United States v. Briceno

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-2272
UNITED STATES OF AMERICA,
Appellee,
v.
MARLON BRICENO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Elizabeth Caddick, by appointment of the court, for appellant.
Young Paik, Assistant United States Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
January 6, 2014
PER CURIAM. Marlon Briceno was ordered by his criminal
associates to collect a debt from Genaro Medrano, who had been
given on consignment approximately fifty thousand pills of
benzylpiperazine (BZP). Having previously paid part of the debt,
Medrano still owed $75,000 at the time Briceno was sent to collect.
Unbeknownst to Briceno and his associates, Medrano was cooperating
with the DEA. In an effort to collect, Briceno met with Medrano
and Alex Hernandez, an undercover DEA agent who presented himself
as Medrano's associate. If, prior to this meeting, Briceno was not
aware that the debt was for drugs, or that his associates were
involved in a drug conspiracy, he knew these facts by the end of
the meeting, as Medrano and Hernandez made a point of explaining
them. Medrano and Hernandez gave Briceno $5000, and the parties
agreed to later arrange payment on the outstanding $70,000. After
several unsuccessful calls to Medrano to demand further payment,
Briceno again met with Herndandez, threatening violence against
Medrano and his family at their home if he did not pay.
Agents subsequently searched Briceno's residence, seizing
firearms and a ski mask. He was indicted, convicted, and sentenced
for conspiracy to collect an extension of credit by extortionate
means, and conspiracy to distribute BZP. Not contesting the
extortion conspiracy count, Briceno appeals the drug conspiracy
conviction and sentence on three grounds.
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First, conceding both that he intended to further the aim
of some conspiracy and that he eventually learned that his
associates were involved in a drug conspiracy, Briceno nevertheless
argues that there was insufficient evidence of his intent to join
the drug conspiracy. This preserved sufficiency-of-the-evidence
challenge is reviewed de novo. United States v. Sherman, 551 F.3d
45, 49 (1st Cir. 2008). The law is clear that,
[t]o join a drug conspiracy, a defendant must
agree with others to advance [its] aim . . . .
Advancing the aim of the conspiracy can
involve performing ancillary functions such
as . . . collecting monies . . . as long as
such actions are performed with the aim of
furthering the conspiracy. To hold that
defendants have "joined" a conspiracy, there
must be sufficient evidence both that they
knew about the conspiracy and that they knew
the ancillary service would advance that
conspiracy.
United States v. Soto-Beníquez, 356 F.3d 1, 18 (1st Cir. 2003)
(citations omitted).
There was sufficient evidence that Briceno's efforts to
collect the debt, undertaken with knowledge of the drug conspiracy,
in fact advanced the conspiracy's aim: Payment is one half of a
commercial drug distribution transaction (the other half being
delivery). And there was sufficient evidence that Briceno knew his
efforts would do so: He was asked by associates whom he discovered
to be drug distributers to collect money from someone whom he
discovered to be a drug purchaser.
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Second, Briceno argues that admission of the firearms and
ski mask evidence was error. The trial court's decision to admit
evidence is reviewed for abuse of discretion. United States v.
Upton, 559 F.3d 3, 15 (1st Cir. 2009). Contrary to Briceno's
contention, the firearms evidence was relevant to the extortion
conspiracy. See, e.g., United States v. Gilley, 836 F.2d 1206,
1214 (9th Cir. 1988) ("[P]ossession of handguns tends to show that
[defendants'] . . . threats were real and that they had the
wherewithal to carry them out."); United States v. Touloumis, 771
F.2d 235, 240 (7th Cir. 1985) ("[T]he admission of the gun was
relevant in order to shed light on [defendant]'s intentions in his
effort to collect the . . . debt . . . ."). That evidence's
relevance to the drug conspiracy thus need not be resolved:
Briceno did not request that the jury be instructed to consider
certain evidence only with respect to certain counts.
Nor was the firearms evidence unfairly prejudicial. See
United States v. Perrotta, 289 F.3d 155, 166-67 (1st Cir. 2002)
(upholding admission of firearms evidence to prove extortion
conspiracy where nothing in record suggested that evidence would
have "inflamed the jury or inspired them to decide the case on an
emotional basis"). In fact, the district court decreased the
potential for prejudice by admitting photographs of the evidence,
as opposed to the objects themselves. See United States v.
Candelaria-Silva, 162 F.3d 698, 705 (1st Cir. 1998).
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And, given that Briceno's threats suggested the
possibility of an attack at Medrano's home, Briceno's possession of
a mask that could be used to avoid identification was relevant to
his intent to follow through. To the extent that Briceno
challenges the admission of the ski mask based on prejudice, such
a challenge was not raised below, but, even if it had been raised,
it would fail. See id. (upholding, against challenge of prejudice,
admission of mask to support conspiracy charge).
Third, Briceno argues that the drug conspiracy sentence
both was unreasonable and resulted from sentencing factor
manipulation. With respect to the reasonableness of the sentence,
Briceno contends that the drugs should not have been attributed to
him given his limited role in the conspiracy. In the case of a
conspiracy, a defendant's offense level "shall be determined on the
basis of . . . all reasonably foreseeable acts . . . of others in
furtherance of the jointly undertaken criminal activity." U.S.
Sentencing Guidelines Manual § 1B1.3(a)(1)(B). The district
court's findings as to the quantity embraced by the conspiracy and
reasonably foreseen by the defendant are reviewed for clear error.
United States v. Rodríguez, 162 F.3d 135, 149 (1st Cir. 1998).
Rather than using the initial presentence investigation
report, which calculated Briceno's offense level based on the fifty
thousand pills delivered to Medrano, the district court held
Briceno responsible for only that portion of the drugs associated
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with the $75,000 of debt outstanding at the time of Briceno's
collection efforts. It was foreseeable to Briceno that the pill
quantity associated with this amount of money was within the scope
of the criminal activity that he jointly undertook.
With respect to sentencing factor manipulation, Briceno
contends that he was wrongly held accountable for drugs of which he
had knowledge solely because the Government, through Hernandez,
informed him of them. Contrary to Briceno's protestation, his
charge of sentencing factor manipulation, not pressed in the
district court, is not preserved simply because he did argue for a
reduced sentence and for discounting a particular sentencing
factor. See United States v. Ríos-Hernández, 645 F.3d 456, 462
(1st Cir. 2011).
Even were the argument preserved it would fail. While
the Government, through Hernandez, provided Briceno information
about the drugs, he, without further prompting, continued his
efforts to collect the drug debt. See West v. United States, 631
F.3d 563, 570 (1st Cir. 2011) (sentencing factor manipulation
requires showing extraordinary misconduct, for example, that the
Government "'overpowered the free will of the defendant and caused
him to commit a more serious offense than he was predisposed to
commit'" (quoting United States v. Villafane-Jimenez, 410 F.3d 74,
87 (1st Cir. 2005))); United States v. Montoya, 62 F.3d 1, 3-4 (1st
Cir. 1995) (sentencing factor manipulation cannot be made out
"simply by showing that the idea originated with the government or
that the conduct was encouraged by it, or that the crime was
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prolonged beyond the first criminal act, or exceeded in degree or
kind what the defendant had done before" (citations omitted)).
Affirmed.
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