* 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 Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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 Stat es Court of Appeals

For the First C ircuit
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. JacabedRodríguez-Coss with whom Nelson Pérez-Sosa , Assistant U nitedStates Attorney, Senior Appellate Attorney, H.S. Garcia , UnitedStates Attorney, and Germán A. Rieckehoff , Assistant United States Attorney, were on brief for appellee. April 7, 2005-2- 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.

Fromthe evidence presented at trial, the jury could have found the following. Between 199 0 and 1993, S antiago ran a dru g point in the Manuel A. Perez housing projects in Puerto Rico. Santiago's organization primarily sold cra ck-- 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 deal ers in t he area. Over the course of the conflict--which lasted through 1993--Santiago allied himself with another drug dealer named Victor Negrón. Negrón andSanti ago loanedfirearms to one another for protection, sold drugs to one another, and coordinated manhunts to kill the supporters of rival gangs. Santiago planned and sanctionedthe 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-3-

in the day-to-day operations of Santiago' s d rug 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 apar tment at which Santiago's main lieutenant was present.

At trial much of the government's testimony came from thre e co operating 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 dea l fi rst 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, amo ng 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, permittedthe jury to learn that other defendants had pled guilty, allowedanswers from witnesses without personal knowledg e of the events, and permitted expert testimony froma witness not qualified as an expert.-4- 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 andmake out a due process violatio n. 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 anyevent 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 cla ims of erro r 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 woulddiscuss it. But none falls into this category. Given t hei r sketchy-5-

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 dist ribu te drugs charged in the indictment; second, whether more than a specific quantity of each of four named drugs was involved; andthird, whether Santiago had conspired to commit murder over the
course of the conspiracy. The drug quantities contained in the secondquestion had been charged in the indictment against Santiago andwere included in response to a de fense argument invoking Apprendi v. New Jersey , 530 U.S. 466 (2000). The murders mentioned in the thirdquestion were not charged in the indictment, but could have resulted in a sentencing enhancement unde r U.S.S.G. § 2D1.1(d)(1); defense counsel therefor e sought a separate jury determination regarding the murders on the theory (loosely stated by counsel) that Apprendi applied to that particular e nhan cement under the guidelines.

Santiago--this is his own argument, not appellate counsel's--says that the second and third questions both poi nted the jury in the direction of a life sentence, so that either way he los t. That either alternative sufficed to raise the sentencing range is true, but that is a function of the guideline in question.-6-

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 findlesser 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) hadbeen 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 f inal 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 re ques ted by defense counsel and opposed by the government, we note that there hadalready 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 disa ppea red once deliberations began. If the additional mention of drug murders in-7-

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.

Sant iago also contests two of his supervised relea s e conditions: (1) that he submit to drug tests at his probation officer's discretion; and (2) that he particip ate in a substance abuse program at the officer's discretion if th ose tests are positive. Santiago did not object to eith er condition at sentencing, but the government concedes that bot h co nditions 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 decid e only wh ether 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 th e Melendez rationale. But unless and until the en b anc cour t 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 to2 Santiago claims that his allocution at sentencing, in which

he denied having dealt drugs with his co-conspirators, is enough to preserve his Blakelyclaim on the lea dershi p enhancement. We disagree. -8- "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. § 3 B1.1(a )--violate Blakely v. Washington , 124 S. Ct. 2531 (2004), as do the guidelines
as a whole . Although Santiago relied upon Appre ndi i n seeking a special verdict form, he got such a form (even if not exactly the
one he sou ght) 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 (200 5), a nd 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 "pla in." Nonetheless, Santiago must still demonstrate prejudice and fundamental unfairness. See Olano , 507 U.S. at 732-36; Antonakopoulos , 399 F.3dat 77. In particular, Santiago must show that there is a reasonable probability that he wouldhave been sentenced differently but for the error. "The-9-

burden is on the defendant to convince us on specific facts" that this is so. Id. at 80.

Santiago has been afforded the opp ortu nity to point to such facts in supplemental briefing, but has failed to do so. He notes that the district court stated that its se ntence 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 distric t co urt would have sentenced him differentlyunder a discretionary po st- 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 t rial counsel
was ineffective. Such claims cannot be raised on direct appeal,
save in the rare case where t he error c laimed 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-10-

rule and we decline to reach the ineffective assistance claim, without prejudice to a section 2255 motion.

We affirmSantiago's conviction and sentence save that we vacate the drug treatment and drug testing portions of Santiago's supervisedrelease condi tion s, and remandfor resentencing as to those conditions.

It is so ordered .

Concurrence follows.-2- CARTER, Senior District Judge , concurring. I concur in the Opin ion of the majority in its decision on the merits of D efendant’s challenges to the validity of his conviction a nd th e vacating of the drug treatment and drug testing portions of Defendant’s supervised release conditions.

Because this p anel is bound by a preexisting panel decision of this court, see Eulitt v. Me. Dep’t. Of Educ. , 386 F.3d 344, 349 (1 st 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 Blakelyv. Washington , 124 S. Ct. 2531 (2004) and United States v. Booker , 125 S. Ct. 738 (2005), to the validityof 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.3d68 (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 UnitedStates v. Serrano-Beauvaix , No. 02-2286, 2005 WL 503247 (1st Cir. Mar. 4, 2005) . I believe, ho weve r, that the rationale of Antonakopoulos is more deeply flawed in its constitutional analysis than even Judge Lipez suggests in Serrano-Beauvaix .