United States Court of Appeals For the First Circuit
No. 21-1815
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO MEJIA, a/k/a Carlos,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Gelpí, Circuit Judges.
Thomas J. Gleason and Gleason Law Offices, P.C. on brief for appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Criminal Division, United States Department of Justice, Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division, W. Connor Winn, Criminal Division, Appellate Section, Darcie N. McElwee, United States Attorney, Benjamin M. Block, Chief, Appellate Division, Johnathan G. Nathans, Assistant United States Attorney, on brief for appellee. November 8, 2022 SELYA, Circuit Judge. In this case, the district court
allowed the government to rescind a plea agreement previously
entered into with defendant-appellant Julio Mejia and proceeded to
sentence the defendant to a 162-month term of immurement. The
defendant appeals, arguing that the court should not have allowed
the rescission of the plea agreement and that, compounding this
blunder, the court miscalculated drug quantity and incorrectly
imposed a role-in-the-offense enhancement. Concluding, as we do,
that the defendant is foraging in an empty cupboard, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
In 2016, the authorities began investigating a sprawling
drug-trafficking organization that was supplying significant
amounts of cocaine and fentanyl to drug dealers throughout Maine,
New Hampshire, and Massachusetts. The defendant was involved hip-
deep in the activities of the organization: at least until the
end of 2016, he received orders from customers, set drug prices,
and arranged the itineraries for drug couriers.
- 3 - In December of 2016, the defendant turned over his list
of customers to an associate, Inyemar Manuel Suazo, and departed
for the Dominican Republic. His departure left Suazo in charge.
But after the defendant returned to the United States on May 7,
2017, he both resumed contact with Suazo and resumed involvement
in the original drug-trafficking organization. By September,
though, the two men had gone their separate ways, and the defendant
began running his own drug-trafficking enterprise.
The defendant's new enterprise involved some persons who
had been participants in the original drug-trafficking
organization. This roster of past participants included a courier,
Rafael Espinal-Calderon. The defendant continued distributing
cocaine and fentanyl through this new network until his arrest in
2018.
In due course, a federal grand jury sitting in the
District of Maine charged the defendant with conspiracy to
distribute and to possess with intent to distribute 400 grams or
more of a mixture or substance containing fentanyl. See 21 U.S.C.
§§ 841(a)(1), 846. The defendant initially maintained his
innocence, but he later changed his plea, pursuant to a written
plea agreement. The district court accepted the defendant's guilty
plea and ordered the preparation of a PSI Report.
When received, the PSI Report recommended a criminal
history category of I and a total offense level (TOL) of forty-
- 4 - three. The TOL included a drug quantity attribution, see USSG
§2D1.1, a role-in-the-offense enhancement based on the defendant's
asserted leadership of "criminal activity that involved five or
more participants," id. §3B1.1(a), and a reduction for acceptance
of responsibility, see id. §3E1.1. The guideline recommendations
limned in the PSI Report yielded a guideline sentencing range of
life imprisonment.
In March of 2019, the defendant entered into a
cooperation agreement with the government, which both merged into
and supplemented his plea agreement. (For ease in exposition, we
henceforth refer to the plea agreement and the cooperation
agreement, collectively, as the "supplemented plea agreement.")
Pursuant to the supplemented plea agreement, the defendant pledged
to assist the government's ongoing investigation into drug-
trafficking activities in various ways (including testifying when
requested). For its part, the government pledged not to use any
of the information provided by the defendant against him, to make
his cooperation known upon his request, and to recommend a three-
level reduction for acceptance of responsibility under USSG
§3E1.1.
The defendant began cooperating with the government and
continued his assistance until November 27, 2020. At some time
prior to that date, Suazo apparently approached the defendant,
showed him a copy of the cooperation agreement, and threatened to
- 5 - post it online if the defendant testified. Fearing for his and
his family's safety, the defendant subsequently refused to testify
against Suazo.
The government responded to this development by
announcing that it would treat the supplemented plea agreement as
a nullity. The defendant tried to parry this thrust: he moved
either to scrap the indictment or to enforce the supplemented plea
agreement because the government had breached the latter by
withdrawing it "in bad faith." After determining that the
defendant's failure to testify against Suazo constituted a
material breach of the terms of the supplemented plea agreement,
the court denied the motion.
On September 27, 2021, the district court convened the
disposition hearing in the defendant's case. The government
reminded the court that the supplemented plea agreement had been
abrogated by the defendant's refusal to testify and, therefore,
should be deemed withdrawn. The defendant did not
contemporaneously object to the rescission of the supplemented
plea agreement, but his counsel urged the court to acknowledge the
defendant's cooperation when weighing the sentencing factors made
pertinent under 18 U.S.C. § 3553(a). Consequently, the
supplemented plea agreement was rejected by the court.
The disposition hearing devolved principally into an
exchange of views about the appropriateness vel non of the drug-
- 6 - quantity and role-in-the-offense recommendations contained in the
PSI Report. Amidst the sparring, the government suggested a 240-
month term of immurement, and the defendant suggested half that
time.
Regarding drug quantity, the district court concluded
that the PSI Report's figure (114,362.6618 kilograms of converted
drug weight)1 was "supportable based upon the testimony of runners
like Espinal-Calderon and others." And with respect to the four-
level role-in-the-offense enhancement, the court found that the
evidence "without a doubt [] satisfie[d] the five participant
level" and made "absolutely clear that this defendant was the
leader."
After considering the section 3553(a) factors, the court
concluded that the defendant "deserve[d] to be penalized far more
heavily than the other members of the conspiracy." Even so, the
court noted that the guideline sentencing range was
"extraordinarily punitive and high" and that the defendant's
cooperation, though not in full compliance with the supplemented
plea agreement, ought to "have a major impact in terms of the
sentence" to be imposed. The court settled upon a 162-month term
1 Where, as here, more than one type of drug is involved in an offense, the quantity of each drug is multiplied by a conversion factor to yield converted drug weight, so that quantities of different drugs may be combined into a single number for purposes of establishing the defendant's base offense level. See USSG §2D1.1(c), n.(K).
- 7 - of immurement — a downwardly variant sentence that amounted to one
half of the bottom of the adjusted guideline sentencing range.
This timely appeal followed.
II
In this venue, the defendant advances three principal
claims of error.2 We address these claims sequentially.
A
The defendant first challenges the district court's
refusal to enforce his supplemented plea agreement. He insists
that the government remained bound to the terms of the supplemented
plea agreement because his failure to testify against Suazo did
not constitute a breach of his obligations under the agreement.3
In cases involving an alleged breach of a plea agreement,
we review disputed factual questions (such as those pertaining to
the terms of the agreement or a parties' conduct) for clear error.
2 In addition to these claims of error, the defendant separately contends that the government breached the supplemented plea agreement when it failed to protect his identity from Suazo and when it argued for a sentence exceeding 150 months. These contentions are undeveloped, and we deem them waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And in all events, we note that the supplemented plea agreement contains neither a commitment to protect the defendant's identity nor a commitment to recommend a 150-month sentence.
3 The defendant is not clear as to how the enforcement of the supplemented plea agreement would have worked to his advantage in this case. But because we discern no breach of that agreement on the government's part, see text infra, we need not probe this point more deeply.
- 8 - See United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995).
Questions of law are reviewed de novo. See United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014). Once any factual
disputes are resolved, the question of whether a party "breached
the terms of a plea agreement is usually a question of law, which
we review de novo." Id. Inasmuch as cooperation agreements are
analogous to plea agreements, see United States v. Lilly, 810 F.3d
1205, 1211 (10th Cir. 2016); United States v. Carrillo, 709 F.2d
35, 36 (9th Cir. 1983), we similarly afford de novo review to the
question of whether a party breached the terms of a cooperation
agreement.
With respect to the supplemented plea agreement,
"contract law supplies a useful reference point." United States
v. Alegria, 192 F.3d 179, 183 (1st Cir. 1999). If the language of
an agreement "unambiguously resolves an issue, that usually ends
the judicial inquiry." Id. So it is here. The agreement
unambiguously requires that the defendant "testify . . . at any
and all grand juries, trials or other official proceedings in which
his testimony is requested." It also warns that the defendant's
failure to "perform any obligations under this Agreement" will
constitute a breach.
The defendant does not dispute that the supplemented
plea agreement embodies these straightforward terms. Nor does he
dispute that he did not comply with the government's request that
- 9 - he testify against Suazo. It follows, we think, that his argument
— that he did not breach the agreement by refusing to testify —
necessarily fails.
The defendant attempts to confess and avoid. He argues
that contract-law principles excused his non-performance. But as
we explain below, the doctrines that he advances do not apply to
the circumstances at hand.
First, the defendant seeks specific performance of the
supplemented plea agreement under the doctrine of substantial
performance. Cf. United States v. Doe, 233 F.3d 642, 644-47 (1st
Cir. 2000) (evaluating whether defendant had cooperated with
government to an extent sufficient to compel specific performance
of his plea agreement). In essence, he contends that the
supplemented plea agreement should be enforced despite his breach
because his cooperation enabled the government to accomplish its
main objectives. The district court rejected this claim — and so
do we.
The district court explained that the doctrine of
substantial performance does not apply if a party's breach is
material. See, e.g., Teragram Corp. v. Marketwatch.com, Inc., 444
F.3d 1, 9-12 (1st Cir. 2006) (upholding release of party from
further performance after counter-party committed material
breach); U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 49-
50 (1st Cir. 2002) (rejecting argument for enforcement of contract
- 10 - because arguing party had materially breached). A breach is
material if it involves "an essential and inducing feature of the
contract." Marketwatch.com, 444 F.3d at 11 (quoting Bucholz v.
Green Bros. Co., 172 N.E. 101, 102 (Mass. 1930)). Here, the breach
was material: the defendant's obligation to testify was essential
to the supplemented plea agreement, was embodied in an express
term in the agreement, and his refusal to testify broke a promise
that had been a cornerstone of the government's decision to enter
into that agreement. Moreover, the defendant's refusal to testify
forced the government to nol pros its pending case against Suazo.
See United States v. Suazo, 14 F.4th 70, 72-73 (1st Cir. 2021).
Given these facts, the district court appropriately regarded the
defendant's breach as material and, so, appropriately disregarded
the doctrine of substantial performance.
Second, the defendant points to the doctrine of
frustration of purpose. He contends that this doctrine applies
because Suazo discovered his identity as an informant. We do not
agree: frustration of purpose is a doctrine that comes into play
when "the non-occurrence of [the frustrating event] was a basic
assumption on which the contract was made." Restatement (Second)
of Contracts § 265 (Am. L. Inst. 1981).
To amplify, the defendant has failed to show that
ensuring his anonymity was a basic assumption underlying the
supplemented plea agreement. In terms, the agreement extended no
- 11 - assurance of anonymity to the defendant. And, furthermore, the
agreement obligated the defendant to testify at an unlimited number
of unspecified trials, during which his identity as an informant
surely would have been disclosed. Seen in this light, it defies
common sense to suggest — as the defendant does — that it was a
"basic assumption" that Suazo would be kept in the dark and would
never learn of the defendant's arrangement with the government.4
This leaves the defendant's contention that the district
court erred in failing to invoke either 18 U.S.C. § 3553(e) or
USSG §5K1.1, each of which enables a district court to consider a
more lenient sentence. The former provision permits a district
court to impose a sentence below the statutory minimum "[u]pon
motion of the Government." 18 U.S.C. § 3553(e). The latter
provision permits a district court to depart downward from a
properly calculated guideline sentencing range, "[u]pon motion of
the government," to reward a defendant's substantial assistance.
USSG §5K1.1.
The common thread running through these provisions is
that each provision is triggered only "upon motion of the
government." The government made no such motion here — nor is
The defendant also makes a conclusory assertion that the 4
government acted "in bad faith" in rescinding the supplemented plea agreement. But a showing of bad faith requires an evidentiary predicate, see Alegria, 192 F.3d at 187, and the defendant does not identify such a predicate here.
- 12 - there any allegation that the government reneged on a promise to
make such a motion. Viewed against this backdrop, the defendant's
contention withers on the vine.
B
The defendant's next claim of error relates to the
sentence imposed. A two-step pavane guides our inquiry. See
United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). "First,
we resolve any claims of procedural error, including any claims
that implicate the accuracy of the sentencing court's calibration
of the [guideline sentencing range]." Id. If the sentence passes
procedural muster, we then address any claim of substantive
unreasonableness. See id.
In this instance, the defendant eschews any challenge to
the substantive reasonableness of his sentence. Our review,
therefore, is limited to his two claims of procedural error. Both
claims were preserved below and, thus, engender review for abuse
of discretion. See United States v. Rivera-Morales, 961 F.3d 1,
15 (1st Cir. 2020). That is not a monolithic standard: within
it, "we assay the district court's factfinding for clear error and
afford de novo consideration to its interpretation and application
of the sentencing guidelines." United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir. 2013). In the process, we bear in mind
that — ordinarily — "facts found by a sentencing court must be
- 13 - supported by a preponderance of the evidence." United States v.
Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017).
Drug quantity is an important integer in the sentencing
calculus, see United States v. Soto-Villar, 40 F.4th 27, 31 (1st
Cir. 2022), and the defendant's first claim of procedural error
targets the district court's drug-quantity determination.
Specifically, the defendant contends that the court erred in
overestimating the amount of drugs for which he was accountable.
See USSG §2D1.1. In support, the defendant asserts that the drug-
quantity calculation derives from historical evidence of
transactions for which he was not responsible.
"[D]rug-quantity determinations are quintessentially
factual in nature, and we review them for clear error." United
States v. Dunston, 851 F.3d 91, 101 (1st Cir. 2017). In
determining drug quantity, a sentencing court's findings "need not
be precise to the point of pedantry." United States v. Ventura,
353 F.3d 84, 88 (1st Cir. 2003). Rather, "[s]uch findings may be
based on approximations drawn from historical evidence as long as
those approximations represent reasoned estimates of drug
quantity." Id.
The district court accepted the PSI Report's estimate
that the defendant was responsible for 114,362.6618 kilograms of
converted drug weight, see supra note 1, comprising quantities of
- 14 - cocaine and fentanyl attributable to the conspiracy during the
defendant's involvement (that is, up until September of 2017).
See United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004);
USSG §1B1.3(a). The evidence supporting this calculation included
seizures, intercepted telephone communications, information
supplied by former couriers, and data provided by a close associate
of the defendant. Notably, the close associate said that the
defendant purchased half a kilogram of fentanyl and cut it into
three-and-one-half kilograms of fentanyl every two or three weeks.
Based on this last description, the PSI Report estimated that the
defendant distributed three-and-one-half kilograms of a substance
or mixture containing fentanyl every six weeks (a total of over
forty-five kilograms of fentanyl).
The defendant posits that the district court improperly
used historical evidence in two ways. First, he submits that much
of the attributed drug weight came from transactions that occurred
while he was in the Dominican Republic and thereafter. Building
on this foundation, he argues that he should not be held
accountable for the drugs that were trafficked after he left the
United States. This argument, though, gains him no traction: a
defendant is responsible "not only for the drugs he actually
handled but also for the full amount of drugs that he could
reasonably have anticipated would be within the ambit of the
conspiracy." Santos, 357 F.3d at 140.
- 15 - To be sure, the defendant alleges that he separated
entirely from the drug-trafficking organization while he was
abroad and, thus, should not be held responsible for drugs
trafficked during and after that interval. This allegation cannot
withstand scrutiny. Where, as here, "a conspiracy contemplates a
continuity of purpose and a continued performance of acts, it is
presumed to exist until there has been an affirmative showing that
it has terminated." United States v. Piper, 298 F.3d 47, 53 (1st
Cir. 2002) (quoting United States v. Elwell, 984 F.2d 1289, 1293
(1st Cir. 1993)). A coconspirator's claim that he has withdrawn
from the conspiracy thus "requires more than an empty claim of
disaffection." Dunston, 851 F.3d at 103. To succeed on such a
withdrawal claim, a coconspirator "must act affirmatively either
to defeat or disavow the purposes of the conspiracy." United
States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per
curiam). Typically, this requires "evidence either of a full
confession to authorities or a communication . . . to his co-
conspirators that he has abandoned the enterprise and its goals."
Id. Nothing of the sort is reflected in the record.
Arguing to the contrary, the defendant insists that he
cut ties with the drug-trafficking organization and its goals when
he gave his customer list to Suazo, left the country, and pursued
other work opportunities. But a "[m]ere cessation of activity in
furtherance of the conspiracy does not constitute withdrawal."
- 16 - Id. (quoting United States v. Dunn, 758 F.2d 30, 37 (1st Cir.
1985)); see United States v. David, 940 F.2d 722, 739-40 (1st Cir.
1991) (concluding that defendants did not withdraw from conspiracy
because defendants "attempted to resume more active
participation . . . by reestablishing their supply relationship
[with a coconspirator]"). Although the record indicates a hiatus
in the defendant's conspiratorial activities, it lacks sufficient
evidence to establish that the defendant actually withdrew from
the conspiracy. After all, the defendant lost no time in resuming
contact with Suazo shortly after his return to the United States
— and he continued distributing drugs. In the absence of any
compelling evidence of withdrawal, we are satisfied that the record
supports a finding that the defendant remained involved in the
conspiracy.
In a nutshell, the record supports the district court's
finding that the challenged quantities fell within the scope of
the conspiracy and were reasonably foreseeable to the defendant.
We hold, therefore, that the district court's use of historical
evidence regarding transactions during the defendant's sojourn in
the Dominican Republic and thereafter until September of 2017 was
not clearly erroneous. No more was exigible to attribute those
drug quantities to the defendant. See Dunston, 851 F.3d at 101;
Santos, 357 F.3d at 140.
- 17 - The defendant also contests the court's reliance on
anecdotal evidence, which accounts for the total amount of fentanyl
and most of the cocaine attributable to him. He declares that
these transactions are "projected, estimated, [and] unverified."
And he specifically disputes the court's acceptance of Espinal-
Calderon's cocaine drug quantity estimate because the estimate was
"self-serving."
This dog will not hunt. We have stated before, and today
reaffirm, that "a sentencing court has wide discretion to decide
whether particular evidence is sufficiently reliable to be used at
sentencing." United States v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010). In the context of drug-trafficking transactions,
"[d]etermining drug quantities after the fact is . . . likely to
require a careful sorting of anecdotal information and the exercise
of sound judgement." United States v. Bernier, 660 F.3d 543, 548
(1st Cir. 2011). The upshot is that "a sentencing court's
selection from among plausible alternative scenarios or divergent
inferences presented by the record cannot be clearly erroneous."
Id. at 547.
The court below determined that the calculations were
"supportable based upon the testimony of runners . . . and
others." The court explained that "[t]he fact that Espinal-
Calderon never physically met the defendant or wasn't sure of his
real name does not matter because the identity of the defendant
- 18 - comes from others and his role in the organization." In addition,
the court noted that the defendant's close associate had described
the defendant's handling of drugs in a way that was "consistent
with the defendant's own proffer." So, too, the court observed
that the probation department had exercised "leni[ency]" when
estimating the amount of fentanyl derived from the close
associate's statements by expanding the estimated two-to-three-
week intervals to six weeks. On this scumbled record, the district
court's drug-quantity determination was a reasoned estimate and,
thus, not clearly erroneous.5
This brings us to the defendant's last claim of error:
his entreaty that the district court should not have deployed a
four-level role-in-the-offense enhancement in calculating his
guideline sentencing range. See USSG §3B1.1(a). In support, he
argues that Suazo was the clear leader of the drug-trafficking
organization.
We begin with the basics. USSG §3B1.1(a) provides for
a four-level enhancement if "the defendant was an organizer or
5 In his briefing, the defendant requests an evidentiary hearing on the drug-quantity issue. This request was not made below and, thus, we deem it waived. See United States v. Maglio, 21 F.4th 179, 187 n.4 (1st Cir. 2021); see also United States v. Adams, 971 F.3d 22, 37 (1st Cir. 2020) (holding that appellant's request for a hearing "falls squarely within the general rule that a party cannot ask the court of appeals for relief that he did not seek in the district court").
- 19 - leader of a criminal activity that involved five or more
participants or was otherwise extensive." As to this enhancement
— as with all upward adjustments under the sentencing guidelines
— the government must carry the devoir of persuasion by a
preponderance of the evidence. See United States v. Rivera, 51
F.4th 47, 51 (1st Cir. 2022). Discussing this enhancement, we
recently explained that "the government's evidence must satisfy
both a scope requirement (that is, the evidence must show that the
enterprise involved five or more participants or was otherwise
extensive) and a status requirement (that is, that the defendant
acted as an organizer or leader of the enterprise)." Id.
A criminal enterprise that conducted its operations
under the aegis of a formal organization chart would be a rarity.
Typically, such enterprises are structured informally and,
therefore, a defendant's role in the enterprise "is necessarily
fact-specific." United States v. Graciani, 61 F.3d 70, 75 (1st
Cir. 1995). As a result — and absent a mistake of law — role-in-
the-offense disputes "will almost always be won or lost in the
district court." Id.
Here, the scope requirement is plainly satisfied: the
record paints a picture of a drug-trafficking organization with
many tentacles, and the defendant does not dispute that the
organization involved five or more participants. The factual
question, then, is whether the record supports the district court's
- 20 - finding that the defendant was a leader of the organization.
Reviewing for clear error, see Ventura, 353 F.3d at 89, we think
that it does.
The record shows with conspicuous clarity that the
defendant was the point man with whom drug dealers regularly placed
their orders — and he set the prices for the conspiracy's wares.
In addition, he gave the drug couriers their assignments on
numerous occasions. Put bluntly, he was a hub of the drug-
trafficking organization's wide-ranging activities.
The defendant's only rejoinder to this factual panoply
is his argument that he could not be deemed a leader because Suazo
was the leader. This argument, however, rests on a faulty premise.
The commentary to the sentencing guidelines makes pellucid that
there can "be more than one person who qualifies as a leader or
organizer of a criminal association or conspiracy." USSG §3B1.1,
cmt. 4. We deem this commentary authoritative. See United States
v. Rivera-Berríos, 902 F.3d 20, 24-25 (1st Cir. 2018).
Accordingly, we hold today — as we have held in past cases, see,
e.g., United States v. Ilarraza, 963 F.3d 1, 14 (1st Cir. 2020);
Ventura, 353 F.3d at 90 — that for sentencing purposes, there can
be more than one leader or organizer of criminal activities. This
is such a case.
- 21 - 3
To say more would be to paint the lily. Having carefully
reviewed the defendant's claims of procedural error, we discern
none.
III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 22 -