United States v. Lopez-Perez

• Court: Court of Appeals for the First Circuit
• Decided: January 20, 2012
• Docket: 10-1438
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 10-1393 UNITED STATES,

Appellee,

v.

ALBERT I. DÍAZ, a/k/a Gringo,

Defendant, Appellant.

No. 10-1412 UNITED STATES,

JAVIER RODRÍGUEZ-ROMERO, a/k/a Panky,

No. 10-1530 UNITED STATES,

EDDIE M. RODRÍGUEZ, a/k/a Bolón,

Defendant, Appellant. No. 10-1686 UNITED STATES,

ANGEL O. LÓPEZ-CAPÓ, a/k/a Baby Face,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge, Stahl and Thompson, Circuit Judges.

Jorge E. Rivera-Ortíz, by Appointment of the Court, for Albert I. Díaz. Sonia I. Torres-Pabón, by Appointment of the Court, for Javier Rodríguez-Romero. Michael R. Hasse, by Appointment of the Court, for Eddie M. Rodríguez. John E. Mudd, by Appointment of the Court, for Angel O. López- Capó. Rosa Emilia Rodríguez-Vélez, United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Luke Cass, Assistant United States Attorney, were on brief for appellee.

January 20, 2012 STAHL, Circuit Judge. A jury convicted defendants-

appellants Albert I. Díaz, Javier Rodríguez-Romero, Eddie M.

Rodríguez, and Angel O. López-Capó of conspiracy to distribute

narcotics and possession with intent to distribute narcotics as a

result of their participation in a drug point that operated within

a public housing project in Guayama, Puerto Rico. The defendants

individually raise a variety of challenges to the district court's

jurisdiction, the sufficiency of the evidence, the court's

evidentiary rulings, the jury instructions, and their sentences.

After careful consideration, we find merit to only one of these

claims. Specifically, we find that the district court lacked

jurisdiction over Rodríguez, who was a juvenile during much of the

conspiracy, with respect to two of the substantive drug counts of

which he was convicted. We thus vacate those convictions and

remand his case to the district court for a new sentencing hearing.

We affirm in all other respects.

I. Facts & Background

On March 27, 2009, a grand jury returned a seven-count

indictment against the defendants and forty-three other

individuals. The indictment alleged, among other things, that the

defendants conspired to operate a drug point in the San Antonio

Public Housing Project (commonly known as "Carioca"), in the

municipality of Guayama, Puerto Rico.

-3- Count One of the indictment alleged that, between 2006

and March 27, 2009, the defendants and others knowingly conspired

to possess with intent to distribute various amounts of cocaine

base ("crack"), heroin, cocaine, marijuana, and Oxycodone within

1,000 feet of a school and/or public housing facility and/or

playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860.

We refer to this as the "conspiracy count."

Counts Two through Five of the indictment alleged that,

between 2006 and March 27, 2009, the defendants and others, aiding

and abetting each other, knowingly and intentionally possessed with

intent to distribute one kilogram or more of heroin (Count Two),

fifty grams or more of crack (Count Three), five kilograms or more

of cocaine (Count Four), and 1,000 kilograms or more of marijuana

(Count Five) within 1,000 feet of a school and/or public housing

facility, in violation of 21 U.S.C. §§ 841(a)(1) and 860

and 18 U.S.C. § 2. We refer to these as the "substantive drug

counts."

Count Six alleged that, between 2006 to March 27, 2009,

López-Capó, Díaz, and others conspired to carry and use firearms

during and in relation to the drug trafficking crimes charged in

Count One, in violation of 18 U.S.C. § 924(o). Count Seven, which

is not at issue here, sought the forfeiture of drug proceeds.

According to the indictment, Díaz worked primarily as an

"enforcer" for the drug point, meaning that he used firearms to

-4- protect the drug point's employees, narcotics, and proceeds.

Rodríguez and Rodríguez-Romero allegedly worked as runners and

sellers, meaning that they supplied the drug point with narcotics,

collected proceeds, recruited and paid sellers, and prepared

ledgers, also known as "tallies," to keep track of the drug point's

sales. The indictment alleged that López-Capó was one of the

owners of the drugs distributed at Carioca and that he received

proceeds from the sale of crack at the drug point.

These four defendants elected to go to trial. The

government presented the testimony of three co-operating witnesses,

who had themselves participated in the Carioca drug point:

Heriberto García-Román, Leonardo Martínez de León, and Yamil

Irizarry-Lucas. The government also presented the testimony of

various officers from the Puerto Rico Police Department who had

conducted surveillance and arrests, or otherwise intervened, at

Carioca. Finally, the government presented the testimony of Carmen

Orengo, a licensed chemist for the Puerto Rico Forensic Sciences

Institute, who analyzed some of the controlled substances seized

from Carioca. Based on her analysis of the substances and the co-

operating witnesses' testimony regarding the frequency of sales at

the drug point, Ms. Orengo estimated that, in a given year, the

Carioca drug point had sold 21.9 kilograms of crack, 5.47 kilograms

of heroin, 10.95 kilograms of cocaine, and 18.25 kilograms of

marijuana.

-5- The jury found Díaz guilty of Counts One through Five but

acquitted him of Count Six. Rodríguez-Romero and Rodríguez were

found guilty of Counts One through Five. López-Capó, who testified

at trial, was found guilty of Counts One and Three and acquitted of

all other counts. This timely appeal followed.1

II. Discussion

A. The "Schoolyard" Counts

We begin with a claim raised by Díaz and López-Capó that

the government failed to prove beyond a reasonable doubt that the

relevant drug activity took place within 1,000 feet of a protected

area. See 21 U.S.C. § 860(a). They also argue that the evidence

was insufficient to establish the existence of a school,

playground, or public housing project as those locations are

defined in the statute. See id. Because Díaz and López-Capó

raised this argument as part of a Rule 29 motion, we review de

novo, viewing the evidence and drawing all reasonable inferences in

1 We note the possibility that Díaz, Rodríguez-Romero, and López-Capó may be eligible to petition for resentencing under the new sentencing guidelines promulgated pursuant to the Fair Sentencing Act of 2010. See 18 U.S.C. § 3582(c)(2); U.S.S.G. §§ 1B1.10, 2D1.1. Those guidelines were made retroactive effective November 1, 2011. See News Release, U.S. Sentencing Comm'n, U.S. Sentencing Comm'n Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment to the Fed. Sentencing Guidelines Retroactively (June 30, 2011) (available at http://www.ussc.gov/Legislative_and_ Public_Affairs/Newsroom/Press_Releases/20110630_Press_Release.pdf); U.S. Sentencing Comm'n Notice of Final Action Regarding Amendment to Policy Statement 1B1.10, 76 Fed. Reg. 41332 (July 13, 2011). Because the defendants have not raised this argument on appeal, we do not address it here, nor do we express any opinion about the merits of any such future petition.

-6- the light most favorable to the verdict. United States v. Pérez-

Meléndez, 599 F.3d 31, 40 (1st Cir. 2010). We conclude that the

1,000-foot requirement was met and that the evidence was sufficient

to establish the existence of a public housing project. We

therefore need not address whether the government also proved that

the defendants engaged in drug-related activity within 1,000 feet

of a school or playground.

Title 21 U.S.C. § 860(a), also known as the "schoolyard

statute," provides enhanced penalties for the distribution,

possession with intent to distribute, or manufacturing of drugs "in

or on, or within one thousand feet of" any of three protected

areas: (1) a school; (2) a playground; or (3) a public housing

facility. The indictment charged the defendants with conspiring to

possess with intent to distribute various controlled substances

"within one thousand (1,000) feet of" all three protected areas.2

The government seems to have made its job unnecessarily

difficult by alleging that the drug activity occurred "within 1,000

feet of" a protected area, rather than simply alleging that it

occurred "in or on" a protected area, as the statute allows. See

21 U.S.C. § 860(a). When the government charges a defendant under

2 The conspiracy count charged that the drug conspiracy took place within 1,000 feet of a school and/or public housing facility and/or playground. The substantive drug counts only charged that the possession with intent to distribute took place within 1,000 feet of a school and/or public housing facility, omitting any mention of the playground.

-7- the "within 1,000 feet" prong of the statute, we have held that the

government must prove beyond a reasonable doubt that the distance

from the protected area to the site of the drug transaction is

1,000 feet or less. United States v. Soler, 275 F.3d 146, 154 (1st

Cir. 2002). Because "[d]istances are notoriously difficult to

gauge in still photographs, and more so in motion pictures," we

have generally insisted that the government provide a precise

measurement. Id. at 155 (internal citation omitted). We have,

however, carved out an exception "in some cases where the spatial

leeway is relatively great and the gap in the chain of proof is

relatively small," such that "common sense, common knowledge, and

rough indices of distance can carry the day." Id. at 154.

The government offered ample evidence that the drug point

operated within the Carioca housing project. Government witness

Heriberto García-Román testified that the drug point was located

"[i]nside of the Carioca Public Housing Project. . . . in some

abandoned houses that were located right there inside of the Public

Housing Project." Police Officer Víctor J. Veguilla-Figuero

testified that the drug point was located "in the area of the

staircase," in "two abandoned houses" and "in the children's play

area" within the Carioca housing project, and he identified each of

those locations in a photograph of Carioca. Leonardo Martínez de

León, who himself dealt drugs in Carioca, identified various

locations from which the drug point operated within Carioca. And

-8- Police Officer Roberto Ayala-Vega testified that "the drug point

was always within Carioca" but moved among multiple buildings in

the housing project.

The evidence was also sufficient to establish that

Carioca is a "housing facility owned by a public housing

authority," as required by 21 U.S.C. § 860(a). Officer José Ortiz-

Sierra, of the Puerto Rico Police Department's Monitoring Center

for the Public Housing Projects, testified that the Monitoring

Center has surveillance cameras within Carioca. It would be

reasonable for the jury to infer from this testimony that Carioca

is a public housing project. See Pérez-Meléndez, 599 F.3d at 40.

Furthermore, defense witness Jessica Pinto-Capó, who worked as a

secretary in the Housing Department, testified that she "grew up in

the Carioca Public Housing Project" and that all Carioca apartments

are owned by the Public Housing Authority.

Given that the evidence was sufficient for the jury to

find that the drug point operated within Carioca and that Carioca

is a public housing facility, it was also sufficient to establish

that the drug point operated within 1,000 feet of a public housing

facility. Where the government alleges that drug-related activity

occurred "within 1,000 feet" of a protected area under 21 U.S.C.

§ 860(a) and then proves that the activity actually occurred "in or

on" the protected area, the government need not provide a precise

-9- measurement establishing the 1,000-foot requirement.3 In such an

instance, common sense will carry the day. Soler, 275 F.3d at 154.

We thus affirm Díaz's conviction. We address López-

Capó's other claims below.

B. Rodríguez

Rodríguez (a.k.a. "Bolón"), who was convicted of the

conspiracy count as well as four substantive drug counts, was

either a juvenile or incarcerated in a juvenile detention facility

for much of the time that the Carioca drug point operated.

Rodríguez argues that the evidence offered at trial was

insufficient to establish that he participated in the conspiracy or

committed any of the substantive drug counts after he turned

eighteen and that the district court thus lacked jurisdiction under

the Federal Juvenile Delinquency Act (FJDA). See 18 U.S.C. § 5032.

We review the sufficiency of the evidence de novo to determine

whether the court's exercise of jurisdiction was proper. See

United States v. Vargas-De Jesús, 618 F.3d 59, 63 (1st Cir. 2010).

Rodríguez also argues that the court failed to properly instruct

the jury with respect to the FJDA. We review preserved objections

to a district court's jury instructions de novo, but we review for

plain error where the defendant did not properly object before the

3 Nonetheless, the better practice here would have been for the government to either allege in the indictment that the drug point operated "in or on" the public housing project, or to provide a precise measurement demonstrating that the 1,000-foot requirement was met.

-10- district court. See, e.g., United States v. Meadows, 571 F.3d 131,

145 (1st Cir. 2009).

Absent a certification from the Attorney General, the

FJDA prevents a district court from exercising jurisdiction over a

defendant who is under the age of twenty-one for criminal acts that

he committed before he turned eighteen. See 18 U.S.C. § 5032;

Vargas-De Jesús, 618 F.3d at 64. In this case, it is undisputed

that the government failed to present the district court with a

certification from the Attorney General and that the proceedings

began before Rodríguez turned twenty-one. We have held that "a

conviction must be set aside, even absent timely objection, if the

record establishes that a defendant was under the age of 18 when

the offense was committed and under the age of 21 when criminal

proceedings were commenced." Vargas-De Jesús, 618 F.3d at 64.

There are, however, some important limitations on that rule.

First, the jurisdictional question is one that the jury can decide;

there is no need for a pretrial evidentiary hearing. United States

v. Welch, 15 F.3d 1202, 1210 (1st Cir. 1993). Second, a "jury may

properly hear evidence regarding a defendant's premajority conduct

to establish the existence of a conspiracy." Vargas-De Jesús, 618

F.3d at 65. However, if the conspiracy began before the defendant

turned eighteen, there can be no conviction unless the jury finds

that the defendant "in some manner 'ratified' [his] participation

-11- in the conspiracy after attaining majority." Welch, 15 F.3d at

1212; see also Vargas-De Jesús, 618 F.3d at 65.

According to the indictment, this conspiracy lasted from

2006 to March 27, 2009. Rodríguez was apparently active in the

drug point until he entered a juvenile detention facility on or

about May 4, 2007. He turned eighteen in February of 2008,4 while

in detention, and was released on August 18, 2008. Thus, if

Rodríguez participated in the conspiracy as an adult, it had to

have been between August 18, 2008 and March 27, 2009.

The district court instructed the jury that it could not

consider Rodríguez's acts in furtherance of the conspiracy before

he turned eighteen unless it first found beyond a reasonable doubt

that he had participated in the conspiracy after he turned

eighteen. The jury convicted Rodríguez of five counts: the

conspiracy count (Count One) and four substantive counts of

possession with intent to distribute heroin (Count Two), crack

(Count Three), cocaine (Count Four), and marijuana (Count Five).

The district court used an offense level of 365 and a Criminal

History Category (CHC) of I, which yielded a sentencing guideline

4 On at least one page of his brief, Rodríguez lists his birthday as February 18, 1990, though he lists it as February 19, 1990 elsewhere. The pre-sentence investigation report and the trial testimony of Rodríguez's wife established that Rodríguez was born on February 19, 1990. 5 The court used a base offense level of 34 and applied a two- point enhancement because the relevant drug activity occurred within 1,000 feet of a protected area. See U.S.S.G. § 2D1.2(a)(1).

-12- range of 188 to 235 months. As to each count, the court sentenced

Rodríguez to 188 months (fifteen years and eight months) in prison

and ten years of supervised release, all to be served concurrently.

Our cases have separated the jurisdictional analysis with

respect to a conspiracy count from the jurisdictional analysis with

respect to a substantive drug count. We have distinguished the

"continuing offense" of conspiracy from a "non-continuing

substantive violation," finding that it will generally be "readily

apparent" whether a substantive violation occurred before or after

the defendant's eighteenth birthday. Welch, 15 F.3d at 1207. In

Vargas-De Jesús, the government had failed to provide the necessary

certification under the FJDA, and the defendant was found guilty of

one conspiracy count and two substantive drug counts. 618 F.3d at

63. We concluded that the district court had jurisdiction over the

conspiracy count, because there was ample evidence that the

defendant had continued participating in the conspiracy after he

turned eighteen. Id. at 65-66. However, we vacated the

defendant's convictions on the substantive drug counts, finding

that the evidence the government had offered in support of those

counts related solely to acts the defendant had committed before he

turned eighteen and that the court thus lacked jurisdiction. Id.

at 64-65. With those principles in mind, we turn to the case at

hand.

-13- 1. The conspiracy count

Rodríguez's first claim is that there was insufficient

evidence of his participation in the conspiracy post-majority for

the district court to exercise jurisdiction over that count. We

find the evidence sufficient. Government witness Leonardo Martínez

de León testified that Rodríguez acted as a runner for the drug

point "towards the end of 2008" and in 2009, that runners "would

give the material to the . . . pushers," and that Rodríguez was the

person who handled marijuana for the drug point in 2008 and 2009.

Martínez de León also testified that he paid Rodríguez $40.00 per

week to be able to sell his own marijuana in Carioca at the "[e]nd

of 2008, beginning [of] 2009." Given that Rodríguez turned

eighteen in February 2008, the evidence was sufficient for a

reasonable jury to find that Rodríguez ratified his participation

in the conspiracy post-majority. See Vargas-De Jesús, 618 F.3d at

65-66.

Rodríguez also raises a properly-preserved challenge to

the court's jury instruction regarding the conspiracy count, which

we review de novo. See, e.g., Meadows, 571 F.3d at 145. The

district court gave the jury an instruction and included a special

question on the verdict form regarding Rodríguez's participation in

the conspiracy before and after he turned eighteen. The

instruction went as follows:

Let me say something about Eddie Rodriguez, also known as Bolon's age. The case of Eddie

-14- Rodriguez requires that a jury make a threshold consideration. You cannot consider his acts in furtherance of the conspiracy before he turned 18 years of age, unless you first find beyond a reasonable doubt that he participated in the conspiracy after he reached the age of 18 years. If he participated in the conspiracy after he became 18 years of age, then all of his acts in furtherance of the conspiracy while he was a minor can be considered as if he was of legal age.

The special question on the verdict form asked whether the jury

found that Rodríguez had participated in the conspiracy after he

turned eighteen; the jury answered in the affirmative.

The last sentence of the instruction was not entirely

precise as a matter of law. While "the jury may properly hear

evidence regarding a defendant's premajority conduct to establish

the existence of a conspiracy," Vargas-De Jesús, 618 F.3d at 65, we

have never held that the jury can consider all of a defendant's

acts in furtherance of the conspiracy as if he was an adult when he

committed them, see id. at 63-67; Welch, 15 F.3d at 1206-10.

However, Rodríguez has given us no reason to believe that this

error prejudiced him. See United States v. Duclos, 214 F.3d 27, 34

(1st Cir. 2000) ("An error in jury instructions will mandate

reversal only when the error is prejudicial based on a review of

the entire record."). The jury specifically found on its verdict

form that Rodríguez had participated in the conspiracy after he

turned eighteen, and there was ample evidence of post-majority

-15- ratification for the court to exercise jurisdiction. We thus

affirm Rodríguez's conviction on the conspiracy count.

2. The substantive drug counts

Rodríguez also challenges the district court's exercise

of jurisdiction over the substantive drug counts, arguing that the

evidence was insufficient to support jurisdiction and that the

district court failed to properly instruct the jury regarding those

counts.

We begin with the substantive count of possession with

intent to distribute marijuana. Martínez de León's testimony was

sufficient to establish jurisdiction over Rodríguez with respect to

that count. Martínez de León testified that Rodríguez was the

person who handled marijuana for the drug point in 2008 and 2009,

that Rodríguez was one of two "owners of the weed" at the drug

point, and that Martínez de León therefore paid Rodríguez to be

able to sell his own marijuana in Carioca at the end of 2008 and in

2009. We find that the jury reasonably could have credited

Martínez de León's testimony and found sufficient evidence of post-

majority activity for the district court to exercise jurisdiction

over the marijuana count. See Vargas-De Jesús, 618 F.3d at 64-65.

For the substantive heroin, crack, and cocaine counts,

the jurisdictional question is more complex. Here, the government

points to Martínez de León's testimony that: (1) Rodríguez was a

runner in late 2008 and 2009; (2) he knew Rodríguez was a runner

-16- because "[Rodríguez] would handle the marijuana"; and (3) he paid

Rodríguez to be able to sell marijuana in Carioca. The

government's brief suggests that "Martínez de León said that

runners provided him with drugs to sell, including cocaine, crack,

heroin, and marijuana," but we find no such statement in his

testimony. In the cited portion of his testimony, Martínez de León

actually said, "well, the runners would give the material to the

. . . pushers," without specifying (or being asked by the

government) what "material" he was referring to. The government

then asked Martínez de León how he knew that Rodríguez was a runner

for the drug point in 2008 and 2009, and Martínez de León

responded, "because he would handle the marijuana." Though

Martínez de León did testify that he "was able to put drugs in the

housing project" by paying $40.00 per week in "rent" to Rodríguez

and another individual, when the prosecutor asked him what he meant

by having to pay "rent," Martínez de León testified as follows:

A. Well, to pay rent -- to put it in this way, Bolon and Axel were the owners of the weed, so from there they were charging me 40 each one. 40, 40.

Q. And they would charge you 40 each one for what?

A. For the marijuana.

Q. And you would pay them the 40 bucks, and what would you get in exchange for paying them the 40 bucks?

A. I could continue selling the material through the Carioca [sic].

-17- Thus, taken in context, the reasonable inference to be drawn from

this testimony is that "the material" refers to marijuana. The

evidence does not establish that Martínez de León paid Rodríguez to

be able to sell anything other than marijuana, that all runners

handled all four drugs (heroin, crack, cocaine, and marijuana), or

that Rodríguez personally possessed or distributed any drug other

than marijuana after he turned eighteen.

Recognizing that the evidence is lacking, the government

offers two theories to support jurisdiction over Rodríguez with

respect to the substantive heroin, crack, and cocaine counts. The

first is that, because each of the counts included an aiding and

abetting charge, the jury could have convicted Rodríguez of aiding

and abetting in the possession or distribution of crack, heroin,

and cocaine. We reject that argument, because the government has

pointed us to no evidence in the record demonstrating that

Rodríguez aided or abetted in the possession or distribution of

those drugs after he turned eighteen.

The government's second argument is that the jury

received an instruction regarding, and may have convicted Rodríguez

under, the Pinkerton theory of liability, pursuant to which a

defendant can be held liable for the substantive offenses of his

co-conspirators if those offenses were reasonably foreseeable and

committed in furtherance of the conspiracy. See Pinkerton v.

United States, 328 U.S. 640 (1946); United States v. Vázquez-Botet,

-18- 532 F.3d 37, 62 (1st Cir. 2008). The government's theory seems to

be that, once a juvenile defendant ratifies his participation in a

conspiracy post-majority, he can be held liable for all reasonably-

foreseeable offenses committed in furtherance of that conspiracy,

including offenses that occurred before he turned eighteen (which,

in Rodríguez's case, is when he appears to have been most active in

the drug point).

The propriety of exercising jurisdiction over a juvenile

under the Pinkerton doctrine was not before us in Vargas-De Jesús.

In that case, the government entirely failed to address the

defendant's substantive drug convictions in its brief, defending

them for the first time at oral argument on the grounds that there

was sufficient post-majority evidence to convict. Vargas-De Jesús,

618 F.3d at 64. We thus have not yet examined whether a district

court has jurisdiction over a defendant under the FJDA with respect

to substantive offenses committed by the defendant's co-

conspirators before the defendant turned eighteen. We find that it

does not.

The FJDA strips a district court of jurisdiction "if the

record establishes that a defendant was under the age of 18 when

the offense was committed and under the age of 21 when criminal

proceedings were commenced." Id. (emphasis added); see also 18

U.S.C. § 5032. Though the "continuing offense" of conspiracy may

span a defendant's eighteenth birthday, a "non-continuing

-19- substantive violation" generally will not. Welch, 15 F.3d at 1207.

We will allow evidence of acts comprising an offense to be admitted

even if those acts occurred before the defendant turned eighteen,

but the government cannot rely entirely on pre-majority acts to

establish jurisdiction over an offense. See id. at 1207 n.5.

There must be sufficient proof of post-majority activity. See,

e.g., Vargas-De Jesús, 618 F.3d at 65. Thus, when a defendant has

participated in a conspiracy both before and after his eighteenth

birthday and the government fails to obtain a certification from

the Attorney General under 18 U.S.C. § 5032, the defendant cannot

be held liable for the substantive crimes of his co-conspirators

unless there is sufficient evidence for a reasonable jury to find

that each substantive crime occurred after the defendant turned

eighteen, was reasonably foreseeable to the defendant, and was

committed in furtherance of the conspiracy. See id.; Pinkerton,

328 U.S. 640. The district court must, in turn, properly instruct

the jury regarding the government's burden and the jury's inability

to consider the substantive crimes of co-conspirators committed

before the defendant's eighteenth birthday in assessing the

defendant's liability.

As mentioned above, the jury here received a Pinkerton

instruction, which Rodríguez does not challenge on appeal. Though

we find this to be a very close case, the evidence on the record

ultimately supports Rodríguez's conviction on the substantive crack

-20- count under a Pinkerton theory of liability. Specifically, the

government introduced evidence that the police seized 150 vials of

crack from Rodríguez-Romero, a co-conspirator, on October 24, 2008,

which was after Rodríguez ratified his participation in the

conspiracy post-majority. We will assume that the jury properly

followed the court's Pinkerton instruction and found that

Rodríguez-Romero's possession of crack was reasonably foreseeable

to Rodríguez and committed in furtherance of the conspiracy. See,

e.g., United States v. Salley, 651 F.3d 159, 167 (1st Cir. 2011).

We thus affirm Rodríguez's conviction on the substantive count of

possession with intent to distribute crack.

However, the government has pointed us to no evidence on

the record demonstrating that Rodríguez's co-conspirators committed

the substantive acts of possessing with intent to distribute heroin

and cocaine after Rodríguez turned eighteen. The government

introduced general evidence that the drug point operated in 2008

and 2009, as well as specific evidence tying Rodríguez to heroin

and cocaine before he turned eighteen, but neither of those will

suffice to support jurisdiction. The government had the burden of

introducing at trial, and highlighting on appeal, specific pieces

of evidence, with dates, tying Rodríguez or his co-conspirators to

the possession or distribution of heroin and cocaine at the drug

point after August 18, 2008, when Rodríguez was released from

-21- juvenile detention.6 It has failed to do so. For the reasons

discussed above, that omission is fatal, and the court thus lacked

jurisdiction over Rodríguez with respect to the heroin and cocaine

counts. See Vargas-De Jesús, 618 F.3d at 64-65.

Having reached that conclusion, we need not address in

any detail Rodríguez's claim that the district court failed to

instruct the jury that it could not hold Rodríguez liable for the

substantive acts of his co-conspirators unless the jury first found

that those acts occurred after Rodríguez turned eighteen. This

claim now only applies to Rodríguez's convictions on the

substantive crack and marijuana counts, since we are vacating his

heroin and cocaine convictions. Though Rodríguez is correct, he

failed to make the argument before the district court, so we review

the instruction for plain error. See, e.g., Meadows, 571 F.3d at

145. Rodríguez has not cleared the high hurdle of plain error

review, because he has failed to demonstrate a reasonable

probability that, but for the error, the result of the district

court proceeding would have been different. See United States v.

Dominguez Benitez, 542 U.S. 74, 82 (2004); Vargas-De Jesús, 618

F.3d at 67. Though certainly not overwhelming, the evidence was

sufficient to support Rodríguez's convictions on the crack and

marijuana counts, regardless of the omitted instruction. See

6 Because Rodríguez happens to have turned eighteen while in juvenile detention, we use his release date, rather than his eighteenth birthday, as his post-majority ratification date.

-22- Vargas-De Jesús, 618 F.3d at 66-67 (affirming conspiracy conviction

despite lack of jury instruction under plain error standard of

review, because evidence was sufficient).

We thus affirm Rodríguez's convictions on Counts One,

Three, and Five, and vacate his convictions on Counts Two and Four.

That leaves only the question of whether to remand Rodríguez's case

for resentencing. We choose to do so, because we find that the

vacated counts may "alter the dimensions of the sentencing

'package,'" United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st

Cir. 2008), and that the district court should have the opportunity

to consider whether a new sentence is warranted.7 We therefore

need not reach Rodríguez's remaining claim that the district court

erred in calculating the amount of crack attributable to him as a

result of his participation in the conspiracy.

C. Rodríguez-Romero

Rodríguez-Romero raises two challenges to the district

court's evidentiary rulings. First, he argues that the district

court should have allowed him to introduce what he characterizes as

impeachment evidence. Second, he claims that a portion of trial

testimony was inadmissible hearsay and violated his rights under

the Confrontation Clause. We review the district court's

7 On remand, should the district court again choose to calculate Rodríguez's sentence based on his involvement with crack at the drug point, the court will of course have to apply the new Fair Sentencing Act guidelines. See supra note 1.

-23- evidentiary rulings for abuse of discretion, though "we consider de

novo whether the strictures of the Confrontation Clause have been

met." United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.

2005). Where Rodríguez-Romero failed to object at trial, we review

for plain error. See, e.g., United States v. Rodriguez, 525 F.3d

85, 95 (1st Cir. 2008) (failure to object on hearsay grounds

results in plain error review); United States v. Luciano, 414 F.3d

174, 178 (1st Cir. 2005) (same for failure to object on

Confrontation Clause grounds). Finding no abuse of discretion, and

no violation of the Confrontation Clause, we affirm.

1. The impeachment testimony

Rodríguez-Romero's first argument is that the district

court violated his constitutional right to present a complete

defense by refusing to let him introduce extrinsic evidence that he

claims "could have" impeached Police Officer Víctor M. Veguilla

Figuero. On October 24, 2008, Veguilla arrested Rodríguez-Romero

with 150 vials of crack outside a home in Guayama, Puerto Rico.

Rodríguez-Romero had stopped in front of the house in a grey Ford

Taurus.8 Veguilla testified that he received an instruction to

arrest Rodríguez-Romero from a colleague, Officer Pérez, who

claimed to have witnessed Rodríguez-Romero conducting a drug sale

8 Government witness Leonardo Martínez de León testified that he had seen Rodríguez-Romero at Carioca driving a grey Taurus.

-24- with a co-conspirator named David de León. On the same day, Pérez

arrested David de León.

At trial, Rodríguez-Romero sought to introduce the

testimony of Tomasa Colón-Pérez, David de León's mother and the

owner of the house in front of which Rodríguez-Romero was arrested.

The district court reviewed Colon-Pérez's testimony outside the

presence of the jury. Colon-Pérez's offer of proof was that, on

the evening of October 24, 2008, she was sitting outside her house

when police officers ran into her house and arrested her son,

David. She witnessed the officers handcuff her son, and then a

female officer escorted her into a bedroom, where Colon-Pérez

remained for a period of time. She was allowed to exit the bedroom

and kiss her son before the officers escorted him out of the house

through the "door in the back of the room which leads to the yard."

The officers then brought Colon-Pérez back into the bedroom. About

two hours went by, according to Colon-Pérez, at which point the

officers standing in the bedroom with her said something to the

effect of, "It's about to arrive. It's about to arrive." A few

minutes later, the officers said, "It arrived. The car arrived."

Colon-Pérez then heard a voice in the house say, "David, David."

From the bedroom, she could not see who was speaking, nor could she

identify the voice. Colón-Pérez was inside her home, could not see

outside, and did not witness Rodríguez-Romero's arrest.

-25- Though the offer of proof at trial was less than lucid,

Rodríguez-Romero's attorney apparently sought to introduce Colon-

Pérez's testimony in order to impeach Veguilla by showing that:

(1) Officer Pérez could not have witnessed David de León and

Rodríguez-Romero conducting a drug sale, because de León was

already under arrest at that point; and (2) more generally, the

events that day could not have transpired as Veguilla claimed they

had, since de León was arrested two hours before Rodríguez-Romero.

Rodríguez-Romero's argument fails. Colón-Pérez did not

witness the arrest of Rodríguez-Romero, which is the arrest

Veguilla conducted and about which he testified. Colón-Pérez

contradicted none of the specific events that Veguilla described in

his testimony. Veguilla did not testify that the drug sale between

de León and Rodríguez-Romero occurred outside Colón-Pérez's house,

that de León and Rodríguez-Romero were immediately arrested

following the sale,9 or that de León was still present at the house

when Veguilla arrested Rodríguez-Romero. Nor did Colón-Pérez see

the car that was allegedly "arriving" such that she could establish

that the activity she heard two hours after her son's arrest was

indeed the arrest of Rodríguez-Romero.

9 Veguilla testified that "after a surveillance that was rendered for me by fellow officer Perez, he indicated that we were to intervene." When asked whether he arrested Rodríguez-Romero at the same time that Pérez arrested de León, Veguilla said, "I couldn't tell you at the same time, but it was more or less relative."

-26- Rodríguez-Romero argues that the exclusion of Colón-

Pérez's testimony denied him "a meaningful opportunity to present

a complete defense," a right the Constitution guarantees,

"[w]hether rooted directly in the Due Process Clause of the

Fourteenth Amendment, or in the Compulsory Process or Confrontation

clauses of the Sixth Amendment." Crane v. Kentucky, 476 U.S. 683,

690 (1986) (internal citation and quotation marks omitted). Yet a

defendant's right to present relevant evidence in his own defense

"is not unlimited, but rather is subject to reasonable

restrictions." United States v. Scheffer, 523 U.S. 303, 308

(1998). See also Taylor v. Illinois, 484 U.S. 400, 410 (1988)

("The accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence."). A witness cannot testify to a

matter unless there is evidence sufficient to support a finding

that she has personal knowledge of the matter. Fed. R. Evid. 602.

We fail to see how Colón-Pérez had sufficient personal knowledge to

testify regarding Rodríguez-Romero's arrest, see id., nor do we

understand how her testimony would have been relevant to impeach

Veguilla, see Fed. R. Evid. 401, 403. We thus affirm.10

10 Whether we view the exclusion of Colón-Pérez's testimony as an evidentiary ruling, reviewed for abuse of discretion, see, e.g., Vega Molina, 407 F.3d at 522, or a constitutional error, reviewed for harmlessness beyond a reasonable doubt, see, e.g., United States v. Catalán-Roman, 585 F.3d 453, 466 (1st Cir. 2009), we find no error.

-27- 2. The alleged hearsay statement

When asked why he arrested Rodríguez-Romero on October

24, 2008, Officer Veguilla testified that Officer Pérez had

witnessed Rodríguez-Romero conducting a drug sale and had

"indicated to me that we were to intervene." Pérez did not testify

at trial and thus could not be cross-examined. Rodríguez-Romero's

second argument is that Veguilla's testimony was inadmissible

hearsay and that the admission of that testimony violated

Rodríguez-Romero's rights under the Confrontation Clause.

Rodríguez-Romero admits that plain error review applies to this

claim, because he did not object to the testimony at trial, either

on hearsay or Confrontation Clause grounds. Rodriguez, 525 F.3d at

95; Luciano, 414 F.3d at 178.

There was no error, because Veguilla's testimony was not

hearsay. The government offered Pérez's out-of-court statement to

explain why Veguilla had arrested Rodríguez-Romero, not as proof of

the drug sale that Pérez allegedly witnessed. Out-of-court

statements providing directions from one individual to another do

not constitute hearsay. United States v. Bailey, 270 F.3d 83, 87

(1st Cir. 2001). And we need not address Rodríguez-Romero's

Confrontation Clause argument. First, the argument is completely

undeveloped in Rodríguez-Romero's brief, and he has thus abandoned

it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Second, even if we were to address the argument, and assuming that

-28- Pérez's statement qualifies as "testimonial," the Confrontation

Clause "does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted."

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing

Tennessee v. Street, 471 U.S. 409, 414 (1985)).

Finding no merit to Rodríguez-Romero's claims, we affirm.

D. López-Capó

López-Capó, who was alleged to be one of the owners of

the crack distributed at Carioca, was found guilty of Counts One

and Three (the conspiracy count and the substantive count of

possessing crack with the intent to distribute it). In addition to

the claim addressed above, López-Capó challenges the sufficiency of

the evidence against him and argues that the district court erred

by: (1) admitting hearsay statements of his co-

conspirators; (2) admitting evidence of his relation to a known

drug dealer; (3) admitting evidence of a riot that occurred in

Carioca; (4) failing to give the jury a multiple conspiracy

instruction; (5) imposing a two-point enhancement for obstruction

of justice; (6) imposing a two-point enhancement under

U.S.S.G. § 2D1.2(a)(1); and (7) sentencing him to 360 months'

imprisonment, which he claims was not a reasonable sentence. We

affirm on all counts.11

11 Because we find that the district court committed no error in its handling of López-Capó's case, we need not reach López- Capó's argument that the district court's individual errors

-29- 1. The sufficiency of the evidence

López-Capó first argues that the government failed to

prove beyond a reasonable doubt that he participated in the drug

conspiracy. We review de novo the district court's denial of

López-Capó's Rule 29 motion, examining the evidence in the light

most favorable to the verdict. Pérez-Meléndez, 599 F.3d at 40. A

defendant challenging his conviction for insufficiency of the

evidence faces an "uphill battle." United States v. Hernández, 218

F.3d 58, 64 (1st Cir. 2000). We will affirm if a reasonable jury

could have found the defendant guilty of every element of the

charged crime beyond a reasonable doubt. Pérez-Meléndez, 599 F.3d

at 40.

To prove conspiracy, the government must show that: (1) a

conspiracy existed; (2) the defendant knew of the conspiracy; and

(3) the defendant voluntarily participated in the conspiracy.

United States v. Bristol-Martir, 570 F.3d 29, 39 (1st Cir. 2009).

To prove that the defendant "belonged to and participated in the

drug conspiracy, the government must show two kinds of intent:

'intent to agree and intent to commit the substantive offense.'"

Id. (quoting Hernández, 218 F.3d at 65). The government can meet

its burden with direct or circumstantial evidence. United States

v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). López-Capó makes

cumulatively prejudiced him. See United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).

-30- a general allegation, supported by little argumentation and almost

no case law, that the government failed to prove that he knew of an

agreement to distribute drugs in Carioca.

We have recounted above just a portion of the evidence

that a conspiracy to distribute drugs existed at Carioca from 2006

to 2009. The first element of the conspiracy test was undoubtedly

met. The evidence was also sufficient for the jury to conclude

that López-Capó knew of that conspiracy and voluntarily

participated in it. First, co-conspirator Heriberto García-Román

testified that López-Capó supplied the drug point with crack and

that he had seen López-Capó deliver crack to another drug point

employee. Second, co-conspirator Leonardo Martínez de León

identified López-Capó as a runner of cocaine, crack, and heroin at

the drug point and said that he had personally dealt drugs with

López-Capó. Martínez de León also testified to having seen López-

Capó at the drug point several times, delivering drugs and

collecting money and tallies. Third, co-conspirator Yamil

Irizarry-Lucas identified López-Capó as the supplier of crack for

the drug point and testified that, on two occasions, he had picked

up hundreds of vials of crack from López-Capó for sale at Carioca.

It is not for us to weigh this evidence or to make

credibility determinations. Hernández, 218 F.3d at 64. A

reasonable jury could have found López-Capó guilty of every element

-31- of the conspiracy count beyond a reasonable doubt. Pérez-Meléndez,

599 F.3d at 40.

2. The alleged hearsay statements

López-Capó's next claim is that various statements made

by his co-conspirators and admitted at trial were inadmissible

hearsay. Because López-Capó preserved his challenge to the

district court's admission of these statements, we review for abuse

of discretion. Vázquez-Botet, 532 F.3d at 65. Finding none, we

affirm.

López-Capó argues that the district court erred by

admitting four statements, one made by García-Román and three made

by Martínez de León. García-Román testified that Suki and Cesar,

the alleged owners of the drug point, had told him that López-Capó

brought drugs to Carioca from the "metropolitan area." Martínez de

León testified that: (1) Edwin Casiano-Roque, another co-

conspirator, had instructed him to collect the tallies for López-

Capó; (2) Casiano-Roque had told him that López-Capó lived in the

metropolitan area; and (3) Suki had said that López-Capó cooked

better crack than Cesar.12

12 López-Capó also objects to Irizarry-Lucas's testimony that López-Capó supplied crack to the drug point, which Irizarry-Lucas said he knew because he had personally picked up crack from López- Capó on two occasions for delivery to Carioca. We need not address these statements, as Irizarry-Lucas made them while he was testifying at trial, and they therefore do not qualify as hearsay. See Fed. R. Evid. 801(c)(1).

-32- Statements made by a defendant's co-conspirators "during

and in furtherance of the conspiracy" do not qualify as hearsay

under Federal Rule of Evidence 801(d)(2)(E). A district court

faced with a challenge to the admission of a co-conspirator's

statement must provisionally admit the statement and then wait

until the end of the trial to consider whether, in light of all the

evidence, the following four conditions are satisfied by a

preponderance of the evidence: (1) a conspiracy existed; (2) the

defendant was a member of the conspiracy; (3) the declarant was

also a member of the conspiracy; and (4) the declarant's statement

was made in furtherance of the conspiracy. Vázquez-Botet, 532 F.3d

at 65; United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.

1977).

Addressing the first two elements of the test, we have

outlined the evidence that a conspiracy to distribute drugs

operated at Carioca and that López-Capó was a member of that

conspiracy. We thus need only address whether the declarants were

also members of the conspiracy and whether their statements were

made in furtherance of the conspiracy. The declarants' statements

alone cannot satisfy the preponderance of the evidence standard;

there must be some independent corroboration to allow admission.

United States v. Portela, 167 F.3d 687, 703 (1st Cir. 1999).

Evidence other than the out-of-court statements

themselves established by a preponderance of the evidence that all

-33- of the declarants at issue – Suki, Cesar, and Casiano-Roque – were

members of the conspiracy. Multiple witnesses identified Suki and

Cesar as "co-owners" of the drug point and testified to their

activity at the drug point. As for Casiano-Roque, Martínez de León

testified that Casiano-Roque had paid him $125.00 per week as a

runner, and Officer Veguilla testified to having arrested Casiano-

Roque with Rodríguez-Romero during a drug sale.

The evidence was also sufficient for the district court

to find that all of the relevant statements were made in

furtherance of the conspiracy. When Suki and Cesar told García-

Román that López-Capó brought drugs to Carioca, those were

statements identifying other members of the conspiracy, made in

furtherance of the conspiracy. See United States v. Pelletier, 845

F.2d 1126, 1128-29 (1st Cir. 1988). Casiano-Roque's statement

instructing Martínez de León to collect the tallies from the

sellers was a statement related to the operation of the conspiracy,

made in furtherance of the conspiracy. See United States v.

Rodríguez-Vélez, 597 F.3d 32, 40-41 (1st Cir. 2010). Since

Martínez de León knew that the crack for the drug point was

supplied from the metropolitan area, Casiano-Roque's statement that

López-Capó lived in the metropolitan area was a statement related

to the inventory of the drug point, made in furtherance of the

conspiracy. Id. Finally, Suki's statement to Martínez de León

that López-Capó cooked better crack than Cesar was a statement

-34- identifying other members of the conspiracy, again made in

furtherance of the conspiracy. Pelletier, 845 F.2d at 1128-29.

The district court did not abuse its discretion by

admitting the out-of-court statements of López-Capó's co-

conspirators.

3. The other evidentiary rulings

López-Capó also argues that he was unfairly prejudiced

when the district court: (1) allowed the government to question him

about his relationship with his cousin, a known drug dealer, when

López-Capó took the stand; and (2) admitted evidence of a riot at

Carioca at which López-Capó was not present. Again, we review

evidentiary rulings for abuse of discretion. See, e.g., Vega

Molina, 407 F.3d at 522.

Federal Rule of Evidence 403 allows a district court to

exclude relevant evidence when its probative value is substantially

outweighed by its prejudicial effect. "Because Rule 403 judgments

are typically battlefield determinations, and great deference is

owed to the trial court's superior coign of vantage, only rarely –

and in extraordinarily compelling circumstances – will we, from the

vista of a cold appellate record, reverse a district court's

on-the-spot judgment concerning the relative weighing of probative

value and unfair effect." United States v. Bunchan, 580 F.3d 66,

71 (1st Cir. 2009) (internal citation and quotation marks omitted).

This is not such an instance.

-35- The district court allowed the government to ask López-

Capó two questions regarding his familial relationship with

Alexander Capo Trujillo during its cross-examination of López-Capó.

First, the government asked whether López-Capó knew Trujillo;

López-Capó responded that he did. Second, the government asked

what López-Capó's relationship with Trujillo was; López-Capó

responded that Trujillo was his cousin. On appeal, López-Capó

argues that these questions were irrelevant and unfairly

prejudicial because Trujillo was a "drug kingpin" and "a well known

federal fugitive whose names [sic] was in the Puerto Rico press

with great frequency." Thus, López-Capó argues, the questions made

"more credible the possibility that [López-Capó] was a member of a

drug conspiracy." The district court found the evidence admissible

after the government explained that it had reason to believe that

López-Capó had "inherited all the contacts of Alex Trujillo once

Alex Trujillo got arrested by the Federal government." The record

establishes that the court considered both the relevance and the

prejudicial effect of the evidence, and we find no abuse of

discretion in the court's decision to admit it. Furthermore, while

this is not the kind of extraordinarily compelling circumstance in

which we might reverse a district court's Rule 403 judgment, even

if it were, any error would likely be harmless, given the ample

evidence against López-Capó. See United States v. Piper, 298 F.3d

-36- 47, 56 (1st Cir. 2002) (an error is harmless if it is "highly

probable that the error did not influence the verdict").

Nor did the district court abuse its discretion by

allowing Police Officer Pedro Flores-Sánchez to testify about a

riot that occurred at Carioca in September 2006. The government

argued that the riot evidence was relevant to show the

dangerousness of Carioca, in support of Count Six of the indictment

(conspiring to use firearms to carry out drug crimes), and we

agree. Flores-Sánchez did not testify that López-Capó was present

at the riot, or that he was in any way associated with the riot.

We thus fail to see how López-Capó could have been prejudiced by

the testimony. See Fed. R. Evid. 403.

4. The multiple conspiracy instruction

Next, López-Capó argues that the district court erred by

refusing to give the jury a multiple conspiracy instruction, which

would have allowed the jury to find that López-Capó participated in

a different conspiracy than Díaz, Rodríguez, and Rodríguez-Romero.

We review the district court's decision not to provide the jury

instruction for abuse of discretion. United States v. De La Cruz,

514 F.3d 121, 139 (1st Cir. 2008).

A district court should give a multiple conspiracy

instruction when a reasonable jury could find more than one illicit

agreement, or an illicit agreement other than the one charged,

based upon the evidence put forward at trial. United States v.

-37- Balthazard, 360 F.3d 309, 315-16 (1st Cir. 2004). We will reverse

a district court's decision not to provide a multiple conspiracy

instruction only if the defendant can show that he suffered

substantial prejudice. De La Cruz, 514 F.3d at 139. "In the

context of alleged multiple conspiracies, the defendant's main

concern is that jurors will be misled into attributing guilt to a

particular defendant based on evidence presented against others who

were involved in a different and separate conspiratorial scheme."

United States v. Brandon, 17 F.3d 409, 450 (1st Cir. 1994).

It was only after the district court finished instructing

the jury that Díaz requested a multiple conspiracy instruction, and

López-Capó joined in that request. Although López-Capó did submit

a written request for a jury instruction, asking the court to

instruct the jury regarding the weight they should give his

criminal record, that motion contained no mention of a multiple

conspiracy instruction. López-Capó's motion belies his claim that

the court gave him no opportunity to request the multiple

conspiracy instruction, which is his excuse for failing to comply

with Federal Rule of Criminal Procedure 30.

Because we find that López-Capó's claim fails on its

merits, however, we need not decide whether López-Capó forfeited

that claim as a result of his failure to comply with Rule 30. See,

e.g., United States v. Upton, 559 F.3d 3, 9 (1st Cir. 2009) ("The

right to a jury instruction can be waived by not requesting the

-38- instruction, or not objecting at the proper time."). López-Capó

has pointed to no evidence in the record indicating that a

reasonable jury could have found that he participated in an illicit

agreement other than the one charged. Rather, the evidence

established that López-Capó participated in the very same

conspiracy to distribute drugs at Carioca as his co-defendants.

López-Capó seems to argue that a multiple conspiracy

instruction was necessary because the evidence failed to establish

that he participated in the Carioca drug point in 2009.13 Even

assuming that is true, we do not see why it would necessitate a

multiple conspiracy instruction. A conspiracy with "a continuity

of purpose and a continued performance of acts . . . is presumed to

exist until there has been an affirmative showing that it has

terminated." United States v. Elwell, 984 F.2d 1289, 1293 (1st

Cir. 1993) (citation and internal quotation marks omitted). The

trial testimony established that this conspiracy operated

continuously between 2006 and 2009 and that López-Capó was active

in the drug point at least in 2007 and 2008. López-Capó has put

13 López-Capó also claims that the evidence was insufficient to show that he participated in the drug point in 2006. But García-Román, who was active in the drug point between September 2006 and April 2007, testified that he saw López-Capó at the drug point on two or three occasions "between the month of November [2006] and the month of February [2007]." Furthermore, even if López-Capó did not join the conspiracy until after 2006, we fail to see why that would require a multiple conspiracy instruction, though it would be relevant for sentencing purposes. See, e.g., United States v. Rodríguez-González, 433 F.3d 165, 168-69 (1st Cir. 2005).

-39- forward no evidence that he acted "affirmatively either to defeat

or disavow the purposes of the conspiracy" in 2009. United States

v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987). Nor does he

provide any support for his conclusory claim that the lack of a

multiple conspiracy instruction "made it difficult for the jury to

believe [his] testimony and arguments that he was not involved in

the conspiracy." There was no abuse of discretion.

5. The alleged sentencing errors

Finally, López-Capó argues that the district court

committed four errors at sentencing. We review the district

court's factual findings made at sentencing for clear error.

United States v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008). We

review the reasonableness of the defendant's resulting sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 41

(2007); United States v. Bunchan, 626 F.3d 29, 35 (1st Cir. 2010).

At sentencing, the district court found that López-Capó

was responsible for at least 1.5 kilograms of crack, which resulted

in a base offense level of 36. See U.S.S.G. § 2D1.1(c) (amended

2011).14 The court then added two enhancements: one for obstruction

of justice, see U.S.S.G. § 3C1.1, and one for drug activity near a

protected area, see U.S.S.G. § 2D1.2(a)(1), which yielded an

adjusted offense level of 40. Using a CHC of III, the court

14 Under the new guidelines, as amended by the Fair Sentencing Act of 2010, López-Capó's base offense level would be 34. See U.S.S.G. § 2D1.1(c).

-40- determined that López-Capó's sentencing guideline range was 360

months to life. The court imposed a sentence at the bottom of that

range: 360 months (thirty years) of imprisonment, followed by ten

years of supervised release.

First, López-Capó argues that the district court

committed clear error by applying the two-point enhancement for

obstruction of justice. The sentencing guidelines allow the court

to increase a defendant's offense level by two points if he has

willfully obstructed justice, U.S.S.G. § 3C1.1, which includes

perjury, United States v. Dunnigan, 507 U.S. 87, 92-94 (1993). A

defendant commits perjury when he intentionally gives false

testimony under oath on a matter material to the proceedings.

Shinderman, 515 F.3d at 19. To impose an enhancement for perjury,

the "sentencing court must make an independent finding that the

elements of perjury have been satisfied." Id.

The district court here applied the enhancement after

concluding that López-Capó's testimony had been a complete

fabrication. The court's findings sufficed to establish that the

elements of perjury were met. Id. López-Capó's testimony occurred

under oath, in court, and he addressed various matters material to

the proceedings. Id. The court found that López-Capó had

intentionally fabricated his testimony in an attempt to convince

the jury that he had been "a student, living off little amounts,

just making ends meet," who knew none of the cooperating witnesses

-41- and only traveled to Carioca to see his mother. López-Capó had

"lied through his teeth," the court found, by portraying "a world

different from Carioca, the world in which he participated, and the

world . . . he was supplying narcotics to." When López-Capó's

attorney asked, at sentencing, for the "specific instances" in

which López-Capó had lied, the court responded, "[h]is whole

testimony [was] a big lie." Having reviewed the record, we cannot

say we disagree. Where a district court finds that a defendant has

fabricated his entire testimony, the court need not delineate every

specific instance in which the defendant lied. But here, the court

did specifically mention López-Capó's visual expressions and

demeanor on the stand, as well as his financial records, which the

court found were "totally at odds with the testimony that he was

portraying." We give those credibility assessments "reasonable

latitude." Shinderman, 515 F.3d at 19. There was no clear error.

Second, López-Capó argues that the district court erred

by enhancing his offense level for committing a drug offense near

a protected area, pursuant to U.S.S.G. § 2D1.2(a)(1). López-Capó

bases this challenge on the government's alleged failure to

establish the 1,000-foot requirement or the existence of a

protected area. As discussed above, we reject that argument. The

evidence was sufficient for the jury, and the district court, to

conclude that the relevant activity occurred within 1,000 feet of

a protected area. As the court stated at sentencing, it was

-42- "evident from the evidence" that "the drug point operated on top

almost of the children's playground" and that the drug offenses

occurred "in the Public Housing Project." Again, there was no

clear error.

Third, López-Capó claims that his sentence was

unreasonable because the district court included two "recency"

criminal history points when calculating his CHC, as was then

required by U.S.S.G. § 4A1.1(e), which was subsequently amended.15

The government's brief entirely fails to address this argument. In

López-Capó's pre-sentence investigation report (PSI), the U.S.

Probation Office assigned him three criminal history points as a

result of his prior criminal activity, to which the Probation

Office added two points because López-Capó had committed the

instant offense fewer than two years after being released from

prison. See U.S.S.G. § 4A1.1(e) (amended 2010). Five criminal

history points resulted in a CHC of III, which is what the court

used to calculate López-Capó's sentence. López-Capó argues that he

should only have been assigned two criminal history points, which

would have resulted in a CHC of II.

15 At the time of López-Capó's sentencing, section 4A1.1(e) required a district court to assign a defendant two extra criminal history points if the defendant committed "any part of the instant offense (i.e., any relevant conduct) less than two years following release from confinement on a sentence counted under § 4A1.1(a) or (b)." See U.S.S.G. § 4A1.1(e) (amended 2010).

-43- López-Capó was sentenced on April 30, 2010. The U.S.

Sentencing Commission had voted earlier that month, on April 7,

2010, to eliminate the "recency" points required by section

4A1.1(e), but the proposed amendment ("Amendment 742") did not

become effective until November 1, 2010. See United States v.

Adams, 640 F.3d 41, 42 (1st Cir. 2011). Amendment 742 is not

retroactive. See U.S.S.G. § 1B1.10(c). And while "we have

previously remanded cases for reconsideration of a sentence in

light of a later amendment to the guidelines . . . even where that

amendment had not been made retroactive," we have chosen not to do

so where "the district court was made aware at sentencing of the

proposed guideline amendment and . . . was unmoved by the prospect

of the elimination of the 'recency' points." Adams, 640 F.3d at

43. López-Capó filed objections to the PSI, which included

notification to the court that the U.S. Sentencing Commission had

proposed to amend section 4A1.1(e), and he reiterated at sentencing

his objection to the CHC calculation. López-Capó has not

distinguished Adams or provided us with any reason to believe that

a different result would follow on remand. See id. There was no

abuse of discretion.

Fourth, López-Capó argues that his sentence was

unreasonable because the district court did not properly consider

the 18 U.S.C. § 3553(a) factors to determine whether a downward

departure from the sentencing guidelines was warranted. This

-44- argument seems to have two prongs: (1) the district court failed to

adequately explain why it was denying López-Capó's request for a

downward departure; and (2) López-Capó's co-defendants received

much shorter sentences than he did. Both claims fail.

Addressing the first contention, particularly where the

district court sentences a defendant within the guideline range, as

was the case here, the court's explanation of the sentence need not

"be precise to the point of pedantry," United States v.

Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), and "brevity is

not to be confused with inattention," id. at 42. López-Capó

provides no actual support for his claim that "it is fair to say

that there is no evidence that the District Court examined the

factors in 18 U.S.C. § 3553(a)(1) through (5)." Our review of the

sentencing hearing transcript reveals that the district court

considered the PSI, as well as the arguments of both López-Capó and

the government. The court carefully explained its calculation of

López-Capó's offense level, choosing "for the sake of being fair"

to attribute 1.5 kilograms of crack to López-Capó, though the court

had "no doubt" that López-Capó was "responsible for at least 4.5

kilograms of crack." The court then rejected the government's

request for a sentence at the "upper end" of the guideline range

(meaning life imprisonment), found that "[t]he guidelines, although

advisory, adequately reflect the nature of the offence and the

characteristics," and noted that the defendant "has not given the

-45- Court any . . . explanation other than the fact that we have the

wrong person basically, that he didn't do it." Thus, the court

found that there was "nothing on th[e] record" that would lead it

"to give [López-Capó] the benefit of a different calculation under

3553(a)." We find the explanation adequate. See Rita v. United

States, 551 U.S. 338, 356 (2007) ("[W]hen a judge decides simply to

apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation."); Turbides-Leonardo, 468

F.3d at 40-42.

We also reject López-Capó's claim that his sentence was

unreasonable because he received a longer sentence than any of his

co-defendants. First, López-Capó provides no argumentation or case

law in support of the assertion. See Zannino, 895 F.2d at 17

("[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").

Second, López-Capó raised this issue at sentencing, arguing that

Rodríguez had only received a sentence of 188 months. The district

court responded that Rodríguez had started with the same base

offense level as López-Capó but had a lower CHC and fewer

enhancements. "[W]here the defendant's own sentence has been

justified and the basis for a co-defendant's lesser sentence is set

forth or is apparent, no more precise calibration of the difference

between them is customarily feasible, let alone required." United

States v. Mueffelman, 470 F.3d 33, 41 (1st Cir. 2006).

-46- III. Conclusion

For the foregoing reasons, we affirm the convictions of

Díaz, Rodríguez-Romero, and López-Capó. As for Rodríguez, we

affirm his convictions on Counts One, Three, and Five, vacate his

convictions on Counts Two and Four, and remand for a new sentencing

hearing in light of this opinion.

-47-