United States v. Trinidad-Acosta

2014 | Cited 0 times | First Circuit | December 5, 2014

United States Court of Appeals For the First Circuit

Nos. 13-1830 13-2056

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL TRINIDAD-ACOSTA, ED COGSWELL,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

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

Before

Torruella, Dyk,* and Thompson, Circuit Judges.

David W. Ruoff, with whom Howard & Ruoff, PLLC, was on brief, for appellant Trinidad-Acosta. Hunter J. Tzovarras for appellant Cogswell. Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

December 5, 2014

* Of the Federal Circuit, sitting by designation.

TORRUELLA, Circuit Judge. Defendants-Appellants Manuel

Trinidad-Acosta ("Trinidad") and Ed Cogswell ("Cogswell") were

convicted for their involvement in a conspiracy to distribute

cocaine base (or "crack cocaine"). They appeal their convictions

and sentences, citing a number of alleged trial and sentencing

errors. We have reviewed their claims carefully and do not find

merit in any of them. Accordingly, we affirm.

I. Facts1

Sometime around September 2010, two New York residents,

in coordination with a local drug dealer, set up a business for

distributing crack cocaine in Bangor, Maine. The conspiracy's

leader, Dawlin Cabrera ("Cabrera"), remained in New York, from

where conspiracy members shipped packages of crack cocaine to Maine

by bus. At its peak, the conspiracy sold close to 300 grams of

crack cocaine each month. Initially, the drugs were distributed

from a number of residences in Bangor, although by December 2010

the sale and storage of the crack cocaine arriving from New York

was centralized in a single location: 100B Ohio Street.

The conspiracy leaders recruited a number of individuals

to participate in its local Bangor operations. Among those

recruited was Trinidad -- known to conspiracy members as "Fish" or

"Peje." Trinidad lived at the 100B Ohio Street apartment for a

1 We briefly summarize the relevant facts, reserving for our analysis a more detailed discussion of the facts relevant to each issue presented on appeal.

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portion of the conspiracy's duration, participating in the storage

and sale of crack cocaine at the residence.

A bank account was opened for Cabrera at the local Bank

of America branch using an alias. Trinidad would deposit into that

account cash proceeds from the sale of crack cocaine; Cabrera would

then withdraw this money from New York City branches of the bank.

Co-defendant Cogswell, a daily crack cocaine user,

participated in the conspiracy as a salesman. He would regularly

purchase bundles of crack cocaine from the New York importers and

resell the drug to local customers in and around Bangor. Cogswell

also lived for some time at the 100B Ohio Street apartment, and he

too made some cash deposits into Cabrera's bank account.

Jennifer Holmes ("Holmes") regularly purchased crack

cocaine at the Ohio Street address from either Trinidad, Cogswell,

or another member of the conspiracy. Holmes purchased firearms for

Trinidad and for some other members of the conspiracy, for which

she was compensated with crack cocaine.

By the summer of 2011, law enforcement had detected the

drug distribution operation and had developed confidential

informants. In November 2011, law enforcement raided the Ohio

Street apartment. After some arrests were made, most of the co-

conspirators provided information and agreed to cooperate; Trinidad

and Cogswell did not.

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A grand jury indicted Trinidad and Cogswell on one count

of conspiracy to possess with the intent to distribute twenty-eight

grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(b)(1)(B) and § 846. Trinidad was also indicted on one count

of possessing a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c).

Both defendants were tried together. The trial evidence

consisted of testimony from multiple cooperating co-conspirators

who operated out of the 100B Ohio Street apartment, each of whom

identified Trinidad and Cogswell as members of the conspiracy,

except for Cabrera, who identified Cogswell as a drug user and

customer of the conspiracy. There was also evidence that Trinidad

had signed the lease for the Ohio Street apartment, paid the

monthly rent in cash, and was responsible for monitoring drugs

stored in the apartment.

In addition, the government presented evidence that both

defendants had deposited drug proceeds into Cabrera's bank account

and that they had both made multiple crack cocaine deliveries.

Finally, there was testimony from Holmes, who, following a request

from Cogswell, had purchased a gun for Trinidad. This gun was

recovered by the police from an apartment in which Trinidad was

staying.

After a five-day trial, both defendants were found guilty

as charged. At sentencing, Trinidad was found responsible for 4.9

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kilograms of crack cocaine, triggering a base offense level of

thirty-six. A two-level enhancement was applied under U.S.

Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(12) for

maintaining a premises for the purpose of distributing a controlled

substance (known as the "crack house enhancement"), increasing the

offense level to thirty-eight. Since Trinidad had a criminal

history category of I, the applicable advisory guidelines

sentencing range ("GSR") was 235-293 months of imprisonment for the

conspiracy count and 60 months for the firearm count, for a total

of 295-353 months. The government requested that Trinidad be

sentenced to 295 months, while Trinidad asked for a 180-month

sentence. Trinidad was ultimately sentenced to 240 months (180

months on Count One and the statutorily required consecutive 60

months on Count Two) -- almost five years below the low end of the

GSR.

For his part, Cogswell was found responsible for 841

grams of crack cocaine, yielding a base offense level of thirty-

four. The district court added a two-level obstruction-of-justice

enhancement for writing a threatening letter to a testifying

witness after trial, and a two-level increase for possession of a

firearm, elevating the offense level to thirty-eight. He had a

criminal history category of II, which resulted in a GSR of 262-327

months. Cogswell was sentenced to 180 months of imprisonment --

almost seven years below the low end of the GSR.

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II. Discussion of Trinidad's Claims

A. Denial of Motion for a Mistrial

Trinidad argues that the district court erred in denying

his motion for a mistrial. We disagree.

1. Background

On January 30, 2013, Holmes testified against the

defendants, as part of her cooperation agreement with the

government.2 During direct examination, Holmes identified

Trinidad, who is a dark-skinned Dominican, as well as Cogswell, who

is Caucasian, as people involved in the conspiracy.

When the prosecutor asked Holmes if Trinidad was in the

courtroom, Holmes answered in the affirmative. When asked to

describe an article of clothing that he was wearing, Holmes

indicated that she could not do so, because she could not see him.

The prosecutor then asked Holmes to stand up so that she could see

what he was wearing from the waist up. When she stood up, Holmes

immediately identified the clothing that Trinidad was wearing.

Holmes had more difficulty identifying Cogswell.

Initially, Holmes said that she could not determine whether

Cogswell was in the courtroom, because she was nearsighted and

needed glasses, which she did not have. Holmes then walked off the

2 Holmes was charged with three counts of providing false information regarding her purchases of firearms for Trinidad and other members of the conspiracy. Holmes had pleaded guilty to these charges and was awaiting sentencing.

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witness stand and got closer to the people in the courtroom, but

still could not identify Cogswell. Subsequently, the prosecutor,

who was also nearsighted, offered Holmes his glasses. Upon putting

on the prosecutor's glasses, Holmes testified that she could see

very clearly, and identified Cogswell.

On cross-examination, Trinidad's attorney tried to attack

Holmes's credibility -- regarding her identification of Trinidad --

by suggesting that Holmes identified Trinidad more easily than

Cogswell because Trinidad was the only dark-skinned person in the

courtroom. Holmes, however, responded that she was able to

identify Trinidad more easily because "[she] walk[s] past him every

day. [She is] in jail with him."3

3 The exact exchange was as follows: Q: When you came in and sat down, you didn't have your glasses with you, correct? A. No, I don't own any glasses. . . . Q: And I take it from your testimony you're nearsighted? A: Yeah. . . . Q: And when you first came in, within a fairly short period of time, [the prosecutor] asked you to identify the person you knew as Fish, correct? A: Yes. . . . Q: And you knew, based on your cocaine use, that almost all of the people that the government was interested in were black, weren't they? A: Hm, no. . . . Q: So who was in charge of the group? A: I think D was. Q: And in addition to D, there were some other dark-skinned individuals, weren't there? A: Yes.

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Trinidad then moved for a mistrial on account of Holmes's

statement that she walked past Trinidad every day in jail. While

he recognized that Holmes's statement was made "spontaneously" and

"without any assistance from the government," Trinidad argued that

it was the first time that anyone had referred to him being in

custody and that it warranted a mistrial because of the prejudicial

effect of having the jury know that he was in custody.

The district court denied Trinidad's request for a

mistrial. It noted that Trinidad's attorney was attacking Holmes's

credibility and that her testimony was a direct and natural

response to defense counsel's suggestion that she was able to

identify Trinidad more easily than Cogswell because of Trinidad's

skin color. The trial court reasoned that Trinidad could not, by

his own questioning, elicit a response that he did not like and

then turn around and move for a mistrial based on the response.

The government suggested that the trial court consider a

limiting instruction on Holmes's answer. In response, the court

noted that giving a limiting instruction could bring more attention

Q: We can even call them, in common parlance, black folk, can't we? A: They're Dominican. Q: Okay. But they are black. A: Yes. Q: They're not white Dominicans. A: No. Q: But you were -- despite your inability to see Mr. Cogswell from roughly the same distance, you could instantly identify my client. A. I walk past him every day. I'm in jail with him.

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to the testimony, which could have escaped the jury, and told

Trinidad that it was completely up to him to decide whether he

wanted a limiting instruction given to the jury. Trinidad decided

not to request a limiting instruction.

2. Applicable Law and Analysis

"Declaring a mistrial is a last resort, only to be

implemented if the taint is ineradicable, that is, only if the

trial judge believes that the jury's exposure to the evidence is

likely to prove beyond realistic hope of repair." United States v.

Díaz, 494 F.3d 221 , 227 (1st Cir. 2007) (quoting United States v.

Sepúlveda, 15 F.3d 1161 , 1184 (1st. Cir. 1993)). When reviewing

the denial of a request for a mistrial, "we consider the totality

of the circumstances to determine whether the defendant has

demonstrated the kind of clear prejudice that would render the

court's denial of his motion for a mistrial a manifest abuse of

discretion." United States v. Dunbar, 553 F.3d 48 , 58 (1st Cir.

2009) (internal quotation marks omitted) (quoting United States v.

Freeman, 208 F.3d 332 , 339 (1st Cir. 2000)). "In conducting this

inquiry, we are mindful that the trial court has a superior point

of vantage, and that it is only rarely -- and in extremely

compelling circumstances -- that an appellate panel, informed by a

cold record, will venture to reverse a trial judge's on-the-spot

decision." Freeman, 208 F.3d at 339 (internal quotation marks

omitted); see also United States v. Pierro, 32 F.3d 611 , 617 (1st

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Cir. 1994) ("Battles over the need for a mistrial most often will

be won or lost in the district court."). We examine "the context

of the improper remark, whether it was deliberate or accidental,

the likely effect of the curative instruction, and the strength of

the evidence against the appellants." United States v. Cresta, 825

F.2d 538 , 549-50 (1st Cir. 1987). Deference to the district

court's ruling is particularly appropriate where, as here, the

request for mistrial is based on a claim that "some spontaneous

development at trial may have influenced the jury in an improper

manner." Díaz, 494 F.3d at 226.

Trinidad claims that Holmes's statement -- that she had

seen him in jail every day -- interfered with his constitutional

right to a presumption of innocence and should be considered

"highly prejudicial." He offers three alleged reasons:(1) evidence

that Trinidad was in jail with Holmes created the chance that the

jury would infer guilt by association; (2) the jury was free to

infer that Trinidad's incarceration was the result of the judicial

determination of Trinidad's dangerousness or guilt; and (3) if the

jury did not think that Trinidad was detained on the pending

charges, they were free to speculate that he was in fact

incarcerated on other charges. Trinidad contends that the trial

court had no option but to order a mistrial.

Trinidad relies on Estelle v. Williams, 425 U.S. 501 ,

503-05 (1976), to support his proposition that a mistrial was

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warranted. In Estelle, the Supreme Court held that forcing a

defendant to wear prison garb throughout his trial undermines the

defendant's presumption of innocence because such clothing is a

constant reminder of the defendant's condition as a pretrial

detainee. Id. at 504. Trinidad alleges that Holmes's brief

reference to his incarceration had the same effect as the prisoner

clothing at issue in Estelle. We disagree.

The possible effect on the jury of Holmes's fleeting

comment regarding Trinidad's pre-trial incarceration status is

markedly different from that of a defendant wearing prison clothing

throughout his entire trial. The Supreme Court held in Estelle

that the clothing would be a "constant reminder" of the defendant's

condition as a pretrial detainee. 425 U.S. at 504 (emphasis

added). Here, on the contrary, we are dealing with a single,

isolated statement that was made and put to rest, and that did not

provide any details about Trinidad's incarceration. A number of

cases -- both from this and other circuits -- support this crucial

distinction and counsel that we reject Trinidad's argument. See,

e.g., United States v. De Jesús Mateo, 373 F.3d 70 , 73 (1st Cir.

2004) (holding that there was no abuse of discretion in denying

mistrial based on a comment that the defendant was in prison where

the comment "provided the jury with little detail"); see also

United States v. Deandrade, 600 F.3d 115 , 118 (2d Cir. 2010)

("[T]he rule that emerges is that brief and fleeting references [to

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the defendant's incarceration] are generally allowed, but extended

comment is impermissible."). Moreover, Trinidad's pretrial

incarceration was not mentioned by any other witness. Nor was it

referenced by the government during trial.

The context in which Holmes made the comment at issue

also counsels against granting a mistrial. Holmes made the comment

in response to the suggestion, by Trinidad's attorney, that her

identification of Trinidad was motivated by Trinidad's skin color.

Faced with an attack on her credibility, Holmes felt compelled to

explain that she could identify Trinidad more easily than Cogswell

because she walked past him every day while she was in jail with

him. It is well-established that when, as here, defense counsel

elicits a response from a witness,4 the defense cannot then

"complain of the alleged error." Cresta, 825 F.2d at 552. Since

the thrust of the cross-examination was an effort to undermine the

basis for Holmes's identification, we hold that Trinidad did not

suffer clear prejudice where Holmes merely provided the basis for

her ease in making the identification, which was different than the

one suggested by Trinidad.

4 Although Trinidad acknowledges that Holmes's comment was elicited on cross-examination, he alleges that it was not directly responsive of the question posed to her. He claims that his question merely warranted a simple "yes" or "no" answer. We think otherwise, since her need to defend her credibility from his attack required something more than a simple "yes" or "no" -- it required an explanation. Holmes's response was a natural one given the circumstances.

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Furthermore, if Trinidad really thought that Holmes's

brief reference to his pretrial incarceration was so highly

prejudicial, he could have accepted the district court's invitation

of a curative instruction. After all, such an instruction is

"ordinarily an appropriate method of preempting a mistrial."

United States v. Sotomayor-Vázquez, 249 F.3d 1 , 18 (1st Cir. 2001).

That he decided that no curative instruction would be less

prejudicial than giving one, and thus drawing attention to Holmes's

comment, implies that any prejudice stemming from Holmes's comment

was not as extreme as Trinidad alleges it was.

Finally, we have held that "strong independent evidence

of guilt tends to lessen the effect of an improper comment by a

witness, making a mistrial unnecessary." Díaz, 494 F.3d at 227.

Here, the independent evidence against Trinidad was overwhelming.

This evidence included testimony from several cooperating witnesses

implicating Trinidad in the conspiracy, the contract showing that

Trinidad leased the crack house on Ohio Street, documents showing

bank deposits made by Trinidad into the bank account of the leader

of the conspiracy, and proof of multiple controlled crack sales by

Trinidad to a confidential informant. When viewed in light of the

overwhelming nature of the evidence against Trinidad, it is

unlikely that one isolated and vague comment regarding his status

as a pretrial prisoner would irreparably sway the jury's opinion of

Trinidad from innocent to guilty.

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Considering the totality of the circumstances, we

conclude that Trinidad has not shown that Holmes's comment

constituted clear prejudice that would render the district court's

denial of his request for a mistrial a manifest abuse of

discretion. Thus, we affirm the district court's denial of

Trinidad's request for a mistrial.

B. The Reasonableness of Trinidad's Sentence

Trinidad also argues that his sentence, which was almost

five years below the advisory GSR, is unreasonable in light of his

age, the sentencing factors in 18 U.S.C. § 3553(a), his role in the

conspiracy, and his criminal record.

1. Standard / Scope of Review

We review the reasonableness of a criminal sentence under

an abuse-of-discretion standard. Gall v. United States, 552 U.S.

38 , 51 (2007); United States v. Rivera-Moreno, 613 F.3d 1 , 8 (1st

Cir. 2010). This is a deferential standard, which recognizes the

sentencing court's "superior coign of vantage." United States v.

Martin, 520 F.3d 87 , 92 (1st Cir. 2008) (citation omitted). "In

reviewing a sentence, we seek to ensure that it is both

procedurally sound and substantively reasonable." United States v.

Dávila–González, 595 F.3d 42 , 47 (1st Cir. 2010) (citation

omitted). A sentence is procedurally sound so long as the district

court did not commit a procedural error in arriving at the

sentence. Examples of procedural errors include: "failing to

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calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range." Rivera-Moreno, 613 F.3d at 8 (quoting Gall, 552

U.S. at 51). "When assessing procedural reasonableness, our abuse

of discretion standard is multifaceted. [W]e review factual

findings for clear error, arguments that the sentencing court erred

in interpreting or applying the guidelines de novo, and judgment

calls for abuse of discretion simpliciter." United States v.

Serunjogi, 767 F.3d 132 , 142 (1st Cir. 2014) (alteration in

original) (internal citations omitted).

Once we determine that the district court committed no

significant procedural error, we then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion

standard. Id. "When conducting this review, we take into account

the totality of the circumstances, including the extent of any

variance from the GSR." Rivera-Moreno, 613 F.3d at 8 (citing Gall,

552 U.S. at 51). "The linchpin of a reasonable sentence is a

plausible sentencing rationale and a defensible result." United

States v. Ramos, 763 F.3d 45 , 58 (1st Cir. 2014) (internal

quotation marks omitted) (quoting Martin, 520 F.3d at 96).

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2. Analysis

Trinidad does not raise any claim of procedural error.

Rather, he complains about the ultimate sentencing determination.

Although Trinidad acknowledges that the trial court engaged in "a

thoughtful analysis" and "discussed in detail the sentencing

factors i[t] considered in fashioning its sentence of 240 months,"

he argues that the district court's assessment of his role in the

conspiracy was erroneous since he was a "youthful, low-level drug

peddler with a minor record," who speaks "very little English" and,

thus, should have received a greater downward variance than the one

accorded by the trial court.

"[A] defendant who attempts to brand a within-the-range

sentence as unreasonable must carry a heavy burden." United States

v. Pelletier, 469 F.3d 194 , 204 (1st Cir. 2006); see also United

States v. Clogston, 662 F.3d 588 , 592-93 (1st Cir. 2011)

("Challenging a sentence as substantively unreasonable is a

burdensome task in any case, and one that is even more burdensome

where, as here, the challenged sentence is within a properly

calculated GSR."). Trinidad's burden, however, is even heavier

because his sentence was below the applicable advisory GSR. See

United States v. Merritt, 755 F.3d 6 , 12 (1st Cir. 2014) ("It is a

rare below-the-range sentence that will prove vulnerable to a

defendant's claim of substantive unreasonableness." (quoting United

States v. King, 741 F.3d 305 , 310 (1st Cir. 2014))). He "must

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adduce fairly powerful mitigating reasons and persuade us that the

district court was unreasonable in balancing pros and cons despite

the latitude implicit in saying that a sentence must be

reasonable." United States v. Madera-Ortiz, 637 F.3d 26 , 30 (1st

Cir. 2011) (internal quotation marks omitted).

Trinidad has not carried his burden. The district court

carefully considered all relevant factors and explained in detail

the basis for its conclusion that Trinidad was not a "soldier" or

a "low-level peddler," as he claimed to be. The district court

emphasized that Trinidad had three major roles in the conspiracy,

consisting of: (1) "watch[ing] the drugs coming in and out and

watch[ing] other people with the drugs" (the "Babysitter Role");

(2) actual drug dealing; and (3) depositing the drug proceeds in

Cabrera's bank account (the "Depositor Role"). It noted that the

Depositor Role was a "pretty significant role" that put him in a

different level than simply an "outside soldier." The district

court also noted that Trinidad carried a gun in furtherance of the

conspiracy, which also put him in a category different from that of

other lower-level conspirators.

Trinidad tries to minimize his Depositor Role and his

carrying of a gun by arguing that he sometimes required help at the

bank due to his lack of proficiency in English, that the conspiracy

leaders viewed him as dispensable since he was required to go into

the open with large sums of money, and that the reason for getting

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the gun was "opaque." However, Trinidad's different view about the

significance of his roles does not mean that the district court's

view was unreasonable.

As Trinidad recognizes, in making its determination the

district court engaged in "a thoughtful analysis." It explained

that it had taken into consideration each of the factors set forth

in 18 U.S.C. § 3553(a), including the obligation to impose a

sentence that is sufficient, but no greater than necessary to

achieve the purposes of the law. The district court also explained

in detail the sentencing factors of Trinidad's past, his age, his

roles in the conspiracy, and the need for punishment. After

providing this explanation, the district court concluded that the

advisory GSR was too harsh and imposed a sentence almost five years

below the bottom of the advisory GSR. This was a defensible

result, and the court stated a plausible rationale for reaching it.

Ramos, 763 F.3d at 58. We therefore affirm his sentence.5

5 In the summary of the argument section of his brief, Trinidad briefly alleges that his sentence constitutes a punishment for going to trial, since another co-conspirator whom he asserts was similar in "level" to him received an 84-month sentence. Although Trinidad does not identify the "similar in level co-conspirator," we must note that many of Trinidad's co-conspirators received downward departures for substantial assistance to the government and that Jacob García, who received an 84-month sentence, was one of them. Cooperation with the government is a legitimate basis for a disparity in sentence. United States v. Vázquez-Rivera, 470 F.3d 443 , 449 (1st Cir. 2006). In any event, Trinidad did not develop this argument in his brief and, therefore, it is waived. See United States v. Martínez, 762 F.3d 127 , 132 n.2 (1st Cir. 2014) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."

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III. Discussion of Cogswell's Trial Issues

A. Sufficiency of the Evidence

Cogswell challenges the sufficiency of the evidence

supporting his conviction. He argues that the district court erred

in denying his motion for acquittal because "the evidence only

supported a finding that [he] was a crack cocaine user and customer

of the conspiracy."

1. Standard / Scope of Review

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

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

Ulloa, 760 F.3d 113 , 118 (1st Cir. 2014). In our review,

we examine the evidence, both direct and circumstantial, in the light most favorable to the jury's verdict. We do not assess the credibility of a witness, as that is a role 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). "[D]efendants

challenging convictions for insufficiency of evidence face an

uphill battle on appeal." United States v. Lipscomb, 539 F.3d 32 ,

(alteration in original) (quoting United States v. Zannino, 895 F.2d 1 , 17 (1st. Cir. 1990))).

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40 (1st Cir. 2008) (citation omitted) (internal quotation marks

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").

"To sustain a drug conspiracy conviction, the government

must prove beyond a reasonable doubt that an agreement existed to

commit the underlying offense and that the defendant elected to

join the agreement, intending that the underlying offense be

committed." United States v. Liriano, 761 F.3d 131 , 135 (1st Cir.

2014). "An agreement to join a conspiracy may be express or tacit,

and may be proved by direct or circumstantial evidence." Id.

"[E]ach coconspirator need not know of or have contact with all

other members, nor must they know all of the details of the

conspiracy or participate in every act in furtherance of it." Id.

We have held that "the continuing purchase and sale relationship

between [the dealers and the defendant], and the dealers' knowledge

of [the defendant's] re-distribution, would permit a jury to infer

both an agreement between them that [the defendant] possess the

drugs and the requisite intent as to distribution." United States

v. Symonevich, 688 F.3d 12 , 24 (1st Cir. 2012) (alterations in

original) (citation omitted).

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2. Analysis

Cogswell alleges that there was insufficient evidence

that he agreed to join the conspiracy's goal and that the evidence

only supported a finding that he was a crack cocaine user and

customer of the conspiracy. In support of his argument, Cogswell

emphasizes the testimony of Cabrera, and discredits the testimony

of five other witnesses who testified that Cogswell was indeed a

member of the conspiracy. Cogswell undervalues the evidence

against him.

Cabrera, described as the leader of the conspiracy,

testified that he knew Cogswell because he recalled an occasion

when he was buying drugs for personal use. Cabrera did not live in

Bangor, although he visited it at times. The other five witnesses

testified that a continuing purchase and sale relationship existed

between Cogswell and the dealers. Specifically, they testified

that they would see Cogswell almost every day to obtain crack

cocaine to sell; that Cogswell was one of the people involved in

the drug operation and that he was buying either $400 or $800 of

crack cocaine at a time; that Cogswell "belonged to the company, he

was working together with [them], moving crack and making

deliveries;" that Cogswell was provided with packets of crack

cocaine that he would resell for $50 each and that he had traded a

gun for ten bags of drugs; that Cogswell was "selling crack" that

the New York importers were providing; and that Cogswell was one of

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the people from whom Holmes would buy crack cocaine at the 100B

Ohio Street apartment. Unlike Cabrera, these other five witnesses

lived in Bangor.

Cogswell urges us to discredit the testimonial evidence

from these five witnesses because they were testifying after

agreeing to cooperate with the government. However, he fails to

recognize that Cabrera was in the same situation. Furthermore,

Cogswell cross-examined these witnesses about their cooperation

agreements, and the district court cautioned that the testimony of

cooperating witnesses should be considered with "particular

caution." It was for the jury to decide whether to credit the

testimony of Cabrera (who lived in New York and, thus, was not

present in Bangor all the time) or that of the five other witnesses

(who spent more time in Bangor). See United States v. Hernández,

218 F.3d 58 , 66 n.5 (1st Cir. 2000) ("It is not our role to assess

the credibility of trial witnesses or to resolve conflicts in the

evidence, instead we must resolve all such issues in favor of the

verdict."). Besides, "[t]he testimony of a single witness can be

enough to support the government's case, and even the

uncorroborated testimony of an informant may suffice to establish

the facts underlying a defendant's conviction." United States v.

Meises, 645 F.3d 5 , 12 (1st Cir. 2011) (internal citations and

quotation marks omitted).

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In addition, the jury's verdict is supported by other

evidence, including conspiracy drug ledgers and expense sheets

showing that Cogswell had received twenty-bag quantities of crack

cocaine from the New York exporters, deposit slips showing that

Cogswell deposited over $26,000 in cash into Cabrera's bank

account, and the fact that Cogswell resided in the "crack house."

In this case, the prosecution alleged that Cogswell

participated in the conspiracy by repeatedly purchasing crack

cocaine from the New York importers for resale. Based on all the

evidence presented, we conclude that a rational factfinder could

conclude beyond a reasonable doubt that Cogswell knowingly and

voluntarily joined the charged conspiracy. Thus, we affirm the

district court's denial of Cogswell's Rule 29 motion.

B. Government's Closing Argument

Cogswell alleges that during closing arguments, the

government misrepresented statements made by him to law enforcement

during an interview, and that the resulting prejudicial effect

warrants that his conviction and sentence be vacated. We disagree.

1. Background

Agent Shawn Green ("Green") interviewed Cogswell on

November 2, 2011, after law enforcement raided the 100B Ohio Street

apartment. Green testified at trial that, during that interview,

Cogswell "admitted to using marijuana" and said that "in the past,

he had picked up pot for other people." Green also testified that

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he had asked Cogswell if he used cocaine and that "[i]nitially,

[Cogswell] denied it, though he admitted he had in the past and

. . . made a statement that he had used it the week prior." Green

further testified that "during that line of questioning where

[Cogswell] said that at times he would get things for other people,

[Cogswell] stated he's had that cocaine the week before to take it

to a party on Essex Street in Bangor." Finally, Green testified

that Cogswell told him that he was living at 100 Ohio Street with

his girlfriend.

During closing arguments, the government misquoted Green

as having testified that Cogswell: (1) "admitted he got some

cocaine the week before and brought it to a party to help someone

out;" and (2) "said he, [his girlfriend], and Jacob lived at the

house. He didn't mention [the other conspiracy members residing at

the house]."

These statements were made in the middle of the

government's closing argument. Cogswell waited until the government

finished its closing argument to object at sidebar to the statement

regarding who lived in the 100B Ohio Street apartment. He did not

specifically object to the statement of his taking drugs to a party

to help someone out. The district court told Cogswell that it had

already instructed the jury that "what the lawyers say is not

evidence and that they're to base their verdict solely on the

evidence." The district court also advised Cogswell that he was

-24-

free in his closing argument to argue that what Green had stated

was not before the jury and that the jury should not consider it.

Cogswell followed the suggestion.

Cogswell contends that the government's misstatements

suggest that he admitted to dealing cocaine and that he attempted

to cover up for other conspiracy members. Cogswell argues that,

although these statements were not deliberate or recurrent, they

did interfere greatly with the heart of his defense (that he was

merely a user, not a dealer). He complains that the court issued

no "explicit or cautionary instruction" after the objection to

these statements.

2. Standard / Scope of Review

When a contemporaneous objection to a challenged comment

is made, we review de novo whether the comment was improper.

United States v. Díaz-Castro, 752 F.3d 101 , 110 (1st Cir. 2014)

(citing United States v. Glover, 558 F.3d 71 , 76 (1st Cir. 2009));

United States v. Appolon, 695 F.3d 44 , 65-66 (1st Cir. 2012). If

we conclude that the comment was improper, we then review for

harmless error. Díaz-Castro, 752 F.3d at 110. Under the harmless-

error standard, reversal is warranted only if the comment has

"likely affected the trial's outcome." United States v. Ayala-

García, 574 F.3d 5 , 16 (1st Cir. 2009) (quoting United States v.

Vázquez-Rivera, 407 F.3d 476 , 486 (1st Cir. 2005)).

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If, on the contrary, no contemporaneous objection was

made, we review under the four-pronged plain-error standard.

United States v. Hilario-Hilario, 529 F.3d 65 , 74-75 (1st Cir.

2008) (citing United States v. Allen, 469 F.3d 11 , 16 (1st Cir.

2006)). "An unpreserved error is deemed plain (and, therefore, to

affect substantial rights) only if the reviewing court finds that

it skewed the fundamental fairness or basic integrity of the

proceeding below in some major respect." United States v. Taylor,

54 F.3d 967 , 972 (1st Cir. 1995) (citing United States v. Griffin,

818 F.2d 97 , 100 (1st Cir. 1987)); see also United States v. Frady,

456 U.S. 152 , 163 n.14 (1982) (holding that the plain-error

doctrine applies in those circumstances in which, absent appellate

intervention, a miscarriage of justice would otherwise result). To

make this determination, we consider all attendant circumstances

with emphasis on: "(1) the extent to which the prosecutor's conduct

is recurrent and/or deliberate; (2) the extent to which the trial

judge's instructions insulated the jury against, or palliated, the

possibility of unfair prejudice; and (3) the overall strength of

the prosecution's case, with particular regard to the likelihood

that any prejudice might have affected the jury's judgment."

Taylor, 54 F.3d at 977; United States v. Giry, 818 F.2d 120 , 133

(1st Cir. 1987).

"[T]he jurisprudence of plain error invests substantial

discretion in the court of appeals." Taylor, 54 F.3d at 973. This

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discretion should be exercised sparingly, and should be reserved

for the correction of those few errors that "so poisoned the well

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

Mejía-Lozano, 829 F.2d 268 , 274 (1st Cir. 1987).

3. Analysis

The government argues that plain-error review applies to

Cogswell's challenge of both statements. It alleges that Cogswell

never objected to the statement regarding his taking drugs to a

party for someone else and that, although he objected to the

statement regarding who lived at the apartment, his objection came

too late because he waited until the government had finished its

closing argument to raise it.

We agree with the government that Cogswell did not object

to the statement regarding his taking drugs to a party for someone

else. The record shows that Cogswell's objection made reference

only to the statement regarding who lived at the apartment. Thus,

his challenge to the former statement is subject to plain-error

review. However, contrary to the government's assertions, Cogswell

timely objected to the statement regarding who lived in the

apartment. Although he did not object to it immediately after the

statement was made, we find that his objection, made at the end of

the prosecution's closing argument, was sufficiently timely to

preserve the issue for appeal. See United States v. Mandelbaum,

803 F.2d 42 , 44 n.1 (1st Cir. 1986) (holding that the objection had

-27-

been sufficiently timely when the defense waited until the

government's rebuttal to object to a statement made during the

government's closing statement). Thus, we review de novo whether

this statement was improper and, if we conclude that it was, we

review for harmless error. Díaz-Castro, 752 F.3d at 110.

As Cogswell recognizes, the statement regarding his

taking drugs to a party for someone else was isolated in nature and

there is no evidence that it was deliberate. In fact, it is not

even clear that it was a misstatement of the evidence. Green

testified that Cogswell had in the past picked up marijuana for

other people. The government then asked about cocaine. Green

responded that "during that line of questioning where he said that

at times he would get things for other people, [Cogswell] stated

he's had that cocaine the week before to take it to a party on

Essex Street in Bangor." Thus, the government argued that Cogswell

had made the statement about bringing cocaine to the party in the

context of a question about obtaining drugs for others.

Also, the district court's instructions to the jury

before beginning closing arguments were strong and explicit. At

the outset, the court made clear that statements and arguments of

counsel were not evidence, and instructed the jury to consider only

the evidence in the record. See Giry, 818 F.2d at 134 ("finding

the impact of prosecutorial misstatements mitigated by instructions

telling the jury, among other things, to '[b]ear in mind that

-28-

arguments of counsel . . . are not evidence'" (quoting United

States v. Maccini, 721 F.2d 840 , 847 (1st Cir. 1983))).

Furthermore, we have already concluded that the evidence against

Cogswell was strong, which makes it less likely that any

misstatement could have affected the outcome of the trial.6 See

Giry, 818 F.2d at 133-34 ("[P]rejudice that survives the charge is

deemed less likely to have affected the outcome of the trial where

strong evidence supports the prosecution's case. Perhaps the

single most significant factor . . . is the strength of the case

against the defendant." (internal citations omitted)). Thus,

Cogswell has not demonstrated that the government's statement

constituted plain error requiring a new trial.

Regarding the statement about the people who lived in the

apartment, we agree with Cogswell that the government misstated

Green's testimony because Cogswell never mentioned that Jacob also

lived in the apartment. However, even finding that the

government's statement was improper, it is harmless. This

statement, too, was isolated, not deliberate, and mitigated by the

judge's instructions to the jury. It is highly unlikely that the

6 The evidence against Cogswell was described by the district court as overwhelming. At sentencing, the district judge told Cogswell: "[T]here's no question in my mind, absolutely no question in my mind that the jury verdict was correct. The evidence against you was absolutely overwhelming." We have no cause to disagree with the district court's assessment on this point.

-29-

challenged statement affected the trial's outcome, because of the

strong evidence against Cogswell.

In sum, reversal for misrepresentation of the evidence

during the government's closing argument is inappropriate in this

case, since these misstatements were unlikely to have affected the

outcome of the case or the fundamental fairness and integrity of

the trial proceedings.

IV. Discussion of Cogswell's Sentencing Issues

Cogswell alleges that the district court committed

multiple procedural errors under the Sentencing Guidelines and that

the sentence imposed was unreasonably harsh in comparison to those

imposed on his co-conspirators. In assessing Cogswell's alleged

procedural errors, we "review factual findings for clear error,

arguments that the sentencing court erred in interpreting or

applying the guidelines de novo, and judgment calls for abuse of

discretion simpliciter." Serunjogi, 767 F.3d at 142 (citation

omitted). We then consider the substantive reasonableness of the

sentence under an abuse-of-discretion standard. Id.

A. Denial of Role Reduction

Cogswell argues that the district court should have

granted him a two- or three-level reduction in the applicable

guidelines sentencing range for his role in the conspiracy. We

review this issue for clear error. United States v. Rosa-Carino,

615 F.3d 75 , 81 (1st Cir. 2010) ("The district court's decision

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whether to grant a downward adjustment for a minor role is usually

a fact-based decision that we review for clear error." (citing

United States v. Sánchez, 354 F.3d 70 , 74 (1st Cir. 2004))). "If

the record supports at least two permissible inferences, the

factfinder's choice between or among them cannot be clearly

erroneous. Accordingly, we rarely reverse a district court's

decision regarding whether to apply a minor role adjustment."

United States v. Bravo, 489 F.3d 1 , 11 (1st Cir. 2007) (internal

citations omitted); see also United States v. Olivero, 552 F.3d 34 ,

41 (1st Cir. 2009) ("[B]attles over a defendant's status . . . will

almost always be won or lost in the district court." (citation

omitted)); Sánchez, 354 F.3d at 74 (stating that unless the

findings of fact are "clearly erroneous," higher courts must defer

to those findings as the sentencing courts have a superior "coign

of vantage").

The Sentencing Guidelines permit a court to award a

four-level decrease to a defendant who was a minimal participant in

the criminal activity, a two-level decrease to a defendant who was

a minor participant in the criminal activity, and a three-level

decrease to persons whose participation was more than minimal but

less than minor. U.S.S.G. § 3B1.2; United States v. Innamorati,

996 F.2d 456 , 490 (1st Cir. 1993). "To qualify as a minor

participant, a defendant must prove that he is both less culpable

than his cohorts in the particular criminal endeavor and less

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culpable than the majority of those within the universe of persons

participating in similar crimes." United States v. Santos, 357

F.3d 136 , 142 (1st Cir. 2004). "To qualify as a minimal

participant, a defendant must prove that he is among the least

culpable of those involved in the criminal activity." Id.

Cogswell alleges that he was entitled to a two- or three-

level reduction in the applicable guideline range because the

evidence "at most supported a finding that [he] was a regular

customer who sold on the side to support his addiction." However,

the district court rejected this characterization. The district

court carefully considered Cogswell's request for a role reduction

and rejected it. In reaching its conclusion, the court emphasized

the following facts: Cogswell's participation in the conspiracy

extended throughout the entire time of the charged conspiracy;

Cogswell was not a mere user, but rather was "a classic middleman"

who "got drugs from the conspiracy [and] sold them to local

customers" while using some of those drugs himself; Cogswell traded

a firearm for ten bags of crack; Cogswell, with his girlfriend,

actually moved into, and was living, at the "headquarters" of the

conspiracy; Cogswell was trusted by his co-conspirators to deposit

drug proceeds into a bank account, or assisted in making those

deposits; and Cogswell approached Holmes so that she would buy a

firearm for the conspiracy, which she did. Each of these findings

about Cogswell's role was supported by the trial record and, thus,

-32-

was not clearly erroneous. On these facts, the district court

found that Cogswell was not less culpable, but rather "more

culpable than many of his cohorts in this particular criminal

activity and [that] he was certainly not less culpable than the

majority of those within the universe of persons participating in

similar crimes." Cogswell has failed to establish that the

district court erred, much less clearly erred, in its determination

of his role in the offense.7 Thus, we affirm the district court's

denial of a role reduction.

B. Determination of Drug Quantity

For sentencing purposes, the district court attributed to

Cogswell 841 grams of crack cocaine. This amount included the

quantity of drugs that he personally dealt prior to moving to the

100B Ohio Street apartment (141 grams) and the entire amount of

crack cocaine that the conspiracy intended to distribute during the

7 Cogswell's reliance on Innamorati, 996 F.2d at 489-90, is misplaced. There, the defendant, who had not participated in particular drug transactions, but rather had provided services to a drug distributor, received a three-level reduction by the district court on the grounds that "he was not shown to have cocaine himself or to have shared in the profits." Id. The defendant appealed, asking for a four-level reduction, which this court rejected after concluding that the three-level reduction was "generous." Id. Unlike the defendant in Innamorati, Cogswell participated in drug transactions, had cocaine in his possession on an almost daily basis, and profited from his conduct (since he paid the New York importers $40 for a bag of crack and sold it for $50).

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length of time that Cogswell lived within the apartment (700

grams).8

Cogswell argues that holding him responsible for the

entire amount of cocaine involved in the conspiracy after he moved

to 100B Ohio Street (700 grams) is unreasonable because: the drugs

and money were stored on a different level than his living space

within the apartment; there was no evidence of him moving or

handling such large quantities of drugs; and there was no evidence

of a close relationship between him and the leader of the

conspiracy, so it was not foreseeable to him that such an immense

quantity of crack cocaine was involved.

"[I]n a conspiracy case, the sentencing court cannot

automatically assign the conspiracy-wide amount to a defendant.

Rather, the sentencing court must make an individualized finding as

to drug amounts attributable to, or foreseeable by, that

defendant." United States v. González-Vélez, 587 F.3d 494 , 502

(1st Cir. 2009) (internal citations and quotation marks omitted);

Santos, 357 F.3d at 140 ("[E]ach coconspirator is responsible not

only for the drugs he actually handled but also for the full amount

8 Cogswell did not raise any claim based on Alleyne v. United States, 570 U.S. ____, 133 S. Ct. 2151 , 168 L. Ed. 2d 203 (2013), either here or in the district court, and we take no position on it either. In fact, at his sentencing hearing the district judge specifically asked: "First, I understand that there's no Alleyne issue here, is that right?," to which Cogswell responded: "Well, that's right, Your Honor . . . ."

-34-

of drugs that he could reasonably have anticipated would be within

the ambit of the conspiracy.").

We review individualized determinations of drug

quantities for clear error. United States v. Cortés-Cabán, 691

F.3d 1 , 27 (1st Cir. 2012). "[T]he district court's determination

will be upheld so long as the approximation represents a reasoned

estimate of actual quantity." United States v. Sepúlveda-Hernández,

752 F.3d 22 , 35 (1st Cir. 2014) (internal quotation marks omitted)

(citing United States v. Cintrón–Echautegui, 604 F.3d 1 , 6–7 (1st

Cir. 2010)). Such a determination need only be supported by a

preponderance of the evidence. González-Vélez, 587 F.3d at 502.

Here, there was no clear error in the drug quantity

determination. Although Cogswell might have lived on a different

floor than where the drugs were stored, he lived for at least two

months in the "headquarters" of the conspiracy and with the people

who were in charge of it. He was able to see the traffic of

customers coming in and out of the apartment to buy drugs, and he

himself was buying quantities of crack cocaine almost daily. See

United States v. De La Cruz, 996 F.2d 1307 , 1314-15 (1st Cir. 1993)

(finding defendant to have foreseen the large quantity of drugs

involved in the conspiracy as he saw firsthand the number of people

and vehicles present at the warehouse where the drugs were stored).

Furthermore, he was entrusted to deposit over $26,000 in drug-sales

proceeds into the conspiracy leader's account, and it has been

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established that his role in the overall conspiracy was more than

just minimal or minor. Based on this evidence, the district court

could reasonably infer that Cogswell was aware of the capacity at

which the conspiracy was operating and, thus, that the drug amount

handled by the conspiracy was reasonably foreseeable to him.

Accordingly, we affirm the district court's drug quantity

calculation, which was not clearly erroneous.

C. Obstruction-of-Justice Enhancement

Section 3C1.1 of the Sentencing Guidelines mandates a

two-level enhancement when the defendant "willfully obstructed

. . . or attempted to obstruct . . . the administration of justice

with respect to the . . . prosecution, or sentencing of the instant

offense of conviction, and (2) the obstructive conduct related to

(A) the defendant's offense of conviction and any relevant conduct;

or (B) a closely related offense." U.S.S.G. § 3C1.1. One

recognized way in which a defendant can obstruct justice is by

"threatening, intimidating, or otherwise unlawfully influencing a

co-defendant, witness, or juror, directly or indirectly, or

attempting to do so." See id. at § 3C1.1 cmt. 4. The district

court applied a two-level enhancement after finding that Cogswell

had obstructed justice by writing a letter to Holmes, in which

Cogswell threatened another government witness.

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1. Background

During trial, the government called Keith "Beau" Lewis

("Lewis"), a local drug dealer in Bangor, to testify as a

government witness against Cogswell. The drug conspiracy ran for

some time from Lewis's house before it relocated to 100B Ohio

Street. Lewis testified as to the scope of Cogswell's activities

while the conspiracy operated from his house.

After Cogswell was convicted, and while the presentence

report was being prepared, Cogswell wrote a letter to Holmes, who

had also testified against him at trial and who, at that time, was

incarcerated and awaiting sentencing. The letter stated as

follows, in relevant part:

That "Dick" Prosecutor, . . . is still protesting it. He is still trying to protect [Lewis] and "Ranger" . . . his "lil" snitchie- bitchies and is afraid that now that I know who they are, that [words blacked-out]. Oh well, little does he know when everything is all done and I have nothing to do with anyone in the Bangor area, all set with supervised release, then I'll take care of [Lewis] the [words blacked-out]. . . My people are gonna love hanging him up and setting him on fire, he's not even gonna get the mercy of a bullet when he screams for it. I'll watch and laugh and that will be that.

Based on this letter, and after carefully considering and

rejecting all of Cogswell's assertions, the district court imposed

an obstruction-of-justice enhancement. Cogswell appeals the

imposition of this enhancement.

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2. Analysis

A district court's "factual determination underlying its

decision to award a two-level enhancement for obstruction of

justice is reviewed for clear error." United States v. Cash, 266

F.3d 42 , 44 (1st Cir. 2001) (citing United States v. Cardales, 168

F.3d 548 , 558 (1st Cir. 1999)). "[W]here the record supports at

least two permissible inferences, the factfinder's choice between

them cannot be clearly erroneous." United States v. Balsam, 203

F.3d 72 , 89 (1st Cir. 2000). The question of whether the scope of

section 3C1.1 encompasses a defendant's conduct, however, is

subject to de novo review. United States v. Moreno, 947 F.2d 7 , 10

(1st Cir. 1991).

Cogswell alleges that the letter did not constitute an

obstruction of justice because it was written after Lewis had

already testified at trial and the trial had concluded. He also

argues that the letter was not an attempt to influence Lewis

because it was not directed at Lewis, Lewis never received it, and

Cogswell had no reason to believe that Holmes would relay the

threat to Lewis.

Cogswell's first contention lacks merit. It is

irrelevant that, at the time Cogswell made the threat, the trial

had already concluded, because sentencing was still pending and

obstruction of justice extends to sentencing under section 3C1.1.

U.S.S.G. § 3C1.1 ("the defendant willfully obstructed . . . or

-38-

attempted to obstruct . . . the administration of justice with

respect to . . . sentencing"). As the district court pointed out,

Lewis was a crucial witness regarding drug quantity (which is the

primary consideration in determining the guideline offense level

for a drug offense), he was a potential government witness at

sentencing, and Cogswell did not know whether Lewis would be called

to testify at sentencing. See United States v. McMinn, 103 F.3d

216 , 218-19 (1st Cir. 1997) (finding enhancement applicable when

defendant threatened someone who "remained a prospective government

witness" in further proceedings against defendant); see also United

States v. Boyd, 574 F.App'x 878, 879-80 (11th Cir. 2014)

(unpublished) (upholding enhancement where defendant threatened a

witness after defendant had pleaded guilty and was awaiting

sentencing because defendant "did not know whether [the witness's]

testimony would be used against him at sentencing"); United States

v. Rubio, 317 F.3d 1240 , 1244-45 (11th Cir. 2003) (holding that an

obstruction-of-justice enhancement was appropriate based on the

defendant's assault on a witness after trial, and rejecting the

defendant's argument that because the assault occurred after trial,

it could not impact the prosecution of his case).

Cogswell's other contention -- that the enhancement is

inapplicable because he did not send the threat directly to Lewis,

but rather included it in a letter to Holmes -- suffers the same

fate. Cogswell cites United States v. Brooks, 957 F.2d 1138 (4th

-39-

Cir. 1992), in which the Fourth Circuit required the threat to be

made directly to the intended target or under circumstances in

which there is some likelihood that the intended target will learn

of the threat. Following this line of reasoning, Cogswell argues

that application of the obstruction enhancement requires proof that

Lewis actually learned of the threat against him, or at a minimum,

that Cogswell intended that Lewis would learn of the threat.

However, the Fourth Circuit's decision in Brooks has been

characterized as an outlier and no other circuit that has addressed

the issue has followed that path. See, e.g., United States v.

Searcy, 316 F.3d 550 , 552-53 (5th Cir. 2002) (characterizing Brooks

as an "outlier").

The Second, Fifth, Sixth, Eighth, Ninth, Tenth, and

Eleventh Circuits have all ruled that indirect threats made to

third parties may constitute obstruction under § 3C1.1 absent a

showing that they were communicated to the target. See United

States v. Fleming, 667 F.3d 1098 , 1109 (10th Cir. 2011) (holding

that to qualify as an attempt to obstruct justice a "defendant need

not actually threaten the witness; he need only attempt to

influence [him]"); United States v. Talley, 443 F.App'x 968, 972

(6th Cir. 2011) (unpublished) (holding that "statements, even when

made to a third party, which are appropriately determined to be

threatening" can constitute obstruction of justice); Searcy, 316

F.3d at 553 ("The Fourth Circuit's conclusion in Brooks

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notwithstanding, there is nothing in the text of the guideline or

commentary which restricts application of § 3C1.1 only to

situations in which the defendant directly threatens a witness or

communicates the threat to a third party with the likelihood that

it will in turn be communicated to the witness."); United States v.

Bradford, 277 F.3d 1311 , 1314-15 (11th Cir. 2002) (expressly

rejecting the holding in Brooks and concluding that communicating

a threat directly to a witness is not required to support

application of the obstruction-of-justice enhancement); United

States v. Jackson, 974 F.2d 104 , 106 (9th Cir. 1992) ("Where a

defendant's statements can be reasonably construed as a threat,

even if they are not made directly to the threatened person, the

defendant has obstructed justice."); United States v. Capps, 952

F.2d 1026 , 1028 (8th Cir. 1991) (holding that because § 3C1.1

applies to attempts to obstruct justice, it is not essential that

the threat be communicated to the target); United States v.

Shoulberg, 895 F.2d 882 , 884-86 (2d Cir. 1990) (holding that a note

to a third party, where the defendant never requested that the

message be conveyed to the intended target, was an attempt to keep

the target from cooperating with the government and justified

application of § 3C1.1).

Like the Tenth Circuit, we find this reasoning more

persuasive. Since § 3C1.1 clearly applies to attempts by

defendants to directly or indirectly threaten, intimidate, or

-41-

influence a potential witness, see U.S.S.G. § 3C1.1 cmt. 4, we

conclude that the obstruction enhancement may apply where a

threatening statement is made to a third party and absent evidence

that it was communicated to the target.

Under this standard, Cogswell's statement against Lewis

constitutes an attempted obstruction of justice. While his

sentencing hearing was pending, Cogswell sent a testifying witness

a letter that included a threat to kill another testifying witness.

The district court found that Cogswell's threat against Lewis was

specific, serious, and material, and, if believed, would tend to

influence or affect the witness.9 The district court also

explained that Cogswell's reference to "my people" raises the

specter that Cogswell has "compatriots out there who are aware of

Mr. Lewis' role and will seek to do him harm." Even though

Cogswell did not direct his threat to Lewis, there was a reasonable

possibility Holmes would communicate it to him. After all, this is

not a situation where Holmes owed any obligation of confidentiality

to Cogswell. Holmes was a government witness who might well have

been motivated to share the threat with her fellow witness.

Reading the graphic and malevolent plan, especially bolstered with

an ominous reference to his 'people,' could very well cause Holmes

to share the threat with Lewis or even dissuade her from testifying

9 The district court noted that, since Lewis is African-American, the threat to "lynch and burn" Lewis is specially "chilling in light of this country's tragic racial history."

-42-

during Cogswell's sentencing proceedings, or make her recant her

testimony against Cogswell. Thus, the obstruction of justice

enhancement is affirmed.

D. Firearm Enhancement

The Sentencing Guidelines apply a two-level enhancement

to the base offense if the defendant possessed a firearm in

connection with the convicted offense. U.S.S.G. § 2D1.1(b)(1). A

firearm enhancement is appropriate "whenever a codefendant's

possession of a firearm in furtherance of joint criminal activity

was reasonably foreseeable to the defendant." United States v.

Mena-Robles, 4 F.3d 1026 , 1036 (1st Cir. 1993) (quoting United

States v. Bianco, 922 F.2d 910 , 912 (1st Cir. 1991); see also

United States v. Greig, 717 F.3d 212 , 219 (1st Cir. 2013) ("To

warrant the enhancement, the defendant does not need to have

possessed the weapon herself or even to have known about it, it

just must be reasonably foreseeable that a co-conspirator would

possess a weapon in furtherance of the criminal activity." (citing

United States v. Flores–De Jesús, 569 F.3d 8 , 36 (1st Cir. 2009)).

This enhancement applies unless it is clearly improbable that the

weapon was connected to the commission of the offense. United

States v. Anderson, 452 F.3d 87 , 91 (1st Cir. 2006). Factual

findings of a firearm enhancement are reviewed for clear error.

Id. at 90.

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Relying on testimony from Jowenky Núñez ("Núñez"), one of

his co-conspirators, Cogswell alleges that the district court

improperly applied a firearm enhancement in calculating the

applicable GSR. At trial, Núñez testified that in December 2010,

Cogswell was at Lewis's house because he brought a gun to the

leaders of the conspiracy in exchange for ten bags of crack

cocaine. When asked if that was the only time that Cogswell was

present at Lewis's house, Núñez replied, "No, because [he] was

working with us later." Based on this testimony, Cogswell alleges

that the evidence shows that he traded a gun for drugs before he

joined the conspiracy and that the district court's finding to the

contrary (that it was in furtherance of) is erroneous. We

disagree.

The evidence shows that Cogswell traded the gun for crack

cocaine in December 2010. At least three other witnesses testified

that Cogswell was part of the conspiracy as early as August or

September 2010. The district court credited these witnesses, over

Núñez, regarding when he joined the conspiracy.10 As Núñez

testified, Cogswell gave the gun to his co-conspirators during a

drug deal. This gun became the "house gun" and was always at the

100B Ohio Street apartment, where it was frequently carried and

10 Furthermore, Núñez's testimony does not necessarily mean that Cogswell only joined the conspiracy after he traded the gun for drugs. Rather, his testimony may be interpreted as meaning that Cogswell continued to be at Lewis's house after the trade because he continued to participate in the conspiracy.

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held by co-conspirators. All this indicates that the gun played a

role in the drug conspiracy which operated out of the apartment,

and thus possession of the gun in furtherance of the conspiracy's

objectives was foreseeable to Cogswell. See Bianco, 922 F.2d at

912 (stating that firearms are "common tools of the drug trade" and

it may be inferred that a codefendant's possession of a firearm in

furtherance of their joint criminal venture is foreseeable to a

defendant with reason to believe that his acts are part of the drug

trade).

Based on this evidence, the district court's conclusion

that Cogswell was already a member of the conspiracy when he traded

the gun in December 2010 and that the firearm enhancement was

applicable are not clearly erroneous. Thus, the enhancement is

affirmed.

E. Reasonableness of Cogswell's Sentence

As discussed above, "[we] consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion

standard." Gall, 552 U.S. at 51. When conducting this review, we

take into account "the totality of the circumstances." Id.

Generally, no abuse of discretion is found "as long as the court

has provided a plausible explanation, and the overall result is

defensible." Martin, 520 F.3d at 96.

Cogswell argues that his sentence, which was almost seven

years below the advisory GSR, is substantively unreasonable in

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light of the fact that he was sentenced to a term longer than many

of his more involved co-conspirators, including the leader of the

conspiracy. His claim lacks merit.

At Cogswell's sentencing hearing, the district court made

clear its consideration of every factor listed in 18 U.S.C.

§ 3553(a) and made explicit note of its focus on Cogswell's history

and characteristics, the nature and circumstances of the offense,

and the need to avoid any unwarranted sentencing disparities among

similarly situated defendants. Regarding this last factor, the

district court noted that the disparities among the sentences that

the court had imposed on the co-defendants were attributable to a

number of factors, including that each defendant had different

criminal histories and different roles within the conspiracy, all

other defendants had pleaded guilty (except for Trinidad and

Cogswell), and some defendants cooperated with the government and

testified at trial, for which they received substantial-assistance

downward departures.

Cogswell is not similarly situated to his co-

conspirators since, at a minimum, he did not plead guilty and

accept responsibility for his crimes nor did he cooperate with the

government. See United States v. Rivera Calderón, 578 F.3d 78 , 107

(1st Cir. 2009) (noting there is a "material difference between

defendants who plead guilty and those who elect to go to trial, and

any sentencing disparity that results from that difference is not

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unreasonable"); United States v. Thurston, 456 F.3d 211 , 216-217

(1st Cir. 2006) (holding that a defendant who pleads guilty in

exchange for a reduced sentence is not similarly situated to a

defendant who contests his charges). Defendants who accept

responsibility and/or assist the government may receive sentence

reductions. See Vázquez-Rivera, 470 F.3d at 449 (finding the

defendant's sentence not to be unreasonable "simply because his

co-defendants agreed to help the government in exchange for reduced

sentences"); United States v. Rodríguez, 162 F.3d 135 , 152 (1st

Cir. 1998) (holding that the law allows the government to offer

reduced sentences in exchange for assistance "even if it results in

sentences of such disparity as would strike many as unfair").

Taking into account Cogswell's age, level of education,

physical ailments, family situation, criminal history, his

increasing role in the conspiracy and involvement with a firearm,

his threats to murder a testifying co-conspirator, and his "utter

lack of remorse," the district court imposed a sentence of 180

months. This sentence is still almost 7 years below the advisory

guideline range of 262 to 327 months. Such an articulated

consideration of all relevant factors, coupled with a downward

variance from the advisory guidelines sentencing range, clearly

indicates that the sentencing term is sufficient but no greater

than necessary to achieve the purposes of the law. We find no

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abuse of discretion by the district court and, thus, affirm

Cogswell's sentence.

V. Conclusion

The record reflects that both Trinidad and Cogswell were

afforded a fair and impartial trial, that the evidence of their

guilt was more than sufficient to support the jury's verdicts, that

their convictions were not tainted by prejudicial error either in

the judge's charge or in the government's closing argument, and

that their sentences were reasonable. Thus, their convictions and

sentences are affirmed.

Affirmed.

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