*Of the District of Maine, sitting by designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2112

UNITED STATES OF AMERICA,

Plaintiff,

v.

JUAN SANTIAGO-VÁZQUEZ, a/k/a JUAN CORAZÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Boudin, Chief Judge,

Howard, Circuit Judge,

and Carter,* Senior District Judge.

Juan Ortiz-Lebrón, by appointment of the court, for appellant.

Jacabed Rodríguez-Coss with whom Nelson Pérez-Sosa, Assistant

United States Attorney, Senior Appellate Attorney, H.S. Garcia,

United States Attorney, and Germán A. Rieckehoff, Assistant United

States Attorney, were on brief for appellee.

April 7, 2005
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Per Curiam. On February 21, 2002, after a five-day

trial, a jury convicted Juan Santiago-Vazquez ("Santiago") on one

count of conspiracy to distribute controlled substances, 21 U.S.C.

§ 846 (2000). He was thereafter sentenced to life imprisonment.

He now appeals, claiming ineffective assistance of counsel, trial

errors and errors at sentencing. He has supplemented his counsel's

brief with his own.

From the evidence presented at trial, the jury could have

found the following. Between 1990 and 1993, Santiago ran a drug

point in the Manuel A. Perez housing projects in Puerto Rico.

Santiago's organization primarily sold crack--1.5 to 2 kilograms

per month, and over five kilograms in 1992 alone--but also dabbled

in cocaine, heroin and marijuana. Santiago supervised at least ten

other individuals in the operation of his drug point.

Starting in 1991, Santiago's organization found itself at

war with rival drug dealers in the area. Over the course of the

conflict--which lasted through 1993--Santiago allied himself with

another drug dealer named Victor Negrón. Negrón and Santiago

loaned firearms to one another for protection, sold drugs to one

another, and coordinated manhunts to kill the supporters of rival

gangs.

Santiago planned and sanctioned the participation of his

subordinates in these manhunts, which resulted in the deaths of at

least five rivals. The firearms used in these killings, as well as
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in the day-to-day operations of Santiago's drug enterprise,

included pistols, submachine guns, shotguns and rifles. Santiago

was arrested with one such weapon in 1993, and a stock of similar

weapons was seized from an apartment at which Santiago's main

lieutenant was present.

At trial much of the government's testimony came from

three cooperating witnesses: Alexander Cruz-Rojas, who had run a

drug point near Santiago's and had fought against Santiago in the

drug war; Ramon Cesareo-Soto, who worked in Negrón's organization,

was closely allied with Santiago in the drug war, and frequented

Santiago's drug point; and Negrón himself. Given their professed

roles in drug dealings and drug wars, their testimony was very

harmful to Santiago.

We deal first with Santiago's myriad claims of trial

error, all of which are fact-based and none of which entails novel

or complex issues of law. The claims are, among others, that

defense counsel failed to object to leading questions, permitted

introduction of prejudicial evidence relating to events outside the

relevant time frame or not sufficiently connected to the defendant,

permitted the jury to learn that other defendants had pled guilty,

allowed answers from witnesses without personal knowledge of the

events, and permitted expert testimony from a witness not qualified

as an expert.
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Virtually none of these claims, many made in a sentence

or two or at most a paragraph, is adequately developed on appeal,

which is alone fatal. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir.), cert. denied, 494 U.S. 1082 (1990). In most cases, it

appears that no objection was made in the district court, so review

would in any event be only for plain error, but no effort is made

on appeal to show that any such error likely altered the outcome of

the trial given the other evidence against the defendant. United

States v. Olano, 507 U.S. 725, 732 (1993).

Santiago says that various trial errors insufficient in

themselves may cumulate so as to undermine the fairness of a trial

and make out a due process violation. See United States v.

Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993), cert. denied, 512

U.S. 1223 (1994); see also United States v. Meserve, 271 F.3d 314,

332 (1st Cir. 2001). However, the case against Santiago was a

strong one, uncontradicted by any witnesses for the defense; and in

any event the brief on appeal fails to show that there were serious

errors, let alone a prejudicial accumulation.

The government has taken the trouble to address the

individual claims of error one by one. If any one of them was

properly preserved in the district court and appeared to have a

clear potential to alter the outcome of the trial, we would discuss

it. But none falls into this category. Given their sketchy
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development on appeal we think it is enough to say this and no more

about the individual trial error claims.

Santiago's next challenge (made in his pro se brief) is

to the court's special verdict form. The form, a modified version

of which had been requested by defense counsel, asked jurors three

questions: first, whether Santiago was guilty of the conspiracy to

distribute drugs charged in the indictment; second, whether more

than a specific quantity of each of four named drugs was involved;

and third, whether Santiago had conspired to commit murder over the

course of the conspiracy. The drug quantities contained in the

second question had been charged in the indictment against Santiago

and were included in response to a defense argument invoking

Apprendi v. New Jersey, 530 U.S. 466 (2000). The murders mentioned

in the third question were not charged in the indictment, but could

have resulted in a sentencing enhancement under U.S.S.G. §

2D1.1(d)(1); defense counsel therefore sought a separate jury

determination regarding the murders on the theory (loosely stated

by counsel) that Apprendi applied to that particular enhancement

under the guidelines.

Santiago--this is his own argument, not appellate

counsel's--says that the second and third questions both pointed

the jury in the direction of a life sentence, so that either way he

lost. That either alternative sufficed to raise the sentencing

range is true, but that is a function of the guideline in question.
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See U.S.S.G. § 2D1.1. Santiago would not have "lost" if the jury

had answered in the negative on both questions; unfortunately for

Santiago, the jury found that the government had proven its drug

quantities beyond a reasonable doubt.

Alternatively, Santiago complains that the second

question did not allow the jury to find lesser drug quantities than

those specified. This misunderstands the function of the question,

which was simply to determine in accordance with Apprendi whether

facts charged in the indictment (and raising the statutory maximum)

had been proven to a jury. If the jury concluded that only lesser

amounts had been proven, the answer would have been negative and

the precise lesser quantity irrelevant to the issue that Apprendi

reserved for the jury.

Santiago's final challenge to the special verdict form

claims that the mention of murder in the form unfairly prejudiced

the jury against him--particularly because no murders were charged

in his indictment. Leaving aside the fact that the special verdict

form--in particular the question about murders--was requested by

defense counsel and opposed by the government, we note that there

had already been ample (and appropriate) testimony about Santiago's

involvement in the murders over the course of the trial. The jury

would have already known of Santiago's alleged involvement in the

killings, and that knowledge would not have disappeared once

deliberations began. If the additional mention of drug murders in
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the special verdict form affected the jury's deliberations at all,

it could not have tainted them so effectively as to amount to a

denial of due process to Santiago.

Santiago also contests two of his supervised release

conditions: (1) that he submit to drug tests at his probation

officer's discretion; and (2) that he participate in a substance

abuse program at the officer's discretion if those tests are

positive. Santiago did not object to either condition at

sentencing, but the government concedes that both conditions are

plain error under United States v. Melendez-Santana, 353 F.3d 93

(1st Cir. 2003). Melendez said that both conditions were error

but, for reasons not relevant here, the court was required to

decide only whether one of them was "plain error" and made no

ruling as to whether the other would be so classified. 

Two judges of this court have recently questioned whether

Melendez' plain error analysis is correct, United States v.

Padilla, 393 F.3d 256, 259-61 (1st Cir. 2004) (Campbell and Selya,

JJ., concurring in the judgment), and we have recently granted

rehearing en banc in that case to assess the continued viability of

the Melendez rationale. But unless and until the en banc court

holds to the contrary, Melendez' analysis controls. The government

concedes that both delegations in this case are inconsistent with

Melendez and does not seek to distinguish between them as to
2Santiago claims that his allocution at sentencing, in which

he denied having dealt drugs with his co-conspirators, is enough to

preserve his Blakely claim on the leadership enhancement. We

disagree.

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"plainness." Under these circumstances, we accept the government's

concession without further inquiry.

Santiago's remaining challenges to his sentence do not

fare as well. Santiago claims that both of his sentencing

enhancements--two levels for possession of a firearm in connection

with the offense, U.S.S.G. § 2D1.1(b)(1), and four levels for a

leadership role in the offense, U.S.S.G. § 3B1.1(a)--violate

Blakely v. Washington, 124 S. Ct. 2531 (2004), as do the guidelines

as a whole. Although Santiago relied upon Apprendi in seeking a

special verdict form, he got such a form (even if not exactly the

one he sought) and he thereafter made no further attack on the

guidelines at sentencing. We thus review for plain error.2

Following the Supreme Court's decision in United States

v. Booker, 125 S. Ct. 738 (2005), and this circuit's decision in

United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005), the

district court's use of mandatory guidelines at sentencing

constitutes "error" that is "plain." Nonetheless, Santiago must

still demonstrate prejudice and fundamental unfairness. See Olano,

507 U.S. at 732-36; Antonakopoulos, 399 F.3d at 77. In particular,

Santiago must show that there is a reasonable probability that he

would have been sentenced differently but for the error. "The
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burden is on the defendant to convince us on specific facts" that

this is so. Id. at 80. 

Santiago has been afforded the opportunity to point to

such facts in supplemental briefing, but has failed to do so. He

notes that the district court stated that its sentence and

enhancements were "pursuant to the guidelines," and that it relied

primarily (or perhaps exclusively) on the presentence report to

support its enhancements. But the former is not sufficient to

suggest that the district court would have sentenced him

differently under a discretionary post-Booker regime; and the

latter remains a valid exercise of the district court's authority

even after Booker. Santiago has pointed to nothing exceptional or

sympathetic about his case that would give us reason to suspect

that the district court would have sentenced him more leniently had

it been empowered to do so, and without more he has failed to meet

the requirements of Antonakopoulos for remand and resentencing.

There remains the claim that Santiago's trial counsel

was ineffective. Such claims cannot be raised on direct appeal,

save in the rare case where the error claimed can be considered

without further development of the record--a step usually necessary

to determine why counsel took the actions challenged as

incompetent. See United States v. Martinez-Vargas, 321 F.3d 245,

251 (1st Cir. 2003). This case falls squarely within the general
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rule and we decline to reach the ineffective assistance claim,

without prejudice to a section 2255 motion.

We affirm Santiago's conviction and sentence save that we

vacate the drug treatment and drug testing portions of Santiago's

supervised release conditions, and remand for resentencing as to

those conditions.

It is so ordered.

Concurrence follows.
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CARTER, Senior District Judge, concurring. I concur in

the Opinion of the majority in its decision on the merits of

Defendant’s challenges to the validity of his conviction and the

vacating of the drug treatment and drug testing portions of

Defendant’s supervised release conditions.

Because this panel is bound by a preexisting panel

decision of this court, see Eulitt v. Me. Dep’t. Of Educ., 386 F.3d

344, 349 (1st Cir. 2004), I reluctantly, and on that specific basis

alone, concur as to the majority’s rejection of Defendant’s

challenge, on the basis of Blakely v. Washington, 124 S. Ct. 2531

(2004) and United States v. Booker, 125 S. Ct. 738 (2005), to the

validity of his sentence. While I must accept, for purposes of my

participation in this case, the holding of a panel of this circuit

in United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005), I

do not agree with that decision’s rationale or holding. I share

the concerns raised by Judge Lipez in his concurring opinion in

United States v. Serrano-Beauvaix, No. 02-2286, 2005 WL 503247 (1st

Cir. Mar. 4, 2005). I believe, however, that the rationale of

Antonakopoulos is more deeply flawed in its constitutional analysis

than even Judge Lipez suggests in Serrano-Beauvaix.