United States v. Ortiz-Islas

2016 | Cited 0 times | First Circuit | July 11, 2016

United States Court of Appeals For the First Circuit

No. 14-1864





Defendant, Appellant.


[Hon. John A. Woodcock, Jr., U.S. District Judge]


Thompson, Circuit Judge, Souter, Associate Justice,* and Barron, Circuit Judge.

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP was on brief, for appellant. Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

July 11, 2016

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

SOUTER, Associate Justice. Apolinar Ortiz-Islas appeals

his conviction and sentence for conspiracy to possess cocaine for

distribution and to distribute it. We affirm.


Mathieu LeBlanc orchestrated a cocaine distribution

conspiracy that completed a number of transactions beginning in

2010. He would typically arrange for Robert Rossignol to receive

money in Canada and smuggle it across the border into Maine.

LeBlanc then would drive the money to Texas or have others,

including Chad Hallett, transport it for him. Ahead of his and

the money's arrival in Texas, LeBlanc would notify Victor Charles

and Kyle MacDonnell that he was coming so that they could arrange

a meeting between LeBlanc and a cocaine supplier, most frequently

Ortiz-Islas. Charles and MacDonnell would provide protection and

logistical support during the transaction. After the exchange,

Hallett or Charles would drive the cocaine from Texas to Maine,

where it would be handed off to Rossignol.

In May 2012, Charles was incarcerated for a parole

violation, but he sought to preserve his place in the conspiracy

even while in custody, by receiving payment on future deals between

LeBlanc and Ortiz-Islas in recognition of the logistical

groundwork he had helped to lay in the past. Both LeBlanc and

Ortiz-Islas agreed to pay Charles for deals completed while he was

locked up. At one point, Ortiz-Islas contacted Charles's wife to

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obtain LeBlanc's phone number, and Charles ensured that LeBlanc

and Ortiz-Islas knew how to make contact with each other.

LeBlanc planned to complete a deal in June 2012 and spoke

ahead of time directly to Ortiz-Islas, since Charles was in

custody. LeBlanc made the plans known to Charles, who requested

that his share be paid to his mother. Hallett received the money

for the June deal from Rossignol in Maine, and, for this particular

trip, was supposed to meet LeBlanc in New Jersey, where they would

exchange Canadian currency for American dollars. Hallett then

would drive the converted cash to Texas, where he would connect

with LeBlanc again. As part of the June deal, Ortiz-Islas agreed

to "front" cocaine to LeBlanc: Ortiz-Islas would give LeBlanc more

drugs than he paid for on the understanding that LeBlanc would

make up the difference in a subsequent transaction.

But the June arrangements went awry. Hallett was

arrested driving the cash from Maine and agreed to participate in

a controlled delivery of the money to LeBlanc in New Jersey, as

planned. LeBlanc was then arrested in New Jersey on June 28 and,

like Hallett, agreed to cooperate. He placed recorded phone calls

to Ortiz-Islas, fabricating a reason to stall and work out new

logistics for what would be a controlled transaction.

While LeBlanc and Ortiz-Islas were still hashing out the

details of the delayed deal, on August 16 a grand jury in Maine

indicted Rossignol, Charles, and Ortiz-Islas for conspiring "with

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persons known and unknown" to distribute and to possess with intent

to distribute at least five kilograms of cocaine in "Maine and

elsewhere" over a period beginning "no later than January 1, 2011,"

and continuing until "no earlier than June 28, 2012" (the date of

LeBlanc's arrest).

What was supposed to be the June deal ended as a sting

operation on September 18. Ortiz-Islas met with a federal agent

posing as LeBlanc's courier and was arrested as they approached

the location of the planned swap, where cocaine was seized.

Rossignol and Charles, who were included in the

indictment alongside Ortiz-Islas, pleaded guilty, as did LeBlanc

and Hallett, who were charged separately. MacDonnell received

immunity. At Ortiz-Islas's trial, Charles, LeBlanc, Hallett, and

MacDonnell testified against him, Charles attesting that on behalf

of LeBlanc he made about six trips to Maine transporting cocaine

purchased from Ortiz-Islas. The first was said to involve three

kilograms, and the quantity on each subsequent trip was at least

five. The jury convicted Ortiz-Islas of conspiring to distribute

and to possess with intent to distribute at least five kilograms

of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846.

At sentencing, the district court found Ortiz-Islas

accountable for almost 34 kilograms of cocaine, which (at the time)

gave him a base offense level of 34 under U.S. Sentencing

Guidelines Manual § 2D1.1(c)(3) (U.S. Sentencing Comm'n 2013).

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The court applied a two-level increase in light of evidence that

Ortiz-Islas possessed a gun at some of the drug deals, id.

§ 2D1.1(b)(1), but varied back downward by two levels at the

parties' urging in recognition of impending Guidelines amendments

providing two-level reductions in drug-quantity offense levels.

An offense level of 34 and a criminal history category of I yielded

a Guidelines sentencing range of 151 to 188 months. Id.

(sentencing table). The Government recommended a sentence at the

top of this range. But taking account of the other conspirators'

sentences (Hallett received 48 months, LeBlanc got 104, and Charles

and Rossignol 120 each), the court sentenced Ortiz-Islas within

the Guidelines range to 170 months' imprisonment. He appealed.


Ortiz-Islas raises four issues, none of them



According to him, there was an impermissible variance

between the indictment's charge and the Government's proof. While

the evidence may have shown that he conspired to sell cocaine to

LeBlanc in Texas, he says, it failed to place him in a conspiracy

with LeBlanc to distribute the drugs in Maine or elsewhere.

"When a defendant asserts a claim of variance premised

on the notion that multiple conspiracies existed and that his

activities were not part of the charged conspiracy, the initial

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question is one of evidentiary sufficiency." United States v.

Ramirez-Rivera, 800 F.3d 1 , 46 (1st Cir. 2015) (internal quotation

marks omitted) (quoting United States v. Dellosantos, 649 F.3d

109 , 116 (1st Cir. 2011)). "We review sufficiency challenges de

novo. We consider all the direct and circumstantial evidence in

the light most flattering to the [G]overnment, 'drawing all

reasonable inferences consistent with the verdict . . . to

determine whether a rational jury could have found the defendant[]

guilty beyond a reasonable doubt.'" Id. at 16 (citations omitted)

(quoting United States v. Négron-Sostre, 790 F.3d 295 , 307 (1st

Cir. 2015)).

"Three factors guide our assessment of whether the

evidence was sufficient to prove that a set of criminal activities

[constituted] a single conspiracy: '(1) the existence of a common

goal, (2) overlap among the activities' participants, and (3)

interdependence among the participants.'" United States v. Paz-

Alvarez, 799 F.3d 12 , 30 (1st Cir. 2015) (quoting United States v.

Ciresi, 697 F.3d 19 , 26 (1st Cir. 2012)). "In considering these

three factors, we must remember that the existence of a single

conspiracy does not require the participants to know of all the

other participants, understand all the details of the conspiracy,

or participate in each aspect of the conspiracy." Dellosantos,

649 F.3d at 118.

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Here, all three considerations point to a single

conspiracy. The first, existence of a common goal, "is broadly

drawn" and in a case like this is satisfied by evidence of a shared

"interest in furthering the distribution of drugs." Négron-

Sostre, 790 F.3d at 309 (internal quotation marks omitted) (quoting

United States v. Portela, 167 F.3d 687 , 695 & n.3 (1st Cir. 1999)).

That was the common goal here: "namely, to sell drugs for profit."

Paz-Alvarez, 799 F.3d at 30. Contrary to Ortiz-Islas's

characterization, he had more than a mere buyer-seller

relationship with LeBlanc: he was engaging in selling wholesale

quantities obviously purchased for further sale, and he was even

willing to front cocaine to LeBlanc, an act of trust that assumed

an ongoing enterprise with a standing objective.

The second, overlap among the activities' participants,

"is satisfied by the pervasive involvement of a single core

conspirator." Dellosantos, 649 F.3d at 118 (internal quotation

marks omitted) (quoting United States v. Mangual-Santiago, 562

F.3d 411 , 422 (1st Cir. 2009)). Here, LeBlanc fills that bill.

He would (i) arrange for Rossignol to smuggle currency from Canada

into Maine, (ii) pay Hallett and others to drive the cash to Texas,

(iii) inform Charles and MacDonnell of his upcoming arrival in

Texas, (iv) meet with Oritz-Islas among others to swap the money

for cocaine, and (v) direct Hallett, Charles, and others to

transport the drugs back to Maine.

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Remarkably, Ortiz-Islas denies that the required overlap

occurred, relying on United States v. Monserrate-Valentín:

[T]he mere fact that a central person (the "hub" of a wheel) is involved in multiple conspiracies (the wheel's "spokes") does not mean that a defendant . . . who participated in a spoke conspiracy . . . may be convicted of participating in an overarching conspiracy encompassing the entire wheel. The [G]overnment must also produce evidence from which a jury could reasonably infer that the spoke defendant knew about and agreed to join any larger overarching conspiracy.

729 F.3d 31 , 44-45 (1st Cir. 2013) (citation and some internal

quotation marks omitted) (quoting United States v. Franco-

Santiago, 681 F.3d 1 , 11 (1st Cir. 2012), abrogated on other

grounds by Musacchio v. United States, 136 S. Ct. 709 (2016)).

But this was not a "hub-and-spoke conspiracy," where "one core

figure supplies drugs to multiple participants." United States v.

Niemi, 579 F.3d 123 , 127 (1st Cir. 2009). This, rather, was a

chain conspiracy:

Conspiracies to distribute narcotics, which normally involve numerous sales and resales of drugs until they reach the ultimate consumers, are often "chain" conspiracies. Because the success of participants on each level of distribution is dependent upon the existence of other levels of distribution, each member of the conspiracy must realize that he is participating in a joint enterprise, even if he does not know the identities of many of the participants. Accordingly, a single conspiracy does not become multiple conspiracies simply because each member of the conspiracy did not know every other member, or because each member did not know of or become

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involved in all of the activities in furtherance of the conspiracy.

United States v. Giry, 818 F.2d 120 , 127-28 (1st Cir. 1987)

(quoting United States v. Warner, 690 F.2d 545 , 549 (6th Cir.


The third consideration, interdependence among the

participants, "exists where the activities of one aspect of the

scheme are necessary or advantageous to the success of another

aspect of the scheme." Négron-Sostre, 790 F.3d at 309 (internal

quotation marks omitted) (quoting United States v. Rivera

Calderón, 578 F.3d 78 , 89 (1st Cir. 2009)). Among other evidence

of interdependence here, Ortiz-Islas contacted Charles's wife

while he was incarcerated to get LeBlanc's phone number, thus

indicating that LeBlanc's trafficking of cocaine from Texas to

Maine was advantageous to Ortiz-Islas's distribution of the

product. To the same effect, the conspirators put their unified

and continuing enterprise before immediate profit: Ortiz-Islas and

LeBlanc each agreed to pay Charles even when his incarceration

prevented his customary contribution to the conspiratorial


Ortiz-Islas argues contrariwise by pointing to

Dellosantos. There, an indictment charged numerous individuals,

including the two appellants, with conspiring to distribute and to

possess with intent to distribute cocaine and marijuana. 649 F.3d

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at 110-11. But as we saw it, rather than the single conspiracy

charged in the indictment, the evidence demonstrated at least two:

one based in Massachusetts to distribute only cocaine (revolving

around three individuals, including the appellants), and another

based in Maine to distribute both cocaine and marijuana (centered

around three different individuals). Id. at 119. Both

conspiracies sought to sell cocaine that traveled the same supply

chain, but we had no trouble distinguishing the two. Id. With

respect to interdependence, although the evidence showed that the

appellants participated in supplying cocaine to the Maine-based

conspiracy, we noted that "nothing was presented to the jury to

suggest that either of them believed that the success of their

cocaine distribution operation likely depended on [the Maine-based

conspiracy's] marijuana distribution venture." Id.

Here, by contrast, there was no second, Maine-based

conspiracy distinct from Ortiz-Islas's activity supplying cocaine

to LeBlanc in Texas. It is true that at one time LeBlanc and

Rossignol had conspired to sell Canadian marijuana in the United

States, but there is no claim that any marijuana conspiracy even

endured into the period covered by the Maine-Texas cocaine

conspiracy charged here. Ortiz-Islas simply says that he was

indifferent to the success of a LeBlanc-centered conspiracy to

distribute cocaine in Maine or elsewhere. But his actions belie

his words. As noted, for example, the importance of sustaining a

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regular course of business was in evidence when Ortiz-Islas showed

his willingness to front drugs to LeBlanc on the understanding

that LeBlanc would pay in the course of a subsequent transaction.

The jury could reasonably have inferred that the continuing

vitality of LeBlanc's distribution business was of some importance

to Ortiz-Islas. And sufficient evidence supported an inference

that Ortiz-Islas knew this distribution business extended to Maine

and elsewhere: LeBlanc and Charles both testified that they told

Ortiz-Islas that LeBlanc was from Canada, and Ortiz-Islas sought,

obtained, and used LeBlanc's phone number, which began with its

Maine area code.

In sum, there was no variance. The indictment charged,

and the Government proved, a single conspiracy to distribute and

to possess with intent to distribute cocaine in Maine and



The next claim on appeal is that, because the September

2012 sting "transaction" occurred after the indictment issued in

August, the district court erroneously admitted evidence of it.

Evidentiary rulings are reviewed for abuse of discretion. United

States v. Georgiadis, 819 F.3d 4 , 14 (1st Cir. 2016).

This point is most easily resolved by recognizing that

even if the disputed evidence was not what our case law calls

"intrinsic" to the charged conspiracy, it was admissible under

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Federal Rule of Evidence 404(b). See United States v. Mare, 668

F.3d 35 , 39 (1st Cir. 2012) (explaining supplementary character of

that Rule to the intrinsic-evidence rule; where challenged

evidence is intrinsic to crime charged in indictment, Rule 404(b)

is "not implicated at all" (internal quotation marks omitted)

(quoting United States v. Villarman–Oviedo, 325 F.3d 1 , 11 (1st

Cir. 2003))). Rule 404(b) distinguishes admission of "[e]vidence

of a crime, wrong, or other act . . . to prove a person's character

in order to show that on a particular occasion the person acted in

accordance with the character," which it prohibits, from admission

of such evidence "for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident," which it permits. Fed.

R. Evid. 404(b).

In this case, as in others like it, "[t]he evidence in

question 'was not just [about] some random drug crime by the

defendant from which could be inferred a propensity on his part to

commit drug crimes.' It was closely linked in time to the alleged

conspiracy and proved the identities and relationships of the

conspirators." Niemi, 579 F.3d at 128 (citation and alterations

omitted) (quoting United States v. Fanfan, 468 F.3d 7 , 12 (1st

Cir. 2006)). Here, evidence of the final, faux deal merely

illuminated what had been going on among the relevant parties for

over a year, a course of conduct that was firmly shown through

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overwhelming evidence including co-conspirators' testimony. The

district court accordingly acted within its discretion in

admitting the contested evidence.


Ortiz-Islas's final two claims of error relate to his

sentence. In assessing sentencing decisions, we review matters of

law de novo, findings of fact for clear error, and the

reasonableness of the sentence for abuse of discretion. United

States v. Guzman-Montanez, 808 F.3d 552 , 554-55 (1st Cir. 2015).


The first of these objections goes to the district

court's application of the relevant sentencing statute: 21 U.S.C.

§ 841(b)(1). Subparagraph (C) establishes a default range of

imprisonment for the criminal objects of the conspiracy charged in

this case (irrespective of drug quantity), with a maximum of twenty

years and, through silence, a minimum of zero. As relevant here,

subparagraph (A) sets a higher range, a minimum of ten years and

a maximum of life, if the offense involved at least five kilograms

of cocaine.

The statutory maximum may be based on the quantity of

drugs attributable to the conspiracy as a whole, as found by the

jury. See United States v. Razo, 782 F.3d 31 , 39 (1st Cir. 2015).

And because this jury found that the conspiracy involved at least

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5 kilograms of cocaine, the district court declared that

subparagraph (A)'s maximum of life was applicable.

A statutory minimum must rest on a jury finding as well,

see id. at 40, and we have previously held that it must be based

on the drug quantity attributable to the defendant individually,

rather than to the conspiracy collectively, see id. at 39. Here,

the jury made no finding on the amount of cocaine for which Ortiz-

Islas was personally responsible, and thus the Government did not

seek, and the district court did not apply, a statutory minimum.

Declining to apply a statutory minimum was functionally equivalent

to applying the implicit zero-year minimum under subparagraph (C).

Ortiz-Islas takes these circumstances as an opportunity

to contend that the district court used the maximum from

subparagraph (A) and the minimum from subparagraph (C). We have

to say that we find the claim improbable, given the 170-month

sentence actually imposed, which is far from life imprisonment;

the court's reference to the life maximum strikes us as more like

a stray remark than a ruling that it would apply subparagraph (A).

But even assuming both that Ortiz-Islas's characterization of the

district court's actions is accurate and that such "mixing and

matching" is impermissible, Ortiz-Islas obviously suffered no

harm. See id. at 40-41 (noting that we have previously reserved

judgment on this question and reviewed for harmlessness beyond a

reasonable doubt). Application of subparagraph (A)'s lifetime

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maximum did no harm because the district court did not apply the

cognate statutory minimum, and the sentence it did impose was well

below even the twenty-year maximum prescribed by subparagraph (C).

"[N]othing," moreover, "indicates that the 'theoretical' maximum

informed the sentencing determination." Id. at 40. Rather, the

district court's sentence appears to have been driven "purely [by]

[G]uidelines considerations" and "the factors referenced in 18

U.S.C. § 3553(a)." United States v. Rose, 802 F.3d 114 , 127 (1st

Cir. 2015).1 The district court's application of the sentencing

statute does not require reversal.


Finally, Ortiz-Islas alleges an unreasonable disparity

between his sentence and that of each of his co-conspirators. As

against his within-Guidelines sentence of 170 months, Hallett,

LeBlanc, Charles, and Rossignol received below-Guidelines

sentences of 48, 104, 120, and 120 months, respectively.2

1 For what it may be worth, there was overwhelming uncontradicted evidence that Ortiz-Islas was individually responsible for at least five kilograms of cocaine, the finding, if made by the jury, that would have sufficed to trigger the ten- year minimum under subparagraph (A). Charles testified that he transported cocaine purchased from Ortiz-Islas six times and that the first trip involved three kilograms while each of the subsequent trips involved no less than five. 2 Some of these sentences were subsequently reduced, but not until after Ortiz-Islas was sentenced, so, in analyzing disparity, the district court considered the sentences as set out above.

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Title 18 U.S.C. § 3553(a)(6) directs courts to consider

"the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct." "This provision is aimed, generally, at the

minimization of sentencing disparities among defendants

nationwide." United States v. Perez, 819 F.3d 541 , 547 (1st Cir.

2016). "Unless two identically situated defendants receive

different sentences from the same judge, which may be a reason for

concern, our general rule of thumb is that a defendant is not

entitled to a lighter sentence merely because his co-defendants

received lighter sentences." United States v. Reyes-Rivera, 812

F.3d 79 , 90 (1st Cir. 2016) (internal quotation marks omitted)

(quoting United States v. Rivera-Gonzalez, 626 F.3d 639 , 648 (1st

Cir. 2010)). "We have noted . . . the permissible distinction

between co-defendants who go to trial and those who plead guilty,

between those who cooperate and those who do not, and between those

whose cooperation is 'prompt and full' and those whose cooperation

is 'belated and grudging.'" United States v. Reyes-Santiago, 804

F.3d 453 , 467 (1st Cir. 2015) (citations omitted) (quoting United

States v. Mateo-Espejo, 426 F.3d 508 , 514 (1st Cir. 2005)).

Varying criminal histories, roles in the crime, and offense conduct

also can undermine a claim of unjustified disparity between co-

defendants' sentences. Id.

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Ortiz-Islas says that his sentence is unreasonable, both

procedurally because of the district court's failure to explain

the disparities adequately, and substantively because of the

disparities themselves. As for procedure, the district court

supplied sufficient reasons. In sentencing each conspirator,

including Ortiz-Islas, the court expressly considered the need to

avoid unwarranted disparity and discussed the conspirators'

differing roles, actions, and histories, as well as the facts that

some of them pleaded, cooperated, and testified. With respect to

roles in the conspiracy, for example, the court explained that

Ortiz-Islas was perhaps most similarly situated to LeBlanc. The

court accordingly thought it "a little harsh" when the Government

sought a sentence for Ortiz-Islas that was over six years longer

than the one received by LeBlanc, and the judge accordingly imposed

a shorter one.

Nor has Ortiz-Islas carried his "heavy burden" to show

that his within-range sentence was substantively unreasonable.

See United States v. Carpenter, 781 F.3d 599 , 622 (1st Cir. 2015)

(internal quotation marks omitted) (quoting United States v.

Madera-Ortiz, 637 F.3d 26 , 30 (1st Cir. 2011)). The most obvious

explanation for the fact that Ortiz-Islas was sentenced within the

Guidelines range while Hallett, LeBlanc, Charles, and Rossignol

were sentenced below is that the latter individuals all pleaded

guilty and three of them testified against Ortiz-Islas. Ortiz-

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Islas, a principal cocaine supplier for the conspiracy, by

contrast, neither pleaded, cooperated, nor admitted

responsibility. It was no abuse of discretion to reject his

sentencing-disparity claim.


We have considered Ortiz-Islas's remaining subsidiary

arguments and find no merit in them. The district court's judgment


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