Date: 12-24-2014

Case Style: United States of America v. Gustavo Castro-Caicedo

Case Number: 13-1046

Judge: Barron

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

Defendant's Attorney: Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.

James L. Brochin, Jennifer H. Wu, Marques S. Tracy, Laura E.
Sedlak, Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Barry C.
Scheck, Karen A. Newirth, Innocence Project, Inc., on brief for
Innocence Project, Inc., amicus curiae in support of appellant.

Description: Gustavo Castro-Caicedo appeals
his conviction and sentence for participating in a conspiracy that
sought to send cocaine from Colombia to the United States. His
primary objection is that federal agents used a highly suggestive
means to prompt a member of the conspiracy to identify him as a
confederate, and thus that the government's use of the
identification at trial violated his constitutional right to due
process. Castro-Caicedo also challenges the admission of other
testimony under the Federal Rules of Evidence. And, finally, he
argues that his sentence was unreasonably lengthy. But although the
record shows the District Court was justified in finding that the
means used to obtain the identification were problematic, we find
the record also supports the District Court's well-considered
judgment that there was reason enough to credit the identification
to permit a jury to decide its worth. Because we see no merit in
Castro-Caicedo's remaining challenges -- each of which he raises for
the first time on appeal -- we affirm both the conviction and the
sentence.
I.
Following an investigation by a Drug Enforcement
Administration (DEA) task force and cooperating elements of
Colombian law enforcement agencies, Castro-Caicedo, a Colombian
national, was indicted in Massachusetts on one count of
participating in a conspiracy to import cocaine to the United
-2-
States, or to manufacture and distribute cocaine for importation to
the United States. 21 U.S.C. §§ 952(a), 959(a), 960(b)(1)(B). At
trial, the conspiracy's leader testified that the conspiracy
involved, in part, transporting tens of kilograms of cocaine from
Cali, a city in Colombia, to the Colombian port city of
Buenaventura, from where it would be sent by ship to the Bahamas.
The government also put forth evidence to show Castro-Caicedo helped
organize some of those shipments out of Buenaventura from at least
2007 to 2009.
To prove the further allegation that the conspiracy
sought to ensure the cocaine would reach this country, the
government presented a variety of evidence, both direct and
circumstantial. Castro-Caicedo's challenge to his conviction takes
aim at only certain portions of this evidence, and we tailor our
recitation of the facts accordingly.
Castro-Caicedo's lead challenge is to one piece of direct
evidence: the testimony of an informant we will call "J.D."1 J.D.
used to be a seaman on a container ship based out of Freeport,
Bahamas that often called at Buenaventura, Colombia. Federal agents
first spoke with J.D. about his participation in a cocaine smuggling
operation in 2009. In 2012, a little more than a month before
1 We assign these initials to identify the informant "in
light of concerns about the safety of cooperating witnesses raised
by the Committee on Court Administration and Case Management of the
Judicial Conference of the United States." United States v.
Etienne, ___ F.3d ___, 2014 WL 5462541, at *1 n.1 (1st Cir. 2014).
-3-
trial, J.D. first told the agents that more than four years before
he met twice with a person known to him then only as the owner of
a home in the city of Buenaventura. J.D. told the agents that,
through those two meetings, he and the owner of that house reached
an agreement to ship certain quantities of cocaine to the United
States.
Federal agents then showed J.D. eleven photographs, three
of which depicted other members of the conspiracy and the last of
which was an image of Castro-Caicedo. Upon seeing that picture,
J.D. identified it as depicting the owner of the house and thus the
person with whom he had struck the deal.
Castro-Caicedo moved to suppress the identification prior
to trial. He argued the presentation of the photographs
impermissibly cued J.D. to pick out Castro-Caicedo's picture. And
he further argued that, by then, too much time had passed since
J.D.'s last encounter with the person he purported to identify for
the identification to be reliable enough to overcome the taint of
that impermissibly suggestive display of photographs. He thus
argued the use of the identification at trial would violate his
constitutional right to due process.
The District Court disagreed. It found the photographs
had been assembled in a manner that was unduly suggestive. But the
District Court also found the identification was still reliable
enough to put to the jury.
-4-
Castro-Caicedo did not raise his other evidentiary
challenges at trial. He thus presses them for the first time on
appeal.
The first of these unpreserved objections concerns
testimony about two large seizures of cocaine shipments in Colombia
in 2008, one of 875 kilograms of cocaine and the other of 500
kilograms. The government introduced the testimony to support its
contention there was a cocaine conspiracy to join, that coded
conversations between conspirators (including Castro-Caicedo)
referred to cocaine trafficking, and that the conspiracy was of such
scope that it must have aimed to send cocaine to the United States.
Castro-Caicedo contends he had no direct tie to either
shipment, and the government concedes the point. Castro-Caicedo
thus argues that, under the Federal Rules of Evidence, the testimony
was either irrelevant or unduly prejudicial and that his conviction
should be reversed in consequence.
Castro-Caicedo's other unpreserved evidentiary objection
concerns a Colombian police officer's testimony about a polygraph
test he took upon joining the DEA task force. In addition to
testifying about a recorded call mentioning the 500-kilogram seizure
discussed above, this officer also testified about a number of other
recorded calls involving Castro-Caicedo and others who pled guilty
to involvement in the conspiracy. Castro-Caicedo contends the
officer's testimony about the polygraph led jurors to give undue
-5-
weight to his credibility. Castro-Caicedo thus argues the admission
of this polygraph testimony violated the Federal Rules of Evidence
and requires reversal of the conviction.
Finally, Castro-Caicedo challenges his sentence. Here,
too, he presses an argument he makes for the first time to us.
Castro-Caicedo contends the 300-month prison sentence he received
is unreasonable. He argues the District Court unjustifiably varied
upward from the sentence suggested by the Sentencing Guidelines and,
in doing so, imposed a sentence that far surpasses the length of the
sentences given to other members of the conspiracy, including its
purported leader.
We use this same order of presentation to address the
merits of each challenge.
II.
J.D.'s identification purported to offer direct evidence
that Castro-Caicedo participated in the cocaine conspiracy and that
the conspiracy intended to send cocaine to the United States --
evidence, in other words, that directly supported the conspiracy
charge set forth in the indictment. Typically, juries weigh the
reliability of evidence, including eyewitness identifications. But
when the government uses highly suggestive means to elicit an
eyewitness identification, there may be reason to depart from that
norm.
-6-
In such a case, there is a real concern the
identification will be mistaken, or at least will result from the
suggestive means the government used to prompt the witness rather
than from the witness's memory of having encountered the person
identified. And the Supreme Court has made clear that very concern
may arise if "the police display to the witness only the picture of
a single individual who generally resembles the person he saw, or
if they show him the pictures of several persons among which the
photograph of a single such individual recurs or is in some way
emphasized." Simmons v. United States, 390 U.S. 377, 383 (1968).
Because, in such circumstance, the government's own
choice to use a suggestive prompt casts doubt on the
identification's reliability, the Constitution may bar the
government from benefitting from the problematic means used to
elicit that information. Perry v. New Hampshire, 132 S. Ct. 716,
726 (2012). Thus, upon a defendant's showing the government used
unduly suggestive means to obtain an eyewitness identification, the
government must show why the identification should be put to the
jury despite its tainted origins. Neil v. Biggers, 409 U.S. 188,
199 (1972); United States v. Jones, 689 F.3d 12, 17 (1st Cir. 2012).
In assessing a district court's ruling on such questions,
we review the findings of fact for clear error and the conclusions
of law de novo, allowing for some "reasonable latitude for
case-specific decisions" applying law to fact. Jones, 689 F.3d at
-7-
18. Applying that standard, we conclude the District Court did not
err in finding that, although the government presented the
photographs in an unduly suggestive way, the government had met its
burden of showing the jury should still be allowed to consider
J.D.'s identification.
A.
We start with what the record shows about what led the
federal agents to show J.D. the photographs in the first place. In
April of 2009, federal agents convinced J.D. to become a
confidential informant. In that role, J.D. told the agents about
cocaine shipments from Colombia to the Bahamas.
An agent testified that J.D. did not at that time
specifically mention having met with an owner of a house in
Buenaventura, that such a person was involved in those cocaine
shipments, or that this person reached an agreement with J.D. to
send cocaine to the United States. But during a follow-up meeting
with a federal prosecutor and investigator in August 2012, the
agents testified, J.D. did for the first time specifically mention
meeting such a person, that person's involvement with the shipments,
and the deal they reached.
And while J.D. did not at that time provide the name of
this person, he did offer a description of him. Testimony showed
J.D. described him as being between five feet eight inches and five
feet ten inches tall, about fifty years old, and having a dark
-8-
complexion, a "sagging . . . belly," a limp, and limited English
facility.
The prosecutor and investigator then, impromptu, showed
J.D. a number of photographs on the prosecutor's laptop. J.D.
testified he initially told the prosecutor and investigator he would
not be able to identify the person with whom he had met. The
investigator, by contrast, testified J.D. said he might be able to
recognize some individuals from the conspiracy.
The investigator prefaced the presentation of the
photographs by telling J.D. he might not recognize anyone in the
photographs, he need not identify any specific photograph or person,
and he should identify someone appearing in one of the photographs
only if he was certain he knew who was depicted. J.D. saw each
photograph sequentially, and he did not know at the outset how many
he would see by the end.
The prosecutor and investigator ultimately showed J.D.
eleven photographs. The set included a picture of Castro-Caicedo
at the end, preceded by ten photos of other men, including three
members of the conspiracy.
The District Court found this presentation concerning,
explaining that it was not "of a conventional sort" and that "[i]t
wasn't assembled to meet the standards of a typical photo array."
The District Court found especially troubling that there were "not
a number of people of Mr. Castro-Caicedo's age or appearance" and
-9-
that "4 of the 11 are people who have been charged in this case and
three of whom have pled guilty." And it ruled, in the end, that the
display was "impermissibly suggestive."
Whether or not the inclusion of the conspirators was
itself problematic, cf. United States v. Hilario-Hilario, 529 F.3d
65, 71 (1st Cir. 2008) (assuming but not deciding that a photo
lineup that grouped conspirators together was unduly suggestive),
the record supports the District Court's conclusion that there were
not "a number of people of Mr. Castro-Caicedo's age or appearance."
The photograph of Castro-Caicedo appears to depict a person far
older and with darker skin than any other person in the set. He is
also the only person in the set whose sagging belly is shown.
Moreover, Castro-Caicedo is depicted in a striking yellow and blue
striped shirt while the others wore more muted garb.
The assembly of photographs thus raises the concern that
its design cued J.D. to pick out that photograph in particular. See
United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008) (noting
that undue suggestion depends on "whether the photo array included,
as far as was practicable, a reasonable number of persons similar
in appearance to the suspect"); United States v. Lau, 828 F.2d 871,
876 (1st Cir. 1987) (characterizing Simmons, 390 U.S. at 383-84, as
holding that "police should avoid emphasizing picture of suspect in
photographic identification"). And thus the District Court was
justified in finding the photographs had been shown to J.D. in a
-10-
manner so suggestive it gave rise to the risk of an unreliable
identification. See Simmons, 390 U.S. at 383 (The danger of an
incorrect identification "will be increased if the police display
to the witness only the picture of a single individual who generally
resembles the person he saw, or if they show him the pictures of
several persons among which the photograph of a single such
individual recurs or is in some way emphasized.").
B.
Nonetheless, the District Court went on to rule the
identification was sufficiently reliable to permit a jury to
consider it. And because the record supports that judgment, too,
we decline to disturb it.
The District Court reached this conclusion after
considering the five factors that much precedent makes relevant to
an overall determination about the reliability of an identification
that has been prompted by unduly suggestive means. Those factors
are:
[T]he opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
the witness' prior description of the
criminal, the level of certainty demonstrated
by the witness at the confrontation, and the
length of time between the crime and the
confrontation.
Biggers, 409 U.S. at 199-200.
As to the first factor, the record supports the District
Court's finding that J.D. "had a good opportunity to view" Castro-
-11-
Caicedo over "about" an hour and a half in direct conversation in
close quarters. J.D. testified his container ship twice docked in
Buenaventura in late 2007 and early 2008. He further testified he
met each time with the man he purported to identify in close
proximity in the man's house, for "[p]robably less than an hour" in
the first meeting and "less than thirty minutes" in the second.
That is a total period of time we have previously described as
providing "ample time to view the defendant," United States v.
Flores-Rivera, 56 F.3d 319, 330 (1st Cir. 1995), and a period
exceeding the half hour Biggers thought a "considerable period of
time," 409 U.S. at 200.
J.D.'s testimony also supports the District Court's
conclusion on the second factor: J.D. was "paying careful
attention" to Castro-Caicedo during these meetings. Not only did
J.D. testify to that very fact, but his testimony about the context
of those meetings supports it: J.D. testified he was meeting with
coconspirators to forge a deal about a drug shipment. See United
States v. Drougas, 748 F.2d 8, 27-28 (1st Cir. 1984) (concluding
that cooperating witness in drug smuggling operation had incentive
and opportunity to pay close attention to coconspirator who was also
a state trooper).
Castro-Caicedo speculates J.D. may have been drunk during
the first meeting because J.D. testified the owner offered him a
beer. But J.D. never testified he took the offer or consumed any
-12-
alcohol. Indeed, J.D. testified he countered by asking for coffee.
Nothing in the record thus would compel an inference J.D. was
intoxicated and could not have paid the close attention the District
Court found. Castro-Caicedo also asserts J.D. was distracted during
the second meeting because J.D. testified he was using the internet
at the outset of the meeting while others fetched cocaine. But the
District Court found J.D. was paying close attention during both
meetings, and the fact that J.D. used the internet before his
discussions with the owner in the second meeting does not render
that finding clearly erroneous.
The District Court found that the third factor favored
the use of the identification, as J.D.'s prior description was
"quite consistent" with Castro-Caicedo's actual characteristics.
That prior description was not so precise or unusual to make it
proper for the government to present photographs containing only one
matching it. Compare DeCologero, 530 F.3d at 62 ("[The defendant]
has no unusual features that might complicate the search for others
with similar appearances, yet the other photos in the array were not
of men who looked similar to [him] . . . ."), with United States v.
Holliday, 457 F.3d 121, 126 (1st Cir. 2006) ("[T]he defendant's
appearance was so unusual that '[i]t would be unreasonable to expect
the police to find pictures of eight other men who not only shared
his age, weight, hairstyle, and ethnicity, but in addition had a
similar pattern of facial discoloration.'" (alteration in
-13-
original)). And the correlation between a witness's prior
description and the accuracy of that witness's later identification
may be weaker than commonly thought and might sometimes be negative.
See Massachusetts Supreme Judicial Court Study Group on Eyewitness
Evidence, Report and Recommendation to the Justices 65 (2013). But
given the high degree of attention and substantial opportunity to
observe that the District Court found the witness had here, the
"case-specific" judgment the District Court made on this factor
merits "reasonable latitude," Jones, 689 F.3d at 18, and is not
clearly wrong.
The record does not clearly support the District Court's
finding that the fourth factor -- the eyewitness's certainty -- also
favored the use of the identification. For while the District Court
found J.D. was "quickly certain" in identifying Castro-Caicedo, the
record supports the judgment J.D. was quick to make the
identification, but not necessarily that he expressed any view as
to his level of certainty. But the lack of clarity on that point
matters little. J.D.'s certainty is at best a neutral factor, and
here there is no indication of J.D.'s lack of certainty. See Jones,
689 F.3d at 18 ("[T]he witness' lack of confidence is certainly a
reliable warning sign, while the presence of confidence is probably
closer to a neutral factor.").
And finally, the record comports with the District
Court's finding about the relatively limited import in this
-14-
particular case of the fifth factor, concerning the lapse of time
prior to the identification. That lapse was lengthy -- four and a
half years. But while we have said "a five-year gap between the
crime and the photographic identification is very much greater than
would ordinarily be permissible to find an . . . identification
reliable," Drougas, 748 F.2d at 28; see also Biggers, 409 U.S. at
201 ("[A] lapse of seven months between the rape and the
confrontation . . . would be a seriously negative factor in most
cases."), we have permitted an identification to go before the jury
where the identification came "nearly seven years" after the witness
observation when "the other reliability criteria were sufficiently
persuasive," Flores-Rivera, 56 F.3d at 331. In particular, we have
upheld a district court's denial of a motion to suppress where the
witness had "between one and two hours" to observe the suspect and
had special reason to pay close attention. Id. at 330-31; see also
Drougas, 748 F.2d at 28 (holding that a five-year gap was outweighed
by a coconspirator identification that was based on "considerable"
opportunity to observe). We find no reason to reach a different
result here, given the District Court's findings, supported by the
record, regarding the circumstances of the substantial contacts
between J.D. and the person he later identified as Castro-Caicedo.
On appeal, Castro-Caicedo does raise for the first time
an additional set of arguments for why we should doubt the
identification -- namely, that recent social science research
-15-
reveals the perils of crediting an eyewitness's memory. The
Innocence Project, as amicus, agrees.
But Castro-Caicedo did not raise these arguments below.
If he had, the District Court could have weighed them in deciding
Castro-Caicedo's motion to suppress -- assuming the District Court
did not implicitly do so on its own. Castro-Caicedo also could have
presented the same arguments to the jury or asked for jury
instructions noting those possible concerns with eyewitness
identifications. See Jones, 689 F.3d at 20 (permitting jury
instructions). But Castro-Caicedo took advantage of none of these
opportunities to make his case. And the general survey of social
science research he now presents for the first time on appeal offers
us no reason to reject the specific and detailed findings made below
about the distinguishing features, and hence reliability, of this
particular identification.
III.
Castro-Caicedo also complains the District Court admitted
testimony regarding two seizures of cocaine to which he had no
direct tie -- and the government concedes there was no such direct
link. Castro-Caicedo thus argues the testimony was irrelevant or
substantially more prejudicial than probative and should not have
been admitted. Fed. R. Evid. 401, 402, 403.
But even when evidentiary challenges of this sort are
preserved, we are disinclined to find a District Court has abused
-16-
its discretion in assessing the relevance or unduly prejudicial
nature of testimony. United States v. Lyons, 740 F.3d 702, 718 (1st
Cir. 2014). We are even less willing to do so when, as here, the
defendant failed to object below, and we may then reverse only if
the error is plain. United States v. Burdulis, 753 F.3d 255, 263
(1st Cir. 2014) (We "requir[e] the appellant to show that the error,
if any, was 'clear or obvious,' 'affected his substantial rights,'
and 'seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" (quoting United States v.
Mardirosian, 602 F.3d 1, 11 (1st Cir. 2010))).
Here, the challenged testimony about one of the seizures
-- consisting of 875 kilograms of cocaine, of which the leader of
the conspiracy allegedly owned 60 kilograms -- furthered the
government's contention that there was a conspiracy to ship cocaine
that Castro-Caicedo could have joined. That testimony also provided
context for decoding the recorded conversations between the alleged
leader of the conspiracy and a coconspirator discussing that
seizure. And, by doing so, the testimony aided the government in
its effort to show that coded conversations involving Castro-Caicedo
and others were, indeed, about cocaine trafficking. Finally, this
testimony, by showing the large quantity of drugs dealt in by the
conspiracy's leader, linked to the government's contention that the
goal of the conspiracy was to send cocaine to the United States, as
-17-
other testimony suggested about two-thirds of South American cocaine
goes there.
The challenged testimony about the other seizure --
consisting of 500 kilograms of cocaine -- indicated one of the
coconspirators thought the DEA had seized the cocaine. (It was
actually seized by a Colombian law enforcement agency.) Thus, this
testimony assisted the government in advancing its theory that the
conspirators intended to reach the U.S. market.
As precedent supports the relevance of this kind of
evidence, see United States v. Díaz-Arias, 717 F.3d 1, 20-22 (1st
Cir. 2013), and the District Court properly instructed the jury that
Castro-Caicedo could be convicted only for his own state of mind and
behavior, not for those of another, no further description of the
challenged testimony's value is necessary to insulate it from
Castro-Caicedo's late-breaking claims about lack of relevance and
undue prejudice.2
IV.
Castro-Caicedo also challenges testimony from a Colombian
police officer about a polygraph test he took to join the DEA task
force. In his testimony, the officer stated the polygraph was given
2 Castro-Caicedo also argues on appeal that these shipments
are irrelevant and unduly prejudicial for the further reason they
actually were part of an entirely separate conspiracy for which he
was not charged. But Castro-Caicedo has not carried his burden on
plain error review of showing that the shipments were obviously
part of a separate conspiracy, and thus we need not consider how
his argument would fare if he had made such a showing.
-18-
"to make sure that the people working with the specialized group are
the best possible on the team." That officer then went on to
testify about a large seizure of cocaine belonging to a
coconspirator and phone calls between Castro-Caicedo and other
coconspirators.
On appeal, Castro-Caicedo concedes he did not object to
this testimony below. But he argues allowing it was plain error.
He references the concern we have expressed about polygraph
evidence, see United States v. Mare, 668 F.3d 35, 42 (1st Cir. 2012)
("This is the latest in a growing line of cases that ought to
suggest, if not a per se rule, then at least a code of best practice
for the virtuous prosecutor: polygraph evidence, even that dealing
with matters other than the actual results of an examination, is
usually more trouble than it is worth."); United States v.
Rodríguez-Berríos, 573 F.3d 55, 73 (1st Cir. 2009) (observing that
"[p]olygraph results are rarely admissible at trial" due to concerns
about their reliability and prejudicial effect), and he relies on
precedent from another circuit that raises the particular concern
that such testimony may constitute improper vouching or bolstering
of a witness's credibility. See United States v. Ross, 703 F.3d
856, 875-76 (6th Cir. 2012).
The officer, however, made reference to the polygraph
test only in passing, and the government did not bring it up again
during testimony or in closing arguments. Castro-Caicedo has thus
-19-
not met the high burden required to show the testimony caused the
prejudice necessary to warrant reversal on plain error review,
especially considering the government's other evidence, including
J.D.'s identification. See United States v. Rodriguez, 525 F.3d 85,
96 (1st Cir. 2008) ("The determination of whether [erroneously
admitted] testimony was harmful [under the plain error test] demands
a panoramic, case-specific inquiry considering, among other things,
the centrality of the tainted material, its uniqueness, its
prejudicial impact, the uses to which it was put during the trial,
the relative strengths of the parties' cases, and any telltales that
furnish clues to the likelihood that the error affected the factfinder's
resolution of a material issue." (internal quotation marks
omitted)).
V.
Finally, Castro-Caicedo objects that his 300-month prison
sentence is unreasonable because it unjustifiably varies upward from
the guideline (and statutory mandatory minimum) sentence of 240
months, and the far-shorter sentences of his coconspirators.3 We
normally review substantive reasonableness challenges for an abuse
3 Castro-Caicedo also objects that his 300-month prison
sentence unreasonably deviated from the range of 168 to 210 months
that would have applied under the Sentencing Guidelines but for the
statutory mandatory minimum. But he does not dispute that the
minimum applied because of his prior conviction for a felony drug
offense. 21 U.S.C. §§ 851, 960(b)(1). And because the 240-month
minimum exceeded the otherwise-applicable guideline range, the 240-
month minimum became the guideline sentence. U.S.S.G. § 5G1.1(b).
-20-
of discretion. United States v. Politano, 522 F.3d 69, 72 (1st Cir.
2008). But because Castro-Caicedo failed to raise these objections
in the court below, we review them only for plain error. United
States v. Tavares, 705 F.3d 4, 33 (1st Cir. 2013).
When deviating from the Guidelines sentencing range, a
sentencing judge must give reasons "rooted either in the nature and
circumstances of the offense or the characteristics of the offender.
In such a situation, the factors deemed relevant by the sentencing
court must add up to a plausible rationale for the sentence imposed
and must justify a variance of the magnitude in question." United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013)
(internal quotation marks and citations omitted). And here the
District Court did offer such reasons and supply such a rationale.
The District Court concluded Castro-Caicedo's offense was
"very serious" because his business was sending "large quantities"
of cocaine from Colombia to the United States, with "devastating
effect[s] on individuals, on families, on neighborhoods, on cities,
states, and all of the United States." See 18 U.S.C. § 3553(a)(1),
(a)(2)(A). The District Court also concluded Castro-Caicedo
required an upward variance to deter him from future criminal acts
and to protect the public, due to his several prior convictions for
serious offenses and his failure to accept any responsibility during
allocution for his present or past crimes. See id. § 3553(a)(2)(B),
(C). And the District Court saw no aspects of Castro-Caicedo's
-21-
history or individual characteristics that warranted a lower
sentence. See id. § 3553(a)(1).
Castro-Caicedo's other challenge to his sentence is no
stronger. He complains his sentence is "more than four times longer
than the sentence of any of the other co-conspirator[s,] including
the leader [of the conspiracy]." He acknowledges all of the
coconspirators pled guilty and several cooperated with the
government, but he argues that "these factors still do not justify
the district court's sentence." Our precedent, however, indicates
otherwise, United States v. Ayala-Vazquez, 751 F.3d 1, 34 (1st Cir.
2014) (plea); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st
Cir. 2005) (cooperation), and, as we have explained, "[a]
well-founded claim of disparity . . . assumes that apples are being
compared to apples." Mateo-Espejo, 426 F.3d at 514. Having failed
to show he is plainly similarly situated to those who received
lesser sentences, his unpreserved disparity claim must fail.

Outcome: For these reasons, we affirm Castro-Caicedo's conviction
and sentence.

Plaintiff's Experts:

Defendant's Experts:

Comments: