United States Court of Appeals
For the First Circuit
Nos. 05-1684, 05-1685, 05-1686
UNITED STATES OF AMERICA,
Appellee,
v.
TOMÁS GARCÍA-CARRASQUILLO, a/k/a LELE;
JOSÉ R. CLAUDIO-GARCÍA; and
REYNALDO GONZÁLEZ-RIVERA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
John Ward-Llambias, for appellant García-Carrasquillo.
José F. Quetglas-Jordán, with whom Quetglas Law Offices was on
brief, for appellant Claudio-García.
Terrance J. McCarthy, for appellant González-Rivera.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.
April 3, 2007
TORRUELLA, Circuit Judge. Co-defendants-appellants Tomás
García-Carrasquillo, José R. Claudio-García, and Reynaldo González-
Rivera were convicted of multiple counts involving the possession
of drugs and firearms. On appeal, García-Carrasquillo and Claudio-
García challenge the sufficiency of the evidence against them, and
González-Rivera challenges various aspects of his sentence. After
careful consideration, we affirm García-Carrasquillo's and
Claudio-García's convictions, but we vacate González-Rivera's
sentence and remand for re-sentencing due to the inadequacy of the
district court's explanation for selecting the sentence imposed.
I. Background
A. The Scene of the Crime
On May 9, 2003, at approximately 5:45 p.m., Agents Héctor
Valentín and Nelson González-Rodríguez of the Puerto Rico Police
Department's Special Arrests and Extraditions Division established
surveillance of a residence in the Río Grande area of northeastern
Puerto Rico, in relation to two local felony arrest warrants for
García-Carrasquillo and a fugitive arrest warrant for Claudio-
García.1 The split-level house consisted of the main residence on
the upper level, and a small ground-level apartment accessed by a
door under a carport at the front of the house. The carport stood
over a driveway that led to a gate and then out to the road in
1
Claudio-García had been serving a sentence at Camp Santana, a
Puerto Rico institution for minors, when he left on a three-day
pass and never returned.
-2-
front of the house. The agents parked their unmarked car on the
road approximately 100 meters up a hill from the house, where they
could observe activity around the house with binoculars. From
their vantage point, they could see a Ford Bronco parked under the
carport at the front of the house. They could not see the door to
the ground-level apartment located behind the Bronco, nor could
they see a short staircase on the left side of the carport.2 They
could, however, see the staircase leading to the main entrance on
the upper level of the house.
Around two hours later, a stolen Mazda Protegé3 pulled up
and parked on the road in front of the house, outside a gate across
the driveway. García-Carrasquillo and Claudio-García exited the
vehicle and entered the carport, presumably to enter the ground-
level apartment at the rear of the carport, though it is unclear
whether the agents actually saw the men enter, or later exit,
through the door to the apartment.4 Fifteen minutes later, García-
Carrasquillo walked out from under the carport carrying an assault
2
It is not clear where this staircase led.
3
The agents had previously followed García-Carrasquillo's
girlfriend to the same residence, where she had left with an
unknown individual in the same Mazda Protegé, which the agents then
determined had been stolen from an auto dealer.
4
Agent González-Rodríguez testified that he could not see the
apartment door at any time, while Agent Valentín testified that at
some point during the surveillance he observed both men entering
and exiting through the apartment door.
-3-
rifle, which he placed in the trunk of the Mazda Protegé. He then
returned to the carport.
At this point, the agents notified their supervisor,
Lieutenant Herminio Díaz, of the situation. Lieutenant Díaz
mobilized the SWAT team and posted two agents, José Nevárez Ortiz
and Richard Carrera, at the back of the house. As the SWAT team
approached the house, José David Cruz-González, the owner of the
house, who was somewhere outside the gate across the driveway in
front of the house,5 ran through the gate toward the house shouting
that the police were there. The three co-defendants in the case,
García-Carrasquillo, Claudio-García, and González-Rivera, then ran
out of the ground-level apartment and joined Cruz-González in
fleeing towards the back of the house.
At the back of the house, the four men jumped over a
fence and continued to run. Agent Nevárez shouted for the men to
stop and told them they were under arrest. The fleeing men and the
officers then exchanged gunfire; González-Rivera was shot in the
leg. The men continued to run and exchange gunfire with the
pursuing police until the four men fell into a large hole in the
ground,6 where they were apprehended and arrested. The three co-
5
Agent González-Rodríguez testified at one point that Cruz-
González was "just lying" in the road in front of the house.
6
According to Agent González-Rodríguez, the "big hole" was
approximately ten feet long by ten feet wide and eight feet deep,
and was possibly part of a septic tank under construction.
-4-
defendants were each found with loaded firearms on their persons;
however, no drugs or paraphernalia were found on any of the
defendants at the time of their arrest.
Meanwhile, back at the house, the SWAT team, Lieutenant
Díaz, and Agent Valentín searched the ground-level apartment, where
they found a large amount of cocaine and cocaine base (crack
cocaine), a small amount of marijuana, and assorted drug
paraphernalia, including a stove for cooking crack cocaine and
items used to break up cocaine rocks. The cocaine base was
packaged in approximately 972 vials, which were placed in plastic
bags labeled by drug distribution point. The Mazda Protegé was
taken to the police station after the arrest; when the police
opened the trunk, they found an AR-15 rifle along with the AK-47
that the agents had seen García-Carrasquillo put there during their
surveillance. The police did not take any fingerprints from the
drugs, paraphernalia, or firearms recovered from the apartment or
the vehicle, nor from the firearms found on the defendants at the
time of their arrest.
B. Legal Proceedings
On May 10, 2003, the defendants were taken before a local
magistrate judge for a probable cause hearing. After the judge
advised the defendants of their right to remain silent, García-
Carrasquillo voluntarily disclosed that all of the drugs and
firearms seized the previous day belonged to him.
-5-
On December 17, 2003, a grand jury returned a seven-count
Superseding Indictment against the defendants.7 Counts One and Two
charged that all three defendants, aiding and abetting each other,
knowingly possessed with the intent to distribute 96.87 grams of
cocaine base and 299.96 grams of cocaine, respectively, in
violation of 21 U.S.C. § 841(a)(1). Count Three charged García-
Carrasquillo with knowingly possessing certain firearms in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1). Count Four charged all three defendants with
knowingly using, carrying, and discharging certain firearms in
relation to a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii), (C)(i). Counts Five and Six charged García-
Carrasquillo and González-Rivera, respectively, with being a felon
in possession of certain firearms in violation of 18 U.S.C. § 922
(g)(1). Count Seven charged Claudio-García with being a fugitive
in possession of certain firearms, also in violation of 18 U.S.C.
§ 922(g)(2).
The defendants were tried over nine days in March and
April of 2004. At the close of the government's case, the
defendants moved for judgments of acquittal on the ground of
insufficient evidence; the district court denied the motions. The
court also denied the defendants' renewed motions for judgment of
7
Cruz-González was also charged in the same indictment, but the
district court granted his motion to sever prior to trial.
-6-
acquittal the following day. On April 22, 2004, a jury acquitted
all three defendants of Count Four, and also acquitted González-
Rivera of Count Six, but found the three defendants guilty on all
other counts as charged.
On April 5 and 7, 2005, the district court sentenced the
three defendants. Only González-Rivera challenges his sentence,
and therefore his is the only sentence we will discuss in detail.8
González-Rivera's presentence report ("PSR") calculated an initial
base offense level of 32 pursuant to U.S.S.G. § 2D1.1, after
converting the quantities of cocaine base and cocaine powder into
an equivalent quantity of marijuana using the Drug Equivalency
Table. The PSR also recommended a two-level enhancement for
possession of a firearm in relation to a drug trafficking offense,
U.S.S.G. § 2D1.1(b)(1), and another two-level increase for
"recklessly creat[ing] a substantial risk of death or serious
bodily injury to another person in the course of fleeing from a law
enforcement officer," id. § 3C1.2. Utilizing González-Rivera's
criminal history category of IV, the PSR calculated an advisory
guideline range of 262 to 327 months imprisonment.
8
García-Carrasquillo and Claudio-García were each sentenced to
262 months imprisonment on Count One, 240 months on Count Two, and
120 months on Counts Five and Seven respectively, to be served
concurrently. In addition, García-Carrasquillo was sentenced to
another 120 months on Count Three, to be served consecutively to
the other terms.
-7-
González-Rivera objected to the PSR on two grounds: (1)
that the two recommended enhancements were inapplicable because the
jury acquitted him of all firearms charges, and therefore
application of the enhancements would violate his Sixth Amendment
right under Blakely v. Washington, 542 U.S. 296 (2004) (requiring
that facts used to increase a defendant's sentence beyond the
statutory maximum set by state sentencing guidelines be found by a
jury);9 and (2) that if the court applied the two-level increase
for possession of a firearm, the sentencing guidelines prohibited
imposition of the second two-level enhancement for obstruction of
justice because the same conduct was the basis of both adjustments,
see U.S.S.G. § 3C1.2 cmt. n.1.
The government responded by arguing that Blakely did not
apply to the federal sentencing guidelines. The probation officer
also responded to the defendant's objections, arguing that even
though González-Rivera had been acquitted of the firearms charges,
the corresponding enhancement could still be applied pursuant to
U.S.S.G. § 1B1.3 because he aided and abetted others who were
convicted of possessing firearms during the commission of the same
offense. The probation officer also argued that the obstruction of
justice enhancement applied because González-Rivera created a
substantial risk of injury to others in the course of fleeing from
9
United States v. Booker, extending Blakely to the federal
sentencing guidelines, had not yet been decided. See 543 U.S. 220,
243-44 (2005).
-8-
the police, by acting with the other defendants who were in
possession of firearms.
At González-Rivera's sentencing hearing, defense counsel
first presented mitigating factors, including the terrible
devastation suffered by González-Rivera when his brother, working
in the United States, shot and killed his work supervisor; and
González-Rivera's dramatic spiritual awakening, evidenced by the
fact that he is now serving as a pastor at his correctional
facility. González-Rivera's counsel then reiterated his objections
to the PSR, and requested a sentence of 168 months, which was the
low end of the 168 to 210 months guidelines range without
application of the two recommended enhancements.
The government argued that the court should apply the two
enhancements and impose a sentence at the top of the guidelines
range due to the large amounts of drugs and guns seized and the
defendant's attempt to flee the scene. The government also noted
González-Rivera's criminal history, which indicated that he "lived
a life of crime" from 1996 to 2003, and his lack of a repentant
statement with respect to the instant crime.
After hearing the two sides' arguments, the district
court imposed a sentence of 210 months imprisonment for each count,
to run concurrently, followed by supervised release for five years
-9-
as to Count One and three years as to Count Two, to run
concurrently.10 The district court explained:
The Court has considered all the applicable
adjustments under the now Advisory Federal
Sentencing Guidelines, as well as the other
sentencing factors set forth in 18 [U.S.C. §]
3553(a), namely the nature and circumstances
of the offenses and defendant's history and
characteristics, the need to promote respect
for the law and provide just punishment in
light of the seriousness of the offense,
deterrence, the protection of the public from
further crimes of the defendant,
rehabilitation, and the need to avoid
unwarranted sentence disparities among
defendants with similar records who have been
found guilty of similar conduct.
II. Sufficiency of the Evidence
García-Carrasquillo and Claudio-García both appeal their
convictions on the ground that there was insufficient evidence
linking them to the drugs and paraphernalia found in the house from
which they fled before being arrested. See Fed. R. Crim. P. 29
("[T]he court on the defendant's motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to
sustain a conviction."). We review sufficiency of the evidence
challenges de novo, affirming the conviction if, after viewing all
the evidence in the light most favorable to the government and
indulging all reasonable inferences in the government's favor, a
10
The district court also imposed various conditions, not relevant
here, as well as a special monetary assessment of $200 as required
by law.
-10-
rational factfinder could conclude that the prosecution proved all
elements of the crime beyond a reasonable doubt. United States v.
Boulerice, 325 F.3d 75, 79 (1st Cir. 2003).
In order to prove possession with intent to distribute,
the government must show that the defendants knowingly and
intentionally possessed, either actually or constructively, a
controlled substance with the specific intent to distribute.
United States v. López-López, 282 F.3d 1, 19 (1st Cir. 2002).
"Constructive possession exists when a person knowingly has the
power and intention at a given time to exercise dominion and
control over an object either directly or through others." United
States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005) (internal
quotation marks omitted). While mere presence on the property,
proximity to the drugs, or association with the possessor is not
sufficient, United States v. Barnes, 890 F.2d 545, 549 (1st Cir.
1989), the government may rely entirely on circumstantial evidence
to show constructive possession. United States v. Echeverri, 982
F.2d 675, 678 (1st Cir. 1993) ("The attendant circumstances tell
the tale[,] and the culpability of a defendant's presence hinges
upon whether the circumstances fairly imply participatory
involvement.").
In order to prove aiding and abetting, the government
must first establish the commission of the offense by the
principal, and then prove that "the defendant consciously shared
-11-
the principal's knowledge of the underlying criminal act, and
intended to help the principal." United States v. Henderson, 320
F.3d 92, 109 (1st Cir. 2003); see also United States v. Rodríguez-
Alvarado, 985 F.2d 15, 17-18 (1st Cir. 1993) (requiring that the
government show "that the defendant associated himself with the
commission of the offense, participated in it as something that he
wished to bring about, and sought by his actions to make it
succeed"). Again, mere association with the principal or presence
at the scene of the crime is insufficient, even with knowledge that
the crime is to be committed. United States v. Hyson, 721 F.2d
856, 862 (1st Cir. 1983).
We can quickly dispose of García-Carrasquillo's claim
that there was insufficient evidence to support his conviction for
possession. The day after the defendants were arrested, they were
taken before a state magistrate judge for a probable cause hearing.
Although there was no written record of that hearing, Agent
Valentín testified at trial that after the magistrate advised the
defendants of their right to remain silent, García-Carrasquillo
voluntarily admitted that all the weapons and drugs seized from the
-12-
house were his.11 His admission is unquestionably sufficient to
support his conviction.12
The sufficiency of the evidence against Claudio-García is
a much closer question. He argues that there was insufficient
evidence of his constructive possession because there was no
evidence that he had dominion or control over the drugs. He also
challenges the sufficiency of the evidence of aiding and abetting,
arguing that there was no evidence that he willfully intended to
help García-Carrasquillo in the crime of possession with intent to
distribute. Claudio-García asserts that the evidence proves, at
most, that he was merely present at the scene.
Having affirmed the sufficiency of the evidence that
García-Carrasquillo was the principal, we need only satisfy
ourselves that there was evidence presented from which a rational
juror could infer that Claudio-García intended to aid García-
11
At trial, García-Carrasquillo's attorney objected to the
admission of Agent Valentín's testimony regarding García-
Carrasquillo's alleged admission, on the ground that the testimony
required "independent corroboration," but the district court judge
overruled the objection. García-Carrasquillo does not appeal the
admission of the evidence.
12
García-Carrasquillo does not challenge the sufficiency of the
evidence as to other elements of the crime, particularly the
specific intent to distribute the drugs. Nonetheless, we find that
the large amount and individual packaging of the drugs otherwise
supports a conviction under 21 U.S.C. § 841(a)(1). See United
States v. Latham, 874 F.2d 852, 862-63 (1st Cir. 1989) (collecting
cases supporting the proposition that "possession of large
quantities of drugs justifies the inference that the drugs are for
distribution").
-13-
Carrasquillo in his crime of possession with intent to distribute.
If the government successfully proves aiding and abetting, it does
not need to prove that Claudio-García himself actually or
constructively possessed the drugs, since either theory of guilt
alone would sustain his conviction. 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."); see also United States v. Fuller, 768
F.2d 343, 346 (1st Cir. 1985) ("[W]e find the evidence presented
was more than sufficient to support the jury's verdict based on
either theory, aiding and abetting or constructive possession.").
The evidence fairly demonstrates that Claudio-García was
in hiding with his uncle, García-Carrasquillo, and traveled with
him in a stolen car to the house where García-Carrasquillo kept a
large quantity of individually packaged drugs; that he remained in
the apartment with his uncle and the drugs for a couple of hours
before the SWAT team arrived;13 and that he then attempted to flee
from the police, exchanging gunfire with them when they pursued.
From this evidence, a rational juror could reasonably infer that
Claudio-García accompanied his uncle to the house filled with drugs
13
Claudio-García asserts that there was no evidence that he was
in the apartment because the agents could not see the door to the
apartment from their vantage point. Even if that were so, the jury
could infer that the defendants were in the apartment based on the
undisputed testimony that the defendants were seen entering and
leaving the carport where the door to the apartment was located.
-14-
because García-Carrasquillo trusted his nephew enough to enlist his
help in committing the crime charged. Cf. United States v. Rincón,
180 F. App'x 376, 379 (3d Cir. 2006) (allowing inference that drug
dealer trusted defendant based on evidence that dealer left drugs
with defendant, in part to support conviction for aiding and
abetting in drug sale). The jury could further infer that Claudio-
García was in fact so aiding his uncle, especially given that he
knowingly ran from and shot at the police when they attempted to
apprehend them. See López-López, 282 F.3d at 21 ("[The defendant]
ran when he saw the police and hid in a field, which suggests
awareness of guilt.").
Claudio-García correctly points out that there is
another, more plausible explanation for his presence at the scene
and his attempt to flee: He was an armed fugitive in hiding with a
wanted family member, and he ran in order to avoid capture by the
police. While this could be true, the government need not exclude
every possible explanation. See United States v. Ortiz, 447 F.3d
28, 33 (1st Cir. 2006) ("[T]he possibility of innocuous
explanations for [a defendant's] behavior does not foreclose the
jury's contrary inferences."). Hence, there was sufficient --
albeit circumstantial and not particularly strong -- evidence that
Claudio-García's presence at the scene and association with his
uncle were not just "mere" presence and association, see Echeverri,
982 F.2d at 678 ("[A] defendant's 'mere presence' argument will
-15-
fail in situations where the 'mere' is lacking."), but rather that
he was a culpable participant in García-Carrasquillo's crime of
possession with intent to distribute, see United States v. Lema,
909 F.2d 561, 570 (1st Cir. 1990) ("[P]resence on a single occasion
may support a conviction for aiding and abetting if the surrounding
circumstances lead to a reasonable inference that the defendant
must have been a knowing participant."). Therefore, we must affirm
Claudio-García's conviction as well.
III. González-Rivera's Sentence
González-Rivera makes three claims of error with respect
to his sentence: (1) that the district court failed to adequately
explain the reasons for choosing the sentence imposed; (2) that the
district court violated his Fourteenth Amendment right to equal
protection when it applied the disparate equivalency ratio between
crack and powder cocaine;14 and (3) that the sentence violates his
Fifth Amendment right to due process and the Eighth Amendment
prohibition on cruel and unusual punishment because it is based on
the crack to powder cocaine disparity. We review these legal
challenges de novo. United States v. Rivera, 448 F.3d 82, 84 (1st
Cir. 2006). If an issue is not raised below, however, we review
only for plain error. United States v. Carvell, 74 F.3d 8, 14 (1st
Cir. 1996).
14
We assume that he meant this as a Fifth Amendment challenge,
since the Fourteenth Amendment applies only to the states. See
Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954).
-16-
A. Explanation for Sentence Imposed
In United States v. Jiménez-Beltre, 440 F.3d 514, 518-19
(1st Cir. 2006) (en banc), we outlined the appropriate post-Booker
approach to sentencing under the federal guidelines to aid us in
reviewing the reasonableness of a sentence. We directed trial
courts to engage in a "sequential determination of the guideline
range, including any proposed departures, followed by the further
determination whether other factors identified by either side
warrant an ultimate sentence above or below the guideline range."
Id. An important prerequisite to our reasonableness analysis is
the district court's reasoned explanation for the sentence imposed,
as required by 18 U.S.C. § 3553(c). Id. at 519. This is true even
if the sentence is within the guidelines range. See United States
v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006). We are,
however, prepared to read a district court's less-than-explicit
explanation in light of the record. United States v. Navedo-
Concepción, 450 F.3d 54, 57 (1st Cir. 2006). "The more obvious the
reasons for a [sentencing] choice, the less that needs to be
explained." Id.
Although at times we have been willing to go to great
lengths to infer the district court's reasoning from the record,
"there are limits." United States v. Gilman, No. 06-1376, 2007 WL
686648, at *4 (1st Cir. Mar. 8, 2007). This case exceeds those
limits. The district judge gave a one-sentence explanation of her
-17-
choice of sentence, which conclusorily stated that she had
considered the appropriate adjustments and the § 3553(a) factors.
She did not explain her guidelines calculation, nor did she include
any reasoned analysis or reference any evidence that influenced her
decision. She merely stated the sentence and paraphrased three of
the seven enumerated factors, which she apparently considered
important.
Furthermore, we are unable to discern the court's
reasoning by looking to the record of the parties' arguments. The
government argued for a sentence at the top of the guidelines range
considering two enhancements, whereas the defendant requested a
sentence at the bottom of the range without the enhancements,
citing mitigating factors. The district judge did not explain
whether she applied one or both recommended enhancements, what the
applicable guidelines range was, whether she thought the defendant
deserved a sentence at any point within a particular range, or
whether she was influenced by either sides' arguments enough to
depart from one of the two ranges under consideration.
Consequently, this case differs from other cases in which
we were able to understand with a modicum of certitude the reasons
behind the district court's choice of sentence by reviewing the
sentencing record. See, e.g., United States v. Vázquez-Rivera, 470
F.3d 443, 448 (1st Cir. 2006) (affirming a sentence where the judge
made clear findings on the record, referenced the sentencing
-18-
factors, and made an explicit statement of the factual basis of the
sentence); Navedo-Concepción, 450 F.3d at 57-58 ("In this case, the
district court's explicit concerns were the scope of the crime and
the potential for dangerousness. Beyond that, the district court
referred generally to 'the evidence presented during the trial' as
justifying 'a sentence at the upper end of the advisory
guidelines.'"); United States v. Scherrer, 444 F.3d 91, 94 (1st
Cir. 2006) ("Taken at face value, these [mitigating] factors do at
first seem to have weight; but the government gave some effective
answers in the district court and it is fair to infer that the
district court found them persuasive. That the district court did
not elaborate on them--it said only that it took them into account-
-does not preclude the inference where the record explains it.");
United States v. Alli, 444 F.3d 34, 41 (1st Cir. 2006) ("[Where the
district court] simply stated, '[T]his is one of those cases . . .
where I think the guidelines produce a sentence that is reasonable
and perfectly consistent with the factors enumerated in the
statute, 3553(a),' . . . we do not fault the judge for not speaking
further about the § 3553(a) factors, given that none were raised
for his consideration and, in his independent judgment, none were
worthy of further discussion." (second and third alterations in
original)).
The government argues that it is obvious that the
district court chose not to apply the two recommended enhancements
-19-
and that it then adopted the government's arguments for a sentence
at the top of the resultant guidelines range. While this is
certainly a plausible reading of the record, even if it were true,
the district court's explanation would be insufficient as a matter
of law. Section 3553(c)(1) requires that the trial judge identify
its reason for selecting a sentence at a particular point within a
range exceeding twenty-four months. See Gilman, 2007 WL 686648, at
*5 ("[T]he statement here does not identify the reason that the
district court imposed a sentence in the middle of the guideline
range rather than elsewhere within that range (which spans more
than 24 months), in direct violation of Section 3553(c)(1)."). If
the court below rejected the enhancements, which is by no means
clear, the guidelines range of 168 to 210 months would exceed
twenty-four months, and the court would have to explain why it
chose the top of the range.
Because the court did not even approximate our Jiménez-
Beltre approach nor provide any reasoned explanation for its
determination, we will not infer several degrees of reasoning,
including a specific explanation explicitly required by law, and
guess what the district court was thinking. Therefore, on this
ground,15 we vacate González-Rivera's sentence and remand for
15
To be clear, we reject any defense argument that we cannot
uphold a reasonable sentence if the district court does not make an
explicit statement of its reasons on the record. Our precedent is
exceedingly clear that we can look to the record to clarify the
judge's reasoning. That said, district court judges would do well
-20-
resentencing consistent with this opinion and prior precedent. Id.
at *4 ("[I]f we are in fact unable to discern from the record the
reasoning behind the district court's sentence, appellate review is
frustrated and 'it is incumbent upon us to vacate . . .' the
decision below to provide the district court an opportunity to
explain its reasoning at resentencing.").
B. Crack and Powder Cocaine Equivalency Ratios
The remainder of González-Rivera's arguments, none of
which he raised below, involve the 100:1 equivalency ratio of crack
to powder cocaine used to calculate his sentence. See United
States v. Pho, 433 F.3d 53, 54-57 (1st Cir. 2006) (describing "the
history of the disparate treatment of crack and powdered cocaine
embedded in the federal sentencing guidelines (commonly referred to
as the 100:1 ratio)"). In 1994, we upheld the sentencing
distinction between crack and powder cocaine against both due
process and equal protection challenges under the Fifth Amendment.
United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir. 1994).
We said that Congress had sufficient reasons for treating crack
more harshly than powder cocaine, and that "there are racially
neutral grounds for the classification that more plausibly explain
its [disparate] impact on [minorities]." Id. (internal quotation
marks and alteration omitted). González-Rivera offers no arguments
to make the sentencing process as transparent as possible, to avoid
the possibility of remand on appeal. See Jiménez-Beltre, 440 F.3d
at 521 (Torruella, J., concurring).
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that we have not consistently rejected before, see Pho, 433 F.3d at
61-65 (rejecting a variety of arguments against the ratio,
including those based on the Sentencing Commission's effort to ease
the discrepancy), and even so, based on our clear precedent, there
was obviously no plain error on the part of the district court in
applying the equivalency ratios.
González-Rivera also challenges the equivalency ratio as
so disproportional as to be unconstitutional under the Eighth
Amendment. The First Circuit has not squarely decided this issue,
but every other circuit has rejected the argument that the
sentencing disparity between crack and powder cocaine constitutes
cruel and unusual punishment. See United States v. Brooks, 161
F.3d 1240, 1247 (10th Cir. 1998); United States v. Brazel, 102 F.3d
1120, 1158 (11th Cir. 1997); United States v. Fraiser, No. 94-
30287, 1995 WL 528004, at *1 (9th Cir. 1995) (unpublished opinion)
(citing United States v. Harding, 971 F.2d 410, 414 (9th Cir.
1992)); United States v. Jackson, 59 F.3d 1421, 1424 (2d Cir.
1995); United States v. Smith, 34 F.3d 514, 525 (7th Cir. 1994);
United States v. Fisher, 22 F.3d 574, 580 (5th Cir. 1994); United
States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992); United States v.
Levy, 904 F.2d 1026, 1034 (6th Cir. 1990); United States v.
Thomas, 900 F.2d 37, 39 (4th Cir. 1990); United States v. Buckner,
894 F.2d 975, 980-81 (8th Cir. 1990); United States v. Cyrus, 890
F.2d 1245, 1248 (D.C. Cir. 1989). Moreover, we have stated many
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times before that "[t]he decision to employ a 100:1 crack-to-powder
ratio . . . is a policy judgment, pure and simple," and therefore
it is up to Congress -- not the courts -- to adopt rational drug
equivalency ratios. Pho, 433 F.3d at 62-63.
Although this is enough to defeat González-Rivera's
argument under a plain error standard, we also point out that a
defendant seeking proportionality review under the Eighth Amendment
must "demonstrate, at the threshold, an 'initial inference of gross
disproportionality' between the 'gravity of [the] criminal conduct
and the severity of the . . . penalty' imposed." United States v.
Cardoza, 129 F.3d 6, 18 (1st. Cir. 1997) (internal citation
omitted) (alterations in original). We have previously upheld a
280-month sentence for the distribution of 85.3 grams of crack
cocaine against an Eighth Amendment challenge. United States v.
Graciani, 61 F.3d 70, 76-77 (1st Cir. 1995). Here, González-
Rivera's sentence was seventy months less for a conviction
involving over ten grams more crack. We therefore cannot infer
gross disproportionality in this case.
IV. Conclusion
For the foregoing reasons, we affirm García-
Carrasquillo's and Claudio-García's convictions, and we vacate
González-Rivera's sentence and remand for resentencing.
Affirmed in part, vacated and remanded in part.
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