United States Court of Appeals

For the First Circuit

No. 16-2226

UNITED STATES OF AMERICA,

Appellee,

v.

ASHLEY FLORES-CARTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge] 

Before

Torruella, Boudin, and Kayatta, 

Circuit Judges.

Javier A. Morales-Ramos and Law Offices of Javier A. MoralesRamos on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, 

Thomas F. Klumper, Assistant United States Attorney, Acting Chief, 

Appellate Division, and Julia M. Meconiates, Assistant United 

States Attorney, on brief for appellee.

May 18, 2018
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BOUDIN, Circuit Judge. Between 2013 and 2015, Ashley 

Flores-Carter ("Flores") participated in a drug conspiracy 

involving the smuggling of cocaine from Puerto Rico to the 

continental United States. With kilograms of cocaine hidden in 

the lining of their suitcases, Flores and her co-conspirators 

traveled on commercial flights from Puerto Rico to several U.S. 

cities. On September 30, 2015, the government charged Flores with 

conspiracy to possess cocaine with the intent to distribute, 

21 U.S.C. §§ 846, 841(a)(1), asserting that Flores's role in the 

drug conspiracy was two-fold: Flores herself flew from Puerto 

Rico to the United States with cocaine-filled suitcases; later, 

Flores recruited others to participate as drug mules. 

Flores then made an incriminating post-arrest statement 

to the DEA, negotiated with the government, spent time in jail 

after bail was revoked, and received Jencks Act material, including 

grand jury testimony, 18 U.S.C. § 3500(b); see also Fed. R. Crim. 

P. 26.2. She then entered a straight plea of guilty without any 

agreement with the government. On September 7, 2016, Flores was 

sentenced to 84 months in prison, followed by five years of 

supervised release.

Flores presents three main arguments on appeal, 

ultimately seeking a remand for re-sentencing. First, Flores 

argues that at sentencing the government misled the district court 

as to Luis Pintor, one of Flores's thirty-six co-defendants who 
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had pled guilty pursuant to a negotiated plea agreement. In her 

post-arrest DEA interview, Flores had admitted to completing a 

drug-trafficking trip to New York with Pintor in early 2013. 

During Flores's sentencing hearing, the district court briefly 

inquired as to Pintor's sentence; the government responded that it 

believed Pintor received a 70-month sentence and stated: 

"[Pintor's] role within this conspiracy was even more limited than 

this defendant." The Court replied: "Oh, okay." Defense counsel 

then stated: "We don't believe so." The judge did not revisit 

the issue. 

Conceivably, the sentence of another defendant, 

sentenced by a different judge but involved in some aspect of the 

same criminal enterprise, might in some instances matter to the 

district judge, were the judge sure of relative culpability. But 

many judges might think the game not worth the candle. The judge 

here apparently thought this since he made no finding and showed 

no interest in such a dubious detour. Rule 32, Fed. R. Crim. P. 

32(i)(3)(B), calls on the court to resolve disputed material facts 

or say that the dispute does not matter, but neither side here 

invokes the rule with respect to this claim.

Further, defense counsel was apparently satisfied with 

the district court's disinterest in drawing any inference as to 

relative culpability and certainly did not oppose leaving the 

matter unexplored. Having failed to object to the judge's evident 
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intent to leave the disagreement unexplored, pursuing the matter 

now would require at the very least plain error. United States v. 

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Defense counsel makes no 

such claim and nothing here would support a claim of plain error 

if one had been made. 

The sentencing transcript confirms that the district 

court engaged in a proper and individualized sentencing. While 

the Presentence Report ("PSR") included a two-point enhancement 

for obstruction of justice based on Flores's messages to a 

potential witness, the court rejected this recommendation after 

hearing from both Flores's attorney and the government, stating: 

"I also considered that the texts as such are somewhat ambiguous 

. . . I don't believe that . . . the government proved by a 

preponderance of the evidence that the obstruction of justice 

should be granted." 

The district court also considered the three different 

drug quantities proposed--48 kilograms in the government's 

sentencing memorandum, 8 kilograms in Flores's sentencing 

memorandum, and 41 kilograms in the PSR--before ultimately 

accepting the PSR's quantity. The judge gave due attention to 

disputes where they seemed to matter. A fleeting reference to a 

co-defendant and his sentence did not taint the sentencing hearing, 

especially when examined under the plain error standard. 
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Additionally, Flores says that both the PSR and the 

government's sentencing memorandum contained factual errors as to 

the quantity of cocaine properly attributable to her. The PSR 

concluded that she was responsible for at least 41 kilograms; the 

sentencing memorandum put the figure at 48. Both attributed to 

Flores the drugs handled by individuals she recruited. Under 

either calculation (41 or 48 kilograms), Flores's base offense 

level would be 32. U.S.S.G. § 2D1.1(c)(4)(2015). Flores's counsel 

argued for level 30, holding Flores accountable for 8 kilograms 

that Flores personally smuggled into the continental United 

States.

The district court held Flores responsible for the PSR's 

quantity: 41 kilograms. Flores's sentencing memorandum generally 

disputed the PSR's drug quantity of 41 kilograms but did not raise 

the argument that Flores now presents on appeal, namely, that the 

drugs smuggled by co-conspirators she recruited should not be 

counted. Rather, Flores argued (and still argues) over the number 

of trips she took carrying drugs, but not to an extent that would 

have reduced her base offense level below 32 given the amounts 

carried by her recruits.

Since Flores admitted to recruiting at least four 

individuals, and it was clear that the government's sentencing 

memorandum and the PSR considered Flores's recruits when 

calculating the drug quantity, we see no excuse for Flores's
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failure to develop below the argument she now raises. Defense 

counsel argued that one putative recruit was not sufficiently 

recruited to count but never made the claim now advanced that true 

recruits should not be counted. The claim is forfeited and would 

not be rescued by a claim of plain error, if attempted.

At sentencing, the district court makes findings as to 

drug quantity under a preponderance of the evidence standard, 

United States v. Walker-Couvertier, 860 F.3d 1, 17 (1st Cir. 2017), 

and the court "has wide discretion to decide whether particular 

evidence is sufficiently reliable to be used at sentencing." 

United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). 

A participant in a drug trafficking conspiracy "is 

responsible . . . for drugs he himself sold, transported, or 

negotiated, as well as for drug quantities attributable to others 

that are reasonably foreseeable to him . . . ." Id. at 5

(alterations in original) (internal quotation marks omitted). The 

41 kilogram figure is amply supported and unflawed by material 

error.

Finally, Flores argues that the district court did not, 

but should have, considered the grand jury testimony cited in her 

sentencing memorandum--testimony procured by Flores under the 

Jencks Act, 18 U.S.C. § 3500(b). 

Shortly prior to Flores's scheduled trial, the 

government provided Flores with Jencks Act material, which 
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included the grand jury transcripts at issue. 18 U.S.C. § 3500(b); 

see also Fed. R. Crim. P. 26.2. After pleading guilty, Flores 

used the disclosed grand jury transcripts to bolster various 

arguments in her sentencing memorandum. The government argued 

that Flores's use of such material was improper since the 

transcripts were provided for the sole purpose of potential use at 

trial. But the district court did consider the material. Noting 

that Flores's reliance was "unusual," the court stated that it had 

reviewed her sentencing memorandum, which included citations to 

the grand jury testimony.

Since the district court did consider the information, 

the premise of Flores's argument is wrong and the argument fails. 

Whether material secured under the Jencks Act can be used in 

sentencing, or only for the assigned purpose of cross-examining 

government witnesses, is a question which has apparently rarely 

arisen and need not be pursued on this appeal.

Affirmed.