United States v. Santana-Melendez

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 2021
• Docket: 18-2175P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 18-2175, 18-2179, 18-2189, 18-2195

UNITED STATES OF AMERICA,

Appellee,

v.

ROLANDO MILLÁN-MACHUCA, a/k/a Rolo; ROBERTO CASADO-BERRÍOS, a/k/a Bobe, a/k/a Bobel; MIGUEL RIVERA-CALCAÑO, a/k/a Guelo, a/k/a Kikirimiau; GIORDANO SANTANA-MELÉNDEZ, a/k/a Viejo Ten,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Timothy S. Hillman, U.S. District Judge*]

Before

Lynch, Selya, and Lipez, Circuit Judges.

Lydia Lizarribar-Masini for appellant Rolando Millán-Machuca. Jason González-Delgado for appellant Roberto Casado-Berríos. Maria Soledad Ramirez-Becerra, with whom Maria Soledad Ramirez-Becerra Law Office was on brief, for appellant Miguel Rivera-Calcaño. Anita Hill Adames, with whom Anita Hill Law Office was on brief, for appellant Giordano Santana-Meléndez. William A Glaser, Attorney, Appellate Section, Criminal Division, with whom W. Stephen Muldrow, United States Attorney,

* Of the District of Massachusetts, sitting by designation. Victor O. Acevedo-Hernández, Assistant United States Attorney, District of Puerto Rico, Brian A. Benczkowski, Assistant Attorney General, and John P. Cronan, Principal Deputy Assistant Attorney General, were on brief, for appellee.

March 10, 2021 LIPEZ, Circuit Judge. Appellants Rolando Millán-

Machuca, Roberto Casado-Berríos, Miguel Rivera-Calcaño, and

Giordano Santana-Meléndez were leaders of La Asociación ÑETA, a

Puerto Rico prison organization that distributed large quantities

of controlled substances and other contraband throughout several

Puerto Rico correctional facilities. The organization also

carried out killings, including the murder of inmate Alexis

Rodríguez-Rodríguez. The four appellants were charged with

racketeering and drug trafficking conspiracies; Millán-Machuca was

also charged with murder in aid of racketeering. After an eight-

day jury trial, appellants were convicted on all counts.

On appeal, the four appellants challenge the sufficiency

of the evidence for their convictions. Millán-Machuca and Rivera-

Calcaño seek a new trial, claiming errors in the admission of

certain evidence. Millán-Machuca, Casado-Berríos, and Rivera-

Calcaño challenge the reasonableness of their sentences. We find

these claims meritless and affirm. Additionally, Rivera-Calcaño

claims ineffective assistance of counsel at his sentencing

hearing, a claim we do not address on the merits. Instead, we

dismiss this claim without prejudice.

I.

Our overview of the facts is primarily drawn from the

testimony of the government's witnesses at trial. Because

- 3 - appellants appeal, in part, on insufficiency of the evidence

grounds, we recount the facts in the light most favorable to the

prosecution. See United States v. Vázquez-Soto, 939 F.3d 365,

368-69 (1st Cir. 2019).

A. La Asociación ÑETA

In the 1980s, a group of inmates incarcerated in Puerto

Rico prisons formed La Asociación ÑETA ("ÑETA"), an organization

with the stated purpose of advocating against abuse and injustice

within the prison system. The organization's name stands for "new

birth and new beginning." During its decades-long history, this

prisoners' rights group evolved into a prison gang running a

sophisticated and highly profitable drug and contraband smuggling

scheme.

ÑETA functioned through a strict hierarchical structure.

Longtime members who were present at the organization's founding

were known as "pillars." These individuals occupied a unique

position of respect. They did not manage ÑETA's day-to-day

operations, but they were consulted for advice and had authority

to replace leaders with whom they disagreed. The primary leaders

of the organization were known as the "maximum leadership." The

"maximum leadership" included two leaders ("Leader 1" and "Leader

2"), two advisors ("Advisor 1" and "Advisor 2"), a secretary, a

coordinator, and a treasurer. The next rung in the organizational

- 4 - ladder was the leadership of each correctional facility or

"chapter." ÑETA had chapters in several Puerto Rico prisons,

including the facilities at Ponce, Bayamón, Guayama, and Zarzal.

Each chapter had two chapter leaders, two advisors, a secretary,

a coordinator, and a treasurer. Below the chapter leaders were

the "floor leaders," who directly supervised the drug trafficking

operation, and "missionaries," who carried out orders from the

leadership.

ÑETA members were required to follow a set of rules. A

new prisoner could not become a member if he had committed certain

crimes, such as child abuse or rape. There could be "no stealing"

and "[n]o causing trouble." They were told "[do n]ot look at your

fellow inmate's visitors," and "[d]o not abuse the weak." Members

were expected to obey leaders or face punishment, including

exclusion from the organization or a "beatdown." Failure to obey

an order from the maximum leadership was punishable by death.

New members of the organization learned ÑETA rules at

"seminars," where longtime members explained the ÑETA

organization's history and ideals. One ÑETA rule required

"[r]espect [for] the shout of the 30th," a reference to a meeting

on the 30th day of each month to give a "battle cry" in honor of

ÑETA's founder, who had been killed by a rival prison gang. ÑETA

had its own hand signal (placing the middle finger on top of the

- 5 - index finger) and used the colors blue and white as a sign of

membership.

ÑETA trafficked cocaine, heroin, and marijuana into the

Puerto Rico prisons through two primary means. First, some drugs

were smuggled in by prison visitors, correctional officers, or

civilian employees. These drugs were typically concealed in body

cavities. Other drugs arrived by "pitch-ins" -- packages that

accomplices on the outside literally "pitched" over the prison

walls. ÑETA members would then retrieve the drugs from the prison

yards and sell the smuggled substances to other inmates. The

monetary transactions were handled by individuals outside of the

prison, who sent funds by Western Union or MoneyGram transfers to

bank accounts controlled by the leaders of ÑETA. For large

transactions in excess of $10,000, outside contacts met in person

and exchanged cash.

In addition to the drugs controlled directly by the

leadership, some members brought in "personal drugs" from their

own sources, which they could use and sell outside of the ÑETA

organization's operations if they paid a fee to the organization.

This payment, known as an "incentive," was $1,200 for 62 grams of

heroin, $500 for 62 grams of cocaine, and $400 for a pound of

marijuana. ÑETA also smuggled cell phones and charged a monthly

- 6 - incentive of $20 to $25 to each inmate in possession of a cell

phone.

Through civilian smuggling and "pitch-ins," ÑETA

trafficked large quantities of controlled substances and other

contraband at enormous profit. At the prison in Ponce, ÑETA

members introduced about 1.5 kilograms of heroin, one kilogram of

cocaine, and 15 to 20 pounds of marijuana each month. In Bayamón,

they smuggled in about two kilograms of heroin, 1.5 kilograms of

cocaine, and 30 to 35 pounds of marijuana each month. In Guayama,

they moved an additional 2.5 kilograms of heroin, 1.5 kilograms of

cocaine, and 10 to 15 pounds of marijuana each month. Remarkably,

the organization generated six to twelve million dollars in revenue

a year, derived both from the organization's own drug distribution

and incentives payments.

B. The Appellants

Each of the appellants was an inmate in a Puerto Rico

correctional facility, and each held a high-ranking position in

ÑETA's leadership structure. Rolando Millán-Machuca (also known

as "Rolo") was the organization's third-in-command as Advisor 1 of

the maximum leadership. In this position, he "ha[d] to have

knowledge of everything," and "everything ha[d] to go through his

hands." He managed the distribution of drugs and was authorized

to "give orders to kill." In November 2014, he gave such an order,

- 7 - calling for the death of inmate Alexis Rodríguez-Rodríguez (also

known as "El Loco"). Following this order, a group of ÑETA members

murdered Rodríguez-Rodríguez by strangulation and a heroin

overdose. At the time of the relevant events, Millán-Machuca's

brother, Avelino Millán-Machuca (also known as "Papito"),1 was

Leader 1 of the maximum leadership, the top leader of the entire

organization.

Casado-Berríos (also known as "Bobe" or "Bobel") was a

chapter leader at the Ponce minimum security prison; later, after

he was transferred to the Zarzal prison, he became Papito's "right-

hand man," distributing drugs at both Ponce and Zarzal. The heroin

and cocaine he distributed with Papito in Zarzal were "personal"

drugs that he was permitted to distribute without paying an

incentive because of his high rank in the organization.

Rivera-Calcaño (also known as "Guelo" or "Kikirimiau")

held various positions in the ÑETA leadership: leader of the

"dialog[ue] committee" assigned to talk to the prison

administration about inmates' complaints; a chapter leader in a

facility at Bayamón; a chapter leader at a Ponce facility; the

leader responsible for "collecting the incentives for the drugs

1 We refer to Avelino Millán-Machuca by his commonly used nickname "Papito" to distinguish him from appellant Rolando Millán-Machuca.

- 8 - for the maximum leadership" at another facility in the Bayamón

complex; and "coordinator and secretary" at Zarzal.

Santana-Meléndez (also known as "Viejo Ten") was

recognized as a "pillar." In this position, he had the respect of

the maximum leadership and the power to replace any of them.

Maximum leadership ordered that he receive special privileges,

including a twice-daily "dosage" of heroin, and access to the

organization's cell phones, canned goods, or cigarettes without

paying.

C. Federal Criminal Proceedings

On May 9, 2016, fifty individuals, including the four

appellants, were charged in a multi-count indictment with

conspiracy to commit a pattern of racketeering, in violation of

18 U.S.C. § 1962(d), and conspiracy to traffic drugs, in violation

of 21 U.S.C. § 846. Millán-Machuca was charged with murder in aid

of racketeering in violation of 18 U.S.C. § 1959(a)(1). During an

eight-day jury trial in July 2018,2 correctional officers, police

officers, Federal Bureau of Investigation agents, and several

inmates testified to the appellants' involvement in these crimes

as leaders of ÑETA. Four ÑETA members testified for the

2A trial that initially began in September 2017 was interrupted by Hurricane Maria. The court declared a mistrial in June 2018 due to the jurors' lack of memory of the testimony and hardships that had arisen for some of the jurors.

- 9 - government: Alex Miguel Cruz-Santos, Miguel Álvarez-Medina, José

González-Gerena, and Osvaldo Torres-Santiago. The appellants did

not present any witnesses.

The jury convicted the four appellants of conspiracy to

commit racketeering and conspiracy with intent to distribute a

controlled substance. Millán-Machuca was also convicted of murder

in aid of racketeering. The district court entered judgment

against the appellants on November 15, 2018, and sentenced Millán-

Machuca to life imprisonment, Casado-Berríos to 180 months of

imprisonment, Rivera-Calcaño to 156 months of imprisonment, and

Santana-Meléndez to 136 months of imprisonment. Each defendant

filed a timely notice of appeal.

In evaluating the appeals, we divide our analysis into

three parts: the challenges to the sufficiency of the evidence to

support the convictions; the demand for a new trial on the basis

of the alleged improper admission of certain evidence; and,

finally, the challenges to sentencing.

II.

The appellants claim that there was insufficient

evidence to support convictions on one or more of the charges

against them. We review such challenges de novo, when, as is the

case here, the appellants preserved their claims below through

motions for acquittal under Rule 29. United States v. Santos-

- 10 - Soto, 799 F.3d 49, 56 (1st Cir. 2015). We draw all reasonable

inferences from the evidence in the light most favorable to the

prosecution. Id. at 56-57. Our inquiry focuses on "whether 'any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.'" United States v. Bailey,

405 F.3d 102, 111 (1st Cir. 2005) (quoting United States v.

Henderson, 320 F.3d 92, 102 (1st Cir. 2003)). As we have

previously commented, "[d]efendants challenging convictions for

insufficiency of evidence face an uphill battle on appeal." United

States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir. 2015)

(alteration in original) (quoting United States v. Pagán-Ferrer,

736 F.3d 573, 590 (1st Cir. 2013)); see also United States v.

Connolly, 341 F.3d 16, 22 (1st Cir. 2003) ("[W]e will reverse only

if the verdict is irrational.").

A. The Elements of the Charges

1. The RICO Conspiracy

All four appellants were convicted of Count One,

conspiracy to commit racketeering, in violation of the Racketeer

Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §

1962(d). RICO makes it a crime for "any person employed by or

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

- 11 - enterprise's affairs through a pattern of racketeering activity,"

or participate in a conspiracy to do so. Id. § 1962(c)-(d). The

"predominant" elements of a substantive subsection (c) RICO

offense are "(1) the conduct (2) of an enterprise (3) through a

pattern of racketeering activity." Salinas v. United States, 522

U.S. 52, 62 (1997).

An "enterprise" is defined as "any individual,

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity." 18 U.S.C. § 1961(4). The enterprise must be one

affecting interstate or foreign commerce, but it need only have a

de minimis effect on interstate or foreign commerce to demonstrate

the required nexus. United States v. Rodríguez-Torres, 939 F.3d

16, 27 (1st Cir. 2019), Rodriguez-Martinez v. United States, 140

S. Ct. 972 (2020), Sanchez-Mora v. United States, 140 S. Ct. 975

(2020), and Guerrero-Castro v. United States, 140 S. Ct. 2819

(2020).

A pattern of racketeering activity is defined as two or

more "racketeering acts" that were related, occur within ten years

of one another, and pose a threat of continued criminal activity.

See United States v. Chin, 965 F.3d 41, 47 (1st Cir. 2020).

"Racketeering acts" are specific crimes defined by federal law,

- 12 - including murder and offenses involving drug trafficking. See 18

U.S.C. § 1961(1)(A).

The appellants are charged with engaging in a RICO

conspiracy, rather than with a substantive RICO offense. See id.

§ 1962(d) ("It shall be unlawful for any person to conspire to

violate any of the provisions of subsection (a), (b), or (c) of

this section."). To prove a defendant's participation in a RICO

conspiracy, the government must prove that "the defendant knew

about and agreed to facilitate" a substantive RICO offense

consisting of the three elements we have described. United States

v. Leoner-Aguirre, 939 F.3d 310, 316 (1st Cir. 2019), cert. denied,

140 S. Ct. 820 (2020). In other words, "a RICO-conspiracy

conviction requires proof that the defendant knowingly joined the

conspiracy, agreeing with one or more coconspirators 'to further

[the] endeavor which, if completed, would satisfy all the elements

of a substantive [RICO] offense.'" Rodríguez-Torres, 939 F.3d at

23 (alteration in original) (quoting Salinas, 522 U.S. at 65).

The Supreme Court has ruled that a RICO conspiracy

conviction does not require the government to prove that the

defendant himself committed or agreed to commit two or more

racketeering acts. Salinas, 522 U.S. at 65. Instead, "the

government's burden, as to the 'pattern of racketeering activity'

requirement for a RICO conspiracy violation, is to prove that the

- 13 - defendant agreed that at least two acts of racketeering would be

committed in furtherance of the conspiracy."3 Leoner-Aguirre, 939

F.3d at 317. The government also need not prove that the

conspirators agreed to commit two different types of racketeering

activity. Rodríguez-Torres, 939 F.3d at 29. Two instances of the

same racketeering act meet the definition of a pattern of

racketeering activity. Id.

Here, the RICO conspiracy charged in the indictment

alleged that appellants conspired to "conduct . . . the affairs of

[the] enterprise through a pattern of racketeering activity

consisting of multiple offenses involving (1) drug trafficking,

including cocaine, heroin and marijuana . . . and multiple acts

involving: (2) murder." Thus, as the district court instructed

the jury, a defendant is guilty of the charged RICO conspiracy if

he "agreed to participate in the conduct of an enterprise with the

knowledge that some members would engage in at least two acts of

3 Three of the appellants (Millán-Machuca, Rivera-Calcaño, and Santana-Meléndez) cite United States v. Ramírez-Rivera, 800 F.3d 1 (1st Cir. 2015), in their briefing. As we have previously acknowledged, that opinion's statement that a RICO conspiracy conviction requires that a defendant agreed to commit, or in fact committed, two or more predicate offenses does not reflect the current law of this court. Leoner-Aguirre, 939 F.3d at 317 (discussing Ramírez-Rivera, 800 F.3d at 18). Ramírez-Rivera relied on United States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997), a case that was abrogated by Salinas.

- 14 - murder or at least two acts of drug trafficking, or both of them,

or any combination of them."

2. Drug Trafficking Conspiracy

The four appellants were also convicted of Count Two,

which charged a conspiracy to possess with intent to distribute

heroin, cocaine, and marijuana in violation of 21 U.S.C. § 846.

This charge required the government to prove (1) the existence of

a conspiracy to possess heroin, cocaine, and/or marijuana with the

intent to distribute it, and (2) that the defendant knowingly and

willfully joined in that conspiracy. See id. § 841(a).

3. Murder in Aid of Racketeering

As noted, Millán-Machuca was also convicted of Count

Four, which charged murder in aid of racketeering, in violation of

18 U.S.C. § 1959(a)(1). This offense consists of four elements:

(1) the existence of an enterprise engaged in interstate commerce;

(2) that enterprise engaged in "racketeering activity," (3) the

defendant committed a crime of violence, here murder, in violation

of Puerto Rico law, and (4) that crime of violence was committed

as "consideration for the receipt of, or as consideration for a

promise or agreement to pay, anything of pecuniary value from an

enterprise engaged in racketeering activity, or for the purpose of

gaining entrance to or maintaining or increasing position in an

enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a).

- 15 - B. Rolando Millán-Machuca

Millán-Machuca challenges the sufficiency of the

evidence as to all three of his counts of conviction: the

racketeering conspiracy, the drug trafficking conspiracy, and

murder in aid of racketeering. We begin our discussion with the

latter two convictions because, as we will explain in our review

of the RICO conspiracy conviction, the evidence establishing that

Millán-Machuca engaged in a drug conspiracy and a murder in aid of

racketeering also supports his RICO conspiracy conviction. The

three charges are closely intertwined: each stems from his role in

the ÑETA maximum leadership.

1. Drug Trafficking Conspiracy

Millán-Machuca claims that the drug distribution

attributed to ÑETA was managed solely by an individual ÑETA member,

Jose Folch-Colon, without involvement from Millán-Machuca

personally or ÑETA as an organization. Four ÑETA members testified

to the contrary, providing evidence that ÑETA and its leadership,

including Millán-Machuca, ran a large drug distribution operation.

The four cooperating witnesses each named Millán-Machuca

as Advisor 1 to the maximum leadership and stated that he played

a lead role in overseeing the organization's drug trafficking

operations. Alex Miguel Cruz-Santos testified that "Millán-

Machuca was in charge of [the personal drug fund]. His role is to

- 16 - supervise . . . what's occurring with the drug[s] and see if it's

been paid." Miguel Álvarez-Medina testified that Millán-Machuca

was involved in drug trafficking as a member of the maximum

leadership and previously as the leader at one of the Ponce

facilities. Jose González-Gerena testified that Millán-Machuca

gave orders as to "[w]hat comes in, what doesn't come into the

jail, the drugs." Osvaldo Torres-Santiago testified that Millán-

Machuca "was one of the persons in charge" and that "there was an

inmate who sold drugs that belonged to him."

In addition to this testimony, the government provided

evidence of recorded phone calls. Millán-Machuca was a participant

in a July 22, 2015 phone call in which ÑETA leaders spoke about

drug trafficking, including a discussion of "a train about to come

in," a reference to drugs, as well as "pitches," one of the primary

methods of smuggling drugs into the prison. Millán-Machuca can be

heard asking "the thing . . . hasn't it gotten in yet?," to which

another member responded, "ours is supposed to come in this week.

At least I have one train secured." On the call, Millán-Machuca

spoke about the status of "incentives," the payments made to allow

inmates to bring personal drugs into the prison. He also discussed

details about the roles of different leaders within the

organization. Millán-Machuca participated in another call on July

- 17 - 26, 2015, in which ÑETA leaders discussed a "substance sale" and

the payment of incentives.

Although Millán-Machuca acknowledges that witnesses

testified to his role in ÑETA's drug distribution operation, he

attempts to dismiss this testimony as mere "allegation[s]," an

argument that gets him nowhere. See, e.g., United States v.

Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (stating that

testimony of a cooperating accomplice can be sufficient to sustain

a conviction, even if uncorroborated). The witness testimony,

along with the recorded phone calls, provided more than enough

evidence to allow the jury to find Millán-Machuca guilty of a drug

distribution conspiracy in concert with ÑETA.

2. Murder in Aid of Racketeering

To establish the basis for any RICO or Violent Crime in

Aid of Racketeering ("VICAR") conviction, the government must

establish the existence of an enterprise engaged in interstate

commerce and racketeering activity. United States v. Nascimento,

491 F.3d 25, 31-32 (1st Cir. 2007) (applying a single analysis to

the sufficiency of proof for these elements to a RICO and a VICAR

offense). Millán-Machuca argues that the government did not

present sufficient evidence to prove that ÑETA was an "enterprise"

pursuant to RICO, a claim which would similarly undermine his VICAR

conviction. See id. ÑETA clearly constituted a "group of

- 18 - individuals associated in fact although not a legal entity," thus

meeting the basic definition of an "enterprise" within the meaning

of RICO and VICAR. See 18 U.S.C. §§ 1959(b)(2), 1961(4).

Millán-Machuca asserts that ÑETA was not a criminal

enterprise, but, rather, a lawful inmates' rights advocacy group

that included some members who sold drugs. There was more than

enough evidence for a reasonable jury to reject the premise that

it was a lawful group that happened to include some members who

sold drugs. Furthermore, nothing in the statutory definition of

enterprise requires that the enterprise be defined solely by a

criminal purpose. Indeed, the Supreme Court has recognized that

RICO, and, thus, also VICAR, extends to "both legitimate and

illegitimate enterprises." United States v. Turkette, 452 U.S.

576, 580-81 (1981).4 As we have noted, we analyze VICAR enterprises

under the same standard as RICO enterprises. See Nascimento, 491

F.3d at 32.

After establishing the enterprise, the government was

required to prove that Millán-Machuca committed a murder in

4 Millán-Machuca also challenges another element required for both RICO and VICAR offenses: a nexus between the enterprise and interstate commerce. The market for illegal drugs constitutes commerce over which the United States had jurisdiction. Taylor v. United States, 136 S. Ct. 2074, 2081 (2016). Also, Officer Eddie Vidal-Gil testified that cocaine and heroin are not produced in Puerto Rico. Vidal-Gil's testimony was enough to establish the slight effect on interstate commerce that is required for a RICO conviction. See Rodríguez-Torres, 939 F.3d at 27.

- 19 - violation of Puerto Rico law in aid of the enterprise. As a

preliminary matter, we reject appellant's claim that because

murder-for-hire is not an offense specifically criminalized by the

Puerto Rico Penal Code, it cannot serve as a predicate offense for

a murder in aid of racketeering conviction. The lack of a specific

murder-for-hire statute does not mean that murder-for-hire is not

prohibited by Puerto Rico law. Puerto Rico has a general murder

statute that prohibits the intentional killing of a person, P.R.

Laws Ann. tit. 33 § 4733 (2004), and that statute plainly applies

to the murder alleged here.

On the substantive issue, Millán-Machuca claims that the

murder was not authorized by ÑETA at all. Instead, it was a

conspiracy planned between two inmates, Folch-Colon and González-

Gerena, because of personal rivalries unrelated to ÑETA. This

claim ignores the ample evidence presented at trial, which tied

ÑETA and Millán-Machuca to the murder.

The primary witness against Millán-Machuca was González-

Gerena, the individual who led the attack on Rodríguez-Rodríguez

at Millán-Machuca's behest. He testified that Millán-Machuca gave

a direct order (referred to as a "directriz") to commit the murder.

Only top members of the maximum leadership had the power to give

such a directive; as a "missionary," González-Gerena was required

to comply or face death himself. He stated that Folch-Colon

- 20 - requested and paid for the murder. When he did not act

immediately, Millán-Machuca and Folch-Colon called him and "asked

[him] to give an explanation on why [he] hadn't done that yet."

González-Gerena described how he, along with three others

(including Torres-Santiago), committed the murder, first by

attempting to cause a heroin overdose. When that failed, they

strangled Rodríguez-Rodríguez with a sheet and then injected him

with heroin. González-Gerena stated that he and Millán-Machuca

were paid by Folch-Colon for committing the murder.

Torres-Santiago, another participant in the murder of

Rodríguez-Rodríguez, corroborated González-Gerena's testimony. He

testified that Millán-Machuca had approached him and asked him if

he wanted to kill Rodríguez-Rodríguez as retribution for the murder

of Torres-Santiago's brother, for which he believed Rodríguez-

Rodríguez was responsible. Torres-Santiago added that he had

learned from another inmate that Folch-Colon had "convinced the

maximum leadership, meaning Rolando [Millán-Machuca] to pay them

to kill Alexis 'El Loco' [Rodríguez-Rodríguez]." Folch-Colon then

paid both Millán-Machuca and González-Gerena for the murder.

Additionally, a third witness, Cruz-Santos, testified to multiple

conversations with other ÑETA leaders in which he was told that

Millán-Machuca ordered the killing of Rodríguez-Rodríguez. This

evidence demonstrates a murder-for-hire ordered by Millán-Machuca

- 21 - in his capacity as a leader of ÑETA, not a crime planned solely by

Folch-Colon and González-Gerena.

Taking another tack, Millán-Machuca argues that there

was no evidence that the murder was committed "for the purpose of

gaining entrance to or maintaining or increasing position in [the]

enterprise," as required by 18 U.S.C. § 1959(a). To meet the

elements of a murder in aid of racketeering conviction, the

government must show that the defendant acted with such a purpose,

and we have previously recognized that the statute does not require

that the government prove this was "the sole purpose." United

States v. Brandao, 539 F.3d 44, 56 (1st Cir. 2008). In the context

of a trial with hours of testimony about ÑETA and Millán-Machuca's

leadership role, the jury could rationally conclude that he acted,

at least in part, to strengthen and maintain his position in the

leadership. See, e.g., id. (stating that the "question of motive

under VICAR was for the jury to resolve" where there was evidence

of both personal and gang-related motivations).

3. RICO Conspiracy

We return to the RICO conspiracy. As we have noted,

this conviction required the government to prove that Millán-

Machuca "agreed to participate in the conduct of an enterprise

with the knowledge that some members would engage in at least two

acts of murder or at least two acts of drug trafficking, or both

- 22 - of them, or any combination of them." As we described in our

discussion of the evidence of the murder in aid of racketeering

offense, the government presented ample evidence that ÑETA was an

enterprise as defined by VICAR and RICO, and that Millán-Machuca

agreed to participate in that enterprise. And as we described in

our discussion of the evidence supporting both the drug conspiracy

and the murder in aid of racketeering charges, the government

presented overwhelming evidence that, in his role in the ÑETA

maximum leadership, Millán-Machuca participated in dozens of drug

offenses and a murder. This evidence far exceeds the evidence

required to show participation in a RICO conspiracy, which merely

requires that Millán-Machuca agreed to participate in ÑETA with

the knowledge that some members would engage in at least two acts

of drug trafficking and/or murder.5 Here, the evidence

demonstrated that Millán-Machuca participated in the predicate

acts himself. The jury supportably convicted Millán-Machuca of

all three charges.

5 Millán-Machuca also argues that the government did not prove a RICO conspiracy because it alleged three types of racketeering acts -- drug trafficking, murder, and bribery -- but failed to present evidence of bribery. The abandonment of the bribery claim has no bearing on the sufficiency of the evidence because a pattern of racketeering activity requires only two racketeering acts.

- 23 - C. Roberto Casado-Berríos

Casado-Berríos challenges the sufficiency of the

evidence as to his knowing and willful participation in the RICO

and drug trafficking conspiracies. He argues that the evidence

only shows that he associated with participants in the drug

trafficking conspiracy, not that he was a participant himself.

Such an association, without more, would not be enough to convict

on either charge. See, e.g., United States v. Gonzalez, 570 F.3d

16, 23 (1st Cir. 2009). But his claims of mere association are

contradicted by the record, which reveals that he was a participant

in the drug trafficking conspiracy and a leader who acted in

furtherance of ÑETA's goals.

Two ÑETA leaders who knew Casado-Berríos personally

testified to his leadership role in the drug trafficking operation.

The first, Cruz-Santos, stated that Casado-Berríos managed

personal drugs, specifically heroin, at the Zarzal facility. He

further testified that before Casado-Berríos was transferred to

Zarzal, he was a chapter leader at the Ponce minimum security

facility. The second, González-Gerena, also testified that

Casado-Berríos distributed drugs at Zarzal. He described Casado-

Berríos as the "right-hand man" of Papito, Leader 1 of the maximum

leadership. The two men controlled all drug trafficking at Zarzal.

González-Gerena explained, "[N]o drugs could go in there or no

- 24 - drugs could be sold because the drugs that were going through there

belonged to Papito and Bobe [Casado-Berríos]." Cruz-Santos also

stated that, on one occasion, Casado-Berríos had called him and

"ask[ed] him to get two-eighths [of drugs] to introduce it into

Zarzales."

Cruz-Santos's and González-Gerena's testimony was

corroborated by the testimony of two other ÑETA members who did

not know Casado-Berríos personally but knew of his role in the

organization from the remarks of others.6 Álvarez-Medina testified

that he had heard from other ÑETA members that Casado-Berríos

"managed" heroin "together with Papito Machuca [at the facility in

Zarzal]." He stated, "[I]n Zarzales7 the only drugs that are there

are from Papito and Bobe [Casado-Berríos]." Torres-Santiago

similarly testified that Casado-Berríos "was one of the only ones

that could sell drugs in Zarzales."

This testimony permitted a rational jury to conclude

that Casado-Berríos was an active and knowing participant in the

drug trafficking conspiracy. Furthermore, for the reasons we have

explained, this testimony would allow the jury to find that Casado-

The court admitted this testimony on the basis of the hearsay 6

exception for the statements of co-conspirators. See Fed. R. Evid. 801(d)(2)(E). The admission of testimony as statements of co- conspirators was not challenged on appeal. 7Witnesses refer to this particular Puerto Rico prison facility as both "Zarzal" and "Zarzales."

- 25 - Berríos knowingly participated in the conduct of the ÑETA

enterprise and that he agreed that he or his co-conspirators would

commit hundreds of drug offenses. As such, this evidence far

exceeds the showing required for a RICO conspiracy conviction.

D. Miguel Rivera-Calcaño

Rivera-Calcaño's argument follows the same logic as the

argument posed by Casado-Berríos: he merely associated with

members of the conspiracies rather than participating in them. As

was the case with our discussion of the sufficiency claim of

Casado-Berríos, we can address the sufficiency of the evidence of

participation in both conspiracies by recounting the evidence of

Rivera-Calcaño's participation and leadership in ÑETA's drug

trafficking scheme, a key part of the conduct of the RICO

enterprise.

The government's cooperating witnesses testified that

Rivera-Calcaño had far more than just an association with members

of the drug trafficking conspiracy. Álvarez-Medina, who was

incarcerated with Rivera-Calcaño several times and knew him

personally, testified that Rivera-Calcaño "was in different

roles." Although he was a leader of the dialogue committee, a

group of ÑETA members engaged in inmates' rights advocacy, he also

had leadership roles in the drug trafficking operation. He was a

chapter leader at Ponce 1000, where he "organized and got the jail

- 26 - in order to be able to do the [drug] transactions and take them

from module to module." When Rivera-Calcaño was transferred to

Bayamón 1072, he acted as Leader 2 of that facility. In that role,

"he would collect drugs, cigarettes or canned goods." At Bayamón

448, he "collect[ed] the incentives for the drugs."

González-Gerena testified that Rivera-Calcaño was the

"coordinator and secretary" at Zarzal. In that role, he called

chapter leaders to "check on . . . how are the finances, how are

the funds, talk to leadership of the population, what went in,

what didn't go in of the drugs, how many phones went in." He

passed this information on to Papito. Rivera-Calcaño also

coordinated meetings with the maximum leadership.

The witness testimony was corroborated by recorded phone

calls. On a July 25, 2015 call, Rivera-Calcaño spoke with members

of the maximum leadership about drug transactions. The call

included references to incentives, two bags paid for by a Western

Union money transfer, and a notebook where drug transactions were

recorded. He told another leader about an inmate who "st[ole] 10

lines of heroin and four of cocaine and three of those belonged to

the fund." On another call, Rivera-Calcaño discussed a "substance

sale" and someone who "tried to collect a false Western [Union

money transfer]." The witness testimony, corroborated by these

- 27 - phone calls, was more than enough evidence to sustain a conviction

for both the drug trafficking and RICO conspiracies.

E. Giordano Santana-Meléndez

In a familiar refrain, Santana-Meléndez claims that the

evidence presented at trial only proved his association with ÑETA,

and not his participation in the RICO conspiracy. Santana-Meléndez

argues that as a "pillar" he only had a symbolic, historical role

in ÑETA. Again, there was ample evidence to the contrary.

Each of the four cooperating witnesses testified that,

as a pillar, Santana-Meléndez was an active and influential leader

of the organization. Cruz-Santos testified that Santana-Meléndez

had the power to "take out" a maximum leader "if he saw anything

that was wrong," and could give orders to other ÑETA members,

including maximum leaders. González-Gerena similarly testified

that Santana-Meléndez had the power to remove a leader and could

do so "whenever he wanted." Álvarez-Medina testified that Santana-

Meléndez's "voice and his vote counted in the association," and

specifically with the maximum leadership. González-Gerena

testified that Santana-Meléndez was consulted regarding "[a]ny

problems that are in the state prisons that are serious."

González-Gerena had personally been present during such a

consultation. Torres-Santiago testified that Santana-Meléndez

"had the power to change any decision."

- 28 - The testimony also indicated that Santana-Meléndez

carried out his leadership role with knowledge of the group's

illegal activities, including drug trafficking and murder. As

three witnesses testified, he received compensation from the

organization's drug trafficking proceeds. Cruz-Santos explained

that Papito instructed him to take $200-300 from the funds gathered

through cell phone incentives and buy heroin to provide to Santana-

Meléndez in a twice-daily dosage. Papito told Cruz-Santos that

Santana-Meléndez "couldn't want for anything." Álvarez-Medina

testified that Santana-Meléndez was "paid with substances,

cellular phones, canned goods, [and] cigarettes." Torres-Santiago

testified that Santana-Meléndez was given a monthly "salary,"

which came from money belonging to ÑETA, earned by "[s]elling

drugs, selling heroin, marijuana, cocaine, selling phones, and

also the money earned for contract killings." Given Santana-

Meléndez's well-established leadership role, a jury could

rationally conclude that he received these benefits because of his

active participation in the affairs of the organization.

The government also presented evidence that Santana-

Meléndez not only knew about the murder of Rodríguez-Rodríguez,

but counseled the murderer afterwards. González-Gerena testified

that after he committed the murder, he informed Santana-Meléndez

about what he had done. Santana-Meléndez responded by telling him

- 29 - "to be calm" because the order came from Millán-Machuca. This

testimony, combined with the evidence that Santana-Meléndez had

power and influence to control the activities of the organization,

would allow the jury to reasonably infer that Santana-Meléndez had

knowledge that ÑETA was engaged in murder.

Santana-Meléndez argues that all of this evidence was

insufficient to prove that he personally agreed to commit or

committed two racketeering acts. As we have already explained,

his argument is premised on a misunderstanding of the law, which

merely requires that the government prove that "the defendant

agreed that at least two acts of racketeering would be committed

in furtherance of the conspiracy." Leoner-Aguirre, 939 F.3d at

317; see also Salinas, 522 U.S. at 65. Santana-Meléndez is

improperly faulting the government for failing to prove his

personal agreement to participate in predicate acts of the

conspiracy -- proof that is not required. The copious evidence of

Santana-Meléndez's leadership role in ÑETA demonstrates his

agreement to participate in the ÑETA enterprise with the knowledge

that some members would engage in many acts of drug trafficking.

The record also would allow the jury to conclude that he acted in

furtherance of the enterprise with knowledge that co-conspirators

committed an act of murder. This evidence supports both the drug

trafficking and RICO conspiracy convictions.

- 30 - III.

Millán-Machuca and Rivera-Calcaño seek a new trial,

claiming the improper admission of certain evidence. Such claims

are evaluated for abuse of discretion when, as is the case here,

the appellant objected to the evidence at trial. See United States

v. Walker, 665 F.3d 212, 228 (1st Cir. 2011).

A. Millán-Machuca

At trial, the judge permitted government witness Torres-

Santiago to testify, over Millán-Machuca's objection, that Millán-

Machuca had told him about three prior murders he had committed in

prison. The testimony included the gruesome detail that Millán-

Machuca "tore the heart out of the inmate and started playing with

the heart as if it was a ball." Appellant argues that all of this

evidence was inadmissible under Federal Rule of Evidence 404(b) as

prior bad act evidence intended to show a propensity to commit

murder and inadmissible under Rule 403 as unduly prejudicial.

Federal Rule of Evidence 404(b)(1) prohibits the use of

evidence of a prior bad act "to prove a person's character in order

to show that on a particular occasion the person acted in

accordance with the character." But such evidence is permitted

"for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident." Fed. R. Evid. 404(b)(2). Torres-Santiago's

- 31 - testimony about Millán-Machuca's prior murders was permitted by

this exception. The fact that Millán-Machuca brazenly bragged

about committing multiple acts of murder to a lower-level ÑETA

member shows that he was a powerful and feared leader of the

organization. He used intimidation tactics to maintain his

position and to ensure compliance with his orders. Such evidence

bolsters the inference that Millán-Machuca ordered the murder of

Rodríguez-Rodríguez "for the purpose of . . . maintaining . . .

[his] position in an enterprise engaged in racketeering activity"

under the VICAR count. 18 U.S.C. § 1959(a).

As noted, Federal Rule of Evidence 403 allows the trial

court to exclude relevant evidence if "its probative value is

substantially outweighed" by, inter alia, "unfair prejudice." The

term "unfair prejudice" usually refers to "evidence that invites

the jury to render a verdict on an improper emotional basis."

United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000);

see also Old Chief v. United States, 519 U.S. 172, 180 (1997) ("The

term 'unfair prejudice,' as to a criminal defendant, speaks to the

capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged."). Appellate courts "afford[]

considerable deference to a district court's balancing act" under

Rule 403. United States v. Guzmán-Montañez, 756 F.3d 1, 7 (1st

- 32 - Cir. 2014); see also United States v. Raymond, 697 F.3d 32, 38

(1st Cir. 2012) (stating that the Rule 403 balancing test is "best

performed by the trial judge, who has an intimate familiarity with

the ebb and flow of the case and with its nuances").

Millán-Machuca argues unfair prejudice because the

government offered no prison records or other proof indicating

that any of the murders actually occurred, and there was no

information about the date of the murders, the identity of the

victims, or the motivations behind the killings. In his view, the

absence of this information substantially reduced the probative

value of the evidence of the prior murders. If so, the district

court correctly ruled that these omissions could be addressed

through cross-examination and did not require exclusion of the

evidence.

The admission of the gruesome detail that Millán-Machuca

"tore the heart out of the inmate and they started playing with

the heart as if it was a ball" presents a closer question. See,

e.g., Varoudakis, 233 F.3d at 122 (advising "cautio[n] where the

prior act is a 'shocking or heinous crime likely to inflame the

jury'" (quoting United States v. Moccia, 681 F.2d 61, 64 (1st Cir.

1982))); United States v. Gilbert, 229 F.3d 15, 24-25 (1st Cir.

2000) (affirming exclusion of evidence under Rule 403 that the

defendant had previously attempted to murder her husband in part

- 33 - because that prior act evidence was "particularly inflammatory"

and "undeniably explosive").

We need not decide this close question because if there

was any error, it was harmless in the context of the totality of

the evidence. See United States v. Arias-Montoya, 967 F.2d 708,

714 (1st Cir. 1992). As detailed above, there was overwhelming

evidence of Millán-Machuca's guilt. Four witnesses testified

consistently that he was Advisor 1 of the ÑETA maximum leadership,

and that he oversaw drug trafficking. That testimony was

corroborated by recorded phone calls in which Millán-Machuca can

be heard discussing drug distribution. The two witnesses who

participated in the murder of Rodríguez-Rodríguez testified that

they did so on Millán-Machuca's orders, and a third witness

corroborated this claim. There is no reasonable probability that

the jury verdict was influenced by this one detail in the

defendant's account of his prior murders. See United States v.

Hicks, 575 F.3d 130, 143 (1st Cir. 2009) ("[A]n error is harmless

if it is 'highly probable that the error did not influence the

verdict.'" (quoting United States v. Roberson, 459 F.3d 39, 49

(1st Cir. 2006))).

- 34 - B. Rivera-Calcaño

1. Controlled Substances

The court admitted into evidence cocaine, heroin, and

marijuana seized at the Ponce, Bayamón, and Zarzal prisons.8

Rivera-Calcaño argues that these drugs were irrelevant because

there was no connection established between ÑETA and the drugs.

To the contrary, the testimony of the correctional officers who

found the drugs showed probable ties to ÑETA. The cocaine was

discovered at Ponce in an "area [that] was being worked by ÑETA

inmates who were in charge of the cleaning of the complex." The

heroin at Ponce was found in a box with the nicknames of ÑETA

members written on it. The marijuana at Bayamón was recovered in

a housing unit designated for ÑETA members. The marijuana at

Zarzal was found in a perimeter area where ÑETA inmates were known

to receive "pitch-ins" of drugs thrown over the fence. Thus, the

drugs themselves were relevant proof of the racketeering and drug

trafficking conspiracies at hand.9

8 In his opening brief, Rivera-Calcaño objects to the admission of photos of drugs. The government's response clarifies that the drugs themselves were admitted into evidence, not photos of the drugs. In his reply, Rivera-Calcaño acknowledges that the evidence admitted was the substances themselves. 9Rivera-Calcaño further asserts unpersuasively that the drugs should have been excluded from evidence as unfairly prejudicial. There was nothing inflammatory about the drug evidence.

- 35 - 2. Summary Chart

The district court permitted the government to display

to the jury during closing argument a chart summarizing the amounts

of drugs ÑETA trafficked. Although the government's chart

initially included four pages, the court excluded the last page

after reviewing the testimony. The court gave a detailed

instruction regarding the chart, stating:

[The prosecutor] is going to use [summary charts] in an effort to help explain the facts and the evidence in the light that he sees it in. These charts are not evidence, and if they don't correctly reflect what you think the evidence is, then you should not accept them. However, we do allow them as an aide in helping you understand the evidence, if you choose.

Rivera-Calcaño objects to the purported admission of the summary

chart evidence, but the chart was not admitted into evidence. As

the judge clearly instructed the jury, the summary chart was not

evidence. It was simply used appropriately by the prosecution in

closing argument to present "information already in evidence."

United States v. Young, 955 F.2d 99, 109 (1st Cir. 1992). Finally,

Rivera-Calcaño claims the chart did not correctly summarize the

evidence, yet he points to no examples of error.

IV.

Three of the appellants, Millán-Machuca, Casado-Berríos,

and Rivera-Calcaño, challenge the procedural and substantive

- 36 - reasonableness of their sentences. Our review is bifurcated. We

first consider procedural reasonableness before turning to

substantive reasonableness. United States v. Arsenault, 833 F.3d

24, 28 (1st Cir. 2016). We review the district court's findings

of fact for clear error and consider its interpretation of the

sentencing guidelines de novo. United States v. Flores-Machicote,

706 F.3d 16, 20 (1st Cir. 2013).

A sentence is procedurally unreasonable if the court

committed a procedural error "such as failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] §

3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence." Gall

v. United States, 552 U.S. 38, 51 (2007). A sentence is

substantively unreasonable only if it lacks "a plausible

sentencing rationale" or "a defensible result." United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008).

We review unpreserved challenges to the procedural

reasonableness of a sentence under the plain error standard.

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). To

prevail under plain error review, an appellant must demonstrate:

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

- 37 - but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Id.

Millán-Machuca claims that the court committed a

procedural error by treating the murder of Rodríguez-Rodríguez as

first-degree murder. He did not preserve an objection to the

procedural reasonableness of his sentence and thus, as he concedes,

this claim is subject to plain error review.

The court calculated Millán-Machuca's guideline

sentencing range using the racketeering guideline under the United

States Sentencing Guidelines ("USSG"), which instructs the court

to apply "the offense level applicable to the underlying

racketeering activity." See USSG § 2E1.1(a)(2); see also USSG §§

3D1.2-3D1.3 (instructing courts to generally group similar counts

together and apply the offense level applicable to the most serious

count). The "underlying racketeering activity" at issue was the

murder of Rodríguez-Rodríguez. Thus, the court applied the first-

degree murder base offense level of 43. USSG § 2A1.1(a).

Millán-Machuca argues that, pursuant to the Puerto Rico

Penal Code, the murder-for-hire offense underlying his VICAR

conviction qualified only as second-degree murder, not first-

degree murder. See P.R. Laws Ann. tit. 33, § 4734(a) (2004). The

distinction between first- and second-degree murder is significant

- 38 - in sentencing because it alters the USSG calculation.10 Millán-

Machuca raised a similar argument in an attempt to negate his

murder in aid of racketeering conviction altogether. See supra

Section II.B(2). As we explained above, the murder of Rodríguez-

Rodríguez was undoubtedly premeditated, and thus qualifies as

first-degree murder under Puerto Rico law. See id.; P.R. Laws

Ann. tit. 33, § 4734 (2004).

Moreover, Millán-Machuca's emphasis on Puerto Rico law

is misplaced. The Guidelines require the court to apply "the

offense level corresponding to the most analogous federal

offense." USSG § 2E1.1(a)(2) cmt. n.2 (emphasis added). The most

analogous federal offense is murder within the special maritime

and territorial jurisdiction of the United States, in violation of

18 U.S.C. § 1111(a). Section 1111(a) states that any "willful,

deliberate, malicious, and premeditated killing . . . is murder in

the first degree." 18 U.S.C. § 1111(a). There can be no doubt

that the murder of Rodríguez-Rodríguez fits this description.

Millán-Machuca also briefly claims that his sentence is

substantively unreasonable. He merely states, "There is no

'plausible explanation' to support the sentence." Millán-Machuca

10 The USSG first-degree murder guideline "applies in cases of premeditated killing," and carries a base offense level of 43. USSG § 2A1.1 cmt. n.1. The second-degree murder guideline applies to all other murders and carries a base offense level of 38. Id. § 2A1.2.

- 39 - was sentenced to three concurrent life imprisonment terms. On

each of his three offenses, the guideline range included life

imprisonment. A finding that a sentence was substantively

unreasonable is "particularly unlikely when . . . the sentence

imposed fits within the compass of a properly calculated

[guidelines sentencing range]." United States v. Reyes-Gomez, 927

F.3d 9, 12 (1st Cir. 2019) (alterations in original) (quoting

United States v. Ruiz-Huertas, 792 F.3d 223, 228-29 (1st Cir.

2015)). Moreover, Millán-Machuca's conviction for murder in aid

of racketeering carries a mandatory life sentence. 18 U.S.C. §

1959(a)(1). There is nothing unreasonable about imposing the

sentence required by law.

B. Casado-Berríos

Casado-Berríos claims that the district court committed

procedural errors in his sentencing by adding a leadership role

enhancement and by failing to make a specific drug quantity

finding. He asserts, incorrectly, that he preserved these two

objections for review. As evidence of his objections, he points

to two pages in his sentencing memorandum and two pages in the

sentencing transcript. Neither contains any objection to either

the leadership role enhancement or the drug quantity

determination. At the sentencing hearing, Casado-Berríos

disclaimed any objection. When asked if he agreed with the Pre-

- 40 - Sentence Report's ("PSR") guidelines calculations, defense counsel

replied, "[W]e have our reserv[ations] regarding the adjustment of

role in the offense, but taking into consideration that there might

be some evidence that would support it, we did not formally object

to it with the probation officer." This vague statement does not

preserve an issue for review. Instead, it shows that Casado-

Berríos declined to make an objection. Thus, his two claims are

subject to plain error review.

Casado-Berríos argues that the court erred in adopting

the PSR's four-level increase for his leadership role in the

offense. The USSG requires a four-level increase to the base

offense level "[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was

otherwise extensive." USSG § 3B1.1(a). A three-level increase

applies "[i]f the defendant was a manager or supervisor (but not

an organizer or leader)" of the same kind of activity. Id. §

3B1.1(b). In deciding whether one of these two subsections applies

to a defendant, the Sentencing Commission instructs courts to

consider factors including, but not limited to,

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal

- 41 - activity, and the degree of control and authority exercised over others.

Id. § 3B1.1 cmt. n.4; see also United States v. Aguasvivas-

Castillo, 668 F.3d 7, 15 (1st Cir. 2012) (describing this list of

factors as "non-exhaustive").

The court did not err in applying the four-level

leadership adjustment. The conspiracy at issue here clearly

involved more than five participants. It is also clear from the

witness testimony that Casado-Berríos acted as a leader. He was

described as a chapter leader, a "right-hand man" to Papito, and

a manager of heroin distribution. There was testimony that Casado-

Berríos benefited from his leadership role because he was allowed

to "manage [his] own personal drugs, and not even pay an

incentive." The district court had an ample basis for finding

that Casado-Berríos was a leader, rather than a manager or

supervisor, or a lower-level participant.11

The guideline sentencing ranges for controlled substance

offenses are determined primarily by the drug quantity for which

the defendant is responsible. A base offense level is assigned in

Even if the court applied the three-level manager or 11

supervisor enhancement, rather than the four-level leader or organizer enhancement, the guidelines calculation would be the same. Casado-Berríos's offense level amounted to 44, which the USSG treats as an effective offense level of 43. USSG § 5A cmt. n.2. An increase of three levels rather than four would not have changed the effective offense level.

- 42 - accordance with a chart that states drug quantity thresholds which

trigger different base offense levels. USSG §

2Dl.l(a)(5)(c). Casado-Berríos was assigned a base offense level

of 38, which applies to controlled substance offenses involving a

quantity equal to or exceeding, inter alia, 90 kilograms of heroin,

450 kilograms of cocaine, 90,000 kilograms of marijuana, or 90,000

kilograms of "converted drug weight."12 Id. § 2Dl.l(c)(1).

In cases involving a drug trafficking conspiracy, the

sentencing court must "make an individualized finding as to drug

amounts attributable to, or foreseeable by, th[e] defendant."

United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004).

The court makes that finding based on a preponderance of the

evidence standard. United States v. Vázquez-Larrauri, 778 F.3d

276, 291 (1st Cir. 2015). The court may consider "all acts and

omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant; and [] in

the case of a jointly undertaken criminal activity . . . all acts

and omissions of others that were . . . reasonably foreseeable in

connection with that criminal activity." USSG § 1B1.3(a)(1). The

12 Converted drug weight, previously known as marijuana equivalency, relies on a chart converting quantities of controlled substances into a standard measurement, such that a sentencing court may "convert each of the drugs to its converted drug weight, add the quantities, and look up the total in the Drug Quantity Table to obtain the combined offense level." USSG § 2Dl.l cmt. n.8(B).

- 43 - court may not "automatically" apply the drug quantity attributable

to the conspiracy as a whole to one individual defendant. Colón-

Solís, 354 F.3d at 103.

The evidence before the district court at sentencing

demonstrated that Casado-Berríos was individually responsible for

472,495.63 kilograms of converted drug weight, the full quantity

of drugs attributed to the conspiracy. Based on the testimony of

González-Gerena, the probation officer calculated that ÑETA sold

252 kilograms of cocaine, 420 kilograms of heroin, and 4,620 pounds

of marijuana in three prisons over the course of the conspiracy.

This quantity converts to 472,495.63 kilograms of converted drug

weight, an amount exceeding the 90,000 kilogram threshold for a

base offense level of 38. USSG § 2D1.1(c)(1). As we have just

described, Casado-Berríos was a high-level leader in ÑETA. He was

an active participant in and supervisor of large-scale drug

trafficking. While it is not appropriate to automatically assign

the quantity trafficked by a conspiracy to an individual

participant, it was reasonable under these circumstances to

attribute the full 472,495.63 kilograms of converted drug weight

to Casado-Berríos. Such a finding follows inexorably from the

conclusion that he was a high-level leader of the conspiracy.13

The district court did not state explicitly that it was 13

holding Casado-Berríos responsible for the entirety of the drugs distributed by ÑETA during the period of the conspiracy. Given

- 44 - C. Rivera-Calcaño

1. Ineffective Assistance of Counsel

Rivera-Calcaño claims that he was denied his Sixth

Amendment right to counsel at his sentencing hearing. He cites

counsel's failure to meet with him before the hearing and counsel's

lack of preparation for sentencing. At the hearing, defense

counsel stated that his communication with his client had broken

down, and he would be providing ineffective assistance if the court

went through with the sentencing hearing without either assigning

new counsel or granting a continuance. After some probing by the

court, it concluded that defense counsel was adequately prepared,

and proceeded with the hearing.

It is our usual practice to dismiss ineffective

assistance claims on direct appeal, preferring that those claims

be heard on collateral review. United States v. Brown, 945 F.3d

597, 605 (1st Cir. 2019). We decide ineffective assistance claims

on direct appeal only "[i]n the exceptional case . . . where the

record is sufficiently developed, and critical facts are not in

that our circuit precedents emphasize that the sentencing court should state the specific drug quantities attributable to the members of a drug trafficking conspiracy, see United States v. Escobar-Figueroa, 454 F.3d 40, 53 (1st Cir. 2006) (citing Colón- Solís, 354 F.3d at 103), it would have been a better practice for the court to state its finding explicitly. But that finding is unmistakable in the court's explanation of its sentencing decision.

- 45 - dispute." United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir.

2008).

Rivera-Calcaño does not present such an exceptional

case. While the question of ineffective assistance of counsel was

raised at the sentencing hearing, there was no formal motion and

the district court did not develop the record. The significance

of the communication breakdown and the adequacy of counsel's

preparation for the sentencing hearing are questions of fact best

addressed by the district court. See, e.g., United States v.

Moran, 393 F.3d 1, 10-11 (1st Cir. 2004). Thus, we dismiss Rivera-

Calcaño's ineffective assistance of counsel claim without

prejudice to renewal in a habeas petition.

2. Reasonableness of the Sentence

Rivera-Calcaño challenges his sentence as procedurally

unreasonable because of the same leadership enhancement

determination challenged by Casado-Berríos. He also claims that

the district court should have decreased his criminal history

category because of the nonviolent nature of his crimes. He

further challenges his sentence as substantively unreasonable.

Rivera-Calcaño objected to the four-level increase for

a leader or organizer role at his sentencing hearing, and thus we

review for clear error. Although he argues that he was a leader

in ÑETA's prisoners' rights advocacy, but not in the drug

- 46 - trafficking or any other illegal operations, there was substantial

evidence that he played a leadership role in the drug trafficking

operation. He was a chapter leader at Ponce, "Leader 2" at

Bayamón, and the "coordinator and secretary" for the maximum

leadership. In those roles, he collected incentives for the

maximum leadership and supervised the finances of other chapters.

The district court did not commit clear error in concluding from

that evidence that he was a leader or organizer.14

Rivera-Calcaño also challenges the district court's

finding that his criminal history placed him in Criminal History

Category ("CHC") IV. He claims that a CHC of IV overrepresents

his criminal history, which was nonviolent and driven by drug

addiction. The USSG authorizes a downward departure from the

applicable CHC "[i]f reliable information indicates that the

defendant's criminal history category substantially overrepresents

the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit other crimes." USSG §

4A1.3(b)(1).

Contrary to Rivera-Calcaño's argument, the court did

consider the nonviolent nature of his criminal history and his

drug addiction when deciding his sentence. The court explicitly

As was the case with Casado-Berríos, a finding that Rivera- 14

Calcaño was a manager or supervisor, rather than a leader or organizer, would not change his guideline sentencing range.

- 47 - acknowledged that "his prior criminal history . . . does not

include violent behavior" and his "offenses are clearly linked to

his drug dependence." On this basis, the court granted a

substantial downward variance, from the USSG recommendation of

life imprisonment to a sentence of 156 months. Moreover, the CHC

reduction Rivera-Calcaño claims he is entitled to would not have

affected his guidelines range. His offense level was 43. At that

level, the recommended sentence is life regardless of the CHC.

See USSG § 5A (sentencing table). It was both within the court's

discretion, and to Rivera-Calcaño's benefit, to address the

mitigating factors through a downward variance in the ultimate

sentence rather than a decreased criminal history categorization.

For similar reasons, the sentence was not substantively

unreasonable. The sentence reflects a significant downward

variance, considering Rivera-Calcaño's history and circumstances.

We rarely find a below-guidelines sentence to be substantively

unreasonable. See, e.g., United States v. King, 741 F.3d 305, 310

(1st Cir. 2014). This occasion is not that rare instance. Rivera-

Calcaño only argues that the sentence is "greater than necessary

for . . . a longtime prisoner addicted to heroin who had

continuously served more than 30 years in prison for the non-

violent crimes resulting from his addiction." Again, the court

took those factors into account in making a downward variance. It

- 48 - was not an abuse of discretion for the court to decide that a 156-

month sentence was necessary.

Affirmed. Rivera-Calcaño's claim for ineffective

assistance of counsel is dismissed without prejudice.

- 49 -