United States v. Nieves-Melendez ( 2023 )

United States Court of Appeals
For the First Circuit
No. 19-1331
UNITED STATES OF AMERICA,
Appellee,
v.
IESÚS JUAN NIEVES-MELÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Howard, and Gelpí,
Circuit Judges.
Laura Maldonado Rodríguez for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
January 26, 2023
HOWARD, Circuit Judge. Iesús Juan Nieves-Meléndez
challenges the district court's denial of his motion to withdraw
his guilty plea and its drug-quantity calculation under the
Sentencing Guidelines. Finding his arguments unavailing, we
affirm his conviction and sentence.
I.
We assume familiarity with the record.1 Nieves pleaded
guilty to possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1), and possession of firearms in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). As indicated above, two parts of the record are
at issue in this appeal: the district court's drug-quantity
calculation for sentencing and its denial of Nieves's motion to
withdraw his guilty plea. We address the background of each in
turn.
A.
As part of the plea agreement he reached with the
government in August 2018, Nieves admitted to possessing 87.23
grams of marijuana with the intent to distribute. However, the
presentence investigation report ("PSR") prepared by the U.S.
Probation Office calculated his Sentencing Guidelines range based
1The background and circumstances of Nieves's arrest is
explored in more detail in our decision in United States v.
González-Andino, No. 18-2155 (1st Cir. 2022).
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on a converted quantity of 39.2 kilograms of marijuana, which was
the equivalent of all the drugs seized from the apartment in which
Nieves and his three codefendants were arrested. Nieves urged the
court three times to adopt the plea agreement's drug-quantity
calculation over that of the PSR: first in his sentencing
memorandum to the district court, then -- after the court ordered
him to do so -- in a formal objection to the PSR, and finally
during his sentencing hearing. In the first two instances, he
argued that the court was not obligated to hold him accountable
for all the drugs found in the apartment under the Guidelines.
The Probation Office countered by arguing that it was entitled to
factor in the total amount of drugs seized from the apartment under
the "relevant conduct" provisions of U.S.S.G. §1B1.3.
During the sentencing hearing, Nieves argued that the
PSR amount was "not correct" and that -- as further explored
below -- he never admitted to possessing the larger PSR quantity.
The court explicitly said that it used the PSR calculation because
"even though [the full drug quantity was] not charged, [it is]
considered relevant conduct."
B.
The district court's denial of Nieves's motion to
withdraw his guilty plea is the other primary issue in this appeal.
As noted above, Nieves pleaded guilty to two counts of the
indictment against him in August 2018. As part of the plea
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agreement's factual stipulations, Nieves "acknowledge[d] that the
possession of the . . . firearms [found in the apartment in which
he was arrested] was in furtherance of a drug trafficking crime"
and that "he possessed with intent to distribute 87.23 [grams] of
[marijuana]." He also "acknowledge[d] . . . that he [was]
pleading guilty freely and voluntarily because he is guilty."
Nieves further confirmed both that his plea was voluntary and that
he agreed with the substance of the plea agreement's factual
stipulations during the change-of-plea hearing.
Nevertheless, Nieves moved to withdraw his guilty plea
nearly six months after this colloquy, at a hearing that originally
was intended for his sentencing. Despite the fact that he had
previously agreed twice to the substance of the plea agreement's
factual stipulations, he told the district court that he was "at
that [apartment] and I was sleeping there, but I am being judged
for something that was happening of which I had no knowledge" and
thus wished to withdraw his plea.2 Nieves further detailed in a
written motion to the court that he sought the withdrawal because
"he faces being sentenced for facts other than what he conceded in
his plea" (i.e., the PSR's larger drug quantity), and that "[h]e
2 As Nieves notes in his brief to us, his contention that he
did not live in the apartment accorded with statements that he
made to federal agents on the day of his arrest that he was in the
apartment in order to "hid[e] from the police since he had an
active . . . arrest warrant for a double murder in Aibonito,
Puerto Rico."
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did not understand that by pleading guilty to [the drug possession
count] and accepting certain facts, that he would be pleading
guilty to other alleged facts, and . . . sentenced accordingly."
The district court denied this motion and, in doing so,
adopted the government's justifications for opposing it: namely,
(1) that the district court's explanation to Nieves that it could
impose a sentence in excess of the proposals in the plea agreement
belied the notion that Nieves did not understand the sentencing
consequences of his plea, and (2) that both the lack of an explicit
claim of innocence in his motion and the nearly six-month gap
between the colloquy and Nieves's attempt to withdraw his plea
illustrated that he did not meet the standard for such a grant of
relief. Despite this, Nieves reiterated at his sentencing hearing
that he never admitted to the PSR's drug-quantity calculation as
part of his plea agreement, since he told his counsel before
signing the agreement that "I am not going to sign anything
admitting I was doing anything [in the apartment], because what I
was doing was sleeping." The court rejected Nieves's argument and
told him that he should have refused to sign the agreement if that
were the case.
Ultimately, having denied Nieves's motion to withdraw
his plea and relying on the PSR's Guidelines drug-quantity
calculation, the district court sentenced Nieves to a total of 72
months of imprisonment for both of the charges to which he pleaded
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guilty. Because the combined sentence exceeded 66 months, the
government concedes that the waiver-of-appeal provision in
Nieves's plea agreement does not apply. This appeal followed.
II.
As noted above, Nieves argues that the district court
erred both in denying his motion to withdraw his plea and in using
the PSR's drug quantity in calculating his Guidelines range. We
address each argument in turn.
A.
"When the issue is preserved, 'we review the district
court's denial of . . . a motion [to withdraw a guilty plea] solely
for abuse of discretion.'" United States v. Williams, 48 F.4th 1,
8 (1st Cir. 2022) (quoting United States v. Flete-Garcia, 925 F.3d
17, 24 (1st Cir. 2019)). Despite this standard being "highly
deferential," United States v. Vázquez-Martínez, 812 F.3d 18, 26
(1st Cir. 2016) (quoting United States v. Santiago-Rivera, 744
F.3d 229, 234 (1st Cir. 2014)), our review also recognizes that
the district court's discretion "may be 'somewhat more limited'
when one of [Fed. R. Crim. P.] 11's core concerns is implicated,"
Williams, 48 F.4th at 8 (quoting United States v. Abbott, 241 F.3d
29, 33 (1st Cir. 2019)). See also United States v. Kitts, 27 F.4th
777, 784 (1st Cir. 2022) (listing the "core concerns" of Rule 11
as "(1) absence of coercion, (2) understanding of the charges, and
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(3) knowledge of the consequences of the plea" (quoting United
States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008))).
Because Nieves attempted to withdraw his guilty plea
after the court's prior acceptance thereof, he had the burden of
"show[ing] a fair and just reason for requesting the withdrawal."
Fed. R. Crim. P. 11(d)(2)(B). In deciding whether a defendant has
proffered a "fair and just reason" for withdrawal, a district court
"must take into account the totality of the relevant
circumstances." Flete-Garcia, 925 F.3d at 24. While we have never
claimed to set forth an "exclusive list of reasons that might allow
withdrawal of a plea," United States v. Gardner, 5 F.4th 110, 114
(1st Cir. 2021) (quoting United States v. Aker, 181 F.3d 167, 170
(1st Cir. 1999)), our cases point to the following factors as
worthy of a district court's consideration when evaluating a Rule
11(d)(2)(B) claim:
(1) whether the original plea was knowing,
intelligent, and voluntary and in compliance
with Rule 11, (2) the strength of the reason
for withdrawal, (3) the timing of the motion
to withdraw, (4) whether the defendant has a
serious claim of actual innocence, (5) whether
the parties had reached (or breached) a plea
agreement, and (6) whether the government
would suffer prejudice if withdrawal is
permitted.
Id. Nevertheless, "[d]espite its permissive nature, th[e] [fair
and just reason] standard 'does not endow [a defendant] with an
unfettered right to retract a guilty plea.'" Flete-Garcia, 925
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F.3d at 24 (third alteration in original) (quoting United States
v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014)). Indeed, "'buyer's
remorse' is not a valid basis on which to dissolve a plea agreement
and 'the fact that a defendant finds himself faced with a stiffer
sentence than he had anticipated is not a fair and just reason for
abandoning a guilty plea.'" Moreno-Espada v. United States, 666
F.3d 60, 67 (1st Cir. 2012) (second quoting United States v.
Mercedes Mercedes, 428 F.3d 355, 359 (1st Cir. 2005)).
On appeal, Nieves claims that the district court abused
its discretion in denying his motion to withdraw his plea because
it discredited what he characterizes as his repeated claims of
innocence and failed to ascertain whether Nieves "understood that
the court could find that he possessed a greater amount of drugs"
than the quantity specified in the plea agreement.3 We address
each claim in turn.
3 Nieves also appears to intimate -- albeit in a fashion that
is "not a model of clarity," United States v. Isom, 580 F.3d 43,
54 (1st Cir. 2009) -- that the district court ran afoul of its
obligation under Rule 11(b)(3) "to determine whether there is a
factual basis for a guilty plea." Pimentel, 539 F.3d at 29. He
claims that the court should have found that no basis existed under
either aiding and abetting or constructive possession theories,
which were the two theories under which the parties appear to have
proceeded in this case. But we need not address this argument.
To the extent that Nieves meant to present an argument that the
district court committed error under Rule 11(b)(3), he both
forfeited it by not raising this argument before the district
court, and then waived it before us "because he does not even
attempt to meet the four-part test" of plain error review. United
States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016).
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i.
As a preliminary point, and as Nieves acknowledges
himself, "the timing of [his] request to withdraw his guilty plea
is bad." While the nearly six-month gap between his guilty plea
and withdrawal attempt is not dispositive, "[t]his extended delay
weighs against permitting withdrawal." United States v. Dunfee,
821 F.3d 120, 131 (1st Cir. 2016). Indeed, we have found on
multiple occasions that delays as short as two months between
The same section of his appellate brief also appears to sketch
out an argument for ineffective assistance of counsel. Nieves
argues that his "assertions of innocence to counsel should have
prevented counsel from advising him to plead guilty" and,
similarly, that "[i]f [he] insisted to counsel that he was
innocent, counsel's advi[c]e to plead guilty was contrary to the
legal principles of aiding and abetting or constructive
possession." But that is also where Nieves's ineffective
assistance argument ends -- at no point does he attempt to link
his counsel's conduct to any case law, nor does he even mention
the phrase "ineffective assistance of counsel" in the relevant
section of his brief. We cannot gainsay the importance of a
criminal defendant's constitutional right to effective assistance
of counsel, "a right that extends to the plea-bargaining process."
Lafler v. Cooper, 566 U.S. 156, 162 (2012). But, "[a]s a general
rule, this court does not review ineffective assistance of counsel
claims on direct appeal." United States v. Vázquez-Larrauri, 778
F.3d 276, 293 (1st Cir. 2015). And the exception "where the
critical facts are not genuinely in dispute and the record is
sufficiently developed to allow reasoned consideration of an
ineffective assistance claim" cannot apply in a situation where
the defendant has only made a cursory attempt to address the issue
and where we have no indication of "why counsel acted as he did."
Id. at 293-294 (first quoting United States v. Reyes, 352 F.3d
511, 517 (1st Cir. 2003), then quoting United States v. Torres-
Rosario, 447 F.3d 61, 64 (1st Cir. 2006)); cf. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). We therefore decline to
address any such claim.
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guilty pleas and withdrawal attempts counsel against permitting
withdrawal, especially when a defendant has received an
unfavorable PSR. See, e.g., id. ("[W]e look skeptically on motions
to withdraw which follow closely on the heels of the issuance of
an unfavorable PSR, as was the case here."); United States v.
Santiago Miranda, 654 F.3d 130, 132-134, 140 (1st Cir. 2011)
(finding that, when a defendant moved to withdraw his guilty plea
over two months after his entry thereof and after he had received
an unfavorable PSR, "[t]hese circumstances suggest that it was a
recalculation of risks and benefits -- not involuntariness -- that
produced [his] change of heart"); United States v. Pagan-Ortega,
372 F.3d 22, 31 (1st Cir. 2004) ("The two month lag between the
plea hearing and appellant's motion to withdraw places it well
within the area of vulnerability because of untimeliness.").
This rationale applies with even stronger force to the
nearly six-month delay in Nieves's case, especially given that
Nieves appears to have at least partly linked his desire to
withdraw his plea to the larger drug quantity the PSR attributed
to him. He informed the district court after a colloquy the court
had with his counsel about his withdrawal request that "what I
would like to have happened is for the plea agreement to be
complied with, with respect to the 66 months."
Simply put, the motive behind Nieves's attempt to
withdraw his plea appears to be his objection to being held
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responsible for a larger drug quantity than the plea agreement
specified, a fact which -- as the district court informed him
during the change-of-plea hearing -- could only become clear once
he was furnished with the PSR in the months after his guilty plea.
Cf. United States v. Fernández-Santos, 856 F.3d 10, 18 (1st Cir.
2017) ("The timing of a motion to withdraw a guilty plea is
important, as we have said before, because it is 'highly probative
of motive.'" (quoting United States v. Doyle, 981 F.2d 591, 595
(1st Cir. 1992))). As further explored below, that alone will not
suffice as a "fair and just reason" for withdrawal in the absence
of other factors mentioned in our case law.
ii.
Even beyond the timing issues, we are unpersuaded that
the claims that Nieves raises constitute "fair and just reason[s]"
for withdrawal. First, his purported innocence claim is belied
both by his own admissions to the district court during his
allocution and by the plea agreement to which he voluntarily
agreed. We acknowledge that Nieves made multiple, consistent
statements that he did not live in the apartment in which he was
arrested. Perhaps most significantly, he explained to the district
court that he told his counsel prior to signing the plea agreement
that "I couldn't admit possession of all those items because that's
not my home," that "I am not going to sign anything admitting that
I was doing anything [in the apartment], because what I was doing
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was sleeping" and, when asked about his desire to withdraw his
plea, that "I accepted responsibility because, yes, I was at that
place and I was sleeping there, but I am being judged for something
that was happening of which I had no knowledge."
But these statements alone do not suffice for an
innocence claim. We have long warned that "[m]erely voicing a
claim of innocence has no weight in the plea-withdrawal calculus;
to be given weight, the claim must be credible." Fernández-Santos,
856 F.3d at 19 (quoting United States v. Gates, 709 F.3d 58, 69
(1st Cir. 2013)). To that end, Nieves's claims are lacking because
they are directly contradicted by his plea allocution and
agreement. As part of the agreement, Nieves "adopt[ed] the
Stipulation of Facts and agree[d] that the facts therein are
accurate in every respect." The Stipulation, in turn, specified
that Nieves "acknowledges that the possession of the
aforementioned firearms was in furtherance of a drug trafficking
crime" and that "he possessed with intent to distribute 87.23
[grams] of [marijuana]." The district court further confirmed
Nieves's understanding of the stipulated facts during the change-
of-plea hearing, with Nieves responding "yes" after the court asked
him "is this what you did?" as to descriptions of the evidence for
each of the charges that mirrored the Stipulation. Our precedent
supports the conclusion that these inconsistencies render Nieves's
innocence claim insufficiently credible to warrant a reversal of
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the district court's decision to deny his plea-withdrawal motion
on abuse of discretion review. See, e.g., Santiago Miranda, 654
F.3d at 139 ("Not only did Santiago sign the plea agreement, in
which he acknowledged that he was guilty of the conspiracy charged
in . . . the indictment and admitted the truth of the 'Stipulation
of Facts' section, he also acknowledged several times under oath
at the change-of-plea hearing that he was, in fact, guilty.");
Isom, 580 F.3d at 53 (finding that the district court did not abuse
its discretion in denying the defendant's motion to withdraw his
guilty plea in part because, "as the district court noted, Isom's
claim of innocence flies in the face of several admissions to the
contrary").4
More generally, the district court was entitled to rely
on Nieves's statements under oath when faced with inconsistencies
between them and his later protestations of innocence. Cf.
Santiago Miranda, 654 F.3d at 138 (noting that "a defendant's
'declarations in open court carry a strong presumption of verity'"
on which the district court is entitled to rely (quoting Blackledge
v. Allison, 431 U.S. 63, 74 (1977))). We will not disturb the
4 Separately, Nieves's statement that he "couldn't admit
possession of all those items because that's not my home" is not
a "serious claim of actual innocence" as to the charged conduct,
but rather appears to be aimed at the PSR's drug-quantity
calculation. Gardner, 5 F.4th at 114. Claiming innocence as to
one quantity of drugs but not another does not constitute a claim
of actual innocence with respect to the drug-trafficking conduct
to which Nieves pleaded guilty.
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district court's decision to credit Nieves's statements in his
plea colloquy absent "highly specific [allegations of infirmities]
accompanied by some independent corroboration." United States v.
Pulido, 566 F.3d 52, 59-60 (1st Cir. 2009) (emphasis omitted)
(quoting United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir.
1984)). And Nieves makes no such showing here. While he pointed
the district court to the fact that "there is no mention of me in
the surveillance or anything because I don't live there," a lack
of evidence that Nieves resided in the apartment does not
constitute independent corroboration of the conclusion that Nieves
had no knowledge of the guns or drugs found therein. To his
credit, Nieves also more plausibly points to his objection to the
PSR, in which he stated that "[p]olice found controlled substances
in the apartment but did not find any in the room where [Nieves]
was sleeping, much less on his person nor on or under the bed."
But that statement is belied by the fact that police found both
ammunition and drug paraphernalia in the room in which Nieves was
found. Therefore, even to the extent that Nieves does offer
independent corroboration for his innocence claim, we do not find
it credible. We accordingly determine that his innocence claim
does not constitute a "fair and just reason" for the withdrawal of
his plea.
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iii.
We are equally unpersuaded by Nieves's contention that
he "was not fully advised that he could be held accountable for a
greater amount of drugs" than the "250 grams of [marijuana]" upon
which the plea agreement based its Guidelines calculation. While
a defendant's "knowledge of the consequences of a guilty plea" is
a "core concern[] of Rule 11" to which we pay heightened attention
on abuse of discretion review, we nevertheless find Nieves's
argument unavailing because it is flatly contradicted by the
record. Williams, 48 F.4th at 6 (first quoting United States v.
Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995)). The plea agreement
noted that Nieves understood that the district court had sole
discretion over his sentence, that the court was "not bound by
[the plea] agreement or the sentencing calculations and
recommendations contained [therein]," and that the court had the
right to reject the plea agreement. At his change-of-plea hearing,
the court also explicitly asked Nieves whether he understood (1)
"that the terms of the plea agreement are recommendations to the
Court," (2) "that I can impose a sentence on you, as to Count
Three, the drug count, which is less severe or more severe than
the sentence you may anticipate, or even the sentence being
recommended in the plea agreement," (3) "that[,] as to Count Three,
the drug count, I won't be able to determine what the [G]uideline
sentence for your case will be until after I receive a pre-sentence
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investigation report," and -- perhaps most significantly -- (4)
"that the sentence that I may impose upon [you] may be different
from any estimate that [counsel] may have given you and even
different from what is being recommended in the plea agreement."
Nieves responded that he understood each of these ramifications.
And the district court also conducted an extensive colloquy with
Nieves to ensure that he was both competent to plead guilty and
understood the suite of rights that he was voluntarily forfeiting
by doing so. See Pagan-Ortega, 372 F.3d at 29 ("Our review of the
court's dialogue with appellant reveals that the court clearly and
comprehensively explained both the rights he was foregoing, as
required under Rule 11(b), as well as the precise charges and
sentencing details. We have every reason to accord credit to
appellant's affirmative responses . . . .").
While neither the plea agreement nor the district court
explicitly mentioned the potential for discrepancies in drug-
quantity calculation between the plea agreement and PSR, Nieves
cites to no case law suggesting any requirement of such a specific
warning. In the context of that absence, we cannot say that the
district court was required to find that Nieves's ostensible lack
of understanding of the sentencing consequences of his plea
provided a "fair and just reason" for withdrawal, especially since
both the plea agreement and the district court made it abundantly
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clear to Nieves that he could be sentenced in a manner that would
not accord with the terms of the agreement.
Accordingly, the district court did not abuse its
discretion in denying Nieves's motion to withdraw his guilty plea.
B.
Nieves also asserts that the district court erred in
adopting the PSR's drug-quantity calculation. He claims that "the
record does not support [a] factual basis" for attributing the
apartment-wide amount of drugs to him as "relevant conduct" under
U.S.S.G. §1B1.3.5
Under U.S.S.G. §1B1.3, "[i]f the sentencing court finds
by a preponderance of the evidence that a defendant engaged in the
'same course of conduct or common scheme or plan' involving
additional drugs, it can attribute the amount of those drugs
involved to the defendant." United States v. McDonald, 804 F.3d
497, 502-503 (1st Cir. 2015) (internal citations omitted) (quoting
U.S.S.G. §1B1.3(a)(2)). A district court's finding under this
provision is "'entitled to considerable deference,' and '[a]bsent
mistake of law, we review such conclusions only for clear error.'"
Id. at 503 (alteration in original) (quoting United States v. Wood,
924 F.2d 399, 403 (1st Cir. 1991)).
5 To be sure, Nieves does not argue that the district court
erred by failing to make a particularized finding regarding the
drug amount attributable to him as relevant conduct; rather, he
argues only that the record does not support such a finding.
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Here, the district court explicitly stated that "if you
take all the controlled substances that were found [in the
apartment] and convert them into marijuana . . . even though they
are not charged, they are considered relevant conduct." Relying
in part on a Guidelines application note for §1B1.3, Nieves
counters that there was no support in the record for a finding of
relevant conduct because there was no evidence that he "knew there
were other drugs in the apartment," "joined others to distribute
drugs," "pooled resources or profits with the other charged
defendants," or even knew the other defendants prior to their
arrest.
But Nieves forfeited this argument. As noted above,
Nieves argued in his sentencing memorandum and in his formal
objection to the PSR that the district court was not obligated to
factor in the apartment-wide quantity in calculating his
Sentencing Guidelines range. But "a litigant has an obligation to
spell out its arguments squarely and distinctly" before the
district court, United States v. Diggins, 36 F.4th 302, 319 (1st
Cir. 2022) (quoting Zannino, 895 F.2d at 17), and a claim of error
must be "sufficiently specific to call the district court's
attention to the asserted error," United States v. Soto-Soto, 855
F.3d 445, 448 n.1 (1st Cir. 2017). Relevantly to Nieves's case,
"arguments cannot be interchanged at will" on appeal. United States
v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011) (citing to
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United States v. Lilly, 13 F.3d 15, 17-18 & n.6 (1st Cir. 1994)).
We do not agree that this argument sufficiently called the court's
attention to ostensible error in applying §1B1.3 to his case. This
conclusion is underscored by the fact that the Probation Office
explicitly invoked §1B1.3 in responding to Nieves's objections to
the PSR, yet at no point thereafter did Nieves challenge this
stated rationale. Furthermore, while we recognize that Nieves
argued during his sentencing hearing that the quantity specified
in the PSR was factually incorrect, he does not argue on appeal
that anything he said at his sentencing hearing preserved a
relevant conduct-based objection.
We subject unpreserved claims of error to plain error
review. Under this exacting standard, Nieves must show "(1) that
an error occurred (2) which was clear or obvious and which not
only (3) affected [his] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Merced-García, 24 F.4th 76, 79-80
(1st Cir. 2022) (alteration in original) (quoting United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
We find, in turn, that the district court committed no
clear or obvious error in attributing the apartment-wide drug
amount to Nieves. It is true that -- as discussed above -- Nieves
consistently stated that he was only a temporary visitor to the
apartment. But he overlooks the fact that there was ample,
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unobjected-to evidence in the record linking him to drug
trafficking activity. This evidence includes the ammunition,
plastic bags, vials, and weight scales located in the room in which
police found Nieves, and similar items that were found throughout
the apartment. Our precedent suggests that these items are
indicative of trafficking activity. Cf. United States v. Marin,
523 F.3d 24, 28 (1st Cir. 2008) (noting that a weapon, ammunition,
drugs, paraphernalia, and cash all being stored in the same house
was indicative of a weapon being used in furtherance of drug-
trafficking activity). Furthermore, it is difficult to credit
Nieves's argument when each of the infirmities that he specifies
with respect to the PSR drug quantity would hypothetically apply
with equal force to the 87.23 grams specified in the plea
agreement. Yet Nieves does not challenge the factual basis for
the 87.23 grams to which he pleaded guilty, and -- on the
contrary -- affirmatively urged the district court to adopt this
amount.
Fundamentally, the district court had to weigh the
seized evidence against Nieves's proffered motive for being in the
apartment in deciding whether to attribute the larger amount of
drugs to him. The mere fact that the sum total of the evidence
yielded conflicting signals does not suffice to illustrate clear
or obvious error, especially when Nieves did not object to the
PSR's description of the objects found in the room in which he was
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located. Cf. United States v. Takesian, 945 F.3d 553, 563 (1st
Cir. 2019) (noting that, on plain error review, "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'" (alterations
in original) (quoting United States v. Olivier-Diaz, 13 F.3d 1, 5
(1st Cir. 1993))). We therefore find that the district court did
not commit plain error in attributing the apartment-wide quantity
of drugs to Nieves.
Affirmed.
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