United States v. Kapllani

United States Court of Appeals
For the First Circuit
No. 15-2406
UNITED STATES OF AMERICA,
Appellee,
v.
TONY BEDINI,
Defendant, Appellant.
No. 15-2426
UNITED STATES OF AMERICA,
Appellee,
v.
ISKENDER KAPLLANI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Jonathan A. Cox, with whom Felicia H. Ellsworth and Wilmer,
Cutler, Pickering, Hale, and Dorr LLP were on brief, for appellant
Bedini.
Daniel J. Cloherty, with whom Collora LLP was on brief, for
appellant Kapllani.
William A. Glaser, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, and Christopher J. Pohl, Assistant United States
Attorney, were on brief, for appellee.
June 26, 2017
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BARRON, Circuit Judge. These consolidated appeals
involve a number of challenges that Tony Bedini and Iskender
Kapllani bring to their convictions and sentences for conspiracy
to distribute cocaine under 21 U.S.C. § 846. Together, Bedini and
Kapllani contend, among other things, that their convictions
cannot stand due to the unfair prejudice that they suffered from
being charged with participating in a single drug conspiracy but
then jointly tried based on evidence that at most sufficed to show
their participation in what were actually two separate drug
conspiracies. Because we reject this challenge to their
convictions, along with the other challenges that Bedini and
Kapllani each bring to both their convictions and their sentences,
we affirm the judgments below.
I.
In 2012, Bedini and Kapllani were charged in the United
States District Court for the District of Massachusetts with
conspiracy to distribute and to possess with intent to distribute
five or more kilograms of cocaine in violation of 21 U.S.C. § 846.
Six other codefendants were also charged in that indictment for
the same crime, in consequence of their alleged participation in
the same conspiracy. The six other codefendants -- Elton Ceku,
Igli Leka, Armand Mara, Bryant Mendoza, Carlos Manuel Tejeda, and
Arben Teta -- all pleaded guilty. Bedini and Kapllani did not.
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And, following an eight-day, joint jury trial in the District of
Massachusetts, they were both convicted under § 846.
Bedini was sentenced to a term of imprisonment of 135
months, to be followed by a three-year term of supervised release.
Kapllani was sentenced to a term of imprisonment of 188 months, to
be followed by a five-year term of supervised release. Bedini and
Kapllani each then appealed their conviction and sentence, and we
consolidated their cases on appeal.
II.
Bedini and Kapllani each make the same primary challenge
to their convictions, and it concerns the sufficiency of the
evidence. Bedini and Kapllani contend that, notwithstanding the
characterization of the drug conspiracy charged in the indictment
as a single one that stretched from Boston to the West Coast, the
evidence at trial sufficed to support, at most, a finding of two
distinct drug conspiracies, with Bedini a participant in one,
Kapllani a participant in the other, and neither a participant in
both.
The first of the supposedly distinct drug conspiracies,
which we will call the Boston-based one, "involv[ed] the various
individuals who were affiliated with the Arbri Café in Roslindale,"
a Boston neighborhood. This group included Kapllani as well as
the following of his co-defendants: Ceku, Leka, Mendoza, and
Tejeda. The second of the supposedly distinct drug conspiracies,
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which we will call the West Coast-based one, operated out of
California and Las Vegas and involved Bedini and the remaining two
co-defendants, Mara and Teta.
Bedini and Kapllani further contend that they were
unfairly prejudiced by the claimed variance from the indictment's
charging of a single conspiracy to what turned out to be the proof
at trial of, at most, the two separate, and geographically
disparate, drug conspiracies just described. The claimed
prejudice rests on a theory of evidentiary spillover, which gives
rise to the concern about "the transference of guilt to an
individual defendant involved in one conspiracy from evidence
incriminating defendants in a conspiracy in which the particular
defendant was not involved." United States v. Sutherland, 929
F.2d 765, 773 (1st Cir. 1991) (citation omitted).
This evidentiary-spillover-based challenge cannot
succeed, however, if its premise is mistaken. And so we start --
and, as it turns out, end -- by addressing the threshold issue of
whether the evidence at trial sufficed to support a finding of the
single conspiracy charged in the indictment.
"The question whether a given body of evidence is
indicative of a single conspiracy, multiple conspiracies, or no
conspiracy at all is ordinarily a matter of fact; a jury's
determination in that regard is subject to review only for
evidentiary sufficiency." United States v. Wihbey, 75 F.3d 761,
-5-
774 (1st Cir. 1996) (citing United States v. David, 940 F.2d 722,
732 (1st Cir. 1991)). "Although conflicting inferences may arise,
so long as the evidence is adequate to permit a reasonable trier
of fact to have found a single conspiracy beyond a reasonable
doubt, the jury's finding will not be disturbed on appeal." United
States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009).
"Because each Defendant moved for a judgment of
acquittal at the close of evidence, we review their sufficiency
claims de novo." United States v. Dellosantos, 649 F.3d 109, 115
(1st Cir. 2011). In evaluating the evidence to determine whether
the evidence suffices to show a single conspiracy, we look to the
totality of the evidence. Id. at 117. We have found three factors
to be helpful in guiding this inquiry: "(1) the existence of a
common goal [among the participants], (2) interdependence among
participants, and (3) overlap among the participants." Id.(citation omitted). We consider what the record shows regarding
each of these factors in turn, mindful that "none of [the three
factors], standing alone, i[s] necessarily determinative." See
United States v. Sanchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008).
A.
We have repeatedly held that "selling cocaine for
profit" or "furthering the distribution of cocaine" may constitute
a common goal among individuals who have been charged with
participating in a single drug conspiracy. Mangual-Santiago, 562
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F.3d at 421 (citation omitted). Moreover, there was evidence in
the record here to support a finding that, in 2010 and 2011, the
West Coast-based operation repeatedly sold wholesale quantities of
cocaine to participants in the Boston-based operation with the
understanding that the cocaine would then be re-sold. And we have
held that an inference of a common goal to profit from drug sales
is supportable where, as here, the drugs are repeatedly bought by
one party from another in "wholesale quantities obviously
purchased for further sale." United States v. Ortiz–Islas, 829
F.3d 19, 25 (1st Cir. 2016).
Bedini and Kapllani nevertheless contend that the
evidence supports at most the conclusion that the relationship
between the Boston- and West Coast-based operations was -- though
longstanding and repetitive -- merely an arm's-length buyer-seller
relationship, albeit one between a wholesaler and a retailer. And
Bedini and Kapllani further contend that, in consequence, the two
operations cannot be said to have shared a common goal, even if
each operation independently did seek to profit from the sale of
cocaine. See United States v. Brown, 726 F.3d 993, 1001 (7th Cir.
2013) (explaining that "buyer-seller relationships . . . do not
qualify as conspiracies," because "[p]eople in a buyer-seller
relationship have not agreed to advance further distribution of
drugs," whereas "people in conspiracies have" (emphasis omitted)).
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But, we have recently found that "more than a mere buyer-
seller relationship" existed when a party sold wholesale
quantities of cocaine and "was even willing to front cocaine," on
"the understanding that [the buyer] would pay in the course of a
subsequent transaction." Ortiz–Islas, 829 F.3d at 25-26.
Fronting wholesale quantities of cocaine in this manner was, we
explained, "an act of trust that assumed an ongoing enterprise
with a standing objective." Id. at 25.
Here, the record supportably shows that fronting
occurred, albeit infrequently. Specifically, there is evidence
in the record that on at least two occasions the West Coast-based
operation sold substantial quantities of cocaine to the Boston-
based operation on credit, rather than for payment at the time of
sale. In one such instance, Bedini and Mara, operating out of the
West Coast, accepted a small payment from Kapllani, operating out
of Boston, in exchange for Kapllani receiving one kilogram of
cocaine. Kapllani promised to pay the balance of the cost for the
kilogram of cocaine one week later. In another instance, Bedini
gave Kapllani one kilogram of cocaine in return for Kapllani's
promise to make the payment an hour later. And, in addition, the
evidence supportably shows that Kapllani trusted the West Coast-
based operation enough to, on one occasion, prepay for cocaine,
with a $50,000 prepayment given to Teta (who transported cocaine
for Bedini and Mara).
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Bedini contends that our analysis in Ortiz–Islas
"depended not only on the defendant's fronting of large quantities
of cocaine to a buyer, but also on the conspirators' extensive
mutual reliance on another party to facilitate transactions and
provide protection." And Kapllani argues that the "few instances
where some level of credit may have been provided are insufficient
to establish a single conspiracy." In further support of this
contention, Bedini and Kapllani emphasize aspects of the record
that they contend support the conclusion that "the California
defendants were indifferent to the profitability of the operation
in the Arbri Café," "had little interest in what the Massachusetts
defendants intended to do with the cocaine," and "had little
concern about redirecting the cocaine supply away from
Massachusetts to other buyers."
Bedini also emphasizes the distinction between sales on
credit, which the record supportably shows took place here, and
sales on consignment, in which the wholesale supplier has a direct
stake in the profits to be reaped by the retail seller, for which
there is no record evidence. Consignment sales, he contends, give
rise to a significantly stronger inference of interdependence than
do sales on credit. See Brown, 726 F.3d at 999-1000.
But, our review is only for sufficiency, and here the
evidence supports a finding that the amount of credit extended --
in dollar terms -- was quite high, even though the record does not
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show such extensions to have been routine. And, we must evaluate
the significance of this evidence of fronting in combination with
the other evidence from trial, rather than in isolation. That
other evidence shows frequent sales of large wholesale quantities
of cocaine by the West Coast-based operation to the Boston-based
operation over a long period of time and on the understanding that
the cocaine would then be re-sold. And the evidence also shows a
willingness by one of the participants in the Boston-based
operation to put a large sum of money up front on the understanding
that cocaine for resale would be supplied later by the West Coast-
based operation. We thus conclude that, notwithstanding Bedini's
and Kapllani's arguments to the contrary, the record supports a
jury finding that the parties engaged in "act[s] of trust that
assumed an ongoing enterprise with a standing objective" to profit
from the sale of cocaine, Ortiz–Islas, 829 F.3d at 25, rather than
merely an arm's-length relationship between an indifferent
wholesaler and an indifferent retailer.
B.
We turn then to the next factor, which concerns whether
there was "interdependence," id. at 26, between the wholesaler --
Kapllani's West Coast-based operation -- and the retailer --
Bedini's Boston-based operation. We have explained that there is
interdependence when "the activities of one aspect of the scheme
are necessary or advantageous to the success of another aspect of
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the scheme." Id. (quoting United States v. Negrón-Sostre, 790
F.3d 295, 309 (1st Cir. 2015)) (emphasis added). And, we have
also explained that the fronting of drugs between the supplier of
drugs and the one who purchases for resale permits a jury
reasonably to infer "that the continuing vitality of" one aspect
of the scheme "was of some importance to" the other,
notwithstanding a defendant's claim that the two aspects of the
scheme were indifferent to one another's success. Id.Accordingly, in light of the evidence described above, this factor,
too, points towards the reasonableness of a jury finding a single
conspiracy rather than two separate ones.
C.
The final factor concerns what the evidence shows
regarding the "overlap" between the two operations. Bedini and
Kapllani contend that there was no "hub" character in the
conspiracy or other similar signs of overlap. They thus contend
that this factor points against the reasonableness of finding a
single conspiracy.
But, as the government points out, there is evidence of
extensive ties between the defendants. Six of the defendants --
Bedini, Mara, and Teta from the West Coast; and Kapllani, Leka,
and Ceku from Boston -- engaged in drug transactions with each
other. In particular, there is much evidence to show that the
defendants communicated with one another with regularity over a
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long period of time in the service of the shared activity of
coordinating -- sometimes through the fronting of cocaine and at
least once by prepayment -- the repeated sale of wholesale
quantities of cocaine by the West Coast-based operation to the
Boston-based operation. Moreover, there is evidence that, when
Kapllani traveled to Las Vegas for several days, he stayed with
one of the West Coast-based participants, Teta. Thus, especially
given the evidence of fronting already discussed, nothing in the
record concerning the overlap between the Boston- and West Coast-
based operations precludes a reasonable jury from finding them to
be separate aspects of an "ongoing enterprise with a standing
objective," id. at 25, namely, a single conspiracy to sell cocaine
for profit.
D.
Because a reasonable jury could find from a
consideration of the totality of the circumstances that the
evidence suffices to show the single conspiracy charged in the
indictment, there was no variance. Thus, Bedini's and Kapllani's
sufficiency challenge to their convictions fails.
III.
Bedini and Kapllani next contend that the District Court
erred in rejecting the jury instruction that they had requested
regarding whether the jury had to find a single conspiracy. Their
requested instruction reads as follows:
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If you find that the conspiracy charged in the
indictment did not exist, you cannot find the
defendant guilty of that conspiracy. This is
so even if you find that some conspiracy other
than the one charged in the indictment
existed, even though the purposes of both
conspiracies may have been the same and even
though there may have been some overlap in
membership. If you find that there was not
one overall conspiracy as alleged by the
government but instead there were actually
several separate and independent
conspiracies, then you must find the defendant
not guilty of the conspiracy charged in the
indictment. Similarly, if you find that the
defendant was a member of another conspiracy,
and not the one charged in the indictment,
then you must find the defendant not guilty of
the conspiracy charged in the indictment.
The District Court instead instructed the jury as follows:
[T]he government must prove two essential
elements beyond a reasonable doubt.
First: That the conspiracy specified in the
indictment, and not some other agreement or
agreements, existed at or about the time or
times specified in the indictment. It is not
enough that the government simply prove that
some type of conspiracy existed, even one
involving some of the same alleged
conspirators. The proof, rather, must
persuade you that the conspiracy proved is in
fact the one alleged in the indictment.
Second: The government must prove beyond a
reasonable doubt that Mr. Kapllani and Mr.
Bedini knowingly and intentionally became a
member of the alleged conspiracy with the
purpose of seeing the conspiracy succeed in
accomplishing its unlawful goals.
Bedini and Kapllani objected at trial to the District
Court's failure to give the requested instruction. And, on
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appeal, Bedini and Kapllani contend that the District Court's
failure to instruct the jury as they requested prejudiced them by
impairing their defense strategy. In particular, Bedini and
Kapllani argue that, without the proposed instruction, the jury
would not have known that it had an obligation to acquit if it
found that there were two separate conspiracies.
We "reverse a district court's decision to deny [an]
instruction only if the [proposed] instruction was (1)
substantively correct as a matter of law, (2) not substantially
covered by the charge as rendered, and (3) integral to an important
point in the case so that the omission of the instruction seriously
impaired the defendant's ability to present his defense." United
States v. Baird, 712 F.3d 623, 628 (1st Cir. 2013). Our review
of "[e]ach step in this three-part test involves a question of
law, which we decide de novo." Id.1
The District Court's instruction was substantively
correct, and Bedini and Kapllani do not argue otherwise. The
instruction also made clear that the jury had to find "the"
conspiracy charged in the indictment. Thus, contrary to Bedini's
and Kapllani's contentions, the instruction substantially covered
1 We have explained that "[w]e review de novo questions about
whether a given instruction is, in substance, legally correct,"
but "[w]e review for abuse of discretion the particular wording
chosen to convey a concept to the jury." Shervin v. Partners
Healthcare Sys., Inc., 804 F.3d 23, 47 (1st Cir. 2015).
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the key point that the requested instruction would have made. We
thus see no basis for finding that the District Court erred in
instructing the jury as it did.
In contending that the District Court erred nonetheless,
Bedini and Kapllani point to United States v. Boylan, 898 F.2d 230(1st Cir. 1990), and United States v. Pacheco, 434 F.3d 106 (1st
Cir. 2006). But neither precedent supports their view.
In Boylan, we upheld a decision to reject a requested
instruction in favor of an instruction that, if anything, was less
clearly encompassing of the substance of the requested instruction
than the one at issue here. 898 F.2d at 243-44. And the peculiar
circumstances at issue in Pacheco, which concerned the
relationship between an instruction and a partial directed verdict
that had been previously ordered and withdrawn, bear no resemblance
to those at issue in this case. 434 F.3d at 110-11. We thus
reject Bedini's and Kapllani's challenge to the denial of the
requested instruction.
IV.
Bedini and Kapllani also challenge their sentences on
several grounds, sometimes together, sometimes separately. We
consider -- and reject -- each challenge in turn.
A.
We begin with Bedini. In advance of Bedini's
sentencing, a probation officer prepared a presentence
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investigation report (PSR). The PSR attributed 48 kilograms of
cocaine individually to Bedini. The United States Sentencing
Guidelines set forth base offense levels for defendants based on
the crime committed. For several drug crimes, including
conspiracy under 21 U.S.C. § 846, the base offense level is set on
the basis of the quantity of drugs individually attributable to
the defendant. See U.S.S.G. § 2D1.1(c). The guidelines provide
a base offense level of 32 for cocaine quantities that are between
15 and 50 kilograms and that are individually attributable to a
defendant convicted under 21 U.S.C. § 846. See id. § 2D1.1(c)(4).
Thus, the PSR, based on its drug quantity finding of 48 kilograms
individually attributable to Bedini, calculated a base offense
level of 32 for Bedini.
Because the PSR did not find that any adjustments to
Bedini's base offense level were warranted, the PSR calculated
Bedini's total offense level to be 32 as well. The PSR also
determined that Bedini's criminal history category was III. The
PSR thus concluded that the Sentencing Guidelines provided for a
sentence for Bedini of 151-188 months' incarceration. See
U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
At sentencing, the District Court, after noting that it
had the PSR before it, concluded that it found "the Guidelines are
correctly calculated." The District Court did, however, reduce
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Bedini's criminal history category from III to II, based on the
age of the earliest of Bedini's prior convictions.
While the District Court did not expressly state the
implications of this lowered criminal history category, the change
shifts the guidelines range downward, to 135-168 months'
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The
government had recommended sentencing Bedini at the low end of the
guidelines range of 151-188 months' incarceration prior to the
District Court adjusting Bedini's criminal history category
downward. The District Court sentenced Bedini to a term of
imprisonment of 135 months -- the low end of the revised sentencing
range of 135-168 months' imprisonment. In imposing this sentence,
the District Court explained that it had "considered the sentencing
factors enumerated at 18 U.S.C. § 3553(a)."
Bedini first challenges his sentence on procedural
grounds. He contends that the District Court failed to explain
why the 135-month sentence was justified under 18 U.S.C. § 3553(a).
Because Bedini did not object to this failure of explanation below,
our review is for plain error. See United States v. Vargas-García,
794 F.3d 162, 166 (1st Cir. 2015). The District Court stated that
Bedini's sentence was justified under the § 3553(a) sentencing
factors, and, on review for plain error, we require no more given
the nature of the record before us. See United States v. Rivera-
Clemente, 813 F.3d 43, 50 (1st Cir. 2016).
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Bedini next contends that the District Court erred
procedurally by failing to make individualized findings as to the
quantity of cocaine attributable to him. Bedini did not object
below, so our review is again for plain error. See Vargas-García,
794 F.3d at 166.
As Bedini acknowledges, the District Court adopted the
drug quantity attributable to Bedini set forth in the PSR. A
district court "may generally rely on the PSR in making [a drug
quantity] determination." United States v. Morales-Madera, 352
F.3d 1, 14 (1st Cir. 2003). The PSR's drug quantity calculation
that the District Court relied upon was clearly individualized as
to Bedini. In consequence, any challenge to whether the District
Court made individualized findings with respect to the drug
quantity attributable to Bedini fails.
Bedini also challenges his sentence on substantive
grounds. He contends that the District Court erred in attributing
48 kilograms of cocaine to him, given that the jury returned a
special verdict form in which the jury found he was not responsible
for five or more kilograms of cocaine. This dispute over drug
quantity bears on Bedini's sentence because, as we have noted, his
base offense level was calculated based on a drug quantity of 15-
50 kilograms of cocaine, and he would have received a lower base
offense level, and thus a lower guidelines range, had the District
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Court found the lower quantity of cocaine to be attributable to
him that the jury found. See U.S.S.G. § 2D1.1(c).
Bedini objected to the drug quantity attribution below,
so our review is for clear error. United States v. Bernier, 660
F.3d 543, 545 (1st Cir. 2011). A district court is permitted at
sentencing to rely on facts shown only by a preponderance of the
evidence, while a jury may convict only if the beyond-a-reasonable-
doubt standard is met. See id. at 546. As a result, "[a] jury
determination as to the quantity of drugs for which the defendant
is responsible does not prevent the district court from
finding" -- as it found here -- "a larger amount in the course of
determining the guideline sentence." United States v. Picanso,
333 F.3d 21, 25–26 (1st Cir. 2003). Thus, Bedini's sole developed
ground for challenging the finding below -- that it conflicts with
the jury's lower drug quantity determination -- fails to persuade.
B.
We next turn to Kapllani. Kapllani's PSR found that he
was individually responsible for 44 kilograms of cocaine. Given
the PSR's attribution of between 15 and 50 kilograms of cocaine
individually to Kapllani, the PSR assigned him a base offense level
of 32 for the offense of drug conspiracy under 21 U.S.C. § 846.
See U.S.S.G. § 2D1.1(c)(4). The PSR also applied a four-level
enhancement for Kapllani's role as an organizer or leader of the
conspiracy, thus bringing his total offense level to 36. See id.
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§ 3B1.1. The PSR found that Kapllani had a criminal history
category of I, which, combined with the total offense level of 36,
resulted in a recommend sentencing range of 188-235 months'
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
The District Court opened the sentencing hearing by
summarizing the PSR's recommendation with respect to Kapllani's
total offense level, criminal history category, and guidelines
sentencing range of 188-235 months' imprisonment. The District
Court noted that it thought the guidelines calculations in the PSR
were "appropriate." The District Court sentenced Kapllani to the
low end of that range, which resulted in a sentence of 188 months'
imprisonment.
Kapllani's first challenge to his sentence is a
procedural one. He contends that the District Court failed "to
address in any way Mr. Kapllani's objections to the drug quantity
calculations in the PSR with any specificity" and failed "to make
any finding regarding . . . the quantity of drugs that were
attributable to, or reasonably foreseeable by, Mr. Kapllani."
(emphasis in original). Kapllani did not object to this lack of
explanation below, so our review is for plain error. See Vargas-
García, 794 F.3d at 166.
The PSR calculated a drug quantity individually
attributable to Kapllani based on particular transactions in which
he was involved. In light of these individualized calculations,
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the PSR found 44 kilograms of cocaine attributable to Kapllani.
Because the PSR made this individualized drug quantity
determination, and because the District Court expressly noted that
it found the PSR's guidelines calculations -- which were based on
the drug quantity findings -- to be "appropriate," we can infer
that the District Court's individualized drug quantity
determination was the same as that of the PSR. As a result, this
unpreserved procedural challenge fails.2
C.
Kapllani next contends that the District Court
erroneously concluded that he was an "organizer" of criminal
activity under U.S.S.G. § 3B1.1(a), and thus that the District
Court wrongly imposed that sentencing enhancement. Kapllani
objected to the application of the enhancement below. We "review
a district court's interpretation of the legal meaning and scope
of a sentencing guideline de novo," but "factfinding for clear
error, giving due deference to the court's application of the
2
Kapllani separately contends that the District Court erred
by failing to "reconcile the drug quantity calculations set forth
in the PSR with the jury’s verdict regarding the drug quantities
attributable to Mr. Bedini." But this argument has no merit.
Kapllani cites no support for the view that a jury's drug quantity
finding with respect to one defendant can call into question the
drug quantity attributable to another. Nor does he acknowledge
that a district court at sentencing -- unlike a jury at
trial -- may rely on facts shown only by a preponderance of the
evidence. See Bernier, 660 F.3d at 546.
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guidelines to the facts." United States v. Carrero-Hernández, 643
F.3d 344, 349 (1st Cir. 2011) (citation omitted).
It is clear that there can be "more than one person who
qualifies as a leader or organizer." U.S.S.G. § 3B1.1 cmt. 4.
And "[o]ne may be classified as an organizer, though perhaps not
as a leader, if he coordinates others so as to facilitate the
commission of criminal activity." United States v. Tejada-
Beltran, 50 F.3d 105, 112 (1st Cir. 1995). More particularly, in
determining whether the "organizer" enhancement applies, factors
to consider include the following:
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1 cmt. 4.
Kapllani argues that the enhancement is not appropriate
here, given his contention that one co-defendant, Leka, "played a
far more significant leadership and organizing role" in the Boston-
based dealings. But, as the guideline makes clear, that fact,
even if true, would not preclude a finding that Kapllani was a
"leader or organizer" of the conspiracy. The record supportably
shows that Kapllani was a key figure in the Boston-based side of
the conspiracy, worked frequently to coordinate drug transactions
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with other conspirators, and directed the behavior of at least
three individuals involved in cocaine trafficking. We thus find
that the District Court did not clearly err in applying the
enhancement.
D.
Finally, both Bedini and Kapllani contend that their
sentences were unreasonable in light of the lower sentences given
to their co-defendants. Kapllani preserved this challenge, while
Bedini did not. Both challenges fail, however, under even the
more favorable abuse-of-discretion standard that applies to such
a disparity challenge when preserved. United States v. Floyd, 740
F.3d 22, 39 (1st Cir. 2014); see also United States v. Flores-
Machicote, 706 F.3d 16, 24 (1st Cir. 2013) (applying plain error
review to unpreserved disparity challenge).
Congress has instructed district courts "to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). And we have held that a sentence can be unreasonable
"because of [a] disparity with the sentence given to a
codefendant." United States v. Reyes-Santiago, 804 F.3d 453, 467
(1st Cir. 2015) (citation omitted). But, "[a] well-founded claim
of disparity" must compare "apples . . . to apples." United States
v. Mateo–Espejo, 426 F.3d 508, 514 (1st Cir. 2005). We thus "have
routinely rejected disparity claims," as "complaining defendants
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typically fail to acknowledge material differences between their
own circumstances and those of their more leniently punished
confederates." Reyes-Santiago, 804 F.3d at 467.
So, too, with Bedini and Kapllani. Only Bedini and
Kapllani went to trial, while the other defendants they ask us to
compare them to all pleaded guilty. Bedini and Kapllani also were
more senior members of the conspiracy than many of the other
defendants, such as Teta (Bedini's driver) and Mendoza (Kapllani's
translator). And every other defendant either testified at trial,
was subject to lower applicable Guidelines ranges than Bedini and
Kapllani, or both. Thus, Bedini's and Kapllani's disparity claims
provide no basis for upsetting the sentences that they received.
V.
For these reasons, appellants' convictions and sentences
are affirmed.
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