Filed: Apr. 11, 2013
Latest Update: Mar. 28, 2017
Summary: , Elfrick Méndez Morales for José L. Cabrera-Cosme.conspiracy.or equal to the offense level under § 2A1.1.8, In addition, the trial evidence demonstrated that González, planned and helped to execute the murder of Agustín, during which, González distracted the victim while Rodríguez shot him.
United States Court of Appeals
For the First Circuit
Nos. 11-1013
11-1038
11-1322
11-1478
UNITED STATES,
Appellee,
v.
JERRY OMAR RODRÍGUEZ-REYES, a/k/a Quiri;
MELVIN MÉNDEZ-ROLDÁN, a/k/a Mel;
HÉCTOR MANUEL GONZÁLEZ-SUÁREZ, a/k/a Palomo; and
JOSÉ L. CABRERA-COSME, a/k/a Luis Villalobos,
a/k/a Luis Canales,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Alan D. Campbell for Jerry Omar Rodríguez-Reyes.
Johnny Rivera González for Melvin Méndez-Roldán.
Lydia Lizarribar-Masini for Héctor Manuel González-Suárez.
Elfrick Méndez Morales for José L. Cabrera-Cosme.
Julia M. Meconiates, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodriguez-Velez, United States Attorney, were on brief, for
the United States.
April 11, 2013
LYNCH, Chief Judge. In this consolidated appeal, four
defendants challenge their jury convictions and sentences for drug
and firearm crimes. A federal jury in Puerto Rico convicted each
defendant on one count of conspiracy to possess with intent to
distribute narcotics and one count of conspiracy to use or carry
firearms in furtherance of a drug trafficking crime. The district
court, after considering all of the evidence, including evidence of
seven murders committed in furtherance of the narcotics conspiracy,
sentenced each defendant to life in prison on the first count and
ten years' imprisonment on the second count, to be served
consecutively.
Finding that the evidence was sufficient to support the
guilty verdicts as to each defendant; that the district court did
not err in imposing the life sentences as to defendants Méndez-
Roldán, González-Suárez, and Rodríguez-Reyes; and that the court
did not err in denying severance as to defendant Cabrera-Cosme, we
affirm.
I.
Because this appeal follows the defendants' convictions,
we recite the trial evidence in the light most favorable to the
jury's verdicts. See United States v. Poulin, 631 F.3d 17, 18 (1st
Cir. 2011).
The cocaine and marijuana distribution conspiracy and
related use of firearms in this case took place in and around two
-3-
public housing projects in San Juan, Puerto Rico -- Nemesio R.
Canales and Lloréns Torres -- during the years 2003 through 2006.
In the Canales project, there was a straightaway spanning some of
the buildings, which was known as La Recta; this was where most of
the drugs at issue were sold. The government offered four co-
conspirator witnesses, surveillance videos, and seized evidence
such as drugs (including crack vials and bags of marijuana),
firearms, and bullets to prove the extent of the drug conspiracy at
La Recta.
"Mel" -- defendant Melvin Méndez-Roldán ("Méndez") --
personally controlled all crack cocaine sales at La Recta during
2003. He did not sell the crack himself, but instead employed a
runner, Delia Sánchez-Sánchez ("Sánchez"), who testified for the
prosecution at trial. Sánchez said that she, with the help of
others, sold one-eighth of a kilogram of crack per week on Méndez's
behalf. Sánchez received packages from Méndez that each contained
25 vials of crack, and she distributed the packages among various
sellers, who made the sales directly to the purchasers. Méndez's
profit from each package was $4000.
In addition to these crack sales, Méndez charged a
monthly rent to other drug "owners" who wanted to sell marijuana at
La Recta. Until his arrest in 2003, Méndez did not allow anyone
else to sell crack there.
-4-
Méndez himself regularly patrolled La Recta with
firearms, and he frequently used violence, including lethal
violence, to maintain control of the drug point. He shot and beat
up various drug addicts at La Recta when they lingered there
(because he feared they would attract the police), and he shot at
a group of rival crack dealers who had opened a new drug point
nearby. In January 2003, Méndez and three others ambushed and
killed Alexis Rivera Feliciano ("Rivera"), whom they believed to be
a federal informant. When the police arrived at the scene where
Rivera's body lay, Méndez reappeared and began laughing.
There was more. Méndez told Sánchez that he suspected
that the wife of Luis Ortiz Santos ("Ortiz"), a/k/a "Cleca," an
addict at the Canales project, was also an informant. In May 2003,
Sánchez saw Méndez follow Ortiz behind a building; she heard a
gunshot, then saw Méndez and two others put what appeared to be a
body wrapped in a shower curtain into the trunk of a car. The
police found Ortiz's body three days later, covered in a shower
curtain. Méndez bragged about his role in both of these murders to
one of the marijuana distributors at La Recta, Rey Manuel
Rodríguez-Esperón, a/k/a "Reyito."1
Méndez was arrested in 2003, but he continued to exert
control over the crack sales at La Recta from his prison cell. For
1
Rodríguez-Esperón was indicted along with the four
defendants in this appeal, but his trial was severed and he later
testified at trial in this case against his former codefendants.
-5-
example, during the summer of 2005, Méndez ordered Reyito to shut
down a crack point Reyito had opened, through a message delivered
by Méndez's brother-in-law, defendant José Cabrera-Cosme
("Cabrera"), a/k/a "Luis Villalobos." After Méndez's arrest,
Cabrera took over direct control of crack sales at La Recta.
Sánchez testified that Cabrera supplied her with crack just as
Méndez had, and that Cabrera continued to collect rents from the
marijuana owners on Méndez's behalf. Cabrera also sold his own
crack at La Recta, sometimes using the same sellers who sold
Méndez's crack.
Defendant Héctor González-Suárez ("González"), a/k/a
"Palomo," was allowed by Cabrera to begin selling crack at La Recta
in February 2004. González was a friend of Méndez's. Although
González was from Lloréns Torres, he came to sell at La Recta
because he was in a "war" with another drug point at Lloréns
Torres. González paid a monthly rent to Méndez and used the same
prices, runners, and sellers as Méndez did. He carried a gun while
he sold drugs at La Recta.
Defendant Jerry Rodríguez-Reyes ("Rodríguez"), a/k/a
"Quiri," began selling marijuana at La Recta in 2004. Like
González, Rodríguez was from Lloréns Torres but stopped selling
there because of the war. At La Recta, he used Sánchez as a seller
and occasionally paid her husband to package his marijuana.
-6-
Rodríguez sold approximately one pound of marijuana every two to
three days, and he also carried a gun.
After Méndez's arrest, the other three defendants
continued using violence to protect, and try to expand, the drug
business. For instance, González and Cabrera formed a plan to try
to take over the drug point at Calle 4 in Lloréns Torres, where
González's rivals were based. On the night of July 12, 2004,
González, Rodríguez, and three others drove a stolen SUV to Calle
4 and opened fire on the dealers there. Three people died in the
shooting. At the scene, the police recovered an AK-47 and shell
casings from other long guns, such as M-16s or AR-15s. González
later boasted about his participation in the shootout.
In 2005, Reyito told Cabrera and González that someone
known as Indio had started selling crack nearby without permission,
and Cabrera and González agreed that they should kill Indio.
González recruited Reyito and two others to help him locate Indio,
telling them not to shoot Indio until González gave the signal.
The group could not find Indio at that time, but three days later
Reyito saw him near La Recta, and González shot him. Sánchez
testified that she witnessed the murder from the balcony of her
apartment, and González later told Reyito that he had killed Indio.
Also in 2005, a marijuana owner known as Agustín began
acting erratically, including brandishing guns around La Recta;
later that year, he killed another marijuana dealer. Cabrera,
-7-
González, Rodríguez, Reyito, and two others discussed Agustín's
behavior and decided to kill him. González provided Rodríguez with
a pistol, but since Rodríguez already had his own gun, he gave the
pistol to Reyito. Cabrera also gave his pistol to one of the
members of the group. González, Rodríguez, and Reyito then located
Agustín near one of the buildings in the housing project, and while
González greeted Agustín with an embrace, Rodríguez shot Agustín in
the back of the head. When Agustín fell to the ground, González
and Rodríguez continued to shoot him. Agustín died of the gunshot
wounds.
González was indicted on September 15, 2006, on federal
drug and firearm charges. Méndez, Cabrera, and Rodríguez, along
with González and 22 others, were indicted five days later on
federal drug and firearm conspiracies.
II.
The second superseding indictment, under which all four
defendants were ultimately tried, charged each defendant with one
count of conspiracy to distribute, and possess with intent to
distribute, both marijuana and over 50 grams of crack cocaine
within 1000 feet of a public housing facility and public school, in
violation of 21 U.S.C. §§ 841 and 860; and one count of conspiracy
to possess, use, carry, brandish, and discharge firearms in
furtherance of, or during and in relation to, a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (o).
-8-
Before trial began, Cabrera moved to sever his trial from
that of his codefendants, claiming that the evidence regarding
several of the murders was "spillover" evidence as to him and that
he would be prejudiced by its introduction. The district court
noted this motion; while it did not rule specifically at that time,
the court proceeded to try all four defendants together,
effectively denying the motion. On June 11, 2010, the jury found
each defendant guilty on both counts.
Both after the close of the government's evidence and
after the verdict, each defendant moved for a judgment of
acquittal, on the ground that the evidence was insufficient to
support conviction. Specifically, they argued that the evidence
failed to prove that there had been one overarching conspiracy as
charged, but rather showed that there had been multiple
conspiracies. The jury had, at defendants' request, been
instructed on multiple conspiracies. The district court denied
each of these motions.
The district court held a separate sentencing hearing for
each defendant. The relevant details of these hearings are
recounted below. In all of the hearings, the court applied the
"murder cross-reference" of U.S.S.G. § 2D1.1(d)(1) to reach an
advisory Sentencing Guidelines calculation of life imprisonment for
Count 1. This cross-reference provides that, for a drug
trafficking crime, "[i]f a victim was killed under circumstances
-9-
that would constitute murder under 18 U.S.C. § 1111 had such
killing taken place within the territorial or maritime jurisdiction
of the United States," then the court should "apply § 2A1.1 (First
Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate,
if the resulting offense level is greater than that determined
under" the drug trafficking guideline. U.S.S.G. § 2D1.1(d)(1).
For each defendant, the district court applied § 2A1.1,
which resulted in a Guidelines sentence of life imprisonment.
Finding this an appropriate measure of punishment for each
defendant under 18 U.S.C. § 3553, the court sentenced each of them
to life imprisonment on Count 1.2
III.
A. Sufficiency of the Evidence
All four of the defendants challenge the sufficiency of
the evidence to support their convictions on Counts 1 and 2. See
Fed. R. Crim. P. 29. We review each challenge de novo, asking
"whether any rational factfinder could have found that the evidence
presented at trial, together with all reasonable inferences, viewed
in the light most favorable to the government, established each
element of the particular offense beyond a reasonable doubt."
United States v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005)
2
The district court also sentenced each defendant to a ten-
year term of imprisonment on Count 2, to be served consecutively.
See 18 U.S.C. § 924(c)(1)(A)(iii), (c)(1)(D)(ii); U.S.S.G.
§ 3D1.1(b)(1). None of the defendants challenge their Count 2
sentences on appeal.
-10-
(quoting United States v. Richard, 234 F.3d 763, 767 (1st Cir.
2000)) (internal quotation marks omitted). "The court's only
inquiry is whether the guilty verdict 'is supported by a plausible
rendition of the record.'" Poulin, 631 F.3d at 22 (quoting United
States v. Ortiz,
966 F.2d 707, 711 (1st Cir. 1992)). We assume the
credibility of all testimony favorable to the government. See
United States v. Fenton,
367 F.3d 14, 18 (1st Cir. 2004).
Méndez, Rodríguez, and González present a common argument
on the sufficiency of the evidence; Cabrera filed a separate brief
with a similar point. Namely, they argue -- as they did in their
motions for acquittal -- that the evidence did not prove that there
was one single conspiracy, but rather that each defendant acted in
the sole interest of his own drug sales. The argument is that
there were many smaller conspiracies to distribute drugs, but not
the cooperation and interdependence of an overarching conspiracy.
They argue that there were separate brands of crack cocaine and
marijuana, with different color-coded vials and baggies to maintain
market differentiation.3 This purported variance between the
conspiracy charged in the indictment and the evidence presented at
trial requires, they argue, acquittals for all defendants on all
counts. We will reverse a conviction based on a variance in proof
3
For instance, Méndez's vials of crack had blue caps,
González's had green caps, and Cabrera's were smaller and had gold
caps. Rodríguez's baggies of marijuana were purple, whereas
Reyito's were green and other dealers used stickers.
-11-
only when there has been "prejudice to the defendant's substantial
rights." United States v. Soto–Beníquez, 356 F.3d 1, 27 (1st Cir.
2004).
In determining whether a single conspiracy existed, we
consider "the totality of the circumstances, paying particular heed
to factors such as the existence of a common goal, evidence of
interdependence among the participants, and the degree to which
their roles overlap." Fenton, 367 F.3d at 19. An agreement to
join a conspiracy "may be express or tacit . . . and may be proved
by direct or circumstantial evidence," United States v. Rivera
Calderón, 578 F.3d 78, 88 (1st Cir. 2009), including evidence of
"acts committed by the defendant that furthered the conspiracy's
purposes," United States v. Brandon,
17 F.3d 409, 428 (1st Cir.
1994) (quoting United States v. Gómez-Pabón,
911 F.2d 847, 853 (1st
Cir. 1990)) (internal quotation mark omitted). Further, "each
coconspirator need not know of or have contact with all other
members [of the conspiracy], nor must they know all of the details
of the conspiracy or participate in every act in furtherance of
it." United States v. Martínez–Medina,
279 F.3d 105, 113 (1st Cir.
2002).
The evidence at trial easily permitted a reasonable jury
to conclude that each of the four defendants was involved in a
single conspiracy to distribute narcotics at La Recta. The
evidence supported a finding that the defendants operated under a
-12-
common scheme, first headed by Méndez and then, under Méndez's
control from prison, by his brother-in-law Cabrera, which divided
authority to sell crack and marijuana among the various "drug
owners." Despite selling different "brands" of crack and
marijuana, the defendants shared common runners and sellers,
coordinated at least some of their drug prices (including raising
prices for the greater good of the overall conspiracy), and joined
together to commit violent acts in order to prevent others from
infringing on their drug business. This evidence was more than
enough for the jury to infer an agreement. The government's
evidence went far beyond showing that the defendants merely
associated with one another. See Rivera Calderón, 578 F.3d at 89-
90 (affirming jury's finding of a single conspiracy where
defendants controlled who could sell at the drug point, set prices,
and jointly defended the drug point from hold-ups).
The fact that the defendants sold crack vials with
different-colored caps would not prevent a reasonable jury from
finding that they worked together to maintain the drug conspiracy
as a whole. See id. at 92. The evidence relating to the violence
and murders vividly demonstrated that the defendants would band
together to protect their group's status and exclusivity at La
Recta. For instance, Cabrera and González both sold crack at La
Recta (Cabrera on behalf of both himself and Méndez), apparently
without any conflict between them, yet when another person, Indio,
-13-
began selling crack nearby, Cabrera and González formed a plan to
kill him, and González eventually shot him to death. Agustín's
murder likewise followed discussions among Cabrera, González, and
Rodríguez about how to handle Agustín's disruptive behavior, and
the defendants shared firearms among themselves and other
conspirators in preparing to execute the murder.
This evidence, along with the other evidence regarding
the murders of Rivera, Ortiz, and the Lloréns Torres dealers,
likewise supports a reasonable jury's finding that each defendant
conspired to use, carry, or possess firearms in furtherance of a
drug trafficking crime. There was extensive testimony that Méndez,
Gonzáles, and Rodríguez each discharged firearms with the purpose
of protecting La Recta from threats to their business and/or
expanding their drug operations. In the Agustín and Lloréns Torres
murders, Gonzáles and Rodríguez even directly worked together to
carry out the killings. Although the evidence did not show that
Cabrera personally shot a firearm, witnesses testified that he had
been seen carrying a gun at La Recta and that he helped distribute
firearms for use in Agustín's murder.4
Under these circumstances, the jury's verdicts against
all four defendants are "supported by a plausible rendition of the
4
Cabrera argues that, while he was seen armed at the drug
point, the evidence failed to show that he "used" firearms or that
any "use" was during and in relation to drug trafficking. Since a
jury could easily find that he did carry weapons to protect the
drug point and thus further drug sales, the evidence suffices.
-14-
record." Ortiz, 966 F.2d at 711. The convictions must be
affirmed.
B. Sentencing Challenges
Three of the four defendants -- Méndez, Gonzáles, and
Rodríguez -- challenge the district court's imposition of life
sentences on Count 1. As the defendants' claims vary in the
applicable standards of review and in the arguments on which they
rely, we take each defendant's claim in turn.
1. Méndez
Recall that Méndez controlled the drug point at La Recta,
and that he beat, shot, and murdered others in furtherance of the
drug conspiracy.
Méndez's presentence investigation report ("PSR")
attributed to him a drug quantity of 54 kilograms of crack cocaine,
based on Sánchez's testimony about the amount of crack she had sold
as a runner. However, the PSR did not reach its base offense level
recommendation by using this quantity. Instead, it explained that,
"since seven (7) victims were killed in order to keep control of
the drug point and/or in an effort to take over the drug point in
another housing project, a Cross Reference to USSG § 2A1.1 is
authorized pursuant to USSG § 2D1.1(d)(1), establishing[] a base
offense level of forty-three (43)." The PSR then added 4 levels
for Méndez's leadership role and 2 levels for using minors in the
commission of the offense, for an adjusted offense level of 49.
-15-
But because the Guidelines treat an offense level greater than 43
as an offense level of 43, see U.S.S.G. ch. 5, pt. A, app. n.2,
Méndez's final offense level was 43. His Guidelines sentence was
life imprisonment.
Méndez filed written objections to the PSR, in which he
argued, inter alia, that the recommendation of a life sentence was
unreasonable. He noted that he had never been charged with the
murders on which the cross-reference was based, and he argued that
this situation presented a Confrontation Clause problem. He also
asserted that the life sentence guideline allowed the government to
circumvent the requirements of 18 U.S.C. § 3559(c), which addresses
mandatory life sentences for certain repeat violent offenders.
Finally, he argued that a life sentence conflicted with the
purposes of sentencing under 18 U.S.C. § 3553. Méndez did not
object to the PSR's use of the murder cross-reference (instead of
the drug quantity) to establish the base offense level, but rather
argued generally against any Guidelines recommendation of life
imprisonment.5
At the sentencing hearing, Méndez's counsel recounted the
defendant's difficult childhood and asked that the court consider
a term of 30 years. Méndez's counsel did not allude to the murder
5
The district court granted certain of Méndez's factual
objections to the PSR, none of which is relevant to this appeal.
In its ruling on the other objections, the court did not address
Méndez's objection to the Guidelines recommendation.
-16-
cross-reference. And Méndez expressed no remorse in his
allocution. The government, meanwhile, sought life sentences on
both counts, given the extensive testimony about Méndez's violence,
including murder, and the fact that he was responsible for the sale
of at least 18 kilograms of crack cocaine each year during the life
of the conspiracy.
The district court, in calculating the Guidelines range,
applied the first-degree murder cross-reference, stating that
"seven victims were murdered as a manner or means of furthering the
conspiracy." It also applied the two enhancements suggested in the
PSR and concluded that the Guidelines range was life imprisonment.
The court then considered the § 3553(a) sentencing factors. While
recognizing the hardships of Méndez's upbringing, the court
concluded that Méndez had been "one of the major players of the
drug trafficking organization" at La Recta. With regard to the
murders, the court found:
There is also video and testimonial evidence
of Defendant Mendez Roldan's direct
participation in the murder of Alexis Rivera
Feliciano, also known as pata de palo and as
gemelo, on January 7, 2003. Defendant is seen
in the video of the January 7, 2003, shooting
of Rivera Feliciano carrying a shoulder
weapon, and a Government witness testified
that she saw Defendant with a rifle shooting
directly at Rivera Feliciano, and that in her
presence Defendant said that Rivera Feliciano
had been arrested by federal authorities, yet
had served no time.
There is also trial evidence that
Defendant killed Luis A. Ortiz Santos, also
known as Cleca, on May 27, 2003, not because
-17-
Defendant suspected him to be an informant,
like Rivera Feliciano, but in reprisal of
Ortiz Santos' wife being an informant at the
Canales housing project.
Now, this evidence established that
these killings were in furtherance of the drug
conspiracy charge.
Ultimately, the court found that the advisory guideline of life
imprisonment adequately served the § 3553(a) purposes of punishment
and deterrence in Méndez's case, and it imposed a sentence of life
imprisonment on Count 1 and a consecutive sentence of ten years'
imprisonment on Count 2.
On appeal, Méndez makes three types of arguments against
the life imprisonment sentence. First, he argues that the district
court made a procedural error in applying the murder cross-
reference because the court allegedly "acted under the false and
restricted notion that it lacked any discretion to impose a
different sentence [than life imprisonment] because § 2D1.1(d)(1)
necessarily prohibited any sentence other than natural life under
custody." See United States v. Politano, 522 F.3d 69, 72 (1st Cir.
2008) (appellate review of a district court's sentence first
entails asking whether the court made any "procedural errors,"
including "treating the Guidelines as mandatory" (quoting Gall v.
United States,
552 U.S. 38, 51 (2007))). Because Méndez did not
raise this objection before the district court, our review is only
for plain error. See United States v. Colon-Nales,
464 F.3d 21, 26
(1st Cir. 2006). Plain error is a very difficult standard to meet:
-18-
the defendant must show "that the trial court committed an error,
that the error was 'plain,' . . . that the error affected the
substantial rights of the [defendant, and that] . . . the error
'seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings.'" Id. at 25 (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
Méndez's contention would fail under any standard of
review, let alone the exacting standard of plain error. There is
no evidence in the record that the district court believed a life
sentence to be mandatory; to the contrary, the court specifically
recognized the advisory nature of the Guidelines calculation. The
court also explicitly considered potentially mitigating information
under the § 3553(a) factors, though it ultimately rejected those
arguments. And it plainly was correct in rejecting the proposition
that, under § 3553(a), a sentence of life imprisonment is never
permissible.
At oral argument in this appeal, Méndez offered a
variation on his procedural challenge. This time, he asserted that
the district court's error was its failure to make specific
findings that Méndez's actions satisfied the first-degree murder
requirements of 18 U.S.C. § 1111(a), which were necessary to
support the application of § 2A1.1. He had not asked the district
court for such findings. He also argued that the district court
erred in failing to calculate a drug quantity, since without that
-19-
calculation the court could not have determined whether the murder
offense level was "greater than" the drug trafficking offense
level. See U.S.S.G. § 2D1.1(d)(1). These arguments, at best, call
for plain error review, even assuming they were not waived.
We find no error in the district court's application of
§ 2A1.1. Although the court, when it articulated its Guidelines
calculations, did not specifically explain its reasons for applying
the first-degree murder cross-reference, the court made specific
findings as to Méndez's role in two murders shortly thereafter,
while explaining its sentence. These findings make it clear that
the court concluded that Méndez met the premeditation scienter
requirement for first-degree murder, and thus for application of
§ 2A1.1. See 18 U.S.C. § 1111(a) (defining first-degree murder as
including, inter alia, any "willful, deliberate, malicious, and
premeditated killing").
The court first explained the trial evidence showing that
Méndez had formed plans to kill Rivera and Ortiz, and that he had
participated in killing both victims because of the perceived
threat they posed to the drug operation at La Recta. These
findings were consistent with the unchallenged facts recited in
Méndez's PSR. There is no doubt that the district court's
statements reflect a finding that these murders were premeditated,
and the evidence at trial was more than sufficient to support such
a finding by a preponderance of the evidence. The court then
-20-
connected these planned murders to the § 2D1.1(d)(1) cross-
reference by specifying that the killings were in furtherance of
the drug conspiracy.
This was enough to support application of the cross-
reference. Since § 2A1.1 imposes the highest offense level allowed
by the Guidelines, no further calculation was necessary: the base
offense level under § 2D1.1 necessarily would have been less than
or equal to the offense level under § 2A1.1. Méndez thus faced an
offense level of 43 regardless of whether it was grounded in the
cross-reference or in § 2D1.1.6
Méndez's second argument is that the life sentence was
substantively unreasonable. See Politano, 522 F.3d at 72-73 (even
when there is no procedural error, the appellate court may review
a district court's sentence for substantive reasonableness).
Méndez argues that his sentence was unreasonable because the court
failed to properly weigh the § 3553(a) factors and the sentence
failed to fulfill the sentencing purposes of deterrence and
rehabilitation.
6
Méndez also challenges on appeal the imposition of the four-
level increase for leadership, see U.S.S.G. § 3B1.1(a), and the
two-level increase for use of a minor in the offense, see U.S.S.G.
§ 3B1.4. "We review the imposition of [a leadership] enhancement,
and any predicate factual findings, for clear error." United
States v. Appolon, 695 F.3d 44, 70 (1st Cir. 2012). Again, the
offense level could go no higher than 43. Even if the enhancements
had been in error -- a highly doubtful proposition, given the
record -- they could not have affected Méndez's sentence. Thus,
any error would have been harmless. See Martínez-Medina, 279 F.3d
at 124.
-21-
Méndez -- age 30 at sentencing -- did raise these
arguments at least in part in his objections to the PSR, although
he did not renew all of them at the sentencing hearing. Even if we
treat Méndez's objections as preserved, and accordingly evaluate
them under an abuse of discretion standard, see United States v.
Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009) (citing Gall,
552 U.S. at 51), his arguments fail. When it comes to substantive
reasonableness, "a sentencing court's ultimate responsibility is to
articulate a plausible rationale and arrive at a sensible result."
Id. at 30. The district court fulfilled that responsibility here.
The district court considered Méndez's counsel's
arguments about Méndez's history, characteristics, and the
possibility for rehabilitation if he were not given a life
sentence. The court reasonably concluded that the nature and
circumstances of the offense -- particularly the extensive evidence
of Méndez's acts of violence -- meant that the Guidelines sentence
properly reflected the needs for punishment and deterrence. This
choice of emphasis among the statutory factors was well within the
court's discretion. See United States v. Gibbons, 553 F.3d 40, 47
(1st Cir. 2009) ("We will not disturb a well-reasoned decision to
give greater weight to particular sentencing factors over others
. . . .").
Méndez makes a third set of miscellaneous arguments. He
alleges that his sentence infringed his Confrontation Clause
-22-
rights; that it circumvented the requirements of 18 U.S.C.
§ 3559(c) and 21 U.S.C. § 851; and that, because he was not charged
with murder in the indictment, it violated Apprendi v. New Jersey,
530 U.S. 466 (2000). The Apprendi argument rests on the fact that
the indictment did not include murder as a charged offense,
although it did allege the murders as among the overt acts
committed in furtherance of the charged conspiracy. Again, Méndez
raised some of these arguments in his objections to the PSR but did
not renew them at the sentencing hearing. At any rate, however,
these arguments misapprehend the relevant law. We take the
arguments in turn.
First, the jury found that the quantity of crack cocaine
involved in the Count 1 conspiracy was fifty grams or more, which,
at the time of the conviction, triggered a statutory maximum
sentence of life on Count 1. See 21 U.S.C. § 841(b)(1)(A)(iii)
(2010). Méndez's Apprendi argument fails because Apprendi provides
only that a jury must find any facts (other than a prior
conviction) that would increase the penalty for a crime beyond the
otherwise applicable statutory maximum. See 530 U.S. at 490. In
fact, we have previously rejected the specific Apprendi argument
that Méndez makes.7 See United States v. Newton, 326 F.3d 253, 266
7
González and Rodríguez purport to "join" Méndez's Apprendi-
based due process argument. Even if we assume that this statement
is enough to avoid waiving the issue, we reject the argument as to
González and Rodríguez for the same reasons stated in the text as
to Méndez.
-23-
(1st Cir. 2003) ("[Defendant] now requests that we expand Apprendi
to require juries to find beyond a reasonable doubt that the
defendant committed murder before the sentencing court is permitted
to apply the 'cross-reference' provision of section 2D1.1(d)(1).
We decline this invitation to expand Apprendi . . . .").
Second, 18 U.S.C. § 3559(c) and 21 U.S.C. § 851 are
irrelevant to this case. Those provisions address mandatory life
sentences for certain repeat violent offenders and the procedural
requisites for increasing sentences based on prior convictions.
Here, the government did not seek, nor did the district court
purport to impose, a mandatory life sentence based on Méndez's
prior convictions. As noted above, the court repeatedly
acknowledged that the Guidelines range of life imprisonment was
advisory, and it was based on Méndez's culpability for the present
offense. Finally, there was no Confrontation Clause problem with
the sentence. Méndez does not allege that he was denied the
opportunity to confront witnesses against him during his trial, and
the district court's sentence was based on facts established at
that trial.
2. González
To recap, González came to La Recta from Lloréns Torres
in early 2004, distributed cocaine at La Recta as part of Méndez's
operation, participated in a shootout at the Calle 4 drug point,
murdered Indio, and participated in the murder of Agustín.
-24-
As with Méndez, González's PSR attributed to him a drug
quantity of 54 kilograms of crack cocaine, then used the first-
degree murder cross-reference to reach a base offense level of 43.
The PSR then added 4 levels for González's leadership role and 2
levels for using minors in the commission of the offense, for an
adjusted offense level of 49, which was treated as an offense level
of 43. González's Guidelines sentence was life imprisonment.
González filed objections to the PSR, in which he argued,
inter alia, that the leadership enhancement was excessive because
he was not the main leader of the conspiracy, and that, "in the
interest of justice," the murder cross-reference should not be
applied because he had been acquitted of the murders in state court
and the government's witnesses were unreliable. González conceded
that the § 2A1.1 cross-reference was "authorized . . . in the
instant case."
The district court denied these objections in a written
order before the sentencing hearing. It found that González
qualified as a leader under the standard articulated in United
States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995),
regardless of whether he was the "top" leader. The court also
found that González's acquittal in state court was irrelevant
because the evidence at the federal trial had "abundantly
established both that seven murders were committed in order to
further the interests of the drug conspiracy, and that [González]
-25-
participated either in the planning or execution of four of those
murders" -- those of Indio and the three Lloréns Torres dealers --
such that the district court could find by a preponderance of the
evidence that the cross-reference applied.
At his sentencing hearing, González -- then age 37 -- did
not renew his objections. Indeed, at his instruction, his counsel
did not make arguments. González stated in his allocution that he
had had a religious conversion and was now a different man; he
needed to be free in order to help others.
In calculating the Guidelines range, the district court
applied the first-degree murder cross-reference, stating that
"seven victims were murdered as a manner or means of furthering the
conspiracy." It also applied the two enhancements and concluded
that the Guidelines sentence was life imprisonment. The court then
considered the § 3553(a) factors. It recounted González's history
of violent crime and admitted drug use, as well as his leadership
role at La Recta. With regard to his personal participation in the
murders, the court found:
The Defendant also planned and executed the
murders of several persons to further the
interests [o]f the drug conspiracies. He
personally participated in the planning and
execution of the killings of Richard Figueroa
Perdomo, also known as El Indio, Charles West
Isaac, Melvin Reyes Rivera and Oneill Irizarry
Mendoza, as a means of advancing the
conspiracy.
-26-
The court concluded that life imprisonment adequately reflected the
"very serious nature of the offenses" as well as González's history
and characteristics. The court noted that, while González's
religious awakening was "encouraging," this did not "erase the
extreme gravity of the criminal behavior that brought him as a
Defendant before this Court." González received a sentence of life
imprisonment on Count 1.
On appeal, González argues that the district court erred
in applying § 2A1.1 because the court's findings were insufficient
on the question of whether he had the requisite mental state for
first-degree murder. This argument is unpreserved, and the
standard of review is plain error. See Colon-Nales, 464 F.3d at
26.
We conclude that the district court's findings supported
the application of the first-degree murder cross-reference. While
the court did not delve into the trial evidence in detail, it
clearly stated that González "planned" and helped to commit four
murders. The court had also already found, in its order prior to
the sentencing hearing, that the trial evidence "certainly
established by a preponderance that the co-defendants tried to
overtake [the Calle 4] drug point to expand their drug business and
that [González] participated in that quest." These statements
clearly evince a finding of premeditation, and the trial evidence
supports such a finding. González, along with Cabrera,
-27-
masterminded the shooting of the three men at the Calle 4 drug
point and the plan to kill Indio. The Calle 4 attack was intended
to eliminate competition and protect the defendants' own drug
trafficking activity. In both cases, González recruited other
members of the drug conspiracy to assist him in committing the
murders, and in both cases González later bragged about his
participation.8
González also challenges the imposition of the leadership
enhancement, arguing that the testimony at trial was that Méndez
was the leader of the conspiracy. Even when such a challenge is
preserved, "[w]e review the imposition of this particular
sentencing enhancement, and any predicate factual findings, for
clear error." United States v. Appolon, 695 F.3d 44, 70 (1st Cir.
2012). There was no such error. The relevant inquiry is only
whether González was a leader of the conspiracy, not whether he was
the leader. There can be more than one leader of a conspiracy.
See United States v. Rodríguez-Lozada,
558 F.3d 29, 45 (1st Cir.
2009). The trial evidence revealed that González both led a team
that sold crack at La Recta and led various conspiracy members in
plans to murder Indio, Agustín, and the Lloréns Torres dealers.
The district court found that the evidence at trial "clearly
established" that five or more people participated in the
8
In addition, the trial evidence demonstrated that González
planned and helped to execute the murder of Agustín, during which
González distracted the victim while Rodríguez shot him.
-28-
conspiracy; that González was one of the "key players" in the
conspiracy; that he helped plan four murders in furtherance of the
conspiracy; and that he, "along with other codefendants, engaged in
virulent conduct to eliminate competition . . . and to protect
their own drug trafficking activities." On this record, we cannot
say that imposition of the leadership enhancement was clearly
erroneous.
Moreover, given our conclusion that the district court
properly applied § 2A1.1, the imposition of the leadership
enhancement is immaterial to González's sentence, since even before
the enhancement he was already subject to the highest offense level
of 43. Thus, even if there had been error in adding four levels
for leadership -- and there was not -- it would have been harmless
error. See Martínez-Medina, 279 F.3d at 124.
3. Rodríguez
Again, Rodríguez personally sold multiple pounds of
marijuana each week at La Recta as part of the drug conspiracy; he
participated in the triple murder at Calle 4; and he helped plan
the murder of Agustín, whom he shot in the head.
Rodríguez's PSR attributed to him the conspiracy-wide
drug quantity of 54 kilograms of crack cocaine, then used the
first-degree murder cross-reference to reach a base offense level
of 43. The PSR then added 2 levels for Rodríguez's leadership role
and 2 levels for using minors in the commission of the offense, for
-29-
an adjusted offense level of 47, which was treated as an offense
level of 43. Rodríguez's Guidelines sentence was life
imprisonment.
In his sentencing memorandum, Rodríguez did not object to
the PSR's Guidelines calculations, arguing instead that the court
should impose a variant sentence. He also argued that the PSR
erred in treating him as part of the conspiracy charged in the
indictment, but the district court rejected this argument, noting
that it was insupportable in light of the jury's verdict. The
court also found that the evidence at trial supported the PSR's
conclusions that "the violent deaths and possession of firearms in
connection to the drug point at La Recta were proved to be a joint
effort by the defendants to further their common interest of
protecting the drug point and expanding their illegal drug
trafficking activities," and that the conspirators had "shar[ed]
and exchang[ed] . . . weapons during the planning of Agustín['s]
and Indio's murder[s]."
At the sentencing hearing, Rodríguez's counsel discussed
Rodríguez's difficult background, including child abuse,
illiteracy, and emotional problems, and urged the court to consider
his potential for rehabilitation. Rodríguez -- age 30 at the
time -- argued at allocution that he was innocent of the crimes
charged, that the four videos of him at La Recta did not show he
was armed, that the testimony against him was false and secured by
-30-
promises of reduced prison sentences, and that he had never
admitted that he had shot Agustín. Rodríguez neither accepted
responsibility nor showed any remorse.
In calculating the Guidelines range, the district court
applied the first-degree murder cross-reference, based on the
murder of seven victims "as a manner or means of furthering the
conspiracy." It also applied the two-level leadership enhancement
because Rodríguez had "supervised other sellers," as well as the
two-level enhancement for use of a minor. The court concluded that
the Guidelines sentence was life imprisonment. The court then
considered the § 3553(a) factors. It acknowledged Rodríguez's
difficult childhood, lack of education, and drug addiction, but
also found that Rodríguez was part of a "violent drug trafficking
organization." With regard to the murders, the court found:
Now, during the life of that conspiracy, the
Defendant -- and the co-conspirators charged
-- planned and executed the deaths of several
persons to further that drug conspiracy, and
the Defendants engaged in unrelenting ruthless
conduct to further their common interests.
Defendants would also jointly plan, as part of
the conspiracy, to murder outsiders in order
to eliminate competition and to expand their
drug activity beyond the territorial confines
of the Canales housing project.
According to the testimonies at trial,
the Defendant, Rodriguez Reyes, personally
participated in the planning or in the
execution of some of these murders, such as,
the killing of Richard Figueroa Perdomo, known
-31-
as Indio, and of Jose A. Medina Nieves, known
as Agustin.[9]
Now, this conduct, the Court
understands, is a reflection of a total
disregard by Defendant of human life, and it
also points to recurrent virulence.
The court concluded that the advisory Guidelines sentence
of life imprisonment adequately reflected the nature of the
offenses, Rodríguez's history and characteristics, and the need for
punishment and deterrence. The court sentenced Rodríguez to life
imprisonment on Count 1.
Rodríguez argues on appeal that the district court
committed procedural error by failing to make specific findings
about the parts of the conspiracy's conduct for which Rodríguez
could be held personally responsible. He claims that this error
caused the court to incorrectly calculate the Guidelines range.
Because Rodríguez did not object to the Guidelines calculations or
to the sufficiency of the court's findings until this appeal, the
standard of review is plain error.
Rodríguez first objects to the PSR's drug quantity
calculation, arguing that he cannot be held responsible for the
conspiracy-wide quantity of crack. However, the district court did
not rely on the drug quantity in reaching Rodríguez's sentence;
rather, the court applied the cross-reference to § 2A1.1. And with
regard to the murders on which the court based the use of the
9
As described below, the court's statement was in error as to
the murder of Indio.
-32-
cross-reference, the court did make specific findings as to
Rodríguez's personal involvement and responsibility.
Admittedly, the district court erred in its
identification of the murders with which Rodríguez was involved.
The court stated that Rodríguez had participated in the planning
and execution of the murders of Indio and Agustín, but the
government concedes that Rodríguez was not involved in Indio's
murder. However, the court correctly found that Rodríguez had
helped to plan and execute the Agustín murder; indeed, the evidence
at trial showed that Rodríguez was part of the group that decided
to murder Agustín and that Rodríguez was the one who ultimately
shot Agustín in the head. That finding alone would support the
application of the first-degree murder cross-reference, rendering
a drug quantity finding superfluous. Further, the district court
also would have been entitled to rely on the unchallenged finding
in the PSR that Rodríguez participated in the triple murder at the
Lloréns Torres drug point. The error thus did not affect
Rodríguez's substantial rights, and we will not vacate the
sentence.
To the extent that Rodríguez challenges the substantive
reasonableness of the district court's sentence, there was no
error. Rodríguez challenges the district court's balancing of the
§ 3553(a) factors, but as we noted with regard to Méndez, "[w]e
will not disturb a well-reasoned decision to give greater weight to
-33-
particular sentencing factors over others." Gibbons, 553 F.3d at
47. Given the district court's findings about the violent nature
of the drug conspiracy and Rodríguez's participation in at least
one murder, it was not unreasonable for the district court to weigh
the need for punishment and deterrence over the potentially
mitigating effects of Rodríguez's personal background.
C. Motion for New Trial
While Cabrera does not challenge his sentence, he does
advance an additional argument not asserted by his codefendants:
that he is entitled to a new trial because the district court
erroneously denied his motion for severance. He argues on appeal,
as he did in his original motion, that he was prejudiced by
"spillover" evidence about those of the seven murders in which he
played no role.
This court reviews the denial of a motion to sever for
abuse of discretion. Soto-Beníquez, 356 F.3d at 29. "To
demonstrate abuse of discretion, [a] defendant[] must show that
joinder deprived [him] of a fair trial, resulting in a miscarriage
of justice." Id. "Because the general rule is that those indicted
together are tried together to prevent inconsistent verdicts and to
conserve judicial and prosecutorial resources, severance is
particularly difficult to obtain where, as here, multiple
defendants share a single indictment." Id.
-34-
The district court did not abuse its discretion in trying
Cabrera along with his three codefendants. The evidence of the
murders presented at trial was not so unrelated to Cabrera's
conduct that its admission was prejudicial to him at all, let alone
so prejudicial that it constitutes a miscarriage of justice.
Cabrera directly participated in the decisions to murder Indio and
Agustín, as well as in the planning of the Lloréns Torres shootout
that killed three others. The evidence further established that
Cabrera was a leader in the drug conspiracy and that all seven
murders were committed in furtherance of that conspiracy. The
murder evidence thus would have been admissible against Cabrera
even in a separate trial. See United States v. Levy-Cordero, 67
F.3d 1002, 1007-08 (1st Cir. 1995).
IV.
The convictions and sentences of Melvin Méndez-Roldán,
José Cabrera-Cosme, Héctor González-Suárez, and Jerry Rodríguez-
Reyes are all affirmed.
-35-
