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Date: 08-18-2021
Case Style:
United States of America v. ROLANDO MILLÁN-MACHUCA, a/k/a Rolo; ROBERTO CASADO-BERRÍOS, a/k/a Bobe, a/k/a Bobel; MIGUEL RIVERA-CALCAÑO, a/k/a Guelo,
a/k/a Kikirimiau; GIORDANO SANTANA-MELÉNDEZ, a/k/a Viejo Ten
Case Number: 18-2175
Judge: Kermit V. Lipez
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Victor O. Acevedo-Hernández, Assistant United States Attorney,
District of Puerto Rico, Brian A. Benczkowski, Assistant Attorney
General, and John P. Cronan, Principal Deputy Assistant Attorney
General, were on brief
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with a distributing large quantities of controlled substances and other contraband throughout several Puerto Rico correctional facilities charge.
Appellants Rolando MillánMachuca, Roberto Casado-Berríos, Miguel Rivera-Calcaño, and
Giordano Santana-Meléndez were leaders of La Asociación ÑETA, a
Puerto Rico prison organization that distributed large quantities
of controlled substances and other contraband throughout several
Puerto Rico correctional facilities. The organization also
carried out killings, including the murder of inmate Alexis
Rodríguez-Rodríguez. The four appellants were charged with
racketeering and drug trafficking conspiracies; Millán-Machuca was
also charged with murder in aid of racketeering. After an eightday jury trial, appellants were convicted on all counts.
On appeal, the four appellants challenge the sufficiency
of the evidence for their convictions. Millán-Machuca and RiveraCalcaño seek a new trial, claiming errors in the admission of
certain evidence. Millán-Machuca, Casado-Berríos, and RiveraCalcaño challenge the reasonableness of their sentences. We find
these claims meritless and affirm. Additionally, Rivera-Calcaño
claims ineffective assistance of counsel at his sentencing
hearing, a claim we do not address on the merits. Instead, we
dismiss this claim without prejudice.
I.
Our overview of the facts is primarily drawn from the
testimony of the government's witnesses at trial. Because
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appellants appeal, in part, on insufficiency of the evidence
grounds, we recount the facts in the light most favorable to the
prosecution. See United States v. Vázquez-Soto, 939 F.3d 365,
368-69 (1st Cir. 2019).
A. La Asociación ÑETA
In the 1980s, a group of inmates incarcerated in Puerto
Rico prisons formed La Asociación ÑETA ("ÑETA"), an organization
with the stated purpose of advocating against abuse and injustice
within the prison system. The organization's name stands for "new
birth and new beginning." During its decades-long history, this
prisoners' rights group evolved into a prison gang running a
sophisticated and highly profitable drug and contraband smuggling
scheme.
ÑETA functioned through a strict hierarchical structure.
Longtime members who were present at the organization's founding
were known as "pillars." These individuals occupied a unique
position of respect. They did not manage ÑETA's day-to-day
operations, but they were consulted for advice and had authority
to replace leaders with whom they disagreed. The primary leaders
of the organization were known as the "maximum leadership." The
"maximum leadership" included two leaders ("Leader 1" and "Leader
2"), two advisors ("Advisor 1" and "Advisor 2"), a secretary, a
coordinator, and a treasurer. The next rung in the organizational
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ladder was the leadership of each correctional facility or
"chapter." ÑETA had chapters in several Puerto Rico prisons,
including the facilities at Ponce, Bayamón, Guayama, and Zarzal.
Each chapter had two chapter leaders, two advisors, a secretary,
a coordinator, and a treasurer. Below the chapter leaders were
the "floor leaders," who directly supervised the drug trafficking
operation, and "missionaries," who carried out orders from the
leadership.
ÑETA members were required to follow a set of rules. A
new prisoner could not become a member if he had committed certain
crimes, such as child abuse or rape. There could be "no stealing"
and "[n]o causing trouble." They were told "[do n]ot look at your
fellow inmate's visitors," and "[d]o not abuse the weak." Members
were expected to obey leaders or face punishment, including
exclusion from the organization or a "beatdown." Failure to obey
an order from the maximum leadership was punishable by death.
New members of the organization learned ÑETA rules at
"seminars," where longtime members explained the ÑETA
organization's history and ideals. One ÑETA rule required
"[r]espect [for] the shout of the 30th," a reference to a meeting
on the 30th day of each month to give a "battle cry" in honor of
ÑETA's founder, who had been killed by a rival prison gang. ÑETA
had its own hand signal (placing the middle finger on top of the
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index finger) and used the colors blue and white as a sign of
membership.
ÑETA trafficked cocaine, heroin, and marijuana into the
Puerto Rico prisons through two primary means. First, some drugs
were smuggled in by prison visitors, correctional officers, or
civilian employees. These drugs were typically concealed in body
cavities. Other drugs arrived by "pitch-ins" -- packages that
accomplices on the outside literally "pitched" over the prison
walls. ÑETA members would then retrieve the drugs from the prison
yards and sell the smuggled substances to other inmates. The
monetary transactions were handled by individuals outside of the
prison, who sent funds by Western Union or MoneyGram transfers to
bank accounts controlled by the leaders of ÑETA. For large
transactions in excess of $10,000, outside contacts met in person
and exchanged cash.
In addition to the drugs controlled directly by the
leadership, some members brought in "personal drugs" from their
own sources, which they could use and sell outside of the ÑETA
organization's operations if they paid a fee to the organization.
This payment, known as an "incentive," was $1,200 for 62 grams of
heroin, $500 for 62 grams of cocaine, and $400 for a pound of
marijuana. ÑETA also smuggled cell phones and charged a monthly
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incentive of $20 to $25 to each inmate in possession of a cell
phone.
Through civilian smuggling and "pitch-ins," ÑETA
trafficked large quantities of controlled substances and other
contraband at enormous profit. At the prison in Ponce, ÑETA
members introduced about 1.5 kilograms of heroin, one kilogram of
cocaine, and 15 to 20 pounds of marijuana each month. In Bayamón,
they smuggled in about two kilograms of heroin, 1.5 kilograms of
cocaine, and 30 to 35 pounds of marijuana each month. In Guayama,
they moved an additional 2.5 kilograms of heroin, 1.5 kilograms of
cocaine, and 10 to 15 pounds of marijuana each month. Remarkably,
the organization generated six to twelve million dollars in revenue
a year, derived both from the organization's own drug distribution
and incentives payments.
B. The Appellants
Each of the appellants was an inmate in a Puerto Rico
correctional facility, and each held a high-ranking position in
ÑETA's leadership structure. Rolando Millán-Machuca (also known
as "Rolo") was the organization's third-in-command as Advisor 1 of
the maximum leadership. In this position, he "ha[d] to have
knowledge of everything," and "everything ha[d] to go through his
hands." He managed the distribution of drugs and was authorized
to "give orders to kill." In November 2014, he gave such an order,
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calling for the death of inmate Alexis Rodríguez-Rodríguez (also
known as "El Loco"). Following this order, a group of ÑETA members
murdered Rodríguez-Rodríguez by strangulation and a heroin
overdose. At the time of the relevant events, Millán-Machuca's
brother, Avelino Millán-Machuca (also known as "Papito"),1 was
Leader 1 of the maximum leadership, the top leader of the entire
organization.
Casado-Berríos (also known as "Bobe" or "Bobel") was a
chapter leader at the Ponce minimum security prison; later, after
he was transferred to the Zarzal prison, he became Papito's "righthand man," distributing drugs at both Ponce and Zarzal. The heroin
and cocaine he distributed with Papito in Zarzal were "personal"
drugs that he was permitted to distribute without paying an
incentive because of his high rank in the organization.
Rivera-Calcaño (also known as "Guelo" or "Kikirimiau")
held various positions in the ÑETA leadership: leader of the
"dialog[ue] committee" assigned to talk to the prison
administration about inmates' complaints; a chapter leader in a
facility at Bayamón; a chapter leader at a Ponce facility; the
leader responsible for "collecting the incentives for the drugs
1 We refer to Avelino Millán-Machuca by his commonly used
nickname "Papito" to distinguish him from appellant Rolando
Millán-Machuca.
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for the maximum leadership" at another facility in the Bayamón
complex; and "coordinator and secretary" at Zarzal.
Santana-Meléndez (also known as "Viejo Ten") was
recognized as a "pillar." In this position, he had the respect of
the maximum leadership and the power to replace any of them.
Maximum leadership ordered that he receive special privileges,
including a twice-daily "dosage" of heroin, and access to the
organization's cell phones, canned goods, or cigarettes without
paying.
C. Federal Criminal Proceedings
On May 9, 2016, fifty individuals, including the four
appellants, were charged in a multi-count indictment with
conspiracy to commit a pattern of racketeering, in violation of
18 U.S.C. § 1962(d), and conspiracy to traffic drugs, in violation
of 21 U.S.C. § 846. Millán-Machuca was charged with murder in aid
of racketeering in violation of 18 U.S.C. § 1959(a)(1). During an
eight-day jury trial in July 2018,2 correctional officers, police
officers, Federal Bureau of Investigation agents, and several
inmates testified to the appellants' involvement in these crimes
as leaders of ÑETA. Four ÑETA members testified for the
2 A trial that initially began in September 2017 was
interrupted by Hurricane Maria. The court declared a mistrial in
June 2018 due to the jurors' lack of memory of the testimony and
hardships that had arisen for some of the jurors.
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government: Alex Miguel Cruz-Santos, Miguel Álvarez-Medina, José
González-Gerena, and Osvaldo Torres-Santiago. The appellants did
not present any witnesses.
The jury convicted the four appellants of conspiracy to
commit racketeering and conspiracy with intent to distribute a
controlled substance. Millán-Machuca was also convicted of murder
in aid of racketeering. The district court entered judgment
against the appellants on November 15, 2018, and sentenced MillánMachuca to life imprisonment, Casado-Berríos to 180 months of
imprisonment, Rivera-Calcaño to 156 months of imprisonment, and
Santana-Meléndez to 136 months of imprisonment. Each defendant
filed a timely notice of appeal.
In evaluating the appeals, we divide our analysis into
three parts: the challenges to the sufficiency of the evidence to
support the convictions; the demand for a new trial on the basis
of the alleged improper admission of certain evidence; and,
finally, the challenges to sentencing.
II.
The appellants claim that there was insufficient
evidence to support convictions on one or more of the charges
against them. We review such challenges de novo, when, as is the
case here, the appellants preserved their claims below through
motions for acquittal under Rule 29. United States v. Santos-
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Soto, 799 F.3d 49, 56 (1st Cir. 2015). We draw all reasonable
inferences from the evidence in the light most favorable to the
prosecution. Id. at 56-57. Our inquiry focuses on "whether 'any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.'" United States v. Bailey,
405 F.3d 102, 111 (1st Cir. 2005) (quoting United States v.
Henderson, 320 F.3d 92, 102 (1st Cir. 2003)). As we have
previously commented, "[d]efendants challenging convictions for
insufficiency of evidence face an uphill battle on appeal." United
States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir. 2015)
(alteration in original) (quoting United States v. Pagán-Ferrer,
736 F.3d 573, 590 (1st Cir. 2013)); see also United States v.
Connolly, 341 F.3d 16, 22 (1st Cir. 2003) ("[W]e will reverse only
if the verdict is irrational.").
A. The Elements of the Charges
1. The RICO Conspiracy
All four appellants were convicted of Count One,
conspiracy to commit racketeering, in violation of the Racketeer
Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §
1962(d). RICO makes it a crime for "any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
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enterprise's affairs through a pattern of racketeering activity,"
or participate in a conspiracy to do so. Id. § 1962(c)-(d). The
"predominant" elements of a substantive subsection (c) RICO
offense are "(1) the conduct (2) of an enterprise (3) through a
pattern of racketeering activity." Salinas v. United States, 522
U.S. 52, 62 (1997).
An "enterprise" is defined as "any individual,
partnership, corporation, association, or other legal entity, and
any union or group of individuals associated in fact although not
a legal entity." 18 U.S.C. § 1961(4). The enterprise must be one
affecting interstate or foreign commerce, but it need only have a
de minimis effect on interstate or foreign commerce to demonstrate
the required nexus. United States v. Rodríguez-Torres, 939 F.3d
16, 27 (1st Cir. 2019), Rodriguez-Martinez v. United States, 140
S. Ct. 972 (2020), Sanchez-Mora v. United States, 140 S. Ct. 975
(2020), and Guerrero-Castro v. United States, 140 S. Ct. 2819
(2020).
A pattern of racketeering activity is defined as two or
more "racketeering acts" that were related, occur within ten years
of one another, and pose a threat of continued criminal activity.
See United States v. Chin, 965 F.3d 41, 47 (1st Cir. 2020).
"Racketeering acts" are specific crimes defined by federal law,
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including murder and offenses involving drug trafficking. See 18
U.S.C. § 1961(1)(A).
The appellants are charged with engaging in a RICO
conspiracy, rather than with a substantive RICO offense. See id.
§ 1962(d) ("It shall be unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b), or (c) of
this section."). To prove a defendant's participation in a RICO
conspiracy, the government must prove that "the defendant knew
about and agreed to facilitate" a substantive RICO offense
consisting of the three elements we have described. United States
v. Leoner-Aguirre, 939 F.3d 310, 316 (1st Cir. 2019), cert. denied,
140 S. Ct. 820 (2020). In other words, "a RICO-conspiracy
conviction requires proof that the defendant knowingly joined the
conspiracy, agreeing with one or more coconspirators 'to further
[the] endeavor which, if completed, would satisfy all the elements
of a substantive [RICO] offense.'" Rodríguez-Torres, 939 F.3d at
23 (alteration in original) (quoting Salinas, 522 U.S. at 65).
The Supreme Court has ruled that a RICO conspiracy
conviction does not require the government to prove that the
defendant himself committed or agreed to commit two or more
racketeering acts. Salinas, 522 U.S. at 65. Instead, "the
government's burden, as to the 'pattern of racketeering activity'
requirement for a RICO conspiracy violation, is to prove that the
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defendant agreed that at least two acts of racketeering would be
committed in furtherance of the conspiracy."3 Leoner-Aguirre, 939
F.3d at 317. The government also need not prove that the
conspirators agreed to commit two different types of racketeering
activity. Rodríguez-Torres, 939 F.3d at 29. Two instances of the
same racketeering act meet the definition of a pattern of
racketeering activity. Id.
Here, the RICO conspiracy charged in the indictment
alleged that appellants conspired to "conduct . . . the affairs of
[the] enterprise through a pattern of racketeering activity
consisting of multiple offenses involving (1) drug trafficking,
including cocaine, heroin and marijuana . . . and multiple acts
involving: (2) murder." Thus, as the district court instructed
the jury, a defendant is guilty of the charged RICO conspiracy if
he "agreed to participate in the conduct of an enterprise with the
knowledge that some members would engage in at least two acts of
3 Three of the appellants (Millán-Machuca, Rivera-Calcaño,
and Santana-Meléndez) cite United States v. Ramírez-Rivera, 800
F.3d 1 (1st Cir. 2015), in their briefing. As we have previously
acknowledged, that opinion's statement that a RICO conspiracy
conviction requires that a defendant agreed to commit, or in fact
committed, two or more predicate offenses does not reflect the
current law of this court. Leoner-Aguirre, 939 F.3d at 317
(discussing Ramírez-Rivera, 800 F.3d at 18). Ramírez-Rivera
relied on United States v. Shifman, 124 F.3d 31, 35 (1st Cir.
1997), a case that was abrogated by Salinas.
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murder or at least two acts of drug trafficking, or both of them,
or any combination of them."
2. Drug Trafficking Conspiracy
The four appellants were also convicted of Count Two,
which charged a conspiracy to possess with intent to distribute
heroin, cocaine, and marijuana in violation of 21 U.S.C. § 846.
This charge required the government to prove (1) the existence of
a conspiracy to possess heroin, cocaine, and/or marijuana with the
intent to distribute it, and (2) that the defendant knowingly and
willfully joined in that conspiracy. See id. § 841(a).
3. Murder in Aid of Racketeering
As noted, Millán-Machuca was also convicted of Count
Four, which charged murder in aid of racketeering, in violation of
18 U.S.C. § 1959(a)(1). This offense consists of four elements:
(1) the existence of an enterprise engaged in interstate commerce;
(2) that enterprise engaged in "racketeering activity," (3) the
defendant committed a crime of violence, here murder, in violation
of Puerto Rico law, and (4) that crime of violence was committed
as "consideration for the receipt of, or as consideration for a
promise or agreement to pay, anything of pecuniary value from an
enterprise engaged in racketeering activity, or for the purpose of
gaining entrance to or maintaining or increasing position in an
enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a).
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B. Rolando Millán-Machuca
Millán-Machuca challenges the sufficiency of the
evidence as to all three of his counts of conviction: the
racketeering conspiracy, the drug trafficking conspiracy, and
murder in aid of racketeering. We begin our discussion with the
latter two convictions because, as we will explain in our review
of the RICO conspiracy conviction, the evidence establishing that
Millán-Machuca engaged in a drug conspiracy and a murder in aid of
racketeering also supports his RICO conspiracy conviction. The
three charges are closely intertwined: each stems from his role in
the ÑETA maximum leadership.
1. Drug Trafficking Conspiracy
Millán-Machuca claims that the drug distribution
attributed to ÑETA was managed solely by an individual ÑETA member,
Jose Folch-Colon, without involvement from Millán-Machuca
personally or ÑETA as an organization. Four ÑETA members testified
to the contrary, providing evidence that ÑETA and its leadership,
including Millán-Machuca, ran a large drug distribution operation.
The four cooperating witnesses each named Millán-Machuca
as Advisor 1 to the maximum leadership and stated that he played
a lead role in overseeing the organization's drug trafficking
operations. Alex Miguel Cruz-Santos testified that "MillánMachuca was in charge of [the personal drug fund]. His role is to
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supervise . . . what's occurring with the drug[s] and see if it's
been paid." Miguel Álvarez-Medina testified that Millán-Machuca
was involved in drug trafficking as a member of the maximum
leadership and previously as the leader at one of the Ponce
facilities. Jose González-Gerena testified that Millán-Machuca
gave orders as to "[w]hat comes in, what doesn't come into the
jail, the drugs." Osvaldo Torres-Santiago testified that MillánMachuca "was one of the persons in charge" and that "there was an
inmate who sold drugs that belonged to him."
In addition to this testimony, the government provided
evidence of recorded phone calls. Millán-Machuca was a participant
in a July 22, 2015 phone call in which ÑETA leaders spoke about
drug trafficking, including a discussion of "a train about to come
in," a reference to drugs, as well as "pitches," one of the primary
methods of smuggling drugs into the prison. Millán-Machuca can be
heard asking "the thing . . . hasn't it gotten in yet?," to which
another member responded, "ours is supposed to come in this week.
At least I have one train secured." On the call, Millán-Machuca
spoke about the status of "incentives," the payments made to allow
inmates to bring personal drugs into the prison. He also discussed
details about the roles of different leaders within the
organization. Millán-Machuca participated in another call on July
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26, 2015, in which ÑETA leaders discussed a "substance sale" and
the payment of incentives.
Although Millán-Machuca acknowledges that witnesses
testified to his role in ÑETA's drug distribution operation, he
attempts to dismiss this testimony as mere "allegation[s]," an
argument that gets him nowhere. See, e.g., United States v.
Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (stating that
testimony of a cooperating accomplice can be sufficient to sustain
a conviction, even if uncorroborated). The witness testimony,
along with the recorded phone calls, provided more than enough
evidence to allow the jury to find Millán-Machuca guilty of a drug
distribution conspiracy in concert with ÑETA.
2. Murder in Aid of Racketeering
To establish the basis for any RICO or Violent Crime in
Aid of Racketeering ("VICAR") conviction, the government must
establish the existence of an enterprise engaged in interstate
commerce and racketeering activity. United States v. Nascimento,
491 F.3d 25, 31-32 (1st Cir. 2007) (applying a single analysis to
the sufficiency of proof for these elements to a RICO and a VICAR
offense). Millán-Machuca argues that the government did not
present sufficient evidence to prove that ÑETA was an "enterprise"
pursuant to RICO, a claim which would similarly undermine his VICAR
conviction. See id. ÑETA clearly constituted a "group of
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individuals associated in fact although not a legal entity," thus
meeting the basic definition of an "enterprise" within the meaning
of RICO and VICAR. See 18 U.S.C. §§ 1959(b)(2), 1961(4).
Millán-Machuca asserts that ÑETA was not a criminal
enterprise, but, rather, a lawful inmates' rights advocacy group
that included some members who sold drugs. There was more than
enough evidence for a reasonable jury to reject the premise that
it was a lawful group that happened to include some members who
sold drugs. Furthermore, nothing in the statutory definition of
enterprise requires that the enterprise be defined solely by a
criminal purpose. Indeed, the Supreme Court has recognized that
RICO, and, thus, also VICAR, extends to "both legitimate and
illegitimate enterprises." United States v. Turkette, 452 U.S.
576, 580-81 (1981).4 As we have noted, we analyze VICAR enterprises
under the same standard as RICO enterprises. See Nascimento, 491
F.3d at 32.
After establishing the enterprise, the government was
required to prove that Millán-Machuca committed a murder in
4 Millán-Machuca also challenges another element required for
both RICO and VICAR offenses: a nexus between the enterprise and
interstate commerce. The market for illegal drugs constitutes
commerce over which the United States had jurisdiction. Taylor v.
United States, 136 S. Ct. 2074, 2081 (2016). Also, Officer Eddie
Vidal-Gil testified that cocaine and heroin are not produced in
Puerto Rico. Vidal-Gil's testimony was enough to establish the
slight effect on interstate commerce that is required for a RICO
conviction. See Rodríguez-Torres, 939 F.3d at 27.
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violation of Puerto Rico law in aid of the enterprise. As a
preliminary matter, we reject appellant's claim that because
murder-for-hire is not an offense specifically criminalized by the
Puerto Rico Penal Code, it cannot serve as a predicate offense for
a murder in aid of racketeering conviction. The lack of a specific
murder-for-hire statute does not mean that murder-for-hire is not
prohibited by Puerto Rico law. Puerto Rico has a general murder
statute that prohibits the intentional killing of a person, P.R.
Laws Ann. tit. 33 § 4733 (2004), and that statute plainly applies
to the murder alleged here.
On the substantive issue, Millán-Machuca claims that the
murder was not authorized by ÑETA at all. Instead, it was a
conspiracy planned between two inmates, Folch-Colon and GonzálezGerena, because of personal rivalries unrelated to ÑETA. This
claim ignores the ample evidence presented at trial, which tied
ÑETA and Millán-Machuca to the murder.
The primary witness against Millán-Machuca was GonzálezGerena, the individual who led the attack on Rodríguez-Rodríguez
at Millán-Machuca's behest. He testified that Millán-Machuca gave
a direct order (referred to as a "directriz") to commit the murder.
Only top members of the maximum leadership had the power to give
such a directive; as a "missionary," González-Gerena was required
to comply or face death himself. He stated that Folch-Colon
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requested and paid for the murder. When he did not act
immediately, Millán-Machuca and Folch-Colon called him and "asked
[him] to give an explanation on why [he] hadn't done that yet."
González-Gerena described how he, along with three others
(including Torres-Santiago), committed the murder, first by
attempting to cause a heroin overdose. When that failed, they
strangled Rodríguez-Rodríguez with a sheet and then injected him
with heroin. González-Gerena stated that he and Millán-Machuca
were paid by Folch-Colon for committing the murder.
Torres-Santiago, another participant in the murder of
Rodríguez-Rodríguez, corroborated González-Gerena's testimony. He
testified that Millán-Machuca had approached him and asked him if
he wanted to kill Rodríguez-Rodríguez as retribution for the murder
of Torres-Santiago's brother, for which he believed RodríguezRodríguez was responsible. Torres-Santiago added that he had
learned from another inmate that Folch-Colon had "convinced the
maximum leadership, meaning Rolando [Millán-Machuca] to pay them
to kill Alexis 'El Loco' [Rodríguez-Rodríguez]." Folch-Colon then
paid both Millán-Machuca and González-Gerena for the murder.
Additionally, a third witness, Cruz-Santos, testified to multiple
conversations with other ÑETA leaders in which he was told that
Millán-Machuca ordered the killing of Rodríguez-Rodríguez. This
evidence demonstrates a murder-for-hire ordered by Millán-Machuca
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in his capacity as a leader of ÑETA, not a crime planned solely by
Folch-Colon and González-Gerena.
Taking another tack, Millán-Machuca argues that there
was no evidence that the murder was committed "for the purpose of
gaining entrance to or maintaining or increasing position in [the]
enterprise," as required by 18 U.S.C. § 1959(a). To meet the
elements of a murder in aid of racketeering conviction, the
government must show that the defendant acted with such a purpose,
and we have previously recognized that the statute does not require
that the government prove this was "the sole purpose." United
States v. Brandao, 539 F.3d 44, 56 (1st Cir. 2008). In the context
of a trial with hours of testimony about ÑETA and Millán-Machuca's
leadership role, the jury could rationally conclude that he acted,
at least in part, to strengthen and maintain his position in the
leadership. See, e.g., id. (stating that the "question of motive
under VICAR was for the jury to resolve" where there was evidence
of both personal and gang-related motivations).
3. RICO Conspiracy
We return to the RICO conspiracy. As we have noted,
this conviction required the government to prove that MillánMachuca "agreed to participate in the conduct of an enterprise
with the knowledge that some members would engage in at least two
acts of murder or at least two acts of drug trafficking, or both
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of them, or any combination of them." As we described in our
discussion of the evidence of the murder in aid of racketeering
offense, the government presented ample evidence that ÑETA was an
enterprise as defined by VICAR and RICO, and that Millán-Machuca
agreed to participate in that enterprise. And as we described in
our discussion of the evidence supporting both the drug conspiracy
and the murder in aid of racketeering charges, the government
presented overwhelming evidence that, in his role in the ÑETA
maximum leadership, Millán-Machuca participated in dozens of drug
offenses and a murder. This evidence far exceeds the evidence
required to show participation in a RICO conspiracy, which merely
requires that Millán-Machuca agreed to participate in ÑETA with
the knowledge that some members would engage in at least two acts
of drug trafficking and/or murder.5 Here, the evidence
demonstrated that Millán-Machuca participated in the predicate
acts himself. The jury supportably convicted Millán-Machuca of
all three charges.
5 Millán-Machuca also argues that the government did not prove
a RICO conspiracy because it alleged three types of racketeering
acts -- drug trafficking, murder, and bribery -- but failed to
present evidence of bribery. The abandonment of the bribery claim
has no bearing on the sufficiency of the evidence because a pattern
of racketeering activity requires only two racketeering acts.
- 24 -
C. Roberto Casado-Berríos
Casado-Berríos challenges the sufficiency of the
evidence as to his knowing and willful participation in the RICO
and drug trafficking conspiracies. He argues that the evidence
only shows that he associated with participants in the drug
trafficking conspiracy, not that he was a participant himself.
Such an association, without more, would not be enough to convict
on either charge. See, e.g., United States v. Gonzalez, 570 F.3d
16, 23 (1st Cir. 2009). But his claims of mere association are
contradicted by the record, which reveals that he was a participant
in the drug trafficking conspiracy and a leader who acted in
furtherance of ÑETA's goals.
Two ÑETA leaders who knew Casado-Berríos personally
testified to his leadership role in the drug trafficking operation.
The first, Cruz-Santos, stated that Casado-Berríos managed
personal drugs, specifically heroin, at the Zarzal facility. He
further testified that before Casado-Berríos was transferred to
Zarzal, he was a chapter leader at the Ponce minimum security
facility. The second, González-Gerena, also testified that
Casado-Berríos distributed drugs at Zarzal. He described CasadoBerríos as the "right-hand man" of Papito, Leader 1 of the maximum
leadership. The two men controlled all drug trafficking at Zarzal.
González-Gerena explained, "[N]o drugs could go in there or no
- 25 -
drugs could be sold because the drugs that were going through there
belonged to Papito and Bobe [Casado-Berríos]." Cruz-Santos also
stated that, on one occasion, Casado-Berríos had called him and
"ask[ed] him to get two-eighths [of drugs] to introduce it into
Zarzales."
Cruz-Santos's and González-Gerena's testimony was
corroborated by the testimony of two other ÑETA members who did
not know Casado-Berríos personally but knew of his role in the
organization from the remarks of others.6 Álvarez-Medina testified
that he had heard from other ÑETA members that Casado-Berríos
"managed" heroin "together with Papito Machuca [at the facility in
Zarzal]." He stated, "[I]n Zarzales7 the only drugs that are there
are from Papito and Bobe [Casado-Berríos]." Torres-Santiago
similarly testified that Casado-Berríos "was one of the only ones
that could sell drugs in Zarzales."
This testimony permitted a rational jury to conclude
that Casado-Berríos was an active and knowing participant in the
drug trafficking conspiracy. Furthermore, for the reasons we have
explained, this testimony would allow the jury to find that Casado6 The court admitted this testimony on the basis of the hearsay
exception for the statements of co-conspirators. See Fed. R. Evid.
801(d)(2)(E). The admission of testimony as statements of coconspirators was not challenged on appeal.
7 Witnesses refer to this particular Puerto Rico prison
facility as both "Zarzal" and "Zarzales."
- 26 -
Berríos knowingly participated in the conduct of the ÑETA
enterprise and that he agreed that he or his co-conspirators would
commit hundreds of drug offenses. As such, this evidence far
exceeds the showing required for a RICO conspiracy conviction.
D. Miguel Rivera-Calcaño
Rivera-Calcaño's argument follows the same logic as the
argument posed by Casado-Berríos: he merely associated with
members of the conspiracies rather than participating in them. As
was the case with our discussion of the sufficiency claim of
Casado-Berríos, we can address the sufficiency of the evidence of
participation in both conspiracies by recounting the evidence of
Rivera-Calcaño's participation and leadership in ÑETA's drug
trafficking scheme, a key part of the conduct of the RICO
enterprise.
The government's cooperating witnesses testified that
Rivera-Calcaño had far more than just an association with members
of the drug trafficking conspiracy. Álvarez-Medina, who was
incarcerated with Rivera-Calcaño several times and knew him
personally, testified that Rivera-Calcaño "was in different
roles." Although he was a leader of the dialogue committee, a
group of ÑETA members engaged in inmates' rights advocacy, he also
had leadership roles in the drug trafficking operation. He was a
chapter leader at Ponce 1000, where he "organized and got the jail
- 27 -
in order to be able to do the [drug] transactions and take them
from module to module." When Rivera-Calcaño was transferred to
Bayamón 1072, he acted as Leader 2 of that facility. In that role,
"he would collect drugs, cigarettes or canned goods." At Bayamón
448, he "collect[ed] the incentives for the drugs."
González-Gerena testified that Rivera-Calcaño was the
"coordinator and secretary" at Zarzal. In that role, he called
chapter leaders to "check on . . . how are the finances, how are
the funds, talk to leadership of the population, what went in,
what didn't go in of the drugs, how many phones went in." He
passed this information on to Papito. Rivera-Calcaño also
coordinated meetings with the maximum leadership.
The witness testimony was corroborated by recorded phone
calls. On a July 25, 2015 call, Rivera-Calcaño spoke with members
of the maximum leadership about drug transactions. The call
included references to incentives, two bags paid for by a Western
Union money transfer, and a notebook where drug transactions were
recorded. He told another leader about an inmate who "st[ole] 10
lines of heroin and four of cocaine and three of those belonged to
the fund." On another call, Rivera-Calcaño discussed a "substance
sale" and someone who "tried to collect a false Western [Union
money transfer]." The witness testimony, corroborated by these
- 28 -
phone calls, was more than enough evidence to sustain a conviction
for both the drug trafficking and RICO conspiracies.
E. Giordano Santana-Meléndez
In a familiar refrain, Santana-Meléndez claims that the
evidence presented at trial only proved his association with ÑETA,
and not his participation in the RICO conspiracy. Santana-Meléndez
argues that as a "pillar" he only had a symbolic, historical role
in ÑETA. Again, there was ample evidence to the contrary.
Each of the four cooperating witnesses testified that,
as a pillar, Santana-Meléndez was an active and influential leader
of the organization. Cruz-Santos testified that Santana-Meléndez
had the power to "take out" a maximum leader "if he saw anything
that was wrong," and could give orders to other ÑETA members,
including maximum leaders. González-Gerena similarly testified
that Santana-Meléndez had the power to remove a leader and could
do so "whenever he wanted." Álvarez-Medina testified that SantanaMeléndez's "voice and his vote counted in the association," and
specifically with the maximum leadership. González-Gerena
testified that Santana-Meléndez was consulted regarding "[a]ny
problems that are in the state prisons that are serious."
González-Gerena had personally been present during such a
consultation. Torres-Santiago testified that Santana-Meléndez
"had the power to change any decision."
- 29 -
The testimony also indicated that Santana-Meléndez
carried out his leadership role with knowledge of the group's
illegal activities, including drug trafficking and murder. As
three witnesses testified, he received compensation from the
organization's drug trafficking proceeds. Cruz-Santos explained
that Papito instructed him to take $200-300 from the funds gathered
through cell phone incentives and buy heroin to provide to SantanaMeléndez in a twice-daily dosage. Papito told Cruz-Santos that
Santana-Meléndez "couldn't want for anything." Álvarez-Medina
testified that Santana-Meléndez was "paid with substances,
cellular phones, canned goods, [and] cigarettes." Torres-Santiago
testified that Santana-Meléndez was given a monthly "salary,"
which came from money belonging to ÑETA, earned by "[s]elling
drugs, selling heroin, marijuana, cocaine, selling phones, and
also the money earned for contract killings." Given SantanaMeléndez's well-established leadership role, a jury could
rationally conclude that he received these benefits because of his
active participation in the affairs of the organization.
The government also presented evidence that SantanaMeléndez not only knew about the murder of Rodríguez-Rodríguez,
but counseled the murderer afterwards. González-Gerena testified
that after he committed the murder, he informed Santana-Meléndez
about what he had done. Santana-Meléndez responded by telling him
- 30 -
"to be calm" because the order came from Millán-Machuca. This
testimony, combined with the evidence that Santana-Meléndez had
power and influence to control the activities of the organization,
would allow the jury to reasonably infer that Santana-Meléndez had
knowledge that ÑETA was engaged in murder.
Santana-Meléndez argues that all of this evidence was
insufficient to prove that he personally agreed to commit or
committed two racketeering acts. As we have already explained,
his argument is premised on a misunderstanding of the law, which
merely requires that the government prove that "the defendant
agreed that at least two acts of racketeering would be committed
in furtherance of the conspiracy." Leoner-Aguirre, 939 F.3d at
317; see also Salinas, 522 U.S. at 65. Santana-Meléndez is
improperly faulting the government for failing to prove his
personal agreement to participate in predicate acts of the
conspiracy -- proof that is not required. The copious evidence of
Santana-Meléndez's leadership role in ÑETA demonstrates his
agreement to participate in the ÑETA enterprise with the knowledge
that some members would engage in many acts of drug trafficking.
The record also would allow the jury to conclude that he acted in
furtherance of the enterprise with knowledge that co-conspirators
committed an act of murder. This evidence supports both the drug
trafficking and RICO conspiracy convictions.
- 31 -
III.
Millán-Machuca and Rivera-Calcaño seek a new trial,
claiming the improper admission of certain evidence. Such claims
are evaluated for abuse of discretion when, as is the case here,
the appellant objected to the evidence at trial. See United States
v. Walker, 665 F.3d 212, 228 (1st Cir. 2011).
A. Millán-Machuca
At trial, the judge permitted government witness TorresSantiago to testify, over Millán-Machuca's objection, that MillánMachuca had told him about three prior murders he had committed in
prison. The testimony included the gruesome detail that MillánMachuca "tore the heart out of the inmate and started playing with
the heart as if it was a ball." Appellant argues that all of this
evidence was inadmissible under Federal Rule of Evidence 404(b) as
prior bad act evidence intended to show a propensity to commit
murder and inadmissible under Rule 403 as unduly prejudicial.
Federal Rule of Evidence 404(b)(1) prohibits the use of
evidence of a prior bad act "to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character." But such evidence is permitted
"for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident." Fed. R. Evid. 404(b)(2). Torres-Santiago's
- 32 -
testimony about Millán-Machuca's prior murders was permitted by
this exception. The fact that Millán-Machuca brazenly bragged
about committing multiple acts of murder to a lower-level ÑETA
member shows that he was a powerful and feared leader of the
organization. He used intimidation tactics to maintain his
position and to ensure compliance with his orders. Such evidence
bolsters the inference that Millán-Machuca ordered the murder of
Rodríguez-Rodríguez "for the purpose of . . . maintaining . . .
[his] position in an enterprise engaged in racketeering activity"
under the VICAR count. 18 U.S.C. § 1959(a).
As noted, Federal Rule of Evidence 403 allows the trial
court to exclude relevant evidence if "its probative value is
substantially outweighed" by, inter alia, "unfair prejudice." The
term "unfair prejudice" usually refers to "evidence that invites
the jury to render a verdict on an improper emotional basis."
United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000);
see also Old Chief v. United States, 519 U.S. 172, 180 (1997) ("The
term 'unfair prejudice,' as to a criminal defendant, speaks to the
capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof
specific to the offense charged."). Appellate courts "afford[]
considerable deference to a district court's balancing act" under
Rule 403. United States v. Guzmán-Montañez, 756 F.3d 1, 7 (1st
- 33 -
Cir. 2014); see also United States v. Raymond, 697 F.3d 32, 38
(1st Cir. 2012) (stating that the Rule 403 balancing test is "best
performed by the trial judge, who has an intimate familiarity with
the ebb and flow of the case and with its nuances").
Millán-Machuca argues unfair prejudice because the
government offered no prison records or other proof indicating
that any of the murders actually occurred, and there was no
information about the date of the murders, the identity of the
victims, or the motivations behind the killings. In his view, the
absence of this information substantially reduced the probative
value of the evidence of the prior murders. If so, the district
court correctly ruled that these omissions could be addressed
through cross-examination and did not require exclusion of the
evidence.
The admission of the gruesome detail that Millán-Machuca
"tore the heart out of the inmate and they started playing with
the heart as if it was a ball" presents a closer question. See,
e.g., Varoudakis, 233 F.3d at 122 (advising "cautio[n] where the
prior act is a 'shocking or heinous crime likely to inflame the
jury'" (quoting United States v. Moccia, 681 F.2d 61, 64 (1st Cir.
1982))); United States v. Gilbert, 229 F.3d 15, 24-25 (1st Cir.
2000) (affirming exclusion of evidence under Rule 403 that the
defendant had previously attempted to murder her husband in part
- 34 -
because that prior act evidence was "particularly inflammatory"
and "undeniably explosive").
We need not decide this close question because if there
was any error, it was harmless in the context of the totality of
the evidence. See United States v. Arias-Montoya, 967 F.2d 708,
714 (1st Cir. 1992). As detailed above, there was overwhelming
evidence of Millán-Machuca's guilt. Four witnesses testified
consistently that he was Advisor 1 of the ÑETA maximum leadership,
and that he oversaw drug trafficking. That testimony was
corroborated by recorded phone calls in which Millán-Machuca can
be heard discussing drug distribution. The two witnesses who
participated in the murder of Rodríguez-Rodríguez testified that
they did so on Millán-Machuca's orders, and a third witness
corroborated this claim. There is no reasonable probability that
the jury verdict was influenced by this one detail in the
defendant's account of his prior murders. See United States v.
Hicks, 575 F.3d 130, 143 (1st Cir. 2009) ("[A]n error is harmless
if it is 'highly probable that the error did not influence the
verdict.'" (quoting United States v. Roberson, 459 F.3d 39, 49
(1st Cir. 2006))).
- 35 -
B. Rivera-Calcaño
1. Controlled Substances
The court admitted into evidence cocaine, heroin, and
marijuana seized at the Ponce, Bayamón, and Zarzal prisons.8
Rivera-Calcaño argues that these drugs were irrelevant because
there was no connection established between ÑETA and the drugs.
To the contrary, the testimony of the correctional officers who
found the drugs showed probable ties to ÑETA. The cocaine was
discovered at Ponce in an "area [that] was being worked by ÑETA
inmates who were in charge of the cleaning of the complex." The
heroin at Ponce was found in a box with the nicknames of ÑETA
members written on it. The marijuana at Bayamón was recovered in
a housing unit designated for ÑETA members. The marijuana at
Zarzal was found in a perimeter area where ÑETA inmates were known
to receive "pitch-ins" of drugs thrown over the fence. Thus, the
drugs themselves were relevant proof of the racketeering and drug
trafficking conspiracies at hand.9
8 In his opening brief, Rivera-Calcaño objects to the
admission of photos of drugs. The government's response clarifies
that the drugs themselves were admitted into evidence, not photos
of the drugs. In his reply, Rivera-Calcaño acknowledges that the
evidence admitted was the substances themselves.
9 Rivera-Calcaño further asserts unpersuasively that the drugs
should have been excluded from evidence as unfairly prejudicial.
There was nothing inflammatory about the drug evidence.
- 36 -
2. Summary Chart
The district court permitted the government to display
to the jury during closing argument a chart summarizing the amounts
of drugs ÑETA trafficked. Although the government's chart
initially included four pages, the court excluded the last page
after reviewing the testimony. The court gave a detailed
instruction regarding the chart, stating:
[The prosecutor] is going to use [summary
charts] in an effort to help explain the facts
and the evidence in the light that he sees it
in. These charts are not evidence, and if
they don't correctly reflect what you think
the evidence is, then you should not accept
them. However, we do allow them as an aide in
helping you understand the evidence, if you
choose.
Rivera-Calcaño objects to the purported admission of the summary
chart evidence, but the chart was not admitted into evidence. As
the judge clearly instructed the jury, the summary chart was not
evidence. It was simply used appropriately by the prosecution in
closing argument to present "information already in evidence."
United States v. Young, 955 F.2d 99, 109 (1st Cir. 1992). Finally,
Rivera-Calcaño claims the chart did not correctly summarize the
evidence, yet he points to no examples of error.
IV.
Three of the appellants, Millán-Machuca, Casado-Berríos,
and Rivera-Calcaño, challenge the procedural and substantive
- 37 -
reasonableness of their sentences. Our review is bifurcated. We
first consider procedural reasonableness before turning to
substantive reasonableness. United States v. Arsenault, 833 F.3d
24, 28 (1st Cir. 2016). We review the district court's findings
of fact for clear error and consider its interpretation of the
sentencing guidelines de novo. United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir. 2013).
A sentence is procedurally unreasonable if the court
committed a procedural error "such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] §
3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence." Gall
v. United States, 552 U.S. 38, 51 (2007). A sentence is
substantively unreasonable only if it lacks "a plausible
sentencing rationale" or "a defensible result." United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008).
We review unpreserved challenges to the procedural
reasonableness of a sentence under the plain error standard.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). To
prevail under plain error review, an appellant must demonstrate:
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
- 38 -
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id.
A. Millán-Machuca
Millán-Machuca claims that the court committed a
procedural error by treating the murder of Rodríguez-Rodríguez as
first-degree murder. He did not preserve an objection to the
procedural reasonableness of his sentence and thus, as he concedes,
this claim is subject to plain error review.
The court calculated Millán-Machuca's guideline
sentencing range using the racketeering guideline under the United
States Sentencing Guidelines ("USSG"), which instructs the court
to apply "the offense level applicable to the underlying
racketeering activity." See USSG § 2E1.1(a)(2); see also USSG §§
3D1.2-3D1.3 (instructing courts to generally group similar counts
together and apply the offense level applicable to the most serious
count). The "underlying racketeering activity" at issue was the
murder of Rodríguez-Rodríguez. Thus, the court applied the firstdegree murder base offense level of 43. USSG § 2A1.1(a).
Millán-Machuca argues that, pursuant to the Puerto Rico
Penal Code, the murder-for-hire offense underlying his VICAR
conviction qualified only as second-degree murder, not firstdegree murder. See P.R. Laws Ann. tit. 33, § 4734(a) (2004). The
distinction between first- and second-degree murder is significant
- 39 -
in sentencing because it alters the USSG calculation.10 MillánMachuca raised a similar argument in an attempt to negate his
murder in aid of racketeering conviction altogether. See supra
Section II.B(2). As we explained above, the murder of RodríguezRodríguez was undoubtedly premeditated, and thus qualifies as
first-degree murder under Puerto Rico law. See id.; P.R. Laws
Ann. tit. 33, § 4734 (2004).
Moreover, Millán-Machuca's emphasis on Puerto Rico law
is misplaced. The Guidelines require the court to apply "the
offense level corresponding to the most analogous federal
offense." USSG § 2E1.1(a)(2) cmt. n.2 (emphasis added). The most
analogous federal offense is murder within the special maritime
and territorial jurisdiction of the United States, in violation of
18 U.S.C. § 1111(a). Section 1111(a) states that any "willful,
deliberate, malicious, and premeditated killing . . . is murder in
the first degree." 18 U.S.C. § 1111(a). There can be no doubt
that the murder of Rodríguez-Rodríguez fits this description.
Millán-Machuca also briefly claims that his sentence is
substantively unreasonable. He merely states, "There is no
'plausible explanation' to support the sentence." Millán-Machuca
10 The USSG first-degree murder guideline "applies in cases
of premeditated killing," and carries a base offense level of 43.
USSG § 2A1.1 cmt. n.1. The second-degree murder guideline applies
to all other murders and carries a base offense level of 38. Id.
§ 2A1.2.
- 40 -
was sentenced to three concurrent life imprisonment terms. On
each of his three offenses, the guideline range included life
imprisonment. A finding that a sentence was substantively
unreasonable is "particularly unlikely when . . . the sentence
imposed fits within the compass of a properly calculated
[guidelines sentencing range]." United States v. Reyes-Gomez, 927
F.3d 9, 12 (1st Cir. 2019) (alterations in original) (quoting
United States v. Ruiz-Huertas, 792 F.3d 223, 228-29 (1st Cir.
2015)). Moreover, Millán-Machuca's conviction for murder in aid
of racketeering carries a mandatory life sentence. 18 U.S.C. §
1959(a)(1). There is nothing unreasonable about imposing the
sentence required by law.
B. Casado-Berríos
Casado-Berríos claims that the district court committed
procedural errors in his sentencing by adding a leadership role
enhancement and by failing to make a specific drug quantity
finding. He asserts, incorrectly, that he preserved these two
objections for review. As evidence of his objections, he points
to two pages in his sentencing memorandum and two pages in the
sentencing transcript. Neither contains any objection to either
the leadership role enhancement or the drug quantity
determination. At the sentencing hearing, Casado-Berríos
disclaimed any objection. When asked if he agreed with the Pre-
- 41 -
Sentence Report's ("PSR") guidelines calculations, defense counsel
replied, "[W]e have our reserv[ations] regarding the adjustment of
role in the offense, but taking into consideration that there might
be some evidence that would support it, we did not formally object
to it with the probation officer." This vague statement does not
preserve an issue for review. Instead, it shows that CasadoBerríos declined to make an objection. Thus, his two claims are
subject to plain error review.
Casado-Berríos argues that the court erred in adopting
the PSR's four-level increase for his leadership role in the
offense. The USSG requires a four-level increase to the base
offense level "[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive." USSG § 3B1.1(a). A three-level increase
applies "[i]f the defendant was a manager or supervisor (but not
an organizer or leader)" of the same kind of activity. Id. §
3B1.1(b). In deciding whether one of these two subsections applies
to a defendant, the Sentencing Commission instructs courts to
consider factors including, but not limited to,
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
- 42 -
activity, and the degree of control and
authority exercised over others.
Id. § 3B1.1 cmt. n.4; see also United States v. AguasvivasCastillo, 668 F.3d 7, 15 (1st Cir. 2012) (describing this list of
factors as "non-exhaustive").
The court did not err in applying the four-level
leadership adjustment. The conspiracy at issue here clearly
involved more than five participants. It is also clear from the
witness testimony that Casado-Berríos acted as a leader. He was
described as a chapter leader, a "right-hand man" to Papito, and
a manager of heroin distribution. There was testimony that CasadoBerríos benefited from his leadership role because he was allowed
to "manage [his] own personal drugs, and not even pay an
incentive." The district court had an ample basis for finding
that Casado-Berríos was a leader, rather than a manager or
supervisor, or a lower-level participant.11
The guideline sentencing ranges for controlled substance
offenses are determined primarily by the drug quantity for which
the defendant is responsible. A base offense level is assigned in
11 Even if the court applied the three-level manager or
supervisor enhancement, rather than the four-level leader or
organizer enhancement, the guidelines calculation would be the
same. Casado-Berríos's offense level amounted to 44, which the
USSG treats as an effective offense level of 43. USSG § 5A cmt.
n.2. An increase of three levels rather than four would not have
changed the effective offense level.
- 43 -
accordance with a chart that states drug quantity thresholds which
trigger different base offense levels. USSG §
2Dl.l(a)(5)(c). Casado-Berríos was assigned a base offense level
of 38, which applies to controlled substance offenses involving a
quantity equal to or exceeding, inter alia, 90 kilograms of heroin,
450 kilograms of cocaine, 90,000 kilograms of marijuana, or 90,000
kilograms of "converted drug weight."12 Id. § 2Dl.l(c)(1).
In cases involving a drug trafficking conspiracy, the
sentencing court must "make an individualized finding as to drug
amounts attributable to, or foreseeable by, th[e] defendant."
United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004).
The court makes that finding based on a preponderance of the
evidence standard. United States v. Vázquez-Larrauri, 778 F.3d
276, 291 (1st Cir. 2015). The court may consider "all acts and
omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant; and [] in
the case of a jointly undertaken criminal activity . . . all acts
and omissions of others that were . . . reasonably foreseeable in
connection with that criminal activity." USSG § 1B1.3(a)(1). The
12 Converted drug weight, previously known as marijuana
equivalency, relies on a chart converting quantities of controlled
substances into a standard measurement, such that a sentencing
court may "convert each of the drugs to its converted drug weight,
add the quantities, and look up the total in the Drug Quantity
Table to obtain the combined offense level." USSG § 2Dl.l cmt.
n.8(B).
- 44 -
court may not "automatically" apply the drug quantity attributable
to the conspiracy as a whole to one individual defendant. ColónSolís, 354 F.3d at 103.
The evidence before the district court at sentencing
demonstrated that Casado-Berríos was individually responsible for
472,495.63 kilograms of converted drug weight, the full quantity
of drugs attributed to the conspiracy. Based on the testimony of
González-Gerena, the probation officer calculated that ÑETA sold
252 kilograms of cocaine, 420 kilograms of heroin, and 4,620 pounds
of marijuana in three prisons over the course of the conspiracy.
This quantity converts to 472,495.63 kilograms of converted drug
weight, an amount exceeding the 90,000 kilogram threshold for a
base offense level of 38. USSG § 2D1.1(c)(1). As we have just
described, Casado-Berríos was a high-level leader in ÑETA. He was
an active participant in and supervisor of large-scale drug
trafficking. While it is not appropriate to automatically assign
the quantity trafficked by a conspiracy to an individual
participant, it was reasonable under these circumstances to
attribute the full 472,495.63 kilograms of converted drug weight
to Casado-Berríos. Such a finding follows inexorably from the
conclusion that he was a high-level leader of the conspiracy.13
13 The district court did not state explicitly that it was
holding Casado-Berríos responsible for the entirety of the drugs
distributed by ÑETA during the period of the conspiracy. Given
- 45 -
C. Rivera-Calcaño
1. Ineffective Assistance of Counsel
Rivera-Calcaño claims that he was denied his Sixth
Amendment right to counsel at his sentencing hearing. He cites
counsel's failure to meet with him before the hearing and counsel's
lack of preparation for sentencing. At the hearing, defense
counsel stated that his communication with his client had broken
down, and he would be providing ineffective assistance if the court
went through with the sentencing hearing without either assigning
new counsel or granting a continuance. After some probing by the
court, it concluded that defense counsel was adequately prepared,
and proceeded with the hearing.
It is our usual practice to dismiss ineffective
assistance claims on direct appeal, preferring that those claims
be heard on collateral review. United States v. Brown, 945 F.3d
597, 605 (1st Cir. 2019). We decide ineffective assistance claims
on direct appeal only "[i]n the exceptional case . . . where the
record is sufficiently developed, and critical facts are not in
that our circuit precedents emphasize that the sentencing court
should state the specific drug quantities attributable to the
members of a drug trafficking conspiracy, see United States v.
Escobar-Figueroa, 454 F.3d 40, 53 (1st Cir. 2006) (citing ColónSolís, 354 F.3d at 103), it would have been a better practice for
the court to state its finding explicitly. But that finding is
unmistakable in the court's explanation of its sentencing
decision.
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dispute." United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir.
2008).
Rivera-Calcaño does not present such an exceptional
case. While the question of ineffective assistance of counsel was
raised at the sentencing hearing, there was no formal motion and
the district court did not develop the record. The significance
of the communication breakdown and the adequacy of counsel's
preparation for the sentencing hearing are questions of fact best
addressed by the district court. See, e.g., United States v.
Moran, 393 F.3d 1, 10-11 (1st Cir. 2004). Thus, we dismiss RiveraCalcaño's ineffective assistance of counsel claim without
prejudice to renewal in a habeas petition.
2. Reasonableness of the Sentence
Rivera-Calcaño challenges his sentence as procedurally
unreasonable because of the same leadership enhancement
determination challenged by Casado-Berríos. He also claims that
the district court should have decreased his criminal history
category because of the nonviolent nature of his crimes. He
further challenges his sentence as substantively unreasonable.
Rivera-Calcaño objected to the four-level increase for
a leader or organizer role at his sentencing hearing, and thus we
review for clear error. Although he argues that he was a leader
in ÑETA's prisoners' rights advocacy, but not in the drug
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trafficking or any other illegal operations, there was substantial
evidence that he played a leadership role in the drug trafficking
operation. He was a chapter leader at Ponce, "Leader 2" at
Bayamón, and the "coordinator and secretary" for the maximum
leadership. In those roles, he collected incentives for the
maximum leadership and supervised the finances of other chapters.
The district court did not commit clear error in concluding from
that evidence that he was a leader or organizer.14
Rivera-Calcaño also challenges the district court's
finding that his criminal history placed him in Criminal History
Category ("CHC") IV. He claims that a CHC of IV overrepresents
his criminal history, which was nonviolent and driven by drug
addiction. The USSG authorizes a downward departure from the
applicable CHC "[i]f reliable information indicates that the
defendant's criminal history category substantially overrepresents
the seriousness of the defendant's criminal history or the
likelihood that the defendant will commit other crimes." USSG §
4A1.3(b)(1).
Contrary to Rivera-Calcaño's argument, the court did
consider the nonviolent nature of his criminal history and his
drug addiction when deciding his sentence. The court explicitly
14 As was the case with Casado-Berríos, a finding that RiveraCalcaño was a manager or supervisor, rather than a leader or
organizer, would not change his guideline sentencing range.
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acknowledged that "his prior criminal history . . . does not
include violent behavior" and his "offenses are clearly linked to
his drug dependence." On this basis, the court granted a
substantial downward variance, from the USSG recommendation of
life imprisonment to a sentence of 156 months. Moreover, the CHC
reduction Rivera-Calcaño claims he is entitled to would not have
affected his guidelines range. His offense level was 43. At that
level, the recommended sentence is life regardless of the CHC.
See USSG § 5A (sentencing table). It was both within the court's
discretion, and to Rivera-Calcaño's benefit, to address the
mitigating factors through a downward variance in the ultimate
sentence rather than a decreased criminal history categorization.
For similar reasons, the sentence was not substantively
unreasonable. The sentence reflects a significant downward
variance, considering Rivera-Calcaño's history and circumstances.
We rarely find a below-guidelines sentence to be substantively
unreasonable. See, e.g., United States v. King, 741 F.3d 305, 310
(1st Cir. 2014). This occasion is not that rare instance. RiveraCalcaño only argues that the sentence is "greater than necessary
for . . . a longtime prisoner addicted to heroin who had
continuously served more than 30 years in prison for the nonviolent crimes resulting from his addiction." Again, the court
took those factors into account in making a downward variance. It
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was not an abuse of discretion for the court to decide that a 156-
month sentence was necessary.
Outcome: Affirmed. Rivera-Calcaño's claim for ineffective assistance of counsel is dismissed without prejudice.
Plaintiff's Experts:
Defendant's Experts:
Comments: