United States v. Cruz-Rodriguez

United States Court of Appeals
For the First Circuit

Nos. 05-2492, 05-2493

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS D. CRUZ-RODRÍGUEZ,
FELIX REYES-DE LEÓN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard, Circuit Judge,

and Young,* District Judge.

Johnny Rivera Gonzales for appellant, Carlos D. Cruz-
Rodríguez.
Raymond L. Sanchez-Maceira for appellant, Felix Reyes De León.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

September 8, 2008

*
Of the District of Massachusetts, sitting by designation.
 HOWARD, Circuit Judge. An indictment charged twenty-six

defendants with crimes arising from their involvement in a large

drug distribution network that operated in a Puerto Rico housing

project. These are appeals by two of the defendants -- Carlos D.

Cruz-Rodríguez (Cruz) and Felix Reyes-de León (Reyes).

After an eight-day trial a jury convicted Cruz and Reyes

of conspiring to possess with the intent to distribute cocaine,

crack cocaine, and heroin within 1000 feet of both a school and a

public housing facility. See 21 U.S.C. §§ 841, 846, 860 (count

one). The jury also convicted Cruz of two other offenses stemming

from the drug distribution conspiracy -- conspiring to use, carry,

or possess a firearm in furtherance of a drug trafficking crime,

see 18 U.S.C. § 924(o) (count two), and possessing a firearm at a

place he knew or had reasonable cause to believe was a school zone,

see 18 U.S.C. § 922(q)(2)(A) (count three). The district court

sentenced Cruz to 202 months' imprisonment on counts one and two

and 60 months' imprisonment on count three to be followed by eight

years of supervised release. The prison sentences were to be

served consecutively. The court sentenced Reyes to 324 months'

imprisonment on the sole count on which he was convicted, count

one, and to three years of supervised release. Reyes's

incarcerative sentence was consecutive to the undischarged portion

of a state sentence Reyes was serving.

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 Cruz and Reyes appeal both their convictions and

sentences. Each presses a sufficiency challenge to his conviction;

Cruz argues that the evidence failed to implicate him in any

conspiracy and Reyes contends that the evidence implicated him in

a conspiracy different from the one charged.1 Each also claims

that the district court committed a host of errors, mostly

procedural, in sentencing. We affirm both the convictions and the

sentences.

I. Facts

We provide most of the facts here, adding more or

elaborating when discussing particular issues. Because the facts

stated here are relevant to the appellants' sufficiency claims, we

present them in the light most favorable to the jury's verdict.

United States v. Portela, 167 F.3d 687, 692 (1st Cir. 1999).

The crimes charged in this case arise from the operation

of a drug distribution network in a Puerto Rico housing project.

The network, which operated from mid-September 2001 to mid-March

2003, was hierarchical.

At the top was Orlando Malpica. Malpica controlled a

number of "drug points" in the housing project. These drug points

were located in the same general area and each was within 1000 feet

of two public schools.

1
Cruz also claims the court committed an evidentiary error during
trial.

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 Below Malpica were various individuals who rented the

drug points from him. Collectively, these "point owners" sold a

variety of drugs including marijuana, cocaine, crack cocaine, and

heroin.

Working beneath the drug point owners were the drug

"runners" and "enforcers." The runners delivered drugs from the

drug points to the "sellers" who were the ground-level

distributors. These runners would also relay a portion of the

profits gleaned from the sales to the drug point owners. The

enforcers were charged with protecting the sellers and protecting

the drug points from out-of-project predators -- local gangs that

desired control of the points. To serve this function, they

carried firearms. Only they and others associated with the

conspiracy were permitted to possess firearms at the project.

After investigation, the government sought and received

an indictment from the grand jury. Twenty-six individuals,

including Cruz and Reyes, were charged with crimes arising from the

scheme. Cruz and Reyes elected to go to trial and were tried

together.2

At trial, the government introduced testimonial evidence

implicating Cruz as a drug point owner. A cooperating witness, who

had lived with Cruz for a period of time, testified that Cruz was

a drug point owner, that he sold a variety of drugs from his point,

2
Most of those indicted pled guilty.

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that he paid rent to Malpica in the form of money and drugs, and

that he and another point owner informed her of their plan to open

an additional point and asked her in advance to run drugs for the

point. This witness also testified that, during the time of the

conspiracy, Cruz possessed an automatic firearm and carried it with

him while at the project. Two other government witnesses

corroborated much of this testimony and otherwise testified

consistently with it.

With respect to Reyes, the government presented evidence

portraying him as a jack of all trades -- a runner, enforcer, and

seller. Witnesses testified that he ran drugs for point owners,

that he worked as an enforcer for Alex Trujillo -- a point owner

who would later take over the top spot in the conspiracy while

Malpica was in prison, and that he sold crack cocaine to ground-

level customers.

The jury found both Cruz and Reyes guilty on the

distribution conspiracy count and Cruz alone guilty on the firearm

conspiracy count and the firearm possession count. Challenging the

sufficiency of the evidence, both defendants filed motions for

judgments of acquittal on all counts. See Fed. R. Crim. P. 29(c).

The district court, finding the evidence adequate, denied the

motions.

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 II. Discussion

A. Trial

1. Sufficiency claims

We first address the appellants' sufficiency claims,

examining each in turn. Because both Cruz and Reyes moved for a

judgment of acquittal on sufficiency grounds, our review of these

claims is de novo. See United States v. Jimené-Torres, 435 F.3d 3,

8 (1st Cir. 2006).

In assessing sufficiency, we examine the evidence, both

direct and circumstantial, in the light most favorable to the

prosecution and decide whether that evidence, including all

plausible inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime. United States v. Fenton, 367 F.3d 14,

18 (1st Cir. 2004). When examining the evidence, we keep in mind

that "[c]redibility issues must be resolved in favor of the

verdict." United States v. Perez-Ruiz, 353 F.3d 1, 7 (1st Cir.

2003).

Cruz argues that the evidence was insufficient to show

either that he conspired to distribute drugs or to possess a

firearm. Our inquiry is thus focused on whether a rational

factfinder could have found that he was guilty of conspiring to

distribute drugs near a housing project and of conspiring to use,

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carry, or possess a firearm in furtherance of a drug trafficking

crime.3

To prove a conspiracy existed, the government must prove

beyond a reasonable doubt: (1) that an agreement existed to commit

the particular crime; (2) that the defendant knew of the agreement;

and (3) that he voluntarily participated in it. United States v.

Gomez, 255 F.3d 31, 35 (1st Cir. 2001). The conspiratorial

agreement may be "express or tacit and may be proved by direct or

circumstantial evidence." Id. (quoting United States v.

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993) (internal quotation

marks omitted)).

Cruz's sufficiency argument is straightforward. He

contends that the government failed to introduce any evidence,

whether direct or circumstantial, showing that he conspired to deal

drugs or that he used, carried, or possessed a firearm -- much less

that he conspired to use, carry, or possess one in furtherance of

a drug trafficking crime. He likens the government's prosecution

of him to a witch hunt in which he was targeted merely because he

associated with or was friends with some drug dealers. This

association, in Cruz's view, is the only thing the government

proved at trial and, citing established authority, he argues that

3
As for the third count of conviction, Cruz does not argue that if
the government did prove he possessed a firearm in a school zone,
it failed to prove that he knew or had reasonable cause to believe
that this possession occurred in a school zone.

-7-
associating with conspirators is not enough to support a conviction

for conspiracy. See e.g., United States v. Nelson-Rodriguez, 319

F.3d 12, 28 (1st Cir. 2003) ("'Mere association' with the

conspirators . . . will not, standing alone, be sufficient for

conviction.") (citing United States v. Gomez-Pabon, 911 F.2d 847,

853 (1st Cir. 1990)).

The record does not support Cruz's claim of innocence.

The government introduced a videotape of a meeting of armed

conspirators at which Cruz was present, supporting an inference

that he was more than a bystander. See United States v. Llinas,

373 F.3d 26, 31 (1st Cir. 2004) (noting that defendant's close

association with other conspirators is a relevant factor for the

jury to consider). But there was much more. Additional evidence

came in the form of testimony from a government informant and two

cooperating witnesses. These witnesses detailed the drug

distribution network operating within the housing project. They

testified that Orlando Malpica was a drug kingpin who controlled

all the drug points in the housing project and that drug point

owners had to seek permission from Malpica to operate a drug point

and would pay him rent for this privilege.

In addition to this general testimony about Malpica's

operation, prosecution witnesses testified specifically about

Cruz's role in the operation. One cooperating witness who lived

with Cruz during the alleged conspiracy period -- and who happened

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to be Malpica's niece -- testified that Cruz was a drug point owner

who sold marijuana and crack, that he paid rent to Malpica in the

form of money and drugs, that he smuggled rent to Malpica when

Malpica was in prison, and that he and another point owner asked

her to run drugs for them. This testimony about Cruz's role within

the distribution network was corroborated by two other government

witnesses. These witnesses testified that Cruz operated a drug

point; paid rent to Malpica; sold various drugs including

marijuana, cocaine, and crack; employed others to sell drugs for

him; and was seen often with Trujillo -- the drug point owner who

had replaced Malpica as the conspiracy leader when Malpica went to

prison.

Prosecution witnesses also testified generally about the

use of firearms within the project and specifically -- based on

personal observation -- about Cruz's use of a firearm. They

testified that conspiracy members used firearms to protect drug

points from being taken over by out-of-project gangs; that only

members of the Malpica-Trujillo conspiracy could carry firearms at

the project; that while Cruz was a drug point owner he possessed an

automatic firearm and carried it with him while at the housing

project; and that drug points in the housing project were located

within 1000 feet of two public schools.

Based on this evidence, a rational jury could have found

beyond a reasonable doubt that Cruz was guilty on all three counts

-9-
charged. That the government did not present physical evidence

that Cruz dealt drugs or possessed a firearm is not dispositive --

it did not need to do so in order to secure a conviction. See

United States v. Magallanez, 408 F.3d 672, 681 (10th Cir. 2005)

("Lack of physical evidence does not render the evidence that is

presented insufficient.") (citation omitted)); see also United

States v. DeCologero, Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-

2569, 07-1086 2008 U.S. App. LEXIS 13300, at * 56 (1st Cir. June

23, 2008) (noting that evidence may be sufficient to convict even

if it is "entirely circumstantial") (quoting United States v.

Wight, 968 F.2d 1393, 1395 (1st Cir. 1992)). The direct and

circumstantial evidence offered by the government was sufficient.

We now turn to Reyes's sufficiency claim. Reyes's

argument is that the evidence presented was at variance with the

allegations contained in the indictment. See United States v.

Soto-Beníquez, 356 F.3d 1, 18 & n.1 (1st Cir. 2003). He argues

that while the record may contain evidence sufficient to link him

to a drug conspiracy, it does not contain evidence sufficient to

link him to the single drug conspiracy charged, namely, the

Malpica-Trujillo conspiracy. He thus could not have been involved

in the single conspiracy charged, he asserts, because a prosecution

witness testified Reyes had a falling out with one of the

conspiracy's leaders Alex Trujillo. This witness testified that

although Trujillo and Reyes were inseparable at one point, and in

-10-
fact lived together for a time, they eventually had a falling out,

and from that point on there were "always problems between them."

Reyes appears to suggest that this testimony was enough to render

the evidence presented of his involvement in the Malpica-Trujillo

conspiracy insufficient to convict.

This argument must be rejected, because the government

adduced evidence sufficient to convict Reyes of the conspiracy

charged. See Soto-Beníquez, 356 F.3d at 18 & n.1 (declining to

reach the variance argument because sufficient evidence supported

jury's finding of a single conspiracy). When determining whether

the proof suffices to establish a single, overarching conspiracy,

we look to the totality of the circumstances. Id. at 19. This

entails considering factors such as: "(1) the existence of a

common purpose, such as selling drugs for profit, (2) the

interdependency of various elements in the plan, such as whether

the success of an individual's own drug transactions depends on the

health and success of the drug trafficking network that supplies

him, and (3) the degree of overlap among the participants." Id.

In conducting our sufficiency analysis, we remain aware

that the government may provide evidence sufficient to convict

without showing that: (1) each conspirator knew of or had contact

with all other members; (2) each conspirator knew of all the

details of the conspiracy or participated in every act in

furtherance of it; or (3) the conspiratorial "cast of characters"

-11-
remained intact throughout the duration of the entire enterprise.

Id.

Here, as described above, the government presented

evidence of a single overarching drug distribution conspiracy led

by Orlando Malpica and Alex Trujillo. The distribution network was

hierarchical and its success depended on conspiracy members

performing various tasks, including distributing illicit drugs to

ground-level sellers; protecting conspiracy members and drug points

from out-of-project gangs; and making ground level sales.

The government presented evidence that Reyes performed

all three of these tasks during the life of the conspiracy. As was

the case with Cruz, this evidence came in the form of testimony

from three government witnesses. These witnesses testified that

Reyes ran drugs, both supplying the ground-level sellers and

picking up money for point owners; used firearms to protect

Trujillo and Trujillo's drug point; often carried and brandished

firearms while at the project; and sold crack to ground-level

customers. Given that the government presented evidence that only

conspiracy members could carry firearms at the project and that

witnesses linked Reyes to lead conspirator Trujillo, a rational

jury could have found that Reyes was part of the Malpica-Trujillo

conspiracy.

Reyes's argument, that his falling out with Trujillo

rendered the evidence of his involvement in the charged conspiracy

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insufficient, lacks force. There is no requirement that co-

conspirators work together harmoniously when pursuing their illicit

aims, and even if Reyes's problems with Trujillo were of such

magnitude that they prevented him from working directly with

Trujillo, he could still have remained a functioning cog in the

conspiracy machine. See United States v. Thompson, 449 F.3d 267,

273 (1st Cir. 2006) (explaining that the defendant's "falling out"

with his coconspirator did not extricate him from the conspiracy

because the defendant could remain part of the conspiracy without

maintaining direct contact with his coconspirator); Soto-Beníquez,

356 F.3d at 19 ("The government need not show that each conspirator

. . . had contact with all other members."). At best, the fact

that Reyes and Trujillo had a falling out could be relevant to a

withdrawal argument. Reyes makes no such argument, nor could he

based on the record evidence. See United States v. Pizarro-

Berriós, 448 F.3d 1, 10 (1st Cir. 2006) ("'[I]n order to withdraw

from a conspiracy, a conspirator must act affirmatively either to

defeat or disavow the purposes of the conspiracy. Typically, that

requires either a full confession to authorities or a communication

by the accused to his co-conspirators that he has abandoned the

enterprise and its goals.'") (quoting United States v. Piper, 298

F.3d 47, 53 (1st Cir. 2002)).

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 2. Evidentiary ruling

Cruz also argues that the district court erred in denying

his request to present testimony from two government investigators.

At trial, Cruz argued that the testimony of these agents would

impeach the testimony of previously called government witnesses.

Specifically, he asserted that although the prosecution witnesses

testified that they made certain statements to the agents, the

agents would testify that notes they took when interviewing these

witnesses failed to reflect those statements. The district court,

however, ruled that the extrinsic evidence Cruz sought to admit --

the testimony of the agents -- was inadmissible because it involved

impeachment by contradiction on a collateral matter. Although

Cruz's argument on appeal does not address the court's collateral

matter ruling in any developed fashion, he maintains that the

agents' testimony was admissible under Federal Rule of Evidence 613

which allows impeachment by prior inconsistent statement.4 Because

4
Cruz appears to confuse impeachment by contradiction with
impeachment by prior inconsistent statement. See United States v.
Morla-Trinidad, 100 F.3d 1, 5 n.3 (1st Cir. 1996) (explaining that
impeachment by contradiction is not specifically treated in the
Federal Rules of Evidence and is governed by common-law principles)
(citations omitted)); see also Fed. R. Evid. 613 (impeachment by
prior inconsistent statement). Although there is some overlap, the
former category is broader than the latter. At trial, Cruz sought
to introduce extrinsic evidence that the witnesses did not make
prior statements to government agents. Cruz did not attempt to
offer evidence that the witnesses made prior statements
inconsistent with their trial testimony. In any event, whether a
party is seeking to impeach by prior inconsistent statement or by
contradiction the collateral matter rule remains applicable.

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Cruz preserved his claim below, we review the district court's

ruling for an abuse of discretion. United States v. García-Ortiz,

528 F.3d 74, 79 (1st Cir. 2008).

Cruz's appellate argument fails to sufficiently address

the merits of the court's collateral matter ruling. See

DeCologero, 2008 U.S. App. LEXIS 13300 at * 41-42. The district

court could have concluded that although the officer's testimony

was relevant to prove a contradiction, the contradiction involved

a collateral matter. United States v. Beauchamp, 986 F.2d 1, 3

(1st Cir. 1993) ("It is well established that a party may not

present extrinsic evidence to impeach a witness by contradiction on

a collateral matter."). On appeal, Cruz needed to argue both that

the evidence was admissible for some purpose and that the evidence

was useful to impeach the government witnesses on a non-collateral

matter. His failure to develop the latter argument results in

waiver of this claim. United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived.").5

5
In the alternative, the government argues that Cruz could not
have admitted extrinsic evidence of a prior inconsistent statement
because he failed to lay the appropriate foundation. The
government says that Cruz had to confront the prosecution witnesses
with their prior inconsistent statements while they were on the
witness stand in order to afford them "an opportunity to explain or
deny [their earlier statements]." See Fed. R. Evid. 613(b). As we
noted earlier, Rule 613 is not at issue here. But the government's
perception of Rule 613's foundation requirements is incorrect. We

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 B. Sentencing

1. Cruz

The district court sentenced Cruz to 262 months'

imprisonment and eight years of supervised release. Specifically,

the court sentenced him to 202 months in prison on the first two

counts (conspiring to possess drugs with intent to distribute and

conspiring to carry, use, or possess a firearm in furtherance of a

drug trafficking crime) and to 60 months on the third count

(possession of a firearm in a school zone) with the sentences to be

served consecutively.

Cruz argues that the district Court committed five errors

when sentencing him. Four of these alleged errors are procedural.6

The first three concern the court's calculation of the guideline

sentencing range (GSR) relevant to the first two counts. Cruz

argues that, in calculating the GSR, the court: (1) failed to make

an individualized finding regarding the drug quantity attributable

have explained that "the foundation requirements of 613(b) do not
require that the witness be confronted with the statement while on
the witness stand, but rather, only that the witness be available
to be recalled in order to explain the statement during the course
of the trial." United States v. Hudson, 970 F.2d 948, 955 (1st
Cir. 1992) (emphasis supplied).
6
Examples of procedural errors include: "failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the section 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range." Gall v.
United States, 128 S. Ct. 586, 597 (2007).

-16-
to him or foreseeable by him,7 (2) erroneously found that he

possessed a firearm while part of the drug trafficking conspiracy,

and (3) erroneously found that he held a managerial or supervisory

position in the conspiracy.8 The fourth alleged procedural error

relates to the court's decision to make his sentence for possession

of a firearm in a school zone (count three) consecutive to the

sentence it imposed on the first two counts. The court, he

observes, had already enhanced his sentence on the first two counts

because he possessed a firearm while part of the drug conspiracy.

He contends that running the sentence on count three consecutively

impermissibly "double counted" his possession of a firearm. Cruz's

final alleged error concerns the sentence itself, which Cruz argues

is substantively unreasonable even absent procedural errors.

Except for his second claim relating to possessing a firearm while

part of a drug conspiracy, Cruz preserved these claims below.

The court arrived at Cruz's sentence as follows. First,

the court calculated the GSR for the first two counts. Concluding

that both counts involved substantially the same harm, the court

grouped them. See USSG § 3D1.2. The court used the offense level

7
Cruz also argues that the jury committed error when it failed to
make an individualized finding under the applicable guidelines.
Because this is not the jury's duty, we need not examine this
argument any further.
8
We note that at sentencing, a district court's factual findings
must be supported by a preponderance of the evidence. United
States v. Morgan, 384 F.3d 1, 5 (1st Cir. 2004).

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corresponding with count 1 because that count carried the highest

offense level. Id. § 3D1.3. That offense level was 32, based on

the drug amount the court assigned to Cruz -- at least five but

less than fifteen kilograms of cocaine. Id. § 2D1.1(c). Next, the

court added to the offense level: a two-level increase for selling

drugs near a protected location, id. § 2D1.2(a)(1), a two-level

increase for possession of firearms while part of the drug

conspiracy, id. § 2D1.1(b)(1), and a three-level adjustment for

managing or supervising a criminal activity with at least five

participants, id. § 3B1.1(b). The resulting total offense level of

39 combined with a criminal history category of I to yield a

sentencing range of 262-327 months. Second, the court considered

Cruz's conviction on the third count -- possession of a firearm in

a school zone in violation of 18 U.S.C. § 922(q). The court

concluded that this conviction carried a maximum of 60 months'

imprisonment. See 18 U.S.C. § 924(a)(4).

With the guideline and statutory sentences before it, the

court then considered whether a non-guideline sentence with respect

to the first two counts was appropriate. After examining the

factors set forth in 18 U.S.C. § 3553(a), the court sentenced Cruz

to 262 months' imprisonment on the first two counts, at the bottom

of the GSR, and to 60 months' imprisonment on the third count. The

sentences were to run consecutively. Upon reconsideration,

however, the court concluded that penalizing Cruz twice for his

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possession of a firearm -- first by enhancing his sentence on the

first two counts because he possessed a firearm while part of the

drug conspiracy (USSG § 2D1.1(b)(1)) and second by imposing a

consecutive 60 month sentence because he possessed a firearm in a

school zone (18 U.S.C. § 924(a)(4)) -- would result in

impermissible double-counting. To avoid this perceived double-

counting problem, the court sentenced Cruz to a below-guideline

sentence on the first two counts, 202 months, purposefully

subtracting 60 months from the low end of the recommended GSR which

was 262 months. This, the court believed, made up for the 60 month

sentence under 18 U.S.C. § 924(a)(4) which it then imposed

consecutively. After the dust cleared, Cruz faced a total of 262

months in prison.

The following standards of review govern our analysis of

Cruz's claims. His first three claims concern the district court's

findings of fact at sentencing which we review for clear error

where a claim is preserved. United States v. Marks, 365 F.3d 101,

105 (1st Cir. 2004).9 Where unpreserved, the case with the second

of these three claims, our review is for plain error. United

9
We will not find clear error unless "'on the entire evidence [we
are] left with the definite and firm conviction that a mistake has
been committed.'" United States v. Brown, 298 F.3d 120, 122 (1st
Cir. 2002) (quoting Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 573 (1986))(citations omitted).

-19-
States v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006).10 Cruz's

fourth claim of error concerns the district court's interpretation

and application of the sentencing guidelines which we review de

novo. United States v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007).

Finally, we review the substantive reasonableness of Cruz's

sentence for an abuse of discretion. DeCologero, 2008 U.S. App.

LEXIS 13300, at * 71.

First, Cruz argues that the district court erred when it

failed to make an individualized drug quantity finding. Instead,

he asserts, the court erroneously shifted the drug quantity

attributable to the conspiracy as a whole to him.

Where a defendant has been convicted of participating in

a drug-trafficking conspiracy, a sentencing court must determine

the specific quantity of drugs for which the defendant is

responsible. United States v. Colon-Solis, 354 F.3d 101, 103 (1st

Cir. 2004). The court may hold the defendant responsible for

"drugs he personally handled or anticipated handling, and, under

the relevant conduct rubric, for drugs involved in additional acts

that were reasonably foreseeable by him and were committed in

furtherance of the conspiracy." United States v. Sepulveda, 15

10
We will not find plain error unless we find an error "that was
plain, (i.e., obvious and clear under current law), prejudicial
(i.e., affected the outcome of the district court proceedings), and
that seriously impaired the fairness, integrity, or public
reputation of the judicial proceedings." United States v. Griffin,
524 F.3d 71, 76 (1st Cir. 2008).

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F.3d 1161, 1197 (1st Cir. 1993). When making the individualized

finding of drug quantity responsibility, the court must not

automatically shift the quantity attributable to the conspiracy as

a whole to the defendant. Colon-Solis, 354 F.3d at 103.

Here, the district court, contrary to Cruz's contention,

did make an individualized finding regarding drug quantity. The

court concluded that Cruz was personally responsible for at least

five but less than fifteen kilograms of cocaine. The court did

not, as Cruz asserts, shift the conspiracy-wide amount to him.11

Although Cruz appears to contend only that the court

failed to make any individualized finding regarding drug quantity,

he does make various assertions in his brief that support an

alternative argument: that if the court did make an individualized

finding that its finding was clearly erroneous.

To the extent that this argument is not waived it fails

on the merits. At trial, an expert witness from the Puerto Rico

police department testified that the conspiracy on the whole sold

cocaine at a rate of approximately 8.2 kilograms per year.

Testimony from other witnesses established that Cruz operated his

point as part of the project-wide conspiracy for over seventeen

11
The jury found beyond a reasonable doubt that the conspiracy on
the whole was responsible for the following quantities: one
kilogram or more of heroin, five kilograms or more of cocaine, and
50 grams or more of cocaine base/crack cocaine. These quantities,
under 21 U.S.C. § 841(b)(1)(A), triggered a statutory maximum
extending to life imprisonment. See Perez-Ruiz, 353 F.3d at 15.

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months, nearly a year and a half, and that he sold cocaine from his

point during this period. Based on this evidence, we cannot say

that the court's quantity finding was clearly erroneous. United

States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004) ("[E]ach

coconspirator is responsible not only for the drugs he actually

handled but also for the full amount of drugs that he could

reasonably have anticipated would be within the ambit of the

conspiracy."); see also United States v. Rodriguez, 525 F.3d 85,

107 (1st Cir. 2008) ("The trial court's determination of drug

quantity . . . is not required to be an exact determination but

rather only a reasoned estimate." (citation omitted)).

Second, Cruz argues that the district court erroneously

found he possessed a firearm while part of the drug conspiracy.

The court's finding, pursuant to USSG § 2D1.1(b)(1), resulted in a

two-level increase in Cruz's offense level. Echoing an earlier

argument, Cruz asserts that the government failed to present any

evidence that he possessed a firearm and thus the court's finding

lacked sufficient evidentiary support.

This argument is without merit. At trial, a cooperating

witness testified that while Cruz was a drug point owner he

possessed an automatic firearm and carried it with him while at the

housing project. Further, at Cruz's sentencing hearing, his

counsel acknowledged the propriety of the two-level enhancement at

issue, noting that he was not presenting an argument concerning

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"the feasibility of the evidence" underlying the enhancement.

Accordingly, we discern no error, much less plain error.

Third, Cruz argues that the court erroneously found that

he managed or supervised a criminal activity that involved at least

five participants or that was "otherwise extensive." This finding

resulted in a three-level upward adjustment pursuant to USSG §

3B1.1(b). Although Cruz admits to associating with people at the

housing project, he argues that the government failed to present

any evidence that he managed or supervised anyone.

There was no clear error. An upward adjustment is

available under 3B1.1(b) if (1) the criminal scheme involved five

or more participants (including the defendant) or was otherwise

extensive and (2) the defendant was responsible for managing or

supervising the activities of at least one of these participants.

United States v. Gonzalez-Vazquez, 219 F.3d 37, 43-44 (1st Cir.

2000).12 At trial, the government presented evidence that Cruz was

involved in a drug distribution network that included well over

five persons. It also presented evidence that Cruz was a drug

point owner who employed several individuals to sell drugs for him,

one of whom testified to this relationship at trial. This evidence

is sufficient to support the adjustment.

12
A defendant manages or supervises a person if he exercises
control over that person or oversees that person's activities. See
United States v. Cali, 87 F.3d 571, 578 (1st Cir. 1996).

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 Cruz's fourth argument is more complex. He argues that

the district court impermissibly "double counted" his possession of

a firearm when it (1) enhanced his sentence on the first two counts

because he possessed a firearm while part of the drug conspiracy

and (2) imposed a consecutive 60-month sentence because he

possessed a firearm in a school zone. Cruz argues that USSG §

2K2.4 forbids this result.

The argument fails, as USSG § 2K2.4 is not applicable.

Rather, it applies where a court is sentencing a defendant who has

been convicted of violating either 18 U.S.C. § 924(c) or § 929(a).

Those statutes punish, among other things, the possession of

firearms in furtherance of either a crime of violence or a drug

trafficking crime. USSG § 2K2.4 directs courts sentencing a

defendant pursuant to those statutes to adopt the five-year minimum

sentence required by those statutes. In order to avoid double

counting, where a court has sentenced a defendant under § 2K2.4 in

conjunction with sentencing the defendant for an underlying

offense, the court must not apply any specific offense enhancement

for possession, brandishing, use, or discharge of a weapon or

firearm when calculating the sentence for the underlying offense.

USSG § 2K2.4 (cmt. n.4) ("A sentence under this guideline accounts

for any . . . weapon enhancement for the underlying offense of

conviction."); see United States v. Harris, 959 F.2d 246, 266 (D.C.

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Cir. 1992) (interpreting § 2K2.4's language in an earlier version

of the guidelines and noting its goal of avoiding double counting).

Here, however, Cruz was convicted of violating neither 18

U.S.C. § 924(c) nor § 929(a). Thus, USSG § 2K2.4, according to its

plain terms, is inapplicable. Further, and more importantly, no

double counting occurred here. The court enhanced Cruz's first

sentence because he possessed a firearm while part of a drug

conspiracy and imposed a consecutive sentence under 18 U.S.C. §

924(a) because he possessed a weapon in a school zone. This is

unlike the situation § 2K2.4 seeks to avoid -- a defendant

effectively being penalized twice for possessing a firearm in

connection with or in furtherance of a drug trafficking crime.

Despite the inapplicability of § 2K2.4, the district

court appears to have accepted Cruz's double counting argument

which he advanced at his sentencing hearing. The district court,

endeavoring to avoid the perceived double counting problem,

subtracted 60 months from the bottom of the GSR that was applicable

to the first two counts. Although this action inured to Cruz's

benefit, the government has not appealed the sentence. Ultimately,

because any error by the court benefitted Cruz, we can dismiss this

particular claim without further examination.13

13
We also note that Cruz takes issue with the court's decision to
enhance his offense level two levels pursuant to § 2D1.1(b)(1)
(possession of firearm while part of a drug trafficking crime) and
two levels pursuant to § 2D1.2(a)(1) (dealing drugs near a
protected location). The court, he argues, could only apply one of

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 Finally, Cruz argues that, even assuming the district

court made no procedural errors when arriving at his sentence, the

sentence it imposed is substantively unreasonable. The sentence,

in his view, is longer than what is needed to achieve the goals of

sentencing.14 This contention lacks merit. When explaining its

sentencing decision, the court stated that the sentence it imposed,

which was on the lower end of the GSR, reflected the need for both

punishment and deterrence, would make Cruz a better citizen, and

would facilitate his reintegration into society. On the record

before us, we determine that the court acted well within its

discretion in so concluding.

2. Reyes

On the sole count on which he was convicted -- conspiring

to possess drugs with the intent to distribute -- the district

court sentenced Reyes to 324 months' imprisonment and three years

of supervised release. It imposed the federal sentence consecutive

to an undischarged portion of a Puerto Rico prison sentence imposed

on Reyes in 2004 for a number of criminal offenses.

Reyes argues that the district court committed two

procedural errors when sentencing him. First, like Cruz, Reyes

these enhancements. Cruz fails to offer any support for this
argument and thus it is waived. Zannino, 895 F.2d at 17.
14
Cruz also argues that his sentence was unreasonable because the
court failed to consider the factors listed in 18 U.S.C. § 3553(a)
when arriving at his sentence. The court's sentencing decision,
however, reflects such consideration.

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argues that when calculating his GSR the district court failed to

make an individualized finding regarding the drug quantity

attributable to, or foreseeable by, him. Second, he argues that

the court erred in refusing to apply USSG § 5G1.3(b) and order that

his federal sentence run concurrently with the undischarged portion

of his 2004 state sentence. Reyes received the 70-year state

sentence after being convicted of illegal possession of a weapon,

robbery, and attempted murder. These convictions, unrelated to the

conspiracy at issue here, stemmed from Reyes's robbery of two

individuals. Reyes contends that the district court should have

run his federal and 2004 state sentences concurrently, because the

court used one of the convictions underlying the state sentence --

illegal possession of a weapon -- when determining his offense

level for the federal offense. Because neither claim of error was

presented below, our review is for plain error. See Goodhue, 486

F.3d at 55 ("Appellate review of a forfeited claim is for plain

error only.").

The district court arrived at Reyes's sentence as

follows. First, it calculated the offense level for the count of

conviction. The court established a base offense level of 32

(based on drug quantity) and added levels for selling drugs within

1000 feet of a public housing facility or public school (two-level

increase), see USSG § 2D1.2(a)(1), and for possession of a firearm

during a drug trafficking crime (two-level increase), id. §

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2D1.1(b)(1). The resulting total offense level was 36. Second,

the court concluded that Reyes had a criminal history category of

VI based on his convictions in 1999 and 2004 for a number of

criminal offenses. An offense level of 36 in combination with a

criminal history category of VI yielded a GSR of 324-405 months.

The district court sentenced Reyes to 324 months' imprisonment,

running the federal sentence consecutively with the undischarged

portion of a state sentence imposed in 2004.

Reyes first claims that the court failed to make an

individualized drug quantity finding. In doing so, he ignores the

court's finding at sentencing that Reyes was "reasonably

responsible" for at least five kilograms but less than fifteen

kilograms of cocaine.15

Like Cruz, Reyes presents facts that appear to support an

alternative argument. Reyes notes that he left the housing project

in 2002. This, we interpret, is Reyes's attempt to argue that the

court's individualized quantity finding is plainly erroneous

because it assumes his presence at the project through mid-March

2003 -- the conspiracy's end date. Though we could treat this

undeveloped argument as waived, we can just as easily dispose of it

on the merits. As we noted earlier, an expert witness testified

15
Again, we note that the jury's verdict did not put a ceiling on
quantity. The jury found beyond a reasonable doubt that the
conspiracy on the whole was responsible for: one kilogram or more
of heroin, five kilograms or more of cocaine, and 50 grams or more
of cocaine base/crack cocaine.

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that the conspiracy on the whole sold cocaine at a rate of

approximately 8.2 kilograms per year. Reyes does not argue that he

was not part of the conspiracy from its start date -- mid-September

2001. Accordingly, we conclude that the court's finding that

Reyes was responsible for at least five but less than fifteen

kilograms of cocaine is not plainly erroneous. See Rodriguez, 525

F.3d at 107.

Next, Reyes argues that under USSG § 5G1.3 the court

should have run the federal sentence concurrently with the

undischarged portion of his state sentence rather than

consecutively because it used his state conviction for illegal

possession of a weapon when calculating his offense level. The

court used this conviction, he argues, when it increased his base

offense level by two levels because he possessed a firearm while

part of a drug conspiracy. See USSG § 2D1.1(b)(1)

This argument is a non-starter. Section 5G1.3(b)

requires that an undischarged sentence run concurrently with the

sentence for the instant offense "only where the undischarged

sentence was (1) for a crime that constitutes relevant conduct for

the instant offense and (2) was the basis for an increase in the

offense level for the instant offense under Chapters Two or Three

of the Guidelines." United States v. Lino, 493 F.3d 41, 44 (1st

Cir. 2007) (emphasis added). The second condition is not met

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here.16 Despite Reyes's argument to the contrary, the state

conviction for illegal possession of a weapon was not the basis for

the increase in his offense level. Rather, the court increased

Reyes's offense level because numerous witnesses testified that

Reyes possessed a firearm while part of the drug conspiracy.

Reyes's state conviction for illegal possession of a weapon,

moreover, stemmed from an event entirely unrelated to the

conspiracy, specifically, Reyes's robbery and attempted murder of

two individuals. Accordingly, the court did not commit error let

alone plain error in imposing consecutive sentences.17

III. Conclusion

Based on the reasons provided above, we affirm both

convictions and sentences.

AFFIRMED.

16
Although we doubt the first condition is met here either, there
is no need to address it.
17
Reyes argues that even if the court was not required to impose
a concurrent sentence, it nevertheless enjoyed the discretion to do
so under USSG § 5G1.3(c). The court's refusal to exercise this
discretion, especially where Reyes himself failed to seek a
concurrent sentence, does not constitute plain error.

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