United States v. Garcia-Sierra ( 2021 )

United States Court of Appeals
For the First Circuit
No. 16-2503
UNITED STATES OF AMERICA,
Appellee,
v.
ADOLFO LEÓN GARCÍA-SIERRA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Torresen, District Judge.*
Linda A. Backiel for Appellant.
Kaitlin E. Paulson, Attorney, Appellate Section,
Criminal Division, U.S. Department of Justice, with whom John P.
Cronan, Acting Assistant Attorney General, Rosa Emilia Rodríguez-
Vélez, United States Attorney, and Mariana E. Bauza Almonte,
Assistant United States Attorney, were on brief, for Appellee.
April 7, 2021
* Of the District of Maine, sitting by designation.
HOWARD, Chief Judge. Adolfo León García-Sierra
("García") was convicted by a jury of conspiring to commit drug
trafficking offenses and was sentenced to a term of imprisonment
of 224 months and 8 days. He appeals both from his convictions
and from his sentence, arguing that the erroneous admission of
certain evidence tainted the verdicts and that his sentence is
unreasonable. After determining that there was trial error but
that it was harmless, we affirm the convictions. We do, however,
remand for resentencing.
I. BACKGROUND
The indictment alleged a drug importation operation
involving the shipment of large amounts of cocaine from South
America to Puerto Rico between August 2012 and June 2014. García
was charged with conspiracy to possess with intent to distribute
a controlled substance in violation of 21 U.S.C. § 846 and
conspiracy to import narcotics into the United States in violation
of 21 U.S.C. § 963.
By way of background to García's legal challenges, we
briefly sketch the central evidence presented during García's
trial -- employing a "balanced-presentation" approach as we did in
United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014)
-- as well as the sentence he received thereafter. We leave
further elaboration of the facts to our discussion of each of
García's claims.
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A. The December 2012 Rescue at Sea
The first witness at trial was Julio Ruiz, a member of
the Coast Guard stationed in San Juan, Puerto Rico. Ruiz testified
that in December 2012, he responded to a report made by a shipping
vessel that had observed a small boat adrift about fifteen miles
offshore with two persons aboard, calling for help. Ruiz located
the small boat and rescued its two occupants, one of whom was
García. Ruiz testified that this search-and-rescue stood out to
him because the persons on board lacked documents, and the stories
they told "seemed odd." They had explained that they had been on
a larger ship that had sunk very quickly and that they had escaped
from the sinking vessel onto the small boat on which they were
found. This story seemed odd to Ruiz because the Coast Guard had
received no report of a large ship in distress, because large ships
do not sink quickly, and because when they do sink, they leave an
oil sheen on the water, of which there was no trace. After
completing the rescue, the Coast Guard transferred the two persons
to the Customs and Border Protection agency.
B. Testimony by Agent De Jesús
This curious story was followed by the testimony of FBI
Agent Juan De Jesús. De Jesús testified that around November 2012
he had been investigating an organization which, according to an
unnamed source, was in the business of smuggling cocaine from South
America to Puerto Rico by sea. In December of that year, De Jesús
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"was advised that two persons matching the modus operandi of the
organization had been rescued out at sea." De Jesús eventually
interviewed each of these two persons, one of whom was García. De
Jesús testified that during his interview with García, García
explained to him that, prior to their rescue by the Coast Guard,
he and his companion had been on a shipping vessel en route to the
Dominican Republic for the purpose of transporting gasoil to
Venezuela.
De Jesús testified that García's shipwreck companion
provided him with a similar but slightly different story: that he
and García had been on a shipping vessel en route to the Dominican
Republic for the purpose of transporting large amounts of cash.
De Jesús proceeded to describe how García's companion eventually
agreed to serve as an informant and began supplying De Jesús with
ongoing updates about cocaine trafficking activity between South
America and the Caribbean. De Jesús testified how the informant's
assistance ultimately enabled law enforcement to seize a large
shipment of cocaine upon its arrival in Puerto Rico's Guayanilla
Bay in October 2013.
C. The October 2013 Seizure
The testimony by Agent De Jesús was followed by testimony
from seven different witnesses all concerning the details of the
law enforcement operation that resulted in the seizure of the
cocaine shipment in Guayanilla Bay in October 2013. This evidence
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is both voluminous and uncontested on appeal. It suffices for our
purposes to note that the government amply demonstrated that its
agents seized over 200 kilograms of bundled cocaine after members
of the surveilled organization had transferred the bundles from a
ship to a small stash house on shore.
D. The Informant's Account
Next to testify was García's shipwreck companion turned
government informant. He testified that he began working as a
boat captain for a cocaine trafficking organization in 2012. He
described the organization's basic trafficking method: using small
boats to carry bundled cocaine bricks out to a larger cargo ship
waiting some twenty miles offshore, and then doing the same in
reverse once the larger ship approached the target destination.
The witness described several specific trafficking
voyages in which he took part. He identified García as having
accompanied him on one trip in late 2012. García's role was to
inspect the cocaine upon arrival to ensure the cargo made it
through the journey intact. According to the witness's account,
he and García used a small boat to transport the cocaine from the
Venezuelan coast to a large cargo ship waiting offshore. They
sailed on the larger ship until they neared the Puerto Rican coast,
at which time they offloaded the cocaine onto a small boat and set
off in the small boat for shore. Shortly thereafter, the small
boat began to take on water. The pair threw the cocaine overboard
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and managed to stay afloat on the sinking vessel. They eventually
caught the attention of a fishing vessel, which reported their
plight to the Coast Guard, leading to the duo's rescue. The
witness testified that he was subsequently questioned by Agent De
Jesús and eventually agreed to serve as an informant.
Finally, the witness testified that García was involved
with the shipment to Guayanilla Bay in October 2013. According to
the witness, although García did not accompany him on the actual
voyage, García helped to organize and load the cocaine at the point
of origin. When the shipment arrived in Puerto Rico, the witness
informed Agent De Jesús of its location, enabling its seizure by
law enforcement.
E. The May 2011 Seizure
The final pieces of evidence presented by the government
brought the jury back in time to a smuggling incident from May
2011, before the start of the conspiracy for which García was on
trial. The government had moved in limine indicating its intent
to introduce this evidence for the purpose of proving García's
knowledge and intent. The May 2011 activity was part of the basis
of separate conspiracy charges against García which were pending
resolution in other proceedings. García argued that the evidence
was inadmissible. The district court did not rule on its
admissibility in advance of trial but ultimately permitted the
government to present the evidence to the jury.
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The government employed three witnesses to do so. Two
officers testified about their dramatic interception of a large
shipment of cocaine which had arrived in Puerto Rico in May 2011.
The third witness, a government informant (different from the one
who had been rescued with García in 2012),1 testified that in May
2011 he and García were involved with a large shipment of cocaine
to Puerto Rico. This witness also authenticated a recording of a
phone call that he described as a conversation between himself and
García about the sale of six kilograms of cocaine.
F. Conviction, Sentencing, Appeal
The jury convicted García, and a Presentence
Investigation Report (PSR) was prepared, recommending a sentence
within the range of 235 to 293 months of imprisonment. The
district court imposed a sentence of approximately 224 months,
reflecting a sentence at the lowest end of the recommended range
with a reduction for the time that García had spent incarcerated
in Colombia prior to his extradition to the United States.
García appealed, challenging the introduction of
"overview" testimony from several of the government's witnesses,
the admission of evidence regarding the cocaine seizure in May
2011, and the reasonableness of his sentence.
1 Hereafter, we refer to this witness as "the 2011 informant"
when necessary to distinguish from the one who had been rescued
with García in 2012. References hereafter simply to "the
informant" refer to García's shipwreck companion.
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II. EVIDENTIARY CHALLENGES
We tackle the evidentiary challenges first. We conclude
that the trial court erred in permitting the government to solicit
"overview" testimony from Agent De Jesús and in allowing it to
present evidence relating to the May 2011 cocaine seizure. But we
find both errors harmless and affirm García's convictions.
A. Standard of Review
Where an appellant objected to a district court's evidentiary
ruling at trial, we review the district court's decision for abuse
of discretion. United States v. Watson, 695 F.3d 159, 162 (1st
Cir. 2012). If our review shows that the trial court acted outside
the bounds of its discretion, then we vacate the conviction unless
the error was harmless. United States v. Brown, 669 F.3d 10, 24
(1st Cir. 2012); Fed. R. Crim. P. 52(a).
Where the appellant did not voice the same objection at trial,
we review only for plain error. Watson, 695 F.3d at 162. If we
find that the trial court plainly erred -- in other words, erred
in a way which is "clear or obvious" -- then we vacate the
conviction if the appellant persuades us both that the error
"affected his substantial rights" and that the error "seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings." Id. at 163; see also Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904-05 (2018).
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B. Overview Testimony
García argues that certain statements made by Agent De
Jesús early in the trial constituted inadmissible "overview"
testimony. See United States v. Meises, 645 F.3d 5, 13 (1st Cir.
2011); United States v. Flores-De-Jesús, 569 F.3d 8, 17 (1st Cir.
2009); United States v. Casas, 356 F.3d 104, 118-19 (1st Cir.
2004).2 Because García failed to make this objection at trial, we
review for plain error. See United States v. Laureano-Pérez, 797
F.3d 45, 66-67 (1st Cir. 2015); United States v. Valdivia, 680
F.3d 33, 47 n.10 (1st Cir. 2012).
Testimony by a law enforcement agent constitutes
impermissible "overview" testimony when it effectively opines that
a defendant is guilty "based on the totality of information
gathered" in the agent's investigation, rather than relaying the
agent's first-hand experiences and observations. Meises, 645 F.3d
at 15 (quoting Flores-De-Jesús, 569 F.3d at 19). Such opinions
are impermissible coming from a lay witness,3 whose "testimony in
2 Following García's lead, we focus on the "overview"
statements made by Agent De Jesús, but we acknowledge that García
also argues that former officer Gerardo Torres Molino likewise
provided impermissible overview testimony. Because Torres's
testimony related to the investigation underlying the Rule 404(b)
evidence -- which we ultimately hold was admitted in error on other
grounds (as discussed below) -- we do not discuss Torres's
testimony here.
3 Though not relevant here, such opinions are equally
impermissible coming from an expert. See Meises, 645 F.3d at 18
n.20; Casas, 356 F.3d at 120.
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the form of an opinion is limited to one that is . . . rationally
based on the witness's perception." Fed. R. Evid. 701(a); see
also Meises, 645 F.3d at 15; Valdivia, 680 F.3d at 47 ("Because
the witness is, in essence, testifying about the results of a
criminal investigation before the government has presented any
evidence -- often including aspects of the investigation in which
he did not actually participate -- we have repeatedly admonished
the use of such testimony.").
Such overview testimony from a law enforcement officer
remains problematic even when the specific information
undergirding the officer's conclusory statements eventually comes
into evidence. See Flores-De-Jesús, 569 F.3d at 17. The problem
is two-fold. First, such testimony "effectively usurp[s] the
jury's role as fact-finder" by suggesting which inferences the
jury should draw from the evidence appropriately before it.
Meises, 645 F.3d at 16. "[H]aving [an agent] so testify amount[s]
to simply dressing up argument as evidence." Id. at 17. Second,
to the extent such testimony is a "preview of other witnesses'
testimony," it functions as an endorsement by the government of
the first-hand witness's account, thereby impermissibly bolstering
that witness's credibility. Id.; see also Casas, 356 F.3d at 120("Overview testimony by government agents is especially
problematic because juries may place greater weight on evidence
perceived to have the imprimatur of the government."); Flores-De-
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Jesús, 569 F.3d at 18 ("The overview testimony of a law enforcement
official is not simply a repetition (at best) of other evidence.
It is also, in effect, an endorsement of the veracity of the
testimony that will follow.").
Of course, as long as a law enforcement agent's testimony
is limited to what he has gleaned from his first-hand observations,
there is nothing wrong with the agent "describ[ing] the course of
his investigation in order to set the stage for the testimony to
come." Flores-De-Jesús, 569 F.3d at 19; see also United States v.
Rosado-Pérez, 605 F.3d 48, 56 (1st Cir. 2010) ("If a proper
foundation is laid, government witnesses may testify about matters
within their personal knowledge.").
With these principles in place, we consider the
testimony which García challenges here. García primarily points
to various statements made by Agent De Jesús which mention the
existence and methods of "a cocaine trafficking organization"
without indicating any first-hand basis for the testimony.4 De
4 Within his "overview" testimony argument, García includes
objections to De Jesús's testimony regarding the informant's
purported text messages with García. It remains unclear to us how
this testimony arguably constitutes impermissible overview. It
consists of De Jesús authenticating screen shots he had taken of
text messages the informant had shown him on his phone, testifying
that the informant had told him that the messages were from a
conversation with García, and then reading the messages out loud.
Defense counsel preserved a hearsay objection to the testimony's
admission, but García provides no developed argumentation on
appeal that the testimony was hearsay or the messages improperly
authenticated. Even if we were to assume that the district court
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Jesús relayed details of several of this organization's smuggling
ventures of which he had no personal knowledge. Much of Agent De
Jesús's testimony detailed information De Jesús knew only because
his informant had told it to him.
De Jesús further testified that he had been "advised
that two persons matching the modus operandi of the organization
had been rescued out at sea." He proceeded to identify these two
persons as his later informant and García, and identified the
latter by name, by photograph, and by pointing to García in court.
De Jesús testified briefly about having interviewed García
sometime after his rescue at sea.
Aspects of this testimony raise some of the concerns
that have troubled us with previous uses of overview witnesses.
See, e.g., Casas, 356 F.3d at 118-19; Flores-De-Jesús, 569 F.3d at
23-24, 26-27. Agent De Jesús testified "well beyond his personal
knowledge" when he discussed the existence, methods, and myriad
ventures of the smuggling operation. Casas, 356 F.3d at 118. Much
erred in overruling García's objection, we would find the error
harmless. The informant later testified about these same text
messages and their connection to García. Moreover, De Jesús's
testimony about the texts was so garbled it could hardly be said
to have helped the government's case: De Jesús mistakenly read the
messages out of order, he did not indicate who was the author of
each message, and numerous translation issues stilted the reading.
And to his botched reading of the messages, De Jesús added nothing,
for he neither analyzed nor interpreted them.
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of his "testimony was unquestionably hearsay. It unnecessarily
anticipated testimony that [the informant] would give himself. It
had the imprimatur problems we have described." Flores-De-Jesús,
569 F.3d at 23. Most problematically, it identified García as a
member of the smuggling organization with whom the informant was
in communication.5 This was tantamount to "testif[ying] that . .
. the defendant[] was guilty of the conspiracy charged." Id. at
24 (quoting Casas, 356 F.3d at 119).
But De Jesús stopped short of giving his own conclusions
about the role García played in the conspiracy, which we have
previously considered especially problematic. See Flores-De-
Jesús, 569 F.3d at 24 (considering "[t]he most troubling part of
Agent Toro's testimony" to be "his conclusions about the roles of
the defendants in the conspiracy"); Meises, 645 F.3d at 16, 18(holding inadmissible agent's testimony expressing "his opinions
as to defendants' roles in the conspiracy" because "it was patently
unfair for [Agent] Cruz to present his view of appellants'
culpability"). Thus, the problem here is limited to the concern
that De Jesús's testimony may have been interpreted by the jury as
"vouching" for another witness's subsequent testimony. Cf.
5 During its direct examination of Agent De Jesús, the
government asked whether "[the informant was] also communicating
to other members of the organization," to which De Jesús responded
"yes," and then stated that "he also had -- was communicating with
Adolfo Léon García-Sierra."
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Meises, 645 F.3d at 17-18 (considering "the problem with Cruz's
testimony [to] extend beyond vouching for what the jury may
perceive as a less credible witness").
Still, the problem remains that De Jesús, like the agent
in Meises, "had no insight to offer the jurors based on personal
knowledge of the [defendant's] inculpatory conduct. Like them, he
had to rely on [an informant's] account." 645 F.3d at 16. But we
proceed on plain error review, and we cannot say that the
problematic aspects of De Jesús's testimony both "affected
[García's] substantial rights" and "seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings." Watson, 695 F.3d at 163.
The factual matter provided by De Jesús's testimony
otherwise came into evidence. A member of the Coast Guard had
already testified about rescuing García and the other man at sea,
and had noted that the story they told to explain their
circumstance had struck him as implausible. And the informant
eventually testified extensively about his first-hand experiences
with the smuggling operation generally, and with García
specifically.
The remaining potential prejudice is therefore the
effect of De Jesús's testimony on the jury's assessment of the
informant's credibility. Without a doubt, this witness's
testimony was indispensable to the government's case, and it is
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impossible to divine the precise influence De Jesús's preview of
the witness's account may have had on the jury's assessment of the
witness's credibility. But on plain error review García bears the
burden of persuading us that the errors plaguing De Jesús's
testimony harmed him, see United States v. Morris, 784 F.3d 870,
874 (1st Cir. 2015), and we are not persuaded that they did. The
informant stood up impressively well to cross examination. No
holes whatsoever were poked in his story. And that story was
consistent with other competent evidence proffered by the
government: most importantly, by the Coast Guard officer's
testimony and by the testimony regarding the Guayanilla seizure.
Consequently, García's challenge to the admittedly problematic
overview testimony provided by Agent De Jesús falters on the shoals
of plain error review. It provides no basis for relief.
C. Rule 404(b) Evidence
We turn next to García's second evidentiary challenge,
which concerns the admission of prior-bad-acts evidence under
Federal Rule of Evidence 404(b). Before turning to the specifics
of García's challenge, we overview the basic legal landscape.
Rule 404(b) concerns the admissibility of evidence of
"crimes, wrongs, or acts" other than those for which a defendant
is on trial. Rule 404(b)(1) states that "[e]vidence of any other
crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person
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acted in accordance with the character." Thus, Rule 404(b)(1)
prohibits a particular inference one might draw from such evidence:
it "forbid[s] the prosecution from asking the jury to infer from
the fact that the defendant has committed a bad act in the past,
that he has a bad character and therefore is more likely to have
committed the bad act now charged." United States v. Moccia, 681
F.2d 61, 63 (1st Cir. 1982) (Breyer, J.). We refer to this
inference as the forbidden "propensity inference." See, e.g.,
United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000).
But Rule 404(b) does not render inadmissible prior-bad-acts
evidence for any other purpose, such as to prove "motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2).
A trial court faced with a proffer of prior-bad-acts
evidence "must engage in a two-step analysis" to determine whether
the evidence should be admitted. United States v. Tkhilaishvili,
926 F.3d 1, 15 (1st Cir. 2019); see also United States v. Martínez-
Mercado, 919 F.3d 91, 101 (1st Cir. 2019). First, the trial court
must determine whether the evidence has a "special relevance" to
an issue in the case. Tkhilaishvili, 926 F.3d at 15 (quoting
Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1373
(1st Cir. 1991)); see also United States v. Sabean, 885 F.3d 27,
35 (1st Cir. 2018). "Special relevance" is a bit of a misnomer,
for what step one requires is that the evidence be relevant "for
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any purpose apart from showing propensity to commit a crime."
United States v. Habibi, 783 F.3d 1, 2 (1st Cir. 2015) (quoting
United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013)); see also
Tkhilaishvili, 926 F.3d at 15 (explaining that step one of the
analysis is satisfied if the evidence is relevant for a purpose
other than "to show a defendant's evil inclination" (quoting
Veranda Beach, 936 F.2d at 1373)). If the prior-bad-acts evidence
is relevant only for the forbidden propensity inference, then the
evidence is inadmissible under Rule 404(b)(1) and the inquiry ends.
See, e.g., Martínez-Mercado, 919 F.3d at 101-03. Otherwise the
trial court advances to step two, the application of Federal Rule
of Evidence 403. See, e.g., Habibi, 783 F.3d at 4. Under Rule
403, the trial court may exclude the prior-bad-acts evidence if it
determines in its discretion that the probative value of the
evidence is substantially outweighed by any unfair prejudice. See
Tkhilaishvili, 926 F.3d at 15; United States v. Hicks, 575 F.3d
130, 142 (1st Cir. 2009).
With that prelude, we return to García's specific
challenge. García contends that the district court failed to
properly conduct each step of the Rule 404(b) analysis. As to the
first step, he argues that the district court erred by failing to
require the government to specify the permissible purpose for which
the prior-bad-acts evidence was admissible, and he further argues
that there was no such permissible purpose. García argues that
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error at the second step flows from this initial error, for having
failed to specify any permissible purpose for which the prior-bad-
acts evidence was admissible, the district court was unable to
weigh the probative value of that evidence against any unfair
prejudice it could cause. Finally, García argues that the
probative value of the Rule 404(b) evidence was indeed
substantially outweighed by its unfairly prejudicial effect.
As we set out to explain, we disagree with García's
contention that the district court failed to conduct the two steps
of the Rule 404(b) analysis, but we agree that the outcome of that
analysis should have been the exclusion of the Rule 404(b) evidence
under Rule 403. Determining that this error was also harmless,
however, we affirm García's convictions.
1. Step One
As García persistently objected to the admission of the
prior-bad-acts evidence at trial, we review the district court's
"ruling that [this] evidence was admitted consistent with [Rule]
404(b) . . . for abuse of discretion." United States v. Gemma,
818 F.3d 23, 35 (1st Cir. 2016); see also United States v. Moon,
802 F.3d 135, 144 (1st Cir. 2015). As we set out to explain, we
detect no abuse of discretion at step one.
García contends that the district court procedurally
erred by failing to specify the particular purpose for which it
deemed the Rule 404(b) evidence admissible. Cf. United States v.
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Arias-Montoya, 967 F.2d 708, 713 (1st Cir. 1992) (stating that
prior-bad-acts evidence "should not be accepted unless the
government articulates with suitable precision the 'special'
ground for doing so" (quoting United States v. García–Rosa, 876
F.2d 209, 221 (1st Cir. 1989), vacated on other grounds sub nom.
Rivera-Feliciano v. United States, 498 U.S. 954 (1990))). We
disagree.
García never requested that the district court clarify
the permissible purpose for which the Rule 404(b) evidence was
admissible, and the record before us indicates that it was clear
that the government offered this evidence to prove García's
knowledge and intent.6 While the judge never explicitly stated
The government's notice of intent stated that the type of
6
prior-bad-acts evidence which it would seek to admit "tend[s] to
prove that a required state of mind existed at the time required
by the instant accusations, establishing the existence of
significant probative value." The notice further pointed out that
"[t]he instant offenses require both that possession be knowing
and with intent to distribute." The defense can hardly complain
that this notice failed to communicate the purpose for which the
government purported to offer the prior-bad-acts evidence, as it
stated in its responsive motion that "[t]he United States is
evidently offering this evidence to prove 'knowledge and intent.'"
Moreover, when the court asked the government at trial to clarify
"the issue here that makes this 404(b) testimony relevant," the
government replied, "I think there is an issue of known possession
and intent -- or an issue of lack of mistake. And, hence, we
presume brother counsel is going to say, 'Oh, they were rescued.
By [sic] my guy didn't know anything about these drugs or anything
that was happening.'" And in a later colloquy between the judge
and defense counsel over the evidence's admissibility, the defense
acknowledged that it understood that the evidence was being offered
to prove "[k]nowledge or intent."
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the specific purpose for which he considered the prior-bad-acts
evidence admissible, this alone is not error. See United States
v. Donovan, 984 F.2d 507, 511 (1st Cir.) (stating that "explicit
findings under Rule 404(b) . . . are not an invariable prerequisite
to the admission of Rule 404(b) evidence"), reheard on other
grounds, United States v. Aversa, 984 F.2d 493 (1st Cir. 1993).
Because the government had made clear the purposes for which it
was offering the prior-bad-acts evidence, the trial court acted
within its discretion by not expressly stating the permissible
relevance for which it deemed the evidence admissible.
As to whether the prior-bad-acts evidence was in fact
relevant to García's knowledge or intent, we agree with the
government that it was arguably relevant to García's knowing
participation in the cocaine smuggling operation.7 Through the
7 We set intent aside. The government has failed to provide
us with any case-specific explanation for how the prior-bad-acts
evidence offered here was relevant to García's intent. Cf. United
States v. Henry, 848 F.3d 1, 9 (1st Cir. 2017) (emphasizing that
district courts must "carefully consider the proponent's assertion
of why a prior [bad act] has special relevance and examine whether,
in the particular case-specific circumstances, the proponent is
simply attempting to disguise propensity evidence by artificially
affixing it with the label of a permitted Rule 404(b)(2) purpose");
see also Martínez-Mercado, 919 F.3d at 102 (cautioning that "the
relevance of a prior conviction admitted to prove 'intent' . . .
may rest on little more than propensity" (quoting Henry, 848 F.3d
at 15 (Kayatta, J., concurring))); United States v. Lynn, 856 F.2d
430, 436 (1st Cir. 1988) (noting that, absent the forbidden
propensity inference, "the probative worth of [the defendant's]
conviction toward proving his intent to commit the instant offense
is difficult to conceptualize").
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prior-bad-acts evidence, the government sought to show that García
had previously smuggled cocaine from South America to Puerto Rico
by sea. If credited, this evidence would tend to decrease the
likelihood that García was ignorant of the illicit purpose of the
sea voyage on which he had embarked in December 2012, an argument
the government may have fairly anticipated given that García had
told Agent De Jesús that the purpose of the ill-fated trip had
been to transport gasoil. Cf. United States v. Robles-Alvarez,
874 F.3d 46, 51 (1st Cir. 2017) (considering evidence of prior
drug smuggling trip relevant where defense might have argued "that
the appellant's mere presence with [a co-conspirator] on the
voyages was not sufficient to support a conviction").
García complains that he never actually defended against
the charges based on a lack of knowledge. But knowledge was an
element of the crimes charged that the government had to prove,
and nowhere did García "express a clear and unequivocal intention
to remove" the issue of knowledge from the trial. United States
v. Garcia, 983 F.2d 1160, 1174 (1st Cir. 1993) (emphasis omitted).
Absent an "offer to stipulate" or its practical equivalent,
evidence of García's knowledge was relevant to the case and not
barred by Rule 404(b). Id.; see also Henry, 848 F.3d at 9 ("A
defendant's failure to argue lack of knowledge . . . does not
'remove th[at] issue[] from the case.'" (quoting United States v.
Pelletier, 666 F.3d 1, 6 (1st Cir. 2011))).
- 21 -
In short, the district court permissibly considered the
prior-bad-acts evidence "specially" relevant for proving García's
knowledge. See, e.g., United States v. Lopez-Cotto, 884 F.3d 1,
13-14 (1st Cir. 2018). There was no abuse of discretion at step
one.
2. Step Two
Though it was acceptable for the district court to
consider the prior-bad-acts evidence proffered by the government
probative as to knowledge and thus not barred by Rule 404(b)(1),
the court was nonetheless obliged to consider whether the admission
of this evidence would unfairly prejudice García and to exclude
the evidence if its probative value was substantially outweighed
by its prejudicial effect. See Fed. R. Evid. 403; Tkhilaishvili,
926 F.3d at 15. Because García objected to the admission of the
prior-bad-acts evidence at trial under Rule 403, we review the
district court's admission of the prior-bad-acts evidence
notwithstanding that objection for abuse of discretion. See Gemma,
818 F.3d at 35.
At the outset, we reject García's contention that the
district court failed to conduct Rule 403 balancing at all.
Although the court did not do so explicitly, the record indicates
that the court performed the requisite balancing implicitly. See
United States v. Breton, 740 F.3d 1, 15 (1st Cir. 2014) ("[T]he
absence of an express Rule 403 finding . . . does not mean the
- 22 -
district judge failed to perform this analysis."). Prior to the
introduction of the evidence on the third day of trial, there was
an extensive discussion on its admissibility. It is clear from
this discussion that the court understood García's objection to
the evidence to be rooted in Rule 403. Moreover, the court's
questions to counsel indicate that it considered both the prejudice
and the probative value of this evidence. It is also evident from
the court's subsequent questions that it continued to consider the
value and prejudice of the evidence as it was presented.
Nonetheless, we disagree with the outcome of the court's
implicit balancing. The prior-bad-acts evidence had marginal
permissible relevance; it was lengthy, confusing, and
unaccompanied by sufficient guidance from the court; and (as is
often the case with prior-bad-acts evidence) the potential for
prejudice was fairly obvious. To explain, we first review the
prior-bad-acts evidence which the government presented. We then
describe its limited permissible probative value, how that value
was overshadowed by its potential for prejudice and confusion, and
how this prejudice and confusion was not mitigated by the
instructions provided to the jury.
The government used three witnesses to present the
prior-bad-acts evidence. First, the two officers described their
surveillance of a drug trafficking organization's members and
activities. They testified in detail about an incident in which
- 23 -
a cargo van that they had been surveilling fled inspection at a
ferry terminal. The high-speed chase which ensued ended only when
the fleeing van lost control and crashed in a field. The officers
testified that they recovered from the van 525 kilograms of cocaine
wrapped in black plastic bags. Photographs of the van, the ferry,
and the cocaine were all introduced into evidence.
The officers' testimony did not connect the May 2011
cocaine seizure to García, whom the officers never mentioned. The
government instead attempted to make this connection through the
2011 informant. This witness testified that he knew García
personally. He further testified that around May 2011 there was
a "negotiation" regarding 525 kilograms of cocaine with which
García was involved. The witness stated that García helped to
coordinate the transportation of this cocaine to Puerto Rico. A
recording was then played aloud of a phone conversation which the
witness described as between himself and García. The conversation
concerned the sale of six kilograms of cocaine. The Rule 404(b)
presentation concluded with defense counsel cross-examining the
witness about his own criminal activity and plea agreements.
Federal Rule of Evidence 403 allows a court to "exclude
relevant evidence if its probative value is substantially
outweighed by a danger of," among other things, "unfair prejudice,
confusing the issues, [or] misleading the jury." "Unfair prejudice
'speaks to the capacity of some concededly relevant evidence to
- 24 -
lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged.'" United States v.
DiRosa, 761 F.3d 144, 153 (1st Cir. 2014) (quoting Old Chief v.
United States, 519 U.S. 172, 180 (1997)).
As discussed above, evidence that García had been
previously involved in maritime cocaine smuggling was relevant to
García's knowledge that the voyage he had embarked on in December
2012 had as its true purpose the illicit smuggling of cocaine, not
the innocent transportation of gasoil. But the government
introduced ample evidence establishing this knowledge apart from
the prior-bad-acts presentation -- namely, the informant's
extensive testimony about both his conversations with García
concerning the smuggling operation and his observations of García
participating in the smuggling operation, as well as photographs
of the informant's text messages with García pertaining to the
failed December 2012 voyage. This independent evidence of García's
knowledge undermined the marginal value of the prior-bad-acts
evidence to the government's case. See Varoudakis, 233 F.3d at
123 (finding that prior-bad-acts evidence ought to have been
excluded under Rule 403 where "the government did not need the
[prior-bad-acts] evidence to prove [the defendant's] knowledge");
cf. Lynn, 856 F.2d at 436 (questioning the probative value of
prior-bad-acts evidence offered to show intent where "the
government would have succeeded in proving intent should the jury
- 25 -
believe the testimony of [other witnesses], rendering negligible
their [sic] need to show intent by the prior bad acts").
And while the probative value of the prior-bad-acts
evidence was thus relatively low, the prejudice worked by its
admission was comparatively high due to the danger it presented of
confusing the jury and luring it into forbidden propensity
reasoning. The Rule 404(b) evidence related to a separate cocaine-
smuggling operation not straightforwardly connected to García.
Consequently, its introduction resulted in a "mini-trial" through
which the government sought to establish that García really was
implicated in the May 2011 cocaine seizure. See United States v.
Gilbert, 229 F.3d 15, 24 (1st Cir. 2000) (rejecting government's
challenge to the exclusion of prior-bad-acts evidence in part
because district court's "concerns about the extent to which
[whether the prior bad act had even occurred] would have to be
litigated during the course of trial" were warranted). The prior-
bad-acts evidence presented in this case spanned three witnesses
and two days of trial, it sparked the introduction of photographs
and the playback of a recorded phone call, and it required
considerable detective work by the jury to draw from the disjointed
pieces of this colorful presentation the conclusion that García
had been involved with the May 2011 cocaine shipment.
Moreover, to avoid improper use of this evidence, the
jury would have had to close its mind to the all-too tempting
- 26 -
inference that because García had been involved with a cocaine
smuggling conspiracy in 2011 he was more likely to have been
involved with a cocaine smuggling conspiracy in 2012-2014. See
Varoudakis, 233 F.3d at 123 ("[T]he more the prior bad act
resembles the crime, the more likely it is that the jury will"
fall into forbidden propensity reasoning); Lynn, 856 F.2d at 436("The ordinary inference here would seem very close to the
inference the Rule was designed to avoid."). Instead, the jury
would have had to infer from all the evidence presented of the May
2011 cocaine seizure only that García knew that he was not out
transporting gasoil when he was rescued in December 2012. In the
circumstances of this case, the permitted use of the Rule 404(b)
evidence was much less natural and intuitive than the forbidden
propensity use, adding to the danger of unfair prejudice.
Sometimes careful limiting instructions can cure the
prejudice that would otherwise render inappropriate the
introduction of prior-bad-acts evidence. See, e.g., United States
v. Manning, 79 F.3d 212, 217 (1st Cir. 1996) (stating that "[t]he
district court minimized any prejudicial impact of the prior drug
dealing evidence by instructing the jury, contemporaneously and
again in its final instructions, about the proper use of prior bad
act evidence").
But for limiting instructions to be "suitably
prophylactic" in the Rule 404(b) context, they must guide the
- 27 -
jury's attention away from the forbidden propensity inference by
clearly directing it toward the specific permissible relevance
that the prior-bad-acts evidence has to the case. Sabean, 885
F.3d at 38, 35 (quoting United States v. Mehanna, 735 F.3d 32, 64
(1st Cir. 2013)) (considering sufficiently curative court's
instructions to the jury "that the government was offering the
[Rule 404(b)] testimony "as evidence of what the Government says
is the defendant's motive to commit the [crimes charged]" and that
the evidence was to be considered only for this specified, limited
purpose); United States v. Newsom, 452 F.3d 593, 606 (6th Cir.
2006) (urging district courts to include in jury instructions "the
specific factor named in the rule that is relied upon to justify
admission of the [prior bad] acts evidence" (quoting United States
v. Johnson, 27 F.3d 1186, 1194 (6th Cir.1994))); see also Pattern
Criminal Jury Instructions for the District Courts of the First
Circuit, § 2.06, cmt. 3 (updated July 28, 2014) ("Courts should
encourage counsel to specify and limit the purpose or purposes for
which prior act evidence is admitted . . . . Instructions for
purposes other than that for which the specific evidence was
admitted should not be given.").
Here, the trial court twice cautioned the jury about the
limited proper use of the prior-bad-acts evidence. Before the
2011 informant testified, the court told the jury that the prior-
bad-acts evidence was not to be used to infer García's propensity
- 28 -
for criminal behavior, but was only to be used "to show that he
may have had a motive, an opportunity, an intent, or to prove
preparation, plan, knowledge, identity, absence of mistake or lack
of accident in what he did." In giving the jury its final charge,
the court provided a similarly all-encompassing instruction:
You have heard evidence that the Defendant
previously committed acts similar to those
charged in this case. You may not use this
evidence to infer that, because of his
character, the Defendant carried out the acts
charged in this case. You may, however,
consider this evidence only for the limited
purpose of deciding whether the Defendant had
the state of mind or intent necessary to
commit the crimes charged in the indictment,
or whether the Defendant had a motive or the
opportunity to commit the acts charged in the
indictment, or whether the Defendant acted
according to a plan or in preparation for
commission of a crime, or whether the
Defendant committed the acts he is on trial
for by accident or mistake.
This latter instruction was specifically requested by defense
counsel, and the omnibus nature of both instructions tracks the
explanations of the permissible relevance of the prior-bad-acts
evidence provided several times to the court by the government at
sidebar.
Given that both parties promoted these instructions, it
is certainly understandable that the district court provided them.
Nonetheless, the overinclusive nature of the instructions
prevented them from focusing the jury's attention on the one
permissible use of the prior-bad-acts evidence in this case: to
- 29 -
prove that Garcia likely would not have confused a ship
transporting gasoil with a ship engaged in smuggling a large
shipment of cocaine. Without case-specific guidance on how to
otherwise use the prior-bad-acts evidence, it was all too likely
that the jury would engage in the forbidden but intuitive
propensity reasoning. See Varoudakis, 233 F.3d at 125 (explaining
that the propensity inference "is not rejected because character
is irrelevant; on the contrary, it is said to weigh too much with
the jury and to so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against
a particular charge" (quoting Michelson v. United States, 335 U.S.
469, 475–76 (1948))). Neither instruction effectively trained the
jury's attention on the narrow, permissible use of the prior-bad-
acts evidence in this case (to establish knowledge), and so we are
doubtful that the instructions prevented misuse of the prior-bad-
acts evidence or dispelled confusion about that evidence's proper
relevance to the crimes charged. Consequently, we cannot consider
these instructions "suitably prophylactic," Sabean, 885 F.3d at 38
(quoting Mehanna, 735 F.3d at 64); they did not effectively
mitigate the prejudice posed by the prior-bad-acts evidence
admitted in this case.8
To be clear, the misstep we identify is not the provision
8
of the instructions, in which both parties had a hand, but the
admission of the overly prejudicial, minimally valuable prior-bad-
acts evidence, whose prejudice the instructions did not cure.
- 30 -
In sum, "[t]he propensity danger of the [prior-bad-acts]
evidence was unmistakable" here, and substantially outweighed its
limited probative value. Varoudakis, 233 F.3d at 124. The
district court exceeded the bounds of its discretion when it
implicitly determined otherwise.
3. Harm
We turn to whether the erroneous admission of the Rule
404(b) evidence in this case prejudiced García. "An error will be
treated as harmless only if it is 'highly probable' that the error
did not contribute to the verdict." United States v. Kilmartin,
944 F.3d 315, 338 (1st Cir. 2019) (quoting United States v. Fulmer,
108 F.3d 1486, 1498 (1st Cir. 1997)). To analyze whether an error
was harmless we must divine from "the record as a whole . . . the
probable impact of the improper evidence upon the jury." Fulmer,
108 F.3d at 1498 (quoting United States v. Melvin, 27 F.3d 703,
708 (1st Cir. 1994)). In doing so, we consider factors such as
"the centrality of the tainted material, its uniqueness, its
prejudicial impact, the uses to which it was put during the trial,
[and] the relative strengths of the parties' cases." Kilmartin,
944 F.3d at 338 (quoting United States v. Piper, 298 F.3d 47, 57
(1st Cir. 2002)). In a criminal case, the crucial factor is
typically "the strength or weakness of the government's evidence
of guilt" less the improperly admitted evidence. Kilmartin, 944
F.3d at 338.
- 31 -
The admission of the prior-bad-acts evidence in this
case, though error, was harmless. The government's case against
García was strong. García was found on a small sinking boat off
the coast of Puerto Rico without any plausible explanation for how
he had gotten there, and his boat-mate provided a detailed, first-
hand narrative that explained the occurrence as one of a series of
cocaine smuggling ventures in which García had participated. His
mate's testimony was corroborated in other respects by records of
his text messages (which the mate described as a discussion between
himself and García about García's having met with one of the
smuggling organization's leaders to discuss the failed 2012
operation), and by the successful cocaine seizure at Guayanilla,
and it was in all respects uncontradicted. We therefore consider
it "highly probable" that the admission of the evidence pertaining
to the May 2011 cocaine seizure was not a determinative factor in
the jury's guilty verdict. See id.
D. Cumulative Error
Finally, García argues that his convictions should be
vacated based on the collective impact of the evidentiary missteps
in his trial. We accept that the cumulative prejudicial effect of
independently innocuous trial errors may warrant a new trial. See,
e.g., United States v. Peña-Santo, 809 F.3d 686, 702 (1st Cir.
2015) ("[I]ndividual errors, insufficient in themselves to
necessitate a new trial, may in the aggregate have a more
- 32 -
debilitating effect." (quoting United States v. Sepúlveda, 15 F.3d
1161, 1195–96 (1st Cir. 1993))). But here, for the same reasons
that we find each of the evidentiary errors which we have
identified harmless, we find them collectively so as well.
The convictions are therefore affirmed.
III. SENTENCING CHALLENGE
García argues that his sentence is unreasonable on two
grounds. First, he argues that the district court erred by
imposing a supervisory role enhancement without identifying
evidence that García played a supervisory role in the conspiracy.
Second, García argues that there is an unwarranted disparity
between his sentence and those of his codefendants. Though we
find the second claim to lack merit, we agree with García that the
record does not support the imposition of the supervisory role
enhancement.
A. Standard of review
Since García also raised before the district court the
challenges to his sentence based upon both the supervisory role
enhancement and the purportedly unwarranted sentence-length
disparity, his claims are preserved on appeal. García fashions
these claims as both procedural and substantive challenges to his
sentence.
When considering a preserved claim that a sentence is
the result of procedural error, we review the district court's
- 33 -
"interpretations and applications of the [sentencing] guidelines"
de novo, its judgment-calls for abuse of discretion, and its
factual findings for clear error. United States v. Flores-
Quinoñes, 985 F.3d 128, 133 (1st Cir. 2021) (quoting United States
v. Reyes-Torres, 979 F.3d 1, 7 (1st Cir. 2020)); see also United
States v. Reyes-Santiago, 804 F.3d 453, 468 (1st Cir. 2015).
When faced with a preserved claim that a sentence is
substantively unreasonable, we review for abuse of discretion.
Flores-Quiñones, 985 F.3d at 133. Under this deferential standard,
we will affirm a sentence as reasonable so long as the sentencing
court's rationale is "plausible" and the sentence is "defensible."
United States v. Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018)
(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008));
see also Reyes-Santiago, 804 F.3d at 468.
B. Supervisory role enhancement
As recommended in the PSR, the district court imposed a
two-level enhancement to García's base offense level pursuant to
§3B1.1(c) of the United States Sentencing Commission Guidelines
Manual (Nov. 2016) ("the Guidelines" or "U.S.S.G."), which allows
for such an increase "if the defendant was an organizer, leader,
manager, or supervisor" in the offense.9 We set out the relevant
9 Section 3B1.1(c) applies to "criminal activity involv[ing]
at least two, but fewer than five, complicit individuals." United
States v. Ilarraza, 963 F.3d 1, 13 (1st Cir. 2020)(quoting United
States v. Al-Rikabi, 606 F.3d 11, 14 (1st Cir. 2010)). Since the
- 34 -
legal principles first and then address García's particular
arguments.
The determination of which type of role a defendant
played in an offense is a factual one, reversible only if clearly
erroneous. See Ilarraza, 963 F.3d at 13; see also United States
v. Cortez-Vergara, 873 F.3d 390, 393 (1st Cir. 2017). At
sentencing, "[t]he government bears the burden of proving that an
upward role-in-the-offense adjustment is appropriate in a given
case." Al-Rikabi, 606 F.3d at14. To properly impose the upward
adjustment, the sentencing court must be satisfied that a
preponderance of the evidence supports the government's claim that
the defendant acted as an organizer, leader, manager, or supervisor
in the commission of the offense. Id.; see also United States v.
Medina, 167 F.3d 77, 79 (1st Cir. 1999).
A supervisory or managerial role is evidenced by some
"manifestation of authority" on the part of the defendant.
Savarese, 686 F.3d at 20.10 The authority possessed by the
drug-smuggling conspiracy at issue in this case involved nineteen
codefendants, it is unclear why the PSR recommended the aggravating
role enhancement pursuant to §3B1.1(c) rather than pursuant to
§§3B1.1(a) or (b), which are expressly applicable to more extensive
criminal activity. But the government has not challenged the
sentence, and the use of §3B1.1(c) benefits rather than harms the
defendant. Therefore, we analyze whether García qualified for an
enhancement under §3B1.1(c) without regard for the extensivity of
the underlying criminal activity. See United States v. Savarese,
686 F.3d 1, 21 n.16 (1st Cir. 2012).
10The Guidelines generally distinguish "leadership [or]
organizational role[s] from one[s] of mere management or
- 35 -
defendant may be fairly minimal; "a defendant need not be at the
top of a criminal scheme to be a manager or supervisor." United
States v. Goldberg, 105 F.3d 770, 777 (1st Cir. 1997). "[W]e have
even held that, in some circumstances, the government need only
show by a preponderance of the evidence 'that the defendant
exercised authority or control over another participant on one
occasion.'" Savarese, 686 F.3d at 20 (quoting United States v.
García–Morales, 382 F.3d 12, 20 (1st Cir. 2004)); see also United
States v. Cruz, 120 F.3d 1, 3-4 (1st Cir. 1997) (en banc). Yet
not all roles arguably termed "supervisory" warrant an enhancement
under §3B1.1(c). The enhancement is proper only where the
defendant exercised some degree of authority or control over
another criminal actor; that the defendant may have managed or
supervised a particular criminal activity is insufficient. United
States v. Prange, 771 F.3d 17, 34 (1st Cir. 2014); see also Flores-
De-Jesús, 569 F.3d at 35.
supervision," U.S.S.G. §3B1.1, cmt. n.4, with the latter roles
denoting less responsibility, id. at cmt. background. Under
§3B1.1(c), however, the distinction lacks a difference, since a
defendant found to have played any of these four roles warrants
the same two-level enhancement to his base level offense.
Accordingly, even though the PSR adopted by the sentencing court
found that "the defendant was considered to be a leader in the
organization," it was not error to impose the enhancement as long
as the defendant could have been found to be merely a manager or
supervisor. We therefore focus on whether this lower bar was met.
- 36 -
With this background in mind, we turn to García's
arguments. First, García argues that it was error for the
sentencing court to fail to make specific findings to support the
upward adjustment based on García's alleged supervisory role.
Second, García argues that it was error for the court to find that
García had a supervisory role in the smuggling organization,
contending that the trial evidence established at most that he was
a mere "stevedore, loading and unloading cargo at both ends of a
venture." There is some force to the first claim, but our
agreement with the second determines the appropriate relief here.
"Without reasonably specific findings or some
satisfactory surrogate in the record, we are unable to engage in
meaningful review to determine whether the decision [to impose a
role-in-the-offense enhancement] was clearly erroneous." Medina,
167 F.3d at 80. Of course, "sentencing judges need not explain
their reasoning in exquisite detail, especially when the reasons
are 'evident from the record.'" United States v. Zehrung, 714
F.3d 628, 631 (1st Cir. 2013) (quoting United States v. Stella,
591 F.3d 23, 28 (1st Cir. 2009)). "But . . . in the end we must
be able to figure out what they 'found and the basis for the
findings to the extent necessary to permit effective appellate
review.'" Id. at 632 (quoting United States v. Van, 87 F.3d 1, 3
(1st Cir. 1996)). As the Supreme Court has stressed, "[b]y
articulating reasons, even if brief, the sentencing judge . . .
- 37 -
assures reviewing courts (and the public) that the sentencing
process is a reasoned process." Rita v. United States, 551 U.S.
338, 357 (2007). Particularly where the underlying facts of a
case involve multiple transactions and a web of participants, and
where the PSR "does not even minimally focus on the specific
considerations necessary" to support a finding that a defendant
occupied an aggravating role in the offense, "it is necessary that
the district judge make sufficient findings to articulate the
rationale" for the aggravating role enhancement. United States
v. Catano, 65 F.3d 219, 230 (1st Cir. 1995).
Here, as in Catano, "[n]either the PSR nor the sentencing
transcript discusses [the defendant's] involvement or identifies
why" the defendant was considered a manager or supervisor in the
cocaine smuggling conspiracy. Id. At the sentencing hearing,
García personally and through counsel argued that García did not
have a supervisory role in the smuggling organization. The
district court did not directly respond but stated that García's
base offense level was increased two levels pursuant to §3B1.1(c)
"[b]ecause he was an organizer, leader, manager, or supervisor in
the criminal activity," and that "the pre-sentence investigation
report satisfactorily reflects the components of Mr. García's
offense by considering its nature and circumstances."
The PSR, in turn, states in support of the §3B1.1(c)
enhancement only that "[a]ccording to trial notes and discovery
- 38 -
reports, the defendant was considered to be a leader in the
organization." This is curious, because elsewhere the PSR has a
section entitled "Roles of the Members of the Conspiracy," and
though it lists the conspiracy's "leaders," that list does not
include García. Instead, García is listed as a "transporter."
The only other facts in the PSR pertinent to García's role are
found in the section "Acceptance of Responsibility." There, the
PSR states that García "noted that he did not give orders to
anybody," "acknowledge[d] that he supported [a co-conspirator],"
and "noted that he did not supervise anybody."
That neither the PSR nor the district court offered any
explanation for rejecting García's claim that he was neither a
leader nor a supervisor in the organization complicates our review,
for a defendant being sentenced "is entitled to reasoned findings,
on a preponderance standard, not to an appellate court's
assumptions drawn free-form from an inscrutable record." Catano,
65 F.3d at 230 (quoting United States v. McDowell, 918 F.2d 1004,
1012 n.8 (1st Cir. 1990)).
The government argues that the dearth of fact-finding in
support of the §3B1.1(c) enhancement does not warrant remand in
this case because the basis for the enhancement was "evident from
the record," Zehrung, 714 F.3d at 631 (quoting Stella, 591 F.3d at
28), obviating the need for the district court to explain its
reasoning. We disagree.
- 39 -
There is no evidence in the record to support the
government's claim that García oversaw any of the organization's
workers. Rather, the portions of the record cited by the
government show only that García packaged and waterproofed the
drugs and chatted with others about the operation. The evidence
which most strongly supports the government's characterization of
García is the informant's testimony that one of the conspiracy's
leaders had told him that García "was going to take care of
organizing the entire [October 2013] trip." But when asked on
direct to clarify what García was organizing, the informant replied
"the cocaine, what I was going to be carrying." And the government
points to no evidence showing that García ever directed a single
person to perform a single task for the conspiracy. See United
States v. Fuller, 897 F.2d 1217, 1221 (1st Cir. 1990); United
States v. Altagracia Castillo, 145 F. App'x 683, 685 (1st Cir.
2005); Cf. García–Morales, 382 F.3d at 20.
We cannot agree with the government that it was evident
from this record that the supervisory role enhancement was
warranted. While it appears that García was in charge of certain
tasks, like preparing the cocaine for the voyage and inspecting it
upon arrival, the government's burden was to show by a
preponderance of the evidence that García exercised authority or
control over other participants in the smuggling venture. See
Prange, 771 F.3d at 34; cf. Flores-De-Jesús, 569 F.3d at 35
- 40 -
(stating that evidence that defendant "ke[pt] the drug point well-
stocked and collect[ed] the proceeds . . . is insufficient to
establish the requisite control over another criminal actor that
our case law requires").
This the government has not done. Nor could it, there
being no evidence in the record that García managed or supervised
at least one other person. Thus, the role-in-the-offense finding
is clearly erroneous, and resentencing is warranted. See, e.g.,
Al-Rikabi, 606 F.3d at 16 (vacating sentence and remanding for
resentencing where district court's finding that defendant "was an
organizer, leader, manager, or supervisor" under U.S.S.G.
§3B1.1(c) was clearly erroneous); United States v. Ramos-Paulino,
488 F.3d 459, 464 (1st Cir. 2007) (same).
C. Disparities
Finally, García argues that his sentence is unreasonable
because it is significantly longer than the sentence imposed upon
several of his co-conspirators. See 18 U.S.C. § 3553(a)(6) ("The
court, in determining the particular sentence to be imposed, shall
consider . . . the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct."). Indeed, García's approximately 224-month
sentence is six-and-a-half years longer than any of his
codefendants' sentences and more than double the sentence imposed
on the conspiracy's head honcho, Francisco Merán Montero. This
- 41 -
disparity is problematic, García avers, because many of these
codefendants were bigger fish in the criminal syndicate than García
and responsible for smuggling greater quantities of cocaine. We
review the consistency of García's sentence with § 3553(a)(6) for
abuse of discretion, see United States v. Bedini, 861 F.3d 10, 21
(1st Cir. 2017); United States v. Acevedo, 824 F.3d 179, 186 (1st
Cir. 2016), and we find no such abuse here.
"[A] sentence may be 'substantively unreasonable because
of the disparity with the sentence given to a codefendant.'"
Reyes-Santiago, 804 F.3d at 467 (quoting United States v. Reverol-
Rivera, 778 F.3d 363, 366 (1st Cir. 2015)). But "'[a] well-founded
claim of disparity' must compare 'apples . . . to apples.'"
Bedini, 861 F.3d at 21 (quoting United States v. Mateo–Espejo, 426
F.3d 508, 514 (1st Cir. 2005)). Consequently, a disparity claim
will not succeed if there are "material differences between [the
complaining defendant's] circumstances and those of their more
leniently punished confederates." United States v. Galindo-
Serrano, 925 F.3d 40, 52 (1st Cir. 2019) (quoting Reyes-Santiago,
804 F.3d at 467).
Here, there is no undue disparity. The fact that
García's co-conspirators received shorter sentences than García is
fully explained by their materially different circumstances.
Whereas García went to trial, his codefendants pled guilty. See,
e.g., Galindo-Serrano, 925 F.3d at 52; Bedini, 861 F.3d at 21-22;
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see also Reyes-Santiago, 804 F.3d at 467 (noting that it is
"permissible [to] distin[guish] between co-defendants who go to
trial and those who plead guilty, between those who cooperate and
those who do not" (internal citations omitted)). The plea deals
accepted by García's codefendants include drug-quantity
stipulations which account for much of the disparity García
complains of. And "to the extent [García] is challenging fact-
bargaining in general . . . th[is] argument[] also fail[s]. We
have upheld the practice generally." United States v. Hall, 557
F.3d 15, 21 (1st Cir. 2009); see also United States v. Rodriguez,
162 F.3d 135, 152-53 (1st Cir. 1998).
Finally, because García never requested a downward
variance based upon the disparity, cf. Robles-Alvarez, 874 F.3d at
52-53, but merely used the disparity argument in support of his
recommended Guidelines calculation, and because the reason for the
disparity was apparent from the plea agreements, the district court
acted within its discretion by declining to specifically address
García's disparity argument at sentencing, see United States v.
Rivera-Morales, 961 F.3d 1, 20 (1st Cir. 2020). As either a
procedural or a substantive challenge, therefore, García's
disparity-based objection to his sentence fails.
IV. CONCLUSION
For the foregoing reasons, we affirm the convictions but
vacate the sentence and remand for resentencing.
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