United States Court of Appeals

For the First Circuit

Nos. 05-1800, 05-2045 and 05-2047 

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID SANCHEZ-BADILLO and RAYMOND MENDEZ-ECHEVARRIA,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Rafael F. Castro Lang, for appellant David Sanchez-Badillo.

Raymond Rivera Esteves, for appellant Raymond MendezEchevarria.

Mariana E. Bauzá-Almonte, Assistant United States Attorney,

with whom Rosa Emilia Rodriguez-Velez, United States Attorney and

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, were on brief, for appellee.

August 27, 2008
Sanchez and Mendez were among seventeen defendants named in the 1

conspiracy indictment. They were tried along with Francisco MurielCastillo, who was acquitted of the drug conspiracy charge on which he

was indicted.

-2-

HOWARD, Circuit Judge. After a lengthy jury trial,

appellants David Sanchez-Badillo ("Sanchez") and Raymond MendezEchevarria ("Mendez") were convicted of conspiring to distribute

heroin, cocaine, cocaine base and marijuana. Mendez was also

convicted of two counts of illegal weapon possession. They were

sentenced to terms of imprisonment of 292 months and life,

respectively. On appeal Mendez and Sanchez both claim that while 1

they were charged with participating in a single conspiracy, the

evidence adduced at trial demonstrated the existence of separate,

independent conspiracies. Thus, they argue, the jury's conspiracy

verdict was not supported by the evidence. Both men also claim the

trial court made sentencing errors. In addition, Mendez argues

that the evidence was insufficient to support the jury's verdict

against him on the weapons charges, and that prosecutorial

misconduct entitles him to a new trial. Finally, Sanchez claims

that the trial judge made impermissible comments in the jury's

presence, and that he was denied effective assistance of counsel.

We affirm.

I. FACTUAL BACKGROUND

We recount the facts in the light most favorable to the

verdicts being appealed. United States v. Portela, 167 F.3d 687,
-3-

692 (1st Cir. 1999). The basic facts of the case are outlined

first, with further details added to address particular arguments.

This case involved drug trafficking at the Los Lirios del

Sur housing project ("Los Lirios") in Ponce, Puerto Rico. The

government's case was based, to a large extent, on the testimony of

three cooperating witnesses -- Carlos Ramon Rivera Segarra,

Ferdinand Pagan Flores and Jonathan Negron Torres. According to

extensive trial testimony, the central player in the drug

conspiracy was one Alex Crespo-Echevarria, a/k/a Alex Gatillo

("Gatillo"), the owner of two "drug points" at Los Lirios. As

owner, Gatillo collected "rent" -- generated from drug sales --

from those who ran the day-to-day operations of the drug points.

Gatillo was also known to have enforced his rent collection and his

territorial boundaries with both actual and threatened violence. 

One of Gatillo's drug points, known as the "lower point,"

was located near block #10 at Los Lirios. This point was managed

by appellant Sanchez, who, according to trial testimony, was known

to carry a gun. The lower point trafficked primarily in heroin, as

well as marijuana. In order to get the drugs to the street-level

sellers, Sanchez used a "runner," Nelmaris Rodriguez, who was also

responsible for collecting money from the sellers. After the

sellers received their shares of sales proceeds, Rodriguez passed

the balance of the proceeds on to Sanchez. 
The record contains different versions of the spelling of the 2

decedent's last name. We will use the one appearing more frequently.

-4-

Gatillo's other Los Lirios drug point, known as the

"upper point," sold marijuana and cocaine. Gatillo's involvement

with the upper point dated back to 1999, when he removed the

point's original owner. The point subsequently fell under the

control of a rival of Gatillo's, who was driven off by death

threats made by Mendez and his brother, to the benefit of Gatillo.

Mendez's brother took over management of the upper point until his

2002 imprisonment, whereupon Mendez -- who had returned to Puerto

Rico in 2002 after living in Florida for approximately two years --

took over.

In September 2002, a rival marijuana dealer, Felix

Gelbi , was shot and killed in a park at Los Lirios. Negron Torres 2

testified that he purchased marijuana from Gelbi at approximately

11 p.m. near the park, and that as he sat on some bleachers to

smoke, saw Gelbi continue through the park. He further stated that

as Gelbi neared a market, Mendez and others called out to Gelbi,

and then fired several shots at him, killing him. A few days

later, Mendez admitted to Negron Torres that he shot Gelbi in the

mouth.

Mendez's involvement with the upper drug point ended when

he was arrested on October 23, 2002. When he was seized by federal

agents, Mendez was a passenger in a pickup truck that was leaving
-5-

Los Lirios. The agent who removed the driver from the truck saw a

handgun on the front bench seat. It contained a fully-loaded

magazine and a bullet in the chamber. Shortly thereafter, another

agent found a second handgun under the passenger seat Mendez

occupied. This gun, which was equipped with a laser sight, also

had a full magazine and a round in the chamber ready to be fired.

In late September 2002, Mendez and Sanchez had been

indicted for participating in a drug conspiracy, in violation of 21

U.S.C. §§ 841(a)(1) and 846. In light of the circumstances

surrounding Mendez's October arrest, he was indicted again in

November, for illegal possession of a firearm with an obliterated

serial number, and possession of a firearm while under indictment.

Also, in December, a superseding indictment was returned against

Sanchez and Mendez, restating the drug charges, but adding the

October weapons possessions as an overt act in furtherance of the

conspiracy. Thus, in addition to the two gun charges against

Mendez, he and Sanchez were accused of conspiring to knowingly and

intentionally possess with intent to distribute one kilogram or

more of heroin, five or more kilograms of cocaine, fifty grams or

more of cocaine base, and 100 kilograms or more of marijuana.

In addition to convicting Sanchez and Mendez of the

criminal charges in the indictment, the jury completed special

verdict forms, in which it found Mendez responsible for possessing

with intent to distribute less than 100 kilograms of marijuana,
-6-

that he was a manager of more than five conspiracy members, that he

possessed weapons in furtherance of the conspiracy, and that he

murdered Felix Gelbi in furtherance of the conspiracy. The jury

found Sanchez responsible for thirty or more kilograms of heroin,

less than 100 kilograms of marijuana, and found that he was a

leader or organizer of the conspiracy.

II. DISCUSSION

A. Conspiracy convictions (Mendez and Sanchez)

Both appellants argue that while the indictment alleged

a single conspiracy -- playing a role in Gatillo's organization --

the facts introduced at trial proved the existence of multiple,

independent conspiracies. Where, as here, there was no objection

to the jury instructions, "the issue resolves into a sufficiencyof-evidence question." United States v. Soto-Beniquez, 356 F.3d 1,

18 (1st Cir. 2004) (citations omitted). Thus, we must affirm if

the jury was presented with evidence sufficient to support its

finding that appellants were guilty of the charged conspiracy. Id.

While we ultimately look at the totality of the evidence

in determining whether a single conspiracy was proved, Portela, 167

F.3d at 696, we consider a number of factors along the way, none of

which, standing alone, in necessarily determinative. These include

(1) the existence of a common goal, (2) interdependence among the

participants, and (3) overlap among the participants. Id. at 695;

Soto-Beniquez, 356 F.3d at 18-19. It is also not necessary to
-7-

prove that "each conspirator knew of or had contact with all other

members. Nor . . . that the conspirators knew all of the details

of the conspiracy or participated in every act in furtherance of

the conspiracy." Id. at 19 (citing United States v. Mena-Robles,

4 F.3d 1026, 1032 (1st Cir. 1993)).

Mendez concedes that the trial evidence was sufficient to

support the finding of a common goal -- selling drugs for profit.

See Portela, 167 F.3d at 695 ("[G]oal of selling cocaine for profit

satisfies the common goal requirement."). Sanchez, however,

disputes this finding, alleging that the objectives of the two drug

points may have been "identical," but were not "in common." Given

that we have noted the wide breadth of the "common goal"

requirement, see id. at 695 n.3 (citing United States v. Richerson,

833 F.2d 1147, 1153 (5th Cir. 1987)), and the testimony that the

Los Lirios drug trade was controlled by Alex Gatillo, we have

little trouble finding that this conspiracy had a common goal of

serving Gatillo's illicit interests.

Both appellants argue that the evidence was insufficient

to prove interdependence among the participants in the conspiracy.

To the contrary, we find substantial evidence of such a

relationship. "Establishing interdependence among the participants

requires determining whether the activities of one aspect of the

scheme are necessary or advantageous to the success of another

aspect of the scheme." Portela, 167 F.3d at 695. Such
-8-

interdependence "makes it reasonable to speak of a tacit

understanding between [a core conspirator] and others upon whose

unlawful acts" his success depends. United States v. Glenn, 828

F.2d 855, 858 (1st Cir. 1987). While Sanchez concedes that the

government's evidence was sufficient to prove that he was involved

with Gatillo in a different conspiracy to sell heroin and marijuana

at the lower point, he maintains that his involvement was

independent of the upper point and of the Gatillo organization as

a whole. Mendez denies any personal involvement with Gatillo, and

further contends that there was no evidence even linking Gatillo to

the upper point. Mendez also argues that his absence from Puerto

Rico from approximately 1999-2000 until May of 2002 commands a

finding in his favor. We do not agree. 

Our review of the voluminous trial record yields several

pieces of evidence from which a jury could have concluded that the

government established a tacit understanding among the appellants

and Gatillo, as well as a cross-pollination of the two drug points.

First, the testimony quite explicitly described Gatillo's ironfisted control over Los Lirios. From that alone, the jury may have

reasonably inferred that a decision to sell drugs at Los Lirios

constituted a tacit agreement to join Gatillo's organization. In

addition, the evidence indicated that Nelmaris Rodriguez worked for

Gatillo as a runner at the lower drug point before Sanchez became

manager. Thus, when Sanchez became involved with the lower point,
-9-

it was reasonable for the jury to conclude that he was knowingly

linking himself with the street-level dealers that Rodriguez -- on

behalf of Gatillo –- had previously used at the lower point. The

jury also could have concluded that, based on her pre-existing

business relationship with Gatillo, Rodriguez would serve as

Gatillo's "eyes and ears" at the lower point, ensuring the point's

smooth operation on Gatillo's behalf and helping Gatillo keep track

of sales proceeds. Additionally, Pagan Flores testified that he

had peddled drugs through Nelmaris Rodriguez at the lower point,

and also served as a runner at the upper point prior to Mendez's

management there. The jury also could have found interdependence

from Negron Torres's testimony that he worked in the heroin

distribution aspect of the lower point managed by Sanchez and later

in marijuana distribution at the upper point operated by Mendez.

He also testified that Mendez killed rival marijuana dealer Gelbi,

an act that served to bolster Gatillo's control of the Los Lirios

drug trade. Mendez was accompanied by Michael Rivera-Quinones, who

had served as a runner at the upper point. Combining this with his

earlier threats against Mendez's brother's predecessor at the upper

point, a jury could have rationally concluded that Mendez was

serving as an enforcer of Gatillo's dominance.

In addition to these examples of the ties between the

appellants, Gatillo and the two drug points, evidence demonstrated

that the interdependence of the drug points overseen by Gatillo
-10-

extended back as far as 1998 when Rivera-Quinones (known for his

involvement with the upper point), traveling in a pickup truck with

lower drug point operator Santiago Torres-Montanez, was stopped for

a traffic violation. A search of the truck revealed drug

paraphernalia, armor piercing bullets, and approximately $3800 in

small bills held together with rubber bands. After they were

brought to a local police station, appellant Sanchez (identified

with the lower drug point) arrived at the police station, claiming

that the vehicle and the money belonged to him. That claim was

rebuffed, but Muriel-Castillo (involved in the lower point with

Sanchez) was successful in claiming that both the truck and the

bullets belonged to his mother. Eventually, a local judge ordered

all property seized returned to Muriel-Castillo, who then divided

up the returned money to pay for the lawyers representing RiveraQuinones and Torres Montanez. From this sequence of events, in

which participants in the two points were arrested together and

were aided by participants in the lower point, the jury could have

concluded that the two points were interdependent.

The evidence here also shows overlap among the

participants. We have stated that "overlap" can be found in "the

pervasive involvement of a single core conspirator, a hub character

. . . ." Portela, 167 F.3d at 695. In this case, the evidence

demonstrated that Gatillo was such a hub character, with those
-11-

working underneath him often serving both Los Lirios drug points,

and competitors suffering harsh, or fatal, consequences.

Mendez's attempt to seek safe harbor in the fact that he

was away from Puerto Rico between 2000 and May 2002 also fails.

Even if he joined the conspiracy late, "as long as he did so

knowingly, he is liable for the conspiracy itself and earlier acts

in furtherance of the conspiracy." Soto-Beniquez, 356 F.3d at 23.

Against this factual backdrop, we find that the totality

of the government's evidence was sufficient to prove the existence

of a single conspiracy, and to prove appellants' knowing

participation in it.

B. Weapons Convictions (Mendez)

Mendez argues that the evidence was insufficient to

convict him on either of the two weapons charges lodged against

him. We disagree.

Mendez was first charged with unlawful possession of a

loaded, 9 mm Highpoint Firearms semi-automatic pistol that had the

manufacturer's serial number obliterated, and which had been

shipped or transported in interstate commerce. He claims that he

neither possessed the weapon at issue nor had the requisite

knowledge of the obliterated serial number. 

Pursuant to 18 U.S.C. § 922(k), it is unlawful to

"knowingly . . . possess or receive any firearm which has had the

importer's or manufacturer's serial number removed, obliterated, or
Mendez does not dispute the "interstate commerce" element of either 3

of the weapons charges against him.

-12-

altered and has, at any time, been shipped or transported in

interstate or foreign commerce."3

Turning first to possession, we have noted that when

Mendez was arrested, the Highpoint pistol was found on the bench

seat of the pickup truck in which Mendez was a passenger. It is

not necessary, however, for the government to prove that Mendez

physically possessed the gun. Instead, proof of constructive

possession is sufficient. United States v. Wight, 968 F.2d 1393,

1397-98 (1st Cir. 1992). "Constructive possession" is proven by

demonstrating that Mendez "'knowingly had the power and intention

at a given time of exercising dominion and control over a firearm

. . . directly or through others.'" United States v. DeCologero,

530 F.3d 36, 67 (1st Cir. 2008) (quoting Wight, 968 F.2d at 1398).

"Constructive possession can be joint," and can be extremely brief:

"'a minute of possession is as much of an offense as a year of

possession.'" Id. (quoting United States v. Zavala Maldonado, 23

F.3d 4, 8 (1st Cir. 1994)).

The fact that the gun was found on the bench seat is

sufficient for the jury to have concluded that Mendez "had the

power to exercise dominion and control over it." See United States

v. Van Horn, 277 F.3d 48, 55 (1st Cir. 2002) (evidence sufficient

to convict defendant of illegal possession of explosives where
-13-

defendant sat in back seat of car adjacent to bucket of

explosives.) There was additional supporting evidence, however.

The Highpoint pistol had "smiley face" stickers affixed to it in

the same location as another gun found at the scene to which Mendez

admitted ownership. Also, the government presented expert

ballistics testimony tying the Highpoint gun to evidence found at

the scene of Felix Gelbi's murder. Although cross-examination of

the expert revealed some potential inconsistencies in his

testimony, "it is for the jury to choose between varying

interpretations of the evidence." United States v. Wilder, 526

F.3d 1, 7 (1st Cir. 2008).

In addition to the possession prong of the statute, the

government also had to prove that Mendez had actual knowledge of

the obliterated serial number. United States v. Abernathy, 83 F.3d

17, 19 (1st Cir. 1996). Here, given the fact that the jury

reasonably found that Mendez killed Gelbi with the Highpoint pistol

on September 23, 2002, we cannot say that it was unreasonable for

the jury to conclude that Mendez's use and continued possession of

the gun until his arrest was proof of his knowledge of the

obliterated serial number. Accordingly, we reject Mendez's claim

with respect to the charge under section 922(k).

We need to spend little time on the second gun charge, in

which Mendez was accused of violating 18 U.S.C. § 922(n) by being

"a person under indictment for a crime punishable for a term
-14-

exceeding one year" and receiving a firearm or ammunition which has

been shipped in interstate or foreign commerce. To begin with, a

defendant's "receipt" of a firearm can be proven by his possession

-- actual or constructive -- of it. See United States v. Lamare,

711 F.2d 3, 5 (1st Cir. 1983) (decided under predecessor to §

922(n)). Next, as previously noted, Mendez was originally indicted

on the drug conspiracy charges in September 2002. He was arrested

on October 23, 2002. Having already affirmed the jury's finding

that he possessed the Highpoint pistol, we must reject any argument

that Mendez was not "in receipt of a firearm" while "under

indictment for a term exceeding one year." This conviction is

affirmed.

C. Judge's Comments During Opening Statement (Sanchez)

During his opening statement, Sanchez's counsel stated

that Sanchez had been "targeted" by the government. The judge

overruled the government's objection and denied a request for a

sidebar. The following exchange ensued in the jury's presence:

Court: No. You're not going to approach the

bench. It is not argument. That is he's

stating that's what the evidence will show.

We'll see if it does show or not. We'll see.

I mean he's putting in the goods up front. At

the end of the case we'll see what happens.

No, that's not arguments. He is saying that

is what he's going to prove. That's what the

evidence is going to be.

Government: He's characterizing that the

government has targeted.
-15-

Court: I don't know. That's the argument.

That's what he's stating the evidence will

show. I don't know if it will show that or

not. We will see at the end of the case if

the goods were as he's stating them or not.

No. Overruled. Proceed.

(emphasis added).

Sanchez argues that the highlighted portion of the

judge's comment improperly imposed an evidentiary burden on him.

Pointing to the fact that many of the evidentiary assertions

predicted by defense counsel failed to materialize, Sanchez argues

that it was "probable" that the jury convicted him because he

failed to meet the burden imposed by the judge. We disagree. For

starters, the jury's deliberations took place approximately 34 days

(22 trial days) after the comment at issue. Less obviously, but

more importantly, the jury was instructed on at least two occasions

that the defense is not required to produce any evidence, that the

burden is always on the government to prove "each of the elements

of the crime charged beyond a reasonable doubt," and that the

"defendants have the right to rely upon the failure or inability of

the government to establish beyond a reasonable doubt any essential

elements of a crime charged against them."

As Sanchez did not contemporaneously object to the

judge's comment, we review for plain error. United States v.

Bailey, 405 F.3d 102, 110 (1st Cir. 2005). To vacate Sanchez's

sentence for plain error, we must find that (1) there was error;

(2) the error was plain and obvious; (3) the error affected
-16-

defendant's substantial rights; and (4) the error impaired the

fairness, integrity, or public reputation of the judicial

proceedings. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); see also United States v. Dominguez Benitez, 542 U.S. 74,

81-21 (2004) (defendant alleging plain error must show a reasonable

probability of a different outcome in order to prove that the error

"affected his substantial rights"). We have held that "a trial

court has broad authority to comment during trial, and in

particular, to comment in a way that will stop the jury from

treating a lawyer's argument as if it were evidence." United

States v. Quesada-Bonilla, 952 F.2d 597, 600 (1st Cir. 1991).

While the trial judge's one-time use of the word "prove" was

inadvisable, we find that it falls far short of plain error. Given

the existence and timing of the various jury instructions that

correctly formulated the burden of proof, we find that any error

did not impair Sanchez's substantial rights and the fairness,

integrity or public reputation of the judicial proceedings were not

impaired.

D. Ineffective Assistance of Counsel (Sanchez)

Sanchez argues that he was deprived of his Sixth

Amendment right to counsel because his lawyer refused to let him

testify and made a variety of other trial blunders. At the outset,

we note that "[w]e have held with a regularity bordering on the

monotonous that fact-specific claims of ineffective assistance
-17-

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court." United States v. Leahy, 473 F.3d 401, 410 (1st

Cir.), cert. denied, 128 S. Ct. 374 (2007). Although an exception

exists where the record is adequately developed to "permit reasoned

consideration of the claim," id., the current record is lacking

details of the reasons behind defense counsel's various strategic

decisions complained of here. As such, Sanchez must pursue such

remedies, if they are warranted, via 28 U.S.C. § 2255.

E. Prosecutorial Misconduct / Curative Instruction (Mendez)

Mendez makes two related arguments stemming from a

prosecutor’s misstatement during closing argument. During his

rebuttal, the prosecutor erroneously told the jury that the

"weapons" seized from the truck during Mendez’s arrest were

connected to Gelbi’s murder. The use of the plural was incorrect,

as only one of the two guns could be forensically tied to the crime

scene. This was the only misstatement alleged by Mendez. It was

soon followed by a curative instruction from the trial judge, in

which he clarified that the singular tense should have been used,

but unfortunately misidentified which of the two seized guns was

connected to the crime scene. Mendez claims that either of these

errors warrant a new trial. We disagree.

Whether a new trial should have been ordered is reviewed

for abuse of discretion. United States v. Riccio, 529 F.3d 40, 45
-18-

(1st Cir. 2008). Here, while the prosecutor's comment was

undoubtedly inaccurate, there is also no dispute that this was an

isolated remark and that the use of the plural -- "guns" -- was

quickly corrected. We find neither an attempt to mislead the jury

nor a likelihood that the jury was misled. Thus, no new trial was

warranted. See United States v. Azubike, 504 F.3d 30, 39 (1st Cir.

2007) (new trial warranted only where prosecutor's misconduct so

poisoned the well that the trial's outcome was likely affected).

Mendez did not object to the district court’s curative

instruction, thus we review only for plain error. See United

States v. Bailey, 405 F.3d 102, 110 (1st Cir. 2005). We find none.

In the first instance, defense counsel quickly pointed out and

corrected the court's error. Also, given the witness testimony

connecting Mendez to the murder, the error, if any, neither

affected Mendez's rights, nor affected the outcome. See United

States v. Martinez-Vives, 475 F.3d 48, 52 (1st Cir. 2007).

Finally, the district court reminded the jurors that it was their

recollection of the trial evidence which controlled, and not the

representations of the evidence made at closing argument. In our

view, this was sufficient to remove any conceivable taint, the

existence of which we doubt in the first place. See United States

v. Allen, 469 F.3d 11, 16 (1st Cir. 2006), cert. denied, 128 S. Ct.

41 (2007).
Sanchez does not appeal the "leader or organizer" increase. 4

-19-

F. Sentencing

1. Sanchez

Sanchez's sole sentencing argument is that the district

court made erroneous drug quantity calculations that led to an

improper sentence. As previously noted, Sanchez was sentenced,

following a two-day hearing, to 292 months' imprisonment. The

trial court arrived at this sentence by attributing thirty

kilograms or more of heroin to Sanchez, for a base offense level of

thirty-eight. The judge added two levels for Sanchez's role as a

leader and organizer for a total offense level of forty, which 4

combined with a criminal history category of I to yield a guideline

range of 292-395 months. After considering the factors enumerated

in 18 U.S.C. § 3553(a), including Sanchez's status as a first-time

offender, and the lack of other aggravating factors, sentence was

imposed at the lowest point in the range.

We review claims of legal error de novo. United States

v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007). The trial court's

factual findings -- including those related to drug quantity

calculations -- are reviewed for clear error. United States v.

Marks, 365 F.3d 101, 105 (1st. Cir 2004).

At the outset, we reject Sanchez's claim that the drug

quantity calculation must be proven beyond a reasonable doubt,

pursuant to Blakely v. Washington, 542 U.S. 296 (2004), so long as
The trial in this case having taken place in the interregnum between 5

Blakely and United States v. Booker, 543 U.S. 220 (2005), the district

court submitted the drug calculation and leader / organizer questions

to the jury on special verdict forms. The jury found beyond a

reasonable doubt that Sanchez "possessed with intent to distribute"

thirty kilograms or more of heroin during the duration of his

participation in the conspiracy, and that he was a leader or organizer

during that time. With sentencing taking place in the aftermath of

Booker, however, the court undertook an independent analysis of these

issues. The government argues that such a step was unnecessary in

light of the special verdict, and that the jury's pronouncement should

hold sway. The trial court's thorough effort obviates the need to

address this contention, and we will instead focus on the judge's

findings. 

Under 18 U.S.C. § 841(b)(1)(A), these appellants each faced a 6

statutory maximum sentence of life in prison.

-20-

the resulting sentence does not exceed the statutory maximum based

on the facts found by the jury." United States v. Gonzalez-Velez,

466 F.3d 27, 40 (1st Cir. 2006). The sentencing judge was

permitted to determine facts under the Guidelines by a

preponderance of the evidence. See United States v. Yeje-Cabrera,

430 F.3d 1, 17 (1st Cir. 2005); United States v. Antonakopoulos,

399 F.3d 68, 75 (1st Cir. 2005).5

The applicable statutory maximum sentence in a drug

conspiracy case is determined from a "conspiracy-wide perspective."

United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004)

(citation omitted). The court, however, may not automatically 6

shift the drug quantity attributable to the conspiracy as a whole

to an individual defendant. Id. Instead a defendant-specific

determination of drug quantity is required for an individual's

sentence. Id. In so doing, "the court is required to make an
While there was some dispute as to the exact time frame of Sanchez's 7

operation of the lower point, the judge was free to choose among

credible alternatives. United States v. Cyr, 337 F.3d 96, 101 (1st

Cir. 2003).

-21-

individualized finding as to drug amounts attributable to, or

foreseeable by, that defendant." Id. "Drug quantity is to be

derived from all acts 'that were part of the same course of conduct

or common scheme or plan as the offense of conviction.'" Santos,

357 F.3d at 140 (quoting U.S.S.G. § 1B1.3(a)(2)). "The essential

inquiry is not what the defendant knew but what acts were

reasonably foreseeable by him." Id. (citing Colon-Solis, 354 F.3d

at 103). In the end, "each coconspirator is responsible not only

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

drugs that he could reasonably have anticipated would be within the

ambit of the conspiracy." Id. (citations omitted). Nor must the

court's determination be exact: an approximation that "represents

a reasoned estimate" suffices. Id. at 141.

As the government put on no witnesses at sentencing, the

trial court relied on the trial testimony of the three cooperating

witnesses and that of police officer Eddie Vidal-Gil, who had

investigated drug trafficking at Los Lirios beginning in 1997.

Officer Vidal-Gil testified that no less than two kilograms per

month were sold at Los Lirios between 1999 and 2002, the time frame

during which Sanchez was involved with the lower drug point.7

Officer Vidal-Gil testified that he based his estimates on his own
-22-

experiences, including interviews with suspects and informants and

information shared by other officers. In addition to the officer's

testimony, the court credited the trial testimony of Fernando Pagan

Flores, who said that heroin sales produced $20,000 to $25,000 per

day from a drug point which operated three shifts covering twenty

four hours per day. Also, one of the several peddlers working

under Sanchez had testified that he personally sold five kilograms

of heroin between 1999 and 2001. These data points, when taken

together, support the district court's conclusion as "a reasoned

estimate" that Sanchez was responsible for thirty kilograms of

heroin. Santos, 357 F.3d at 141. Thus, we find no error in his

sentencing.

2. Mendez

Mendez, who was sentenced to life imprisonment, posits

two claims of sentencing error. First, he argues that the trial

judge erroneously concluded that Mendez was responsible for at

least one kilogram of heroin. He further claims that his offense

level should not have included an increase for the murder of Felix

Gelbi. We disagree.

Mendez's sentencing proceedings were more protracted than

Sanchez's. First, the Presentence Report (PSR) arrived at a base

offense level of twenty four, based on a drug quantity of between

80 and 100 kilograms of marijuana, the only drug specifically noted
There was no explanation given as to why no heroin amount was asked 8

on Mendez's special verdict form. The trial judge did, however,

recognize that he had the responsibility of making this determination.

He also correctly noted that the verdict form asked the narrow

question of what Mendez "possessed with intent to distribute," but not

what was "foreseeable" to him, a factor which sentencing must take

into account. See Colon-Solis, 354 F.3d at 103.

-23-

in the special verdict form addressed to Mendez. Addressing the 8

death of Felix Gelbi, the PSR then applied the murder cross

reference, which resulted in an offense level of forty-three, the

highest level available. See U.S.S.G. §§ 2D1.1(d)(1), 2A1.1.

Although at the highest offense level, the PSR also "added" two

levels for the firearms use and four for Mendez's leadership role.

While an offense level of forty-three and a criminal history

category of I would warrant life imprisonment, the PSR concluded

that a statutory maximum of twenty years would apply based on the

special verdict form's drug findings, which included only

marijuana. See 21 U.S.C. § 841(b)(1)(C).

Mendez objected to the PSR consideration of the murder,

the managerial role, and the drug quantity (marijuana), and argued

that he deserved a downward adjustment for acceptance of

responsibility. The government, for its part, argued that the

court should find Mendez responsible for one kilogram of heroin,

and requested that the judge impose a life sentence.

Following a five-day sentencing hearing during which both

sides presented witnesses, the court concluded that it was

reasonably foreseeable to Mendez that at least one kilogram of
-24-

heroin would be distributed, leading to an offense level of thirtytwo. The court also applied the murder cross-reference and the

managerial role adjustment, bringing the total offense level to

forty three. Because of the judge's heroin finding, however, the

sentence came within the ambit of 21 U.S.C. § 841 (b)(1)(A) -- with

its maximum sentence of life. The court then sentenced Mendez to

the maximum term. Mendez appeals the drug quantity calculation and

the murder cross-reference.

As for the heroin calculation, we have little trouble

finding that the evidence at trial and the sentencing hearing

supports the trial court's finding. Pagan Flores testified that

Mendez sold heroin at one of Gatillo's drug points in 1997 and

1998. Negron Torres noted that he was a friend of Mendez, and also

a runner for Sanchez at the other drug point. From this, the court

quite reasonably concluded that Mendez could foresee the sales at

the other drug point. Pagan Flores also testified at the hearing

that he saw Mendez selling drugs in twelve-hour shifts. Although

part of this time was prior to the beginning of the charged

conspiracy in 1997, the court noted that Mendez’s direct

participation spanned at least seven months into the existence of

the charged conspiracy.

Against this factual backdrop, the court concluded that

it could easily find that it was foreseeable to Mendez that more

than one kilogram of heroin was sold. Given both his direct
-25-

participation in heroin sales, and the testimony about his

knowledge of the activities of the other drug point, we find no

error in this determination.

With respect to the murder cross-reference, Mendez simply

rehashes the sufficiency argument he made to defeat the conspiracy

charge, viz., that he didn't do it. He first notes that witness

Negron Torres was discredited because of some discrepancies between

his testimony and the forensic evidence. He then points to his own

testimony that he was elsewhere at the time of the killing, and

concludes, "there was evidence . . . which indicated that . . .

Mendez committed the murder and there was evidence presented which

indicated that he did not." Thus he argues, the evidence against

him is "washed out" by his own testimony. It is not surprising

that Mendez cites no authority for the proposition that evidence is

automatically "washed out" by opposing evidence. There is none.

Instead, it is axiomatic that the finder of fact -– whether the

jury at trial or the judge at sentencing –- is free to choose from

among competing versions of events. See United States v.

Sepulveda, 15 F.3d 1161, 1201 (1st Cir. 1993) ("The district

court's credibility determinations are beyond reproach."); see also

Cyr, 337 F.3d at 101 (sentencing court's choice among plausible

alternatives cannot be clearly erroneous). Accordingly we find no

error in the murder cross-reference, and affirm Mendez's life
-26-

sentence. We have reviewed Mendez's remaining sentencing arguments

and find them without merit.

For the reasons set forth herein, appellants' convictions

and sentences are Affirmed.