United States Court of Appeals For the First Circuit
No. 18-1897
UNITED STATES OF AMERICA,
Appellee,
v.
ORISTEL SOTO-PEGUERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Thompson, Kayatta, and Barron, Circuit Judges.
Jane Elizabeth Lee for appellant. Theodore B. Heinrich, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
October 19, 2020 BARRON, Circuit Judge. In April 2018, Oristel Soto-
Peguero was convicted in the District of Massachusetts on three
counts related to distribution of heroin in violation of 21 U.S.C.
§ 841(a)(1) and § 846 and one count of discharging a firearm in
furtherance of a drug crime in violation of 18 U.S.C. § 924(c).
The District Court sentenced him to twenty-two years in prison.
Soto-Peguero now argues on appeal that the District Court erred in
denying his motion to suppress certain evidence at trial. He also
asserts that the District Court should not have concluded that he
was eligible for a two-level role enhancement under the United
States Sentencing Guidelines. He thus asks us to vacate his
convictions and resulting sentence. We affirm.
I.
We begin by summarizing the facts in the record, viewing
them in the light most favorable to the suppression ruling. See
United States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014). In
January 2015, a Task Force consisting of agents from the federal
Drug Enforcement Agency ("DEA") and officers from several
Massachusetts law enforcement agencies were engaged in an
investigation of potential heroin suppliers in Taunton,
Massachusetts.1 Pursuant to that joint investigation, between
1 We note that this investigation also led to the indictment of Luis Guzman-Ortiz, whom a separate jury found guilty of conspiring with Soto-Peguero to distribute heroin. Guzman-Ortiz successfully filed a motion for acquittal on that charge pursuant
- 2 - January and July 2015, Task Force members used a series of wiretaps
to investigate Eddyberto Mejia-Ramos, a suspected local
trafficker.
The wiretaps intercepted a number of conversations
between Mejia-Ramos and Soto-Peguero, which indicated that Soto-
Peguero was supplying Mejia-Ramos with heroin. Members of the
Task Force suspected that Soto-Peguero's girlfriend, Mercedes
Cabral, sometimes transported the drugs to Mejia-Ramos.
On the afternoon of July 6, 2015, Task Force members
intercepted conversations that indicated that Soto-Peguero would
deliver drugs to Mejia-Ramos's home later that day. Specifically,
just before 9 p.m., Mejia-Ramos called Soto-Peguero and asked him
to come at 10 p.m. and "bring something heavy." Soto-Peguero said
in response that he would "send the woman." Then, at 9:38 p.m.,
he called Mejia-Ramos to let him know "the woman is on her way."
Four minutes earlier, Cabral had left the apartment that
she shared with Soto-Peguero. Several Task Force members followed
her as she drove in the direction of Mejia-Ramos's home. They
then enlisted two Massachusetts State Police troopers to conduct
a traffic stop. The troopers pulled Cabral over and determined
that she was driving on a suspended license. In the process of
to Federal Rule of Criminal Procedure 29. For our opinion affirming the District Court's grant of the Rule 29 motion, see United States v. Guzman-Ortiz, ___ F.3d ___, 2020 WL 5542135 (1st Cir. 2020) [No. 19-1349].
- 3 - arresting her, they discovered close to a kilogram of heroin in
her pocketbook.
After Cabral's arrest, Special Agent Carl Rideout, the
DEA agent in charge of the Task Force, directed one of its members
to "freeze" Cabral and Soto-Peguero's residence in order to secure
it while he obtained a search warrant. Task Force members
surrounded the apartment. As they tried to gain entry, someone
fired a gun from inside the apartment out the front door. Task
Force members then managed to enter the premises, without a
warrant, and, while there, found substantial evidence of heroin
possession and trafficking.
The following day, Special Agent Rideout applied for a
search warrant for Soto-Peguero's apartment. The affidavit
supporting the search warrant stated that during a "security sweep"
of the apartment, "officers observed in plain view two large brick
shaped objects believed to be kilograms of heroin, one in each
bedroom." Additionally, the affidavit stated, a Task Force member
"moved one of the bricks" and "observed a firearm beneath it."
The Magistrate Judge granted the warrant application.
Task Force members thereafter executed that search
warrant. In doing so, they discovered additional heroin and other
evidence of drug trafficking.
On March 23, 2016, a grand jury in the United States
District Court for the District of Massachusetts issued a
- 4 - superseding eight-count indictment. Soto-Peguero was not named in
Counts One or Four,2 but he was charged with six counts: possession
with intent to distribute 100 grams of heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i) (Count Two); possession with
intent to distribute one kilogram of heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i) (Count Three); two counts of
conspiring to distribute and possess heroin in violation of 21
U.S.C. § 846 (Counts Five and Six); illegally possessing a firearm
in violation of 18 U.S.C. § 922(g)(1) (Count Seven); and using a
firearm during and in relation to a drug offense in violation of
18 U.S.C. § 924(c) (Count Eight).
Soto-Peguero moved pursuant to the Fourth Amendment of
the United States Constitution to suppress, among other things,
the evidence that law enforcement had found at his apartment,
including both the drugs and gun discovered without a warrant on
the night Task Force members first entered his home, and the
further evidence that law enforcement uncovered pursuant to the
warrant that was later issued. He contended that, as to the first
batch of evidence, "[n]o exigency justified the police's forced
entry" because even if the Task Force had waited to obtain a
warrant, there would have been no "great likelihood that evidence
2 Count One was brought against Cabral and Count Four was brought against Guzman-Ortiz, who was arrested at the same time as Soto-Peguero.
- 5 - would [have] be[en] destroyed." He also asserted that even if the
initial entry had been permissible, "the officers' subsequent
decision to search under the auspices of conducting a 'protective
sweep' [was] unsustainable" because "they had no basis to suspect
another person, let alone a dangerous person, was present." In
addition, Soto-Peguero challenged the contention that the drugs
and gun the Task Force recovered during the warrantless entry were
in "plain view" when law enforcement arrived.
Soto-Peguero separately argued that the search warrant
itself was "defective" because it was "based on evidence that was
illegally obtained" during the course of the warrantless entry
into the apartment. He thus contended that the evidence the Task
Force found after obtaining that warrant had to be suppressed
pursuant to the Fourth Amendment as well.
In reply, the United States argued that exigent
circumstances were present at the time of the initial entry into
the apartment because "[i]t was not unreasonable for DEA officers
to fear that Soto-Peguero might conclude that Cabral had been
arrested when Cabral did not arrive in Taunton, did not return
home, and was unable to communicate with Soto-Peguero." The
government also argued that Soto-Peguero "created a distinct
exigency" when he fired a shot through the front door. Moreover,
the government contended that the scope of the protective sweep
was necessary because "having been fired at, the officers were
- 6 - entitled to account for the presence and location of the firearm
to ensure safety" and pointed out that Task Force members had
"testified [at the grand jury] that the heroin package in the front
bedroom was in plain view."
Finally, the government contended that, even if the Task
Force members' conduct exceeded that of an appropriate protective
sweep, the exclusionary rule should not apply. The government
argued there was "no doubt but that agents would have sought and
obtained [a warrant] whether or not they observed the kilograms of
heroin in [the] apartment during the sweep," and therefore that
the evidence "inevitably would have been revealed in some other
lawful way." For that proposition, the government relied on the
inevitable discovery doctrine, which provides that evidence
obtained in violation of the Fourth Amendment is admissible "if it
ineluctably would have been revealed in some other (lawful) way, so
long as (i) the lawful means of its discovery are independent and
would necessarily have been employed, (ii) discovery by that means
is in fact inevitable, and (iii) application of the doctrine in a
particular case will not sully the prophylaxis of the Fourth
Amendment." United States v. Zapata, 18 F.3d 971, 978 (1st Cir.
1994) (internal citations omitted).
Soto-Peguero responded in a separate memorandum,
arguing, among other things, that applying the inevitable
discovery doctrine in this case would, in fact, "sully the
- 7 - prophylaxis of the Fourth Amendment." He contended that admitting
the evidence would incentivize police misconduct because it would
"assure[] police that they need not wait for a magistrate's
approval." He argued that this is "what happened here" because
the officers "had little concern about prematurely prying open a
heating vent and rifling through a closed nightstand" since they
were confident a warrant would later issue.
The District Court held a hearing on Soto-Peguero's
motion to suppress and heard testimony from both Soto-Peguero and
Task Force members who were involved in the warrantless entry and
the execution of the search warrant. The focus of that evidentiary
hearing was on the Task Force members' and the defendant's
conflicting accounts regarding what transpired during the
warrantless entry of Soto-Peguero's home. There were three salient
points of disagreement: whether the heroin that law enforcement
found in the front bedroom during the initial entry into the
apartment had been in plain view or was concealed by the cover of
an air vent; whether the heroin found in a black plastic bag in
the rear bedroom that same night had been between the bed and the
nightstand or in a drawer of the nightstand; and whether Special
Agent Meletis, of the DEA, looked inside the black plastic bag
during the warrantless entry, as he testified in the suppression
hearing, or only the next day after having obtained the search
warrant, as he testified before the grand jury in March of 2016.
- 8 - Soto-Peguero also testified at the hearing that, while he was
detained on the first floor of his apartment, it sounded "[l]ike
they were breaking stuff" upstairs and that his bed frame had been
intact prior to the search.
Soto-Peguero and the United States then both filed post-
hearing briefs. As relevant here, in addition to renewing the
objections from his motion to suppress, Soto-Peguero elaborated on
his assertion that the District Court "should not excuse the
officers' misconduct by applying the inevitable discovery rule."
In support of that contention, he pointed to what he characterized
as "[t]he fact that at least one officer testified inconsistently
about the scope of his search -- denying and then admitting that
he looked inside a black bag" and to what he contended was the
fact that the "officers[] unreasonabl[y] delay[ed] in seeking the
search warrant" because "they anticipated entering his home that
day," but "rather than bothering to apply for judicial
authorization, they sent more than ten officers to prepare to
'secure' the apartment without a warrant."
In its post-hearing filing, the United States contended
that the inevitable discovery doctrine's requirements were met.
First, the government repeated its contention that "there can be
no doubt but that agents would have sought and obtained [a search
warrant] whether or not they observed the kilograms of heroin in
[the] apartment during the sweep." The United States also
- 9 - reiterated that there was "no reason to discredit the testimony of
the officers" who averred that the heroin in the front bedroom was
in plain view. The government then further contended -- in an
argument that appeared to invoke the distinct exception to the
exclusionary rule known as the independent source doctrine, see
Murray v. United States, 487 U.S. 533, 537 (1988) -- that even "if
the discovery of the heroin and firearm [were] excised from the
affidavit in support of the search warrant, there [was] still
overwhelming probable cause to justify the issuance of the
warrant."
The District Court denied Soto-Peguero's motion to
suppress. United States v. Soto-Peguero, 252 F. Supp. 3d 1, 14
(D. Mass. 2017). First, the District Court found that exigent
circumstances justified the initial warrantless entry. Id. at 11-
12. The District Court concluded that if Cabral had failed to
return in a timely manner, and if Soto-Peguero had been unable to
reach her, he might have concluded that law enforcement was
"closing in" on him. Id.
The District Court also found that it was reasonable for
the Task Force members to delay in obtaining the warrant, even if
they had probable cause to search the apartment before Cabral
departed with some of the drugs. Id. at 12. Under Supreme Court
precedent, the District Court reasoned, there are "many entirely
proper reasons why police may not want to seek a search warrant as
- 10 - soon as the bare minimum of evidence needed to establish probable
cause is acquired." Id. (quoting Kentucky v. King, 563 U.S. 452,
466-67 (2011)). And, the District Court further determined, the
fact that "police might have foreseen the eventual entry" was not
enough on its own to "prevent application of the exigent
circumstances doctrine." Id. (quoting United States v. Samboy,
433 F.3d 154, 160 (1st Cir. 2005)).
The District Court next explained, however, that it was
"not persuaded by the officers' account that a block of heroin was
sticking out of a floor vent." Id. at 13. The District Court
also declined to "resolve the conflicting evidence as to whether
a bag in the back bedroom containing heroin was in a drawer or
next to the bed." Id. "[E]ven accepting the government's version
of events as true," the court held that "manipulating an object in
a vent and opening a bag goes beyond the scope of a protective
sweep." Id.
Nevertheless, the District Court denied Soto-Peguero's
motion to suppress under the inevitable discovery exception to the
exclusionary rule. The District Court concluded that, even if the
Task Force members had not found the heroin or the gun in their
warrantless search of Soto-Peguero's home, they would have found
that evidence after obtaining a search warrant. The District Court
credited Special Agent Rideout's testimony that he would have
pursued a warrant even if no evidence had been uncovered during
- 11 - the "protective sweep." Id. And the District Court concluded
that the Task Force had probable cause to support a warrant for
such a search even before a single member entered the apartment.
Id. Therefore, according to the District Court, the government
had "demonstrate[d], to a high degree of probability," that the
evidence inevitably would have been discovered. Id. (alteration
in original) (quoting United States v. Almeida, 434 F.3d 25, 29
(1st Cir. 2006)).
The District Court did express disapproval of the fact
that Task Force members looked inside the vent and the bag. But,
it went on to conclude that admitting the evidence was "unlikely
to 'erode [Fourth Amendment] protections or encourage police
misconduct.'" Id. at 14 (alteration in original) (quoting Almeida,
434 F.3d at 29). Thus, it determined that admitting the evidence
would not "sully the prophylaxis of the Fourth Amendment" and
therefore "the deterrence rationale [did] not justify putting the
police in a worse position than they would have been had no
misconduct occurred." Id. at 13-14 (first quoting Zapata, 18 F.3d
at 978; then quoting United States v. Silvestri, 787 F.2d 736, 740
(1st Cir. 1986)). The District Court therefore denied Soto-
Peguero's suppression motion.
The case proceeded to trial, which lasted six days. On
April 2, 2018, the jury convicted Soto-Peguero on Counts Two,
- 12 - Three, Five, and Eight of the indictment, but acquitted him on
Count Six (conspiring with Guzman-Ortiz).3
For the purposes of calculating Soto-Peguero's
sentencing range under the Guidelines, the Presentence
Investigation Report ("PSR") that the United States Office of
Probation prepared grouped the first three counts of conviction
(Counts Two, Three, and Five) separately from the firearm
conviction (Count Eight). The PSR determined that, based on the
quantity of heroin discovered, Soto-Peguero's base offense level
should be set at 32 for the three grouped charges. The PSR also
applied a two-level role enhancement under § 3B1.1(c) of the
Guidelines, because Soto-Peguero "directed his significant other
at the time, Mercedes Cabral, to deliver drugs for him on at least
four separate occasions."
Soto-Peguero objected to the role enhancement both in
his sentencing memorandum and at the sentencing hearing. The
United States argued that Cabral was "clearly directed by Mr. Soto-
Peguero" and that it was "very plain that Mr. Soto-Peguero was
supervising" her activities. The District Court agreed that Soto-
Peguero was "much more the head of the enterprise" than Cabral was
and upheld the role enhancement accordingly.
3 Count Seven was dismissed prior to trial.
- 13 - Including the role enhancement, and accounting for the
extent of Soto-Peguero's criminal record, the mandatory 10-year
prison sentence for his firearm charge, and his history of mental
health struggles and childhood abuse, the District Court sentenced
him to a total term of incarceration of 264 months with a five-
year term of supervised release and a $400 special assessment.
The District Court entered judgment on September 12, 2018.
On September 18, 2018, Soto-Peguero filed a timely notice of
appeal. We have jurisdiction over his appeal from his conviction
under 28 U.S.C. § 1291. We have jurisdiction over his appeal from
his sentence under 18 U.S.C. § 3742(a).
II.
When a district court denies a motion to suppress, we
review the legal questions de novo and evaluate the factfinding
for clear error. United States v. Ackies, 918 F.3d 190, 197 (1st
Cir. 2019).
A.
Soto-Peguero first asserts that the Fourth Amendment
requires suppression of both the evidence the Task Force found the
night of the warrantless entry and the evidence uncovered the
following day pursuant to the search warrant. He contends that
"[t]here was no information [in the warrant application], aside
from the illegally obtained evidence, supporting a finding that
enumerated evidence of contraband or of a crime would be found" at
- 14 - his home. Failing that, he argues that, at the very least, the
"closeness" of the question of whether probable cause existed
without the illegally obtained evidence "makes it impossible to
conclude . . . that the Magistrate's decision to issue the warrant
was unaffected by the illegal evidence."
But, Soto-Peguero's focus on the warrant application is
misplaced. The District Court held that the evidence at issue --
both the evidence discovered during the warrantless entry and the
evidence found the following day -- is admissible under the
inevitable discovery doctrine. Under that exception to the
exclusionary rule, "[i]f the prosecution can establish by a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means . . . the
evidence should be received." Nix v. Williams, 467 U.S. 431, 444
(1984). In this case, that means the government must establish
that, had there been no search in violation of the Fourth
Amendment, the officers inevitably would have applied for a
warrant, obtained it, and discovered the evidence in question when
executing that warrant. See United States v. Procopio, 88 F.3d
21, 27 (1st Cir. 1996) (applying the inevitable discovery doctrine
to admit the illegally uncovered contents of a briefcase where
there was "little reason to doubt that the local police would have
contacted federal agents, even without the information gleaned
during the search," and where it was "even more certain that
- 15 - federal agents . . . would have then sought a warrant to search
the briefcase"). Thus, because the Task Force members need not
have actually obtained a warrant to rely on the inevitable
discovery exception, any defects in the warrant that they did
obtain the day after their initial warrantless entry of Soto-
Peguero's apartment are not directly relevant to the question of
whether the evidence at issue must be suppressed. See Silvestri,
787 F.2d at 744 (contemplating situations where a warrantless
search is never followed by a warrant and yet the government relies
on the inevitable discovery doctrine).
Moreover, here, the United States has made the required
showing under the inevitable discovery doctrine. In that regard,
Soto-Peguero does not challenge Special Agent Rideout's testimony
that he would have pursued a warrant regardless of what was found
in securing the apartment. He also does not argue that, if the
Task Force members had delayed entry until they obtained a valid
search warrant, they would not have found the evidence in question
upon its execution.
To the extent that we can read Soto-Peguero's claim that
the warrant application would have been insufficient without the
illegally obtained evidence as an argument that the police did not
have probable cause to search his home before they entered it, we
disagree. Soto-Peguero and Cabral lived together at the searched
location; he spoke to Mejia-Ramos on July 6, indicating that he
- 16 - would deliver heroin that day; he told Mejia-Ramos that Cabral was
on her way around 9:38 p.m., four minutes after she had left their
apartment; and Cabral was then stopped with close to a kilogram of
heroin in her pocketbook. We thus agree with the District Court
that "the officers had sufficient probable cause" to substantiate
a search warrant for Soto-Peguero's apartment before the
protective sweep even began. Soto-Peguero, 252 F. Supp. 3d at 13.
B.
Soto-Peguero separately argues that the District Court
erred in insulating the evidence at issue from the exclusionary
rule by adverting to our precedent that, in analyzing whether to
admit evidence through the inevitable discovery doctrine, we must
also consider whether doing so would "encourage police misconduct"
and thereby "sully the prophylaxis of the Fourth Amendment."
United States v. Hughes, 640 F.3d 428, 440-41 (1st Cir. 2011)
(quoting Zapata, 18 F.3d at 978). In undertaking that inquiry, we
need to "dwell[] closely on the facts" and look toward whether the
record establishes that law enforcement officers intentionally
violated the Fourth Amendment as well as the incentives, if any,
for them to act unconstitutionally. United States v. Scott, 270
F.3d 30, 45 (1st Cir. 2001); see also Hughes, 640 F.3d at 441.
But, rather than develop an argument along those precise lines,
Soto-Peguero instead directs our attention to an out-of-circuit
case, United States v. Madrid, 152 F.3d 1034 (8th Cir. 1998).
- 17 - There, the Eighth Circuit recognized an exception to the inevitable
discovery doctrine because police behaved egregiously and
"exploited their presence" in the defendant's home. Id. at 1040.
Either way, Soto-Peguero's attempt to make the case that the
conduct by law enforcement here precludes us from affirming the
District Court's inevitable discovery ruling fails.
Invoking Madrid, Soto-Peguero cites to a number of
instances of purported misconduct that he argues necessitate
suppression even if the inevitable discovery exception otherwise
would apply. Specifically, he alleges that the Task Force members
"tore the residence apart," "destroy[ed] furniture," "open[ed]
drawers," "open[ed] containers," "pr[ied] the lid off [an] air
conditioning vent," and "used this illegally obtained evidence to
secure the warrant" during their first entry to his apartment. He
also contends that admitting this evidence would "make[] the court
complicit in the officers' false testimony at the suppression
hearing."
Soto-Peguero makes the allegation that Task Force
members "tore the residence apart" and "destroy[ed] furniture" in
support of his Madrid-based argument for the first time on appeal.
Thus, our review of it is at most for plain error. See United
States v. Lara, 970 F.3d 68, 76 (1st Cir. 2020). We find none, as
the District Court was not asked to make a finding about what, if
any, damage the Task Force members caused in going through the
- 18 - apartment during their initial entry and the District Court did
not do so on its own. See United States v. Takesian, 945 F.3d
553, 563 (1st Cir. 2019) (explaining that "if an error pressed by
the appellant turns on 'a factual finding [he] neglected to ask
the district court to make, the error cannot be clear or obvious
unless' he shows that 'the desired factual finding is the only one
rationally supported by the record below'" (quoting United States
v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993))).
We turn, then, to the aspects of Soto-Peguero's Madrid-
based argument that rely on the remaining allegations of
misconduct. In part, Soto-Peguero relies on the assertion that
the record evidence indicates that Task Force members opened the
drawer of the nightstand and looked inside the floor vent when
they went through the apartment without a warrant. But, even
accepting that the evidence supports that understanding of their
conduct, it still "falls short of the blatant search through
personal effects in Madrid," just as we concluded the last time
that a criminal defendant asked us to follow the Eighth Circuit's
lead. United States v. Dent, 867 F.3d 37, 41 (1st Cir. 2017); see
id. (holding that when an officer exceeded the scope of a
protective sweep by looking under an air mattress, that did not
bring the case within Madrid's purview).
So, that leaves only Soto-Peguero's contentions that the
inclusion of a description of the evidence turned up during the
- 19 - warrantless entry in the warrant affidavit and "the officers' false
testimony" at the suppression hearing satisfy the Madrid standard,
at least when considered in the context of how the officers
conducted themselves at that time. We assume, for the sake of
argument only, that the Eighth Circuit's holding that the officers
in Madrid "exploited their presence" in the defendant's home
extends to encompass this flavor of alleged misconduct. Even
still, here, too, we are not persuaded.
The affidavit attached to the search warrant application
did describe evidence that Task Force members uncovered pursuant
to what that affidavit characterized as a "security sweep." And,
as Soto-Peguero notes, the District Court later found that some of
that evidence was obtained through methods that exceeded the scope
of such a sweep. But, we do not see how this mismatch suffices to
support Soto-Peguero's Madrid-based suppression argument. The
Task Force members had been shot at as they tried to enter the
residence and would later testify that they found the evidence
while trying to secure the apartment and locate the firearm in
question. In such circumstances, we cannot say that the warrant
application's erroneous description of the means by which that
evidence had been acquired constitutes the kind of egregious
conduct that, per Madrid, could justify suppression. Cf. United
States v. Paradis, 351 F.3d 21, 29 n.7 (1st Cir. 2003) (describing
scenarios in which a protective sweep might properly authorize an
- 20 - officer to specifically search for weapons). Consistent with this
conclusion, we note that the District Court made no finding here
that any law enforcement officer involved in the preparation of
the warrant application either knowingly included
unconstitutionally obtained evidence or knowingly misdescribed
that evidence as having been lawfully obtained.
With respect to Soto-Peguero's contention that Madrid
requires suppression here based on his allegation that Task Force
members gave false testimony at the suppression hearing, we are
likewise unpersuaded. The District Court did explain that it was
not fully persuaded by the Task Force members' testimony at the
suppression hearing regarding what happened during the warrantless
entry. But, the District Court also concluded that there was no
basis for finding on this record the kind of egregious or flagrant
official misconduct that would require suppression in order to not
sully the prophylaxis of the Fourth Amendment. Soto-Peguero, 252
F. Supp. 3d at 13-14. In the face of that ruling and the absence
of any finding by the District Court that the Task Force members
who testified at that hearing did so in bad faith, we see no basis
for requiring suppression even were we to accept Soto-Peguero's
argument that we should adopt the Madrid standard.
Because Soto-Peguero has not succeeded in establishing
that the United States failed to meet the requirements for applying
- 21 - the inevitable discovery doctrine, we affirm the District Court's
denial of his motion to suppress.
III.
Soto-Peguero also challenges the fact that the Probation
Office applied a two-level role enhancement to increase the
Guidelines range for his drug possession-related crimes from 168-
210 months to 210-262 months.
Under § 3B1.1(c) of the Guidelines, a defendant's
offense level is increased by two levels if "the defendant was an
organizer, leader, manager, or supervisor in any criminal
activity" involving four or fewer participants. For the
enhancement to apply, the government bears the burden of proving,
by a preponderance of the evidence, that "the criminal enterprise
involved at least two complicit participants (of whom the defendant
may be counted as one)" and that "the defendant, in committing the
offense, exercised control over, organized, or was otherwise
responsible for superintending the activities of, at least one of
those other persons." United States v. Cruz, 120 F.3d 1, 3 (1st
Cir. 1997). "The determination of an individual's role in
committing an offense is necessarily fact-specific. Accordingly,
appellate review must be conducted with considerable deference."
Id. (internal citation omitted). Even a single instance of
managing the actions of others can substantiate the enhancement.
See United States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996).
- 22 - Soto-Peguero argues that the entirety of the
government's case for the enhancement is that, on two occasions,
he stated that he was "sending" Cabral. He asserts that, beyond
that, there is nothing in the record to support the conclusion
that he and Cabral "were anything other than equal participants in
criminal activity."
The United States points out that Soto-Peguero had
"scores of communications" with Mejia-Ramos, while Cabral only
interacted with him to ask to which house she should go. On one
occasion, Mejia-Ramos contacted Soto-Peguero and told him the
heroin was poor quality. Soto-Peguero replied: "My woman is on
the way." Later, Cabral retrieved what were presumably the
inferior drugs from Mejia-Ramos's cousin. On another occasion,
after Cabral dropped off a package, Mejia-Ramos called Soto-
Peguero to ask what he had sent. Per the government's
characterization, "both Mejia-Ramos and his cousin treated Cabral
as a mere delivery person and engaged only Soto-Peguero in
important business decisions."
At sentencing, the District Court -- after presiding
over a six-day trial and observing both Soto-Peguero and Cabral
-- concluded that "Soto-Peguero was running the show." He "told
[Cabral] to go to Brockton or wherever it was on a number of
occasions." That was where she "ultimately got caught."
- 23 - Based on all the evidence cited by the United States,
and accounting for the fact that the District Court had the
opportunity to observe the witnesses and the defendant firsthand,
we cannot conclude that the District Court clearly erred in holding
that the government had shown by a preponderance of the evidence
that Soto-Peguero was managing or supervising Cabral on at least
one occasion. We therefore affirm the District Court's decision.
IV.
As described above, we affirm both Soto-Peguero's
convictions and his sentence.
- 24 -