NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
Nos. 18-3538, 18-3586, 18-3590, 18-3664, 19-2909 & 19-2917 ____________
UNITED STATES OF AMERICA
v.
JESUS BURGOS-MONTANEZ, Appellant in 18-3538 JEAN CARLOS VEGA-ARIZMENDI, Appellant in 18-3586 JOSE R. HODGE, Appellant in 18-3590 SERGIO QUINONES-DAVILA a/k/a Chulin a/k/a Pai, Appellant in 18-3664 OMY A. GUTIERREZ-CALDERON, Appellant in 19-2909 ANIBAL A. VEGA-ARIZMENDI, a/k/a Bebo, Appellant in 19-2917 ____________
On Appeal from the District Court of the Virgin Islands (D.C. No. 1-16-cr-00009) District Judge: Honorable Wilma A. Lewis ____________
Argued on December 8, 2022 *
Before: CHAGARES, Chief Judge, GREENAWAY, JR. and FISHER, Circuit Judges.
(Filed: April 4, 2023)
* Counsel for five of the Defendants participated in oral argument. The sixth, Yohana Manning, counsel for Jesus Burgos-Montanez, did not participate in argument, as he was on medical leave. This court offered Attorney Manning an opportunity to reschedule argument, which he declined on January 24, 2023. Yohana M. Manning Manning Legal Services 2120 Company Street, Suite 2 Christiansted, VI 00820 Counsel for Appellant Jesus Burgos-Montanez
Robert J. Kuczynski ARGUED Law Office of Beckstedt & Associates 2162 Church Street Christiansted, VI 00820 Counsel for Appellant Jean Carlos Vega-Arizmendi
Renee D. Dowling ARGUED Law Office of Renee D. Dowling P.O. Box 1047 Christiansted, VI 00821 Counsel for Appellant Jose R. Hodge
Kye Walker ARGUED The Walker Legal Group 2201 Church Street Suite 16AB, 2nd Floor Christiansted, VI 00820 Counsel for Appellant Sergio Quinones-Davila
Jennie M. Espada-Ocasio ARGUED P.O. Box 13811 San Juan, PR 00908 Counsel for Appellant Omy A. Gutierrez-Calderon
Eszart A. Wynter, Sr ARGUED 27 Estate Whim, P.O. Box 1847 Frederiksted, VI 00841 Counsel for Appellant Anibal A. Vega-Arizmendi
Delia L. Smith, United States Attorney Adam Sleeper, Assistant United States Attorney ARGUED Everard E. Potter Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802 Counsel for Appellee
2 ___________
OPINION * ___________
FISHER, Circuit Judge.
These consolidated appeals arise from a lengthy drug conspiracy trial involving
six defendants: Jesus Burgos-Montanez, Jose Hodge, Jean Carlos Vega-Arizmendi,
Anibal Vega-Arizmendi 1, Sergio Quinones-Davila, and Omy Gutierrez-Calderon. 2 From
2014 to 2016, Defendants conspired to smuggle drugs onto St. Croix by boat. They were
eventually convicted of conspiracy to possess with intent to distribute more than five
kilograms of cocaine, as well as either possession or attempted possession of cocaine.
They appeal, arguing errors occurred at trial and sentencing. For the reasons set forth
below, we will affirm the convictions and sentences of all Defendants.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Because Jean Carlos and Anibal share a last name, we use their first names. 2 This was the Defendants’ second trial involving the drug conspiracy. The first trial ended in a mistrial, so they were re-tried in 2019.
3 3
Before discussing the merits of the Defendants’ appeal, we note an error made by the Defendants that potentially results in the forfeiture of some of their arguments.
While the appeal was pending, our Clerk’s Office encouraged the Defendants to
adopt, pursuant to Fed. R. App. P. 28(i), portions of one another’s briefs to minimize repetition. Defendants Jean Carlos, Gutierrez-Calderon, Hodge and Quinones-Davila
attempt to incorporate all arguments raised by their co-Defendants by including blanket
statements of incorporation in their briefs. This is insufficient. Defendants must make clear the specific issues they are incorporating; otherwise, they have forfeited the issue on
appeal. United States v. Williams, 974 F.3d 320, 339 n.7 (3d Cir. 2020). “[G]eneral
statements of adoption under Rule 28(i) will not be regarded.” Id. This Court will not “serve as a Defendant’s lawyer, ‘scour[ing] the record’ for him and determining ‘which
of the many issues of his codefendants [are] worthy of our consideration.’” Id. (quoting
United States v. Fattah, 914 F.3d 112, 146 n.9 (3d Cir. 2019)). Thus, any arguments
Defendants attempt to incorporate are forfeited.
Defendants challenge their convictions based on the sufficiency of the evidence.
We review a district court’s denial of a motion for judgment of acquittal de novo. United
States v. Hoffert, 949 F.3d 782, 790 (3d Cir. 2020). In conducting our de novo sufficiency
of the evidence inquiry, we view “the record in the light most favorable to the
The District Court had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231. 3
This Court has jurisdiction under 28 U.S.C. § 1291 (final decisions).
4 prosecution to determine whether any rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430
(3d Cir. 2013) (internal quotation marks, citation, and alteration omitted).
To succeed on Count One, conspiracy to possess with intent to distribute more
than five kilograms of cocaine from January 2014 to March 2016, in violation of 21
U.S.C. §§ 841(a), 841(b)(1)(A)(ii) and 846, the Government needed to prove the
following: “(1) a unity of purpose between the alleged conspirators; (2) an intent to
achieve a common goal; and (3) an agreement to work together toward that goal.” United
States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001). Counts Two through Five are
attempted possession with the intent to distribute more than five kilograms of cocaine; to
convict, the jury must have been persuaded beyond a reasonable doubt that each
defendant “(1) acted with the requisite intent to violate the statute, and (2) performed an
act that, under the circumstances as he believes them to be, constitutes a substantial step
in the commission of the crime.” United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir.
2006). Count Six charged possession with intent to distribute five or more kilograms of
cocaine, in violation of 21 U.S.C. §§§ 841(a), 841(b)(1)(A)(ii), 846 and 18 U.S.C. § 2,
where the Government needed to prove that each Defendant “(1) knowingly possessed
[the] controlled substance with (2) the intent to distribute it.” United States v. Iglesias,
535 F.3d 150, 156 (3d Cir. 2008) (citation omitted). Counts Two through Six were
brought under the theory of aiding and abetting, meaning the Government also needed to
prove beyond a reasonable doubt that a substantive crime was committed, the Defendant
5 knew a crime was committed, and he “acted with intent to facilitate it.” United States v.
Petersen, 622 F.3d 196, 208 (3d Cir. 2010) (citation omitted).
1. Count One
Defendants Quinones-Davila, Burgos-Montanez, Gutierrez-Calderon, and Anibal
Vega-Arizmendi challenge the sufficiency of evidence supporting Count One, conspiracy
to possess with intent to distribute more than five kilograms of cocaine from January
2014 to March 2016. A conviction for conspiracy requires a unity of purpose and intent
among the conspirators, along with an agreement to work together. Pressler, 256 F.3d at
147.
Quinones-Davila argues there was insufficient evidence to support his conviction
because he and Hodge refused to work together, meaning there were two separate
conspiracies—not one, as alleged in the indictment. A conviction must be vacated when
the number of conspiracies charged in the indictment and proved at trial differs and the
difference “prejudices a substantial right of the defendant.” United States v. Kelly, 892
F.2d 255, 258 (3d Cir. 1989). To determine whether a group of individuals was engaged
in a single conspiracy or multiple conspiracies, we consider: (1) “whether there was a
common goal among the conspirators”; (2) “whether the agreement contemplated
bringing to pass a continuous result that [would] not continue without the continuous
cooperation of the conspirators”; and (3) “the extent to which the participants overlap in
the various dealings.” United States v. Kemp, 500 F.3d 257, 287 (3d Cir. 2007) (quoting
Kelly, 892 F.2d at 259).
6 There was sufficient evidence for a rational jury to find a single conspiracy, as
there was a common goal to retrieve cocaine in the waters of St. Croix and the success or
failure of the operation depended on the constant drug runs. Additionally, Hodge and
Quinones-Davila overlapped in their dealings: Hodge told Timothy Schoenbohm—the
Government’s confidential informant and primary witness at trial—that Quinones-Davila
wanted to meet him, and Hodge made a trip to retrieve drugs for Quinones-Davila.
Because there was sufficient evidence of a single conspiracy, there was no variance that
could have prejudiced Quinones-Davila’s substantial rights.
Burgos-Montanez, Gutierrez-Calderon, and Anibal contend there was insufficient
evidence to convict them because they were present but were not aware of the illegal
activities of the conspiracy. To sustain a conviction for conspiracy with intent to
distribute a controlled substance, the government must introduce drug-related evidence
from which “a rational trier of fact could logically infer that the defendant knew a
controlled substance was involved in the transaction at issue.” United States v. Boria, 592
F.3d 476, 481 (3d Cir. 2010). The record shows all three Defendants’ participation and
knowledge of the conspiracy.
Burgos-Montanez helped bring a heavy fuel tank onto Schoenbohm’s boat, the
Scorpion, before boarding it himself. Burgos-Montanez was also found on the beach at
Knight’s Bay near four suitcases containing over 87 kilograms of cocaine, and he fled
when police announced themselves. A rational trier of fact could infer Burgos-Montanez
knew about the illegality of the conspiracy from the totality of this evidence. See
Caraballo-Rodriguez, 726 F.3d at 433 (sufficient evidence of conspiracy where the
7 defendant traveled from Puerto Rico to Philadelphia with only a small bag containing $33
and who transferred suitcases that did not belong to him from the baggage conveyor to a
vehicle); United States v. Leon, 739 F.2d 885, 893 & n.19 (3d Cir. 1984) (sufficient
evidence of conspiracy where the defendant was present at the crime scene, associated
with those involved in criminal enterprise, and fled from the scene when agents
announced themselves).
There is also sufficient evidence of Gutierrez-Calderon’s involvement and
knowledge of the drug trafficking conspiracy. He provided Schoenbohm with a firearm
and later asked Schoenbohm if the Scorpion could go out again for a drug run and offered
to pay.
Anibal was present in October 2014 when a group discussed retrieving 71
kilograms of cocaine. Anibal was also on the Scorpion for multiple failed retrieval
attempts, and for the successful one when he helped get the cocaine onto the boat.
Ultimately, there was sufficient evidence to convict all of the Defendants of Count
One.
2. Count Two
Gutierrez-Calderon argues there was insufficient evidence to convict him of aiding
and abetting the attempted possession of 80 kilograms of cocaine in November 2014
because he did not provide Schoenbohm with a firearm, and Schoenbohm spoke
inconsistently about the gun’s origin. To convict an individual of aiding and abetting an
attempted possession, the government needs to prove the defendant knew about the crime
8 and helped facilitate it. Petersen, 622 F.3d at 208. Despite Schoenbohm’s inconsistent
testimony, there is enough evidence in the record for a reasonable jury to find Gutierrez-
Calderon aided and abetted the attempted possession by giving Schoenbohm the gun.
Schoenbohm testified that Gutierrez-Calderon gave him a firearm for protection
before an attempted drug run and told Schoenbohm the gun was a “fully automatic,
machine gun” that “shoots real fast.” JA 2034–35. However, Gutierrez-Calderon points
out that when the police stopped Schoenbohm, he told them the firearm belonged to the
car’s passenger, Hodge. At trial, Schoenbohm explained he initially lied to the police
because he was afraid of the consequences if he said the gun belonged to him. Viewing
these inconsistent statements in the light most favorable to the Government, see
Caraballo-Rodriguez, 726 F.3d at 430, a trier of fact could believe Schoenbohm’s
explanation at trial and find Gutierrez-Calderon guilty: attempted possession of cocaine
occurred, Gutierrez-Calderon knew the crime would occur, and he facilitated the crime
by providing Schoenbohm with a gun.
3. Count Four
Jean Carlos argues there was insufficient evidence to convict him of attempt
because the Government did not prove the gas tank he brought onto the Mako—another
boat that often made drug runs—was used for the May 2015 attempt. To be convicted of
an attempt, a defendant must perform a substantial step in the commission of the charged
crime. Tykarsky, 446 F.3d at 469. If the gas was not used for the May 2015 attempt, he
argues, then he did not perform a substantial step and should not have been convicted.
9 While mere preparation is insufficient to constitute a substantial step of an attempted
crime, gathering needed items or traveling to the scene goes “beyond mere planning.”
United States v. Davis, 985 F.3d 298, 304–05 (3d Cir. 2021); see also Model Penal Code
§ 5.01(2)(f) (“possession, collection, or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission” may be
sufficient). Supplying the Mako with gas was a substantial step.
DEA Task Force Officer Peter Kalme testified that Jean Carlos told him that he
went to St. Croix in May 2015 with a gas tank to acquire cocaine on the Mako. DEA
surveillance of the Mako in May 2015 showed the boat leaving Chenay Bay in the
morning and returning after 9:00 p.m. without its lights on. Because Schoenbohm
testified that he would turn off the navigation lights to avoid detection when he went out
to retrieve cocaine, this indicates the Mako was on a drug run when the DEA surveilled it
in May 2015. Thus, a reasonable jury could conclude that Jean Carlos’s actions
constituted a substantial step towards the May 2015 attempt.
4. Count Six
Burgos-Montanez and Gutierrez-Calderon contend the District Court erred when it
held there was sufficient evidence to convict them of Count Six, possessing and aiding
and abetting others’ possession with intent to distribute more than five kilograms of
cocaine in November 2015. Gutierrez-Calderon argues he did not directly give
Schoenbohm gas money, and thus did not “act[] with intent to facilitate” the possession
of cocaine. Petersen, 622 F.3d at 208 (citation omitted). Burgos-Montanez takes a
10 different approach, arguing he did not have advance knowledge that the controlled
substance was more than five kilograms of cocaine—meaning he did not know the nature
of the crime committed—and thus cannot have aided and abetted it. Both Defendants are
incorrect.
There was sufficient evidence to convict Gutierrez-Calderon of Count Six because
he facilitated the gas payment, which Schoenbohm used to fuel his boat and retrieve
drugs. Hodge texted Schoenbohm and told him to text Gutierrez-Calderon, who would
send gas money. The same day, Schoenbohm texted Gutierrez-Calderon the number 700
and his own name, and then Gutierrez-Calderon texted Schoenbohm an assortment of
numbers and Burgos-Montanez’s name. Western Union records show a sender named
Jesus Burgos-Montanez sent $700 with a money transfer control number that matched the
numbers Gutierrez-Calderon texted Schoenbohm. Although Gutierrez-Calderon did not
send the gas money himself, he coordinated the payment. And even though Gutierrez-
Calderon never told Schoenbohm explicitly that the payment was gas for a drug run, a
reasonable jury could rationally infer this was the payment’s purpose and that Gutierrez-
Calderon aided and abetted the attempted possession of cocaine.
Burgos-Montanez contends there is no evidence he knew the controlled substance
was more than five kilograms of cocaine, and an aider and abettor must have knowledge
of the facts triggering penalties—here, whether five or more kilograms of cocaine were
intended to be distributed. Burgos-Montanez’s cited case addressed whether an aider and
abettor of an 18 U.S.C. § 924(c) violation must know the principal would use or carry a
firearm during the crime. Rosemond v. United States, 572 U.S. 65, 67 (2014). But in the
11 context of § 841(a) and (b) charges—which are the relevant charges here—the defendant
need not within the scope of the conspiracy “consciously cognize the amount [of drugs]
he is distributing in order to violate the law.” Williams, 974 F.3d at 363. “[A] person who
engages in drug trafficking violates § 841(a), and the penalty for that violation is to be
determined according to § 841(b), which provides both a default penalty and heightened
penalties based on certain additional findings.” Id. As a result, it is sufficient that the
knowing or intentional distribution or possession occurred; the quantity of the drug is a
“factual finding that goes to the sentence to be imposed.” Id. This interpretation is
consistent with Apprendi because there the Court “operated on an expansive definition of
‘crime’ according to its ‘invariable linkage’ with punishment, . . . rather than specifically
the conduct and mental state deemed illegal.” Id. (quoting Apprendi v. New Jersey, 530
U.S. 466, 478 (2000)). Therefore, there was sufficient evidence for a reasonable jury to
convict Burgos-Montanez of Count Six.
The District Court properly denied Gutierrez-Calderon’s motion for a new trial
due to an alleged court closure. A motion for a new trial must be filed within fourteen days of the verdict or finding of guilt unless the reason for the motion is newly
discovered evidence. Fed. R. Crim. P. 33(b)(1)–(2). Gutierrez-Calderon first raised the
courtroom closure issue four months after the jury’s verdict in a pro se motion; his
counsel filed a motion for a new trial a month later. The motion was not based on newly
discovered evidence, and thus, his claim is untimely. 4
4 Gutierrez-Calderon has been represented by two lawyers. The first tried the case and filed the opening brief, while the second filed the reply brief and argued the case. In 12 Quinones-Davila contends the District Court abused its discretion when it denied
his motion to pre-authorize payment for a DEA expert; because of this, he argues he
should be granted a new trial. In cases where the defendant is “financially unable to
obtain investigative, expert, or other services necessary for adequate representation,” he
may request that the court authorize funding. 18 U.S.C. § 3006A(e)(1). The defendant
must demonstrate with specificity why the expert is required. See United States v.
Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States v. Pitts, 346 F. App’x. 839, 841–
42 (3d Cir. 2009). Before authorizing the funds, the court must determine whether the
“defendant may have a plausible defense.” United States v. Roman, 121 F.3d 136, 143 (3d Cir. 1997) (citation omitted). The District Court did not abuse its discretion in
denying Quinones-Davila’s motion for a DEA expert.
On appeal, Quinones-Davila states a DEA expert would have effectively cross- examined agents and reviewed discovery materials to identify potential breaches of DEA
policies, including the mishandling of confidential informants. However, when filing his
motion before trial, Quinones-Davila did not provide these specific reasons. Instead, he
asserted the DEA expert would interpret discovery and create cross examination
questions. Because these reasons were not specific—and this Court reviews a district
court’s denial of an expert witness “in light of only the information available to the trial
the reply brief, Gutierrez-Calderon argues for the first time that his previous counsel was ineffective because he did not raise the courtroom closure issue when Gutierrez-Calderon told him about it at trial. Despite the change in attorneys, the ineffective assistance of counsel claim is forfeited. Gutierrez-Calderon’s new counsel had the opportunity to file a substitute opening brief raising this issue. New counsel instead chose to adopt the opening brief on file. As the argument was not raised in the opening brief, it is forfeited. See United States v. Kolodesh, 787 F.3d 224, 230 n.3 (3d Cir. 2015). 13 court at the time it acted on the motion,” Gadison, 8 F.3d at 191—the District Court did not abuse its discretion in denying Quinones-Davila’s motion.
Quinones-Davila argues that the District Court also abused its discretion by denying his motion to continue because he did not have enough time to study the first
trial’s transcript and the new discovery materials. When exercising its discretion to grant
or deny a motion to continue, a court should consider: the efficient administration of criminal justice; the accused’s rights, including the opportunity to prepare a defense; and
the rights of other defendants who may be prejudiced by a continuance. United States v.
Kikumura, 947 F.2d 72, 78 (3d Cir. 1991). A district court abuses its discretion when the denial of a continuance is “so arbitrary as to violate due process.” Id. (citation omitted).
Here, after the first trial ended in a mistrial, the Government filed a second
superseding indictment and sent new discovery materials to the Defendants. The first trial’s discovery, evidence, and testimony put the Defendants on notice of the charges
that would be in the second superseding indictment. Additionally, Quinones-Davila
received daily transcripts of the four key witnesses’ testimony during the first trial—
meaning he had nearly ten months to review the key parts of the transcript—and he had
over a month to investigate the new evidence in the last discovery batch. Thus, Quinones-
Davila was afforded the opportunity to prepare a defense and the denial of the continuance was not “so arbitrary as to violate due process.” Kikumura, 947 F.2d at 78. 5
5 Quinones-Davila argues the totality of the denial of his motions to hire a DEA expert and to continue rendered his trial fundamentally unfair, and he should be granted a new trial. Because the District Court did not abuse its discretion in denying either the motion to authorize a DEA expert or the motion to continue, it did not abuse its discretion in denying Quinones-Davila’s motion for a new trial. 14 Jurors 5 and 12 were dismissed at two different points during trial after they
separately expressed concern about whether their families would be safe if the
Defendants were convicted. Hodge raises several issues with how the District Court
handled these jurors, arguing he was denied his right to a fair and impartial jury. He only
asserted one of these issues below, so we review the issues that were not raised for plain
error. Fed R. Crim. P. 52(b). We review the issue that was raised below for abuse of
discretion. United States v. Bertoli, 40 F.3d 1384, 1392–93 (3d Cir. 1994). Ultimately,
Hodge is unsuccessful.
First, Hodge argues he was prejudiced because the District Court did not ask the remaining jurors whether they discussed retaliation if they were to find the Defendants
guilty. Hodge raised this issue below, so we review it for abuse of discretion. Such
discussions would have constituted premature deliberation and, therefore, juror misconduct. See United States v. Resko, 3 F.3d 684, 688–90 (3d Cir. 1993). But “[t]he
more speculative or unsubstantiated the allegation of misconduct, the less the [district
court’s] burden to investigate.” Bertoli, 40 F.3d at 1395 (citation omitted). Hodge’s juror
misconduct argument is entirely speculative, so the District Court had no burden to
investigate. Juror 5’s concern was triggered by her mother’s comment that “so and so has
a cousin that’s in the thing that you’re in,” and Juror 5 was worried about retaliation because at least one Defendant knew her mother. JA 3898. On the other hand, Juror 12
indicated nothing happened to trigger his concern, like premature jury deliberations, and
no one had contacted his family. The lack of similarities indicates the jury was not deliberating prematurely, so there was no reason to question the rest of the jury—and
therefore the District Court did not abuse its discretion.
15 Second, Hodge argues the District Court erred by communicating ex parte with Juror 12 because the parties did not know the extent, if any, of premature jury
deliberations. When Juror 12 was probed by the Court during the ex parte discussion, he
implied he was not afraid due to external pressures. And the District Court provided a
summary of the conversation with Juror 12 to the parties. When the District Court gave
this summary, Hodge’s counsel asked a question about whether Juror 12’s family had
been contacted. The District Court responded that it would ask the juror that question. When the Court spoke with Juror 12 again, it asked the question Hodge’s counsel brought
up—meaning, if counsel wanted the Court to inquire about potential premature jury
deliberations as well, she could have asked the Court to discuss it with Juror 12. This was
sufficient to resolve counsel’s concerns of premature jury deliberation, and there was no
plain error.
Third, Hodge argues the District Court erred by failing to instruct dismissed jurors
to not discuss the case with third parties; he contends a third party could communicate
information from the dismissed jurors to seated jurors and taint the jury. He also argues
the District Court erred by not immediately warning Juror 12—after he expressed safety concerns, but before he was dismissed a week later—to refrain from discussing his
concerns with the other jurors. Hodge points to no evidence that the lack of instruction
actually tainted the jury. Thus, there is no plain error.
Jean Carlos argues that DEA Officer Kalme—who translated during Jean Carlos’s
post-arrest interview—should not have been allowed to testify about the interview
because he refreshed his recollection by reviewing the report of another agent who
conducted the interview and took notes. A witness’s testimony must be based on his
16 personal knowledge. Fed. R. Evid. 602. “Testimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the
ability and opportunity to perceive the event that he testifies about.” United States v.
Hickey, 917 F.2d 901, 904 (6th Cir. 1990); see also United States v. Gerard, 507 F.
App’x 218, 222 (3d Cir. 2012). A witness can testify from personal knowledge even if he
refreshes his recollection with a report written by someone else. United States v. Booz,
451 F.2d 719, 724 (3d Cir. 1971). The District Court did not abuse its discretion by allowing Officer Kalme to testify. Kalme testified that the report was accurate: after he
read it, it matched his recollection of the interview. Thus, a reasonable juror could
conclude that Kalme was testifying from his personal knowledge rather than merely
reciting the contents of the report. 6
The District Court did not clearly err when it held Anibal and Jean Carlos
ineligible for statutory safety valve relief. To prevail on this claim, a defendant must,
among other things, “truthfully provide[] to the Government all information and evidence
[he] has concerning the offense.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).
However, “the fact that the defendant has no relevant or useful information to
provide . . . shall not preclude a determination by the court that the defendant has
complied with this requirement.” Id. While this Court reviews the ultimate safety valve
determination de novo, we review the factual determination of whether a defendant
6 Jean Carlos also argues there is a potential hearsay issue when a witness testifies about statements he heard through an interpreter. See, e.g., United States v. Nazemian, 948 F.2d 522, 525–26 (9th Cir. 1991). However, unlike in Nazemian and Jean Carlos’s other cases, Kalme understood Jean Carlos without translation, so these potential hearsay issues are not applicable.
17 satisfied the safety valve requirements for clear error. United States v. Sabir, 117 F.3d 750, 752 (3d Cir. 1997).
Anibal fails to show he met the statutory requirements of safety valve relief.
Despite arguing he was innocent and had no information, his counsel later told the
District Court that he may have information to share about his incarceration with the co-
Defendants. But nine months passed between the first partial sentencing hearing and the
second hearing, and no information was provided. Because Anibal’s counsel informed the District Court that Anibal had information but it was never shared with the
Government, Anibal does not qualify for safety valve relief.
Jean Carlos fails to show the District Court clearly erred in finding that he was not
entirely truthful because his statements contradicted each other and the record. In his
written proffer, Jean Carlos said he was not present when $500,000 was dumped into the
ocean; in his post-arrest statements, he said he was there. Also, Jean Carlos and
Schoenbohm’s accounts differ on when Jean Carlos arrived in St. Croix in December
2014. Although Jean Carlos argues any errors were due to his imperfect memory, the
contradictions support the finding that he was not fully truthful. Either way, Jean Carlos’s failure to provide details and the Government’s ability to identify why Jean Carlos was
not completely forthcoming is sufficient to show that the District Court’s factual finding
was not clearly erroneous. See United States v. Miranda-Santiago, 96 F.3d 517, 529 (1st Cir. 1996) (requiring more than simple conclusory statements by the government that it
did not believe the defendant). 7
7 Jean Carlos also argues the District Court erred in applying a two-point special skill enhancement. Because Jean Carlos is ineligible for safety valve relief—and the District Court sentenced him to the statutory mandatory minimum—removing the special skill enhancement would not lessen his sentence and any error was harmless.
18 Gutierrez-Calderon argues the District Court clearly erred by applying the
manager or supervisor enhancement to his sentence because he did not accompany
Schoenbohm on any drug runs or give Schoenbohm money to buy drugs. The Sentencing
Guidelines allow the judge to increase the offense “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). Applying this
enhancement was not clear error.
To qualify for the enhancement, the court must find the defendant exercised
control over another individual, there were multiple participants in the crime, and there was some differentiation in the participants’ culpabilities and responsibilities. United
States v. Katora, 981 F.2d 1398, 1405 (3d Cir. 1992). The word “control” is used “in a
broad sense to mean [a] supervisory or organizational role . . . including recruitment.” United States v. Kamoga, 177 F.3d 617, 621 (7th Cir. 1999) (citation omitted) (holding
“control” encompasses indirect supervisory authority and a defendant does not need
knowledge of all the other participants in a criminal activity). We review a district court’s
factual determinations, including a defendant’s role in the offense under U.S.S.G.
§ 3B1.1, for clear error. United States v. Raia, 993 F.3d 185, 191 (3d Cir. 2021).
The evidence shows Gutierrez-Calderon exercised control over at least one other person by providing the necessary resources and arranging the payment to support
criminal activity. 8 Gutierrez-Calderon stated he was going to pay for the Mako’s storage,
8 Gutierrez-Calderon cites United States v. Badaracco, 954 F.2d 928, 935 (3d Cir. 1992) for the proposition that “the government must prove by a preponderance of the evidence that the developers were criminally responsible participants if the upward adjustment is to stand.” Badaracco does not apply. Badaracco is relevant only given that we recognize that there are multiple participants in the instant offense who are criminally responsible. Id. at 935. That is not the relevant issue here.
19 he coordinated payment for gas by sharing the necessary sender and receiver information, and he provided Schoenbohm with a gun. Thus, it was not clear error to conclude
Gutierrez-Calderon acted as a manager or supervisor.
The Sentencing Guidelines provide that “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense,” his sentence can be reduced by up to three
levels. U.S.S.G. § 3E1.1. Quinones-Davila argues he is eligible for this reduction because
he cooperated with the Government. But acceptance of responsibility generally does not
apply when a defendant “puts the government to its burden of proof at trial by denying
the essential factual elements of guilt.” U.S.S.G. § 3E1.1, cmt. n.2.
Despite previous cooperation with the Government, Quinones-Davila did not
accept responsibility for his actions. He challenged his factual guilt by moving for a
judgment of acquittal and disputed the sufficiency of the Government’s evidence and witnesses. Cooperating with the government is not the same as accepting responsibility
and thus the District Court did not err when it denied Quinones-Davila’s request for an
acceptance of responsibility reduction.
Hodge argues the District Court erred when it used improper evidence to
determine his drug quantity, and it should have waited to sentence him until the certified
trial transcript was ready. At trial, the jury found that Hodge was responsible for five or
more kilograms of cocaine; at sentencing, the District Court attributed 193.3 kilograms to Hodge. To determine this amount, the District Court listened to the Government’s proffer
and relied on its notes from trial to confirm the proffer’s accuracy. “At sentencing, ‘the
government bears the burden of proving drug quantity by a preponderance of the
20 evidence.’” United States v. Douglas, 885 F.3d 145, 150 (3d Cir. 2018) (quoting United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993)) (internal alterations omitted). The
district court must “satisfy itself that the evidentiary basis for its estimate has sufficient
indicia of reliability.” Id. at 151. This “indicia of reliability” can be found from
corroboration or consistency with other evidence. Id. The Government met its burden of
proving drug quantity by a preponderance of the evidence, and the District Court’s
reliance on its notes to corroborate the evidence was proper. 9
To support its argument for Hodge’s drug quantity, the Government reminded the
District Court about testimony from a chemist and Schoenbohm. Because the Court was
present during trial, it could rely on its own recollection and notes to ensure this testimony, among other evidence presented by the Government, was reliable for
sentencing purposes. There was no need for the District Court to wait until the trial
transcript was ready because the evidence used to estimate Hodge’s drug quantity was sufficiently reliable. See Paulino, 996 F.2d at 1548 (determining that an agent’s recital of
events from a discussion with a confidential informant met the sufficient indicia of
reliability standard).
For the foregoing reasons, we will affirm the District Court.
9 From his briefing, Hodge implies that he did not have sufficient notice under Fed. R. Crim. P. 32 because the sentencing judge relied on the Government’s proffer as opposed to “sufficient evidence.” This, he argues, did not allow him to properly challenge the basis of calculations of drug quantity. First, Hodges conflates arguments under Rule 32 and sufficient indicia of reliability. Second, the District Court presented evidence heard at trial when Hodge was present. This does not implicate the same “surprise” concerns underlying the notice requirement embedded in Rule 32(i)(1)(C).