United States v. Diaz-Diaz

United States Court of Appeals
For the First Circuit

Nos. 03-1803
03-1804
03-1992
UNITED STATES OF AMERICA,
Appellee,

v.

ARCADIO DIAZ-DIAZ,
GABRIEL SANTOS-RODRIGUEZ,
EDGAR M. MEDINA-SANCHEZ,
Defendants, Appellants.

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

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

Before

Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Carter,* Senior District Judge.

Juan M. Masini-Soler, for appellant Diaz-Diaz, Rafael Anglada-
Lopez, for appellant Santos Rodriguez, and Nicolas Nogueras, Jr.,
for appellant Medina-Sanchez.
Nelson Perez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, were on brief for appellee.

December 28, 2005

*Of the District of Maine, sitting by designation.
 CARTER, Senior District Judge. In this case we are again

called upon to review convictions resulting from an FBI

investigation of corrupt police officers engaged in the protection

and transport of narcotics in the Commonwealth of Puerto Rico.1

This appeal is brought by three co-defendants convicted on charges

stemming from a conspiracy to provide police protection for cocaine

shipments. Defendants-Appellants Santos-Rodriguez (hereinafter

“Santos”) and Medina-Sanchez (hereinafter “Medina”) were both

police officers at the time of the offenses. A jury convicted all

three defendants of conspiring to distribute in excess of five (5)

kilograms of cocaine, in violation of 21 U.S.C. § 846. Defendants

Diaz-Diaz (hereinafter “Diaz”) and Santos were also convicted of

carrying firearms during and in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1)(a)(I). The district

court sentenced Diaz to a prison term of 295 months. Santos

received a sentence of 248 months of imprisonment. A prison

sentence totaling 235 months was imposed on Medina. All three

defendants also received a supervised release term of five years.

In this appeal defendants allege a variety of errors, both at

trial and sentencing. At trial, the district court is alleged to

1
Our previous cases arose from a reverse sting operation
entitled “Honor Perdido”. See United States v. Sanchez-Berrios,
424 F.3d 65, 71 (1st Cir. 2005); United States v. Villafane-
Jimenez, 410 F.3d 74, 78 (1st Cir. 2005); United States v. Vazquez
Guadalupe, 407 F.3d 492, 494 (1st Cir. 2005); United States v.
Flecha-Maldonado, 373 F.3d 170, 172 (1st Cir. 2004).

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have committed error by: (1) admitting video recordings of meetings

between the defendants and the government’s cooperating witness;

(2) refusing to grant a mistrial after the prosecutor made improper

comments to the jury; (3) failing to, sua sponte, instruct the jury

concerning the defense of entrapment; and (4) denying defendant

Diaz’s motion for judgment of acquittal on the firearm charge. At

sentencing, the district court is alleged to have committed error

by: (1) improperly delegating its authority to the probation

officer; (2) applying the four-level “Organizer or Leader”

enhancement to Diaz’s sentence; (3) denying Diaz’s request for a

two-level adjustment for “Acceptance of Responsibility”; (4)

denying Diaz’s request for a downward departure due to his health

condition; and (5) sentencing the defendants in violation of United

States v. Booker.2

I. Factual Background

The evidence presented at trial stems from an FBI “sting”

operation. In October of 2000, Santiago Enmanuel De Leon Lasala

(a/k/a “Avanti”) approached the FBI seeking to serve as an

informant. The FBI agents told Avanti that they were interested in

police officers who served in protective roles for drug smuggling

operations. Avanti, posing as a drug trafficker, attempted to find

officers willing to perform such duties. Eventually, Avanti met

2
Booker, --- U.S. ---, 125 S. Ct. 738 (2005), was decided
after sentencing occurred in this case.

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defendant Diaz. Diaz told Avanti that he had police officers on

his payroll willing to escort and protect cocaine shipments.

In order to get Diaz to produce these officers, undercover FBI

agents posed as members of the drug trafficking cartel. On

December 6, 2000, with the assistance of Avanti, Diaz met with an

undercover FBI agent, whom he believed to be a member of the

cartel. Diaz offered to provide police officers to escort a

shipment of cocaine for the cartel. In this and subsequent

meetings with the undercover agent, Diaz negotiated the details of

the arrangement. Diaz recommended the route to be used in

transporting the cocaine from Fajardo to San Juan. Diaz also

negotiated the fee that he and his officers would receive,

ultimately agreeing on $5,000 per person.

In order to obtain evidence of the defendants’ participation

in the conspiracy, the FBI, with the assistance of Avanti, arranged

a covert system of surveillance. Using FBI provided funds, Avanti

rented a storefront from which he taught music lessons. The FBI

outfitted this music school with hidden cameras, microphones, and

recording devices. Although the devices could be monitored from an

outside location by FBI agents, operation of the system was left in

the hands of Avanti. Avanti activated the devices by operating a

switch on the exterior of the building before entering it to meet

with the defendants. After the meetings were over, he could turn

off the devices by using the switch when exiting.

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 On April 27, 2001, Diaz introduced Avanti to defendants Santos

and Medina. This meeting took place at the music school and was

recorded. The same men met again on June 4, 2001, to finalize

plans for transporting the shipment of cocaine. This too was

recorded at the music school.

On June 5, 2001 the defendants traveled to the Fajardo Mall.

Medina and Santos each entered a separate unlocked vehicle,

retrieved the keys from beneath the floor mat, and drove the cars

to San Juan. Although the defendants believed that these vehicles

contained cocaine, each vehicle contained ten kilograms of flour

wrapped in duct tape. As the defendant police officers drove the

cars filled with the flour, Diaz followed them in another vehicle.

After completing the transport, the defendants returned to the

music school to receive their payment. While waiting there with

Avanti, they were again recorded. The cameras recorded Santos

removing a revolver from his waistband. The devices also recorded

defendant Diaz’s statement “He’s armed, I’m armed, and he’s armed,”

referring to his co-conspirators.

II. Analysis

Each defendant raises challenges to his conviction and

subsequent sentence.

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A. Challenges to Convictions

1. Defendant Medina

Medina argues that his conviction must be vacated because the

evidence upon which the jury found him guilty was obtained

illegally. Prior to trial, Medina moved to suppress recorded

conversations between himself, his co-conspirators, and the

government’s paid informant, Avanti, on the grounds that they were

obtained in violation of the Fourth Amendment’s prohibition against

unreasonable searches and seizures, and Title III of the Omnibus

Crime Control and Safe Streets Act’s prohibition on electronic

surveillance, 18 U.S.C. § 2510 et seq. That motion was denied and

the recorded conversations were admitted at trial.

In reviewing the denial of a motion to suppress, we review the

district court’s factual findings for clear error, and the district

court’s legal conclusions de novo. United States v. Marshall, 348

F.3d 281, 284 (1st Cir. 2003).

On the facts presented in this case, the Fourth Amendment

challenge clearly fails. The Fourth Amendment does not protect an

individual from having his or her conversation recorded with the

consent of another person who is a party to the surveilled

conversation. Lopez v. United States, 373 U.S. 427, 438-39 (1963).

In such instances, such devices are used “only to obtain the most

reliable evidence possible of [the] conversation.” Id. Although

in some instances the use of devices may raise concerns of an

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“unlawful physical invasion of a constitutionally protected area,”

id., no such concerns are raised by police actions in this case.

Cf. United States v. Padilla, 520 F.2d 526, 527 (holding that

electronic devices planted in defendant’s hotel room used to record

conversations with federal agents violated Fourth Amendment). Here

the electronic monitoring took place in a business controlled by

the government’s cooperating witness. Defendant’s use of the

premises was limited to his connection with the underlying

conspiracy, thus tailoring the use of electronic monitoring to

meetings relevant thereto. This connection was narrowed further by

the fact that control of the devices was given to Avanti, not the

government, thus ensuring that each conversation monitored was both

related to the conspiracy and consented to by the cooperating

witness. Consequently, admission of the tapes did not violate

defendant’s Fourth Amendment rights and there was no error.

Defendant’s claim that the recordings violated Title III is,

for similar reasons, without merit. As this court has previously

recognized, “Congress, in its wisdom, chose to insert a myriad of

exceptions and restrictive definitions into Title III, purposely

leaving certain...communications unprotected.” Griggs-Ryan v.

Smith, 904 F.2d 112, 116 (1st Cir. 1990); see also 18 U.S.C. §

2511(1) (prohibiting intentional interception and disclosure

“[e]xcept as otherwise specifically provided”). One such

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exception, 18 U.S.C. § 2511(2)(c), applies to this case and

provides:

It shall not be unlawful under this chapter for a person
acting under color of law to intercept a wire, oral, or
electronic communication, where such person is a party to
the communication or one of the parties to the
communication has given prior consent to such
interception.

18 U.S.C. § 2511(2)(c).

Thus, we have held that “[t]he statute permits the taping of

conversations without approval if a person who is a party to the

conversation gives prior consent.” United States v. Font-Ramirez,

944 F.2d 42, 47 (1st Cir. 1991).

Defendant does not contend that Avanti failed to consent to

the taping of the conversations. Instead, he attempts to challenge

the effect of that consent by arguing that Avanti’s relationship

with the government was of such a nature that he became an “agent”

of the government, as opposed to a “cooperating witness.” With

respect to application of this statute, however, defendant has

provided only a distinction without a difference. Were we to

classify Avanti as a government agent it would make no difference,

as the statute applies to those who act “under color of law.” See

18 U.S.C. § 2511(2)(c). The statute does not distinguish a

“cooperating witness” from a “government agent.” Accordingly, the

consent of Avanti was sufficient to bring the recordings admitted

at trial within the above referenced exception, and there was no

error in allowing their admission.

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 Medina next argues that his conviction should be vacated

because of improper remarks made by the prosecutor during

defendant’s closing argument. Defense counsel, during his closing

argument, commented upon the government’s failure to call one of

the FBI agents as a witness, rhetorically asking:

...by the way, have you before you the most important
agent of all, Agent Louis Feliciano, the case agent? He
was, from the very start, he can explain a lot of things,
he can clarify many doubts. He was in charge of the case
all throughout. Does it matter at all to you that or it
doesn’t matter?

In response to this line of argument, the government objected and,

in the presence of the jury, stated:

Your Honor, counsel can call this witness as well.

After the court asked the prosecutor to repeat his objection, he

stated in the presence of the jury:

Counsel can call this witness, just like the United
States.

The defendant’s attorney timely objected and moved for a mistrial.

Although the motion was denied, the judge promptly instructed the

jury that defendant had no obligation to present evidence and that

the burden of proof remained on the government.3

3
The entire instruction was as follows:
My instruction to you is this: I told you from the
beginning of the case when we were selecting the jury,
and I tell you now, I told you in my preliminary
instructions when you were a jury, and I tell you now,
that the burden of proof is on the government to prove
every single element of the offense charged – in this
case there are two – that burden has to be met as to
each count and each defendant separately. The
defendants have no obligation whatsoever to present

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 Defendant now argues that the district judge should have

granted his motion for a mistrial. We review denial of a motion

for a mistrial for an abuse of discretion. United States v.

Pierro, 32 F.3d 611, 617 (1st Cir. 1994).

The first question presented is whether the prosecutor’s

statements were improper. Defendant argues that they were improper

because they shifted the burden of proof by insinuating to the jury

that the defendant had the burden to present evidence of his

innocence. He does not argue, and appears to have no basis on

which to do so, that the prosecutor’s statements were an improper

comment on the defendant’s failure to testify.

We have previously held that a prosecutor is not entirely

forbidden from commenting on the defendant’s failure to produce

evidence supporting the defendant’s stated theory. See United

States v. Kubitsky, 469 F.2d 1253, 1255 (1st Cir. 1972) (prosecutor

may “comment upon the absence of witnesses other than the

defendant, such as alibi witnesses, that might have been logically

expected”). Nonetheless, we have recognized that a prosecutor may

cross the line by arguing to the jury that the defendant is

obligated to present evidence of his innocence. See United States

v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997) (finding

impermissible argument where prosecutor argued “the defendant has

evidence. The burden of proof lies on the government
from beginning to end. This is the end of the case,
that burden remains with the United States.

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the same responsibility [as the government] and that is to present

a compelling case”). The distinction is one of degree, and for

that reason we have warned that “a prosecutor who attempts to

define exactly the edge of the precipice approaches at his peril.”

United States v. Hooker, 541 F.2d 300, 307 (1st Cir. 1976)

(internal quotations omitted).

After reviewing the prosecutor’s remarks and the context in

which they were made, we find that they were improper. Defense

counsel’s argument was not aimed at having the jury draw the

inference that the government did not call the agent because his

testimony would have been harmful to its case. Instead, the

argument was that the government had failed to present all of the

evidence needed to prove Medina guilty beyond a reasonable doubt.

In this context, the prosecutor’s comments could have the effect of

shifting the burden of proof, rather than refuting a requested

inference and, therefore, were improper.

The question remains, however, whether the district judge

abused her discretion in refusing to grant a mistrial. We conclude

that she did not. The prosecutor’s remark, though technically

improper, approached the margin of propriety. Moreover, any risk

that the jury may have improperly considered the remark was

immediately and effectively addressed by the judge’s prompt and

thorough instruction to the jury that the burden of proof remained

with the government. See United States v. Smith, 145 F.3d 458, 462

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(1st Cir. 1998) (stating that courts “must presume that jurors,

conscious of the gravity of their task, attend closely the

particular language of the trial court’s instructions in a criminal

case, and that they follow those instructions”)(citations omitted).

Accordingly, we will affirm the denial of defendant’s motion for a

mistrial.

2. Defendant Santos

Santos argues that his conviction must be overturned because

it was the result of entrapment. The first issue to be resolved is

whether this court may consider defendant’s entrapment argument

even though he failed to raise it before the district court. This

court has long held that “an issue not raised before the trial

court cannot be raised for the first time on appeal.” United

States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)

(quoting United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.

1987)). Although defendant concedes that he did not “formally”

raise the issue below, he argues that there was some evidence at

trial that his commission of the illegal acts resulted from

improper inducement by law enforcement officials. Hence, his

challenge before this court is, in essence, that the evidence

presented at trial “raised the issue” and required the district

court to instruct the jury, sua sponte, on the entrapment defense.

At least one circuit has concluded that there is no such

affirmative duty on the part of the district court to give an

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entrapment instruction absent a request from the defendant. See

United States v. Lewis, 987 F.2d 1349, 1354 (8th Cir. 1993)

(holding that defendant waived entrapment defense by not raising it

prior to submission of the case to the jury). That question,

however, need not be resolved here because defendant was not

entitled to the instruction.

Before an entrapment instruction may be given to the jury, the

defendant bears the “entry level” burden of pointing to “hard

evidence, which if believed by a rational juror, would suffice to

create a reasonable doubt as to whether government actors induced

the defendant to perform a criminal act that he was not predisposed

to commit.” United States v. Young, 78 F.3d 758, 760 (1st Cir.

1996) (internal quotations omitted). This requires evidence on

both elements of the defense, specifically, “(1) government

inducement of the accused to engage in criminal conduct, and (2)

the accused’s lack of predisposition to engage in such conduct.”

United States v. Sanchez-Berrios, 424 F.3d 65, 76 (1st Cir. 2005)

(quoting United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.

1988)). If a defendant fails to make the requisite showing of

either government inducement or lack of predisposition, he is not

entitled to the instruction.

Defendant in this case is unable to make any showing that

government actors improperly induced him into these offenses. As

this court has made clear, it is not sufficient that the government

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provided the defendant with the opportunity to commit the crime.

A defendant must demonstrate an opportunity “plus” some other

conduct, such that it implicates concerns of government

overreaching. See Young, 78 F.3d at 761. On this issue defendant

points only to the promise of $5,000 for his services in escorting

the drug shipment, which he argues “is a lot of money for a minimum

salary municipal police officer in Puerto Rico.” The promise of

financial gain, however, even if significant, is insufficient to

demonstrate government inducement. See Sanchez-Berrios, 424 F.3d

at 76 (“The only inducement that the record reflects is a chance to

make money--and holding out the prospect of illicit gain is not the

sort of government inducement that can pave the way for an

entrapment defense.”); United States v. Coady, 809 F.2d 119, 122

(1st Cir. 1987) (explaining that a person is not improperly induced

when he “succumbs to his own greed or to the lure of easy money”).

Because defendant failed to meet his burden as to improper

inducement, the entrapment defense instruction was not warranted.

3. Defendant Diaz

Diaz argues that there was insufficient evidence presented to

the jury to justify his conviction for the firearm offense.

Because Diaz moved for a judgment of acquittal at the close of all

the evidence, he has preserved the issue for appeal. See United

States v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). Thus, the

court reviews the issue de novo, to determine if, viewing all the

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evidence in the light most favorable to the government and taking

all reasonable inferences in its favor, a rational factfinder could

find the defendant guilty beyond a reasonable doubt on all elements

of the offense. See United States v. Grace, 367 F.3d 29, 34 (1st

Cir. 2004).

On appeal the government does not argue that Diaz physically

possessed a firearm himself, but rather that he is vicariously

liable for the firearm offense under a theory of Pinkerton

liability. See Pinkerton v. United States, 328 U.S. 640, 647-48

(1946). Accordingly, we first consider if sufficient evidence was

admitted that the offense was committed by one of the defendant’s

co-conspirators, and then consider if there was sufficient evidence

for the jury to find Diaz vicariously liable for that conduct.

In order to prove that a co-conspirator committed the crime of

carrying a firearm in relation to a drug trafficking offense, the

government had the burden to prove that: (1) the co-conspirator

committed the predicate drug trafficking crime...; (2) that the co-

conspirator knowingly carried or used a firearm; and (3) that the

co-conspirator did so during and in relation to the specified

predicate offense. See United States v. Flech-Maldonado, 373 F.3d

170, 179 (1st Cir. 2004). As to the first element, there can be no

doubt that there was sufficient evidence to prove that Santos and

Medina conspired with Diaz to traffic in cocaine. Indeed,

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defendant Diaz does not challenge his own conviction for having

conspired with them to do so.

The second element was also satisfied, as the government

presented a video recording showing defendant Santos brandishing a

firearm while the group was waiting for payment at the music

school. Finally, the third element was satisfied because there was

evidence that this firearm was brandished both during and in

relation to the conspiracy. At the time the firearm was observed

the conspiracy was still ongoing, as the co-conspirators were

seeking to obtain their payment. Furthermore, a reasonable jury

could find, beyond a reasonable doubt, that the carrying of that

firearm was in relation to that conspiracy because the evidence

showed that the co-conspirator’s role in escorting the cocaine was

to provide protection. Thus, the government provided sufficient

evidence that a co-conspirator committed the firearm offense.

In order for defendant Diaz to be held vicariously liable for

this conduct, however, the government must also prove that the

carrying of the firearm was in furtherance of the conspiracy, and

that this act was foreseeable by the defendant. See Pinkerton, 328

U.S. at 647-48. On these points the evidence was overwhelming.

The government admitted recordings of Diaz himself assuring an

undercover FBI agent “we’re going [to be] armed over there, and

we’re going to shoot at everything that moves.” This, coupled with

the fact that the object of the conspiracy was the protection of

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the cocaine shipment, leaves no room for doubt that the carrying of

the firearm was in furtherance of that conspiracy. Finally, the

defendant’s statement shows that he in fact believed that his co-

conspirators would be armed during the escort of the cocaine.

Viewing this evidence in the light most favorable to the

prosecution, we conclude that there was sufficient evidence for a

reasonable jury to find defendant Diaz guilty on a theory of

vicarious liability.

B. Sentencing

Defendant Diaz

Diaz challenges the terms of his supervised release, arguing

that the district court erred in delegating to the probation

officer the authority to determine the number of drug tests he will

be subject to and whether, upon a positive result, he must engage

in a rehabilitation program. It is clearly established law in this

circuit that such delegations are improper, e.g., United States v.

Melendez-Santana, 353 F.3d 93, 101-03 (1st Cir. 2003), and on this

point the government concedes error.

The question before the court, then, is whether that portion

of the sentence must be vacated due to the error. Recently, a

panel of this court, sitting en banc, clarified that unpreserved

delegation errors of this type remain subject to traditional “plain

error review.” See United States v. Padilla, 415 F.3d 211, 220

(1st Cir. 2005). Consequently, because defendant was afforded an

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opportunity to object to the conditions he now challenges, but

failed to do so, this court will apply a plain error test to

determine if the error warrants reversal.

Under the plain error standard applicable to delegation errors

the defendant must “limn circumstances indicating a reasonable

probability that the trial court, but for the error, would have

imposed a different, more favorable sentence.” Id. at 221. As

this court has recognized, such a demonstration of prejudice in

cases involving this type of error is almost impossible. Id.

Nonetheless, the court has carefully reviewed the record before it

for any such indication. Having found none, we conclude that

defendant has failed to make the requisite showing of prejudice.

Defendant Diaz next challenges the trial judge’s determination

that he was subject to an enhancement as an “organizer or leader”

pursuant to U.S.S.G. § 3B1.1(a). This court may only review that

determination for clear error. United States v. Laboy, 351 F.3d

578, 585 (1st Cir. 2003).

The guidelines provide that such an enhancement is appropriate

if the defendant “was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). Thus, in order to apply the

enhancement the sentencing court must determine that the defendant

had both the requisite participation in the criminal activity, and

that the criminal activity itself was sufficiently extensive. See

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id. Here Diaz challenges only the determination that his

participation was sufficient for the enhancement to apply.

The Guideline comments provide “relevant factors” for

determining whether or not the requisite participation exists,

specifically:

exercise of decision making authority, the nature
of participation in the commission of the offense,
the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the
degree of participation in planning or organizing
the offense, the nature and scope of the illegal
activity, and the degree of control and authority
exercised over others.

The evidence at trial demonstrated that Diaz’s conduct satisfies

many of the above listed criteria. The trial court was justified

in finding that he had, after promising that he could provide

corrupt police officers to protect a cocaine shipment, actively

recruited Police Officers Santos and Medina. The record also

supports the conclusion that Diaz’s participation continued to a

large degree. Evidence showed that he attended most of the

meetings in which the amount of shipments of cocaine and

transportation of the cocaine were discussed. Diaz even instructed

the undercover agents of the best route for transporting the drugs.

Although he did not receive a larger share of the “fruits of the

crime,” Diaz exercised some decision-making authority as he was the

one who made contact with the undercover agents to negotiate what

payment he and his accomplices would receive. Finally, after

recruiting the officers, assisting in the planning, and negotiating

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the fee, Diaz personally oversaw the transport of the sham cocaine

by traveling with his accomplices on the route he had helped

choose. On this record it cannot be said that the trial judge

committed clear error.

For similar reasons this court will affirm the district

court’s denial of Diaz’s request for a downward adjustment for

“Acceptance of Responsibility,” pursuant to U.S.S.G. § 3E1.1(a).

First, we note that a defendant who takes his case to trial

“greatly diminishe[s] his chances of receiving [such an]

adjustment.” United States v. Baltas, 236 F.3d 27, 37 (1st Cir.

2001). We need not address, however, whether this case presents

one of the few circumstances in which a defendant may still receive

the adjustment, because the record simply does not support Diaz’s

contention that he ever accepted responsibility for his commission

of the crimes.

As evidence of his acceptance of responsibility, defendant

points to his objection to the pre-sentence report, in which his

counsel asserted:

It is represented that Mr. Diaz fully accepts his
responsibility as he now understands that his decision to
go to trial was due to his perception that he was somehow
legitimately assisting or helping the cooperating witness
(Avanti).

Although this statement purports to be an acceptance of

responsibility, it is nothing of the sort. Rather than admitting

that he committed the crimes alleged, Diaz admits only the conduct

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and denies the knowledge that makes it a crime. The record shows

that even at sentencing Diaz continued this denial. During the

sentencing hearing, defendant’s counsel asserted that defendant

still maintained that, rather than having been involved in criminal

conduct, he had been aiding the government informant in order to

assist the federal government.4 There is nothing in this record

which demonstrates that defendant ever took responsibility for any

of his criminal conduct.5 Consequently, refusal of the downward

adjustment was not clear error.

The district court’s refusal to grant defendant a downward

departure due to his health condition is also affirmed. In

reviewing the denial of a departure request this court’s review is

limited to whether the sentencing judge misconstrued its authority.

United States v. Mejia, 309 F.3d 67, 70 (1st Cir. 2002). Thus,

4
Counsel stated;
Mr. Diaz was firmly convinced that he was somehow
aiding the United States government through Mr. Avanti,
and that he thought he had an agreement with Mr.
Avanti, that Mr. Avanti would explain to the federal
government, the federal agents everything that was
going on.

5
Defendant’s attempt to blame the probation officer for
failing to give him an opportunity to confess his responsibility
is unavailing. In his meeting with the probation officer, it was
defendant who chose to remain silent regarding the criminal
conduct because his attorney was not present. Furthermore, this
was not the only opportunity for defendant to disclose his
acceptance of responsibility, as he could have submitted an
affidavit to the court prior to sentencing. Finally, defendant
himself exercised his right to address the court at sentencing
and chose to omit any statement accepting responsibility. Any
failure to record the alleged acceptance of responsibility falls
squarely upon defendant.

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 we review de novo a district court’s determination of its
authority to depart, but lack jurisdiction to review a
discretionary decision not to depart from the Sentencing
Guidelines.
Id.

The record before us indicates that the sentencing judge did

not misconstrue her authority. During sentencing the court

correctly told counsel that a downward departure could be granted

if the defendant could make a showing that he would be unable to

receive adequate treatment while serving his sentence with the

Bureau of Prisons (hereinafter “BOP”). This is a proper statement

of the district court’s authority under the sentencing guidelines.

See United States v. Martin, 363 F.3d 25, 50 (1st Cir. 2004)

(affirming downward departure where defendant made showing that he

could not receive adequate treatment from BOP). Indeed, defendant

does not here contend that the district court misconstrued its

authority, but rather that it erred by not permitting him an

opportunity to gain additional medical examinations in order to

present the true extent of his illness. As the district court

pointed out during sentencing, however, the examinations requested

by defendant would have been of no assistance to the court because

the persons by whom he wished to be examined had no apparent

knowledge of the treatment services available within the BOP.

Accordingly, the district court did not err in the refusal of

defendant’s request for a downward departure.

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C. Booker Error

Because all three of the defendants were sentenced under the

pre-Booker mandatory guidelines, we review to determine if we must

vacate any or all of the sentences. The government stipulates to

error as to each sentence, but argues that we must affirm because

there has been no resulting prejudice.

The first step in our inquiry is to determine who bears the

burden of persuasion on the issue of prejudice. This turns on

whether the defendants below “preserved” the error by objecting to

the sentence. In considering claims of Booker error we have been

somewhat lenient, construing any objection argued on the basis of

Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington,

542 U.S. 296 (2004), or general constitutional grounds, as

sufficient to preserve the issue. See United States v.

Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005).

With regard to defendants Diaz and Santos, there was no such

objection and it is clear that neither has preserved the issue.

Accordingly we review their sentences only for plain error, and

those defendants bear the burden of demonstrating “a reasonable

probability that the district court would impose a different

sentence [that is] more favorable to the [defendants] under the new

‘advisory Guidelines’ Booker regime.” Antonakopoulos, 399 F.3d at

75.

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 Defendant Medina, on the other hand, did object at sentencing

on the grounds that his sentence violated Apprendi. Although the

government argues that this objection was only sufficient to

“partially preserve” the issue (a distinction that we will address

later in our analysis), the government concedes that it bears the

burden to show, beyond a reasonable doubt, that the district court

would impose the same sentence under the advisory guidelines. See

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

Having determined the parties’ requisite burdens, we turn to

the record to decide whether those burdens have been met.

1. Defendant Santos

In arguing that there is a reasonable probability that the

district court would impose a lesser sentence under the advisory

guidelines, defendant Santos points only to the fact that he was

sentenced to the minimum permitted under the then mandatory

guidelines. We have previously held, however, that a sentence at

the low end of the guidelines, without more, is insufficient to

make the requisite showing under our plain error jurisprudence.

United States v. Kornegay, 410 F.3d 89, 99-100 (2005). Finally, we

have carefully reviewed the record before us and find nothing that

would establish a likelihood of defendant receiving a more

favorable sentence under the advisory guidelines. Accordingly, we

will affirm the sentence imposed by the district court as to

defendant Santos.

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 2. Defendant Diaz

The record also fails to indicate that there is a reasonable

probability that defendant Diaz would receive a more favorable

sentence under the advisory guidelines. Like Santos, Diaz was also

given the lowest possible sentence under the then existing

mandatory guidelines. Unlike Santos, however, the record indicates

that Diaz suffers from a serious illness. We have previously

recognized that such circumstances may, in some cases, make it more

likely that the district court would depart downward under the now

advisory guidelines. See United States v. Heldeman, 402 F.3d 220,

224 (1st Cir. 2005). This is not such a case. The record reflects

that the district judge carefully considered the defendant’s

illness in determining his sentence. At no time did she express

any concern that the guidelines failed to account for his illness

appropriately. On the contrary, the record reflects that the

district judge decided that the proper response to the defendant’s

illness was to recommend that he serve his sentence at a facility

which could provide appropriate treatment. There was no error in

this. We find nothing in this record indicating that the district

judge would do any differently under the advisory guidelines, and

therefore we will affirm defendant Diaz’s sentence.

3. Defendant Medina

As noted above, the government concedes that it bears the

burden to show beyond a reasonable doubt, that the district court

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would apply the same sentence under the now advisory guidelines.

Although we have noted that this is an extremely difficult burden,

it is not an impossible one. Vazquez-Rivera, 407 F.3d at 489-90.

The government first argues that all of the sentencing factors

relied upon by the district court were supported by overwhelming

evidence. The question, however, is not whether the district judge

would apply the same factors under the advisory guidelines, but

whether she would reach the same sentence based upon those same

factors. See Vazquez-Rivera, 407 F.3d at 490 (“factual certainty

alone would not be sufficient to show beyond a reasonable doubt

that the judge, acting under an advisory Guidelines system, would

have applied the same sentence on the basis of those factors”).

The government’s contention is not supported on this record.

Next, the government asserts that this defendant’s “partial”

preservation of the Booker error is further evidence that the judge

would apply the same sentence under the advisory guidelines. The

government labels this a “partial” preservation because defendant

Medina objected to only one of the sentencing factors applied by

the court. Essentially, the government argues that this is

significant because, even if his objection at sentencing had been

sustained, he still could have been sentenced under the mandatory

guidelines to the same sentence that he ultimately received, 235

months imprisonment. Although this fact may be interesting, we

fail to see, and the government has failed to articulate, why it is

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significant. The error in sentencing was not the district court’s

application of factors requiring judicial factfinding, it was doing

so under a mandatory guideline system. For purposes of determining

prejudice, it is the compulsory status of the guidelines that must

be proven harmless, and the “partial” preservation claimed by the

government bears no logical relation to that question.

Finally, the government argues that a comment made by the

judge during sentencing demonstrates that she would apply the same

sentence under the advisory guidelines. Although we have

recognized that such comments may be persuasive evidence that the

Booker error was harmless, see United States v. Melendez-Torres,

420 F.3d 45, 51-52 (1st Cir. 2005), no comments made by the judge

in this case can be interpreted to express such an opinion.

At sentencing, defendant’s attorney argued that it was unfair

that although defendant was acquitted of the firearm charge, the

judge’s application of the two-level enhancement for the presence

of a firearm would result in his receiving a sentence that was

substantially similar to his co-defendants who were convicted of

the firearm offense. In response to this argument, the judge

stated that “[c]onviction of the firearms charge would have

entailed a consecutive sentence on that charge.” The government

appears to argue that this statement demonstrates the judge’s

belief that the sentence given to defendant Medina was appropriate.

We, however, do not so construe it. The judge’s statement to

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counsel describing the effect of a conviction for the firearm

offense was a correct statement of the applicable law. It

contained no statement of belief or opinion, and does not assist

the government in meeting its burden.

Finally, we note that there is reason to doubt that defendant

would receive the same sentence under the advisory guidelines

because the district judge sentenced defendant Medina to the lowest

sentence permitted by the then mandatory guidelines.6 See United

States v. Casas, 425 F.3d 23, 61 (1st Cir. 2005) (observing that

judge had applied sentence at low end of the guideline range); see

also Vazquez-Rivera, 407 F.3d at 490 (stating that “our doubt...is

enhanced by the fact that, while the applicable Guidelines

constrained the sentencing judge to the upper margin of sentences

available under [the relevant statute], the sentence he chose was

at the low end of that margin”). On the record before us we are

not persuaded beyond a reasonable doubt that the district judge

would have applied the same sentence in Medina’s case under an

advisory guideline regimen.

6
Consideration of this fact with respect to defendant Medina
is entirely consistent with our affirmance of the sentences of Diaz
and Santos. Although a sentence at the low end of the guideline
range is of some relevance in determining the likelihood that the
district court would apply the same sentence under the advisory
regime, that fact alone is insufficient to make an affirmative
showing of prejudice. See Kornegay, 410 F.3d at 99-100. We need
not, and do not, attempt to further quantify the relevance of that
fact here.

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III. Conclusion

For the reasons stated above, we VACATE the sentence of

defendant Medina and REMAND for his resentencing. In all other

respects, the judgments of conviction and the sentences imposed by

the district court are AFFIRMED.

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