United States v. Mendoza-Maisonet ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1190
UNITED STATES OF AMERICA,
Appellee,
v.
JOSUÉ MENDOZA-MAISONET,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Julio César Alejandro-Serrano, for appellant.
Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
June 9, 2020
TORRUELLA, Circuit Judge. After a four-day jury trial,
Defendant-Appellant Josué Mendoza-Maisonet ("Mendoza") was
convicted of possession of firearms in furtherance of drug
trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count One), and of possession with intent to distribute heroin
(Count Two) and cocaine base (Count Three), both in violation of
21 U.S.C. § 841(a)(1). The district court sentenced Mendoza to
ninety-nine months in prison. He now appeals his convictions and
sentence. Mendoza challenges the sufficiency of the evidence
supporting his convictions, as well as the denial of his motion to
suppress certain statements that he made to law enforcement
officers while in custody and the evidence obtained during the
search of his friend's residence where he was found spending the
night. With respect to his sentence, Mendoza argues that the
district court erred in applying a two-level enhancement for
obstruction of justice under U.S.S.G. § 3C1.1 based on a finding
that he had perjured himself during trial, and in denying his
request for a mitigating role adjustment under U.S.S.G. § 3B1.2
based on his purported minimal participation in the crime. After
carefully reviewing Mendoza's claims, we affirm his convictions
and sentence.
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I. Background1
A. Factual Background
1. Events Leading to Mendoza's Arrest
On March 23, 2016, Agent Víctor Marrero-Rivera ("Agent
Marrero"), an agent in the Stolen Vehicles Division of the Puerto
Rico Police Department ("PRPD"), was assigned to conduct
surveillance at residence C-16 of the Vistas de Atenas Housing
Project in Manatí, Puerto Rico. During his surveillance, Agent
Marrero observed that a blue Suzuki Vitara, which had been reported
stolen, was parked in front of the residence's premises. He then
observed a "dark-color-skinned individual" arrive in a white
Suzuki Vitara, which had also been reported stolen. As the
individual -- later identified as Joshua Valle-Colón
("Valle") -- exited the vehicle, Agent Marrero observed him adjust
a pistol in his waistband and then enter the residence. Based on
his surveillance, Agent Marrero obtained a state-issued warrant to
search residence C-16 and its surrounding yard for two stolen
vehicles -- blue and white Suzuki Vitaras identified by license
plate numbers -- and firearms.
On the early morning of March 24, 2016, PRPD agents
executed the search warrant. Upon entering the residence to
1 We provide the key facts in this section and fill in more details
relevant to each issue along the way.
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conduct a protective sweep, the entry team encountered Mendoza
sleeping in what appeared to be a child's bedroom. 2 They
identified themselves as police officers and then took Mendoza to
the living room. 3 The entry team continued the sweep of the
residence and found Valle, his wife Elizabeth Colón ("Colón"), and
their small child asleep in the second bedroom. The entry team
again identified themselves and took Valle, Colón, and the child
to the living room.
Once the area was secured, PRPD agent Steven
Pérez-Espinosa ("Agent Pérez") oversaw the execution of the search
warrant. Upon entering, Agent Pérez encountered Mendoza, Valle,
Colón, and the child in the living room and, after explaining that
he was there to execute a search warrant, Agent Pérez asked who
was responsible for the residence. Valle responded that he was,
and Agent Pérez asked Valle to accompany him during the search.4
First, Agent Pérez searched the main bedroom where Valle and Colón
were found, and he discovered two clear pressure-sealed bags
2 PRPD agent Modesto Alameda-Cordero ("Agent Alameda"), who was
assigned to the entry team, testified that, based on the way the
room was decorated, the bed sheets used, and the toys spread around
the room, he thought that it was a child's bedroom.
3 Mendoza was not handcuffed or arrested at this time.
4 Colón also indicated that she was responsible for the residence
but stated that she was not feeling well. Agent Pérez called the
paramedics and executed the search accompanied by Valle only.
-4-
containing marijuana in plain view on top of the dresser. Based
on this discovery, Mendoza, Valle, and Colón were read their
Miranda warnings and placed under arrest. Agent Pérez then
resumed the search of the main bedroom with Valle present and,
when he looked in the closet area, he found drug paraphernalia
(clear baggies with pressure seals and a device used to cut
marijuana for distribution purposes) inside an open shoebox.
Next, Agent Pérez searched the bathroom, which was close
to the main bedroom, but found nothing there. He then proceeded
to the child's bedroom where Mendoza had been sleeping.5 Amongst
children's toys on top of the dresser, he saw an unlabeled pill
bottle with what were later identified as two Percocet pills, a
watch, and a necklace, all of which Mendoza admitted belonged to
him. Then, in the bedroom closet, Agent Pérez found a green and
orange backpack that "fel[t] . . . heavy." This prompted him to
open the bag, where he discovered on the inside a loaded Kel-Tec
rifle, forty plastic capsules containing crack cocaine, several
clear baggies that were similar to the ones found in Valle and
Colón's room,6 and a toothbrush. At that point, Mendoza, who was
5 Valle informed Agent Pérez that the room where Mendoza was
sleeping belonged to his toddler son.
6 The baggies had a sticker of an apple on them, which Agent Pérez
testified was sometimes used in "drug points" to "identify the
drugs."
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sitting in the living room in his boxers, requested to put his
pants on, which he had left folded on top of a table in the child's
bedroom. Agent Pérez brought Mendoza to the child's room and,
before giving him the pants, he searched its pockets and found
three baggies of marijuana and $266 in cash. The baggies looked
the same as those found earlier in Valle's bedroom. Mendoza's
shoes were also found by the foot of the bed in the child's room.
The search then moved to the kitchen area, where Agent
Pérez saw a black pistol in plain sight on top of the kitchen
cabinets.7 He accessed the top of the cabinet by climbing on a
chair and discovered a box of bullets, sixty decks of heroin, and
a plastic pressure-sealed bag containing $129, all together with
the pistol, which was loaded. The agents then searched the
residence's surrounding yard and parking area, where they
identified the two stolen vehicles described in the search warrant.
Inside the trunk of one of the vehicles -- in the blue Vitara --
Agent Pérez found two packages of over a thousand empty plastic
capsules, along with their lids, which were identical to those
found containing crack cocaine inside the backpack in the child's
room. 8 Alongside the capsules, Agent Pérez found a pair of
7 The pistol was visible from a normal height because it was propped
on top of a box of bullets and heroin packets.
8 Agent Pérez testified that the capsules are "used for
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sneakers that Mendoza admitted belonged to him. The agents
concluded the search, seized the contraband, and transported
Mendoza, Valle, and Colón to the police station.
2. Mendoza's Interviews with Law Enforcement
At the police station, Mendoza was interviewed by agents
five separate times. For the first interview, Agent Pérez removed
Mendoza from his cell, took him to a separate room, handed him a
document that stated his legal rights, and verbally explained those
rights to him. Mendoza read the document and acknowledged that
he understood its contents by signing it.9 He stated that he did
not have anything to say, so Agent Pérez returned him to his cell.
Ten to fifteen minutes later, Agent Pérez removed Mendoza from his
cell again, transferred him to the private room, and once again
informed him of his rights.10 According to Agent Pérez, Mendoza
then verbally confessed "freely and voluntarily" that all the
property seized during the search belonged to him and Valle.11
distribution of a controlled substance."
9 Agent Pérez testified that Mendoza did not appear to be under
the influence of any drugs or alcohol and that he appeared normal,
calm, and comfortable.
10Agent Pérez testified that Mendoza had requested to speak to
him, whereas Mendoza testified that he did not request a second
interview.
11There was no contemporaneous record made of this confession.
Mendoza maintains on appeal that he told Agent Pérez that he did
not want to speak and that he only confessed to possessing any
contraband because Agent Pérez threatened to prosecute Colón.
-7-
Homeland Security Investigations ("HSI") task force
agent Erick del Valle ("Agent del Valle") also interviewed Mendoza
at approximately 12:45 p.m. He read Mendoza his Miranda warnings
in both English and Spanish and provided him with a written copy,
which Mendoza signed and acknowledged that he had understood.
Mendoza waived his rights, both verbally and in writing, and agreed
to talk to Agent del Valle without an attorney present. During
the interview, Mendoza told Agent del Valle that the marijuana and
money that were found in his pants belonged to him, and he then
asserted that he did not want to make any other statements, so
Agent del Valle returned him to his cell. Approximately two hours
later, Agent del Valle pulled Mendoza for a second interview with
him to ask about the other contraband seized during the search.
He told Mendoza that if someone did not take ownership of the rest
of the contraband (i.e., the guns, heroin, crack cocaine, and
paraphernalia), that he, Valle, and Colón would have to be charged.
Mendoza then admitted, as he had told Agent Pérez earlier, that
the rest of the contraband belonged to him and Valle and that Colón
had nothing to do with it.
Mendoza also maintains that he did not confess to possessing
everything seized, only the marijuana found in his jeans and on
the dresser in Valle's room.
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Agent Pérez then conducted a final interview to ask
Mendoza if he would put in writing what he had told him earlier
regarding ownership of the seized items. He obtained a written
confession that read: "The bags that were seized in the pants and
the money are mine. The ones seized in the house are [Valle's]
and mine. [Colón] has nothing to do with this or anything that
was seized inside the house, like the drugs, the weapons,
et cetera." Both Agent Pérez and Agent del Valle testified that
Mendoza's written statement was consistent with his verbal
confessions to them.
B. Procedural History
1. Indictment and Motion to Suppress Proceedings
On July 20, 2017, a federal grand jury returned a
three-count superseding indictment 12 charging both Mendoza and
Valle with possession of firearms in furtherance of drug
trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count One), and possession with intent to distribute both heroin
and crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts
Two and Three, respectively).13
12 The original indictment was filed on March 30, 2016.
13Valle entered a straight plea on the second day of his jury
trial and was sentenced to eighty-eight months of imprisonment.
He filed an appeal, which is pending with this Court.
-9-
Mendoza moved to suppress all the items seized from
Valle's residence and the statements he made to the interviewing
agents. 14 He argued that (1) the search warrant lacked the
particularity necessary to justify a search of the residence and
(2) his statements were involuntary as they were coerced by threats
that Colón would be prosecuted. In its opposition, the Government
argued that (1) Mendoza did not have standing to challenge the
search because he did not have a reasonable expectation of privacy
in the dwelling; (2) the warrant was not overly broad and met the
particularity requirement; and (3) the confessions were knowing
and voluntary. The motion was referred to a U.S. magistrate judge.
At the suppression hearings, the magistrate judge heard
testimony from Agent Pérez, Agent del Valle, and co-defendants
Mendoza and Valle. The magistrate judge ultimately recommended
that Mendoza's motion be denied in full. In his report and
recommendation, the magistrate judge did not decide whether the
affidavit supporting the search warrant provided sufficient
probable cause to authorize the search of the residence, instead
relying on the good faith exception to uphold the search.15 He
14 Valle also filed a motion to suppress the same day.
15 The magistrate judge also concluded that Mendoza had a
reasonable expectation of privacy as an overnight guest and
therefore had standing to request suppression. See United States
v. Bain, 874 F.3d 1, 13 (1st Cir. 2017).
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also concluded that Mendoza's verbal and written statements had
been made voluntarily as Mendoza's relationship with Colón was too
attenuated to make Mendoza "vulnerable to succumb" to threats of
what would happen to her. Mendoza objected to all of the legal
findings in the report and recommendation and additionally raised,
for the first time, that his right to silence had been violated
and therefore his statements should be suppressed. The district
court, however, adopted the magistrate judge's recommendation to
deny Mendoza's motion to suppress.
2. Trial
Mendoza's jury trial began on August 22, 2017. During
its case-in-chief, the Government called six witnesses, including
Agent Pérez, who testified about the execution of the search
warrant, the items seized, and his interviews with Mendoza, as
well as Agent del Valle, who also testified about interviewing
Mendoza and the verbal confession that all of the contraband seized
in the residence belonged to him and Valle. The Government also
presented the testimony of Drug Enforcement Administration ("DEA")
chemist Elizabeth Adkins, who was qualified as an expert in
forensic chemistry and analysis of narcotics and controlled
substances and who testified to the nature of the substances
found -- cocaine base (crack cocaine), heroin, marijuana, and
Percocet.
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The Government then called DEA Task Force agent Eddie
Vidal-Gil ("Agent Vidal") as an expert in the fields of drug
trafficking and the value of controlled substances. Agent Vidal
testified as to the quantity, quality, manner of packaging, and
value of the drugs seized, and asserted that based on those
characteristics and the paraphernalia found, the drugs were not
for personal use but for trafficking. He also testified that, in
his experience, drug traffickers often keep firearms for
protection, and that while they are not always stored with the
drugs, they are always stored in a place accessible to the
trafficker. Additionally, he noted that it was very common for
drug users to also distribute drugs for retail.
The Government's two other witnesses were Agent Alameda,
who testified about his role as a member of the entry team assigned
to the search of Valle's residence, and HSI agent Jorge Cruz, who
test-fired the firearms seized and confirmed that they were indeed
firearms. After the Government rested, Mendoza moved for a
judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure, which the court denied.
Mendoza took the stand in his own defense. 16 He
testified that he, Valle, and Colón were friends, that he had known
16The defense's other witness was Agent Marrero, who testified
about his surveillance of Valle and Colón's residence.
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them for five or six years, and that he had become closer to them
during the four to five months prior to their arrest. He also
explained that he had been dating Colón's niece and that he had
slept at Colón and Valle's residence, in the child's bedroom, with
her on several occasions.17 Despite his admitted close relationship
with Colón and Valle and his frequent visits to their home, Mendoza
testified that he did not feel comfortable wandering the house and
would ask permission before using the bathroom or going into the
kitchen or bedroom. He also said that he never opened the closet
in the child's bedroom and that the first time he saw the backpack
was when Agent Pérez was carrying it out of the residence.
Finally, Mendoza testified that his written confession pertained
only to the money and the baggies of marijuana that had been found
in his jeans and on Valle's dresser, not to the other items seized
during the search. After Mendoza's testimony, the defense renewed
its motion for acquittal, which the court again denied. On August
25, 2017, after a four-day trial, the jury found Mendoza guilty of
all counts.
17Mendoza testified that he was at Colón and Valle's residence on
the night of March 23, 2016, to meet up with Colón's niece, but
that she ended up not coming. He testified that he did not want
to stay overnight, but Valle was tired and would not drive him
home until the next morning. He also admitted that later that
night he and Valle smoked marijuana together in the living room.
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3. Sentencing
At sentencing, the district court rejected Mendoza's
request for a role adjustment for his purported minimal
participation in the offense under U.S.S.G. § 3B1.2, as well as
his objection to an enhancement for obstruction of justice based
on perjury. Accordingly, the court applied the two-level
enhancement provided in U.S.S.G. § 3C1.1 but no reductions.
Ultimately, the district court sentenced Mendoza to ninety-nine
months of imprisonment: seventy-two months of imprisonment for
Count One to be served consecutively to concurrent sentences of
twenty-seven months of imprisonment for Counts Two and Three.
Mendoza timely appealed.
II. Discussion
A. Sufficiency of the Evidence
Mendoza argues that he should have been acquitted of all
charges because the Government did not present sufficient evidence
to support his convictions. Mendoza contends that the Government
failed to establish that he had either actual or constructive
possession of the drugs or the firearms seized from the residence.
Specifically, he avers that his friendship with Valle, the fact
that he would occasionally sleep at his house, including at the
time of the search, and the fact that he was sleeping in the room
where the backpack was found is not enough to show that he knew
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the contraband was in the residence and that he had the intention
and power to exercise control over it. According to Mendoza, the
Government failed to establish that he trafficked drugs or
possessed guns outside of the residence, or that he had any
knowledge that Valle was involved in such criminal activity.
Further, he avers that his written statement did not admit
possession of all of the contraband but only of the marijuana found
in his pants and on Valle's dresser and thus the statement did not
provide a basis for the Government's broad interpretation.
Mendoza also contends that the Government failed to
present evidence that Mendoza "knew about the illicit nature of
the substance in the capsules and decks, and of circumstances which
would directly or implicitly indicate that they would be
trafficked." While the jury could infer from the testimony of
Agent Vidal that the drugs and paraphernalia were used for drug
trafficking activities, his argument goes, none of the evidence
suggests that Mendoza had any relationship with the items, and
there was no evidence to counter the possibility that both stashes
of drugs belonged to Valle. Mendoza further posits that because
the Government did not provide any evidence to establish that he
was involved in drug trafficking, there was no basis for a finding
of the "in furtherance of" element of the firearms crime. Thus,
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he claims that the district court erred in denying his Rule 29
motion for acquittal.
We disagree.
1. Standard of Review
Because Mendoza preserved his challenge to the
sufficiency of the evidence, we assess his claims de novo. United
States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019). This
means we review the evidence, "both direct and circumstantial, in
the light most favorable to the prosecution and decide whether
that evidence, including all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude beyond a reasonable
doubt that the defendant committed the charged count or crime."
United States v. Velázquez-Aponte, 940 F.3d 785, 798 (1st Cir.
2019) (quoting United States v. Díaz-Rosado, 857 F.3d 116, 120
(1st Cir. 2017)). We will not "re-weigh the evidence[] or
second-guess the jury's credibility calls." United States v.
Acevedo-Hernández, 898 F.3d 150, 161 (1st Cir. 2018) (citing United
States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015)). Nor do
we have to be convinced "that the government succeeded in
eliminating every possible theory consistent with the defendant's
innocence." Id. (quoting United States v. Trinidad-Acosta, 773
F.3d 298, 310-11 (1st Cir. 2014)). We reverse "only if the
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defendant shows that no rational factfinder could have found him
guilty." Rodríguez-Torres, 939 F.3d at 23.
2. Drug Charges
To make out a case of possession with intent to
distribute a controlled substance under 21 U.S.C. § 841(a)(1), the
government has to prove "that the defendant[] knowingly and
intentionally possessed, either actually or constructively, a
controlled substance with the specific intent to distribute."
United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.
2007) (citing United States v. López-López, 282 F.3d 1, 19 (1st
Cir. 2002)). Actual possession means "immediate, hands-on
physical possession." United States v. Padilla-Galarza, 886 F.3d
1, 5 (1st Cir. 2018). On the other hand, constructive possession
is shown by proving that the defendant had "dominion and control
over the area where the contraband was found." Id. (internal
quotation marks omitted) (quoting United States v. Wight, 968 F.2d
1393, 1397 (1st Cir. 1992)); see also García-Carrasquillo, 483
F.3d at 130 ("Constructive possession exists when a person
knowingly has the power and intention at a given time to exercise
dominion and control over an object either directly or through
others." (quoting United States v. McLean, 409 F.3d 492, 501 (1st
Cir. 2005))). Constructive possession "does not require actual
ownership," United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir.
-17-
2014), and "can be established through circumstantial evidence,"
United States v. Howard, 687 F.3d 13, 20 (1st Cir. 2012), although
the "mere presence or association with another who possessed the
contraband is insufficient," United States v. Hicks, 575 F.3d 130,
139 (1st Cir. 2009) (internal quotation marks omitted) (quoting
United States v. DeCologero, 530 F.3d 36, 67 (1st Cir. 2008)). As
to the intent-to-distribute element, "[a]n inference of intent to
distribute may be drawn from the circumstances surrounding
possession, including the drug's quantity (i.e., whether it is too
large for personal use only), the drug's purity, the defendant's
statements or conduct, or the number of people involved and their
relationship to the defendant." United States v. Bobadilla-Pagán,
747 F.3d 26, 33 (1st Cir. 2014).
The evidence in this case is sufficient to permit a jury
to reasonably find beyond a reasonable doubt that Mendoza knowingly
possessed the heroin and crack cocaine with intent to distribute.
To begin, the jury learned that Mendoza had admitted in interviews
with Agent Pérez and Agent del Valle that all of the items seized
during the search belonged to him and Valle.18 The Government also
presented the handwritten statement that Mendoza gave to the
agents, which read: "The bags that were seized in the pants and
18We explain below why Mendoza's statements did not have to be
suppressed.
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the money are mine. The ones seized in the house are [Valle's]
and mine. [Colón] has nothing to do with this or anything that
was seized inside the house, like the drugs, the weapons, et
cetera." Agent Pérez and Agent del Valle both testified that the
written statement was consistent with the admissions that Mendoza
had verbally given to them earlier regarding his ownership of all
the contraband. While Mendoza disputes that he confessed to
possessing everything seized instead of only the marijuana found
in his jeans and on the dresser in Valle's room, the jury chose to
believe the officers' testimony and drew its own reasonable
inferences from the written and verbal statements, which we are
not to disturb. See United States v. Smith, 680 F.2d 255, 259
(1st Cir. 1982) ("[I]f the evidence can be construed in various
reasonable alternatives, the jury is entitled to freely choose
from among them." (citing United States v. Klein, 522 F.2d 296,
302 (1st Cir. 1975))).
Moreover, additional evidence, construed in the light
most favorable to the verdict, shows that Mendoza had possession
of the backpack containing the rifle, crack cocaine capsules, and
empty baggies found in the child's bedroom where Mendoza was
sleeping and where a number of other items that belonged to him
were also found, such as his shoes, Percocet pills, watch,
necklace, and clothing. Mendoza himself admitted that he had been
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dating Colón's niece and that he had slept in the child's bedroom
on several occasions. A jury could reasonably infer from these
facts, including Mendoza's ownership of certain items and personal
belongings and their proximity to the backpack in the closet, that
Mendoza exercised dominion and control over the bedroom and had
the ability and intention to exercise dominion or control over the
contraband found within it. See United States v. Bristol-Mártir,
570 F.3d 29, 39 (1st Cir. 2009) (explaining jury can infer
constructive possession from "defendant's dominion and control
over an area where narcotics are found" (quotation marks omitted)
(quoting United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.
2006))). Moreover, the fact that Valle was in charge of the
residence and could thus also be the owner of the items does not
negate possession by Mendoza because constructive possession can
be joint. See Hicks, 575 F.3d at 139. Consequently, the jury
could find that Mendoza constructively possessed the cocaine,
rifle, and paraphernalia.
Furthermore, the evidence shows that the empty capsules
found in one of the stolen cars' trunks were identical to those
filled with crack cocaine found hidden in the backpack located in
the room where Mendoza slept. Next to those empty capsules were
also Mendoza's sneakers. These facts further support the jury's
finding that the items belonged to Mendoza.
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Similarly, the jury could have inferred that Mendoza had
constructive possession of the pistol and heroin found on top of
the kitchen cabinet. The Government presented evidence that the
contraband was in plain sight and in a common living area of a
home Mendoza visited and stayed at several times, and therefore,
was accessible to Mendoza. The evidence also showed that Mendoza,
Valle, and Colón were close friends, that Mendoza on average felt
comfortable in the house, and that he and Valle smoked marijuana
in the living room area. Therefore, the jury could reasonably
infer that Mendoza knew those items were there and that he had
"the power and intention at a given time to exercise dominion and
control over" the pistol, heroin, and the other items found
together with the pistol "either directly or through [Valle and
Colón]," and consequently, that he had constructive possession of
such items. García-Carrasquillo, 483 F.3d at 130.
The record also supports the jury's finding that Mendoza
intended to distribute the drugs. Agent Pérez testified that he
found forty plastic capsules holding crack cocaine hidden in the
backpack and sixty aluminum wrappings (the decks) of heroin in a
plastic bag on top of the kitchen cabinet bound with cash and a
pistol. Agent Pérez also told the jury that he had found over a
thousand empty capsules like the ones used to hold the crack
cocaine in the trunk of one of the stolen cars, and that these
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were "used for distribution of a controlled substance." The jury
was entitled to believe these statements, see United States v.
Rivera-Rodríguez, 617 F.3d 581, 595 n.6 (1st Cir. 2010) (noting
that we "do not assess the credibility of a witness, as that is a
role reserved for the jury" (quoting United States v. Troy, 583
F.3d 20, 24, (1st Cir. 2009))), and in any event, it could infer
from the number of individual packages that the drugs were intended
for distribution rather than for personal use. See United States
v. Ayala-García, 574 F.3d 5, 13 (1st Cir. 2009) ("[A] large amount
and individual packaging of drugs is sufficient to demonstrate an
intent to distribute for purposes of section 841(a)(1).").
Agent Vidal's expert testimony that the crack capsules
found in the backpack were "typical packaging of crack capsules to
be distributed, [for] retail" further confirmed Mendoza's intent
to distribute. He also explained generally how heroin was packaged
for distribution and told the jury that, based on the packages
found in the residence and the amount, that it was for distribution
rather than for personal use. Agent Vidal further testified that
when drugs are possessed for distribution, one might also find
paraphernalia, like the plastic baggies and empty plastic vials
found here, "to process [the drugs]." Moreover, the evidence
showed that $129 in cash were found together with the heroin decks
and another $266 were found in Mendoza's pants. A loaded rifle
-22-
and pistol were also found with the crack and heroin, respectively,
and Agent Vidal explained that keeping money together with drugs,
and using guns for protection, were common behaviors for people
who possess drugs for distribution. The jury was entitled to
believe Agent Vidal's testimony, see Rivera-Rodríguez, 617 F.3d at595 n.6, and from these facts, the jury could reasonably infer an
intent to distribute.
Considering all the evidence and the reasonable
inferences drawn therefrom in the light most favorable to the
verdict, we conclude that the evidence was sufficient to support
Mendoza's convictions on Counts Two and Three. Accordingly, his
first attempt to undermine the jury's verdict falls short, and we
turn to his second claim.
3. Firearms Charge
To convict Mendoza for possessing a firearm in
furtherance of a drug trafficking crime under 18 U.S.C.
§ 924(c)(1)(A), the Government had to prove that he "1) committed
a drug trafficking crime; 2) knowingly possessed a firearm; and
3) possessed the firearm in furtherance of the drug trafficking
crime." See United States v. Alverio-Meléndez, 640 F.3d 412, 419
(1st Cir. 2011) (quoting United States v. Pena, 586 F.3d 105, 112
(1st Cir. 2009)); see Bobadilla-Pagán, 747 F.3d at 35. We already
determined that there was sufficient evidence to convict Mendoza
-23-
of possessing controlled substances with intent to distribute --
namely, that he committed a drug trafficking crime, see United
States v. Luciano, 329 F.3d 1, 6 (1st Cir. 2003) (finding that
possessing a controlled substance with intent to distribute is a
drug trafficking crime) -- so the first element is satisfied. The
second element is similarly met as we have concluded that the jury
reasonably could infer Mendoza's constructive possession of the
drugs, and the same possession analysis applies to the firearms.
See United States v. Robinson, 473 F.3d 387, 398 (1st Cir. 2007)
("In order to prove possession of a firearm, the government must
show actual possession or constructive possession."). Therefore,
at this stage we must address whether there was sufficient evidence
to prove the third element of the offense: that Mendoza possessed
the firearms seized "in furtherance of" a drug trafficking crime.
"To satisfy the in-furtherance requirement, the
government must establish 'a sufficient nexus between the firearm
and the drug crime such that the firearm advances or promotes the
drug crime.'" Rodríguez-Torres, 939 F.3d at 30 (quoting United
States v. Gurka, 605 F.3d 40, 44 (1st Cir. 2010)). In assessing
whether the requirement has been satisfied, we analyze the evidence
"from both objective and subjective standpoints."
Bobadilla-Pagán, 747 F.3d at 35. The objective factors include:
"(1) the proximity of the firearm to drugs or contraband;
-24-
(2) whether the firearm was easily accessible; (3) whether the
firearm was loaded; and (4) the surrounding circumstances." Id.
(citing Pena, 586 F.3d at 113). "Evidence of subjective intent
might include a showing that a defendant obtained a firearm to
protect drugs or proceeds," but even if that evidence is lacking,
"the jury may infer intent from the objective circumstances." Id.We find that there was sufficient evidence to support
Mendoza's conviction on this count too. To establish the nexus
between the firearms and the drug crimes, the Government provided
evidence showing that both firearms were loaded and located in
close proximity to the drugs. The rifle was inside the backpack
with the crack cocaine capsules, and the pistol was bound together
with the heroin and cash, along with additional ammunition.
Moreover, Mendoza had access to these items. The rifle was in the
closet in the child's bedroom where he spent the night on more
than one occasion and where he was sleeping at the time of the
search. The pistol, which was in plain view, was placed on top
of a cabinet and could easily be reached by standing on a chair.
The Government also offered the testimony of Agent Vidal, who told
the jury that firearms were "essential in drug trafficking
businesses" because "they promote the continuation of the[]
business to maximize earnings." And although there was no
evidence that any drug transaction occurred, the jury could
-25-
rationally infer from this evidence that the firearms could be
used by Mendoza to protect the activity reflected by the drugs and
money. See Ayala-García, 574 F.3d at 16 (noting that "[w]hen guns
and drugs are found together and a defendant has been convicted of
possession with intent to distribute, the gun . . . may reasonably
be considered to be possessed 'in furtherance of' an ongoing
drug-trafficking crime"); Robinson, 473 F.3d at 400 (finding that
evidence was sufficient to show that possession of firearms was
"in furtherance of" a drug crime where firearms were hidden in an
accessible place and loaded); see also id. at 399 ("[A] sufficient
nexus is more readily found in cases where the firearm is in plain
view and accessible to the defendant during a drug trafficking
offense."). The jury was free to weigh the Government's and
Mendoza's versions of the events and, considering the totality of
the evidence in the light most favorable to the verdict, it
reasonably found that Mendoza possessed the firearms "in
furtherance of" a drug trafficking crime. Thus, his additional
attempt to discredit the verdict also falls short. Accordingly,
we conclude that sufficient evidence supported Mendoza's
convictions on all counts.
B. Motion to Suppress
Next, Mendoza takes aim at the district court's denial
of his motion to suppress. He argues that the statements he made
-26-
to Agent Pérez and Agent del Valle should have been suppressed as
involuntary because the agents did not honor his invocation of the
right to remain silent. He also argues that the evidence obtained
from the search of the residence should have been suppressed
because the search warrant was not supported by probable cause.
We spot no error by the district court and thus reject both of
these challenges.
1. Standard of Review
We review the district court's legal conclusions in
denying a motion to suppress de novo and its factual findings for
clear error. United States v. González-Arias, 946 F.3d 17, 23
(1st Cir. 2019) (citing United States v. Ribeiro, 397 F.3d 43, 48
(1st Cir. 2005)). Credibility determinations and findings of fact
"are susceptible to reversal only where we are definitely and
firmly convinced that a mistake has been made." United States v.
Oquendo-Rivas, 750 F.3d 12, 16 (1st Cir. 2014) (citing United
States v. Nee, 261 F.3d 79, 84 (1st Cir. 2001)). "In reviewing
the affidavit supporting an application for a search warrant, we
give significant deference to the magistrate judge's initial
evaluation, reversing only if we see no 'substantial basis' for
concluding that probable cause existed." Ribeiro, 397 F.3d at 48
(citing United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)).
-27-
2. Suppression of Mendoza's Statements
Mendoza argues that the district court erred in denying
his motion to suppress the verbal and written statements that he
gave to Agent Pérez and Agent del Valle because they were obtained
in violation of the Fifth and Sixth Amendments to the Constitution
and, thus, should have been suppressed. Specifically, Mendoza
argues that he invoked his right to remain silent, but the agents
did not honor it because Agent Pérez's "last chance admonishment"
that Colón would be prosecuted if he did not take responsibility
for the items seized forced him to make involuntary statements.
In response to Mendoza's contention, the Government presses that
such argument was brought too late and is not properly before us
because Mendoza did not raise it in his motion to suppress or at
the suppression hearing but rather in his objections to the
magistrate judge's report and recommendation. Thus, the Government
asks that we deem the argument waived.
We agree with the Government's position. Mendoza's
motion to suppress the statements was originally grounded on a
theory of coercion. Seeing that the theory was unsuccessful (the
magistrate judge's report and recommendation rejected the argument
and denied the motion), he asserted a new claim in his objections
to the report and recommendation that his right to remain silent
was violated based on the alleged coercion -- an untimely claim
-28-
that was not asserted in the motion below nor addressed by the
district court. He presses this right-to-silence argument on
appeal and does not attempt to show or address "good cause" for
its untimeliness. Accordingly, we do not reach the merits of this
claim. See United States v. Rosado-Cancel, 917 F.3d 66, 69 (1st
Cir. 2019) (finding waiver where defendant "fail[ed] to raise [the
argument] before the magistrate judge [and] instead advanc[ed] it
for the first time in his objections to the magistrate's Report
and Recommendation" (citing Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988))); see
also United States v. Galindo-Serrano, 925 F.3d 40, 47-48 (1st
Cir. 2019) ("[A]n untimely motion to suppress is deemed waived
unless the party seeking to suppress can show good cause as to the
delay." (quoting United States v. Sweeney, 887 F.3d 529, 534 (1st
-29-
Cir. 2018))). 19 We therefore find no error in the denial of
Mendoza's request to suppress his statements.20
3. Suppression of the Items Seized
We now turn to Mendoza's contention that the evidence
seized from the search should have been suppressed because the
19To the extent Mendoza's brief could be construed to also include
the initial argument he made below, the same nevertheless fails.
It is well established that "coerced confession[s] [are] improper
because [they are] not 'the product of a rational intellect and a
free will.'" United States v. Hufstetler, 782 F.3d 19, 21-22 (1st
Cir. 2015) (quoting Lynumn v. Illinois, 372 U.S. 528, 534 (1963)).
However, we have held that even "an officer's truthful description
of [a] family member's predicament," without more, "is permissible
since it merely constitutes an attempt to both accurately depict
the situation to the suspect and to elicit more information about
the family member's culpability." Id. at 24. Mendoza does not
share a familial connection to Colón. He was simply dating Colón's
niece and thus any emotional impact caused by what happened to
Colón would presumably be less than if she were a family member.
Moreover, the record does not show, nor does Mendoza argue, that
Agent del Valle's statement exaggerated the situation or was
anything but truthful. See id. at 24-25. Even in cases involving
a person with a closer tie to the defendant than Colón had with
Mendoza here, we have taken no issue with an officer's utilization,
to "both gain more information" and "to elicit more intelligence"
about the individuals involved in the offense being investigated,
of the fact that such person is "a suspect and unless new
information came to light to discount her culpability she would
continue to be criminally liable," so long as the statement is a
truthful representation of the person's predicament. See id. at
25. In light of this, together with the fact that Mendoza was
informed about his rights prior to each interview, and the agents'
testimony that Mendoza appeared "calm," we cannot say that
Mendoza's will was overtaken by the government's conduct. See id.
at 22.
20We note that the facts established in this case suggest that the
PRPD acted properly in its actions and, in particular, in
respecting Mendoza's person and his rights.
-30-
search warrant was overbroad and not supported by probable cause.
Specifically, he asserts that the facts in the affidavit supporting
the application for the warrant did not show "a reasonable
suspicion . . . that the occupant had also hidden weapons or drugs
inside the apartment" and thus the warrant was "improperly extended
to the inside of the house." We find the argument unavailing.
The Fourth Amendment requires that search warrants be
issued only upon a showing of probable cause. United States v.
Rivera, 825 F.3d 59, 63 (1st Cir. 2016) (citing U.S. Const. amend.
IV). Probable cause is "a 'nontechnical conception' that relies
on 'common-sense conclusions about human behavior' and 'the
factual and practical considerations of everyday life on which
reasonable and prudent' people act." González-Arias, 946 F.3d at
22 (citing Illinois v. Gates, 462 U.S. 213, 231 (1983)). To
satisfy this standard, "[a] warrant application must demonstrate
probable cause to believe that (1) a crime has been committed --
the 'commission' element, and (2) enumerated evidence of the
offense will be found at the place to be searched -- the so-called
'nexus' element." Ribeiro, 397 F.3d at 48 (quoting Feliz, 182
F.3d at 86). We construe Mendoza's claim as a challenge to the
"nexus" element of the probable cause standard.
A magistrate judge determines if the nexus element is
satisfied by making "a practical, common-sense decision whether,
-31-
given all the circumstances set forth in the affidavit before
him, . . . there is a fair probability that contraband or evidence
of a crime will be found in a particular place." Id. at 49
(emphasis added) (quoting Gates, 462 U.S. at 238). "'Fair
probability' is another way of saying 'reasonable likelihood.'"
Rivera, 825 F.3d at 63. Here, taking the facts in the light most
favorable to the suppression order, as we must, see United States
v. McGregor, 650 F.3d 813, 823-24 (1st Cir. 2011), we can infer
that there was at least a reasonable likelihood that the stolen
cars and firearms would be found in Valle's residence (or its
premises).
The affidavit supporting the search warrant, prepared by
Agent Marrero, narrated that an unidentified female had given a
confidential report to the PRPD about a "dark-skinned individual"
with short hair known by the name of Joshua (Valle) who was located
at apartment C-16 at Vista de Atenas in Manatí and was in
possession of two stolen Suzuki Vitara vehicles, for which the
informant gave descriptions and license plate numbers. The
informant had also reported that Joshua (Valle) had firearms and
sold controlled substances in the town of Morovis. The affidavit
indicated that Agent Marrero conducted surveillance on
March 23, 2016, of the identified location and was able to
corroborate the information given by the informant. The affidavit
-32-
also explained what Agent Marrero had observed: the blue Vitara
with the license plate described by the informant parked at the
residence, which the police confirmed as stolen. He also saw a
white Vitara matching the description given by the informant arrive
at the residence, driven by a "dark-skinned" individual.
Agent Marrero then saw the individual exit the car and adjust
around his hip what, based on his experience, he identified as a
black firearm. According to the affidavit, when the individual
entered residence C-16 with the firearm, Agent Marrero "los[t]
sight of him." Based on this information, a state magistrate
judge issued a warrant authorizing the search of the residence for
the two stolen Vitaras and firearms.
We can, consistent with common sense, infer from the
facts in the affidavit that there was at least a reasonable
likelihood that the firearm Agent Marrero saw the individual (later
identified as Valle) adjust before entering the home would be found
in that residence. And the affidavit also contains evidence
showing, and corroborating, that the stolen vehicles were on the
residence's premises. The warrant was not solely based on the
confidential informant's tip; Agent Marrero corroborated the
report and personally observed the stolen vehicles parked at the
residence and an individual carrying a gun into the home. See
United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005) (noting
-33-
that where "the basis for the magistrate's probable cause finding
was information provided by an unnamed informant, the affidavit
must provide some information from which the magistrate can assess
the informant's credibility"). Thus, it was reasonably likely
that a search of the residence identified in the warrant would
reveal incriminating evidence.21 Accordingly, we conclude that
the warrant was supported by probable cause. This makes it
unnecessary to assess the good-faith exception, upon which the
magistrate judge relied, as we may affirm on any basis supported
by the record. See United States v. Rivera-Carrasquillo, 933 F.3d
33, 39-40 (1st Cir. 2019).
For these reasons, the district court did not err in
denying the motion to suppress.
C. Sentencing
1. Background
In preparation for sentencing, Mendoza filed a
sentencing memorandum requesting a four-level minimal
21Mendoza contends that Agent Marrero had not supplied facts to
infer that there would be drugs in the residence. While the
warrant authorized a search for the stolen cars and firearms, the
underlying affidavit provided that the informant said the
individual sold drugs in Morovis, such that there would have been
at least a reasonable likelihood that drugs could be found too.
Nonetheless, the drugs here were found while law enforcement
lawfully executed the search that was authorized by the warrant
for the stolen vehicles and firearms.
-34-
participation reduction under U.S.S.G. § 3B1.2, as well as a
further "reduction or variance" due to other mitigating factors,
such as his age, background, and "lack of control over the premises
and the household." For the firearms offense, Mendoza asked the
court to impose the mandatory minimum sentence of five years. For
the drug offenses, he requested a sentence of six months, for a
total sentence of imprisonment of sixty-six months.
At sentencing, Mendoza reiterated his request for a
minimal role adjustment. The Government objected, arguing that
the evidence at trial did not provide a basis for either a
reduction or a downward variance. It countered with a request for
a two-level enhancement for obstruction of justice on grounds that
Mendoza had perjured himself at trial, which Mendoza opposed. The
court rejected Mendoza's contention that his testimony did not
"den[y] any basic or clearly established facts in the case."
Accordingly, it imposed the two-level obstruction of justice
enhancement provided in U.S.S.G. § 3C1.1. In applying this
enhancement, the court made the following findings of perjury:
I believe Mr. Mendoza perjured himself during the
trial when he denied knowing what was in the bag,
which was in the closet of Mr. Valle-Colón's toddler[]
son in which the Kel-Tec assault rifle and the crack
vials, which were the same as [the] crack vials found
in one of the vehicles outside the residence.
I also believe that he perjured himself when he
said that he wasn't permitted to walk into the kitchen
or the bathroom, especially when he had stayed over
-35-
at Mr. Valle-Colón's house on several occasions, which
the Court believes is perjured testimony in an attempt
to distance himself from the weapon found in the
kitchen.
Given the guilty verdict, that testimony were
central and deliberate falsehoods.
The court likewise impliedly rejected Mendoza's request for a
minimal participation adjustment by not applying any reductions.
When the enhancement was added to Counts Two and Three's
(the drug offenses) base offense level of fourteen pursuant to
U.S.S.G. § 2D1.1(c)(13), the total offense level resulted in
sixteen.22 This, in conjunction with Mendoza's criminal history
category of I, yielded a guideline sentencing range ("GSR") of
twenty-one to twenty-seven months of imprisonment for Counts Two
and Three. With respect to Count One (the firearms offense), the
court found that the guideline sentence was the minimum term of
imprisonment required by statute, which was five years pursuant to
18 U.S.C. § 924(c)(1)(A)(i), and that the term had to run
consecutively to any other term imposed. Mendoza was ultimately
sentenced to seventy-two months of imprisonment for Count One23
22Counts Two and Three are grouped for purposes of calculating the
guidelines sentencing range pursuant to U.S.S.G § 3D1.2(d), as
"the offense level is determined largely on the basis of . . . the
quantity of a substance involved." U.S.S.G. § 3D1.2(d).
23The court explained that while the statutory minimum sentence
for Count One was sixty months, the offense in this case involved
an "assault rifle" of "military caliber," which warranted a higher
sentence, and seventy-two months was "the appropriate sentence for
-36-
and twenty-seven months of imprisonment each for Counts Two and
Three.24 The sentences for Counts Two and Three were imposed to
be served concurrently with each other but consecutively to the
sentence for Count One.
On appeal, Mendoza asserts that the court imposed a
procedurally unreasonable sentence because it erred in applying
the enhancement for obstruction of justice under U.S.S.G. § 3C1.1
and in not addressing or granting his request for a reduction in
his offense level due to his alleged minimal participation in the
offense pursuant to U.S.S.G. § 3B1.2. We address each contention
in turn.
2. Standard of Review
We generally review procedural reasonableness challenges
under "a multifaceted abuse-of-discretion standard whereby 'we
afford de novo review to the sentencing court's interpretation and
application of the sentencing guidelines, assay the court's
factfinding for clear error, and evaluate its judgment calls for
abuse of discretion.'" United States v. Arsenault, 833 F.3d 24,
28 (1st Cir. 2016) (quoting United States v. Ruiz-Huertas, 792
that."
24The court stated that it went "up to the high end" of the GSR
because Mendoza had committed perjury and was therefore "more
threatening to society and less deserving of leniency than a person
who does not defy the trial process."
-37-
F.3d 223, 226 (1st Cir. 2015)). Where, as here, the defendant
"challenges the factual predicate . . . of a sentencing
enhancement, we ask only whether the court clearly erred in finding
that the government proved the disputed fact by a preponderance of
the evidence." United States v. Colby, 882 F.3d 267, 271 (1st
Cir. 2018) (internal quotation marks omitted) (quoting United
States v. Cannon, 589 F.3d 514, 517 (1st Cir. 2009)); see also
United States v. Nagell, 911 F.3d 23, 29 (1st Cir. 2018) (reviewing
for clear error the district court's finding of perjury underlying
the imposition of an obstruction of justice enhancement). We
apply the same standard when reviewing denials of sentencing
reductions. See United States v. Valenzuela, 849 F.3d 477, 489
(1st Cir. 2017) (noting that the district court's decision to
impose a minor participant reduction is reviewed for clear error
because "[r]ole-in-the-offense determinations are notoriously
fact-sensitive" (quoting United States v. Montes-Fosse, 824 F.3d
168, 172 (1st Cir. 2016))). The clear-error standard is demanding
and will be satisfied only if, "upon whole-record review, an
inquiring court 'form[s] a strong, unyielding belief that a mistake
has been made.'" United States v. Montañez-Quiñones, 911 F.3d 59,
66 (1st Cir. 2018) (alteration in original) (quoting United States
v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). Viewed
under this lens, both of Mendoza's sentencing claims fail.
-38-
3. Enhancement for Obstruction of Justice
We first consider Mendoza's challenge to the district
court's application of the enhancement for obstruction of justice.
A two-level enhancement is warranted "[i]f (1) the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense
of conviction, and (2) the obstructive conduct related
to . . . the defendant's offense of conviction and any relevant
conduct." U.S.S.G. § 3C1.1. Perjury is among the types of
conduct which the enhancement intends to cover. Id. § 3C1.1 cmt.
n.4(B); see Colby, 882 F.3d at 273. In this context, "[t]he
Supreme Court has adopted the federal definition of criminal
perjury[,] . . . defining it as '[giving] false testimony [under
oath] concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion,
mistake, or faulty memory.'" Nagell, 911 F.3d at 29 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)); see also
U.S.S.G. § 3C1.1 cmt. n.2 (noting that the enhancement does not
apply when the defendant's false testimony is not "a willful
attempt to obstruct justice" because it results from "confusion,
mistake, or faulty memory"). Therefore, the enhancement does not
punish a defendant for exercising his constitutional right to
-39-
testify; it punishes him only if he "commits perjury in the
process." Nagell, 911 F.3d at 29-30 (quoting United States v.
Mercer, 834 F.3d 39, 48 (1st Cir. 2016)).
To impose the enhancement, the sentencing court "must
make factual findings that 'encompass all the elements of perjury
-- falsity, materiality, and willfulness.'" Colby, 882 F.3d at
273 (quoting United States v. Matiz, 14 F.3d 79, 84 (1st Cir.
1994)). But this does not mean that the court has to "address
each element of perjury in a separate and clear finding." Id.(quoting Matiz, 14 F.3d at 84). "Rather, we examine whether 'a
sentencing court's findings encompass all of the factual
predicates for a finding of perjury.'" Id. (quoting Matiz, 14
F.3d at 84).
In making a finding of falsity, the court is not limited
to directly contradictory testimony; it may also rely on "a solid
foundation of circumstantial evidence." Nagell, 911 F.3d at 30
(quoting United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.
1991)). Because the sentencing judge below also presided over the
trial, "we must allow him reasonable latitude for credibility
assessments." Id. (quoting United States v. Shinderman, 515 F.3d
5, 19 (1st Cir. 2008)). The court must also find materiality,
which Application Note 6 defines as "evidence, fact, statement, or
information that, if believed, would tend to influence or affect
-40-
the issue under determination." U.S.S.G. § 3C1.1 cmt. n.6. "The
materiality of a false statement is inferable from the entirety of
the record and the issues at stake at trial." Nagell, 911 F.3d
at 30. Lastly, the third factual predicate -- willfulness -- can
be inferred from sufficient materiality. Id.
Here, in concluding that the enhancement applied, the
court found that Mendoza perjured himself in two instances.
First, when he denied knowing what was inside the backpack found
in the room where he was found sleeping. That bag contained a
loaded rifle and capsules filled with crack cocaine that were
identical to those found in the trunk of one of the stolen vehicles
parked outside the residence, next to a pair of Mendoza's sneakers.
Second, the court found that he committed perjury when he said "he
wasn't permitted to walk into the kitchen or the bathroom,
especially when he had stayed over at [Valle's] house on several
occasions," which the court "believe[d] [was] perjured testimony
in an attempt to distance himself from the weapon found in the
kitchen." The court further found that the statements it
identified constituted "central and deliberate falsehoods."
Mendoza contends that the district court did not make
the required "clear finding" that his testimony was "willfully
false aside from the jury's rejection of his defense." He
maintains that there was "no definite evidence" that the backpack
-41-
belonged to him, that he knew that it was hidden in the closet in
the room where he was sleeping, or that he was involved in drug
trafficking. Mendoza further argues that his testimony denying
having any knowledge of the items seized was not material because
the jury could have rejected his defense simply because of his
association with Valle and the fact that the firearms and drugs
were in Valle's home, where Mendoza was staying, and not because
the jury actually thought Mendoza knew that those items were hidden
in the home.
We find Mendoza's contentions unavailing. As we have
explained, the district court was not required to "address each
element of perjury in a separate and clear finding," as long as
its findings "encompass[ed] all of the factual predicates for a
finding of perjury." Colby, 882 F.3d at 273 (quoting Matiz, 14
F.3d at 84). We begin with the district court's findings that
Mendoza "perjured himself when he said that he wasn't permitted to
walk into the kitchen or the bathroom" and that such testimony was
a "central and deliberate falsehood." These findings are
supported by the record and encompass each of the elements of
perjury. The district court explicitly found that the testimony
was false, aptly noting that Mendoza's assertion was contradicted
by the fact that Mendoza "had stayed over at [Valle's] house on
several occasions." We have no basis for concluding that this
-42-
finding was clearly erroneous; the court could have reasonably
found support in the record. Mendoza testified that he stayed at
Valle and Colón's home several times and that he was in a
relationship with Colón's niece, with whom he would sleep in the
child's room, which was located "right in front of the kitchen."
He also testified that he knew Valle and Colón for at least five
or six years, that he had become closer to Valle in the four to
five months leading to the arrest, and that while he did not feel
as "comfortable as in [his own] house," he felt "normal" in Valle
and Colón's house. Keeping in mind that "the district court is
the primary arbiter of witness credibility" in this context, United
States v. Reynoso, 336 F.3d 46, 50 (1st Cir. 2003), based on the
evidence, the district court reasonably could have found Mendoza's
testimony to be false. See United States v. Guzmán-Batista, 783
F.3d 930, 938 (1st Cir. 2015) ("[A] district court's choice between
two plausible competing interpretations of the facts cannot be
clearly erroneous." (quoting United States v. Henderson, 463 F.3d
27, 32 (1st Cir. 2006))). We also note that Mendoza does not
target this finding of falsity in his briefing, instead directing
his efforts at the court's finding that he lied when he denied
having knowledge of the contents of the backpack, and so Mendoza
cannot challenge the underlying finding now. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-43-
Further, the court explicitly found that the testimony
was willful and material when it noted its belief that Mendoza
testified falsely to "distance himself from the weapon found in
the kitchen." Mendoza's statement was clearly material to his
defense strategy because he was "attemp[ing] to negate having a
mens rea of 'knowingly,' which was an element of the crime" and
"[i]f the jury believed him, his statement[] could have changed
the outcome of the case." See Nagell, 911 F.3d at 31. Moreover,
Mendoza does not argue that his statement was a result of
"confusion, mistake, or faulty memory," see U.S.S.G. § 3C1.1 cmt.
n.2, and "[t]he nature of the material falsehood in this case is
not one in which the willfulness of the falsehood could reasonably
be questioned," Mercer, 834 F.3d at 49.
We thus conclude that the court made factual findings
that encompassed the three elements of perjury, and we cannot say
that the court erred, let alone clearly erred, in finding that
Mendoza committed perjury when he stated that he was not allowed
to walk into the kitchen or bathroom. Accordingly, the court
committed no error in imposing the two-level enhancement for
obstruction of justice. Because "[a] single finding of perjury
is sufficient to uphold the lower court's sentencing enhancement
for obstruction of justice," Nagell, 911 F.3d at 30 (citing United
States v. D'Andrea, 107 F.3d 949, 959 (1st Cir. 1997)), it is
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unnecessary to discuss the court's additional finding of perjury
related to the contents of the backpack.
4. Mitigating Role Adjustment
We now turn to Mendoza's claim that the district court
erred in failing to consider and grant him a reduction for his
alleged minimal role in the offense. Section 3B1.2 of the
Sentencing Guidelines allows a court to decrease the offense level
of a defendant who was a minimal participant in the criminal
activity for which he is being held accountable by four levels,
and the offense level of a defendant who was a minor participant
by two levels.25 U.S.S.G. § 3B1.2(a), (b). Adjustments under this
section apply to defendants whose role in the offense make them
"substantially less culpable than the average participant in the
criminal activity" in which they were involved. U.S.S.G. § 3B1.2
cmt. n.3(A). Among this pool of defendants eligible for an
adjustment, a defendant "who plays a minimal role in the criminal
activity" -- that is, one "who [is] plainly among the least
culpable of those involved in the conduct of a group" -- is
considered a minimal participant. U.S.S.G. § 3B1.2 cmt. n.4. A
minor participant, on the other hand, is a defendant who is
25A defendant who was neither a minimal nor a minor participant
but whose participation falls in between may be considered for a
three-level reduction. See U.S.S.G § 3B1.2.
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substantially "less culpable than most other participants in the
criminal activity, but whose role could not be described as
minimal." U.S.S.G. § 3B1.2 cmt. n.5; see United States v.
Arias-Mercedes, 901 F.3d 1, 5-6 (1st Cir. 2018). In this context,
"participant" means "a person who is criminally responsible for
the commission of the offense, but need not have been convicted."
U.S.S.G. § 3B1.2 cmt. n.1; § 3B1.1 cmt. n.1.
The defendant seeking the mitigating role adjustment
"bears the burden of proving, by a preponderance of the evidence,
that he is entitled to the downward adjustment." Arias-Mercedes,
901 F.3d at 5 (quoting United States v. Pérez, 819 F.3d 541, 545
(1st Cir. 2016)). We have cautioned that "[b]ecause determining
one's role in an offense is a fact-specific inquiry, 'we rarely
reverse a district court's decision regarding whether to apply a
[mitigating] role adjustment.'" United States v. De la
Cruz-Gutiérrez, 881 F.3d 221, 225-26 (1st Cir. 2018) (quoting
United States v. Bravo, 489 F.3d 1, 11 (1st Cir. 2007)). Thus,
"[a] defendant will 'only prevail on appeal by demonstrating that
the district court's determination as to his role in the offense
was clearly erroneous.'" Id. at 226 (quoting United States v.
González-Soberal, 109 F.3d 64, 74 (1st Cir. 1997)).
Mendoza alleges that the district court erred in denying
a mitigating role adjustment because it failed to accurately
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determine his role in the offense by considering all the relevant
circumstances and facts, which, according to Mendoza, establish
that his role was "clearly peripheral." He contends that it was
Valle who was in control of the residence and the stolen vehicles,
and that there is no evidence that he (Mendoza) participated in
drug transactions or that he was responsible for the decision to
use the residence as a stash house for stolen vehicles, weapons,
and drugs.
We reject Mendoza's argument, but first we acknowledge
that the record does not provide, at least explicitly, the court's
factual basis for its determination of Mendoza's role. At
sentencing, the court did not explain why it was denying Mendoza's
request for a minimal participation reduction, nor did it make any
findings of fact as to his role in the offense. Instead, the
court heard the parties' arguments regarding the minimal
participation reduction and in pronouncing the sentence it imposed
the obstruction of justice enhancement but not the reduction,
stating that "no other guideline adjustments are applied."
Nevertheless, we have held in other sentencing contexts that the
district court need not tick through every factor in coming to its
decision. See United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006) (finding court not required to address § 3355(a) factors one
by one). We have also recognized that "a court's reasoning can
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often be inferred by comparing what was argued by the parties" to
what the court did. United States v. Rivera-Clemente, 813 F.3d
43, 50 (1st Cir. 2016) (quoting United States v. Ocasio-Cancel,
727 F.3d 85, 91 (1st Cir. 2013)). At sentencing, the Government
argued against the minimal participant reduction, stating that
Mendoza had an "equal participation" in the offense, access to the
stolen vehicles -- in one of which an item that belonged to Mendoza
was found -- and that he "had the most dangerous weapon of the
two." The Government also averred that Mendoza had admitted to
possessing the firearms and the drugs with Valle. Although the
court did not state so explicitly, we can infer that it sided with
the Government's arguments and therefore decided not to apply the
reduction.
In any event, Mendoza failed to meet his burden of
proving that he was entitled to the minimal participation
reduction. See Arias-Mercedes, 901 F.3d at 5. In his sentencing
memorandum, Mendoza argued that he was not the owner of the
residence and that it was Valle who was in possession of the two
stolen vehicles and who was observed in possession of firearms and
depicted as a drug dealer. He further pressed that "his probable
participation could only have been as a helping hand or aide" and
that he admitted to joint possession with Valle "only after he was
confronted with the possibility that if [someone] did not admit to
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it, [Colón] could also be prosecuted." On appeal, he re-emphasizes
that he did not exert control over the residence or the stolen
vehicles and that he did not make the decision to use the residence
as a stash house. However, "the fact that someone else[, here,
Valle,] might have been more culpable than [Mendoza] does not
necessarily mean that [Mendoza's] participation was minor [or
minimal]." De la Cruz-Gutiérrez, 881 F.3d at 226. Mendoza had
to show that "he was [substantially] less culpable than" Valle.
Id. (emphasis in original); see Arias-Mercedes, 901 F.3d at 8.
His statement admitting co-ownership with Valle, however, puts the
two on equal footing. See De la Cruz-Gutiérrez, 881 F.3d at 226-27
(an admission that another individual performed a role that was
substantially similar defeats the claim for a minor role
reduction). Moreover, Mendoza overlooks his testimony that he had
stayed at Valle's house several times, as well as the fact that
the jury found him guilty of possessing the firearms and drugs,
and the evidence supported an inference that Mendoza had access to
the stolen cars because his sneakers were found in one of the cars'
trunks, along with empty vials that were identical to those found
inside of the backpack located in the room where he was found
sleeping at the time of the search, and which he used on the
occasions he stayed at the residence. There is sufficient
evidence in the record from which the court reasonably could have
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found that Mendoza was not substantially less culpable than Valle.
Accordingly, it was not clearly erroneous for the court to refuse
to apply the mitigating role adjustment, even if it did so
implicitly.
Having rejected both of Mendoza's sentencing challenges,
we uphold Mendoza's sentence.
III. Conclusion
In sum, the record reflects that the evidence of
Mendoza's guilt was more than sufficient to support the jury's
verdict and that the district court did not err in denying his
motion to suppress the statements he provided to law enforcement
or the evidence seized from the residence. It further shows that
the court did not clearly err in imposing the sentencing
enhancement for obstruction of justice because Mendoza perjured
himself, or in rejecting his request for a reduction in his offense
level based on his purported minimal participation in the offenses.
Accordingly, we affirm Mendoza's convictions and sentence.
Affirmed.
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