United States Court of Appeals

For the First Circuit

No. 19-1331

UNITED STATES OF AMERICA,

Appellee,

v.

IESÚS JUAN NIEVES-MELÉNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta, Howard, and Gelpí,

Circuit Judges.

Laura Maldonado Rodríguez for appellant.

Julia M. Meconiates, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, were on brief, 

for appellee.

January 26, 2023

 
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HOWARD, Circuit Judge. Iesús Juan Nieves-Meléndez 

challenges the district court's denial of his motion to withdraw 

his guilty plea and its drug-quantity calculation under the 

Sentencing Guidelines. Finding his arguments unavailing, we 

affirm his conviction and sentence.

I.

We assume familiarity with the record.1 Nieves pleaded 

guilty to possession with intent to distribute marijuana, in 

violation of 21 U.S.C. § 841(a)(1), and possession of firearms in 

furtherance of a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A). As indicated above, two parts of the record are 

at issue in this appeal: the district court's drug-quantity 

calculation for sentencing and its denial of Nieves's motion to 

withdraw his guilty plea. We address the background of each in 

turn.

A.

As part of the plea agreement he reached with the 

government in August 2018, Nieves admitted to possessing 87.23 

grams of marijuana with the intent to distribute. However, the 

presentence investigation report ("PSR") prepared by the U.S. 

Probation Office calculated his Sentencing Guidelines range based 

1 The background and circumstances of Nieves's arrest is 

explored in more detail in our decision in United States v. 

González-Andino, No. 18-2155 (1st Cir. 2022).
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on a converted quantity of 39.2 kilograms of marijuana, which was 

the equivalent of all the drugs seized from the apartment in which 

Nieves and his three codefendants were arrested. Nieves urged the 

court three times to adopt the plea agreement's drug-quantity 

calculation over that of the PSR: first in his sentencing 

memorandum to the district court, then -- after the court ordered 

him to do so -- in a formal objection to the PSR, and finally 

during his sentencing hearing. In the first two instances, he 

argued that the court was not obligated to hold him accountable 

for all the drugs found in the apartment under the Guidelines. 

The Probation Office countered by arguing that it was entitled to 

factor in the total amount of drugs seized from the apartment under 

the "relevant conduct" provisions of U.S.S.G. §1B1.3.

During the sentencing hearing, Nieves argued that the 

PSR amount was "not correct" and that -- as further explored 

below -- he never admitted to possessing the larger PSR quantity. 

The court explicitly said that it used the PSR calculation because 

"even though [the full drug quantity was] not charged, [it is] 

considered relevant conduct." 

B.

The district court's denial of Nieves's motion to 

withdraw his guilty plea is the other primary issue in this appeal. 

As noted above, Nieves pleaded guilty to two counts of the 

indictment against him in August 2018. As part of the plea 
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agreement's factual stipulations, Nieves "acknowledge[d] that the 

possession of the . . . firearms [found in the apartment in which 

he was arrested] was in furtherance of a drug trafficking crime" 

and that "he possessed with intent to distribute 87.23 [grams] of 

[marijuana]." He also "acknowledge[d] . . . that he [was] 

pleading guilty freely and voluntarily because he is guilty." 

Nieves further confirmed both that his plea was voluntary and that 

he agreed with the substance of the plea agreement's factual 

stipulations during the change-of-plea hearing.

Nevertheless, Nieves moved to withdraw his guilty plea 

nearly six months after this colloquy, at a hearing that originally 

was intended for his sentencing. Despite the fact that he had 

previously agreed twice to the substance of the plea agreement's 

factual stipulations, he told the district court that he was "at 

that [apartment] and I was sleeping there, but I am being judged 

for something that was happening of which I had no knowledge" and 

thus wished to withdraw his plea.2 Nieves further detailed in a 

written motion to the court that he sought the withdrawal because 

"he faces being sentenced for facts other than what he conceded in 

his plea" (i.e., the PSR's larger drug quantity), and that "[h]e 

2 As Nieves notes in his brief to us, his contention that he 

did not live in the apartment accorded with statements that he 

made to federal agents on the day of his arrest that he was in the 

apartment in order to "hid[e] from the police since he had an 

active . . . arrest warrant for a double murder in Aibonito, 

Puerto Rico."
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did not understand that by pleading guilty to [the drug possession 

count] and accepting certain facts, that he would be pleading 

guilty to other alleged facts, and . . . sentenced accordingly."

The district court denied this motion and, in doing so, 

adopted the government's justifications for opposing it: namely, 

(1) that the district court's explanation to Nieves that it could 

impose a sentence in excess of the proposals in the plea agreement 

belied the notion that Nieves did not understand the sentencing 

consequences of his plea, and (2) that both the lack of an explicit 

claim of innocence in his motion and the nearly six-month gap 

between the colloquy and Nieves's attempt to withdraw his plea 

illustrated that he did not meet the standard for such a grant of 

relief. Despite this, Nieves reiterated at his sentencing hearing 

that he never admitted to the PSR's drug-quantity calculation as 

part of his plea agreement, since he told his counsel before 

signing the agreement that "I am not going to sign anything 

admitting I was doing anything [in the apartment], because what I 

was doing was sleeping." The court rejected Nieves's argument and 

told him that he should have refused to sign the agreement if that 

were the case.

Ultimately, having denied Nieves's motion to withdraw 

his plea and relying on the PSR's Guidelines drug-quantity 

calculation, the district court sentenced Nieves to a total of 72 

months of imprisonment for both of the charges to which he pleaded 
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guilty. Because the combined sentence exceeded 66 months, the 

government concedes that the waiver-of-appeal provision in 

Nieves's plea agreement does not apply. This appeal followed.

II.

As noted above, Nieves argues that the district court 

erred both in denying his motion to withdraw his plea and in using 

the PSR's drug quantity in calculating his Guidelines range. We 

address each argument in turn.

A.

"When the issue is preserved, 'we review the district 

court's denial of . . . a motion [to withdraw a guilty plea] solely 

for abuse of discretion.'" United States v. Williams, 48 F.4th 1, 

8 (1st Cir. 2022) (quoting United States v. Flete-Garcia, 925 F.3d 

17, 24 (1st Cir. 2019)). Despite this standard being "highly 

deferential," United States v. Vázquez-Martínez, 812 F.3d 18, 26 

(1st Cir. 2016) (quoting United States v. Santiago-Rivera, 744 

F.3d 229, 234 (1st Cir. 2014)), our review also recognizes that 

the district court's discretion "may be 'somewhat more limited' 

when one of [Fed. R. Crim. P.] 11's core concerns is implicated," 

Williams, 48 F.4th at 8 (quoting United States v. Abbott, 241 F.3d 

29, 33 (1st Cir. 2019)). See also United States v. Kitts, 27 F.4th 

777, 784 (1st Cir. 2022) (listing the "core concerns" of Rule 11 

as "(1) absence of coercion, (2) understanding of the charges, and 
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(3) knowledge of the consequences of the plea" (quoting United 

States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008))). 

Because Nieves attempted to withdraw his guilty plea 

after the court's prior acceptance thereof, he had the burden of 

"show[ing] a fair and just reason for requesting the withdrawal." 

Fed. R. Crim. P. 11(d)(2)(B). In deciding whether a defendant has

proffered a "fair and just reason" for withdrawal, a district court 

"must take into account the totality of the relevant 

circumstances." Flete-Garcia, 925 F.3d at 24. While we have never 

claimed to set forth an "exclusive list of reasons that might allow 

withdrawal of a plea," United States v. Gardner, 5 F.4th 110, 114 

(1st Cir. 2021) (quoting United States v. Aker, 181 F.3d 167, 170 

(1st Cir. 1999)), our cases point to the following factors as 

worthy of a district court's consideration when evaluating a Rule 

11(d)(2)(B) claim:

(1) whether the original plea was knowing, 

intelligent, and voluntary and in compliance 

with Rule 11, (2) the strength of the reason 

for withdrawal, (3) the timing of the motion 

to withdraw, (4) whether the defendant has a 

serious claim of actual innocence, (5) whether 

the parties had reached (or breached) a plea 

agreement, and (6) whether the government 

would suffer prejudice if withdrawal is 

permitted.

Id. Nevertheless, "[d]espite its permissive nature, th[e] [fair 

and just reason] standard 'does not endow [a defendant] with an 

unfettered right to retract a guilty plea.'" Flete-Garcia, 925 
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F.3d at 24 (third alteration in original) (quoting United States

v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014)). Indeed, "'buyer's 

remorse' is not a valid basis on which to dissolve a plea agreement 

and 'the fact that a defendant finds himself faced with a stiffer 

sentence than he had anticipated is not a fair and just reason for 

abandoning a guilty plea.'" Moreno-Espada v. United States, 666 

F.3d 60, 67 (1st Cir. 2012) (second quoting United States v. 

Mercedes Mercedes, 428 F.3d 355, 359 (1st Cir. 2005)).

On appeal, Nieves claims that the district court abused 

its discretion in denying his motion to withdraw his plea because 

it discredited what he characterizes as his repeated claims of 

innocence and failed to ascertain whether Nieves "understood that 

the court could find that he possessed a greater amount of drugs" 

than the quantity specified in the plea agreement.3 We address 

each claim in turn.

3 Nieves also appears to intimate -- albeit in a fashion that 

is "not a model of clarity," United States v. Isom, 580 F.3d 43, 

54 (1st Cir. 2009) -- that the district court ran afoul of its 

obligation under Rule 11(b)(3) "to determine whether there is a 

factual basis for a guilty plea." Pimentel, 539 F.3d at 29. He 

claims that the court should have found that no basis existed under 

either aiding and abetting or constructive possession theories, 

which were the two theories under which the parties appear to have 

proceeded in this case. But we need not address this argument. 

To the extent that Nieves meant to present an argument that the 

district court committed error under Rule 11(b)(3), he both 

forfeited it by not raising this argument before the district 

court, and then waived it before us "because he does not even 

attempt to meet the four-part test" of plain error review. United 

States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016). 
- 9 -

i.

As a preliminary point, and as Nieves acknowledges

himself, "the timing of [his] request to withdraw his guilty plea 

is bad." While the nearly six-month gap between his guilty plea

and withdrawal attempt is not dispositive, "[t]his extended delay 

weighs against permitting withdrawal." United States v. Dunfee, 

821 F.3d 120, 131 (1st Cir. 2016). Indeed, we have found on 

multiple occasions that delays as short as two months between 

The same section of his appellate brief also appears to sketch 

out an argument for ineffective assistance of counsel. Nieves 

argues that his "assertions of innocence to counsel should have 

prevented counsel from advising him to plead guilty" and, 

similarly, that "[i]f [he] insisted to counsel that he was 

innocent, counsel's advi[c]e to plead guilty was contrary to the 

legal principles of aiding and abetting or constructive 

possession." But that is also where Nieves's ineffective 

assistance argument ends -- at no point does he attempt to link 

his counsel's conduct to any case law, nor does he even mention 

the phrase "ineffective assistance of counsel" in the relevant 

section of his brief. We cannot gainsay the importance of a 

criminal defendant's constitutional right to effective assistance 

of counsel, "a right that extends to the plea-bargaining process." 

Lafler v. Cooper, 566 U.S. 156, 162 (2012). But, "[a]s a general 

rule, this court does not review ineffective assistance of counsel 

claims on direct appeal." United States v. Vázquez-Larrauri, 778 

F.3d 276, 293 (1st Cir. 2015). And the exception "where the 

critical facts are not genuinely in dispute and the record is 

sufficiently developed to allow reasoned consideration of an 

ineffective assistance claim" cannot apply in a situation where 

the defendant has only made a cursory attempt to address the issue 

and where we have no indication of "why counsel acted as he did." 

Id. at 293-294 (first quoting United States v. Reyes, 352 F.3d 

511, 517 (1st Cir. 2003), then quoting United States v. TorresRosario, 447 F.3d 61, 64 (1st Cir. 2006)); cf. United States v. 

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in 

a perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived."). We therefore decline to 

address any such claim.
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guilty pleas and withdrawal attempts counsel against permitting 

withdrawal, especially when a defendant has received an 

unfavorable PSR. See, e.g., id. ("[W]e look skeptically on motions 

to withdraw which follow closely on the heels of the issuance of 

an unfavorable PSR, as was the case here."); United States v. 

Santiago Miranda, 654 F.3d 130, 132-134, 140 (1st Cir. 2011)

(finding that, when a defendant moved to withdraw his guilty plea 

over two months after his entry thereof and after he had received 

an unfavorable PSR, "[t]hese circumstances suggest that it was a 

recalculation of risks and benefits -- not involuntariness -- that 

produced [his] change of heart"); United States v. Pagan-Ortega, 

372 F.3d 22, 31 (1st Cir. 2004) ("The two month lag between the 

plea hearing and appellant's motion to withdraw places it well 

within the area of vulnerability because of untimeliness."). 

This rationale applies with even stronger force to the 

nearly six-month delay in Nieves's case, especially given that 

Nieves appears to have at least partly linked his desire to 

withdraw his plea to the larger drug quantity the PSR attributed 

to him. He informed the district court after a colloquy the court 

had with his counsel about his withdrawal request that "what I 

would like to have happened is for the plea agreement to be 

complied with, with respect to the 66 months."

Simply put, the motive behind Nieves's attempt to 

withdraw his plea appears to be his objection to being held 
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responsible for a larger drug quantity than the plea agreement 

specified, a fact which -- as the district court informed him 

during the change-of-plea hearing -- could only become clear once 

he was furnished with the PSR in the months after his guilty plea. 

Cf. United States v. Fernández-Santos, 856 F.3d 10, 18 (1st Cir. 

2017) ("The timing of a motion to withdraw a guilty plea is 

important, as we have said before, because it is 'highly probative 

of motive.'" (quoting United States v. Doyle, 981 F.2d 591, 595 

(1st Cir. 1992))). As further explored below, that alone will not 

suffice as a "fair and just reason" for withdrawal in the absence 

of other factors mentioned in our case law.

ii.

Even beyond the timing issues, we are unpersuaded that 

the claims that Nieves raises constitute "fair and just reason[s]" 

for withdrawal. First, his purported innocence claim is belied 

both by his own admissions to the district court during his 

allocution and by the plea agreement to which he voluntarily 

agreed. We acknowledge that Nieves made multiple, consistent

statements that he did not live in the apartment in which he was 

arrested. Perhaps most significantly, he explained to the district 

court that he told his counsel prior to signing the plea agreement 

that "I couldn't admit possession of all those items because that's 

not my home," that "I am not going to sign anything admitting that 

I was doing anything [in the apartment], because what I was doing 
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was sleeping" and, when asked about his desire to withdraw his 

plea, that "I accepted responsibility because, yes, I was at that 

place and I was sleeping there, but I am being judged for something 

that was happening of which I had no knowledge."

But these statements alone do not suffice for an 

innocence claim. We have long warned that "[m]erely voicing a 

claim of innocence has no weight in the plea-withdrawal calculus; 

to be given weight, the claim must be credible." Fernández-Santos, 

856 F.3d at 19 (quoting United States v. Gates, 709 F.3d 58, 69 

(1st Cir. 2013)). To that end, Nieves's claims are lacking because 

they are directly contradicted by his plea allocution and 

agreement. As part of the agreement, Nieves "adopt[ed] the 

Stipulation of Facts and agree[d] that the facts therein are 

accurate in every respect." The Stipulation, in turn, specified 

that Nieves "acknowledges that the possession of the 

aforementioned firearms was in furtherance of a drug trafficking 

crime" and that "he possessed with intent to distribute 87.23 

[grams] of [marijuana]." The district court further confirmed 

Nieves's understanding of the stipulated facts during the changeof-plea hearing, with Nieves responding "yes" after the court asked 

him "is this what you did?" as to descriptions of the evidence for 

each of the charges that mirrored the Stipulation. Our precedent 

supports the conclusion that these inconsistencies render Nieves's 

innocence claim insufficiently credible to warrant a reversal of 
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the district court's decision to deny his plea-withdrawal motion 

on abuse of discretion review. See, e.g., Santiago Miranda, 654 

F.3d at 139 ("Not only did Santiago sign the plea agreement, in 

which he acknowledged that he was guilty of the conspiracy charged 

in . . . the indictment and admitted the truth of the 'Stipulation 

of Facts' section, he also acknowledged several times under oath 

at the change-of-plea hearing that he was, in fact, guilty."); 

Isom, 580 F.3d at 53 (finding that the district court did not abuse 

its discretion in denying the defendant's motion to withdraw his 

guilty plea in part because, "as the district court noted, Isom's 

claim of innocence flies in the face of several admissions to the 

contrary").4 

More generally, the district court was entitled to rely 

on Nieves's statements under oath when faced with inconsistencies 

between them and his later protestations of innocence. Cf.

Santiago Miranda, 654 F.3d at 138 (noting that "a defendant's 

'declarations in open court carry a strong presumption of verity'" 

on which the district court is entitled to rely (quoting Blackledge

v. Allison, 431 U.S. 63, 74 (1977))). We will not disturb the 

4 Separately, Nieves's statement that he "couldn't admit 

possession of all those items because that's not my home" is not 

a "serious claim of actual innocence" as to the charged conduct, 

but rather appears to be aimed at the PSR's drug-quantity 

calculation. Gardner, 5 F.4th at 114. Claiming innocence as to 

one quantity of drugs but not another does not constitute a claim 

of actual innocence with respect to the drug-trafficking conduct 

to which Nieves pleaded guilty.
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district court's decision to credit Nieves's statements in his 

plea colloquy absent "highly specific [allegations of infirmities] 

accompanied by some independent corroboration." United States v. 

Pulido, 566 F.3d 52, 59-60 (1st Cir. 2009) (emphasis omitted) 

(quoting United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 

1984)). And Nieves makes no such showing here. While he pointed 

the district court to the fact that "there is no mention of me in 

the surveillance or anything because I don't live there," a lack 

of evidence that Nieves resided in the apartment does not 

constitute independent corroboration of the conclusion that Nieves 

had no knowledge of the guns or drugs found therein. To his 

credit, Nieves also more plausibly points to his objection to the 

PSR, in which he stated that "[p]olice found controlled substances 

in the apartment but did not find any in the room where [Nieves]

was sleeping, much less on his person nor on or under the bed."

But that statement is belied by the fact that police found both 

ammunition and drug paraphernalia in the room in which Nieves was 

found. Therefore, even to the extent that Nieves does offer 

independent corroboration for his innocence claim, we do not find 

it credible. We accordingly determine that his innocence claim 

does not constitute a "fair and just reason" for the withdrawal of 

his plea.
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iii.

We are equally unpersuaded by Nieves's contention that 

he "was not fully advised that he could be held accountable for a 

greater amount of drugs" than the "250 grams of [marijuana]" upon 

which the plea agreement based its Guidelines calculation. While 

a defendant's "knowledge of the consequences of a guilty plea" is 

a "core concern[] of Rule 11" to which we pay heightened attention 

on abuse of discretion review, we nevertheless find Nieves's 

argument unavailing because it is flatly contradicted by the 

record. Williams, 48 F.4th at 6 (first quoting United States v. 

Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995)). The plea agreement 

noted that Nieves understood that the district court had sole 

discretion over his sentence, that the court was "not bound by 

[the plea] agreement or the sentencing calculations and 

recommendations contained [therein]," and that the court had the 

right to reject the plea agreement. At his change-of-plea hearing, 

the court also explicitly asked Nieves whether he understood (1) 

"that the terms of the plea agreement are recommendations to the 

Court," (2) "that I can impose a sentence on you, as to Count 

Three, the drug count, which is less severe or more severe than 

the sentence you may anticipate, or even the sentence being 

recommended in the plea agreement," (3) "that[,] as to Count Three, 

the drug count, I won't be able to determine what the [G]uideline 

sentence for your case will be until after I receive a pre-sentence 
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investigation report," and -- perhaps most significantly -- (4) 

"that the sentence that I may impose upon [you] may be different 

from any estimate that [counsel] may have given you and even 

different from what is being recommended in the plea agreement." 

Nieves responded that he understood each of these ramifications.

And the district court also conducted an extensive colloquy with 

Nieves to ensure that he was both competent to plead guilty and 

understood the suite of rights that he was voluntarily forfeiting 

by doing so. See Pagan-Ortega, 372 F.3d at 29 ("Our review of the 

court's dialogue with appellant reveals that the court clearly and 

comprehensively explained both the rights he was foregoing, as 

required under Rule 11(b), as well as the precise charges and 

sentencing details. We have every reason to accord credit to 

appellant's affirmative responses . . . ."). 

While neither the plea agreement nor the district court 

explicitly mentioned the potential for discrepancies in drugquantity calculation between the plea agreement and PSR, Nieves 

cites to no case law suggesting any requirement of such a specific 

warning. In the context of that absence, we cannot say that the 

district court was required to find that Nieves's ostensible lack 

of understanding of the sentencing consequences of his plea 

provided a "fair and just reason" for withdrawal, especially since

both the plea agreement and the district court made it abundantly 
- 17 -

clear to Nieves that he could be sentenced in a manner that would 

not accord with the terms of the agreement. 

Accordingly, the district court did not abuse its 

discretion in denying Nieves's motion to withdraw his guilty plea.

B.

Nieves also asserts that the district court erred in 

adopting the PSR's drug-quantity calculation. He claims that "the 

record does not support [a] factual basis" for attributing the 

apartment-wide amount of drugs to him as "relevant conduct" under 

U.S.S.G. §1B1.3.5

Under U.S.S.G. §1B1.3, "[i]f the sentencing court finds 

by a preponderance of the evidence that a defendant engaged in the 

'same course of conduct or common scheme or plan' involving 

additional drugs, it can attribute the amount of those drugs 

involved to the defendant." United States v. McDonald, 804 F.3d 

497, 502-503 (1st Cir. 2015) (internal citations omitted) (quoting 

U.S.S.G. §1B1.3(a)(2)). A district court's finding under this 

provision is "'entitled to considerable deference,' and '[a]bsent 

mistake of law, we review such conclusions only for clear error.'" 

Id. at 503 (alteration in original) (quoting United States v. Wood, 

924 F.2d 399, 403 (1st Cir. 1991)). 

5 To be sure, Nieves does not argue that the district court 

erred by failing to make a particularized finding regarding the 

drug amount attributable to him as relevant conduct; rather, he 

argues only that the record does not support such a finding.
- 18 -

Here, the district court explicitly stated that "if you 

take all the controlled substances that were found [in the 

apartment] and convert them into marijuana . . . even though they 

are not charged, they are considered relevant conduct." Relying 

in part on a Guidelines application note for §1B1.3, Nieves 

counters that there was no support in the record for a finding of 

relevant conduct because there was no evidence that he "knew there 

were other drugs in the apartment," "joined others to distribute 

drugs," "pooled resources or profits with the other charged 

defendants," or even knew the other defendants prior to their 

arrest.

But Nieves forfeited this argument. As noted above, 

Nieves argued in his sentencing memorandum and in his formal 

objection to the PSR that the district court was not obligated to 

factor in the apartment-wide quantity in calculating his 

Sentencing Guidelines range. But "a litigant has an obligation to 

spell out its arguments squarely and distinctly" before the 

district court, United States v. Diggins, 36 F.4th 302, 319 (1st 

Cir. 2022) (quoting Zannino, 895 F.2d at 17), and a claim of error 

must be "sufficiently specific to call the district court's 

attention to the asserted error," United States v. Soto-Soto, 855 

F.3d 445, 448 n.1 (1st Cir. 2017). Relevantly to Nieves's case, 

"arguments cannot be interchanged at will" on appeal. United States

v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011) (citing to 
- 19 -

United States v. Lilly, 13 F.3d 15, 17-18 & n.6 (1st Cir. 1994)). 

We do not agree that this argument sufficiently called the court's 

attention to ostensible error in applying §1B1.3 to his case. This 

conclusion is underscored by the fact that the Probation Office 

explicitly invoked §1B1.3 in responding to Nieves's objections to 

the PSR, yet at no point thereafter did Nieves challenge this 

stated rationale. Furthermore, while we recognize that Nieves 

argued during his sentencing hearing that the quantity specified 

in the PSR was factually incorrect, he does not argue on appeal 

that anything he said at his sentencing hearing preserved a

relevant conduct-based objection.

We subject unpreserved claims of error to plain error 

review. Under this exacting standard, Nieves must show "(1) that 

an error occurred (2) which was clear or obvious and which not 

only (3) affected [his] substantial rights, but also (4) seriously 

impaired the fairness, integrity, or public reputation of judicial 

proceedings." United States v. Merced-García, 24 F.4th 76, 79-80 

(1st Cir. 2022) (alteration in original) (quoting United States v. 

Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

We find, in turn, that the district court committed no 

clear or obvious error in attributing the apartment-wide drug 

amount to Nieves. It is true that -- as discussed above -- Nieves 

consistently stated that he was only a temporary visitor to the 

apartment. But he overlooks the fact that there was ample, 
- 20 -

unobjected-to evidence in the record linking him to drug 

trafficking activity. This evidence includes the ammunition, 

plastic bags, vials, and weight scales located in the room in which 

police found Nieves, and similar items that were found throughout 

the apartment. Our precedent suggests that these items are 

indicative of trafficking activity. Cf. United States v. Marin, 

523 F.3d 24, 28 (1st Cir. 2008) (noting that a weapon, ammunition, 

drugs, paraphernalia, and cash all being stored in the same house 

was indicative of a weapon being used in furtherance of drugtrafficking activity). Furthermore, it is difficult to credit 

Nieves's argument when each of the infirmities that he specifies 

with respect to the PSR drug quantity would hypothetically apply 

with equal force to the 87.23 grams specified in the plea 

agreement. Yet Nieves does not challenge the factual basis for 

the 87.23 grams to which he pleaded guilty, and -- on the 

contrary -- affirmatively urged the district court to adopt this 

amount. 

Fundamentally, the district court had to weigh the 

seized evidence against Nieves's proffered motive for being in the 

apartment in deciding whether to attribute the larger amount of 

drugs to him. The mere fact that the sum total of the evidence 

yielded conflicting signals does not suffice to illustrate clear 

or obvious error, especially when Nieves did not object to the 

PSR's description of the objects found in the room in which he was 
- 21 -

located. Cf. United States v. Takesian, 945 F.3d 553, 563 (1st 

Cir. 2019) (noting that, on plain error review, "if an error 

pressed by the appellant turns on 'a factual finding [he] neglected 

to ask the district court to make, the error cannot be clear or 

obvious unless' he shows that 'the desired factual finding is the 

only one rationally supported by the record below'" (alterations 

in original) (quoting United States v. Olivier-Diaz, 13 F.3d 1, 5 

(1st Cir. 1993))). We therefore find that the district court did 

not commit plain error in attributing the apartment-wide quantity 

of drugs to Nieves.

Affirmed.