United States Court of Appeals

For the First Circuit

No. 99-1465

UNITED STATES,

Appellee,

v.

RICARDO PADRÓ BURGOS, A/K/A RICKY PADRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

 Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Ignacio Fernández-de Lahongrais for appellant.

Jacabed Rodríguez-Coss, Assistant United States Attorney,

with whom Guillermo Gil, United States Attorney, was on brief

for appellee.
1The third issue involves the constitutionality of the

appointment of an interim United States Attorney in Puerto Rico.

We recently addressed that issue and upheld the appointment.

United States v. Hilario, 218 F.3d 19 (1st Cir. 2000).

Therefore, this issue will not be discussed further.

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February 6, 2001

BOWNES, Senior Circuit Judge. Defendant-appellant

Ricardo Padro Burgos was found guilty by a jury of being part of

a conspiracy to distribute in excess of five kilograms of

cocaine, in excess of five kilograms of cocaine base, and in

excess of one hundred kilograms of marijuana in violation of 21

U.S.C. § 846 (count II). He was also found guilty of violating

18 U.S.C. § 924(c)(1) by using firearms during and in relation

to drug trafficking, and of aiding and abetting the commission

of both offenses under 18 U.S.C. § 2 (count III). 

Defendant raises three issues on appeal: (1) the

improper admission of “unfairly prejudicial” statements

purportedly made by coconspirators;” (2) sentencing errors; and

(3) the district court's lack of jurisdiction to hear the case.1

I.

Defendant Padro Burgos was a member of a gang whose

main business was selling cocaine, heroin, and marijuana. Padro
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Burgos and eight others were tried together, and all were found

guilty as charged. We consolidated the appeals. Seven of the

defendants, including Padro Burgos, argued orally on September

14, 2000. 

The gang to which Padro Burgos belonged controlled two

drug points from which it sold its wares. One of the drug

points was located in a public housing project in San Juan,

Puerto Rico. Another drug point, which mainly sold heroin, was

located within the Hogar Crea detention and drug rehabilitation

facility in Saint Just at Trujillo Alto, Puerto Rico. Padro

Burgos was in charge of the drug point at the Hogar Crea

facility and most of his drug-related activity took place there.

II.

We state the issues as phrased by the defendant.

 1. Was appellant Padro deprived of a fair trial

by the allowance of unfairly prejudicial

statements purportedly made by

coconspirators, despite the fact that no

independent evidence, other than the

statements themselves, showed by a

preponderance of the evidence that a

conspiracy existed between the declarant and

the defendant?

A salient exception to the hearsay rule, Fed. R. Evid.

801(c), is that “a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy” is not

hearsay. Fed. R. Evid. 801(d)(2)(E). In United States v.
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Sepulveda, 15 F.3d 1161 (1st Cir. 1993), we explained how the

exception works:

To invoke the exception, a party who wants

to introduce a particular statement must

show by a preponderance of the evidence that

a conspiracy embracing both the declarant

and the defendant existed, and that the

declarant uttered the statement during and

in furtherance of the conspiracy. The party

at whom the evidence is aimed must object to

the statement when it is offered; and, if

the district court accepts the evidence de

bene, must then ask the court at the close

of all the relevant evidence to strike the

statement, i.e., to consider whether the

proponent fulfilled the requisite

foundational requirements by a preponderance

of the evidence.

Id. at 1180 (internal citations omitted). 

The last sentence of Rule 801(d)(2)(E) states in

pertinent part:

The contents of the statement shall be

considered but are not alone sufficient to

establish . . . the existence of the

conspiracy and the participation therein of

the declarant and the party against whom the

statement is offered under subdivision (E).

See also Sepulveda, 15 F.3d at 1182 ("In other words, to satisfy

the weight-of-the-evidence criteria for that hearsay exception,

there must be some proof aliunde.”). In Sepulveda, we concluded

it was error to admit hearsay statements by two declarants

because “the government developed no independent evidence” of
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what the “status” of the declarants “might have been vis-a-vis

the charged conspiracy.” Id.

We now turn to the case before us. After the

government’s chief witness, William Acevedo Rodriguez, testified

at length about the scope and activities of his coconspirators

and identified the defendant as a member of the conspiracy, the

trial judge ruled:

With the evidence that the court has heard

already, we find, for purposes of this

ruling under 104 and subject to a final

ruling at the end of all of the evidence,

that the government has proven there was a

conspiracy in existence as stated in the

indictment. That the declarant was a member

of this conspiracy. That the defendants

against whom the statements are offered were

members of the conspiracy. These statements

were made in furtherance of that conspiracy.

The statement was made during the course of

this conspiracy.

No objection was made by Padro Burgos or any other defendant;

hence we review the ruling for plain error. See Sepulveda, 15

F.3d at 1180.

There can be no doubt that the testimony of the

principal witness for the government, Acevedo, fell squarely

within the hearsay exception set forth in Fed. R. Evid.

801(a)(2)(E). He identified each of the defendants, including

Padro Burgos, and described in detail their activities as part

of the conspiracy. Acevedo described Padro Burgos’s role in the
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conspiracy as being in charge of the drug point at the Hogar

Crea facility. Acevedo also identified Padro Burgos as being

part of a group that executed two members of a rival gang that

had temporarily wrested control of the Hogar Crea drug point

from the members of the conspiracy. The district court did not

commit error, plain or otherwise, in admitting Acevedo’s

testimony under the coconspirator exception to the hearsay rule.

We next turn to the second step in our analysis:

whether there was sufficient independent non-hearsay evidence to

support Acevedo's testimony. As we noted in United States v.

Portela, 167 F.3d 687, 703 (1st Cir. 1999), the extent of such

corroborating evidence is an open question because in Sepulveda,

15 F.3d at 1181-82, there was no corroborating evidence at all.

And as in Portela, 167 F.3d at 703, we find there is sufficient

independent non-hearsay testimony to make it unnecessary to

determine precisely how much corroborating evidence is needed to

meet the requirements of Sepulveda. 

The independent non-hearsay evidence came from Ramon

Santiago Cascanzo, who testified as follows: Santiago was an

inmate at the Hogar Crea facility in May of 1994. He had been

transferred there from the jail at Guyamo where he had been

incarcerated for murder, which he claimed was committed in selfdefense. Santiago identified Padro Burgos and testified that he
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was the leader of the inmates at the Hogar Crea facility. As

the leader, Padro Burgos selected the disciplinary committee,

which disciplined inmates who had broken any of the rules set by

the inmate committee governing behavior at the Hogar Crea

facility. One of the rules prohibited the possession of

weapons.

Santiago testified that at 7:30 on the morning of May

16, 1994, “a few of the guys met” and they “ousted Acevedo" (the

government witness, a/k/a Pito Metra) from the Hogar Crea drug

point. Santiago and his three friends, Angel, Reynaldo, and

Melvin, were present when the ousting took place.

Later in the morning, Padro Burgos came looking for

Santiago and his three friends, because the day before some

money had been stolen by Acevedo and Javier Franky Ortiz (a codefendant). Stealing money was prohibited under the rules set

by the disciplinary committee.

At the insistence of Padro Burgos and two other

identified members of the conspiracy, Santiago and his three

friends went to a hut on the grounds of or near the Hogar Crea

facility. At the hut, Padro Burgos asked Santiago and his three

friends whether they had weapons. Although Santiago did have a

handgun, which he had obtained at the Guyamo jail, he denied
2The gun was marked in evidence.

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having a weapon, as did each of his three friends.2 When

Reynaldo stood up and denied having a weapon, Carlos Peca, one

of the other members of the conspiracy, shot him in the face.

Santiago started running and was shot eight times. He fell

down, looked back and identified those shooting at him: Padro

Burgos, “El Vijeo, Carlos Javier, and the minor.” All of those

named are alleged to be members of the conspiracy. A diagram of

the hut area was entered into evidence. Santiago marked the

position of Padro Burgos and the other shooters on the diagram.

Santiago also testified that Padro Burgos sold heroin regularly

at the Hogar Crea facility and decided who else could sell drugs

there. 

This independent non-hearsay corroborating testimony

was more than sufficient to meet the “aliunde” requirement of

the last sentence of Fed. R. Evid. 801(d)(2)(E). Hence, there

was no error in admitting Acevedo's testimony against Padro

Burgos.

 2. Did the sentencing court err in assessing a

base offense level of 43 pursuant to an

offense involving 30 kilograms or more of

heroin and the killing of a victim under

circumstances that would constitute murder

under 18 U.S.C. § 1111?
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On appeal, Padro Burgos challenges the district court's

imposition of a life sentence following his conviction. We

review the district court's application of a particular

sentencing guideline de novo, but review the factual findings

underlying that application for clear error. United States v.

Peterson, 233 F.3d 101, 111 (1st Cir. 2000).

At the inception of Padro Burgos's sentencing hearing,

the district court stated that the presentence report "is made

a part of the record of this case" and "shall form the finding

of fact of this court for purposes of this hearing." The court

then explained its application of the sentencing guidelines:

On July 15, 1998, the defendant Ricardo

Padro Burgos was found guilty by jury trial

of counts 2 and 3 of the indictment in this

case charging violations of Title 21 U.S.

Code section 846 and 18 U.S. Code section

[924(c)(1)]. That is a conspiracy to

distribute heroin and cocaine and use of a

firearm in relation to a crime of violence

and aiding and abetting. The guideline for

a 21 U.S. Code section 846 offense is found

at section 2D1.1 of the guidelines. That

section provides that offenses involving 30

kilos or more of heroin, 150 kilos or more

of cocaine, 1.5 kilos or more of cocaine

base and 100 kilos or more of marijuana have

a base offense level of 38. However, as

victims were killed under the circumstances

that would constitute murder under 18 U.S.

Code section 1111 and the killings took

place within the territorial jurisdiction of

the United States the provisions of Section

2D1.1(d)(1) require the application of

guideline section 2A1.1 dealing with first

degree murder. As such the appropriate
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offense level is 43. Guideline provisions

preclude application of guideline

adjustments to offenses under 18 U.S. Code

section 924(c)(1) as charged in Count 3.

[The] statute mandates the imposition of a

fixed consecutive imprisonment term in

accordance with section 2K2.4(a). Based on

a total offense level of 43 and a criminal

history category of 6, the guideline

imprisonment term in this particular case is

life with a fine range of $25,000 to four

million plus a supervised release term of

three to five years. 

Accordingly, the court sentenced Padro Burgos to consecutive

terms of life imprisonment on Count 2, the conspiracy offense,

and five years on Count 3, the firearm offense. Padro Burgos

made no objection at the hearing, so we review his claim for

plain error. See United States v. Torres-Rosa, 209 F.3d 4, 8

(1st Cir. 2000).

Padro Burgos first argues that the district court erred

because it made no specific findings as to the quantity of drugs

for which he was responsible, but rather simply adopted the

presentence report findings, which were themselves devoid of

detail. The court based the offense level not on the quantity

of drugs, however, but on the fact that victims were killed,

bringing the sentence within the ambit of U.S.S.G. §

2D1.1(d)(1). That section provides: "If a victim was killed

under circumstances that would constitute murder under 18 U.S.C.

§ 1111 had such killing taken place within the territorial or
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maritime jurisdiction of the United States, apply § 2A1.1 (First

Degree Murder) [setting forth a base offense level of 43]."

Section 2D1.1(d)(1) does not involve consideration of the

quantity of drugs involved. Thus, any error in the district

court's failure to make particularized findings as to the drug

quantity is harmless. 

Padro Burgos next takes issue with the application of

§ 2D1.1(d)(1), maintaining that his sentence was driven by the

murders, which were not separately charged, rather than the

charged offense of drug conspiracy. He attacks the lack of

"proportionality" between the sentence he "might have received"

based on drug quantity, § 2D1.1(a), and the life sentence he

received under § 2D1.1(d)(1). As this court discussed at length

in United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995),

life sentence enhancements constituting "the tail which wags the

dog of the substantive offense" may raise serious due process

concerns. Id., quoting McMillan v. Pennsylvania, 477 U.S. 79,

88 (1986). There is no reversible error in this case, however.

As Padro Burgos acknowledges, his sentencing

enhancement under § 2D1.1(d)(1) needs only be based on facts
3After initial briefing in this case, Padro Burgos sought to

supplement his brief to discuss United States v. Apprendi, 120

S. Ct. 2358 (2000), in which the Supreme Court held that certain

facts that increase penalties beyond the applicable statutory

maximum must be submitted to a jury and proved beyond a

reasonable doubt. We denied that motion without prejudice to

his right to raise Apprendi by way of an application for

collateral relief in the event his direct appeal failed. 

4Nor does he provide any suggestions as to what sentence he

"might have received" under § 2D1.1(a) for purposes of

comparison. Although he states that "the controlled substances

for which [he] should be held accountable will undoubtably be

significantly lower than the original BOL of 38," he does not

offer argument as to what drug quantity would be accurate.

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proved by a preponderance of the evidence.3 See id. at 176.

Significantly, Padro Burgos does not contest the district

court's finding that he was, in fact, responsible for murders

meeting the criteria of § 2D1.1(d)(1). His complaint that the

murders were not proven beyond a reasonable doubt thus is

without merit.4

Padro Burgos also suggests that the district court

erred in failing to give a downward departure to remedy the

"disproportion" between the quantity-based sentence he would

have received under U.S.S.G. § 2D1.1(a) and the enhanced

sentence he received under § 2D1.1(d)(1). He argues that the

district court, like the court in Lombard, 72 F.3d at 172, was

unaware of its authority to award a downward departure under

U.S.S.G. § 5K2.0. This analogy is unavailing, however; there is

nothing in the sentencing hearing to indicate that the court
5It is true that the district court stated, "Guideline

provisions preclude application of guideline adjustments to

offenses under 18 U.S. Code section 924(c)(1) as charged in

Count 3." To the extent that this statement indicates that the

court believed it did not have the discretion to adjust

downward, however, it pertains only to the firearm offense, not

to the drug conspiracy offense for which Padro Burgos received

a life sentence.

6Indeed, a life sentence was within the guideline range even

without the enhancement under § 2D1.1(d)(1). With a base

offense level of 38 (as initially calculated by the district

court based on drug quantity) and a criminal history category of

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believed it was unable to adjust the guideline sentence

downward.5 See id. at 172. Padro Burgos never requested such

a departure, and the court did not address the subject. 

Furthermore, while the district court in Lombard was

"greatly troubled" by the enhancement of the defendant's firearm

offense based on a related murder, the district court in this

case showed no reluctance or ambivalence about imposing a life

sentence. To the contrary, it stated: 

This court wants to send a clear message to

reflect the seriousness of the offense and

to promote respect for the law. The Court

finds that a sentence of life imprisonment

will serve both as a punitive factor against

this defendant and as a deterring factor to

those in our communities that lack respect

for life and for the laws that govern

society.

In sum, there is no reason to believe that the district court

was unaware of its ability to depart downward, or that it would

have preferred such a course.6 
VI, the applicable sentencing range would have been 360 months

to life imprisonment.

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The conviction and sentence are affirmed.