellini, 392 F.3d 35, 51 n.11 (1st Cir. 2004), Gómez asserts

that there was no evidence to support a conviction for the ad hoc

conspiracy. We have already rejected the premise underlying this

sufficiency of the evidence claim. Hence, we reject the related

sufficiency of the evidence claim on the same basis.

-31-
 2. Evidence of a conspiracy with Hueck and Sarruco

Gómez next argues that he could not be convicted of the

charged conspiracy because there was insufficient evidence to

connect him to either Sarruco, the drug courier, or Hueck, the drug

supplier. With regard to Sarruco, Gómez contends that the

government is estopped from claiming that the two were co-

conspirators because, in granting a judgment of acquittal in the

first trial, the district court found that "the only evidence in

this case about the relationship between Gómez and Sarruco is that

there was no relationship." With regard to Hueck, Gómez simply

asserts that there was no evidence of a relationship between the

two, and therefore no possible criminal agreement. We consider

these claims in turn.

a. Sarruco

Under the doctrine of collateral estoppel, "when an issue

of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same

parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443

(1970). Gómez asserts that the district court determined during

his first trial that he had no relationship with Sarruco, and

therefore that the government could not attempt to show during the

second trial that he and Sarruco were co-conspirators. The

district court, however, made no such finding during the first

trial. It concluded only that there was no personal relationship

-32-
between Gómez and Sarruco sufficient to support a charge that Gómez

aided and abetted Sarruco's drug possession.15 The court did not

determine that the lack of a personal relationship would preclude

the two from being co-conspirators. To the contrary, the court

suggested that the facts likely would support the existence of a

conspiracy.16 The court's finding in the first trial that Sarruco

and Gómez did not know each other therefore did not preclude the

government from arguing in the second trial that the two were co-

conspirators. See, e.g., United States v. Soto-Beníquez, 356 F.3d

1, 19 (1st Cir. 2004) ("The government need not show that each

conspirator knew of or had contact with all other members."), cert.

denied, 124 S. Ct. 2432 (2004).

There is ample circumstantial evidence that Sarruco and

Gómez were part of a conspiracy to possess heroin with intent to

distribute it. Sarruco told Hueck that he was waiting in Room 209

15
The court explained that "[t]he only evidence in this case
about the relationship between Gómez and Sarruco is that there was
no relationship. That Sarruco did not know Gómez, never had met
Gómez, wouldn't recognize Gómez, didn't know who Gómez was. Didn't
have any care who showed up at the door. And Sarruco is the one
who possessed [the heroin]. . . . And this is framed not as a
conspiracy, but as he aided and abetted Sarruco. So this question
is, what did he do to aid and abet Sarruco's possession." (Emphasis
added.)
16
Specifically, the court noted that Gómez was "part of the
distributive chain" but that "it's a different matter to say he
possessed [the heroin] with intent to distribute. He tried to, he
would have had he not been arrested quickly. It was an attempted
possession, probably a conspiracy, but none of that has been
charged."

-33-
of the Hotel Iberia. Within hours, Gómez arrived at the hotel in

a van containing a gun and knocked on the door of Room 209. After

being shown four heroin pellets, Gómez asked Agent Carmona, posing

as Sarruco, how many he had swallowed and offered to get him a

laxative. Based on this evidence, a reasonable jury could have

concluded that Gómez's presence at the hotel was not merely

coincidental, as he claimed. Rather, the jury could have

concluded, he visited Room 209 based on his participation in a

conspiracy with Sarruco and others. See United States v. Gomez-

Pabon, 911 F.2d 847, 853 (1st Cir. 1990) ("[P]roof [of membership

in a conspiracy] may consist of circumstantial evidence, including

inferences from surrounding circumstances, such as acts committed

by the defendant that furthered the conspiracy's purposes.").

b. Hueck

Emphasizing that there is no direct evidence in the

record linking him to Hueck, Gómez asserts that the two could not

have been co-conspirators. As we have already discussed, however,

Gómez's appearance at Room 209 of the Hotel Iberia shortly after

Sarruco talked to Hueck, together with his interaction with Agent

Carmona, were adequate to link Gómez to a conspiracy that included

Hueck.

-34-
D. Pre-indictment delay

Gómez was arrested in April 2000 on substantive drug

possession and importation charges, and a related firearms charge.

His trial on those charges ended on February 26, 2003 with a

judgment of acquittal on two counts (drug possession and possession

of a firearm) and a mistrial on the third count (drug importation).

Instead of retrying Gómez on the drug importation charge, the

government obtained a superseding indictment in March 2003 that

charged Gómez with conspiracy to possess drugs with intent to

distribute and conspiracy to import drugs. Gómez went to trial on

the conspiracy charges in June 2003 and was ultimately convicted on

the conspiracy to possess charge.

On appeal, Gómez asserts that the delay between his

arrest in April 2000 and the filing of the superseding indictment

in March 2003 violated his Sixth Amendment right to a speedy trial.

The government points out, however, that Gómez's development of

this argument is more consistent with a Fifth Amendment due process

claim based on pre-indictment delay than with a Sixth Amendment

speedy trial claim. We agree.

The purported Sixth Amendment claim in this case focuses

entirely on pre-indictment delay. While delay between arrest and

indictment may be relevant to the Sixth Amendment inquiry, see

United States v. MacDonald, 456 U.S. 1, 7 (1982), we think it

peculiar that Gómez's Speedy Trial Clause claim alleges only pre-

-35-
indictment delay and is entirely silent as to pre-trial delay.

Moreover, Gómez has not identified the framework set forth in

Barker v. Wingo, 407 U.S. 514, 530-33 (1972), for analyzing a

Speedy Trial Clause claim, nor has he explained how the facts of

this case fit that framework. Even after the government pointed

out this omission in its brief on appeal, Gómez failed to develop

the Sixth Amendment argument in his reply brief, focusing instead

on the application of the Fifth Amendment Due Process Clause to his

claim. Under these circumstances, we do not consider Gómez's Sixth

Amendment claim.17 See United States v. Berrio-Callejas, 219 F.3d

1, 3 (1st Cir. 2000) (treating a claim as waived where the

appellant "neither presents developed argumentation nor provides

pertinent case citations").

The essence of Gómez's complaint of pre-indictment delay

is not that he was denied a speedy trial, but rather that his due

process rights were violated. The Fifth Amendment Due Process

Clause requires the dismissal of an indictment where the defendant

can show that "the pre-indictment delay . . . caused substantial

prejudice to [his] right[] to a fair trial and that the delay was

an intentional device to gain tactical advantage over the accused."

United States v. Marion, 404 U.S. 307, 324 (1971).

17
We note that, even if we were to reach the Sixth Amendment
claim, its fate would almost certainly mirror the fate of the Fifth
Amendment due process claim, which requires us to consider some of
the same factors.

-36-
 1. Prejudice

Gómez identifies two forms of prejudice stemming from the

government's delay in obtaining the superseding indictment. First,

he asserts that because the substantive and conspiracy charges were

brought consecutively, instead of concurrently, he was forced to

defend himself twice. In light of the disposition of Gómez's first

trial (the court declared a mistrial on one count and ordered that

a retrial be scheduled), however, Gómez would have had to defend

himself twice even if the superseding indictment had never been

filed; the government just decided to bring different charges for

the second trial. Moreover, there is no evidence that forcing

Gómez to defend himself twice caused any prejudice, let alone

substantial prejudice, to his right to a fair trial. See id. He

does not assert that any evidence or witnesses were compromised by

the delay, nor does he explain how the delay otherwise hampered his

right to a fair trial.

Gómez also assigns prejudice to the three years he spent

in prison before the superseding indictment was filed. The

incarceration to which Gómez points, however, did not result from

the pre-indictment delay of which he now complains. Gómez was

imprisoned between April 2000 and February 2003 pending trial on

the substantive charges set forth in the original indictment. He

would have spent that time in prison regardless of when the

conspiracy charges were filed. The government obtained the

-37-
superseding indictment approximately two weeks after the trial on

the substantive charges ended in a mistrial. The relevant period

of pre-indictment incarceration with respect to Gómez's Fifth

Amendment prejudice claim is therefore a matter of weeks, not of

years.

2. Tactical advantage

Even if Gómez were able to demonstrate prejudice

resulting from the pre-indictment delay, his Fifth Amendment claim

would falter on the second prong of the inquiry. There is simply

no evidence that the government intentionally delayed indicting

Gómez on the conspiracy charges to obtain a tactical advantage.18

Moreover, although Gómez claims that the sequential indictment

allowed the government to get "a second bite at the apple," he has

not identified any specific advantage that the government gained.

Gómez did not present any evidence in the first trial. He cannot

argue, therefore, that the sequential prosecution allowed the

government to preview his case or to adapt its case to his defense.

In short, Gómez's due process claim must fail.

18
The government explained on appeal that it did not realize
until the end of the first trial that the offenses were more
properly charged as conspiracies than as substantive drug crimes.
We have no reason to doubt the government's characterization of
this delayed realization as an innocent mistake.

-38-
 III.

Finally, Gómez challenges the propriety of his sentence,

arguing that a remand for resentencing is appropriate in light of

the Supreme Court's decision in Booker. We agree and reject the

government's contrary position.

This court deems Booker error preserved if the defendant

argued at sentencing that the sentence violated Apprendi or

Blakely,19 or that the federal Sentencing Guidelines were

unconstitutional. See United States v. Antonakopoulos, 399 F.3d

68, 76 (1st Cir. 2005). Where the defendant has preserved a Booker

claim, we review for harmless error, remanding for resentencing

unless the government can show beyond a reasonable doubt that a

lower sentence would not be imposed under the post-Booker regime.

United States v. Vázquez-Rivera, 407 F.3d 476, 489 (1st Cir. 2005).

In this case, the district court took account of several

facts not found by the jury -- including, inter alia, the amount of

heroin involved, the presence of a firearm, and the court's

conclusion that Gómez perjured himself at trial -- in determining

a sentence, and Gómez timely objected to the judicial fact-finding.

Thus, Gómez preserved his claim of error. The government has not

met its burden of proving that Gómez would not receive a lower

19
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004) were two of the cases that led to
the Booker holding.

-39-
sentence under the advisory Guidelines. See Vazquez-Rivera, 407

F.3d at 490 (even "factual certainty" as to basis for enhancements

is not sufficient to show beyond a reasonable doubt that the judge

would have applied the same sentence under an advisory Guidelines

system). We remand for resentencing.

The government asserts that a full remand is

inappropriate. Contending that Gómez preserved his Booker claim

only with respect to the amount of drugs involved in the

conspiracy, and not with respect to the gun and perjury findings,

it argues that we should therefore review the latter two issues

under a plain error standard. The government maintains that Gómez

cannot meet that standard and thus that we should issue a partial

remand, instructing the district court only to recalculate the base

offense level. We reject this invitation to disaggregate Booker

claims and consider them piecemeal. Such an approach is

inconsistent with this court's Booker jurisprudence under

Antonakopoulos.

Of course, our decision to remand should not be read as

a "suggestion or a prediction that [Gómez's] sentence will

necessarily be altered." United States v. Heldeman, 402 F.3d 220,

224 (1st Cir. 2005). This is especially true "where the remand

arises out of a preserved error and where the harmless error test

makes even a modest possibility of change enough to warrant

-40-
remand." United States v. Lata, No. 04-2051, 2005 WL 1491483, at

*5 (1st Cir. June 24, 2005).

IV.

Gómez's conviction is affirmed; his sentence on that

conviction is vacated. We remand for resentencing consistent with

this opinion.

So ordered.

-41-