United States Court of Appeals For the First Circuit
No. 24-1235
UNITED STATES,
Appellee,
v.
NIVALDO DA CONCEIÇÃO LEVEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.
Leonardo M. Aldridge, with whom ECIJA-SBGB Law Offices was on brief, for appellant. Maggie E. Utecht, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Ricardo A. Imbert-Fernández, Assistant United States Attorney, were on brief, for appellee.
June 16, 2026 MONTECALVO, Circuit Judge. On November 11, 2022,
Nivaldo da Conceição Level ("Conceição Level") piloted an airplane
carrying approximately 450 kilograms of cocaine from the Amazon
jungle in Venezuela to Humacao, Puerto Rico. Immediately upon
landing, law enforcement -- who had been targeting this drug
venture through a sting operation approximately six months in the
making -- boarded the plane and seized the drugs. Officers
arrested Conceição Level and another man onboard, Hotaciano
Pereira Dos Santos ("Pereira Dos Santos"). The two were charged
with six counts of drug trafficking conspiracy and importation in
the U.S. District Court for the District of Puerto Rico.
Conceição Level pled guilty to all counts and was
sentenced to 135 months in prison. He now appeals his sentence on
three grounds under the United States Sentencing Guidelines ("the
guidelines" or "U.S.S.G."). He argues that the district court
erred in: (1) applying a dangerous weapon enhancement
(U.S.S.G. § 2D1.1(b)(1)); (2) denying a mitigating role adjustment
(id. § 3B1.2); and (3) denying a departure for duress or coercion
(id. § 5K2.12). Because we agree that the district court erred in
its mitigating role analysis, we vacate Conceição Level's sentence
and remand for resentencing.
I. Facts
Because this appeal follows Conceição Level's guilty
plea, we draw the facts from "the undisputed sections of the
- 2 - presentence investigation report" ("PSR"), as well as "the
transcripts of the change-of-plea and sentencing hearings."
United States v. Trahan, 111 F.4th 185, 188 (1st Cir. 2024)
(quoting United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023)).
To understand the conduct leading to Conceição Level's conviction,
we backtrack to the origins of the sting operation.
In May 2022, undercover officers from the Drug
Enforcement Administration ("DEA") started communicating with two
"Regional Priority Organizational Target[s]": Carlos Javier
Ruíz-Patiño ("Ruíz-Patiño") and Luis Guillermo López-Henao
("López-Henao"). In the officers' first call with these targets,
Ruíz-Patiño laid the groundwork for an airplane drug venture
involving approximately 500 kilograms of cocaine and noted that he
would meet with his associates in Bogotá, Colombia, to coordinate
further. The operation continued for close to six months, with
officers speaking with target López-Henao nearly a dozen times to
hammer out the details.
Conceição Level, a Brazilian pilot and owner of a flight
school in Boa Vista, Brazil, became involved in this drug venture
months later, in late fall of 2022. A Venezuelan man interested
in taking pilot classes approached Conceição Level at his flight
school. This man, who we'll call "the recruiter," offered
Conceição Level a piloting job transporting mining equipment in
Venezuela. Facing tough financial times at his flight school,
- 3 - Conceição Level agreed to check out the job and invited his friend,
fellow Brazilian Pereira Dos Santos, to accompany him.
Several days later, the recruiter drove Conceição Level
and Pereira Dos Santos across the border to Venezuela, where they
were transported to a camp deep in the jungle. Upon arrival,
Conceição Level tested the airplane for flight-readiness. After
seeing pictures of what he would be transporting, he became
suspicious that it was not mining equipment after all and told the
recruiter that "he did not want to do the job."
The recruiter, who had already been paid $5,000 for
finding a pilot, told Conceição Level that "if he did the flight,
[he] could return home," and promised to pay Conceição Level to
complete the flight. Conceição Level and Pereira Dos Santos agreed
to fly the "equipment" to an unnamed island.1
The two remained at the jungle encampment for some time
while armed soldiers from the Colombian guerrilla group known as
the "FARC" kept watch over them.2 At some point, the initial
flight that Conceição Level and Pereira Dos Santos had agreed to
1 The details of the first planned flight are limited: the PSR indicates only that it was destined for an island and that Conceição Level and Pereira Dos Santos would be paid for completing the job. 2 FARC is the Spanish acronym for the Revolutionary Armed Forces of Colombia. In addition to FARC soldiers, the PSR details several other named and unnamed individuals with whom Conceição Level and Pereira Dos Santos interacted during their time in Venezuela.
- 4 - make was called off, apparently due to a dispute between the owner
of the "contraband" and the owners of the airplane.3
In early November, Conceição Level and Pereira Dos
Santos were transported to a different camp, and arrangements were
made for a second flight. Conceição Level was offered $150,000 to
pilot this flight carrying 450 kilograms of cocaine to Puerto Rico,
and Pereira Dos Santos was offered $70,000 to assist with the
delivery.
Meanwhile, the DEA targets, Ruíz-Patiño and López-Henao,
had continued coordinating the drug delivery with the undercover
agents, rescheduling the flight after complications arose waiting
for the guerrilla members to authorize the plane's departure.
At last, on November 11, 2022, accompanied by Pereira
Dos Santos, Conceição Level piloted the flight to Puerto Rico,
transporting thirteen bales and three bundles of cocaine. After
landing, law enforcement swiftly seized the plane and its
contraband and took Conceição Level and Pereira Dos Santos into
custody. Along with the cocaine, they recovered "a large
military-style hunting knife," tools, and electronic devices from
the plane, including GPS devices.
3 The PSR states, "[Conceição Level] reported that while getting ready to depart, there was a discussion between the contraband owner and the owners of the airplane," leading to the first flight's cancellation.
- 5 - II. Procedural History
On November 16, 2022, Conceição Level and Pereira Dos
Santos were indicted on six counts related to drug trafficking
conspiracy and importation.4 One year later, Conceição Level
entered a straight plea to all counts.5 Prior to his sentencing
hearing, the U.S. Probation Office ("Probation") prepared a PSR
recommending, among other things, a two-level dangerous weapon
sentencing enhancement under section 2D1.1(b)(1) of the
guidelines. In Conceição Level's sentencing memorandum and at his
sentencing hearing on February 23, 2024, he objected to that
recommendation and urged the district court to apply downward
adjustments to his sentence for playing a mitigating role and
4 They were charged with (1) narcotics conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possession with intent to distribute narcotics, aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) narcotics importation conspiracy, in violation of 21 U.S.C. §§ 952(a), 960, and 963; (4) narcotics importation, aiding and abetting, in violation of 21 U.S.C. §§ 952(a) and 960, and 18 U.S.C. § 2; (5) conspiracy to possess controlled substances aboard an aircraft, in violation of 21 U.S.C. §§ 955, 960, and 963; and (6) possession of controlled substances aboard an aircraft, aiding and abetting, in violation of 21 U.S.C. §§ 955 and 960, and 18 U.S.C. § 2. 5 Pereira Dos Santos, for his part, pled guilty to count three only (narcotics importation conspiracy) and was sentenced to ninety-seven months in prison and five years of supervised release. Prosecutors dismissed all other charges against him.
- 6 - acting under duress, pursuant to sections 3B1.2 and 5K2.12 of the
guidelines, respectively.
The district court disagreed on each of those fronts.
Applying the dangerous weapon enhancement to Conceição Level's
sentence and denying him the mitigating role adjustment and duress
departure, it found that Conceição Level's total offense level was
thirty-three and his criminal history was category I, yielding a
guideline range of 135 to 168 months. It sentenced Conceição Level
at the lower end of that range, to 135 months.6 This timely appeal
followed.
III. Discussion
Before us, Conceição Level raises three claims of
sentencing error concerning (1) the dangerous weapon enhancement,
(2) the mitigating role adjustment, and (3) the duress departure.
We review preserved sentencing challenges for abuse of discretion,
"apply[ing] clear error review to factual findings, de novo review
to interpretations and applications of the guidelines, and abuse
of discretion review to judgment calls." United States v.
Melendez-Hiraldo, 82 F.4th 48, 54 (1st Cir. 2023) (quoting United
6The district court sentenced Conceição Level under the 2023 Guidelines, the version in effect at the time of his sentencing. See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). We note this because the duress departure at section 5K2.12 has since been deleted from the guidelines, effective November 1, 2025. U.S. Sent'g Guidelines Manual, §§ 5K2.0–5K2.24 [Deleted] (historical note at 445) (2025).
- 7 - States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)). With
these standards in mind, we turn to Conceição Level's challenges
on appeal.
A. Dangerous Weapon Enhancement
Conceição Level first takes aim at the district court's
decision to apply the dangerous weapon enhancement to his sentence.
At sentencing, he argued that the large military-style hunting
knife found onboard the airplane could not "protect 400-plus kilos
of cocaine" and was a necessary instrument of flight. Thus, he
argued, it was "clearly improbable" that the knife was connected
to the drug offense, and the enhancement should not apply. The
government disputed this, calling to the stand a DEA special agent
with piloting experience. The agent testified that this knife was
not the typical kind used as an instrument of flight, instead
listing pocketknives, seat belt cutters, and scissors as tools
used in case of crash landings. And he further testified that a
knife like the one found in this case could be used "to defend a
drug load." The district court, in applying the enhancement,
concluded that the knife in question, along with the amount of
drugs seized, "[didn't] make it clearly improbable that [the knife]
wasn't used to protect the cocaine."
Before us, Conceição Level posits that the district
court erred in applying this enhancement because the knife was "an
instrument of general aviation" and "was not used to protect the
- 8 - drugs." The government counters that the fact that knives can be
aviation tools fails "to undermine the link" between this knife
and the drug offense. It maintains that Conceição Level failed to
establish that a nexus between this knife and the cocaine smuggling
"was clearly improbable."
We begin our analysis with the guidelines' text. Section
2D1.1(b)(1) increases a criminal defendant's offense level by two
levels for possession of "a dangerous weapon (including a
firearm)." U.S.S.G. § 2D1.1(b)(1). Reflecting the "increased
danger of violence when drug traffickers possess weapons," the
enhancement applies whenever a dangerous weapon "was present,
unless it is clearly improbable that the weapon was connected with
the offense." Id. § 2D1.1(b)(1) cmt. n.11(A) (emphasis added).
Indeed, in cases concerning drug offenses, we have clarified that
"[o]nce the presence of a weapon is established," the enhancement
will apply unless the defendant can point to "special
circumstances" making it "clearly improbable" that its presence
was connected to the drug trafficking offenses. United States v.
Lagasse, 87 F.3d 18, 22 (1st Cir. 1996); see also United States v.
Corcimiglia, 967 F.2d 724, 728 (1st Cir. 1992) (citation modified).
Conceição Level points to no such circumstances. The
recovered weapon was a "large military-style hunting knife" found
onboard a flight filled with hundreds of kilograms of cocaine.
The government's expert witness testified that in his aviation
- 9 - experience, pilots do not usually carry this type of knife onboard
and provided examples of typical cutting tools often carried
instead in flight. And he added that, in his experience as a DEA
agent, this knife could defend a drug haul. Conceição Level failed
to meaningfully contest these points before the district court,
and his mere assertion on appeal that this "simple knife" could
not defend a large quantity of drugs does not persuade us
otherwise. Given that the expert testified that this was not the
type of knife typically carried by pilots, the fact that it could
theoretically be used as a tool of flight also makes no difference
in these circumstances. See Corcimiglia, 967 F.2d at 727
(explaining that the mere fact that a different legal basis exists
for possessing a weapon does not, on its own, prevent the
application of the enhancement). Identifying no clear error in
the district court's finding that it was not "clearly improbable
that [this knife] wasn't used to protect the cocaine onboard," we
affirm the application of the dangerous weapon enhancement.
B. Mitigating Role Adjustment
Conceição Level next challenges the district court's
denial of a mitigating role adjustment, arguing he was "less
culpable" than the other conspiracy members.
At sentencing, in advocating for this adjustment,
defense counsel cited a "related case" before the District of
Puerto Rico, case number 23-085, where the government had "charged
- 10 - a man and other people with being . . . the mastermind of this
drug venture." Conceição Level, counsel insisted, was "less
culpable in the grand scheme of things" because, although he flew
the airplane, he did not control the drugs, their amount, nor the
date nor destination of the flight. The government argued against
the adjustment, pointing to United States v. Arias-Mercedes for
support, where this court stated that "[w]hen a person undertakes
to provide material assistance in transporting a large quantity of
drugs as a member of a tiny crew in a hazardous voyage . . . it
ordinarily will not be clear error for the sentencing court to
refuse him a mitigating role adjustment." 901 F.3d 1, 8 (1st Cir.
2018). The district court observed that "[h]ere," as in
Arias-Mercedes, "there were only two Defendants." Noting the large
amount of drugs at issue, Conceição Level's role as the pilot, his
conversations with the drug owners,7 his test flight, his
recruitment of Pereira Dos Santos, and the fact that he was offered
7 Although not central to our analysis, we pause to explain the district court's observation about Conceição Level's "conversations" with "the drug owners." The PSR says Conceição Level reported a "discussion" between the "contraband owner" and the airplane owners resulting in the cancellation of the first flight. The government, apparently referencing this fact at sentencing, argued that Conceição Level told Probation "he was privy to a discussion between the owner of the cocaine and the owners of the airplane." In the government's view, Conceição Level would not have been involved in such conversations had he been only a low-level participant. Defense counsel countered that Conceição Level merely "overheard" sensitive details but was not an "affirmative participant" in such conversations.
- 11 - twice as much money as Pereira Dos Santos to deliver the drugs,
the court denied the adjustment.
Before diving into our analysis, some background about
this adjustment is warranted. Section 3B1.2 of the guidelines
allows for a two-level decrease to a defendant's offense level for
being a "minor participant" in criminal activity, a four-level
decrease for being a "minimal participant," and a three-level
decrease for having a role that falls somewhere in between.
U.S.S.G. § 3B1.2. A defendant bears the burden of proving his
eligibility for this adjustment by a preponderance of the evidence.
United States v. Robles-López, 169 F.4th 1, 4 (1st Cir. 2026).
This court recently clarified our mitigating role
analysis in United States v. Guía-Sendeme, 134 F.4th 611 (1st Cir.
2025), a case involving maritime drug smuggling that addressed a
misreading of our earlier precedent in Arias-Mercedes. To
determine whether the adjustment applies, sentencing courts must
conduct a four-step analysis: (1) "identify the universe of
participants involved in the relevant criminal activity";
(2) "order each participant along a continuum based on the degree
of culpability in the criminal activity"; (3) "identify the
average participant across all likely participants in the criminal
scheme"; and finally, (4) "compare the defendant's role in the
criminal activity to the average participant's role," guided by a
- 12 - list of non-exhaustive "3B1.2 factors" outlined in the guidelines'
commentary.8 Guía-Sendeme, 134 F.4th at 617-18.
Because step one of this analysis is most relevant for
our purposes, we focus there. In determining the universe of
participants, the sentencing court must first establish "the
relevant conduct as a whole" by "identify[ing] the scope of the
conduct for which the defendant is being held accountable." Id.
at 622 (citation modified). For "jointly undertaken criminal
activity," this includes not only activities performed during the
offense but also those "in preparation" for it and in "attempting
to avoid detection or [criminal] responsibility." Id. at 619
(quoting U.S.S.G. § 1B1.3(a)(1)(B)). Next, the court identifies
the people who participated in the relevant conduct. See id. at
622. "[P]articipant[s]" are those "criminally responsible" for
the offense, but they "need not have been convicted." Id. at 617
(quoting Arias-Mercedes, 901 F.3d at 6). Rather, "there must be
sufficient evidence of [their] existence and involvement in the
crime." Id. Put simply, they must be "discernable from the
record."9 Id. (citation modified); see id. at 623.
The guidelines instruct courts to conduct a fact-intensive 8
inquiry that considers the nature of a defendant's participation in the crime, how much they understood its scope and structure, their involvement in its planning, their decision-making authority, and what they stood to gain from it. See U.S.S.G. § 3B1.2 cmt. n.3(C). We pause here to explain how Guía-Sendeme clarified our 9
mitigating role analysis and the meaning of this court's prior
- 13 - Here, Conceição Level flew the cocaine from Venezuela to
Puerto Rico, and Pereira Dos Santos helped him onboard. But
critically, these two men did not act in isolation. The record
reflects multiple other individuals involved in preparing this
drug venture and shielding its detection from the authorities.
See id. at 619; U.S.S.G. § 1B1.3(a)(1)(B). Recall that the PSR
reflects that as early as May 2022, Ruíz-Patiño and López-Henao
began communicating with undercover agents to set up this drug
deal, communications which continued up until the plane's arrival
decision in Arias-Mercedes. See Robles-López, 169 F.4th at 5. To do so, we begin with Arias-Mercedes. The defendant in that case was one of three crew members intercepted aboard a drug-laden boat on its way to Puerto Rico. Arias-Mercedes, 901 F.3d at 4. In upholding the denial of the defendant's mitigating role adjustment, this court observed that when someone "transport[s] a large quantity of drugs as a member of a tiny crew in a hazardous voyage at sea," it is not usually clear error for the sentencing court to deny the adjustment. Id. at 8. Years later, when denying a different defendant's mitigating role adjustment in another drug smuggling case, the district court in Guía-Sendeme relied on the just-quoted statement from Arias-Mercedes to "narrowly circumscribe" the universe of participants to the apprehended crew members. Guía-Sendeme, 134 F.4th at 619. This court, in vacating that defendant's sentence, clarified that while comparing the defendant's culpability solely against the other crew members was correct in Arias-Mercedes, where the record did not reflect other "identifiable participants," Arias-Mercedes did not stand for "a broad rule" limiting the universe of participants to those onboard a drug smuggling vessel. Id. at 621-22. Rather, this court held, sentencing courts must "consider[] the record evidence to determine whether there [are] other discernable participants in the drug shipment." Id. at 623.
- 14 - in Puerto Rico.10 And recall that the PSR also reflects that the
recruiter transported Conceição Level and Pereira Dos Santos to
Venezuela; additional individuals (named and unnamed) interacted
with them upon their arrival; and FARC soldiers surveilled the
jungle encampments where the drugs were kept.
Despite these individuals' potential involvement in the
relevant conduct, they were absent from the district court's
analysis, which instead focused narrowly on comparing Conceição
Level's culpability vis-a-vis his co-defendant Pereira Dos
Santos.11 That focus was understandable given that Conceição
Level's sentencing hearing took place before this court decided
Guía-Sendeme. It is perhaps no surprise then, that, lacking the
benefit of Guía-Sendeme's detailed mitigating role analysis, the
district court began its discussion by referencing Arias-Mercedes
and observing that, as in that case, "there were only two
Defendants" here. In so observing, the district court appeared to
The PSR explicitly states "Ruíz-Patiño is related" to the 10
offense here and lists the "related case[]" in which he was indicted. 11The district court noted that Conceição Level "recruited" Pereira Dos Santos and was set to "receive twice as much money" as him. The district court briefly acknowledged the existence of some individuals outside of these two co-defendants (referencing the "drug owners," a "Mexican drug cartel," and "Venezuelan officials" who were bribed so that the flight could take off). But it did not compare Conceição Level's culpability relative to them, and so we interpret these statements only as part of the court's consideration of the 3B1.2 factors.
- 15 - rely on the understanding of Arias-Mercedes that Guía-Sendeme only
later corrected, namely, that a defendant's culpability should be
compared only to the other crew members aboard a drug smuggling
vessel.12
Before us, the government does not contest that the
universe of participants was improperly defined at sentencing; in
fact, at oral argument, it conceded that the district court erred
under Guía-Sendeme. Rather, the government maintains that
Conceição Level failed to preserve an argument about identifying
the proper universe of participants before the district court and
has waived this issue on appeal.
We disagree. As discussed, in arguing for the mitigating
role adjustment at sentencing, Conceição Level drew the district
court's attention to "related case" number 23-085, referencing
Ruíz-Patiño as "the mastermind of this drug venture." Defense
counsel insisted that Conceição Level was "less culpable in the
grand scheme of things," since he did not "control the drugs" or
the "amount," had no say over when or "where to fly," and did not
"execute the planning." He acted solely as a "courier of the
drugs," and thus, counsel urged, was eligible for the adjustment.
12 While not critical to our analysis, we pause to clarify that there were three crew members in Arias-Mercedes, and thus the district court may have simply misspoken when asserting that, as in Arias-Mercedes, there were just two defendants here. See 901 F.3d at 4.
- 16 - On appeal, Conceição Level similarly argues that despite being
essential to this drug venture, "he was less culpable than every
other member of the conspiracy," compared to, for example, those
who "dealt with drugs" and "protected them with firearms." He
again argues that he was merely an "instrument" whose sole role
was to fly the plane to a destination that the drug conspiracy's
"leaders" had preordained.
Conceição Level thus identified discernable participants
from the record, apart from just his co-defendant, and argued both
here and before the district court that his culpability should
have been measured against them. In so arguing, he alerted the
district court of its error concerning the relevant universe of
participants and has spelled out this argument to us on appeal.
See United States v. Colón-Cordero, 91 F.4th 41, 50 (1st Cir. 2024)
(discussing preservation); United States v. Guzmán-Ceballos, 144
F.4th 1, 6-7 (1st Cir. 2025) (procedural challenge preserved in
similar circumstances); see also United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (discussing waiver). Thus, Conceição
Level preserved this issue and has sufficiently raised it on
appeal.
Because the district court, lacking the benefit of
Guía-Sendeme's guiding framework, erred at step one of the
mitigating role analysis, we must vacate Conceição Level's
sentence on this ground and remand for resentencing. See
- 17 - Robles-López, 169 F.4th at 3-4 (remanding under similar
circumstances); Guzmán-Ceballos, 144 F.4th at 8-9 (same); United
States v. Flores-Álvarez, No. 23-1163, 2025 WL 1369300, at *2-3
(1st Cir. May 12, 2025) (same).
C. Duress Departure
Conceição Level's final challenge is to the district
court's denial of a downward departure for duress or coercion under
section 5K2.12 of the guidelines.
At sentencing, Conceição Level argued he merited the
duress departure because the "underlying ecosystem of [the]
encampment," which involved people in paramilitary fatigues
carrying large weapons, created an "implicit threat" such that he
could not leave. He also argued that he was threatened when the
recruiter told him the only way to return home was by completing
this flight. The government countered that no threat, whether
explicit or implicit, had been made against Conceição Level and
that, under United States v. Sachdev, 279 F.3d 25 (1st Cir. 2002),
his subjective belief that he was threatened was not enough to
warrant a sentencing departure for duress. The district court
acknowledged that this was a "close call," but denied the
departure. The judge concluded, "I don't think that a threat was
articulated, and the Defendant's subjective belief that he was
being threatened [was] not sufficient."
- 18 - On appeal, pointing to the isolated, criminal
environment he faced in the jungle encampments and the recruiter's
statement that "if he did the flight, [he] could return home,"
Conceição Level argues that the district court erred in finding no
"threat was articulated" and that his "subjective belief" that he
had been threatened was not enough. The government counters that
Conceição Level failed to make "an objective showing of a threat"
and further failed to demonstrate that his participation in this
drug venture was because of any threat.
Section 5K2.12 of the guidelines allows for a downward
sentencing departure where "the defendant committed the offense
because of serious coercion, blackmail[,] or duress."
U.S.S.G. § 5K2.12 (2023). Generally, only coercion involving "a
threat of physical injury" (or certain other harms specified in
the guideline)13 is sufficiently serious to warrant the departure.
Id.
We have previously recognized that section 5K2.12 covers
"both explicit and implicit threats of harm." Sachdev, 279 F.3d
at 29. Critically, a defendant's "subjective belief" that they
have been threatened, whether explicitly or implicitly, is not
enough. Id. Rather, their subjective belief must be coupled with
These other harms include "substantial damage to property" 13
and "similar injury resulting from the unlawful action of a third party or from a natural emergency." U.S.S.G. § 5K2.12 (2023).
- 19 - an objective determination that "a reasonable person in
defendant's position would perceive" a threat of physical injury
or one of the other harms articulated in section 5K2.12. Id.
Ultimately, to apply the duress departure, the defendant must have
"committed the offense 'because of' serious coercion, blackmail,
or duress." Id.
In arguing that the district court erred in denying the
duress departure, Conceição Level highlights how he was
transported under false pretenses to a remote location in the
Amazon, was surrounded by armed paramilitary members and drug
traffickers, and feared death if he tried to leave. But as the
government points out, the record fails to establish that any of
the allegedly armed individuals "ever directed [their] guns or any
threat of aggression at [Conceição Level]." And our review of the
record confirms this.14
Similarly, concerning the recruiter's statement that if
Conceição Level "did the flight, [he] could return home," Conceição
Level argues that "[t]hese words[,] coming from individuals in
[FARC] fatigues . . . with long weapons" in the Amazon constituted
a "real threat to any person," and thus the district court erred
14 For example, Conceição Level does not allege, and the record
does not reflect, that the FARC soldiers ever brandished their weapons at him, physically harmed him or anyone else, or made any statement about injurious consequences for those who failed to comply with their orders.
- 20 - in finding no threat had been made. But Conceição Level
embellishes the facts and conveniently leaves some out of the
picture. The PSR does not indicate that the recruiter wore a FARC
military fatigue nor that he was armed. In fact, it is devoid of
any indication that this man used or threatened physical harm
towards Conceição Level or anyone else. The PSR merely states
that when Conceição Level said he did not want to do the job, the
recruiter "insisted" because he did not want to return the money
he had been paid for recruiting Conceição Level. And immediately
thereafter, it notes that to "persuade" Conceição Level to do the
flight, the recruiter pointed to other airplanes arriving and
departing from the camp and promised that Conceição Level would be
paid "as soon" as he returned from the job.
We find clear error only where our review of the record
leads to "a strong, unyielding belief that a mistake has been
made." United States v. Fitzpatrick, 67 F.4th 497, 502 (1st Cir.
2023) (citation modified). And here, Conceição Level has failed
to make such a showing. He has failed to direct us to evidence
sufficient to show that the district court clearly erred in finding
that a reasonable person in Conceição Level's place would not
perceive a "serious threat of physical injury." See Sachdev, 279
F.3d at 29 (emphasis added). Because the district court's finding
that no objective threat had been directed at Conceição Level is
"supported by a plausible view of the evidence," we leave it
- 21 - undisturbed.15 See United States v. Pontoo, 666 F.3d 20, 27 (1st
Cir. 2011). Identifying no clear error, we affirm the district
court's denial of the downward departure for duress or coercion.
IV. Conclusion
Accordingly, we affirm the district court's application
of the dangerous weapon enhancement and its denial of a departure
for duress. We vacate Conceição Level's sentence given the
district court's denial of the mitigating role adjustment and
remand for resentencing consistent with this opinion and our
decision in Guía-Sendeme.
15For the first time at oral argument, Conceição Level argued that the district court's statement that no "threat was articulated" erroneously "increased the [legal] threshold" by requiring a threat to be "explicit," contrary to this circuit's caselaw recognizing both explicit and implicit threats. Absent extraordinary circumstances, arguments not raised in an opening brief, as here, are waived. See Capen v. Campbell, 134 F.4th 660, 675 (1st Cir. 2025).
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