United States v. Santos-Rivera

2013 | Cited 0 times | First Circuit | August 7, 2013

United States Court of Appeals For the First Circuit

No. 10-1687






No. 10-1931






No. 10-2155








[Hon. Gustavo A. Gelpí, U.S. District Judge]


Torruella, Lipez, and Howard, Circuit Judges.

David Ramos-Pagan for appellant Juan Santos-Rivera. Alan Jay Black for appellant Jeffrey Carrasquillo-Ocasio. Juan M. Masini-Soler for appellant Jesús M. Díaz-Correa. Mariana Bauzá, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez- Sosa, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

August 7, 2013

LIPEZ, Circuit Judge. Following a sixteen-day trial, a jury

convicted the defendants on conspiracy and drug possession charges

stemming from their role in a criminal organization operating a 24-

hour "drug point" in the Jesus T. Piñero Public Housing Project in

Canóvanas, Puerto Rico. Each of the three defendants was convicted

of conspiracy to possess with the intent to distribute at least 50

grams of cocaine base, at least 5 kilograms of cocaine, and a

measurable quantity of marijuana within 1,000 feet of a protected

zone and of aiding and abetting the same in violation of 21 U.S.C.

§§ 841(a)(1),(b)(1)(A)(iii), 846, and 860, and 18 U.S.C § 2.

Defendant Jesús Díaz-Correa was also convicted of conspiracy to

possess firearms in furtherance of drug trafficking crimes in

violation of 18 U.S.C. § 924(o). Each defendant received a lengthy

term of incarceration: Díaz-Correa was sentenced to 330 months,

Juan Santos-Rivera to 240 months, and Jeffery Carrasquillo-Ocasio

to 216 months. The jury also imposed a forfeiture under 21 U.S.C.

§ 853.

Defendants Díaz-Correa and Carrasquillo-Ocasio challenge their

convictions, asserting that the district court erred in denying

their motions under Federal Rule of Criminal Procedure 29 for a

judgment of acquittal. Díaz-Correa also argues in the alternative

that his conviction was irreparably tainted by prosecutorial

misconduct during closing arguments. Carrasquillo-Ocasio and

Santos-Rivera both challenge their sentences.


Although there was an instance of prosecutorial misconduct

here, it is saved by harmless error. Hence, we affirm the

judgments of the district court.

I. Background

"We turn to the trial record for the following background,

presenting the facts in the light most favorable to the verdict."

United States v. Gómez-Rosario, 418 F.3d 90 , 93 (1st Cir. 2005).

The three defendants in this case were indicted, along with 39

co-conspirators, for their role in a substantial, organized drug

trafficking conspiracy operating out of the Jesús T. Piñero Public

Housing Project ("Piñero") in Canóvanas, Puerto Rico from 2006 to

2008. According to the testimony at trial, the drug point operated

around the clock, moving at least 400 vials of crack cocaine, 30

bags of powder cocaine, and 160 bags of marijuana on a daily basis.

The Piñero operation was sufficiently organized so that each

co-conspirator had a prescribed, specialized role within the

operation. Santos-Rivera was a "pusher," meaning he sold drugs at

the drug point on behalf of the organization and received a

commission on those sales. Carrasquillo-Ocasio was also a "pusher"

for the organization, but during the relevant period he was

promoted and became a "runner" for the ten-dollar bags of cocaine.

As such, he was in charge of delivering cocaine from the stash

points to the sellers working the drug point, and he had to collect

and tally cash at the end of shifts, distribute to the sellers


their commission, and return that money to the drug point

administrators. Díaz-Correa was an "administrator" of the Piñero

drug point. He was responsible for overseeing the day-to-day

operations of the drug point and hosting meetings with other

leaders to organize and plan the conspiracy's unlawful business.

To support the charge of a drug trafficking conspiracy, the

government introduced drugs and weapons seized from Piñero,

surveillance photographs and video recordings of the drug point in

operation, and wire-tap recordings of conversations between various

co-conspirators. To tie the three co-defendants to the conspiracy,

the government relied primarily on the testimony of two confessed

former co-conspirators: 1) Gretchen Villafañe, the common law wife

of the organization's incarcerated former leader, and 2) Daniel

Nuñez-Rivera, also known as Danny Sellés, an active member of the

Piñero drug operation who became a confidential informant sometime

in 2007. The jury convicted the defendants on every count charged

in the indictment.

We first discuss the challenges to the convictions, beginning

with Díaz-Correa and Carrasquillo-Ocasio's sufficiency challenges

and then address Díaz-Correa's allegation of prosecutorial

misconduct. We close with a discussion of Carrasquillo-Ocasio and

Santos-Rivera's challenges to their sentencing.


II. Challenges to the Convictions

A. Sufficiency of the Evidence

"We review de novo the district court's denial of a motion

made under Rule 29 for judgment of acquittal." United States v.

Fernández-Hernández, 652 F.3d 56 , 67 (1st Cir. 2011). I n o u r

review, "[w]e examine the evidence, both direct and circumstantial,

in the light most favorable to the jury's verdict. We do not

assess the credibility of witnesses, as that role is reserved for

the jury. Nor need we be convinced that the government succeeded

in eliminating every possible theory consistent with the

defendant's innocence. Rather, we must decide whether that

evidence, including all plausible inferences drawn therefrom, would

allow a rational factfinder to conclude beyond a reasonable doubt

that the defendant committed the charged crime." United States v.

Troy, 583 F.3d 20 , 24 (1st Cir. 2009) (citations omitted) (internal

quotation marks omitted). This standard of review is formidable

and "defendants challenging convictions for insufficiency of

evidence face an uphill battle on appeal." United States v.

Lipscomb, 539 F.3d 32 , 40 (1st Cir. 2008) (citation omitted)

(internal quotation marks and alterations omitted); see also United

States v. Polanco, 634 F.3d 39 , 44-45 (1st Cir. 2011) (noting that

"a sufficiency challenge is a tough sell").


1. Drug Trafficking Charges

"To prove a drug conspiracy charge under 21 U.S.C. § 846, the

government is obliged to show that a conspiracy existed and that a

particular defendant agreed to participate in it, intending to

commit the underlying substantive offense." United States v.

Baltas, 236 F.3d 27 , 35 (1st Cir. 2001) (citations omitted)

(internal quotation marks omitted). Because neither can seriously

contend that a drug conspiracy did not exist at Piñero, both

defendants attack the evidence demonstrating their agreement to

participate in the drug-selling operation there. Specifically,

they argue that the testimony of the government's key witnesses,

co-conspirators Nuñez-Rivera and Villafañe, was too conclusory and

unreliable for a reasonable factfinder to conclude beyond a

reasonable doubt that Díaz-Correa and Carrasquillo-Ocasio were

involved in the drug trafficking conspiracy and drug distribution

activities at Piñero. We discuss Díaz-Correa's sufficiency

challenge before turning to Carrasquillo-Ocasio's.

a. Díaz-Correa

Díaz-Correa offers three interrelated arguments in support of

his sufficiency challenge. First, he argues that because no

physical evidence offered at trial linked him to the Piñero

conspiracy, the testimony of two co-conspirators is per se

insufficient to support a conviction. Second, he argues that even

if a conviction could in some instances be supported by co-


conspirator testimony, Nuñez-Rivera and Villafañe's testimony was

insufficient in his case to establish that he participated in the

Piñero conspiracy. Finally, he argues that even if the co-

conspirators' testimony taken at face value would be sufficient to

support his conviction, their testimony was not credible.

Díaz-Correa's argument that the testimony of co-conspirators,

standing alone, is never sufficient to support a conviction is

foreclosed by our case law. We have previously upheld drug

conspiracy and aiding and abetting convictions where the evidence

tying the defendant to the conspiracy was provided primarily by the

testimony of a single co-conspirator who became a paid government

informant. See United States v. González-Vázquez, 219 F.3d 37 , 40-

41, 45-46 (1st Cir. 2000); see also United States v. Fernández-

Hernández, 652 F.3d 56 , 67-68 (1st Cir. 2011). Indeed, we have

consistently reaffirmed that "[a] conviction may be based solely on

the uncorroborated testimony of a confidential informant 'so long

as the testimony is not incredible or insubstantial on its face.'"

González-Vázquez, 219 F.3d at 46 (quoting United States v. Ciocca,

106 F.3d 1079 , 1084 (1st Cir. 1997)).

Díaz-Correa's second argument –- that Villafañe and Nuñez-

Rivera's testimony amounts to vague generalizations –- is equally

unavailing. During their testimony, both Nuñez-Rivera and

Villafañe demonstrated a detailed knowledge of the Piñero drug

conspiracy. For example, when shown photographs of several co-


conspirators, Nuñez-Rivera knew their names, their roles in the

conspiracy, where they worked, and what drugs they supplied. He

testified as to the shift schedule for pushers working at the drug

point and the general flow of operations at Piñero, including which

times of day, days of the week, and days of the month were usually

busy and which ones were slow. For her part, Villafañe testified

as to how she would hide weapons and drugs for the conspiracy in

her home. She also described meetings she attended with the

organization's leaders and could identify which co-conspirators

were in charge of the money, of cooking the crack cocaine, and of

packaging and weighing the drugs.

The testimony of the two witnesses as to Díaz-Correa's

specific role in the conspiracy was likewise more than sufficiently

detailed to sustain his conviction. In particular, both Nuñez-

Rivera and Villafañe described Díaz-Correa's rise to power in 2008.

Ismael Heredia, the organization's incarcerated leader, became

dissatisfied with his former drug point administrator and

determined to replace him with Díaz-Correa. Nuñez-Rivera testified

that Díaz-Correa frequently came to Piñero in person to administer

his drug point, and that once he had established himself as the

administrator of the Piñero drug point, he began to operate the

drug point in a similar manner to his predecessor, including

hosting organizational meetings at a place called "La Selva." This

testimony was also confirmed in part by recorded conversations


between Villafañe and Heredia, during which they discussed Díaz-


Credibility is a question for the jury, which on appeal must

be resolved in favor of the government. See United States v.

Ayala-García, 574 F.3d 5 , 12 (1st Cir. 2009). Although Díaz-Correa

attempts to save his argument for evidentiary insufficiency by

pointing to a few minor inconsistencies between Nuñez-Rivera and

Villafañe's testimony, such minor inconsistencies in otherwise

lengthy and corroborated testimony will not undermine the witness'

credibility. See United States v. Rodriguez, 457 F.3d 109 , 119

(1st Cir. 2006).

b. Carrasquillo-Ocasio

In an echo of Díaz-Correa's argument, Carrasquillo-Ocasio

asserts that Nuñez-Rivera's testimony against him amounted to

nothing more than vague generalizations. But, again, the record

reveals that Nuñez-Rivera gave detailed testimony based on his

personal experiences selling drugs with Carrasquillo-Ocasio.

Nuñez-Rivera could recall the specific timing of the shifts he

worked with Carrasquillo-Ocasio and what drugs they sold. When

shown a map of the Piñero complex, Nuñez-Rivera pointed out the

exact locations where he and Carrasquillo-Ocasio sold drugs

together. Nuñez-Rivera recalled Carrasquillo-Ocasio's promotion to

a "runner," and he described the process Carrasquillo-Ocasio would

use when delivering the cocaine to the drug point and when


collecting the cash revenues at the end of the shifts and

delivering them to the organization's leaders. This testimony was

consistent with Villafañe's testimony that she personally delivered

cash to Carrasquillo-Ocasio which he in turn delivered to the drug

point's leaders.

In short, Nuñez-Rivera and Villafañe's testimony was not

"incredible or insubstantial on its face," Ciocca, 106 F.3d at

1084, and was more than enough to enable a reasonable factfinder

to determine Carrasquillo-Ocasio's guilt beyond a reasonable doubt.

2. Díaz-Correa's Conviction under Section 924(o)

Díaz-Correa's argument that there was insufficient evidence to

convict him under 18 U.S.C. § 924(o) is similarly unpersuasive.

Where a defendant is charged under 18 U.S.C. § 924(o) "the jury

[does] not even need to find that [the defendant] himself ever used

or possessed a firearm in furtherance of the drug conspiracy. It

would be sufficient to find that he was part of an agreement to do

so." United States v. Flores de Jesús, 569 F.3d 8 , 30 n.14 (1st

Cir. 2009). As previously discussed, there was more than

sufficient evidence in this case that Díaz-Correa was a leader of

the drug conspiracy at Piñero. Thus, to sustain a conviction under

section 924(o), the government need only show that Díaz-Correa was

part of an agreement to use firearms in furtherance of the Piñero

organization's interests.

At trial, the government offered testimony and real evidence


demonstrating that firearms were used regularly in furtherance of

the Piñero drug conspiracy. Firearms and ammunition which had been

seized from members of the Piñero drug trafficking operation were

entered into evidence, including a Romarm/Cugir Rifle, a Sig Sauer

pistol, a Colt revolver, a Glock pistol, and a Smith & Wesson .38

caliber revolver. Many of these weapons were seized from sellers

operating at Piñero during a single raid.

Villafañe's and Nuñez-Rivera's testimony also established that

guns were a regular part of the operation of the Piñero drug

conspiracy. For example, Villafañe testified that she stored guns

on behalf of the organization and she testified that certain co-

conspirators always carried guns while at Piñero.

Nuñez-Rivera also testified that he had seen Díaz-Correa

himself carry guns while administering the drug point. According

to Nuñez-Rivera, when Díaz-Correa was promoted to administrator at

the drug point:

A: [Manuel]1 let us know that the housing project no longer was Ismael's, that it was his. And he was – he wanted no fucking around with his stuff. Q: Sir, was Manuel armed that day? A: Yes .... Q: Did Manuel carry firearms aside from that day? A: Yes. You could not see it, but you could notice the bulge in his waist and also Darren's. Q: Aside from seeing the bulge, did you ever see a firearm? A: Yes. Once in a car Manuel and Darren were counting

1 During his testimony, Nuñez-Rivera referred to Díaz-Correa by his nickname, "Manuel."


some money and I approached and asked him for $10. Q: What type of firearm did you see? A: He had a Beretta on top of his right thigh inside the car.

Nuñez-Rivera and Villafañe's testimony and the real evidence

offered at trial provided more than enough evidence for a

reasonable factfinder to conclude that Díaz-Correa had agreed with

other leaders of the organization to use firearms to promote their

drug-trafficking operation.

B. Prosecutor's Misconduct During Closing Argument

Díaz-Correa argues that the prosecutor's conduct during

closing argument was so inflammatory that it amounted to

misconduct. We briefly review the events at closing argument

before discussing the propriety of the prosecutor's actions.

In his closing argument, counsel for Díaz-Correa suggested

that the "bulge" that Nuñez-Rivera testified he had seen in Díaz-

Correa's waistband at Piñero was not necessarily the Beretta that

Nuñez-Rivera saw later in Díaz-Correa's lap. Defense counsel

suggested that the bulge could have been created by another object,

such as a cell phone.

To respond to this suggestion during her rebuttal, the

prosecuting attorney went to the evidence table and selected a

pistol that had been entered into evidence. The pistol she

selected was not a Beretta, and there was no evidence or allegation

that it had ever been owned or carried by Díaz-Correa.

Nevertheless, the prosecuting attorney held the gun in front of the


jury and said:

And let's talk about the bulge. You heard an argument that the bulge in the waist cover [was] a cell phone. Consider this, compare this cell phone with this pistol. And use your common sense.

Counsel for Díaz-Correa objected, and the district court

agreed that the prosecutor's use of the gun was inappropriate,

particularly given that the firearm selected was not the Beretta

Díaz-Correa allegedly possessed. The district court then

instructed the jury "not [to] consider the pistol that was shown,"

but allowed the prosecutor to make her point that a cell phone was

unlikely to cause the bulge seen by Nuñez-Rivera.

The term "prosecutorial misconduct" covers a broad swath of

improper conduct by the state's attorney that may impair an

accused's constitutional rights to a fair trial, such as commenting

on an accused's decision to remain silent, witness vouching, and

introducing inadmissible evidence through cross-examination. See,

e.g., Doyle v. Ohio, 426 U.S. 610 , 619-20 (1976) (holding that it

is improper for prosecutor to comment on accused's post-arrest

silence); United States v. Vázquez-Botet, 532 F.3d 37 , 53 (1st Cir.

2008) (discussing improper witness vouching); United States v.

Hall, 989 F.2d 711 , 716 (9th Cir. 1993) (discussing improper

introduction of hearsay evidence through "artful cross-examination"

and collecting cases). In the closing argument context, a

prosecutor's remarks or actions are improper where they "serve no

purpose other than to inflame the passions and prejudices of the


jury, and to interject issues broader than the guilt or innocence

of the accused." Arrieta-Agressot v. United States, 3 F.3d 525 , 527

(1st Cir. 1993) (citation omitted) (internal quotation marks

omitted). We are particularly sensitive to inappropriate conduct

during rebuttal, when "the improper remarks [are] among the last

words spoken to the jury by the trial attorneys." Ayala-García,

574 F.3d at 20 (citation omitted) (internal quotation marks

omitted). Where, as here, defendant's counsel makes a timely

objection to the prosecutor's conduct, "we review de novo whether

the remarks amounted to prosecutorial misconduct." Id. at 16.

The prosecutor's actions in this case are an example of

prosecutorial misconduct. Under these circumstances, taking a gun

from the evidence table and brandishing it before the jury during

rebuttal is obviously inflammatory. It should have been evident to

the prosecutor that she should have broached with the judge the

idea of presenting the gun to the jury in this provocative manner,

thereby allowing the defense to register its objection. The court

would have proscribed or modified the demonstration and the ensuing

problems could have easily been avoided. Given that the gun used

in the demonstration was not even the one allegedly owned or used

by Díaz-Correa, a fact that the prosecutor knew, the prosecutor's

behavior is all the more troubling.

It is also troubling that this demonstration was unnecessary.

As the district court suggested, the prosecutor could have made her


point that a cell phone was too small to create the bulge just as

easily by displaying the cell phone without the gun and asking the

jury to use its common sense. Moreover, even without Nuñez-

Rivera's testimony that he had seen a "bulge" in Díaz-Correa's

waistband, there was more than enough evidence for the jury to

conclude that Díaz-Correa had conspired to use guns in furtherance

of the Piñero drug operation. Indeed, shortly after his testimony

about the "bulge," Nuñez-Rivera testified that he had seen the

Beretta in Díaz-Correa's possession on another occasion. It is

important for a prosecutor to know when the potential costs of an

argument to the jury or a demonstration far outweigh the need for

it. Here, an impulsive and unnecessary decision by a prosecutor

risked undermining all of the hard work of a seventeen-day jury

trial, which was itself the product of a multi-year investigation.

Nevertheless, the Supreme Court has stated that where "the

record, viewed in the aggregate, presents overwhelming evidence

establishing [the defendant's] guilt . . . we are compelled to

conclude that the prosecutor's improper remarks did not 'so poison

the well that the trial's outcome was likely affected.'" United

States v. Andújar-Basco, 488 F.3d 549 (1st Cir. 2007) (quoting

United States v. Henderson, 320 F.3d 92 , 107 (1st Cir. 2003); see

also Vázquez-Botet, 532 F.3d at 59 ("[W]e are mindful of the

Supreme Court's admonition that we not set guilty persons free

simply to punish prosecutorial misconduct."); United States v.


Auch, 187 F.3d 125 , 133 (1st Cir. 1999) ("[W]e heed the Supreme

Court's admonition against letting the guilty go free to punish

prosecutorial misconduct.") (citing United States v. Hastings, 461

U.S. 499 , 506-507 (1983)). In this case, we are convinced that the

evidence was so overwhelmingly on the government's side that the

jury would have convicted regardless of the prosecutor's misguided

demonstration. As such, the prosecutor's error was harmless, and

we affirm the conviction.

III. Sentencing Challenges

A. Carrasquillo-Ocasio

After conviction, Carrasquillo-Ocasio faced a statutory

mandatory minimum sentence of 10 years and a Sentencing Guidelines

recommendation of 360 months to life. Finding that the sentence

recommended under the Guidelines was greater than necessary, the

district court sentenced Carrasquillo-Ocasio to 18 years of

imprisonment. Carrasquillo-Ocasio appeals, arguing that his

sentence should be remanded because of the Fair Sentencing Act and

the district court's failure to make an individualized drug

quantity determination. We examine each argument in turn.

1. Fair Sentencing Act

On August 3, 2010 President Obama signed the Fair Sentencing

Act of 2010 ("FSA"), P.L. 111-220, 124 Stat. 3272, which reduced

the disparity in sentencing between offenses involving crack

cocaine and those involving powder cocaine. The FSA itself did not


address retroactivity, but in United States v. Goncalves, 642 F.3d

245 (1st Cir. 2011), cert. denied, 132 S. Ct. 596 (2011), we joined

ten of our fellow Circuit Courts of Appeal in concluding that the

FSA is not retroactive for the benefit of a defendant like

Carrasquillo-Ocasio, whose criminal conduct and sentencing occurred

before the FSA became law. See id. at 253 n.8;2 see also United

States v. Curet, 670 F.3d 296 , 309-10 (1st Cir. 2012) (re-affirming

that "the FSA does not apply to individuals who were sentenced

before the FSA was signed into law").

Carrasquillo-Ocasio was sentenced on July 12, 2010, shortly

before the FSA became law. On appeal, Carrasquillo-Ocasio urges us

to overturn our decision in Goncalves, and hold that the FSA should

be applied retroactively to reduce the sentences of those who, like

him, were sentenced under the harsher pre-FSA mandatory minimums

for crack-related offenses and whose appeals were still pending on

2 We note that while the defendant in Goncalves was sentenced before August 3, 2010, statements in dicta suggested that this Court would apply the FSA regime only in cases where the offense conduct itself occurred after August 3, 2010. That position is now precluded by the Supreme Court's decision in Dorsey v. United States, 132 S. Ct. 2321 (2012). In that case, the Court determined that the more lenient penalties of the FSA applied to defendants who were sentenced after August 3, 2010, regardless of the date of their conduct offense or the date of their conviction or entry of guilty plea. Id. at 2335. In Carrasquillo-Ocasio's case, his offense conduct, his conviction, and his sentence all occurred before August 3, 2010. Hence, the Court's decision in Dorsey is inapplicable to him.


August 3, 2010.3

There are only two circumstances, however, when a panel of

this Court may overturn the holding of a previous panel. United

States v. Malouf, 466 F.3d 21 , 26-27 (1st Cir. 2006). The first is

where supervening authority, such as an en banc decision, an

opinion of the Supreme Court, or newly passed legislation

undermines the decision of a previous panel. See United States v.

Holloway, 499 F.3d 114 , 118 (1st Cir. 2007); United States v.

Allen, 469 F.3d 11 , 18 (1st Cir. 2006). The second, which we have

described as "hen's-teeth rare," occurs where "authority that

postdates the original decision, although not directly controlling,

may [] offer a compelling reason for believing that the former

panel, in light of new developments, would change its collective

mind." Malouf, 466 F.3d at 27 (internal quotation marks omitted).

As Carrasquillo-Ocasio admits that no supervening authority exists

and points to no "compelling reason" why the former panel would

have changed its "collective mind," we decline to revisit


2. Individualized Drug Quantity and Credibility Determination

"When sentencing a participant in a drug-trafficking

conspiracy, the district court must make an individualized finding

3 While his appeal was pending, Carrasquillo-Ocasio moved for initial hearing en banc. On January 9, 2012, this court denied that request. United States v. Carrasquillo-Ocasio, No. 10-1931 (1st Cir. Jan. 9, 2012) (order denying request for initial en banc review).


concerning the quantity of drugs attributable to, or reasonably

foreseeable by, the offender." United States v. Cintrón-

Echautegui, 604 F.3d 1 , 5 (1st Cir. 2010) (footnote omitted); see

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

2004) (noting that in a drug conspiracy case a "defendant-specific

determination of drug quantity" is a required "benchmark for

individualized sentencing under the guidelines"). We review the

question of whether the sentencing judge made an individual

quantity determination at all de novo; if we determine that an

individualized determination was made, our review is only for clear

error. See Cintrón-Echautegui, 604 F.3d at 5.

At the sentencing hearing, the court made a clear

individualized quantity determination, concluding that

Carrasquillo-Ocasio was responsible for the entire drug quantity

sold during the time he participated in the Piñero conspiracy from

sometime in 2007 until early 2008, rather than the entire 2006-2008

lifespan of the conspiracy. The court stated: "[A]s to the

specific drug amount. . . [i]f it had been conspiracy-wide, it

would have been greater, but it's specific to his participation

during the time he was present . . . . And let me note, it's

different [from] other Defendants . . . This one specifically

narrowed to his presence 2007 to early 2008."

Carrasquillo-Ocasio argues that it was error to attribute to

him the entire quantity of drugs moved by the conspiracy during the


time he participated in the Piñero operation, rather than merely

the drugs he personally sold or delivered. This argument

misunderstands Carrasquillo-Ocasio's liability. As a member of a

conspiracy, he was liable not only for the drugs "attributable" to

him, but also to those "reasonably foreseeable by" him. Id.

Evidence at trial indicated that Carrasquillo-Ocasio not only sold

drugs at the drug point, but also that he was a "runner,"

responsible for moving drugs from the stash house to the drug point

and for collecting and delivering cash revenues from the

conspiracy. The district court was thus well within the bounds of

reasonableness to conclude that the entire drug quantity moved

through Piñero was "reasonably foreseeable" by Carrasquillo-Ocasio.

There was no error.

Carrasquillo-Ocasio further asserts that our decision in

United States v. Correy, 570 F.3d 373 (1st Cir. 2009), requires us

to remand his case for resentencing because the district court

failed to make an explicit credibility assessment of Nuñez-Rivera's

testimony, which was the primary evidence given at trial as to

specific drug quantities. In Correy, also a multi-defendant

conspiracy conviction under section 841 where specific drug

quantities were adduced from the testimony of a single witness, we

remanded for resentencing because the district court judge failed

to make a credibility assessment of that witness's testimony. See

id. at 380-381.


Despite these facial similarities, Carrasquillo-Ocasio's

reliance on Correy is misplaced. The factors that gave rise to our

concerns in Correy are not present in this case. In Correy, a

judge who had not presided over the trial presided over sentencing,

and the transcript of the sentencing hearing suggested that the

sentencing judge was not familiar with the trial testimony beyond

what could be found in the pre-sentencing report ("PSR"). In this

case, by contrast, the same judge who presided over Carrasquillo-

Ocasio's lengthy trial also presided at his sentencing hearing and

the sentencing hearings of many of his co-conspirators -- those who

went to trial as well as those who pled guilty. The transcript of

the sentencing hearing reveals that the court was intimately

familiar with the facts of the case and the events at trial, and

the district court's decision to credit the drug quantities in the

PSR was an implicit decision to credit Nuñez-Rivera's testimony.

B. Santos-Rivera

Unlike his co-defendants, Santos-Rivera challenges only his

sentencing, not his conviction. Because Santos-Rivera had a

previous conviction for felony drug possession, his conviction

under section 841(b)(1)(A) triggered a mandatory minimum sentence

of twenty years. While expressing his regret that he lacked the

discretion to order a more lenient sentence, the district court

reluctantly sentenced Santos-Rivera to 240 months. On appeal,

Santos-Rivera asserts that the district court incorrectly


calculated his recommended range under the Sentencing Guidelines

and that his sentence was unreasonable.

Both of Santos-Rivera's arguments, however, are foreclosed.

The district court explained that it sentenced Santos-Rivera to the

statutory minimum mandated by 21 U.S.C. §§ 841(b) & 851. Unlike

sentences imposed under the Guidelines, which are discretionary and

require the sentencing judge to impose a sentence that is

reasonable, a statutory mandatory minimum sentence is compelled by

the text of § 841(b), which is a congressional mandate over which

the trial court has no discretion.4 See United States v.

Atonakopoulos, 399 F.3d 68 , 75 (1st Cir. 2005) ("A mandatory

minimum sentence imposed as required by a statute based on facts

found by a jury or admitted by a defendant is not a candidate for

Booker error."). Because the district court had no discretion to

impose a sentence less than 240 months, neither of Santos-Rivera's

arguments would entitle him to any relief. We have no choice but

to affirm his sentence.

4 Under the current Sentencing Guidelines, there are a few exceptions to the general rule that a statutory mandatory minimum applies automatically. See e.g., 28 U.S.C. § 994(n) (mandatory minimums may be waived because of defendant's "substantial assistance" in a government investigation); U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)(1)-(5)(defendants convicted of certain crimes may avoid mandatory minimums if they meet certain criteria). None of these exceptions is applicable to the instant case.


IV. Conclusion

For the foregoing reasons, the judgments of the district court

are affirmed.

So ordered.


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