Filed: Jan. 20, 2012
Latest Update: Feb. 22, 2020
Summary: , U.S. Sentencing Comm'n Notice of Final Action Regarding Amendment, to Policy Statement 1B1.10, 76 Fed. United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.8, Government witness Leonardo Martínez de León testified that, he had seen Rodríguez-Romero at Carioca driving a grey Taurus.
United States Court of Appeals
For the First Circuit
No. 10-1393
UNITED STATES,
Appellee,
v.
ALBERT I. DÍAZ, a/k/a Gringo,
Defendant, Appellant.
No. 10-1412
UNITED STATES,
Appellee,
v.
JAVIER RODRÍGUEZ-ROMERO, a/k/a Panky,
Defendant, Appellant.
No. 10-1530
UNITED STATES,
Appellee,
v.
EDDIE M. RODRÍGUEZ, a/k/a Bolón,
Defendant, Appellant.
No. 10-1686
UNITED STATES,
Appellee,
v.
ANGEL O. LÓPEZ-CAPÓ, a/k/a Baby Face,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.
Jorge E. Rivera-Ortíz, by Appointment of the Court, for Albert
I. Díaz.
Sonia I. Torres-Pabón, by Appointment of the Court, for Javier
Rodríguez-Romero.
Michael R. Hasse, by Appointment of the Court, for Eddie M.
Rodríguez.
John E. Mudd, by Appointment of the Court, for Angel O. López-
Capó.
Rosa Emilia Rodríguez-Vélez, United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, and Luke Cass,
Assistant United States Attorney, were on brief for appellee.
January 20, 2012
STAHL, Circuit Judge. A jury convicted defendants-
appellants Albert I. Díaz, Javier Rodríguez-Romero, Eddie M.
Rodríguez, and Angel O. López-Capó of conspiracy to distribute
narcotics and possession with intent to distribute narcotics as a
result of their participation in a drug point that operated within
a public housing project in Guayama, Puerto Rico. The defendants
individually raise a variety of challenges to the district court's
jurisdiction, the sufficiency of the evidence, the court's
evidentiary rulings, the jury instructions, and their sentences.
After careful consideration, we find merit to only one of these
claims. Specifically, we find that the district court lacked
jurisdiction over Rodríguez, who was a juvenile during much of the
conspiracy, with respect to two of the substantive drug counts of
which he was convicted. We thus vacate those convictions and
remand his case to the district court for a new sentencing hearing.
We affirm in all other respects.
I. Facts & Background
On March 27, 2009, a grand jury returned a seven-count
indictment against the defendants and forty-three other
individuals. The indictment alleged, among other things, that the
defendants conspired to operate a drug point in the San Antonio
Public Housing Project (commonly known as "Carioca"), in the
municipality of Guayama, Puerto Rico.
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Count One of the indictment alleged that, between 2006
and March 27, 2009, the defendants and others knowingly conspired
to possess with intent to distribute various amounts of cocaine
base ("crack"), heroin, cocaine, marijuana, and Oxycodone within
1,000 feet of a school and/or public housing facility and/or
playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860.
We refer to this as the "conspiracy count."
Counts Two through Five of the indictment alleged that,
between 2006 and March 27, 2009, the defendants and others, aiding
and abetting each other, knowingly and intentionally possessed with
intent to distribute one kilogram or more of heroin (Count Two),
fifty grams or more of crack (Count Three), five kilograms or more
of cocaine (Count Four), and 1,000 kilograms or more of marijuana
(Count Five) within 1,000 feet of a school and/or public housing
facility, in violation of 21 U.S.C. §§ 841(a)(1) and 860
and 18 U.S.C. § 2. We refer to these as the "substantive drug
counts."
Count Six alleged that, between 2006 to March 27, 2009,
López-Capó, Díaz, and others conspired to carry and use firearms
during and in relation to the drug trafficking crimes charged in
Count One, in violation of 18 U.S.C. § 924(o). Count Seven, which
is not at issue here, sought the forfeiture of drug proceeds.
According to the indictment, Díaz worked primarily as an
"enforcer" for the drug point, meaning that he used firearms to
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protect the drug point's employees, narcotics, and proceeds.
Rodríguez and Rodríguez-Romero allegedly worked as runners and
sellers, meaning that they supplied the drug point with narcotics,
collected proceeds, recruited and paid sellers, and prepared
ledgers, also known as "tallies," to keep track of the drug point's
sales. The indictment alleged that López-Capó was one of the
owners of the drugs distributed at Carioca and that he received
proceeds from the sale of crack at the drug point.
These four defendants elected to go to trial. The
government presented the testimony of three co-operating witnesses,
who had themselves participated in the Carioca drug point:
Heriberto García-Román, Leonardo Martínez de León, and Yamil
Irizarry-Lucas. The government also presented the testimony of
various officers from the Puerto Rico Police Department who had
conducted surveillance and arrests, or otherwise intervened, at
Carioca. Finally, the government presented the testimony of Carmen
Orengo, a licensed chemist for the Puerto Rico Forensic Sciences
Institute, who analyzed some of the controlled substances seized
from Carioca. Based on her analysis of the substances and the co-
operating witnesses' testimony regarding the frequency of sales at
the drug point, Ms. Orengo estimated that, in a given year, the
Carioca drug point had sold 21.9 kilograms of crack, 5.47 kilograms
of heroin, 10.95 kilograms of cocaine, and 18.25 kilograms of
marijuana.
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The jury found Díaz guilty of Counts One through Five but
acquitted him of Count Six. Rodríguez-Romero and Rodríguez were
found guilty of Counts One through Five. López-Capó, who testified
at trial, was found guilty of Counts One and Three and acquitted of
all other counts. This timely appeal followed.1
II. Discussion
A. The "Schoolyard" Counts
We begin with a claim raised by Díaz and López-Capó that
the government failed to prove beyond a reasonable doubt that the
relevant drug activity took place within 1,000 feet of a protected
area. See 21 U.S.C. § 860(a). They also argue that the evidence
was insufficient to establish the existence of a school,
playground, or public housing project as those locations are
defined in the statute. See id. Because Díaz and López-Capó
raised this argument as part of a Rule 29 motion, we review de
novo, viewing the evidence and drawing all reasonable inferences in
1
We note the possibility that Díaz, Rodríguez-Romero, and
López-Capó may be eligible to petition for resentencing under the
new sentencing guidelines promulgated pursuant to the Fair
Sentencing Act of 2010. See 18 U.S.C. § 3582(c)(2); U.S.S.G. §§
1B1.10, 2D1.1. Those guidelines were made retroactive effective
November 1, 2011. See News Release, U.S. Sentencing Comm'n, U.S.
Sentencing Comm'n Votes Unanimously to Apply Fair Sentencing Act of
2010 Amendment to the Fed. Sentencing Guidelines Retroactively
(June 30, 2011) (available at http://www.ussc.gov/Legislative_and_
Public_Affairs/Newsroom/Press_Releases/20110630_Press_Release.pdf);
U.S. Sentencing Comm'n Notice of Final Action Regarding Amendment
to Policy Statement 1B1.10, 76 Fed. Reg. 41332 (July 13, 2011).
Because the defendants have not raised this argument on appeal, we
do not address it here, nor do we express any opinion about the
merits of any such future petition.
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the light most favorable to the verdict. United States v. Pérez-
Meléndez, 599 F.3d 31, 40 (1st Cir. 2010). We conclude that the
1,000-foot requirement was met and that the evidence was sufficient
to establish the existence of a public housing project. We
therefore need not address whether the government also proved that
the defendants engaged in drug-related activity within 1,000 feet
of a school or playground.
Title 21 U.S.C. § 860(a), also known as the "schoolyard
statute," provides enhanced penalties for the distribution,
possession with intent to distribute, or manufacturing of drugs "in
or on, or within one thousand feet of" any of three protected
areas: (1) a school; (2) a playground; or (3) a public housing
facility. The indictment charged the defendants with conspiring to
possess with intent to distribute various controlled substances
"within one thousand (1,000) feet of" all three protected areas.2
The government seems to have made its job unnecessarily
difficult by alleging that the drug activity occurred "within 1,000
feet of" a protected area, rather than simply alleging that it
occurred "in or on" a protected area, as the statute allows. See
21 U.S.C. § 860(a). When the government charges a defendant under
2
The conspiracy count charged that the drug conspiracy took
place within 1,000 feet of a school and/or public housing facility
and/or playground. The substantive drug counts only charged that
the possession with intent to distribute took place within 1,000
feet of a school and/or public housing facility, omitting any
mention of the playground.
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the "within 1,000 feet" prong of the statute, we have held that the
government must prove beyond a reasonable doubt that the distance
from the protected area to the site of the drug transaction is
1,000 feet or less. United States v. Soler, 275 F.3d 146, 154 (1st
Cir. 2002). Because "[d]istances are notoriously difficult to
gauge in still photographs, and more so in motion pictures," we
have generally insisted that the government provide a precise
measurement.
Id. at 155 (internal citation omitted). We have,
however, carved out an exception "in some cases where the spatial
leeway is relatively great and the gap in the chain of proof is
relatively small," such that "common sense, common knowledge, and
rough indices of distance can carry the day."
Id. at 154.
The government offered ample evidence that the drug point
operated within the Carioca housing project. Government witness
Heriberto García-Román testified that the drug point was located
"[i]nside of the Carioca Public Housing Project. . . . in some
abandoned houses that were located right there inside of the Public
Housing Project." Police Officer Víctor J. Veguilla-Figuero
testified that the drug point was located "in the area of the
staircase," in "two abandoned houses" and "in the children's play
area" within the Carioca housing project, and he identified each of
those locations in a photograph of Carioca. Leonardo Martínez de
León, who himself dealt drugs in Carioca, identified various
locations from which the drug point operated within Carioca. And
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Police Officer Roberto Ayala-Vega testified that "the drug point
was always within Carioca" but moved among multiple buildings in
the housing project.
The evidence was also sufficient to establish that
Carioca is a "housing facility owned by a public housing
authority," as required by 21 U.S.C. § 860(a). Officer José Ortiz-
Sierra, of the Puerto Rico Police Department's Monitoring Center
for the Public Housing Projects, testified that the Monitoring
Center has surveillance cameras within Carioca. It would be
reasonable for the jury to infer from this testimony that Carioca
is a public housing project. See Pérez-Meléndez, 599 F.3d at 40.
Furthermore, defense witness Jessica Pinto-Capó, who worked as a
secretary in the Housing Department, testified that she "grew up in
the Carioca Public Housing Project" and that all Carioca apartments
are owned by the Public Housing Authority.
Given that the evidence was sufficient for the jury to
find that the drug point operated within Carioca and that Carioca
is a public housing facility, it was also sufficient to establish
that the drug point operated within 1,000 feet of a public housing
facility. Where the government alleges that drug-related activity
occurred "within 1,000 feet" of a protected area under 21 U.S.C.
§ 860(a) and then proves that the activity actually occurred "in or
on" the protected area, the government need not provide a precise
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measurement establishing the 1,000-foot requirement.3 In such an
instance, common sense will carry the day. Soler, 275 F.3d at 154.
We thus affirm Díaz's conviction. We address López-
Capó's other claims below.
B. Rodríguez
Rodríguez (a.k.a. "Bolón"), who was convicted of the
conspiracy count as well as four substantive drug counts, was
either a juvenile or incarcerated in a juvenile detention facility
for much of the time that the Carioca drug point operated.
Rodríguez argues that the evidence offered at trial was
insufficient to establish that he participated in the conspiracy or
committed any of the substantive drug counts after he turned
eighteen and that the district court thus lacked jurisdiction under
the Federal Juvenile Delinquency Act (FJDA). See 18 U.S.C. § 5032.
We review the sufficiency of the evidence de novo to determine
whether the court's exercise of jurisdiction was proper. See
United States v. Vargas-De Jesús, 618 F.3d 59, 63 (1st Cir. 2010).
Rodríguez also argues that the court failed to properly instruct
the jury with respect to the FJDA. We review preserved objections
to a district court's jury instructions de novo, but we review for
plain error where the defendant did not properly object before the
3
Nonetheless, the better practice here would have been for
the government to either allege in the indictment that the drug
point operated "in or on" the public housing project, or to provide
a precise measurement demonstrating that the 1,000-foot requirement
was met.
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district court. See, e.g., United States v. Meadows, 571 F.3d 131,
145 (1st Cir. 2009).
Absent a certification from the Attorney General, the
FJDA prevents a district court from exercising jurisdiction over a
defendant who is under the age of twenty-one for criminal acts that
he committed before he turned eighteen. See 18 U.S.C. § 5032;
Vargas-De Jesús, 618 F.3d at 64. In this case, it is undisputed
that the government failed to present the district court with a
certification from the Attorney General and that the proceedings
began before Rodríguez turned twenty-one. We have held that "a
conviction must be set aside, even absent timely objection, if the
record establishes that a defendant was under the age of 18 when
the offense was committed and under the age of 21 when criminal
proceedings were commenced." Vargas-De
Jesús, 618 F.3d at 64.
There are, however, some important limitations on that rule.
First, the jurisdictional question is one that the jury can decide;
there is no need for a pretrial evidentiary hearing. United States
v. Welch,
15 F.3d 1202, 1210 (1st Cir. 1993). Second, a "jury may
properly hear evidence regarding a defendant's premajority conduct
to establish the existence of a conspiracy." Vargas-De
Jesús, 618
F.3d at 65. However, if the conspiracy began before the defendant
turned eighteen, there can be no conviction unless the jury finds
that the defendant "in some manner 'ratified' [his] participation
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in the conspiracy after attaining majority." Welch, 15 F.3d at
1212; see also Vargas-De
Jesús, 618 F.3d at 65.
According to the indictment, this conspiracy lasted from
2006 to March 27, 2009. Rodríguez was apparently active in the
drug point until he entered a juvenile detention facility on or
about May 4, 2007. He turned eighteen in February of 2008,4 while
in detention, and was released on August 18, 2008. Thus, if
Rodríguez participated in the conspiracy as an adult, it had to
have been between August 18, 2008 and March 27, 2009.
The district court instructed the jury that it could not
consider Rodríguez's acts in furtherance of the conspiracy before
he turned eighteen unless it first found beyond a reasonable doubt
that he had participated in the conspiracy after he turned
eighteen. The jury convicted Rodríguez of five counts: the
conspiracy count (Count One) and four substantive counts of
possession with intent to distribute heroin (Count Two), crack
(Count Three), cocaine (Count Four), and marijuana (Count Five).
The district court used an offense level of 365 and a Criminal
History Category (CHC) of I, which yielded a sentencing guideline
4
On at least one page of his brief, Rodríguez lists his
birthday as February 18, 1990, though he lists it as February 19,
1990 elsewhere. The pre-sentence investigation report and the
trial testimony of Rodríguez's wife established that Rodríguez was
born on February 19, 1990.
5
The court used a base offense level of 34 and applied a two-
point enhancement because the relevant drug activity occurred
within 1,000 feet of a protected area. See U.S.S.G. § 2D1.2(a)(1).
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range of 188 to 235 months. As to each count, the court sentenced
Rodríguez to 188 months (fifteen years and eight months) in prison
and ten years of supervised release, all to be served concurrently.
Our cases have separated the jurisdictional analysis with
respect to a conspiracy count from the jurisdictional analysis with
respect to a substantive drug count. We have distinguished the
"continuing offense" of conspiracy from a "non-continuing
substantive violation," finding that it will generally be "readily
apparent" whether a substantive violation occurred before or after
the defendant's eighteenth birthday. Welch, 15 F.3d at 1207. In
Vargas-De Jesús, the government had failed to provide the necessary
certification under the FJDA, and the defendant was found guilty of
one conspiracy count and two substantive drug
counts. 618 F.3d at
63. We concluded that the district court had jurisdiction over the
conspiracy count, because there was ample evidence that the
defendant had continued participating in the conspiracy after he
turned eighteen.
Id. at 65-66. However, we vacated the
defendant's convictions on the substantive drug counts, finding
that the evidence the government had offered in support of those
counts related solely to acts the defendant had committed before he
turned eighteen and that the court thus lacked jurisdiction.
Id.
at 64-65. With those principles in mind, we turn to the case at
hand.
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1. The conspiracy count
Rodríguez's first claim is that there was insufficient
evidence of his participation in the conspiracy post-majority for
the district court to exercise jurisdiction over that count. We
find the evidence sufficient. Government witness Leonardo Martínez
de León testified that Rodríguez acted as a runner for the drug
point "towards the end of 2008" and in 2009, that runners "would
give the material to the . . . pushers," and that Rodríguez was the
person who handled marijuana for the drug point in 2008 and 2009.
Martínez de León also testified that he paid Rodríguez $40.00 per
week to be able to sell his own marijuana in Carioca at the "[e]nd
of 2008, beginning [of] 2009." Given that Rodríguez turned
eighteen in February 2008, the evidence was sufficient for a
reasonable jury to find that Rodríguez ratified his participation
in the conspiracy post-majority. See Vargas-De Jesús, 618 F.3d at
65-66.
Rodríguez also raises a properly-preserved challenge to
the court's jury instruction regarding the conspiracy count, which
we review de novo. See, e.g., Meadows, 571 F.3d at 145. The
district court gave the jury an instruction and included a special
question on the verdict form regarding Rodríguez's participation in
the conspiracy before and after he turned eighteen. The
instruction went as follows:
Let me say something about Eddie Rodriguez,
also known as Bolon's age. The case of Eddie
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Rodriguez requires that a jury make a
threshold consideration. You cannot consider
his acts in furtherance of the conspiracy
before he turned 18 years of age, unless you
first find beyond a reasonable doubt that he
participated in the conspiracy after he
reached the age of 18 years. If he
participated in the conspiracy after he became
18 years of age, then all of his acts in
furtherance of the conspiracy while he was a
minor can be considered as if he was of legal
age.
The special question on the verdict form asked whether the jury
found that Rodríguez had participated in the conspiracy after he
turned eighteen; the jury answered in the affirmative.
The last sentence of the instruction was not entirely
precise as a matter of law. While "the jury may properly hear
evidence regarding a defendant's premajority conduct to establish
the existence of a conspiracy," Vargas-De Jesús, 618 F.3d at 65, we
have never held that the jury can consider all of a defendant's
acts in furtherance of the conspiracy as if he was an adult when he
committed them, see
id. at 63-67; Welch, 15 F.3d at 1206-10.
However, Rodríguez has given us no reason to believe that this
error prejudiced him. See United States v. Duclos,
214 F.3d 27, 34
(1st Cir. 2000) ("An error in jury instructions will mandate
reversal only when the error is prejudicial based on a review of
the entire record."). The jury specifically found on its verdict
form that Rodríguez had participated in the conspiracy after he
turned eighteen, and there was ample evidence of post-majority
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ratification for the court to exercise jurisdiction. We thus
affirm Rodríguez's conviction on the conspiracy count.
2. The substantive drug counts
Rodríguez also challenges the district court's exercise
of jurisdiction over the substantive drug counts, arguing that the
evidence was insufficient to support jurisdiction and that the
district court failed to properly instruct the jury regarding those
counts.
We begin with the substantive count of possession with
intent to distribute marijuana. Martínez de León's testimony was
sufficient to establish jurisdiction over Rodríguez with respect to
that count. Martínez de León testified that Rodríguez was the
person who handled marijuana for the drug point in 2008 and 2009,
that Rodríguez was one of two "owners of the weed" at the drug
point, and that Martínez de León therefore paid Rodríguez to be
able to sell his own marijuana in Carioca at the end of 2008 and in
2009. We find that the jury reasonably could have credited
Martínez de León's testimony and found sufficient evidence of post-
majority activity for the district court to exercise jurisdiction
over the marijuana count. See Vargas-De Jesús, 618 F.3d at 64-65.
For the substantive heroin, crack, and cocaine counts,
the jurisdictional question is more complex. Here, the government
points to Martínez de León's testimony that: (1) Rodríguez was a
runner in late 2008 and 2009; (2) he knew Rodríguez was a runner
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because "[Rodríguez] would handle the marijuana"; and (3) he paid
Rodríguez to be able to sell marijuana in Carioca. The
government's brief suggests that "Martínez de León said that
runners provided him with drugs to sell, including cocaine, crack,
heroin, and marijuana," but we find no such statement in his
testimony. In the cited portion of his testimony, Martínez de León
actually said, "well, the runners would give the material to the
. . . pushers," without specifying (or being asked by the
government) what "material" he was referring to. The government
then asked Martínez de León how he knew that Rodríguez was a runner
for the drug point in 2008 and 2009, and Martínez de León
responded, "because he would handle the marijuana." Though
Martínez de León did testify that he "was able to put drugs in the
housing project" by paying $40.00 per week in "rent" to Rodríguez
and another individual, when the prosecutor asked him what he meant
by having to pay "rent," Martínez de León testified as follows:
A. Well, to pay rent -- to put it in this way,
Bolon and Axel were the owners of the weed, so
from there they were charging me 40 each one.
40, 40.
Q. And they would charge you 40 each one for
what?
A. For the marijuana.
Q. And you would pay them the 40 bucks, and
what would you get in exchange for paying them
the 40 bucks?
A. I could continue selling the material
through the Carioca [sic].
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Thus, taken in context, the reasonable inference to be drawn from
this testimony is that "the material" refers to marijuana. The
evidence does not establish that Martínez de León paid Rodríguez to
be able to sell anything other than marijuana, that all runners
handled all four drugs (heroin, crack, cocaine, and marijuana), or
that Rodríguez personally possessed or distributed any drug other
than marijuana after he turned eighteen.
Recognizing that the evidence is lacking, the government
offers two theories to support jurisdiction over Rodríguez with
respect to the substantive heroin, crack, and cocaine counts. The
first is that, because each of the counts included an aiding and
abetting charge, the jury could have convicted Rodríguez of aiding
and abetting in the possession or distribution of crack, heroin,
and cocaine. We reject that argument, because the government has
pointed us to no evidence in the record demonstrating that
Rodríguez aided or abetted in the possession or distribution of
those drugs after he turned eighteen.
The government's second argument is that the jury
received an instruction regarding, and may have convicted Rodríguez
under, the Pinkerton theory of liability, pursuant to which a
defendant can be held liable for the substantive offenses of his
co-conspirators if those offenses were reasonably foreseeable and
committed in furtherance of the conspiracy. See Pinkerton v.
United States, 328 U.S. 640 (1946); United States v. Vázquez-Botet,
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532 F.3d 37, 62 (1st Cir. 2008). The government's theory seems to
be that, once a juvenile defendant ratifies his participation in a
conspiracy post-majority, he can be held liable for all reasonably-
foreseeable offenses committed in furtherance of that conspiracy,
including offenses that occurred before he turned eighteen (which,
in Rodríguez's case, is when he appears to have been most active in
the drug point).
The propriety of exercising jurisdiction over a juvenile
under the Pinkerton doctrine was not before us in Vargas-De Jesús.
In that case, the government entirely failed to address the
defendant's substantive drug convictions in its brief, defending
them for the first time at oral argument on the grounds that there
was sufficient post-majority evidence to convict. Vargas-De Jesús,
618 F.3d at 64. We thus have not yet examined whether a district
court has jurisdiction over a defendant under the FJDA with respect
to substantive offenses committed by the defendant's co-
conspirators before the defendant turned eighteen. We find that it
does not.
The FJDA strips a district court of jurisdiction "if the
record establishes that a defendant was under the age of 18 when
the offense was committed and under the age of 21 when criminal
proceedings were commenced." Id. (emphasis added); see also 18
U.S.C. § 5032. Though the "continuing offense" of conspiracy may
span a defendant's eighteenth birthday, a "non-continuing
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substantive violation" generally will not. Welch, 15 F.3d at 1207.
We will allow evidence of acts comprising an offense to be admitted
even if those acts occurred before the defendant turned eighteen,
but the government cannot rely entirely on pre-majority acts to
establish jurisdiction over an offense. See
id. at 1207 n.5.
There must be sufficient proof of post-majority activity. See,
e.g., Vargas-De
Jesús, 618 F.3d at 65. Thus, when a defendant has
participated in a conspiracy both before and after his eighteenth
birthday and the government fails to obtain a certification from
the Attorney General under 18 U.S.C. § 5032, the defendant cannot
be held liable for the substantive crimes of his co-conspirators
unless there is sufficient evidence for a reasonable jury to find
that each substantive crime occurred after the defendant turned
eighteen, was reasonably foreseeable to the defendant, and was
committed in furtherance of the conspiracy. See id.; Pinkerton,
328 U.S. 640. The district court must, in turn, properly instruct
the jury regarding the government's burden and the jury's inability
to consider the substantive crimes of co-conspirators committed
before the defendant's eighteenth birthday in assessing the
defendant's liability.
As mentioned above, the jury here received a Pinkerton
instruction, which Rodríguez does not challenge on appeal. Though
we find this to be a very close case, the evidence on the record
ultimately supports Rodríguez's conviction on the substantive crack
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count under a Pinkerton theory of liability. Specifically, the
government introduced evidence that the police seized 150 vials of
crack from Rodríguez-Romero, a co-conspirator, on October 24, 2008,
which was after Rodríguez ratified his participation in the
conspiracy post-majority. We will assume that the jury properly
followed the court's Pinkerton instruction and found that
Rodríguez-Romero's possession of crack was reasonably foreseeable
to Rodríguez and committed in furtherance of the conspiracy. See,
e.g., United States v. Salley, 651 F.3d 159, 167 (1st Cir. 2011).
We thus affirm Rodríguez's conviction on the substantive count of
possession with intent to distribute crack.
However, the government has pointed us to no evidence on
the record demonstrating that Rodríguez's co-conspirators committed
the substantive acts of possessing with intent to distribute heroin
and cocaine after Rodríguez turned eighteen. The government
introduced general evidence that the drug point operated in 2008
and 2009, as well as specific evidence tying Rodríguez to heroin
and cocaine before he turned eighteen, but neither of those will
suffice to support jurisdiction. The government had the burden of
introducing at trial, and highlighting on appeal, specific pieces
of evidence, with dates, tying Rodríguez or his co-conspirators to
the possession or distribution of heroin and cocaine at the drug
point after August 18, 2008, when Rodríguez was released from
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juvenile detention.6 It has failed to do so. For the reasons
discussed above, that omission is fatal, and the court thus lacked
jurisdiction over Rodríguez with respect to the heroin and cocaine
counts. See Vargas-De Jesús, 618 F.3d at 64-65.
Having reached that conclusion, we need not address in
any detail Rodríguez's claim that the district court failed to
instruct the jury that it could not hold Rodríguez liable for the
substantive acts of his co-conspirators unless the jury first found
that those acts occurred after Rodríguez turned eighteen. This
claim now only applies to Rodríguez's convictions on the
substantive crack and marijuana counts, since we are vacating his
heroin and cocaine convictions. Though Rodríguez is correct, he
failed to make the argument before the district court, so we review
the instruction for plain error. See, e.g., Meadows, 571 F.3d at
145. Rodríguez has not cleared the high hurdle of plain error
review, because he has failed to demonstrate a reasonable
probability that, but for the error, the result of the district
court proceeding would have been different. See United States v.
Dominguez Benitez,
542 U.S. 74, 82 (2004); Vargas-De
Jesús, 618
F.3d at 67. Though certainly not overwhelming, the evidence was
sufficient to support Rodríguez's convictions on the crack and
marijuana counts, regardless of the omitted instruction. See
6
Because Rodríguez happens to have turned eighteen while in
juvenile detention, we use his release date, rather than his
eighteenth birthday, as his post-majority ratification date.
-22-
Vargas-De Jesús, 618 F.3d at 66-67 (affirming conspiracy conviction
despite lack of jury instruction under plain error standard of
review, because evidence was sufficient).
We thus affirm Rodríguez's convictions on Counts One,
Three, and Five, and vacate his convictions on Counts Two and Four.
That leaves only the question of whether to remand Rodríguez's case
for resentencing. We choose to do so, because we find that the
vacated counts may "alter the dimensions of the sentencing
'package,'" United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st
Cir. 2008), and that the district court should have the opportunity
to consider whether a new sentence is warranted.7 We therefore
need not reach Rodríguez's remaining claim that the district court
erred in calculating the amount of crack attributable to him as a
result of his participation in the conspiracy.
C. Rodríguez-Romero
Rodríguez-Romero raises two challenges to the district
court's evidentiary rulings. First, he argues that the district
court should have allowed him to introduce what he characterizes as
impeachment evidence. Second, he claims that a portion of trial
testimony was inadmissible hearsay and violated his rights under
the Confrontation Clause. We review the district court's
7
On remand, should the district court again choose to
calculate Rodríguez's sentence based on his involvement with crack
at the drug point, the court will of course have to apply the new
Fair Sentencing Act guidelines. See supra note 1.
-23-
evidentiary rulings for abuse of discretion, though "we consider de
novo whether the strictures of the Confrontation Clause have been
met." United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.
2005). Where Rodríguez-Romero failed to object at trial, we review
for plain error. See, e.g., United States v. Rodriguez,
525 F.3d
85, 95 (1st Cir. 2008) (failure to object on hearsay grounds
results in plain error review); United States v. Luciano,
414 F.3d
174, 178 (1st Cir. 2005) (same for failure to object on
Confrontation Clause grounds). Finding no abuse of discretion, and
no violation of the Confrontation Clause, we affirm.
1. The impeachment testimony
Rodríguez-Romero's first argument is that the district
court violated his constitutional right to present a complete
defense by refusing to let him introduce extrinsic evidence that he
claims "could have" impeached Police Officer Víctor M. Veguilla
Figuero. On October 24, 2008, Veguilla arrested Rodríguez-Romero
with 150 vials of crack outside a home in Guayama, Puerto Rico.
Rodríguez-Romero had stopped in front of the house in a grey Ford
Taurus.8 Veguilla testified that he received an instruction to
arrest Rodríguez-Romero from a colleague, Officer Pérez, who
claimed to have witnessed Rodríguez-Romero conducting a drug sale
8
Government witness Leonardo Martínez de León testified that
he had seen Rodríguez-Romero at Carioca driving a grey Taurus.
-24-
with a co-conspirator named David de León. On the same day, Pérez
arrested David de León.
At trial, Rodríguez-Romero sought to introduce the
testimony of Tomasa Colón-Pérez, David de León's mother and the
owner of the house in front of which Rodríguez-Romero was arrested.
The district court reviewed Colon-Pérez's testimony outside the
presence of the jury. Colon-Pérez's offer of proof was that, on
the evening of October 24, 2008, she was sitting outside her house
when police officers ran into her house and arrested her son,
David. She witnessed the officers handcuff her son, and then a
female officer escorted her into a bedroom, where Colon-Pérez
remained for a period of time. She was allowed to exit the bedroom
and kiss her son before the officers escorted him out of the house
through the "door in the back of the room which leads to the yard."
The officers then brought Colon-Pérez back into the bedroom. About
two hours went by, according to Colon-Pérez, at which point the
officers standing in the bedroom with her said something to the
effect of, "It's about to arrive. It's about to arrive." A few
minutes later, the officers said, "It arrived. The car arrived."
Colon-Pérez then heard a voice in the house say, "David, David."
From the bedroom, she could not see who was speaking, nor could she
identify the voice. Colón-Pérez was inside her home, could not see
outside, and did not witness Rodríguez-Romero's arrest.
-25-
Though the offer of proof at trial was less than lucid,
Rodríguez-Romero's attorney apparently sought to introduce Colon-
Pérez's testimony in order to impeach Veguilla by showing that:
(1) Officer Pérez could not have witnessed David de León and
Rodríguez-Romero conducting a drug sale, because de León was
already under arrest at that point; and (2) more generally, the
events that day could not have transpired as Veguilla claimed they
had, since de León was arrested two hours before Rodríguez-Romero.
Rodríguez-Romero's argument fails. Colón-Pérez did not
witness the arrest of Rodríguez-Romero, which is the arrest
Veguilla conducted and about which he testified. Colón-Pérez
contradicted none of the specific events that Veguilla described in
his testimony. Veguilla did not testify that the drug sale between
de León and Rodríguez-Romero occurred outside Colón-Pérez's house,
that de León and Rodríguez-Romero were immediately arrested
following the sale,9 or that de León was still present at the house
when Veguilla arrested Rodríguez-Romero. Nor did Colón-Pérez see
the car that was allegedly "arriving" such that she could establish
that the activity she heard two hours after her son's arrest was
indeed the arrest of Rodríguez-Romero.
9
Veguilla testified that "after a surveillance that was
rendered for me by fellow officer Perez, he indicated that we were
to intervene." When asked whether he arrested Rodríguez-Romero at
the same time that Pérez arrested de León, Veguilla said, "I
couldn't tell you at the same time, but it was more or less
relative."
-26-
Rodríguez-Romero argues that the exclusion of Colón-
Pérez's testimony denied him "a meaningful opportunity to present
a complete defense," a right the Constitution guarantees,
"[w]hether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment." Crane v. Kentucky, 476 U.S. 683,
690 (1986) (internal citation and quotation marks omitted). Yet a
defendant's right to present relevant evidence in his own defense
"is not unlimited, but rather is subject to reasonable
restrictions." United States v. Scheffer,
523 U.S. 303, 308
(1998). See also Taylor v. Illinois,
484 U.S. 400, 410 (1988)
("The accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence."). A witness cannot testify to a
matter unless there is evidence sufficient to support a finding
that she has personal knowledge of the matter. Fed. R. Evid. 602.
We fail to see how Colón-Pérez had sufficient personal knowledge to
testify regarding Rodríguez-Romero's arrest, see id., nor do we
understand how her testimony would have been relevant to impeach
Veguilla, see Fed. R. Evid. 401, 403. We thus affirm.10
10
Whether we view the exclusion of Colón-Pérez's testimony as
an evidentiary ruling, reviewed for abuse of discretion, see, e.g.,
Vega Molina, 407 F.3d at 522, or a constitutional error, reviewed
for harmlessness beyond a reasonable doubt, see, e.g., United
States v. Catalán-Roman,
585 F.3d 453, 466 (1st Cir. 2009), we find
no error.
-27-
2. The alleged hearsay statement
When asked why he arrested Rodríguez-Romero on October
24, 2008, Officer Veguilla testified that Officer Pérez had
witnessed Rodríguez-Romero conducting a drug sale and had
"indicated to me that we were to intervene." Pérez did not testify
at trial and thus could not be cross-examined. Rodríguez-Romero's
second argument is that Veguilla's testimony was inadmissible
hearsay and that the admission of that testimony violated
Rodríguez-Romero's rights under the Confrontation Clause.
Rodríguez-Romero admits that plain error review applies to this
claim, because he did not object to the testimony at trial, either
on hearsay or Confrontation Clause grounds. Rodriguez, 525 F.3d at
95;
Luciano, 414 F.3d at 178.
There was no error, because Veguilla's testimony was not
hearsay. The government offered Pérez's out-of-court statement to
explain why Veguilla had arrested Rodríguez-Romero, not as proof of
the drug sale that Pérez allegedly witnessed. Out-of-court
statements providing directions from one individual to another do
not constitute hearsay. United States v. Bailey, 270 F.3d 83, 87
(1st Cir. 2001). And we need not address Rodríguez-Romero's
Confrontation Clause argument. First, the argument is completely
undeveloped in Rodríguez-Romero's brief, and he has thus abandoned
it. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
Second, even if we were to address the argument, and assuming that
-28-
Pérez's statement qualifies as "testimonial," the Confrontation
Clause "does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted."
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing
Tennessee v. Street,
471 U.S. 409, 414 (1985)).
Finding no merit to Rodríguez-Romero's claims, we affirm.
D. López-Capó
López-Capó, who was alleged to be one of the owners of
the crack distributed at Carioca, was found guilty of Counts One
and Three (the conspiracy count and the substantive count of
possessing crack with the intent to distribute it). In addition to
the claim addressed above, López-Capó challenges the sufficiency of
the evidence against him and argues that the district court erred
by: (1) admitting hearsay statements of his co-
conspirators; (2) admitting evidence of his relation to a known
drug dealer; (3) admitting evidence of a riot that occurred in
Carioca; (4) failing to give the jury a multiple conspiracy
instruction; (5) imposing a two-point enhancement for obstruction
of justice; (6) imposing a two-point enhancement under
U.S.S.G. § 2D1.2(a)(1); and (7) sentencing him to 360 months'
imprisonment, which he claims was not a reasonable sentence. We
affirm on all counts.11
11
Because we find that the district court committed no error
in its handling of López-Capó's case, we need not reach López-
Capó's argument that the district court's individual errors
-29-
1. The sufficiency of the evidence
López-Capó first argues that the government failed to
prove beyond a reasonable doubt that he participated in the drug
conspiracy. We review de novo the district court's denial of
López-Capó's Rule 29 motion, examining the evidence in the light
most favorable to the verdict. Pérez-Meléndez, 599 F.3d at 40. A
defendant challenging his conviction for insufficiency of the
evidence faces an "uphill battle." United States v. Hernández,
218
F.3d 58, 64 (1st Cir. 2000). We will affirm if a reasonable jury
could have found the defendant guilty of every element of the
charged crime beyond a reasonable doubt.
Pérez-Meléndez, 599 F.3d
at 40.
To prove conspiracy, the government must show that: (1) a
conspiracy existed; (2) the defendant knew of the conspiracy; and
(3) the defendant voluntarily participated in the conspiracy.
United States v. Bristol-Martir, 570 F.3d 29, 39 (1st Cir. 2009).
To prove that the defendant "belonged to and participated in the
drug conspiracy, the government must show two kinds of intent:
'intent to agree and intent to commit the substantive offense.'"
Id. (quoting Hernández, 218 F.3d at 65). The government can meet
its burden with direct or circumstantial evidence. United States
v. Sepulveda,
15 F.3d 1161, 1173 (1st Cir. 1993). López-Capó makes
cumulatively prejudiced him. See United States v. Sepulveda,
15
F.3d 1161, 1195-96 (1st Cir. 1993).
-30-
a general allegation, supported by little argumentation and almost
no case law, that the government failed to prove that he knew of an
agreement to distribute drugs in Carioca.
We have recounted above just a portion of the evidence
that a conspiracy to distribute drugs existed at Carioca from 2006
to 2009. The first element of the conspiracy test was undoubtedly
met. The evidence was also sufficient for the jury to conclude
that López-Capó knew of that conspiracy and voluntarily
participated in it. First, co-conspirator Heriberto García-Román
testified that López-Capó supplied the drug point with crack and
that he had seen López-Capó deliver crack to another drug point
employee. Second, co-conspirator Leonardo Martínez de León
identified López-Capó as a runner of cocaine, crack, and heroin at
the drug point and said that he had personally dealt drugs with
López-Capó. Martínez de León also testified to having seen López-
Capó at the drug point several times, delivering drugs and
collecting money and tallies. Third, co-conspirator Yamil
Irizarry-Lucas identified López-Capó as the supplier of crack for
the drug point and testified that, on two occasions, he had picked
up hundreds of vials of crack from López-Capó for sale at Carioca.
It is not for us to weigh this evidence or to make
credibility determinations. Hernández, 218 F.3d at 64. A
reasonable jury could have found López-Capó guilty of every element
-31-
of the conspiracy count beyond a reasonable doubt. Pérez-Meléndez,
599 F.3d at 40.
2. The alleged hearsay statements
López-Capó's next claim is that various statements made
by his co-conspirators and admitted at trial were inadmissible
hearsay. Because López-Capó preserved his challenge to the
district court's admission of these statements, we review for abuse
of discretion. Vázquez-Botet, 532 F.3d at 65. Finding none, we
affirm.
López-Capó argues that the district court erred by
admitting four statements, one made by García-Román and three made
by Martínez de León. García-Román testified that Suki and Cesar,
the alleged owners of the drug point, had told him that López-Capó
brought drugs to Carioca from the "metropolitan area." Martínez de
León testified that: (1) Edwin Casiano-Roque, another co-
conspirator, had instructed him to collect the tallies for López-
Capó; (2) Casiano-Roque had told him that López-Capó lived in the
metropolitan area; and (3) Suki had said that López-Capó cooked
better crack than Cesar.12
12
López-Capó also objects to Irizarry-Lucas's testimony that
López-Capó supplied crack to the drug point, which Irizarry-Lucas
said he knew because he had personally picked up crack from López-
Capó on two occasions for delivery to Carioca. We need not address
these statements, as Irizarry-Lucas made them while he was
testifying at trial, and they therefore do not qualify as hearsay.
See Fed. R. Evid. 801(c)(1).
-32-
Statements made by a defendant's co-conspirators "during
and in furtherance of the conspiracy" do not qualify as hearsay
under Federal Rule of Evidence 801(d)(2)(E). A district court
faced with a challenge to the admission of a co-conspirator's
statement must provisionally admit the statement and then wait
until the end of the trial to consider whether, in light of all the
evidence, the following four conditions are satisfied by a
preponderance of the evidence: (1) a conspiracy existed; (2) the
defendant was a member of the conspiracy; (3) the declarant was
also a member of the conspiracy; and (4) the declarant's statement
was made in furtherance of the conspiracy. Vázquez-Botet, 532 F.3d
at 65; United States v. Petrozziello,
548 F.2d 20, 23 (1st Cir.
1977).
Addressing the first two elements of the test, we have
outlined the evidence that a conspiracy to distribute drugs
operated at Carioca and that López-Capó was a member of that
conspiracy. We thus need only address whether the declarants were
also members of the conspiracy and whether their statements were
made in furtherance of the conspiracy. The declarants' statements
alone cannot satisfy the preponderance of the evidence standard;
there must be some independent corroboration to allow admission.
United States v. Portela, 167 F.3d 687, 703 (1st Cir. 1999).
Evidence other than the out-of-court statements
themselves established by a preponderance of the evidence that all
-33-
of the declarants at issue – Suki, Cesar, and Casiano-Roque – were
members of the conspiracy. Multiple witnesses identified Suki and
Cesar as "co-owners" of the drug point and testified to their
activity at the drug point. As for Casiano-Roque, Martínez de León
testified that Casiano-Roque had paid him $125.00 per week as a
runner, and Officer Veguilla testified to having arrested Casiano-
Roque with Rodríguez-Romero during a drug sale.
The evidence was also sufficient for the district court
to find that all of the relevant statements were made in
furtherance of the conspiracy. When Suki and Cesar told García-
Román that López-Capó brought drugs to Carioca, those were
statements identifying other members of the conspiracy, made in
furtherance of the conspiracy. See United States v. Pelletier, 845
F.2d 1126, 1128-29 (1st Cir. 1988). Casiano-Roque's statement
instructing Martínez de León to collect the tallies from the
sellers was a statement related to the operation of the conspiracy,
made in furtherance of the conspiracy. See United States v.
Rodríguez-Vélez,
597 F.3d 32, 40-41 (1st Cir. 2010). Since
Martínez de León knew that the crack for the drug point was
supplied from the metropolitan area, Casiano-Roque's statement that
López-Capó lived in the metropolitan area was a statement related
to the inventory of the drug point, made in furtherance of the
conspiracy.
Id. Finally, Suki's statement to Martínez de León
that López-Capó cooked better crack than Cesar was a statement
-34-
identifying other members of the conspiracy, again made in
furtherance of the conspiracy. Pelletier, 845 F.2d at 1128-29.
The district court did not abuse its discretion by
admitting the out-of-court statements of López-Capó's co-
conspirators.
3. The other evidentiary rulings
López-Capó also argues that he was unfairly prejudiced
when the district court: (1) allowed the government to question him
about his relationship with his cousin, a known drug dealer, when
López-Capó took the stand; and (2) admitted evidence of a riot at
Carioca at which López-Capó was not present. Again, we review
evidentiary rulings for abuse of discretion. See, e.g., Vega
Molina, 407 F.3d at 522.
Federal Rule of Evidence 403 allows a district court to
exclude relevant evidence when its probative value is substantially
outweighed by its prejudicial effect. "Because Rule 403 judgments
are typically battlefield determinations, and great deference is
owed to the trial court's superior coign of vantage, only rarely –
and in extraordinarily compelling circumstances – will we, from the
vista of a cold appellate record, reverse a district court's
on-the-spot judgment concerning the relative weighing of probative
value and unfair effect." United States v. Bunchan, 580 F.3d 66,
71 (1st Cir. 2009) (internal citation and quotation marks omitted).
This is not such an instance.
-35-
The district court allowed the government to ask López-
Capó two questions regarding his familial relationship with
Alexander Capo Trujillo during its cross-examination of López-Capó.
First, the government asked whether López-Capó knew Trujillo;
López-Capó responded that he did. Second, the government asked
what López-Capó's relationship with Trujillo was; López-Capó
responded that Trujillo was his cousin. On appeal, López-Capó
argues that these questions were irrelevant and unfairly
prejudicial because Trujillo was a "drug kingpin" and "a well known
federal fugitive whose names [sic] was in the Puerto Rico press
with great frequency." Thus, López-Capó argues, the questions made
"more credible the possibility that [López-Capó] was a member of a
drug conspiracy." The district court found the evidence admissible
after the government explained that it had reason to believe that
López-Capó had "inherited all the contacts of Alex Trujillo once
Alex Trujillo got arrested by the Federal government." The record
establishes that the court considered both the relevance and the
prejudicial effect of the evidence, and we find no abuse of
discretion in the court's decision to admit it. Furthermore, while
this is not the kind of extraordinarily compelling circumstance in
which we might reverse a district court's Rule 403 judgment, even
if it were, any error would likely be harmless, given the ample
evidence against López-Capó. See United States v. Piper, 298 F.3d
-36-
47, 56 (1st Cir. 2002) (an error is harmless if it is "highly
probable that the error did not influence the verdict").
Nor did the district court abuse its discretion by
allowing Police Officer Pedro Flores-Sánchez to testify about a
riot that occurred at Carioca in September 2006. The government
argued that the riot evidence was relevant to show the
dangerousness of Carioca, in support of Count Six of the indictment
(conspiring to use firearms to carry out drug crimes), and we
agree. Flores-Sánchez did not testify that López-Capó was present
at the riot, or that he was in any way associated with the riot.
We thus fail to see how López-Capó could have been prejudiced by
the testimony. See Fed. R. Evid. 403.
4. The multiple conspiracy instruction
Next, López-Capó argues that the district court erred by
refusing to give the jury a multiple conspiracy instruction, which
would have allowed the jury to find that López-Capó participated in
a different conspiracy than Díaz, Rodríguez, and Rodríguez-Romero.
We review the district court's decision not to provide the jury
instruction for abuse of discretion. United States v. De La Cruz,
514 F.3d 121, 139 (1st Cir. 2008).
A district court should give a multiple conspiracy
instruction when a reasonable jury could find more than one illicit
agreement, or an illicit agreement other than the one charged,
based upon the evidence put forward at trial. United States v.
-37-
Balthazard, 360 F.3d 309, 315-16 (1st Cir. 2004). We will reverse
a district court's decision not to provide a multiple conspiracy
instruction only if the defendant can show that he suffered
substantial prejudice. De La
Cruz, 514 F.3d at 139. "In the
context of alleged multiple conspiracies, the defendant's main
concern is that jurors will be misled into attributing guilt to a
particular defendant based on evidence presented against others who
were involved in a different and separate conspiratorial scheme."
United States v. Brandon,
17 F.3d 409, 450 (1st Cir. 1994).
It was only after the district court finished instructing
the jury that Díaz requested a multiple conspiracy instruction, and
López-Capó joined in that request. Although López-Capó did submit
a written request for a jury instruction, asking the court to
instruct the jury regarding the weight they should give his
criminal record, that motion contained no mention of a multiple
conspiracy instruction. López-Capó's motion belies his claim that
the court gave him no opportunity to request the multiple
conspiracy instruction, which is his excuse for failing to comply
with Federal Rule of Criminal Procedure 30.
Because we find that López-Capó's claim fails on its
merits, however, we need not decide whether López-Capó forfeited
that claim as a result of his failure to comply with Rule 30. See,
e.g., United States v. Upton, 559 F.3d 3, 9 (1st Cir. 2009) ("The
right to a jury instruction can be waived by not requesting the
-38-
instruction, or not objecting at the proper time."). López-Capó
has pointed to no evidence in the record indicating that a
reasonable jury could have found that he participated in an illicit
agreement other than the one charged. Rather, the evidence
established that López-Capó participated in the very same
conspiracy to distribute drugs at Carioca as his co-defendants.
López-Capó seems to argue that a multiple conspiracy
instruction was necessary because the evidence failed to establish
that he participated in the Carioca drug point in 2009.13 Even
assuming that is true, we do not see why it would necessitate a
multiple conspiracy instruction. A conspiracy with "a continuity
of purpose and a continued performance of acts . . . is presumed to
exist until there has been an affirmative showing that it has
terminated." United States v. Elwell, 984 F.2d 1289, 1293 (1st
Cir. 1993) (citation and internal quotation marks omitted). The
trial testimony established that this conspiracy operated
continuously between 2006 and 2009 and that López-Capó was active
in the drug point at least in 2007 and 2008. López-Capó has put
13
López-Capó also claims that the evidence was insufficient
to show that he participated in the drug point in 2006. But
García-Román, who was active in the drug point between September
2006 and April 2007, testified that he saw López-Capó at the drug
point on two or three occasions "between the month of November
[2006] and the month of February [2007]." Furthermore, even if
López-Capó did not join the conspiracy until after 2006, we fail to
see why that would require a multiple conspiracy instruction,
though it would be relevant for sentencing purposes. See, e.g.,
United States v. Rodríguez-González, 433 F.3d 165, 168-69 (1st Cir.
2005).
-39-
forward no evidence that he acted "affirmatively either to defeat
or disavow the purposes of the conspiracy" in 2009. United States
v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987). Nor does he
provide any support for his conclusory claim that the lack of a
multiple conspiracy instruction "made it difficult for the jury to
believe [his] testimony and arguments that he was not involved in
the conspiracy." There was no abuse of discretion.
5. The alleged sentencing errors
Finally, López-Capó argues that the district court
committed four errors at sentencing. We review the district
court's factual findings made at sentencing for clear error.
United States v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008). We
review the reasonableness of the defendant's resulting sentence for
abuse of discretion. Gall v. United States,
552 U.S. 38, 41
(2007); United States v. Bunchan,
626 F.3d 29, 35 (1st Cir. 2010).
At sentencing, the district court found that López-Capó
was responsible for at least 1.5 kilograms of crack, which resulted
in a base offense level of 36. See U.S.S.G. § 2D1.1(c) (amended
2011).14 The court then added two enhancements: one for obstruction
of justice, see U.S.S.G. § 3C1.1, and one for drug activity near a
protected area, see U.S.S.G. § 2D1.2(a)(1), which yielded an
adjusted offense level of 40. Using a CHC of III, the court
14
Under the new guidelines, as amended by the Fair Sentencing
Act of 2010, López-Capó's base offense level would be 34. See
U.S.S.G. § 2D1.1(c).
-40-
determined that López-Capó's sentencing guideline range was 360
months to life. The court imposed a sentence at the bottom of that
range: 360 months (thirty years) of imprisonment, followed by ten
years of supervised release.
First, López-Capó argues that the district court
committed clear error by applying the two-point enhancement for
obstruction of justice. The sentencing guidelines allow the court
to increase a defendant's offense level by two points if he has
willfully obstructed justice, U.S.S.G. § 3C1.1, which includes
perjury, United States v. Dunnigan, 507 U.S. 87, 92-94 (1993). A
defendant commits perjury when he intentionally gives false
testimony under oath on a matter material to the proceedings.
Shinderman, 515 F.3d at 19. To impose an enhancement for perjury,
the "sentencing court must make an independent finding that the
elements of perjury have been satisfied."
Id.
The district court here applied the enhancement after
concluding that López-Capó's testimony had been a complete
fabrication. The court's findings sufficed to establish that the
elements of perjury were met.
Id. López-Capó's testimony occurred
under oath, in court, and he addressed various matters material to
the proceedings.
Id. The court found that López-Capó had
intentionally fabricated his testimony in an attempt to convince
the jury that he had been "a student, living off little amounts,
just making ends meet," who knew none of the cooperating witnesses
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and only traveled to Carioca to see his mother. López-Capó had
"lied through his teeth," the court found, by portraying "a world
different from Carioca, the world in which he participated, and the
world . . . he was supplying narcotics to." When López-Capó's
attorney asked, at sentencing, for the "specific instances" in
which López-Capó had lied, the court responded, "[h]is whole
testimony [was] a big lie." Having reviewed the record, we cannot
say we disagree. Where a district court finds that a defendant has
fabricated his entire testimony, the court need not delineate every
specific instance in which the defendant lied. But here, the court
did specifically mention López-Capó's visual expressions and
demeanor on the stand, as well as his financial records, which the
court found were "totally at odds with the testimony that he was
portraying." We give those credibility assessments "reasonable
latitude." Shinderman, 515 F.3d at 19. There was no clear error.
Second, López-Capó argues that the district court erred
by enhancing his offense level for committing a drug offense near
a protected area, pursuant to U.S.S.G. § 2D1.2(a)(1). López-Capó
bases this challenge on the government's alleged failure to
establish the 1,000-foot requirement or the existence of a
protected area. As discussed above, we reject that argument. The
evidence was sufficient for the jury, and the district court, to
conclude that the relevant activity occurred within 1,000 feet of
a protected area. As the court stated at sentencing, it was
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"evident from the evidence" that "the drug point operated on top
almost of the children's playground" and that the drug offenses
occurred "in the Public Housing Project." Again, there was no
clear error.
Third, López-Capó claims that his sentence was
unreasonable because the district court included two "recency"
criminal history points when calculating his CHC, as was then
required by U.S.S.G. § 4A1.1(e), which was subsequently amended.15
The government's brief entirely fails to address this argument. In
López-Capó's pre-sentence investigation report (PSI), the U.S.
Probation Office assigned him three criminal history points as a
result of his prior criminal activity, to which the Probation
Office added two points because López-Capó had committed the
instant offense fewer than two years after being released from
prison. See U.S.S.G. § 4A1.1(e) (amended 2010). Five criminal
history points resulted in a CHC of III, which is what the court
used to calculate López-Capó's sentence. López-Capó argues that he
should only have been assigned two criminal history points, which
would have resulted in a CHC of II.
15
At the time of López-Capó's sentencing, section 4A1.1(e)
required a district court to assign a defendant two extra criminal
history points if the defendant committed "any part of the instant
offense (i.e., any relevant conduct) less than two years following
release from confinement on a sentence counted under § 4A1.1(a) or
(b)." See U.S.S.G. § 4A1.1(e) (amended 2010).
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López-Capó was sentenced on April 30, 2010. The U.S.
Sentencing Commission had voted earlier that month, on April 7,
2010, to eliminate the "recency" points required by section
4A1.1(e), but the proposed amendment ("Amendment 742") did not
become effective until November 1, 2010. See United States v.
Adams, 640 F.3d 41, 42 (1st Cir. 2011). Amendment 742 is not
retroactive. See U.S.S.G. § 1B1.10(c). And while "we have
previously remanded cases for reconsideration of a sentence in
light of a later amendment to the guidelines . . . even where that
amendment had not been made retroactive," we have chosen not to do
so where "the district court was made aware at sentencing of the
proposed guideline amendment and . . . was unmoved by the prospect
of the elimination of the 'recency' points."
Adams, 640 F.3d at
43. López-Capó filed objections to the PSI, which included
notification to the court that the U.S. Sentencing Commission had
proposed to amend section 4A1.1(e), and he reiterated at sentencing
his objection to the CHC calculation. López-Capó has not
distinguished Adams or provided us with any reason to believe that
a different result would follow on remand. See
id. There was no
abuse of discretion.
Fourth, López-Capó argues that his sentence was
unreasonable because the district court did not properly consider
the 18 U.S.C. § 3553(a) factors to determine whether a downward
departure from the sentencing guidelines was warranted. This
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argument seems to have two prongs: (1) the district court failed to
adequately explain why it was denying López-Capó's request for a
downward departure; and (2) López-Capó's co-defendants received
much shorter sentences than he did. Both claims fail.
Addressing the first contention, particularly where the
district court sentences a defendant within the guideline range, as
was the case here, the court's explanation of the sentence need not
"be precise to the point of pedantry," United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), and "brevity is
not to be confused with inattention,"
id. at 42. López-Capó
provides no actual support for his claim that "it is fair to say
that there is no evidence that the District Court examined the
factors in 18 U.S.C. § 3553(a)(1) through (5)." Our review of the
sentencing hearing transcript reveals that the district court
considered the PSI, as well as the arguments of both López-Capó and
the government. The court carefully explained its calculation of
López-Capó's offense level, choosing "for the sake of being fair"
to attribute 1.5 kilograms of crack to López-Capó, though the court
had "no doubt" that López-Capó was "responsible for at least 4.5
kilograms of crack." The court then rejected the government's
request for a sentence at the "upper end" of the guideline range
(meaning life imprisonment), found that "[t]he guidelines, although
advisory, adequately reflect the nature of the offence and the
characteristics," and noted that the defendant "has not given the
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Court any . . . explanation other than the fact that we have the
wrong person basically, that he didn't do it." Thus, the court
found that there was "nothing on th[e] record" that would lead it
"to give [López-Capó] the benefit of a different calculation under
3553(a)." We find the explanation adequate. See Rita v. United
States, 551 U.S. 338, 356 (2007) ("[W]hen a judge decides simply to
apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation."); Turbides-Leonardo, 468
F.3d at 40-42.
We also reject López-Capó's claim that his sentence was
unreasonable because he received a longer sentence than any of his
co-defendants. First, López-Capó provides no argumentation or case
law in support of the assertion. See Zannino, 895 F.2d at 17
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
Second, López-Capó raised this issue at sentencing, arguing that
Rodríguez had only received a sentence of 188 months. The district
court responded that Rodríguez had started with the same base
offense level as López-Capó but had a lower CHC and fewer
enhancements. "[W]here the defendant's own sentence has been
justified and the basis for a co-defendant's lesser sentence is set
forth or is apparent, no more precise calibration of the difference
between them is customarily feasible, let alone required." United
States v. Mueffelman, 470 F.3d 33, 41 (1st Cir. 2006).
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III. Conclusion
For the foregoing reasons, we affirm the convictions of
Díaz, Rodríguez-Romero, and López-Capó. As for Rodríguez, we
affirm his convictions on Counts One, Three, and Five, vacate his
convictions on Counts Two and Four, and remand for a new sentencing
hearing in light of this opinion.
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