United States v. Celaya Valenzuela

United States Court of Appeals
For the First Circuit

No. 16-1009

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL HUMBERTO CELAYA VALENZUELA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph Laplante, Chief U.S. District Judge]

Before

Howard, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Julie K. Connolly, with whom Julie Connolly Law, PLLC was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief for appellee.

February 24, 2017

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Beginning in May of 2009, the FBI

launched a sting operation, codenamed Operation Dark Water,

targeting the Sinaloa Drug Cartel. Undercover agents held

themselves out as an organized crime operation, led by an Italian

mafia boss who went by the name El Viejo ("the Old Man"), which

sought to procure a long-term source of cocaine from the cartel.

Among the high-level cartel members eventually ensnared by this

investigative web was Rafael Humberto Celaya Valenzuela

("Celaya"), a financial planner and lawyer with close personal

ties to the Cartel's then-leader, Joaquin Guzman-Loera, known more

commonly as "El Chapo." Celaya was charged in the District of New

Hampshire with conspiracy to distribute and possess with intent to

distribute controlled substances, in violation of 21 U.S.C. § 846.

He was convicted following a five-day jury trial and sentenced to

210 months imprisonment, and now appeals both his conviction and

sentence. Finding no merit to his various claims, we AFFIRM.

I. Facts & Background

Celaya first came to the attention of law enforcement in

August 2010, when he accompanied Jesus Manuel Gutierrez-Guzman

("Guzman"), El Chapo's cousin and close confidant, and other co-

conspirators to a meeting with the undercover agents (the "FBI

Organization") in Hallandale, Florida.1 At that meeting, Celaya

1 Of course, the conspiratorial agreement was among members
of the Chapo Organization, because a defendant cannot be guilty of
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was introduced as a lawyer and financial planner. The parties

discussed how their partnership could move forward, with the FBI

Organization expressing a preference for using seaports on the

east coast of the United States as a transit point for shipments

of cocaine from South America to Europe. The FBI represented to

the Chapo Organization that because of their contacts in the

longshoremens' unions at the ports, they could ensure smooth entry

into and out of the ports, while avoiding detection by customs

authorities. They suggested this method would be advantageous

because shipments sent directly from South America to Europe would

be more likely to raise suspicion. The specific ports discussed,

and subsequently included on code sheets drawn up by the Chapo

Organization for use in future communications, were Philadelphia,

Newark, Providence, and Portsmouth, New Hampshire.

Celaya made statements at this meeting that it was his

understanding that the FBI Organization had contacts in the

stevedores' unions that would allow the drugs to be repackaged and

sent on to Europe. He reiterated that the Chapo Organization did

not have a preference for a particular port, but would simply

"prefer the port that you say is the safest one for you." When

Guzman expressed concerns that "the gringos are really fucking

with everyone about coming into the United States," the defendant

conspiring to commit crimes with government agents. See, e.g.,
United States v. Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir. 2003).

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sought to allay these fears by suggesting that "if the product is

sent directly [to] Europe it will have a red flag on it already

. . . Once it's brought in [to U.S. ports], relabeled and sent

. . . [i]t practically goes preapproved." The defendant added

that using U.S. ports, where the FBI Organization had local

dockworkers in on the scheme, would be a "green light." The

following day, the parties met again to discuss methods for

laundering the proceeds from the drug sales. Celaya was a central

player in these discussions, apparently because of his legal and

financial expertise.

On April 21, 2011, Guzman met with El Viejo, the FBI

agent purporting to be the head of the crime organization, at a

hotel in New Hampshire near Portsmouth. The purpose of the meeting

was to discuss the first shipment on which the two sides would be

cooperating, which would originate in Ecuador and be shipped to

Spain. While Guzman explained that it was El Chapo's preference

for this first shipment to proceed directly from Ecuador to Spain

without stopping in any U.S. ports, he said that the Chapo

Organization was open to "modifying" the delivery method in the

future.

Also in that meeting, El Viejo told Guzman that the

cocaine provided by the Chapo Organization would be distributed in

Europe and the United States, because he had many clients that

needed the drugs, including in Florida and New Hampshire. El Viejo

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told Guzman that "everybody thinks I'm a legitimate businessman,"

adding that "I'm like the American Donald Trump . . . except I

don't have the hair" and "there is going to be an explosion of

business" once El Viejo could obtain El Chapo's "high quality

product." Guzman replied that he understood that distribution in

the United States was one of El Viejo's objectives. Guzman also

made reference to the defendant, telling El Viejo that Celaya was

a trusted member of the Chapo Organization and that he had

personally met with El Chapo and "explained everything to him."

Other meetings followed, including one in Boston in August 2011 at

which the defendant was present.

Initially, a series of delays, including the Chapo

Organization's desire to run several test shipments without

contraband, prevented the actual shipment of cocaine to Europe.

In order to maintain the goodwill of the FBI Organization, on June

7, 2012, Guzman arranged for the delivery of heroin to the FBI

Organization in Detroit, Michigan. In July 2012, the Chapo

Organization finally sent 346 kilograms of cocaine from Brazil to

Algeciras, Spain, bypassing U.S. ports. The following month,

Guzman traveled to Spain to meet with El Viejo. At that meeting,

El Viejo reiterated that the United States would be one of the

destinations for the cocaine shipped by the Chapo Organization in

the future, to which Guzman replied, "Yes, sir."

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 Shortly after this meeting, Spanish authorities placed

Celaya under arrest. After Celaya waived his Miranda rights, the

FBI then interviewed him. In that interview, Celaya admitted that

he had conspired to distribute cocaine, and that in March 2011,

after one of the initial meetings, he had travelled to Mexico to

personally meet with El Chapo. At that meeting, he told El Chapo

that he believed the FBI Organization was a real drug cartel and

that El Chapo should proceed with the plan to supply it with

cocaine.

Celaya was indicted in the District of New Hampshire and

charged with conspiring, between March 2009 and September 2012, to

distribute and possess with intent to distribute a quantity of

heroin, methamphetamine, and 1,000 kilograms or more of cocaine,

in violation of 21 U.S.C. §§ 846 and 841(a)(1). The case proceeded

to a jury trial. At the close of the government's case-in-chief,

the defendant moved for a judgment of acquittal under Federal Rule

of Criminal Procedure 29, claiming that there was insufficient

evidence that he had participated in the conspiracy, and that there

was insufficient evidence of venue. More specifically, he argued

that at the time the actual shipments took place, he "was no longer

in the picture" and was not involved in the conspiracy. On the

venue point, he argued that the only overt act in furtherance of

the conspiracy that occurred in New Hampshire was the Portsmouth

meeting, and since it was an FBI source who drove Guzman from

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Boston's Logan Airport to the meeting, the government had

"manufactured" venue in New Hampshire.

The district court denied this motion, and after a five-

day trial, the jury returned a guilty verdict against Celaya. Six

months after the verdict, Celaya filed a motion to reconsider the

denial of his earlier Rule 29 motion, raising for the first time

the argument that the overarching conspiracy did not have a

sufficient jurisdictional nexus to the United States, and that the

government had failed to present any evidence that Celaya knew

that an object of the conspiracy was to possess or distribute

controlled substances in the United States. The district court

denied this motion as untimely, but also concluded that the

defendant's argument on jurisdictional nexus would have failed on

the merits in any event since the evidence introduced at trial was

sufficient for a jury to conclude that the conspiracy envisioned

the distribution of drugs into the United States and the use of

seaports on the east coast of the United States as transit points

on the way to Europe, and that overt acts in furtherance of the

conspiracy took place on U.S. soil.

At sentencing, the district court calculated that the

defendant's criminal conduct warranted a total offense level of 38

(largely as a result of the weight of drugs attributed to the

conspiracy) and a criminal history category of I, which yielded a

guideline sentence range of 235 to 293 months imprisonment. The

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district court rejected a defense counsel request for a

minimal/minor role downward adjustment under U.S.S.G. § 3B1.2,

concluding that the defendant was a "top level negotiator . . .

with access to the highest levels of the cartel." The court

ultimately did allow a minor downward variance to bring Celaya's

sentence in line with that of Guzman (who had pleaded guilty),

eventually settling on 210 months' imprisonment. This appeal

followed.

II. Discussion

On appeal, Celaya challenges three aspects of the

district court's ruling below. First, he argues that the

government failed to prove that the conspiracy in question had a

"jurisdictional nexus" to the United States. Second, he argues

that the government "manufactured" venue in the District of New

Hampshire by driving Guzman, a co-conspirator, from Boston's Logan

Airport across the border into New Hampshire for a meeting. As a

derivative of those arguments, Celaya contends that the district

court's failure to instruct the jury on jurisdictional nexus and

manufactured venue was in error. Third, he argues that his 210-

month prison sentence was substantively unreasonable. We address,

and dispose of, each of these arguments seriatim.

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 A. Jurisdictional Nexus

i. Standard of Review

The first group of challenges that Celaya presents

concerns the sufficiency of evidence against him at trial and the

district court's denial of both his Rule 29 Motion for a Judgment

of Acquittal and his Motion for Reconsideration of his Motion for

Judgment of Acquittal. The Court of Appeals reviews the denial of

a motion to reconsider for an abuse of discretion. See United

States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). However, when

a Rule 29 motion (or a Motion to Reconsider a previous Rule 29

motion) presents a new argument not previously presented to the

district court, appellate review is more circumscribed. See United

States v. Castro-Lara, 970 F.2d 976, 980 n.2 (1st Cir. 1992)

("Where a Rule 29 motion is not preserved for appeal, the defendant

forfeits the benefit of the customary standard of review, thereby

negating any claim of evidentiary insufficiency unless affirming

the conviction would work a 'clear and gross injustice.'") (quoting

United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988)).

We find that the “jurisdictional nexus” argument was not

timely raised in the district court, either at trial or in Celaya’s

original Rule 29 motion. The only arguments made by the defendant

in his original Rule 29 motion were that (1) he was not actually

a member of the conspiracy, and (2) there was insufficient evidence

of venue in New Hampshire. At no point did he raise the objection

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that the alleged conspiracy was entirely extraterritorial in

nature and thus insufficient, as a matter of law, to convict him

for a violation of 21 U.S.C. § 846 if the jury found that he was

a member of the conspiracy. In fact, in his Rule 29 Motion, Celaya

conceded that "there was substantial evidence introduced by the

Government that could reasonably be understood by the jury to show

that the Sinaloan cartel wanted to expand its drug trafficking

network into Europe, and perhaps the United States." After

conceding this point, however, the defense argued that "the

evidence failed to demonstrate that the cartel actually agreed to

include Celaya in that conspiracy."

Six months later, in his Motion for Reconsideration,

Celaya switched gears, arguing that while the jury may have found

that he was a member of the conspiracy, the evidence adduced at

trial "can only be reasonably and fairly understood as establishing

that the [sic] Celaya and his coconspirators agreed to the common

goal of shipping cocaine from South America to Europe" and nothing

in the record "remotely shows, or even suggests, that Celaya

knowingly agreed to participate in a conspiracy to distribute or

possess with intent to distribute illegal drugs in New Hampshire

or anywhere else in the United States, so as to violate §§ 841(a)

and 846." Indeed, at oral argument before the district court

accompanying their motion for reconsideration, defense counsel

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admitted that this was a new argument that they had not previously

presented to the court.2

We have routinely emphasized that a party’s decision to

adopt this sort of shifting litigation tactic results in an

elevated standard of review. See, e.g., United States v. Marston,

694 F.3d 131, 134 (1st Cir. 2012) ("[W]hen a defendant chooses

only to give specific grounds for a Rule 29 motion, all grounds

not specified are considered waived and are reviewed under [the]

less forgiving 'clear and gross injustice' standard.") (quoting

United States v. Upham, 148 F.3d 532, 537 (1st Cir. 1999), cert.

denied, 527 U.S. 1011 (1999)); United States v. Foley, 783 F.3d

7, 12 (1st Cir. 2015) (stating that when a "sufficiency challenge

[is] unpreserved," the appeals court "review[s] for clear and

gross injustice only").

2 THE COURT: As I read this argument, it is not an argument
you've ever made before you filed this motion; is that right?

COUNSEL: That's right, your Honor.
...
COUNSEL: I think that the papers readily concede that the
lawyers did not present this argument to you, so it's not that we
presented it and you missed it. It was that this is a new argument
that wasn't presented before and it would result in a manifest
error of law if it were to stand going forward, and therefore we're
presenting it to the Court now and giving the Court an opportunity
to consider it.

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 Because a Motion for Reconsideration of the denial of a

previous Rule 29 motion is not the appropriate time to raise new,

much less contradictory, arguments, we will affirm the district

court’s ruling unless doing so would produce a “clear and gross

injustice." Cheung, 836 F.2d at 730 n.1. Under this "stringent

standard, which we have described as a particularly exacting

variant of plain error review," Foley, 783 F.3d at 12, the "already

high bar for plain error becomes even higher." United States v.

Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir. 2013). Even to

prevail under the more lenient plain error review, a defendant

must show (1) that an error occurred, (2) which was clear or

obvious, (3) that affected the defendant's substantial rights, and

(4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings. United States v. Flemmi,

402 F.3d 79, 86 (1st Cir. 2005). As we explain below, there was

no error in finding that an adequate jurisdictional nexus existed

between the conspiratorial agreement and objectives and the United

States, and Celaya therefore cannot prevail under plain error

review, much less under the more exacting "clear and gross

injustice" standard.

ii. Jurisdictional Nexus

The question of what is required to prove a sufficient

jurisdictional nexus with the United States to prosecute a § 846

conspiracy is an issue that has not been squarely addressed by

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this Court. However, both parties agree that some jurisdictional

nexus is required. This conclusion is bolstered by the general

presumption that Congress does not legislate with extraterritorial

effect unless clearly specified.3 Finally, this Court has held

that § 841, which covers distribution or possession with the intent

to distribute controlled substances, does not cover purely

extraterritorial crimes. See United States v. Hayes, 653 F.2d 8,

15 (1st Cir. 1981); see also United States v. McKenzie, 818 F.2d

115, 118 (1st Cir. 1987) (holding that § 841 is triggered if the

3In a case decided last June, the Supreme Court
clarified its test for deciding whether a statute applies
extraterritorially. See RJR Nabisco, Inc. v. European Cmty., 136
S. Ct. 2090, 2101 (2016).
Morrison and Kiobel reflect a two-step framework for
analyzing extraterritoriality issues. At the first
step, we ask whether the presumption against
extraterritoriality has been rebutted—that is, whether
the statute gives a clear, affirmative indication that
it applies extraterritorially. We must ask this question
regardless of whether the statute in question regulates
conduct, affords relief, or merely confers jurisdiction.
If the statute is not extraterritorial, then at the
second step we determine whether the case involves a
domestic application of the statute, and we do this by
looking to the statute's "focus." If the conduct
relevant to the statute's focus occurred in the United
States, then the case involves a permissible domestic
application even if other conduct occurred abroad; but
if the conduct relevant to the focus occurred in a
foreign country, then the case involves an impermissible
extraterritorial application regardless of any other
conduct that occurred in U.S. territory.
Id. (citing and discussing Morrison v. Nat'l Austl. Bank Ltd., 561
U.S. 247 (2010) and Kiobel v. Royal Dutch Petroleum Co., 133 S.
Ct. 1659 (2013)).

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defendant intended that the controlled substances be distributed

in the United States, even if no actual distribution took place,

or if the defendant possessed the controlled substances in the

United States with the intent to distribute the drugs abroad).

Because a conspiracy under § 846 is an agreement to violate § 841,

it stands to reason that the same jurisdictional requirement needs

to be met. However, in this case, several specific factors,

including the meeting in New Hampshire between Guzman and El Viejo,

the discussion of using eastern seaboard ports for future

trafficking, and the shipment of heroin and methamphetamine to

Detroit in June 2012, combine to clearly satisfy the required

jurisdictional nexus.

Celaya first contends that the meeting in New Hampshire

between Guzman and El Viejo, the undercover FBI agent posing as a

mafia boss, is not enough evidence to establish a jurisdictional

tie to the United States. Celaya makes the same argument with

respect to the meetings in Florida and Boston that he himself

attended. In support of this argument, he cites United States v.

Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), for the proposition

that meetings inside the United States are not sufficient to

establish a jurisdictional nexus when "the object of the conspiracy

was to possess controlled substances outside the United States

with the intent to distribute outside the United States." Id. at

1313. This is true enough, and the government in this case

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concedes that mere meetings in the United States to discuss the

details of an entirely international drug distribution scheme

would not be sufficient.

However, the problem for Celaya with this argument is

twofold. First, there was other evidence suggesting that members

of the conspiracy, including Guzman, saw distribution in the United

States as one of the objects of the conspiracy. In a meeting, El

Viejo informed Guzman that their goal in acquiring cocaine from

the Chapo Organization was to distribute the drugs in the United

States, among other places, and Guzman responded affirmatively

that he understood this. Celaya protests that it was the

government agent, not Guzman, who discussed plans to distribute

drugs in the United States. However, this is a distinction without

a difference when dealing with conspiracy liability, as

conspirators who have previously entered into a criminal agreement

among themselves, in concert with government agents, can be

convicted based on the distribution plans articulated by

government agents if they fail to object to those plans. See

United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987) (finding

that even though the two defendants' role was limited to importing

cocaine from Colombia to the West Indies, liability still attached

because they "agreed to arrange and carry out the cocaine sale

after being told by agents . . . of the latters' plans to import

the cocaine for distribution in the New York area").

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 Second, Celaya's argument that he did not know about the

New Hampshire meeting fails because there is no governing law in

this circuit which suggests that Celaya's alleged lack of knowledge

of the actions of his co-conspirator is a defense to liability.

Indeed, one out-of-circuit case appears to suggest the opposite.

See United States v. Manuel, 371 F. Supp. 2d 404, 409 (S.D.N.Y.

2005) (holding that where a crime is within the jurisdiction of

the United States, it is not necessary that the defendant know the

facts that establish jurisdiction). Such a rule fits with the

broader principles of conspiracy liability enforced by courts,

including the First Circuit. See United States v. Barnes, 244

F.3d 172, 176 (1st Cir. 2001) (noting that "[o]nce a participant

knowingly helps to initiate the agreement and set it in motion, he

assumes conspirator's responsibility for the foreseeable actions

of his confederates within the scope of the conspiratorial

agreement, whether or not he is aware of precisely what steps they

plan to take to accomplish the agreed goals").

Two more points undermine Celaya’s argument. First,

Guzman, one of his co-conspirators and a close cousin and

lieutenant of El Chapo, arranged for a delivery of drugs (heroin

and methamphetamine) to Detroit in June 2012 in order to maintain

the goodwill of the FBI Organization and to make amends for having

failed to disclose that one of the first shipments to Spain was a

test run that did not contain any actual drugs. It is immaterial

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that Celaya did not “explicitly or tacitly agree[] to the delivery

of drugs to Detroit," as he argues in his brief. The discussions

between the Chapo Organization and the FBI Organization were

sufficient to find that members of the Chapo Organization entered

into a major, transnational conspiracy in which they agreed to

regularly supply the FBI Organization with drugs for distribution

primarily in Europe, but also the United States. The Detroit

shipment was designed to build goodwill and maintain the

relationship in light of frustrations on the part of the FBI

Organization with some of the delays and expense connected with

the initial cocaine shipment to Spain. It was not, therefore, a

one-off event, nor was it a separate conspiratorial agreement.

Rather, the Detroit shipment was part of the ongoing conspiracy.

There was no gross injustice in finding that Celaya was a part of

this conspiracy and that the Detroit shipment, when coupled with

Guzman's knowledge that some of the drugs were to be delivered

into the United States and with the meeting in New Hampshire to

advance these plans, was sufficient to establish the required

jurisdictional nexus to the United States.4

4 We also find Celaya's argument that he was no longer a
member of the conspiracy at the time of the Detroit shipment to be
without any factual basis in the record. As counsel for Celaya
conceded at oral argument, this would require a showing that Celaya
had withdrawn from the conspiracy sometime between 2011 and the
June 2012 shipment, and he has made no such showing.

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 Second, the jury reasonably could have found that the

parties continued to contemplate the use of seaports on the east

coast of the United States, even if the one shipment of cocaine to

Spain which actually took place did not proceed via a U.S. port.

At meetings in Madrid, Spain, in March 2011, a representative of

the Sinaloa Cartel, Jose Locheo del Rio, expressed concern about

the use of American ports when the drugs originated in Ecuador (as

they were scheduled to in the initial shipment), because this would

mean the drugs would have to travel through the Panama Canal. In

particular, Del Rio expressed concern that the use of the Panama

Canal would require a transfer by train which could render the

drugs susceptible to hijackings and also to law enforcement

interdictions. However, representatives from the Chapo

Organization also emphasized at various points during their

meetings that the drugs would originate in various South American

countries, including some along the Atlantic Ocean, and they never

definitively ruled out the use of U.S. ports as a transit point

that might reduce law enforcement suspicion. Therefore, a jury

could reasonably have found that the use of eastern seaports in

the continental United States continued to be contemplated by the

parties for future shipments, as agreed to during the August 2010

Florida meetings.

In conclusion, unlike in Lopez-Vanegas, there was

sufficient evidence for a jury to find that this was not an

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entirely "international" drug distribution scheme which, but for

the meetings in the United States, would have had no connection to

the country. As previously discussed, Celaya himself conceded in

his Rule 29 motion that "there was substantial evidence introduced

by the Government that could reasonably be understood by the jury

to show that the Sinaloan cartel wanted to expand its drug

trafficking network into Europe, and perhaps the United States."

Our holding does not rest on any individual factor

identified above, rather, taken together, we think they clearly

meet the jurisdictional nexus requirement, and the district

court’s decision to deny Celaya’s Rule 29 Motion and his Motion

for Reconsideration did not result in a “clear and gross

injustice.” Finally, because we have found that there was more

than sufficient evidence for a jury to find that the conspiracy

both involved the intent to distribute controlled substances in

the United States and, on one occasion, did include such a

shipment, we find no error in the district court’s failure to

specifically instruct the jury on jurisdictional nexus.

B. Venue

Celaya's second argument for acquittal is that there was

insufficient evidence that the conspiracy was "begun, continued or

completed" in the District of New Hampshire, and thus venue was

improper. Because this argument was included in the defendant's

original Rule 29 motion, we undertake de novo review. See, e.g.,

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Marston, 694 F.3d at 134. With respect to sufficiency of venue,

the government must prove venue by a preponderance of the evidence.

United States v. Scott, 270 F.3d 30, 34 (1st Cir. 2001).

According to Celaya, the three pieces of evidence

offered by the government to establish venue in New Hampshire, (i)

including Portsmouth on the list of possible transit ports for

shipments; (ii) representing that El Viejo would distribute his

cocaine in New Hampshire, among other places; and (iii) bringing

Guzman to New Hampshire from Logan Airport to meet with El Viejo,

were all insufficient. This argument fails because an overt act

in furtherance of the conspiracy, the meeting between Guzman and

El Viejo, clearly took place in Portsmouth, NH. At that meeting,

Guzman and El Viejo discussed detailed plans for the Chapo

Organization's role in providing cocaine to the FBI Organization.

This discussion represented a key part of the planning process

after the various members of the Chapo Organization had reached an

agreement among themselves to provide cocaine to the FBI

Organization. Since Guzman was a clear co-conspirator of Celaya,

it is immaterial that Celaya himself was not present at this

meeting. See United States v. Santiago, 83 F.3d 20, 25 (1st Cir.

1996) ("[I]n a conspiracy case venue is proper in any district in

which an act in furtherance of the charged conspiracy has taken

place, even if a particular coconspirator was not himself

physically present in that district.")

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 Celaya's fallback argument is that because it was a

government agent who drove Guzman from Boston's Logan Airport to

the Portsmouth meeting, the government "manufactured" venue in New

Hampshire, and therefore this fails as a matter of law. However,

the First Circuit has never accepted the existence of a

"manufactured venue" doctrine, and most circuits have rejected the

concept of manufactured venue or "venue entrapment." See, e.g.,

United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir.

2006) ("[Government] agents may influence where the federal crime

occurs, and thus where venue lies, as well as whether the crime

comes under federal rather than state law. The entrapment doctrine

protects the defendant against manufactured offenses (unless the

defendant is predisposed); it does not limit venue."); see also

United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) ("There

is no such thing as 'manufactured venue' or 'venue entrapment.'");

United States v. Spriggs, 102 F.3d 1245, 1250 (D.C. Cir. 1996)

("[W]e are uncertain whether there is such a thing as 'venue

entrapment.' It is a little hard to conceive of a person

predisposed to commit a federal crime––but not in some specific

district.")5

5Even the two circuits that have not categorically refused
to rule out manufactured venue have emphasized that it would only
be viable in cases of extreme government misconduct. See United
States v. Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012)
(electing not to reach the question of whether a manufactured venue
challenge might succeed because there was nothing “extreme” about

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 The better rule appears to be that to the extent that

prosecutorial forum shopping "is a concern in a given case, it is

more appropriately handled at the trial level by a transfer to a

more reasonable forum" under Federal Rule of Criminal Procedure

21. Andrews v. United States, 817 F.2d 1277, 1279-80 (7th Cir.

1987). Indeed, it is hard to understand what the underlying logic

for "venue entrapment" would be, since entrapment in criminal law

is designed to avoid punishment for "an 'otherwise innocent' person

whose 'alleged offense' is 'the product of the creative activity'

of government officials," United States v. Gendron, 18 F.3d 955,

961 (1st Cir. 1994) (quoting Sorells v. United States, 287 U.S.

435, 451 (1932)), not to avoid punishment for a defendant involved

in a wide-ranging global narcotics conspiracy because government

agents drove one of his co-conspirators an hour from Boston to

Portsmouth, NH, for a meeting to discuss a planned drug

an Immigration and Customs Enforcement undercover operation, based
in San Diego, deciding to cash the foreign defendant's money order
for arms sales in a bank in San Diego, thus leading to venue in
the Southern District of California); United States v. Myers, 692
F.2d 823, 847 n.21 (2d Cir. 1982) (not precluding a possible
manufactured venue defense "in which key events occur in one
district, but the prosecution, preferring trial elsewhere, lures
a defendant to a distant district for some minor event simply to
establish venue," but finding that standard inapplicable in that
case). Indeed, in a more recent case, the Second Circuit noted
that "[i]n the quarter century since Myers, this court has never
vacated a conviction on the basis of manufactured venue." United
States v. Rommy, 506 F.3d 108, 127 (2d Cir. 2007).

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distribution network. The high-level meeting in New Hampshire

involving Guzman, a co-conspirator and close confidant of El Chapo

-- the Sinaloa Cartel's chief -- suggests an even stronger argument

for venue than previous acts found sufficient for venue in federal

courts, including telephone conversations. See, e.g., United

States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) (noting that

phone calls from defendants outside of Puerto Rico to a co-

conspirator in Puerto Rico was likely sufficient for venue to lie

in Puerto Rico because the offense "continued" in that forum, but

finding the appellants' argument waived in any event).

We therefore join the other circuits in rejecting the

manufactured venue doctrine. However, even if such a doctrine

were to be available in extreme cases of government misconduct,

that would simply not be the case here. The undercover agent drove

Guzman from Boston’s Logan Airport to a Portsmouth, NH-area hotel

for a meeting (a drive of roughly an hour). We see no reason why

the government could not bring its case in an adjacent

jurisdiction, when it could have arranged the meeting just a few

miles south in Massachusetts and secured venue there without any

possible objection.

C. Reasonableness of the Sentence

Celaya's final argument is that his 210-month prison

sentence was unreasonable, on the grounds that the district court

erred by failing to give him a downward adjustment for what he

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claims was a minor role in the conspiracy, and also erred in

applying the sentencing factors under 18 U.S.C. § 3553. We are

not convinced.

To qualify for a three-level reduction for a

minimal/minor role in the offense under U.S.S.G. § 3b1.2(b), a

defendant bears the burden of showing that he is less culpable

than his confederates and less culpable than "most other miscreants

convicted of comparable crimes." United States v. Montes-Fosse,

824 F.3d 168, 172 (1st Cir. 2016) (quoting United States v. Ortiz-

Santiago, 211 F.3d 146, 149 (1st Cir. 2000). Because "[r]ole-in-

the offense determinations are notoriously fact-sensitive," the

district court's "decision to apply a minor-role reduction is

subject to clear error review." Id. (citing Ortiz-Santiago, 211

F.3d at 148-49).

Here, the district court properly considered whether the

reduction was appropriate, and found that it was not.

Specifically, the court noted that Celaya was at the negotiating

table with the FBI Organization and, in light of his legal and

financial background, was a leading voice in discussing the money

laundering aspects of the conspiracy. He also admitted to meeting

with El Chapo personally in the mountains in Mexico to recommend

that the Sinaloa Cartel enter into a partnership with the FBI

Organization. We find no reason to conclude that the district

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court committed plain error in not applying the three-level

reduction.

Finally, Celaya argues that his sentence was

substantively unreasonable because he received a sentence that was

longer than those of his co-conspirators, who received sentences

ranging from 60 months to 192 months. The latter sentence was

handed down to Guzman, and Celaya contends that it was unreasonable

to sentence him to a term of imprisonment that was eighteen months

longer than Guzman, who was El Chapo's right-hand man and

"dominated the conspiracy proven at trial" by attending every

single meeting with the undercover agents and orchestrating the

shipment of drugs to Detroit. This sentencing decision, according

to Celaya, resulted in a misapplication of the § 3553(a) factors,

which require that a Court "avoid unwarranted sentencing

disparities among defendants with similar records who have been

found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).

This argument fails for two reasons. First, it is not

clear from the record that Guzman was necessarily a more central

player than Celaya, who met with El Chapo and was intimately

involved in the planning process for the conspiracy. Therefore,

the fact that his sentence exceeded that given to Guzman and other

co-conspirators may well constitute a "plausible sentencing

rationale and a defensible result," United States v. Rivera-

Gonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (quoting United States

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v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), as required under

this court's standard of review for the substantive reasonableness

of a sentence. Secondly, if that is not enough, there was a

crucial difference between Celaya and his co-defendants: Celaya

was the only one who elected not to plead guilty. Therefore, while

Guzman and other co-defendants were entitled to a three-level

reduction for acceptance of responsibility, Celaya was not. This

court "routinely [has] rejected disparity claims" where

"complaining defendants . . . fail to acknowledge material

differences between their own circumstances and those of their

more leniently punished confederates." United States v. Reyes-

Santiago, 804 F.3d 453, 467 (1st Cir. 2015). A decision to proceed

to trial, rather than to plead guilty alongside other co-

defendants, is a permissible factor that a court may consider in

determining a possible sentencing disparity between a defendant

and his other coconspirators. See, e.g., United States v. Ortiz-

Islas, 829 F.3d 19, 29 (1st Cir. 2016). For both of the above

reasons, Celaya's claim that the sentence was substantively

unreasonable fails.

III. Conclusion

For the aforementioned reasons, we AFFIRM Celaya's

conviction and sentence.

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