United States v. Ortiz

United States Court of Appeals
For the First Circuit

No. 05-1718

UNITED STATES OF AMERICA,

Appellee,

v.

DIEGO ORTIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.

Jeanne M. Kempthorne, by Appointment of the Court, for
appellant.
David G. Tobin, Assistant U.S. Attorney, with whom Michael J.
Sullivan, United States Attorney, was on brief for appellee.

May 3, 2006
 COFFIN, Senior Circuit Judge. Appellant Diego Ortiz claims

that he unknowingly got caught up in a drug deal when he agreed to

drive an acquaintance around town for a few hours. He was indicted

along with his passenger and a third individual, but was tried

alone after the other two entered pleas. A jury found Ortiz guilty

on one count of conspiracy and one count of possession, both with

the intent to distribute more than five kilograms of cocaine. See

21 U.S.C. §§ 846, 841(a)(1). On appeal, he challenges the

sufficiency of the evidence and also claims that the prosecutor’s

improper closing argument severely prejudiced his case. He further

asserts that the district court erred in imposing a ten-year

mandatory term of imprisonment. We affirm both his conviction and

his sentence.

I. Background

The facts presented at trial, taken in the light most

favorable to the prosecution’s case, are as follows. See United

States v. Llinas, 373 F.3d 26, 28 (1st Cir. 2004).

In the mid-afternoon of February 13, 2004, an undercover

Massachusetts State Trooper, Jaime Collazo, and a cooperating

witness, Raphael Tejeda, met in East Boston with Victor Sosa, the

target of an investigation by the Drug Enforcement Administration

(DEA), to discuss a purchase of five kilograms of cocaine. Sosa,

who had sold Collazo 100 grams of heroin two weeks earlier, said

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the cocaine transaction would have to wait until later in the day,

when he could get the drugs from his friend.

Sosa remained in regular telephone contact with Collazo and

Tejeda, and they eventually arranged to meet up again at a Kentucky

Fried Chicken in Everett, Massachusetts. In the interim, appellant

Ortiz had become Sosa’s driver,1 and the phone calls from Sosa to

Collazo after 5:30 p.m. were made on Ortiz’s cell phone. Sosa told

Collazo that his phone had run out of minutes. Neither Collazo nor

the cooperating source, Tejeda, had encountered Ortiz in prior

dealings with Sosa.

At about 6:30 p.m., Sosa and Ortiz, traveling in Ortiz’s car,

drove up beside the car in which Collazo and Tejeda were waiting in

the Kentucky Fried Chicken parking lot, and then Ortiz pulled back

out and drove away with Collazo and Tejeda following. At some

point, Collazo called Sosa and asked him to stop so they could

talk. Both cars pulled over, and Sosa got out of Ortiz’s car to

speak with Collazo, out of Ortiz’s hearing. Although the plan they

devised called for Collazo and Tejeda to follow Sosa to his

apartment, Collazo became concerned about a possible ambush and

stopped following after a while.

1
Ortiz testified that he ran into Sosa at a barber shop late
in the afternoon and that Sosa asked for a ride to his house.
After driving to Sosa’s apartment and having a beer there, Ortiz
said he agreed to drive Sosa to the Kentucky Fried Chicken.

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 Two phone calls between the cars, in which the parties

discussed whether and how to consummate the deal, then occurred.

Only the undercover agents’ end of the conversation was recorded,

so no voice identification could be made of the individual who was

speaking. Although the defense and prosecution agree that the

calls were made using Ortiz’s phone, their debate is whether Ortiz

participated in either conversation. Collazo testified that it was

not Sosa in either instance; Collazo knew his voice and had had

multiple telephone conversations with him earlier in the day.

Collazo’s testimony led inevitably to an inference that Ortiz had

been on the phone discussing resumption of the drug deal. Ortiz

testified, however, that he never conversed with Collazo.

Moreover, he argues that the evidence shows that Tejeda, who did

not testify, received the first of the two pertinent calls –

undermining Collazo’s testimony about that call. In addition, he

asserts that the taped content of the second call, in which Collazo

refers to meeting at “your house,” makes it implausible that

Collazo was talking to Ortiz, given that the plan had been to

rendezvous at Sosa’s house.

Ultimately, the parties agreed to meet at a Stop & Shop.

According to the plan, Collazo would arrive alone and would call

Tejeda to bring the money once he saw the cocaine. Sosa and Ortiz

arrived after Collazo, and Ortiz parked his car trunk-to-trunk

beside Collazo’s. Ortiz remained in the driver’s seat while Sosa

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and Collazo met between the trunks of the two vehicles. Collazo

noticed another man, later identified as co-defendant Alex Perez,

sitting in a third car that was parked parallel to Ortiz’s. When

Sosa tapped on Ortiz’s trunk, Ortiz popped it open using a latch

inside the car. Sosa showed Collazo the cocaine, which was in a

blue gym bag, and Collazo then alerted waiting law enforcement

agents to arrest Sosa and the other two men.

As police officers and agents converged on the parking lot,

Ortiz drove off. A few minutes later, he ran away from the car,

leaving it unparked and rolling. With a state trooper’s siren

sounding, the officers, some shouting “police,” pursued,

apprehended and arrested him. Ortiz stated, “What happened? What

happened? I’m a United States citizen,” and also told the arresting

officers he was “just the driver. The other guy was doing the

deal.”

At the police station, after waiving his Miranda rights, Ortiz

was asked if he knew what Sosa did for a living. Detective Joseph

Gallarelli testified that Ortiz replied, sarcastically, “Officer,

please.” Later in the interrogation, Ortiz said that he did not

know Sosa’s profession and did not know Perez. He admitted that he

let Sosa use his cell phone and that he had given rides to Sosa

before. He also told Gallarelli that he had given rides in the

past to others he believed were drug dealers.

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 An inventory search of Ortiz’s car turned up small amounts of

marijuana and cocaine in the glove compartment, which Ortiz

admitted were his. The blue bag that had been in the car’s trunk

contained 5.02 kilograms of cocaine.

Testifying in his own defense, Ortiz admitted seeing Sosa put

the blue gym bag in his trunk but said he never saw the contents

and did not know what was in it. He explained that he fled the

Stop & Shop parking lot because he was frightened and initially

neither heard the police siren nor saw the “DEA” or “Boston Police”

labels on the officers’ jackets. He said that he had agreed to

drive Sosa around because he was not working at the time and had

nothing to do. He acknowledged answering the phone once while

driving Sosa around and said that he told the caller to hold on and

then handed the phone to Sosa.

In rebuttal, the prosecution introduced the testimony of

Perez, who described bringing the cocaine to Sosa’s apartment. He

corroborated Ortiz’s testimony that they did not know each other

and that Ortiz was not in the room when Perez gave Sosa the

cocaine. Perez assisted the government’s case, however, by

testifying that he neither used Sosa’s or Ortiz’s cell phones on

the day of the arrest nor spoke with Collazo or Tejeda that day,

reinforcing the inference that Ortiz’s was the unfamiliar voice

Collazo heard on the phone.

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 At the end of the government’s case-in-chief and again at the

end of the trial, Ortiz moved for judgment of acquittal, arguing

that the evidence was insufficient to prove his knowing

participation in either the conspiracy or possession. The court

reserved its ruling and ultimately allowed the jury’s verdict to

stand. On appeal, Ortiz again argues that the evidence was

insufficient to support conviction, and he contends that the

prosecutor’s flawed closing argument unfairly impacted the jury’s

deliberations. He also challenges the sentence imposed. We begin

by discussing the sufficiency of the evidence, saving the details

of the closing argument and sentencing claims for our discussion of

those issues in Sections III and IV.

II. Sufficiency of the Evidence

When a judge expressly reserves decision on a motion for

acquittal under Fed. R. Crim. P. 29(a), “it must decide the motion

on the basis of the evidence at the time the ruling was reserved.”

Fed. R. Crim. P. 29(b); see United States v. Moran, 312 F.3d 480,

487-88 (1st Cir. 2002). Our review, which is de novo, is similarly

limited. Id.; United States v. Finn, 375 F.3d 1033, 1037, 1039

(10th Cir. 2004); United States v. Wahl, 290 F.3d 370, 374-75 (D.C.

Cir. 2002). We therefore consider only the evidence presented in

the government’s case-in-chief to assess whether “‘a rational

factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

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crime,’” Moran, 312 F.3d at 487 (quoting United States v. O’Brien,

14 F.3d 703, 706 (1st Cir. 1994)).

In so doing, we take all inferences in the light most

favorable to the verdict, we give equal weight to both direct and

circumstantial evidence, and we neither weigh witness credibility

nor require the prosecution to “‘eliminat[e] every possible theory

consistent with the defendant’s innocence,’” United States v.

Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir. 2001) (citation omitted).

See also United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006);

United States v. O’Shea, 426 F.3d 475, 479 (1st Cir. 2005). “[A]s

long as the guilty verdict finds support in a ‘plausible rendition

of the record,’ it must stand.” Moran, 312 F.3d at 487 (quoting

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

It is a rare appellant who can mount a successful sufficiency

attack in the face of these principles, see O’Shea, 426 F.3d at

479, and Ortiz has not managed to so distinguish himself. While he

raises intelligent challenges to multiple pieces of evidence, he is

unable to offset the tilt in favor of the jury’s judgment.

Cumulatively, as we shall describe, the evidence and the inferences

reasonably drawn from it allowed the jury to find him guilty on

both counts.

To prove a defendant guilty of the crime of conspiracy, the

government must show the existence of a conspiracy, the defendant’s

knowledge of the conspiracy, and the defendant’s voluntary

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participation. United States v. Nelson-Rodriguez, 319 F.3d 12, 27-

28 (1st Cir. 2003); see also United States v. Medina-Martinez, 396

F.3d 1, 5 (1st Cir. 2005). “‘Mere association’” with conspirators

or “‘mere presence’” during conduct that is part of the conspiracy

is insufficient to establish knowing participation, Nelson-

Rodriguez, 319 F.3d at 28; the defendant must be found to have

shared his co-conspirators’ intent to commit the substantive

offense, Llinas, 373 F.3d at 30. The substantive count, which was

charged under the aiding and abetting statute as well, see 18

U.S.C. § 2, required proof of essentially the same state of mind,

i.e., Ortiz’s intent to help Sosa effectuate the cocaine deal. See

United States v. Henderson, 320 F.3d 92, 109 (1st Cir. 2003).

The evidence, viewed in the government’s favor, was more than

ample to support the verdict. It is undisputed that Ortiz spent

several hours in the late afternoon and early evening on the day of

the deal driving Sosa from location to location, making one stop to

rendezvous with Collazo and Tejeda in the Kentucky Fried Chicken

parking lot and another stop to allow Sosa to converse with

Collazo. Multiple phone calls were exchanged between the occupants

of the two vehicles. Even if the encounter started out simply as

a request from Sosa for a ride, given the length of time they spent

together, the phone calls in Ortiz’s presence, and Sosa’s placing

the blue gym bag in the trunk of Ortiz’s car, a jury reasonably

could suspect that Ortiz had become aware of the nature of Sosa’s

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business at some point before the meeting at Stop & Shop and become

a willing accomplice in the transaction. Significantly, Ortiz was

not a novice with respect to drugs; he admitted to police that the

marijuana and cocaine found in his glove compartment were his own,

suggesting a familiarity with the methodology of drug deals.

Collazo’s testimony about his phone conversations with someone

other than Sosa – in essence, testimony that he spoke with Ortiz –

furthered the transformation of Ortiz from possible bystander to

knowing collaborator. That characterization was reinforced by

Ortiz’s flight and his post-arrest statement that “[t]he other guy

was doing the deal,” both reasonably viewed as efforts to distance

himself from a crime he knew about and assisted but considered

Sosa’s responsibility. Other evidence, while independently less

inculpatory, also supported a finding that Ortiz willingly

participated in the attempted transaction: that he pulled in beside

Collazo and Tejeda’s car trunk-to-trunk at Stop & Shop; that he

immediately opened the trunk at Sosa’s bidding; that he allowed

Sosa to use his cell phone repeatedly to call Collazo and Perez.

Appellant seeks in his brief to diminish the force of the

government’s evidence by pointing to innocent explanations. Sosa

always needed a ride, and Ortiz was unemployed, so his lengthy

engagement as Sosa’s driver was unremarkable. Ortiz claims that he

fled the scene when the police arrived because he didn’t realize at

first that they were law enforcement officers, and he feared for

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his safety. He asserts that his first excited statements – “What

happened? What happened? I’m a U.S. citizen. I didn’t do nothing

wrong.” – reflect confusion and innocence, not consciousness of

guilt. Indeed, he points out that, once it became clear that he

had been caught in a drug deal, he cooperated with the officers and

gave a full account of his travels with Sosa. Although he concedes

that the evidence shows that he knew what was going on by the time

he was arrested, he asserts that there was no evidence of knowledge

before that time. The officers had never previously seen him

during surveillance of Sosa, and there was no evidence that he

played a role in this transaction before he turned up as Sosa’s

driver.

On each of these points, however, the possibility of innocuous

explanations for his behavior does not foreclose the jury’s

contrary inferences. See United States v. Hughes, 211 F.3d 676,

681 (1st Cir. 2000) (citation omitted) (“[T]he jury is generally

‘at liberty to select freely among a variety of reasonable

constructions of the evidence.’”). On the excited utterances, for

example, Ortiz’s assertion that he did nothing wrong could simply

reflect his belief that driving someone else to transact that

person’s drug deal is not illegal.

Appellant similarly challenges the strength of the evidence on

the phone conversations that Collazo testified were with someone

other than Sosa, and we grant that the pertinent testimony was

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confusing. At one point on direct examination, Collazo appeared to

testify that someone other than Sosa was involved in three separate

phone conversations, while his testimony on cross-examination

referred explicitly only to one. In their briefs, the parties

focus on two calls. Appellant argues that Collazo’s testimony

about the unfamiliar voice he heard on the first of these calls was

entirely discredited on cross-examination when Collazo admitted

that it was Tejeda, not Collazo, who was on the phone that time.

The transcript, however, reveals that, while Tejeda answered the

phone and initially relayed Collazo’s words to the caller, Tejeda

ultimately said “[y]ou talk to him.” The next bit of dialogue may

reflect Collazo talking directly to the caller – or so the jury

reasonably could have found.

While there is no direct evidence that Collazo received a

response to his comments – and thus heard the caller’s voice at

that time – such an inference would have been reasonable based on

Collazo’s testimony that he heard the “other” voice more than once.

But however opaque the testimony about the earlier call, Ortiz was

implicated by Collazo’s unequivocal testimony that it was not Sosa

with whom he spoke on the second call. Ortiz, however, argues that

the content of the second call – referring to “your house” and

noting Collazo’s past demonstration that he was serious about the

deal – makes it clear that Collazo must have been speaking with

Sosa; it was Sosa’s house to which they had been heading to

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consummate the transaction, and it was Sosa with whom Collazo had

been negotiating.

Although Ortiz’s logic is rational, his view is again not the

only possible interpretation of the conversation. Collazo knew

that Sosa was using someone else’s phone and traveling as a

passenger in someone else’s car, and it is quite plausible that,

perceiving Ortiz and Sosa to be partners, he would make no

distinction between them in framing his comments. To the extent

such an inference depends upon the credibility of Collazo’s

repeated assurance that the second caller was not Sosa, the

judgment was the jury’s to make.

We thus acknowledge that plausible competing inferences exist

and concede that, even from the government’s perspective, the

evidence, which was entirely circumstantial, shows only limited

involvement by Ortiz. But competing inferences are not enough to

disturb the jury’s verdict, and limited involvement is nonetheless

involvement. When the pieces of evidence are layered, with

inferences taken in the government’s favor, this is not a case in

equipoise; a jury easily could find that Ortiz, while perhaps

brought into the conspiracy on the spur of the moment because he

had a car and was available, was a willing participant at the

critical time. We therefore conclude that the evidence was

sufficient to support the jury’s finding of guilt beyond a

reasonable doubt.

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 III. Prosecution’s Closing Argument

Ortiz argues that his conviction should be reversed because

the government’s closing argument was severely flawed, prejudicing

the jury against him. He asserts that the prosecutor misstated the

record on multiple occasions, invited an improper inference and

vouched for a witness. Because he did not object to any portion of

the closing at trial, however, his claims may be reviewed only for

plain error. See United States v. DeCicco, 439 F.3d 36, 44 (1st

Cir. 2006); Henderson, 320 F.3d at 105. Under the plain error

standard, a defendant not only must show an error that was obvious

and that affected substantial rights but also must persuade the

court that the error “seriously affect[ed] the fairness, integrity,

or public reputation of judicial proceedings.” Johnson v. United

States, 520 U.S. 461, 466-67 (1997) (internal quotation marks and

multiple citations omitted); see also DeCicco, 439 F.3d at 44-45.

While the closing in this case was not perfect, Ortiz’s claims

fall short of the plain error threshold, which “‘ordinarily [is]

limited to “blockbusters” and does not consider “the ordinary

backfires – whether or not harmful to a litigant’s cause – which

may mar a trial record.”’” See Henderson, 320 F.3d at 105 (quoting

United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987)). We

address each of the asserted improprieties.

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 A. Factual misstatements/vouching.

1. Phone calls. Ortiz claims that the prosecutor incorrectly

told the jury that Ortiz had spoken with Collazo “a couple of

times” and made more than one call from his cell phone to the

undercover buyers. Ortiz asserts that there was no evidence that

he made multiple calls, and he terms the evidence of even one call

“implausible.” We need not tarry over this contention. As

discussed earlier, Collazo’s testimony and the transcript of the

calls permitted an inference that Ortiz participated in two calls

– an inference the government was free to argue in closing.

2. Drug quantity. Ortiz next argues that the record lacks

support for the prosecutor’s statement that Ortiz “agreed to

transport $125,000 worth of cocaine in the trunk of his car.”

Although Ortiz is correct that the record does not show his

knowledge of the quantity of cocaine in the blue bag, the

prosecutor was entitled to argue that Ortiz had agreed to transport

the cocaine that was found in his vehicle – an amount that turned

out to be worth $125,000. To the extent the prosecutor’s statement

was at all misleading, it surely does not constitute plain error

given that the finding of guilt did not depend on the exact amount

of cocaine at issue.

3. Driver for drug deals. It is undisputed that the prosecutor

misstated the evidence in arguing that Ortiz “admitted that he had

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driven other people in the past to other drug deals.”2 What Ortiz

in fact said was that he had given rides in the past to people he

believed were drug dealers – a statement significantly different

from admitting that he had driven them to deals, particularly since

the government claimed he had done precisely that in this case.

The prejudice attached to this misstatement cannot be denied,

but, in context, it does not rise to the level of plain error.

Ortiz’s admission that he gave rides to known drug dealers

similarly supports an inference that he was familiar with drug

dealing and thus an unlikely innocent bystander in this deal. The

reference comprised a brief portion of the closing argument, and

the district court instructed the jury that counsels’ statements

are not evidence and that their own recollection must govern their

deliberations. See United States v. Bey, 188 F.3d 1, 8-9 (1st Cir.

1999) (instruction that counsel arguments are not evidence found

“sufficient to cure any potential prejudice”). Moreover, there is

no assertion that the prosecutor deliberately misstated the

2
The relevant portion of the government’s closing argument
was the following:

He [Ortiz] admitted that he had driven other people
in the past to other drug deals. Now, again, he
conveniently forgets making that statement to Officer
Gallarelli when Mr. Ortiz took the stand today, but he
did say it that night. He said it on the night of his
arrest. Please, members of the jury, if this defendant
had done it in the past, had driven other people to drug
deals, he surely knew what was going down on the night of
February 13th, 2004.

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evidence. In these circumstances, the prosecutor’s misstatement

was not even reversible error, let alone sufficient to scale the

“high hurdle” of the plain error standard. See Henderson, 320 F.3d

at 105; see also United States v. Villarman-Oviedo, 325 F.3d 1, 18

(1st Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986)) (“‘[T]he Constitution entitles a criminal defendant to a

fair trial, not a perfect one.’”).

Ortiz additionally argues that the prosecutor improperly

vouched for Gallarelli when, after she noted that Ortiz had

“conveniently” forgotten telling the officer that he had driven

other drug dealers, she continued: “but he did say it that night.

He said it on the night of his arrest.” In making that

observation, the prosecutor was not, however, asserting her

personal belief in the truthfulness of Gallarelli’s testimony, but

simply urging the jury to accept the officer’s version of what

occurred. This was permissible argument, not vouching. See United

States v. Marshall, 109 F.3d 94, 100 (1st Cir. 1997) (“Not every

factual recitation in the prosecutor’s argument must start with a

personal disclaimer.”).

B. Invited improper inference.

Ortiz claims the prosecutor improperly invited the jury to

infer that he was a knowing participant in the drug deal from the

evidence that he possessed a small amount of drugs for personal

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use. We see no error in the government’s use of this evidence.3

Ortiz admitted that the marijuana and cocaine found in his glove

compartment belonged to him. His possession of the drugs – and,

inferentially, his prior knowledge of drug dealing – were relevant

to his defense that he was an innocent bystander in Sosa’s

transaction. In no way did the prosecutor invite the jury to find

Ortiz guilty simply because his personal drug use demonstrated bad

character that made him likely to commit the crime. Rather, the

prosecutor used his past experience with drugs to help establish

that he “knew exactly what was going on that night.”

We thus conclude that none of the asserted flaws in the

prosecutor’s closing argument warrant reversal of appellant’s

conviction.

IV. Drug Quantity and Sentencing

An individual convicted of a possession offense involving at

least five kilograms of cocaine is subject to a ten-year mandatory

minimum term of imprisonment, see 21 U.S.C. § 841(b), and the

penalty for a conspiracy to commit such a crime is the same as for

3
The prosecutor made the following reference to the personal
drug possession as part of her discussion about knowledge:

Of course he knew what [Sosa] did for a living. He
admitted that he himself had drugs and he himself had
drugs in his car, little packages of marijuana that
Officer Gallarelli found, and the other little bag of
cocaine that was found in the glove compartment . . . .

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the substantive offense, see 21 U.S.C. § 846.4 In this case, the

jury found that the crimes involved 5.02 kilograms, triggering the

mandatory minimum. Although the district judge acknowledged that

the requisite ten-year sentence is “excessive in this case,” she

concluded that her hands were tied by the jury’s factual finding.

She imposed a sentence of 121 months.

On appeal, Ortiz challenges that sentence in two ways. First,

he claims that the district court erroneously instructed the jury

on drug quantity by failing to draw a distinction between the

amount attributable to him in particular and the amount involved in

the conspiracy as a whole. Second, he argues that the district

court itself improperly failed to make an individualized finding of

drug quantity.

The issue of instructional error is easily resolved.5 Ortiz

maintains that, on the conspiracy count, the court should have

asked the jury to find the amount of cocaine specifically

attributable to him – in addition to the total amount – because co-

conspirators are held accountable only for the quantity reasonably

foreseeable to them individually. See United States v. Colon-

4
Conviction on a possession offense as an aider and abettor
also results in the same penalty. See 18 U.S.C. § 2(a) (“Whoever
commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is
punishable as a principal.”).
5
We note that no contemporaneous objections were made to the
jury charge, but the standard of review is irrelevant here because,
as we discuss, no error occurred.

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Solis, 354 F.3d 101, 103 (1st Cir. 2004). Although Ortiz correctly

describes the foreseeability limitation, our case law allows the

particularized finding of drug quantity to be made by the court.

See United States v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir. 2005);

United States v. Derman, 298 F.3d 34, 42-43 (1st Cir. 2002). The

district court’s charge, directing the jury to determine the

quantity of cocaine involved in the conspiracy as a whole, was

therefore proper.6

The court, however, also neglected to make a finding of its

own on the quantity attributable to Ortiz on the conspiracy count.7

6
In passing, Ortiz also argues that the court erred by
failing to instruct the jury to determine the amount involved in
each of the two charged crimes separately. Consistent with the
charge, the jury form contained the following instruction:

If you found defendant guilty on either Count One or
Count Two, or both Counts, please answer the next
question concerning amount.

The amount of cocaine involved in one or both
offenses is ___________ grams.

The jury filled in the amount as 5020 grams (5.02 kilograms). The
government admits the better practice would be to ask the jury to
make separate quantity findings for each count. But in this case,
where the alleged conspiracy was limited to the single transaction
underlying the possession charge, combining them in the jury
instruction was not error.

7
Quantity is particularly significant in this case because
the amount seized exceeds the threshold for a mandatory minimum
sentence by only .02 grams. That small triggering amount –
together with Ortiz’s limited role and possible ignorance of the
total quantity – likely accounts for the district court’s sense
that the mandatory term is “excessive.”

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No doubt, this oversight stems from the fact that the possession

and conspiracy counts overlap with respect to drug quantity. In a

typical conspiracy case, multiple transactions conducted by

different co-conspirators may be deemed to comprise a single

conspiracy, but, as we have noted, a co-conspirator may be held

responsible for transactions in which he was uninvolved only if

such transactions were foreseeable to him. A sentencing judge in

such cases must explicitly determine which transactions are

attributable to each defendant. See Colon-Solis, 354 F.3d at 103.

Here, by contrast, both charges are based on the single attempted

sale that occurred on February 13, 2004, in which Ortiz personally

participated. The conspiracy amount and the individual amount thus

coincided, and that amount was found by the jury.

Ortiz nonetheless asserts that the court should have addressed

his individual responsibility and, in light of his limited role,

should have concluded that it was not foreseeable to him that the

gym bag Sosa placed in his car contained more than five kilograms

of cocaine. Consequently, Ortiz argues, he should not be held

accountable for the full quantity seized.

Such an argument clearly was foreclosed before the Supreme

Court changed the status of the Sentencing Guidelines in United

States v. Booker, 543 U.S. 220 (2005). Under the guidelines, the

foreseeability inquiry applies only to the conduct of co-

conspirators, and a defendant’s ignorance of the particulars does

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not affect his accountability on a substantive drug charge. See

U.S.S.G. § 1B1.3(a)(1)(A) & comment. (n.2) (“The requirement of

reasonable foreseeability applies only in respect to the conduct .

. . of others . . . . It does not apply to conduct that the

defendant personally undertakes, aids, abets . . . . or willfully

causes . . . .”); comment. (n.2(a)(1)) (“a defendant who transports

a suitcase knowing that it contains a controlled substance . . . is

accountable for the controlled substance in the suitcase regardless

of his knowledge or lack of knowledge of the actual type or amount

of that controlled substance”). Under the guidelines, then, Ortiz

undisputedly was subject to the ten-year minimum term based on the

jury’s finding that he possessed, or aided and abetted the

possession of, the 5.02 kilograms.

The guidelines, however, are no longer mandatory, Booker, 543

U.S. at 245, and we understand Ortiz to be arguing that the court

now has the discretion, as well as the obligation, to consider

foreseeability in circumstances such as these to assure that the

sentence imposed is reasonable. See United States v. Alli, No. 05-

1698, slip. op. at 11 (1st Cir. April 7, 2006) (“Sentences imposed

under the advisory guidelines scheme . . . are subject to appellate

review for reasonableness.”). This argument works better for Ortiz

in theory, however, than in application.

Although the guidelines are no longer decisive, Ortiz’s

sentence still must conform to the applicable statutory provision,

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21 U.S.C. § 841(b), which specifically prescribes a ten-year

minimum term for a violation “involving” five kilograms or more of

cocaine. We see no basis for concluding that Ortiz’s crimes

“involved” some amount other than the 5.02 kilograms that the blue

gym bag contained, and he cites no case in which a court, for

sentencing purposes, discounted the drug quantity a defendant was

found to have possessed (or aided someone else in possessing).

We understand Ortiz’s reaction to this sentence. But like the

district court, we cannot find legal authority to diverge from the

statutory scheme and base his sentence on a drug weight different

from that “involved” in the crime. And while the sentence may be

severe, imposing responsibility for the whole amount is neither

shocking nor indefensible in this case; given that the drugs were

carried in a gym bag, it would not be unreasonable to infer that

Ortiz knew the deal involved a good sized quantity.8

In sum, while the district court was not bound by the

guidelines in determining a reasonable sentence, the statute of

conviction does not leave open the possibility of a sentence based

on a quantity of drugs less than that “involved” in the crimes that

appellant committed. Accordingly, his sentence, as well as his

convictions, must stand.

Affirmed.

8
Ortiz testified that he saw Sosa put “a small gym bag” in
his trunk.

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