United States Court of Appeals For the First Circuit
Nos. 12-2035 12-2037 12-2041
UNITED STATES OF AMERICA,
JOSUÉ ALEJANDRO-MONTAÑEZ, JULIO SEVERINO-BATISTA, and EDDIE ALEJANDRO-MONTAÑEZ,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Lynch, Chief Judge, Torruella and Kayatta, Circuit Judges.
David A.F. Lewis for appellant Josué Alejandro-Montañez. Leslie W. O'Brien for appellant Julio Severino-Batista. Joshua L. Gordon for appellant Eddie Alejandro-Montañez. Carlos R. Cardona, Assistant United States Attorney, with whom Francisco A. Besosa-Martínez, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
February 18, 2015
KAYATTA, Circuit Judge. Criminal defendants Josué
Alejandro-Montañez, Julio Severino-Batista, and Eddie Alejandro-
Montañez ("Defendants") appeal from convictions and sentences
related to a criminal conspiracy to import cocaine. Defendants
argue that the district court: (1) erred in denying their motions
for judgment of acquittal; (2) erred in determining cocaine quantity
at sentencing; (3) abused its discretion in fashioning their
sentences; (4) violated their Sixth Amendment right to a public
trial; and (5) erred in applying a two-level sentencing enhancement
for the foreseeable presence of a firearm. We reject each of
Defendants' arguments. Nevertheless, in light of newly promulgated
Amendment 782 to the United States Sentencing Guidelines, we accept
the parties' joint request that we remand for reconsideration of the
Along with four other co-conspirators, Defendants were
indicted and convicted for a conspiracy that spanned from June 2008
to March 2009. In considering a challenge to the sufficiency of the
evidence supporting a guilty verdict, we recount "the facts in the
light most favorable to the verdict." United States v. Adorno-
Molina, 774 F.3d 116 , 119 (1st Cir. 2014).
A. The Charged Conspiracy
In June 2008, the Drug Enforcement Agency ("DEA") paid a
confidential informant ("CI")1 to lure large-scale, Puerto Rican drug
traffickers into a sham drug-purchasing scheme. Their target was
Raúl Feliciano-López ("Fora").
CI first met Fora on June 20, 2008, at a restaurant in
Isla Verde, Puerto Rico. CI proposed an ambitious deal to import
1000 kilograms of cocaine, via commercial air carrier, from Colombia
to Puerto Rico, and from Puerto Rico on to Miami. Fora responded
that he could receive, store, and distribute drugs, as well as
provide related services. On June 26, at a restaurant in Puerto
Nueveo, Fora introduced CI to a crooked cop named Victor Esquilin-
Rosa, who could provide security. On August 28, again in Puerto
Nueveo, Fora introduced CI to an unidentified person who knew people
who could transport the cocaine by sea. This August 28 introduction
was the last conspiratorial activity for a six-month period, during
which CI was in Colombia.
On February 24, 2009, CI reinitiated contact with Fora and
Esquilin, letting them know that he had returned to Puerto Rico. CI
scaled back the shipment amount to 200 kilograms. A series of
recorded phone calls took place between CI, Fora, and others, with
1 We identify the informant as CI "in light of concerns about the safety of cooperating witnesses raised by the Committee on Court Administration and Case Management of the Judicial Conference of the United States." United States v. Etienne, 772 F.3d 907 , 910 n.1 (1st Cir. 2014).
at least one involving defendant Julio Severino. On February 25,
CI, Fora, Esquilin, and Severino met where CI and Fora had first met
at a restaurant in Isla Verde. CI stated that he now expected a
500-kilogram cocaine shipment, and asked if he could count on them
for "everything" including "security [and] firearms." Fora
On March 4, CI, Fora, and Severino met at another
restaurant in Isla Verde to discuss particulars, specifically, where
and how to receive the cocaine. The plan was to transport and
receive the cocaine by sea rather than by a commercial air carrier,
as originally discussed. The following day, the same three men met
at a parking lot and then drove to a beach in the Dorado area of
Puerto Rico, scouting spots to unload the drugs. On March 10, they
scouted locations near El Corcho Beach in Humacao. The defendants
Alejandro brothers were supposed to join this second scouting
expedition, but did not arrive in time. Later that day, the
Alejandro brothers met CI,2 and spoke about their roles in assisting
the drug delivery. The brothers suggested a different beach on
which to receive the drugs, and Eddie gave CI his telephone number.
On March 12, CI called Eddie to verify if "everything
[was] ready." The next day, Fora called CI and said that Josué
informed him that weather conditions were poor. On March 14, Fora
called CI and said that they were ready. On March 15, CI called
2 Fora and Severino were also at this meeting.
Fora and Eddie, telling them that the drugs would be delivered later
In the early morning on March 16, the drug deal took place
at a pier in Peñuelas. CI met Fora, Severino, and the Alejandro
brothers. CI told them that the current shipment would be 300
kilograms of cocaine. CI observed Eddie carrying a firearm. To
receive the shipment, the conspirators brought in total four
vehicles, including the Alejandro brothers' SUV, which Eddie drove.
A vessel, manned by DEA agents, pulled up to the pier with four
sacks of sham cocaine. Severino and Josué Alejandro walked out to
the pier to retrieve the sacks of sham cocaine. Eddie Alejandro
waited by his SUV. DEA and Puerto Rico police then swooped in and
made arrests. Police seized a pistol from Eddie's person. Police
later searched the Alejandro brothers' SUV, finding two handguns and
B. Trial and Sentencing
Fora and Esquilin pled guilty and were sentenced to 150
and 144 months, respectively. Josué Alejandro, Julio Severino, and
Eddie Alejandro went to trial and were found guilty.
The court sentenced Severino first. In calculating
Severino's Sentencing Guidelines range, the district court held him
accountable for 200 kilograms of cocaine, which, at that time,
yielded a base offense level of 38. U.S. Sentencing Guidelines
Manual § 2D1.1(a)(1) (2011). Under United States Sentencing
Guidelines section 2D1.1(b)(1), he was subject to a two-level
increase for the foreseeable presence of a firearm during the
offense. His Guidelines sentencing range was 292–365 months. In
crafting a below-Guidelines 192-month sentence, the district court
noted Severino's lack of criminal history, the fact that he did not
personally carry a weapon, and his age (53 years).
The court then sentenced Josué and Eddie Alejandro. In
applying the Sentencing Guidelines, the district court also held
Josué and Eddie Alejandro accountable for 200 kilograms of cocaine,
which, at that time, yielded a base offense level of 38. Id.
§ 2D1.1(c)(1). At the same time, after observing that CI controlled
the actual amount of ersatz drugs involved, the district court
assigned them the base offense level (36) applicable for 50 to 150
kilograms of cocaine. Under United States Sentencing Guidelines
section 2D1.1(b)(1), they were also subject to a two-level increase
for the foreseeable presence of a firearm during the offense. The
resulting Sentencing Guidelines range for both brothers was 235–293
months. The district court sentenced each to 240 months in prison.
A. The Sufficiency of the Evidence
Defendants argue that the district court erred in denying
their motions for judgment of acquittal. We review the denial of
such motions de novo. United States v. Rosado-Pérez, 605 F.3d 48 ,
52 (1st Cir. 2010). All reasonable inferences are drawn in favor of
the prosecution. Id. "If a reasonable jury could find the
defendants guilty beyond a reasonable doubt of all elements of the
charged offense, we must affirm the conviction." Id. Testimony
from even just "one witness can support a conviction." United
States v. De La Paz-Rentas, 613 F.3d 18 , 25 (1st Cir. 2010); see
also United States v. Torres-Galindo, 206 F.3d 136 , 139–40 (1st Cir.
2000) (noting that "uncorroborated testimony of a cooperating
accomplice may sustain a conviction so long as that testimony is not
Here, Defendants challenge (1) the sufficiency of the
evidence to convict them of any conspiracy, and (2) the sufficiency
of the evidence to convict them of the indictment's overarching
conspiracy. After quickly disposing of their first challenge, we
give some attention to their second before concluding, similarly,
that the evidence was more than sufficient.
1. Sufficiency of the evidence to convict Defendants of any conspiracy.
"To sustain a conspiracy conviction, the government must
show that the defendant knowingly agreed with at least one other
person to commit a crime, intending that the underlying offense be
completed." United States v. Ledee, 772 F.3d 21 , 32 (1st Cir. 2014).
"The agreement need not . . . be express, [and] may consist of no
more than a tacit understanding." United States v. Dellosantos, 649
F.3d 109 , 115 (1st Cir. 2011) (internal quotation marks omitted).
Here, the record is replete with evidence that Defendants
knowingly agreed to import and distribute a shipment of cocaine that
involved more than five kilograms, as charged in the indictment.3
At trial, the government introduced recorded phone calls during
which the Defendants planned logistics. CI also recorded in-person
meetings with Defendants, discussing cocaine amounts in the hundreds
of kilograms. Moreover, police arrested Defendants while they were
actually in the process of unloading four sacks of fake cocaine, in
the middle of the night, with four cars, and multiple weapons. CI
testified at trial and relayed all of this first-hand information to
the jury. In short, the evidence virtually compelled a finding that
Defendants conspired to import and possess five kilograms or more of
2. Sufficiency of the evidence to convict Defendants of the indictment's overarching conspiracy.
We turn to the Defendants' fall-back argument, that the
evidence was insufficient to convict them of the specific
overarching June 2008–March 2009 conspiracy charged in the
Defendants argue that the evidence at trial showed at
least two conspiracies: a June–August 2008 conspiracy to import
larger amounts of cocaine from Colombia to Miami, and a separate
3 The fact that the cocaine was, unbeknownst to Defendants, fake, offers them no escape hatch. See, e.g., Dellosantos, 649 F.3d at 115 ("The agreement is the sine qua non of a conspiracy.").
February–March 2009 conspiracy to import smaller amounts of cocaine,
with no Miami distribution plans. Defendants argue that the six-
month lull between the 2008 conspiratorial activities and the 2009
conspiratorial activities prevents a reasonable jury from finding
them guilty beyond a reasonable doubt of the charged conspiracy.
Defendants joined the conspiracy after the six-month lull and thus,
their argument runs, they cannot be convicted of a conspiracy
including the events of June–August 2008.
Whether the evidence evinces one or multiple conspiracies
"is a question of fact for the jury and is reviewed only for the
sufficiency of the evidence." United States v. Niemi, 579 F.3d 123 ,
127 (1st Cir. 2009). With the jury properly instructed, as here,4
on the need to determine whether the defendants were guilty of the
charged conspiracy, the guilty verdict "can be seen as an effective
rejection of the multiple conspiracy theory." United States v.
Wihbey, 75 F.3d 761 , 775 n.8 (1st Cir. 1996) (citing United States
v. Sepulveda, 15 F.3d 1161 , 1191 (1st Cir. 1993)). While there may
be conflicting inferences, as long as the evidence is adequate to
permit a reasonable trier of fact to find a single conspiracy beyond
a reasonable doubt, "the jury's finding will not be disturbed on
appeal." United States v. Mangual-Santiago, 562 F.3d 411 , 421 (1st
4 Defendants do not challenge the jury instructions.
When evaluating whether the evidence can support the
existence of a single conspiracy, "we ultimately look to the
totality of the evidence." Id. We "pay 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." Niemi, 579 F.3d at 127 (quoting United States
v. Fenton, 367 F.3d 14 , 19 (1st Cir. 2004)).
Looking at the totality of the evidence, a reasonable
jury, drawing inferences from the record, could find beyond a
reasonable doubt the "common goal," "interdependence," and "overlap"
factors satisfied here. Specifically, the jury could find that the
conspirators maintained the common goal of importing large
quantities of cocaine from Colombia into Puerto Rico for profit;
that each conspirator's role was individually necessary for the
success of the overall conspiracy; and that Fora was the
conspiracy's leader throughout its lifetime, satisfying the overlap
factor, see United States v. Portela, 167 F.3d 687 , 695 (1st Cir.
1999) (noting that "[t]he overlap requirement can be satisfied by
the pervasive involvement of a single core conspirator") (internal
quotation marks omitted).
The common goal factor is given a "wide breadth." United
States v. Sanchez-Badillo, 540 F.3d 24 , 29 (1st Cir. 2008); see also
Portela, 167 F.3d at 695 (finding common goal factor satisfied by
each defendant's "interest in furthering the distribution of
cocaine"). Here, Defendants attempt to carve one conspiracy into
two, based on differences between the 2008 and 2009 plans, plus the
six-month hiatus. In 2008, the plan involved using a commercial air
carrier to bring larger amounts of cocaine from Colombia to Puerto
Rico, and ultimately on to Miami. In 2009, the plan involved
maritime transportation, a smaller cocaine quantity, and no Miami
distribution plans. That the plan changed does not prevent the jury
from finding one conspiracy existed. Here, too, the last meeting
before the lull foreshadowed the move to a maritime conveyance. The
conspirators maintained a broader unitary goal of importing cocaine
across the 2008 and 2009 time frames. That constant objective
satisfies the common goal factor. See Portela, 167 F.3d at 695.
Interdependence among the conspirators "requires
determining whether the activities of one aspect of the scheme are
necessary or advantageous to the success of another aspect of the
scheme." Id. (internal quotation marks omitted). "[E]vidence of
another individual participant's understanding of the
interdependence of the co-conspirators' activities is evidence--
often the best evidence--of tacit agreement between the individual
and his co-conspirators." Id. Here, Defendants note that none of
them was involved in 2008. While true, that does not diminish the
interdependence that ultimately existed between them and the other
conspirators. Each conspirator played a necessary role in the
conspiracy. Fora was the organizer who connected Esquilin and
Defendants to CI. While Defendants joined at the eleventh hour,
their roles were no less important for it. Defendants provided
security, firearms, and vehicles--necessary support to ensure safe
transportation of the drugs. That Defendants joined late and were
not involved in the early planning stages does not prevent the jury
from finding a single conspiracy on this record. See id. at 696
("The fact that every defendant did not participate in every
transaction necessary to fulfill the aim of their agreement does not
transform a continuing plan into multiple conspiracies." (internal
quotation marks omitted)). It would be perfectly reasonable for a
jury to find a single, continuing plan, starting in June 2008 and
coming into fruition in March 2009. The June 2008 preliminary
planning meetings gave rise to the February–March 2009 events. The
evidence here was "adequate to permit a reasonable trier of fact to
have found a single conspiracy beyond a reasonable doubt." Mangual-
Santiago, 562 F.3d at 421. As such, "the jury's finding will not be
Additionally, even accepting Defendants' contention that
the evidence shows two separate conspiracies, it would make no
difference to the outcome here. At worst, we would have a
nonprejudicial variance between the charged crime and the evidence
adduced at trial. See id. ("[A] variance is grounds for reversal
only if it is prejudicial.").
Here, all of the drugs, indeed all sentencing factors,
attributed to Defendants arose from the latter part of the
conspiracy. Had they only been charged with that part, they would
be in exactly the same position. And the overwhelming evidence
against them eliminates any plausible concern that evidence
pertinent only to the earlier stages of the conspiracy might have
prejudicially distracted the defense effort or in any other way
tipped the balance against Defendants.
B. Cocaine Quantity Instructions
Defendants argue that the district court committed error
under Alleyne v. United States, 133 S. Ct. 2151 (2013), because the
jury allegedly did not find the amount of cocaine attributable to
each defendant (an element of the offense) beyond a reasonable
doubt.5 The district court, however, specifically instructed the
jurors for both the possession and importation counts that they
needed to find, beyond a reasonable doubt, that the agreement
specified in the indictment "existed between at least two people to
[possess/import] with intent to distribute five (5) kilograms or
more of a mixture or substance containing a detectable amount of
cocaine; and . . . that the defendant willfully joined in that
agreement." Finally, the district court had jury verdict forms for
each individual defendant on which the jurors specifically found
5 Five kilograms of cocaine is the threshold for the most aggravated form of drug distribution, and carries a mandatory minimum of 10 years. 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(B).
that the amount of cocaine involved in the offense was more than
Defendants also argue that the district court should have
instructed the jury on the lesser included (i.e., lower amount)
offenses under 21 U.S.C. § 841(b)(1)(B),(c). But they never asked
for such an instruction, cite no authority for why it was
nevertheless required, and, in any event, cannot establish plain
error prejudice given the overwhelming evidence of a quantity in
excess of five kilograms. See United States v. Dominguez Benitez,
542 U.S. 74 , 81 (2004) (plain error must have "a prejudicial effect
on the outcome of a judicial proceeding").
C. Sentencing Disparities
Defendants next argue that the disparity between
Defendants' sentences and those of similarly-situated co-defendants
manifests an unreasonable application of 18 U.S.C. § 3553(a)(6),6
which requires the district court to "consider the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." They claim
that the district court did not explain how the least culpable
conspirators ended up with the harshest sentences. But the district
court did supply a sufficient reason for the disparity between
6 Presumably because his sentence was four years shorter than those given to the Alejandro brothers, Severino does not argue that the court erred in failing to reduce his base offense level as it reduced the levels for the Alejandro brothers.
Defendants and other conspirators: namely, the other conspirators
pled guilty before trial.7 See United States v. Vaszquez-Rivera, 470
F.3d 443 , 449 (1st Cir. 2006) ("Although a district court may
consider disparities among co-defendants in determining a sentence,
we do not find [a defendant's] sentence to be unreasonable simply
because his co-defendants agreed to help the government in exchange
for reduced sentences."); see also United States v. Yeje-Cabrera,
430 F.3d 1 , 26–27 (1st Cir. 2005) ("[A] defendant simply has no
right to a sentence, after trial, that is as lenient as a sentence
he could have had earlier in a plea bargain.").
D. Public Trial Right
In his brief to this court, Josué Alejandro argues for the
first time that the district court excluded Defendants' family
members from the courtroom during jury selection.8 Because
Defendants did not object at trial, we review only for plain error.
See United States v. Colon, 744 F.3d 752 , 757 (1st Cir. 2014).
Here, Defendants trip at the first hurdle of plain error review.
The record fails to support their claim that the courtroom was ever
closed, during voir dire or at any other time.
7 The district court considered additional factors, including that Eddie Alejandro provided weapons and transportation. 8 Julio Severino and Eddie Alejandro subsequently incorporated this argument into their briefs.
E. Two-level Firearm Sentencing Enhancement
Defendants were each subject to a two-level enhancement
under United States Sentencing Guidelines section 2D1.1(b)(1) for
the foreseeable presence of a firearm during the drug offense.
"That guideline applies if a dangerous weapon was possessed during
the course of a drug-trafficking offense, provided that the presence
of the weapon was known to, or reasonably foreseeable to, the
defendant." United States v. Fermin, 771 F.3d 71 , 82 (1st Cir. 2014)
(citing United States v. Quiñones-Medina, 553 F.3d 19 , 23 (1st Cir.
2009)). The Alejandro brothers were acquitted of a firearm charge,
but were still subject to the two–level enhancement. Severino was
not charged with the firearm violation, but was also ultimately
subject to the enhancement. Defendants acknowledge the state of the
law on this issue, but seek to preserve their claim for Supreme
Court review. We review the district court's Sentencing Guidelines
interpretation de novo and its factual findings for clear error.
United States v. Ortiz-Torres, 449 F.3d 61 , 77 (1st Cir. 2006).
As the law now plainly stands, "acquitted conduct, if
proved by a preponderance of the evidence, . . . may form the basis
for a sentencing enhancement." United States v. Gobbi, 471 F.3d
302 , 314 (1st Cir. 2006). The district court's factual findings
were not clearly erroneous. Eddie and Josué Alejandro brought a
vehicle to the pier that had three weapons hidden in a secret
compartment. Eddie was arrested with a firearm on his person.
Severino similarly was with these other men throughout planning
meetings, on the night of the drug deal, and was hired in part to
provide additional security. With this record, the district court
did not clearly err in finding that Severino also foresaw that a
firearm would be present in the course of the offense.
F. Recent Amendments to the Federal Sentencing Guidelines
Defendants filed a supplemental brief seeking to reduce
their sentences based on Amendment 782 to the Sentencing Guidelines,
which became effective on November 1, 2014, and retroactively
reduced most drug quantity base offense levels by two levels. See
U.S. Sentencing Guidelines Manual. app. C. After oral argument, the
government replied, conceding that this court should remand to
determine whether to reduce Defendants' sentences.
District courts "may" reduce prison terms if the
defendant's sentence was "based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . if such
a reduction is consistent with applicable policy statements issued
by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The
Sentencing Commission permits a sentence reduction under section
3582(c)(2) if an amendment, declared retroactive, lowers a
defendant's applicable Guidelines range. U.S. Sentencing Guidelines
Manual § 1B1.10(a)(1). The Sentencing Commission expressly made
Amendment 782 retroactive, effective as of November 1, 2015.9 See
id. § 1B1.10(d), (e)(1) (2014). When considering a sentence
reduction, the district court "shall substitute the amended
Guidelines range for the initial range and shall leave all other
guideline application decisions unaffected." Dillon v. United
States, 560 U.S. 817 , 831 (2010) (quoting U.S. Sentencing Guidelines
Manual § 1B1.10(b)(1)).
Defendants' sentences were based on a sentencing range now
reduced by Amendment 782. We therefore grant Defendants' unopposed
request that we remand their cases back to the district court for a
determination of whether and to what extent a sentencing reduction
is warranted for that reason.
For the foregoing reasons the judgment of the district
court is affirmed. These cases are nevertheless remanded to the
district court so that it may consider a sentencing reduction in
accord with Amendment 782.
- Concurring Opinion Follows -
9 Amendment 782 became immediately effective for defendants sentenced on or after November 1, 2014. For defendants who were sentenced prior to the effective date, like the Alejandro brothers, Amendment 782 does not have retroactive effect until November 2015. U.S. Sentencing Guidelines Manual § 1B1.10(e)(1) (2014). A district court may accept motions for retroactive application prior to November 1, 2015, provided that any potential sentencing reduction not take effect until November 2015. Id. § 1B1.10 cmt. n.6.
TORRUELLA, Circuit Judge (Concurring). I join the court's
opinion but write separately to note my continued disagreement with
the current state of the law regarding certain sentencing
enhancements. As I have stated previously, see generally United
States v. St. Hill, 768 F.3d 33 (1st Cir. 2014) (Torruella, J.,
concurring), and thus will not rehash in detail here, I believe it
is inappropriate and constitutionally suspect to enhance a
defendant's sentence based on conduct that the defendant was either
(in the case of Severino) not charged with or (in the case of the
Alejandro brothers) acquitted of. The two-level "gun-bump"
enhancement falls squarely into this category.