NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 18-3538, 18-3586, 18-3590, 

18-3664, 19-2909 & 19-2917

____________

UNITED STATES OF AMERICA

v.

JESUS BURGOS-MONTANEZ, Appellant in 18-3538 

JEAN CARLOS VEGA-ARIZMENDI, Appellant in 18-3586

JOSE R. HODGE, Appellant in 18-3590 

SERGIO QUINONES-DAVILA a/k/a Chulin a/k/a Pai, Appellant in 18-3664

OMY A. GUTIERREZ-CALDERON, Appellant in 19-2909 

ANIBAL A. VEGA-ARIZMENDI, a/k/a Bebo, Appellant in 19-2917

____________

On Appeal from the District Court 

of the Virgin Islands

(D.C. No. 1-16-cr-00009)

District Judge: Honorable Wilma A. Lewis

____________

Argued on December 8, 2022*

Before: CHAGARES, Chief Judge, GREENAWAY, JR. and FISHER, Circuit Judges.

(Filed: April 4, 2023)

* Counsel for five of the Defendants participated in oral argument. The sixth, 

Yohana Manning, counsel for Jesus Burgos-Montanez, did not participate in argument, as 

he was on medical leave. This court offered Attorney Manning an opportunity to 

reschedule argument, which he declined on January 24, 2023.
2

Yohana M. Manning

Manning Legal Services

2120 Company Street, Suite 2

Christiansted, VI 00820

Counsel for Appellant Jesus Burgos-Montanez

Robert J. Kuczynski ARGUED

Law Office of Beckstedt & Associates

2162 Church Street

Christiansted, VI 00820

Counsel for Appellant Jean Carlos Vega-Arizmendi

Renee D. Dowling ARGUED

Law Office of Renee D. Dowling

P.O. Box 1047

Christiansted, VI 00821

Counsel for Appellant Jose R. Hodge

Kye Walker ARGUED

The Walker Legal Group

2201 Church Street

Suite 16AB, 2nd Floor

Christiansted, VI 00820

Counsel for Appellant Sergio Quinones-Davila

Jennie M. Espada-Ocasio ARGUED

P.O. Box 13811

San Juan, PR 00908

Counsel for Appellant Omy A. Gutierrez-Calderon

Eszart A. Wynter, Sr ARGUED

27 Estate Whim, P.O. Box 1847

Frederiksted, VI 00841

Counsel for Appellant Anibal A. Vega-Arizmendi

Delia L. Smith, United States Attorney

Adam Sleeper, Assistant United States Attorney ARGUED

Everard E. Potter

Office of United States Attorney

5500 Veterans Drive

United States Courthouse, Suite 260

St. Thomas, VI 00802

Counsel for Appellee
3

 ___________

OPINION*

___________

FISHER, Circuit Judge.

These consolidated appeals arise from a lengthy drug conspiracy trial involving 

six defendants: Jesus Burgos-Montanez, Jose Hodge, Jean Carlos Vega-Arizmendi, 

Anibal Vega-Arizmendi1

, Sergio Quinones-Davila, and Omy Gutierrez-Calderon.

2 From 

2014 to 2016, Defendants conspired to smuggle drugs onto St. Croix by boat. They were 

eventually convicted of conspiracy to possess with intent to distribute more than five

kilograms of cocaine, as well as either possession or attempted possession of cocaine. 

They appeal, arguing errors occurred at trial and sentencing. For the reasons set forth 

below, we will affirm the convictions and sentences of all Defendants. 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.

1 Because Jean Carlos and Anibal share a last name, we use their first names.

2 This was the Defendants’ second trial involving the drug conspiracy. The first trial 

ended in a mistrial, so they were re-tried in 2019.
4

3

Before discussing the merits of the Defendants’ appeal, we note an error made by 

the Defendants that potentially results in the forfeiture of some of their arguments.

While the appeal was pending, our Clerk’s Office encouraged the Defendants to 

adopt, pursuant to Fed. R. App. P. 28(i), portions of one another’s briefs to minimize 

repetition. Defendants Jean Carlos, Gutierrez-Calderon, Hodge and Quinones-Davila

attempt to incorporate all arguments raised by their co-Defendants by including blanket 

statements of incorporation in their briefs. This is insufficient. Defendants must make 

clear the specific issues they are incorporating; otherwise, they have forfeited the issue on 

appeal. United States v. Williams, 974 F.3d 320, 339 n.7 (3d Cir. 2020). “[G]eneral 

statements of adoption under Rule 28(i) will not be regarded.” Id. This Court will not 

“serve as a Defendant’s lawyer, ‘scour[ing] the record’ for him and determining ‘which 

of the many issues of his codefendants [are] worthy of our consideration.’” Id. (quoting 

United States v. Fattah, 914 F.3d 112, 146 n.9 (3d Cir. 2019)). Thus, any arguments 

Defendants attempt to incorporate are forfeited.

Defendants challenge their convictions based on the sufficiency of the evidence. 

We review a district court’s denial of a motion for judgment of acquittal de novo. United 

States v. Hoffert, 949 F.3d 782, 790 (3d Cir. 2020). In conducting our de novo sufficiency 

of the evidence inquiry, we view “the record in the light most favorable to the 

3 The District Court had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231. 

This Court has jurisdiction under 28 U.S.C. § 1291 (final decisions).
5

prosecution to determine whether any rational trier of fact could have found proof of guilt 

beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 

(3d Cir. 2013) (internal quotation marks, citation, and alteration omitted).

To succeed on Count One, conspiracy to possess with intent to distribute more 

than five kilograms of cocaine from January 2014 to March 2016, in violation of 21 

U.S.C. §§ 841(a), 841(b)(1)(A)(ii) and 846, the Government needed to prove the 

following: “(1) a unity of purpose between the alleged conspirators; (2) an intent to 

achieve a common goal; and (3) an agreement to work together toward that goal.” United 

States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001). Counts Two through Five are 

attempted possession with the intent to distribute more than five kilograms of cocaine; to 

convict, the jury must have been persuaded beyond a reasonable doubt that each 

defendant “(1) acted with the requisite intent to violate the statute, and (2) performed an 

act that, under the circumstances as he believes them to be, constitutes a substantial step 

in the commission of the crime.” United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 

2006). Count Six charged possession with intent to distribute five or more kilograms of 

cocaine, in violation of 21 U.S.C. §§§ 841(a), 841(b)(1)(A)(ii), 846 and 18 U.S.C. § 2, 

where the Government needed to prove that each Defendant “(1) knowingly possessed 

[the] controlled substance with (2) the intent to distribute it.” United States v. Iglesias, 

535 F.3d 150, 156 (3d Cir. 2008) (citation omitted). Counts Two through Six were 

brought under the theory of aiding and abetting, meaning the Government also needed to 

prove beyond a reasonable doubt that a substantive crime was committed, the Defendant
6

knew a crime was committed, and he “acted with intent to facilitate it.” United States v. 

Petersen, 622 F.3d 196, 208 (3d Cir. 2010) (citation omitted).

1. Count One

Defendants Quinones-Davila, Burgos-Montanez, Gutierrez-Calderon, and Anibal 

Vega-Arizmendi challenge the sufficiency of evidence supporting Count One, conspiracy 

to possess with intent to distribute more than five kilograms of cocaine from January 

2014 to March 2016. A conviction for conspiracy requires a unity of purpose and intent 

among the conspirators, along with an agreement to work together. Pressler, 256 F.3d at

147. 

Quinones-Davila argues there was insufficient evidence to support his conviction 

because he and Hodge refused to work together, meaning there were two separate 

conspiracies—not one, as alleged in the indictment. A conviction must be vacated when

the number of conspiracies charged in the indictment and proved at trial differs and the 

difference “prejudices a substantial right of the defendant.” United States v. Kelly, 892 

F.2d 255, 258 (3d Cir. 1989). To determine whether a group of individuals was engaged 

in a single conspiracy or multiple conspiracies, we consider: (1) “whether there was a 

common goal among the conspirators”; (2) “whether the agreement contemplated 

bringing to pass a continuous result that [would] not continue without the continuous 

cooperation of the conspirators”; and (3) “the extent to which the participants overlap in 

the various dealings.” United States v. Kemp, 500 F.3d 257, 287 (3d Cir. 2007) (quoting 

Kelly, 892 F.2d at 259). 
7

There was sufficient evidence for a rational jury to find a single conspiracy, as 

there was a common goal to retrieve cocaine in the waters of St. Croix and the success or 

failure of the operation depended on the constant drug runs. Additionally, Hodge and 

Quinones-Davila overlapped in their dealings: Hodge told Timothy Schoenbohm—the 

Government’s confidential informant and primary witness at trial—that Quinones-Davila 

wanted to meet him, and Hodge made a trip to retrieve drugs for Quinones-Davila.

Because there was sufficient evidence of a single conspiracy, there was no variance that 

could have prejudiced Quinones-Davila’s substantial rights. 

Burgos-Montanez, Gutierrez-Calderon, and Anibal contend there was insufficient 

evidence to convict them because they were present but were not aware of the illegal 

activities of the conspiracy. To sustain a conviction for conspiracy with intent to 

distribute a controlled substance, the government must introduce drug-related evidence

from which “a rational trier of fact could logically infer that the defendant knew a 

controlled substance was involved in the transaction at issue.” United States v. Boria, 592 

F.3d 476, 481 (3d Cir. 2010). The record shows all three Defendants’ participation and 

knowledge of the conspiracy.

Burgos-Montanez helped bring a heavy fuel tank onto Schoenbohm’s boat, the 

Scorpion, before boarding it himself. Burgos-Montanez was also found on the beach at 

Knight’s Bay near four suitcases containing over 87 kilograms of cocaine, and he fled

when police announced themselves. A rational trier of fact could infer Burgos-Montanez 

knew about the illegality of the conspiracy from the totality of this evidence. See 

Caraballo-Rodriguez, 726 F.3d at 433 (sufficient evidence of conspiracy where the 
8

defendant traveled from Puerto Rico to Philadelphia with only a small bag containing $33 

and who transferred suitcases that did not belong to him from the baggage conveyor to a 

vehicle); United States v. Leon, 739 F.2d 885, 893 & n.19 (3d Cir. 1984) (sufficient 

evidence of conspiracy where the defendant was present at the crime scene, associated

with those involved in criminal enterprise, and fled from the scene when agents 

announced themselves). 

There is also sufficient evidence of Gutierrez-Calderon’s involvement and 

knowledge of the drug trafficking conspiracy. He provided Schoenbohm with a firearm

and later asked Schoenbohm if the Scorpion could go out again for a drug run and offered 

to pay. 

Anibal was present in October 2014 when a group discussed retrieving 71 

kilograms of cocaine. Anibal was also on the Scorpion for multiple failed retrieval 

attempts, and for the successful one when he helped get the cocaine onto the boat. 

Ultimately, there was sufficient evidence to convict all of the Defendants of Count 

One. 

2. Count Two

Gutierrez-Calderon argues there was insufficient evidence to convict him of aiding 

and abetting the attempted possession of 80 kilograms of cocaine in November 2014 

because he did not provide Schoenbohm with a firearm, and Schoenbohm spoke 

inconsistently about the gun’s origin. To convict an individual of aiding and abetting an 

attempted possession, the government needs to prove the defendant knew about the crime 
9

and helped facilitate it. Petersen, 622 F.3d at 208. Despite Schoenbohm’s inconsistent 

testimony, there is enough evidence in the record for a reasonable jury to find GutierrezCalderon aided and abetted the attempted possession by giving Schoenbohm the gun. 

Schoenbohm testified that Gutierrez-Calderon gave him a firearm for protection

before an attempted drug run and told Schoenbohm the gun was a “fully automatic, 

machine gun” that “shoots real fast.” JA 2034–35. However, Gutierrez-Calderon points 

out that when the police stopped Schoenbohm, he told them the firearm belonged to the 

car’s passenger, Hodge. At trial, Schoenbohm explained he initially lied to the police 

because he was afraid of the consequences if he said the gun belonged to him. Viewing 

these inconsistent statements in the light most favorable to the Government, see 

Caraballo-Rodriguez, 726 F.3d at 430, a trier of fact could believe Schoenbohm’s 

explanation at trial and find Gutierrez-Calderon guilty: attempted possession of cocaine 

occurred, Gutierrez-Calderon knew the crime would occur, and he facilitated the crime 

by providing Schoenbohm with a gun.

3. Count Four

Jean Carlos argues there was insufficient evidence to convict him of attempt 

because the Government did not prove the gas tank he brought onto the Mako—another

boat that often made drug runs—was used for the May 2015 attempt. To be convicted of 

an attempt, a defendant must perform a substantial step in the commission of the charged 

crime. Tykarsky, 446 F.3d at 469. If the gas was not used for the May 2015 attempt, he 

argues, then he did not perform a substantial step and should not have been convicted.
10

While mere preparation is insufficient to constitute a substantial step of an attempted 

crime, gathering needed items or traveling to the scene goes “beyond mere planning.” 

United States v. Davis, 985 F.3d 298, 304–05 (3d Cir. 2021); see also Model Penal Code 

§ 5.01(2)(f) (“possession, collection, or fabrication of materials to be employed in the 

commission of the crime, at or near the place contemplated for its commission” may be 

sufficient). Supplying the Mako with gas was a substantial step. 

DEA Task Force Officer Peter Kalme testified that Jean Carlos told him that he 

went to St. Croix in May 2015 with a gas tank to acquire cocaine on the Mako. DEA 

surveillance of the Mako in May 2015 showed the boat leaving Chenay Bay in the

morning and returning after 9:00 p.m. without its lights on. Because Schoenbohm 

testified that he would turn off the navigation lights to avoid detection when he went out 

to retrieve cocaine, this indicates the Mako was on a drug run when the DEA surveilled it

in May 2015. Thus, a reasonable jury could conclude that Jean Carlos’s actions

constituted a substantial step towards the May 2015 attempt.

4. Count Six

Burgos-Montanez and Gutierrez-Calderon contend the District Court erred when it 

held there was sufficient evidence to convict them of Count Six, possessing and aiding

and abetting others’ possession with intent to distribute more than five kilograms of 

cocaine in November 2015. Gutierrez-Calderon argues he did not directly give 

Schoenbohm gas money, and thus did not “act[] with intent to facilitate” the possession 

of cocaine. Petersen, 622 F.3d at 208 (citation omitted). Burgos-Montanez takes a 
11

different approach, arguing he did not have advance knowledge that the controlled 

substance was more than five kilograms of cocaine—meaning he did not know the nature 

of the crime committed—and thus cannot have aided and abetted it. Both Defendants are 

incorrect.

There was sufficient evidence to convict Gutierrez-Calderon of Count Six because 

he facilitated the gas payment, which Schoenbohm used to fuel his boat and retrieve 

drugs. Hodge texted Schoenbohm and told him to text Gutierrez-Calderon, who would 

send gas money. The same day, Schoenbohm texted Gutierrez-Calderon the number 700 

and his own name, and then Gutierrez-Calderon texted Schoenbohm an assortment of 

numbers and Burgos-Montanez’s name. Western Union records show a sender named 

Jesus Burgos-Montanez sent $700 with a money transfer control number that matched the

numbers Gutierrez-Calderon texted Schoenbohm. Although Gutierrez-Calderon did not 

send the gas money himself, he coordinated the payment. And even though GutierrezCalderon never told Schoenbohm explicitly that the payment was gas for a drug run, a 

reasonable jury could rationally infer this was the payment’s purpose and that GutierrezCalderon aided and abetted the attempted possession of cocaine. 

Burgos-Montanez contends there is no evidence he knew the controlled substance 

was more than five kilograms of cocaine, and an aider and abettor must have knowledge 

of the facts triggering penalties—here, whether five or more kilograms of cocaine were 

intended to be distributed. Burgos-Montanez’s cited case addressed whether an aider and 

abettor of an 18 U.S.C. § 924(c) violation must know the principal would use or carry a 

firearm during the crime. Rosemond v. United States, 572 U.S. 65, 67 (2014). But in the 
12

context of § 841(a) and (b) charges—which are the relevant charges here—the defendant 

need not within the scope of the conspiracy “consciously cognize the amount [of drugs] 

he is distributing in order to violate the law.” Williams, 974 F.3d at 363. “[A] person who 

engages in drug trafficking violates § 841(a), and the penalty for that violation is to be 

determined according to § 841(b), which provides both a default penalty and heightened 

penalties based on certain additional findings.” Id. As a result, it is sufficient that the 

knowing or intentional distribution or possession occurred; the quantity of the drug is a 

“factual finding that goes to the sentence to be imposed.” Id. This interpretation is 

consistent with Apprendi because there the Court “operated on an expansive definition of 

‘crime’ according to its ‘invariable linkage’ with punishment, . . . rather than specifically 

the conduct and mental state deemed illegal.” Id. (quoting Apprendi v. New Jersey, 530 

U.S. 466, 478 (2000)). Therefore, there was sufficient evidence for a reasonable jury to 

convict Burgos-Montanez of Count Six. 

The District Court properly denied Gutierrez-Calderon’s motion for a new trial 

due to an alleged court closure. A motion for a new trial must be filed within fourteen

days of the verdict or finding of guilt unless the reason for the motion is newly 

discovered evidence. Fed. R. Crim. P. 33(b)(1)–(2). Gutierrez-Calderon first raised the 

courtroom closure issue four months after the jury’s verdict in a pro se motion; his 

counsel filed a motion for a new trial a month later. The motion was not based on newly 

discovered evidence, and thus, his claim is untimely.4

4 Gutierrez-Calderon has been represented by two lawyers. The first tried the case 

and filed the opening brief, while the second filed the reply brief and argued the case. In 
13

Quinones-Davila contends the District Court abused its discretion when it denied

his motion to pre-authorize payment for a DEA expert; because of this, he argues he 

should be granted a new trial. In cases where the defendant is “financially unable to 

obtain investigative, expert, or other services necessary for adequate representation,” he

may request that the court authorize funding. 18 U.S.C. § 3006A(e)(1). The defendant 

must demonstrate with specificity why the expert is required. See United States v. 

Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States v. Pitts, 346 F. App’x. 839, 841–

42 (3d Cir. 2009). Before authorizing the funds, the court must determine whether the 

“defendant may have a plausible defense.” United States v. Roman, 121 F.3d 136, 143 

(3d Cir. 1997) (citation omitted). The District Court did not abuse its discretion in 

denying Quinones-Davila’s motion for a DEA expert.

On appeal, Quinones-Davila states a DEA expert would have effectively crossexamined agents and reviewed discovery materials to identify potential breaches of DEA 

policies, including the mishandling of confidential informants. However, when filing his 

motion before trial, Quinones-Davila did not provide these specific reasons. Instead, he 

asserted the DEA expert would interpret discovery and create cross examination

questions. Because these reasons were not specific—and this Court reviews a district 

court’s denial of an expert witness “in light of only the information available to the trial 

the reply brief, Gutierrez-Calderon argues for the first time that his previous counsel was 

ineffective because he did not raise the courtroom closure issue when Gutierrez-Calderon 

told him about it at trial. Despite the change in attorneys, the ineffective assistance of 

counsel claim is forfeited. Gutierrez-Calderon’s new counsel had the opportunity to file a 

substitute opening brief raising this issue. New counsel instead chose to adopt the opening 

brief on file. As the argument was not raised in the opening brief, it is forfeited. See United 

States v. Kolodesh, 787 F.3d 224, 230 n.3 (3d Cir. 2015).
14

court at the time it acted on the motion,” Gadison, 8 F.3d at 191—the District Court did 

not abuse its discretion in denying Quinones-Davila’s motion.

Quinones-Davila argues that the District Court also abused its discretion by 

denying his motion to continue because he did not have enough time to study the first 

trial’s transcript and the new discovery materials. When exercising its discretion to grant 

or deny a motion to continue, a court should consider: the efficient administration of 

criminal justice; the accused’s rights, including the opportunity to prepare a defense; and 

the rights of other defendants who may be prejudiced by a continuance. United States v. 

Kikumura, 947 F.2d 72, 78 (3d Cir. 1991). A district court abuses its discretion when the

denial of a continuance is “so arbitrary as to violate due process.” Id. (citation omitted). 

Here, after the first trial ended in a mistrial, the Government filed a second 

superseding indictment and sent new discovery materials to the Defendants. The first 

trial’s discovery, evidence, and testimony put the Defendants on notice of the charges 

that would be in the second superseding indictment. Additionally, Quinones-Davila 

received daily transcripts of the four key witnesses’ testimony during the first trial—

meaning he had nearly ten months to review the key parts of the transcript—and he had 

over a month to investigate the new evidence in the last discovery batch. Thus, QuinonesDavila was afforded the opportunity to prepare a defense and the denial of the 

continuance was not “so arbitrary as to violate due process.” Kikumura, 947 F.2d at 78.

5

5 Quinones-Davila argues the totality of the denial of his motions to hire a DEA 

expert and to continue rendered his trial fundamentally unfair, and he should be granted a 

new trial. Because the District Court did not abuse its discretion in denying either the 

motion to authorize a DEA expert or the motion to continue, it did not abuse its discretion 

in denying Quinones-Davila’s motion for a new trial. 
15

Jurors 5 and 12 were dismissed at two different points during trial after they 

separately expressed concern about whether their families would be safe if the 

Defendants were convicted. Hodge raises several issues with how the District Court 

handled these jurors, arguing he was denied his right to a fair and impartial jury. He only 

asserted one of these issues below, so we review the issues that were not raised for plain 

error. Fed R. Crim. P. 52(b). We review the issue that was raised below for abuse of 

discretion. United States v. Bertoli, 40 F.3d 1384, 1392–93 (3d Cir. 1994). Ultimately, 

Hodge is unsuccessful. 

First, Hodge argues he was prejudiced because the District Court did not ask the 

remaining jurors whether they discussed retaliation if they were to find the Defendants 

guilty. Hodge raised this issue below, so we review it for abuse of discretion. Such 

discussions would have constituted premature deliberation and, therefore, juror 

misconduct. See United States v. Resko, 3 F.3d 684, 688–90 (3d Cir. 1993). But “[t]he 

more speculative or unsubstantiated the allegation of misconduct, the less the [district 

court’s] burden to investigate.” Bertoli, 40 F.3d at 1395 (citation omitted). Hodge’s juror 

misconduct argument is entirely speculative, so the District Court had no burden to 

investigate. Juror 5’s concern was triggered by her mother’s comment that “so and so has

a cousin that’s in the thing that you’re in,” and Juror 5 was worried about retaliation 

because at least one Defendant knew her mother. JA 3898. On the other hand, Juror 12 

indicated nothing happened to trigger his concern, like premature jury deliberations, and 

no one had contacted his family. The lack of similarities indicates the jury was not 

deliberating prematurely, so there was no reason to question the rest of the jury—and 

therefore the District Court did not abuse its discretion.
16

Second, Hodge argues the District Court erred by communicating ex parte with 

Juror 12 because the parties did not know the extent, if any, of premature jury 

deliberations. When Juror 12 was probed by the Court during the ex parte discussion, he 

implied he was not afraid due to external pressures. And the District Court provided a 

summary of the conversation with Juror 12 to the parties. When the District Court gave 

this summary, Hodge’s counsel asked a question about whether Juror 12’s family had 

been contacted. The District Court responded that it would ask the juror that question.

When the Court spoke with Juror 12 again, it asked the question Hodge’s counsel brought 

up—meaning, if counsel wanted the Court to inquire about potential premature jury 

deliberations as well, she could have asked the Court to discuss it with Juror 12. This was 

sufficient to resolve counsel’s concerns of premature jury deliberation, and there was no 

plain error. 

Third, Hodge argues the District Court erred by failing to instruct dismissed jurors 

to not discuss the case with third parties; he contends a third party could communicate 

information from the dismissed jurors to seated jurors and taint the jury. He also argues

the District Court erred by not immediately warning Juror 12—after he expressed safety 

concerns, but before he was dismissed a week later—to refrain from discussing his 

concerns with the other jurors. Hodge points to no evidence that the lack of instruction 

actually tainted the jury. Thus, there is no plain error.

Jean Carlos argues that DEA Officer Kalme—who translated during Jean Carlos’s

post-arrest interview—should not have been allowed to testify about the interview 

because he refreshed his recollection by reviewing the report of another agent who 

conducted the interview and took notes. A witness’s testimony must be based on his 
17

personal knowledge. Fed. R. Evid. 602. “Testimony should not be excluded for lack of 

personal knowledge unless no reasonable juror could believe that the witness had the 

ability and opportunity to perceive the event that he testifies about.” United States v. 

Hickey, 917 F.2d 901, 904 (6th Cir. 1990); see also United States v. Gerard, 507 F. 

App’x 218, 222 (3d Cir. 2012). A witness can testify from personal knowledge even if he 

refreshes his recollection with a report written by someone else. United States v. Booz, 

451 F.2d 719, 724 (3d Cir. 1971). The District Court did not abuse its discretion by 

allowing Officer Kalme to testify. Kalme testified that the report was accurate: after he 

read it, it matched his recollection of the interview. Thus, a reasonable juror could 

conclude that Kalme was testifying from his personal knowledge rather than merely 

reciting the contents of the report.6

The District Court did not clearly err when it held Anibal and Jean Carlos 

ineligible for statutory safety valve relief. To prevail on this claim, a defendant must, 

among other things, “truthfully provide[] to the Government all information and evidence 

[he] has concerning the offense.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).

However, “the fact that the defendant has no relevant or useful information to 

provide . . . shall not preclude a determination by the court that the defendant has 

complied with this requirement.” Id. While this Court reviews the ultimate safety valve 

determination de novo, we review the factual determination of whether a defendant 

6 Jean Carlos also argues there is a potential hearsay issue when a witness testifies 

about statements he heard through an interpreter. See, e.g., United States v. Nazemian, 948 

F.2d 522, 525–26 (9th Cir. 1991). However, unlike in Nazemian and Jean Carlos’s other 

cases, Kalme understood Jean Carlos without translation, so these potential hearsay issues 

are not applicable. 
18

satisfied the safety valve requirements for clear error. United States v. Sabir, 117 F.3d 

750, 752 (3d Cir. 1997).

Anibal fails to show he met the statutory requirements of safety valve relief. 

Despite arguing he was innocent and had no information, his counsel later told the 

District Court that he may have information to share about his incarceration with the coDefendants. But nine months passed between the first partial sentencing hearing and the 

second hearing, and no information was provided. Because Anibal’s counsel informed 

the District Court that Anibal had information but it was never shared with the 

Government, Anibal does not qualify for safety valve relief.

Jean Carlos fails to show the District Court clearly erred in finding that he was not 

entirely truthful because his statements contradicted each other and the record. In his 

written proffer, Jean Carlos said he was not present when $500,000 was dumped into the 

ocean; in his post-arrest statements, he said he was there. Also, Jean Carlos and 

Schoenbohm’s accounts differ on when Jean Carlos arrived in St. Croix in December 

2014. Although Jean Carlos argues any errors were due to his imperfect memory, the 

contradictions support the finding that he was not fully truthful. Either way, Jean Carlos’s 

failure to provide details and the Government’s ability to identify why Jean Carlos was 

not completely forthcoming is sufficient to show that the District Court’s factual finding 

was not clearly erroneous. See United States v. Miranda-Santiago, 96 F.3d 517, 529 (1st 

Cir. 1996) (requiring more than simple conclusory statements by the government that it

did not believe the defendant).7

7 Jean Carlos also argues the District Court erred in applying a two-point special 

skill enhancement. Because Jean Carlos is ineligible for safety valve relief—and the 

District Court sentenced him to the statutory mandatory minimum—removing the special 

skill enhancement would not lessen his sentence and any error was harmless. 
19

Gutierrez-Calderon argues the District Court clearly erred by applying the 

manager or supervisor enhancement to his sentence because he did not accompany 

Schoenbohm on any drug runs or give Schoenbohm money to buy drugs. The Sentencing 

Guidelines allow the judge to increase the offense “[i]f the defendant was a manager or 

supervisor (but not an organizer or leader) and the criminal activity involved five or more 

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). Applying this

enhancement was not clear error. 

To qualify for the enhancement, the court must find the defendant exercised 

control over another individual, there were multiple participants in the crime, and there 

was some differentiation in the participants’ culpabilities and responsibilities. United 

States v. Katora, 981 F.2d 1398, 1405 (3d Cir. 1992). The word “control” is used “in a 

broad sense to mean [a] supervisory or organizational role . . . including recruitment.” 

United States v. Kamoga, 177 F.3d 617, 621 (7th Cir. 1999) (citation omitted) (holding 

“control” encompasses indirect supervisory authority and a defendant does not need 

knowledge of all the other participants in a criminal activity). We review a district court’s 

factual determinations, including a defendant’s role in the offense under U.S.S.G. 

§ 3B1.1, for clear error. United States v. Raia, 993 F.3d 185, 191 (3d Cir. 2021).

The evidence shows Gutierrez-Calderon exercised control over at least one other 

person by providing the necessary resources and arranging the payment to support 

criminal activity.

8 Gutierrez-Calderon stated he was going to pay for the Mako’s storage, 

8 Gutierrez-Calderon cites United States v. Badaracco, 954 F.2d 928, 935 (3d Cir. 

1992) for the proposition that “the government must prove by a preponderance of the 

evidence that the developers were criminally responsible participants if the upward 

adjustment is to stand.” Badaracco does not apply. Badaracco is relevant only given that 

we recognize that there are multiple participants in the instant offense who are criminally 

responsible. Id. at 935. That is not the relevant issue here.
20

he coordinated payment for gas by sharing the necessary sender and receiver information, 

and he provided Schoenbohm with a gun. Thus, it was not clear error to conclude 

Gutierrez-Calderon acted as a manager or supervisor. 

The Sentencing Guidelines provide that “[i]f the defendant clearly demonstrates 

acceptance of responsibility for his offense,” his sentence can be reduced by up to three 

levels. U.S.S.G. § 3E1.1. Quinones-Davila argues he is eligible for this reduction because 

he cooperated with the Government. But acceptance of responsibility generally does not 

apply when a defendant “puts the government to its burden of proof at trial by denying 

the essential factual elements of guilt.” U.S.S.G. § 3E1.1, cmt. n.2.

Despite previous cooperation with the Government, Quinones-Davila did not 

accept responsibility for his actions. He challenged his factual guilt by moving for a 

judgment of acquittal and disputed the sufficiency of the Government’s evidence and 

witnesses. Cooperating with the government is not the same as accepting responsibility 

and thus the District Court did not err when it denied Quinones-Davila’s request for an 

acceptance of responsibility reduction.

Hodge argues the District Court erred when it used improper evidence to 

determine his drug quantity, and it should have waited to sentence him until the certified 

trial transcript was ready. At trial, the jury found that Hodge was responsible for five or 

more kilograms of cocaine; at sentencing, the District Court attributed 193.3 kilograms to 

Hodge. To determine this amount, the District Court listened to the Government’s proffer 

and relied on its notes from trial to confirm the proffer’s accuracy. “At sentencing, ‘the 

government bears the burden of proving drug quantity by a preponderance of the 
21

evidence.’” United States v. Douglas, 885 F.3d 145, 150 (3d Cir. 2018) (quoting United 

States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993)) (internal alterations omitted). The

district court must “satisfy itself that the evidentiary basis for its estimate has sufficient 

indicia of reliability.” Id. at 151. This “indicia of reliability” can be found from

corroboration or consistency with other evidence. Id. The Government met its burden of 

proving drug quantity by a preponderance of the evidence, and the District Court’s 

reliance on its notes to corroborate the evidence was proper.9

To support its argument for Hodge’s drug quantity, the Government reminded the 

District Court about testimony from a chemist and Schoenbohm. Because the Court was 

present during trial, it could rely on its own recollection and notes to ensure this

testimony, among other evidence presented by the Government, was reliable for 

sentencing purposes. There was no need for the District Court to wait until the trial 

transcript was ready because the evidence used to estimate Hodge’s drug quantity was 

sufficiently reliable. See Paulino, 996 F.2d at 1548 (determining that an agent’s recital of 

events from a discussion with a confidential informant met the sufficient indicia of 

reliability standard).

For the foregoing reasons, we will affirm the District Court. 

9 From his briefing, Hodge implies that he did not have sufficient notice under Fed. 

R. Crim. P. 32 because the sentencing judge relied on the Government’s proffer as opposed 

to “sufficient evidence.” This, he argues, did not allow him to properly challenge the basis 

of calculations of drug quantity. First, Hodges conflates arguments under Rule 32 and 

sufficient indicia of reliability. Second, the District Court presented evidence heard at trial 

when Hodge was present. This does not implicate the same “surprise” concerns underlying 

the notice requirement embedded in Rule 32(i)(1)(C).