United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
JESÚS M. DÍAZ-CORREA,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[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.
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.
"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.
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).
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
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
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
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
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.
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.
For the foregoing reasons, the judgments of the district court