US v. Pena-Santo

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Timothy Belcher Dyk, Appellate Judge. Published. [13-2155, 13-2500, 14-1040, 14-1078]

Case: 13-2155

Document: 00116902540

Page: 1

Date Filed: 10/14/2015

Entry ID: 5945179

United States Court of Appeals
For the First Circuit
Nos. 13-2155,
13-2500,
14-1040,
14-1078
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ PEÑA-SANTO,
JOSÉ RAMÓN VICENTE-ARIAS,
JONATHAN GIL-MARTÍNEZ,
MANUEL LIRIANO-DE LA CRUZ,
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Torruella, Selya, and Dyk,*
Circuit Judges.

Carlos M. Sánchez-La Costa, for appellant Peña-Santo.
Barbara J. Sweeney, for appellant Vicente-Arias.
Kenneth Seiger, for appellant Gil-Martínez.
Leslie W. O'Brien, for appellant Liriano-de la Cruz.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

*

Of the Federal Circuit, sitting by designation.

Case: 13-2155

Document: 00116902540

Page: 2

Date Filed: 10/14/2015

October 14, 2015

-2-

Entry ID: 5945179

Case: 13-2155

Document: 00116902540

Page: 3

Date Filed: 10/14/2015

TORRUELLA, Circuit Judge.

Entry ID: 5945179

Defendants-Appellants José

Peña-Santo ("Peña-Santo"), José Ramón Vicente-Arias ("VicenteArias"), Jonathan Joel Gil-Martínez ("Gil-Martínez"), and Manuel
Liriano de la Cruz ("Liriano") (collectively "Appellants") were
jointly tried and convicted of conspiring to import cocaine and
heroin into the United States, in violation of 21 U.S.C. §§ 952(a),
960, and 963, and conspiring to possess with intent to distribute
cocaine and heroin on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a)(1),
70504(b)(1), 70506(a).

Peña-Santo and Liriano were additionally

convicted of illegally reentering the United States, in violation
of 8 U.S.C. § 1326(a)(2) and (b)(1).

Appellants appeal their

conspiracy convictions mainly on the grounds that improper expert
testimony and the government's conduct warrant reversal of their
convictions. They also assign error to the denial of their motions
for judgments of acquittal.

Finally, Gil-Martínez challenges the

substantive reasonableness of his sentence.

We have reviewed

Appellants' claims carefully and do not find merit in any of them.
Accordingly, we affirm.
I. Facts1
On the night of April 12, 2012, Ryan Perry, a Customs and
Border Patrol ("CBP") agent working as a camera operator and
1

We briefly summarize the relevant facts, reserving for our
analysis a more detailed discussion of the facts relevant to each
issue presented on appeal.
-3-

Case: 13-2155

Document: 00116902540

Page: 4

Date Filed: 10/14/2015

Entry ID: 5945179

patrolling the waters from an aircraft, detected a target of
interest with "lights out" seventeen nautical miles off the coast
of Dorado, Puerto Rico, around 10:00 p.m.

The target was a blue-

colored wooden yola,2 between twenty and twenty-five feet long,
riding "very low" in the water, and carrying two motors and six
fuel drums.

A Maritime Patrol aircraft, along with the U.S. Coast

Guard marine unit, the Puerto Rico Joint Forces of Rapid Action
("FURA,"

for

its

Spanish

acronym),

and

a

CBP

coordinated an intercept of the suspect vessel.

helicopter,

When the Coast

Guard marine unit approached the vessel, the individuals were
moving "erratically" on the boat.

Perry saw "objects being thrown

from the yola." Another officer who joined the interception of the
vessel, Luke Berguis from the Coast Guard, reported seeing "large,
heavy bags being tossed over by the multiple crew members," as well
as "small backpacks" and "smaller objects" that looked like cell
phones and GPS units.
Customs

Enforcement

Agent René Galarza, of U.S. Immigration and
("ICE"),

after

turning

the

helicopter's

spotlight on the vessel also saw "individuals dumping what appeared
to be bales."
At approximately 11:39 p.m., nearly four miles off the
coast of Dorado, the Coast Guard marine unit intercepted the yola,
which had six men on board, and ordered the men to raise their

2

A yola is a small fishing boat. For purposes of this opinion,
"yola" and "vessel" will be used interchangeably.
-4-

Case: 13-2155

Document: 00116902540

Page: 5

Date Filed: 10/14/2015

hands, which they did after some initial hesitance.

Entry ID: 5945179

FURA, along

with the Coast Guard marine unit, later retrieved the objects that
had been thrown into the water, which turned out to be "six heavy
dark colored [gym] bags wrapped in duct tape" that each had a
"block shape."

Inside the bags were eight kilograms of 50% pure

heroin packaged in eight egg shapes and 146.5 kilograms of 74.8%
pure cocaine packaged in 131 brick shapes. The six men, identified
as Peña-Santo, Vicente-Arias, Gil-Martínez, Liriano, Bonifacio
Toribio-Almonte, and Alejandro Difot-Santos, all citizens of the
Dominican Republic, were arrested.
A

grand jury returned a superseding indictment charging

the six men with conspiracy to import cocaine and heroin into the
United States, in violation of 21 U.S.C. §§ 952(a), 960, and 963
(Count 1), and conspiracy to possess with intent to distribute
cocaine and heroin on board a vessel subject to the jurisdiction of
the United States, in violation of
70504(b)(1), 70506(a) (Count 2).

46 U.S.C. §§ 70503(a)(1),

Peña-Santo and Liriano were also

charged with illegally reentering the United States, in violation
of 8 U.S.C. § 1326(a)(2), (b)(1), respectively (Counts 3 and 4).3
Difot-Santos and Toribio-Almonte pleaded guilty while Appellants
were jointly tried.

3

Peña-Santo and Liriano stipulated to the fact that they had been
previously removed from the United States and that they had no
petition pending with the U.S. Citizenship and Immigration Services
to enter the United States lawfully. Peña-Santo further stipulated
to the fact that he had a previous felony conviction.
-5-

Case: 13-2155

Document: 00116902540

Page: 6

Date Filed: 10/14/2015

Entry ID: 5945179

At trial the government presented the testimony of Perry,
Berghuis, Galarza, Andrew Resk, and Joel Candelario, all of whom
participated in the interception of the yola on April 12, 2012.
Berghuis testified that wooden boats with low profiles and no
navigation lights, such as the yola used by Appellants, are harder
to see and to pick up on radar.

He further testified that

Appellants' yola was painted blue on both the outside and the
inside, which made it "very hard to see at night" from an "aerial
aspect"; that it had excessive horsepower and fuel for its size;
and that it did not have any fishing or other recreational gear on
board.

Instead, it carried multiple open condoms, which, based on

his experience, are often used to keep dry small objects such as
wallets and cell phones.

Berghuis also identified Appellants in

court as four of the six men on board the yola when it was
intercepted and testified that he observed that more than one
individual was needed to lift the bags which had been thrown
overboard when the yola was approached by law enforcement.
The government also presented the testimony of Víctor
Taboada, who was on patrol on the Coast Guard Cutter Cushing on the
night of the interception; Abel Nasser, who works with ICE and the
Department of Homeland Security; and Carmen Cacho ("Ms. Cacho"), a
chemist employed by CBP.
quantity,

and

weight

of

They testified about the type, purity,
the

narcotics

interception of the yola.

-6-

recovered

during

the

Case: 13-2155

Document: 00116902540

Page: 7

Date Filed: 10/14/2015

Entry ID: 5945179

In addition, the government presented the testimony of
Drug Enforcement Administration agent Christopher Conchin ("Agent
Conchin"), who had experience in narcotic cases and international
maritime interdictions. The district court qualified Agent Conchin
as an expert witness and allowed him to testify as to the value,
packaging, and mode of transportation of narcotics.

Agent Conchin

testified regarding how narcotics' street price depends on the
place of sale. He also testified that drugs are usually wrapped in
plastic and packaged in same-size bricks.

As to the mode of

transportation, Agent Conchin testified that drugs are typically
transported in go-fast boats or yolas, which are usually painted
blue to blend in with the water, have more than one motor (usually
two or three), are either open or have a compartment to "put stuff
underneath," and carry numerous gasoline drums that are switched
off during the voyage.

In addition, he testified that vessels

transporting narcotics generally have four to six people on board
and that each has a specific duty.
his

experience,

"in

the

cases

He further testified that, in

that

[he

has]

worked,

.

.

.

individuals not connected with the trafficking of narcotics" have
not been involved in the transportation.
After a four-day jury trial, Appellants were found guilty
on all charges.

Appellants moved for a judgment of acquittal

-7-

Case: 13-2155

Document: 00116902540

Page: 8

Date Filed: 10/14/2015

Entry ID: 5945179

pursuant to Fed. R. Crim. P. 29, which the district court denied.4
The district court sentenced Peña-Santo to 120 months in prison,
Vicente-Arias to 130 months, Gil-Martínez to 192 months, and
Liriano to 240 months.

In addition, they were each sentenced to

five years of supervised release.

These timely appeals followed.

II. Discussion of Appellants' Claims
A.

Expert Testimony
1.

Background

The government intended Agent Conchin to testify as to
"the quantity of the narcotics, the value of the narcotics, and
. . . to the fact that [Appellants] weren't just by happenstance"
in the vessel.

Appellants questioned the need for his testimony,

arguing that the question before the jury of whether they were part
of a conspiracy to distribute drugs did not require complex
insight.

The district court allowed the witness to testify only

with respect to the value, packaging, and mode of transportation of
drugs.
At

trial,

Agent

Conchin

testified

that,

in

his

experience, random people unconnected to drug trafficking would not
be on board vessels with drugs.

According to him,

[t]he people that are on those boats are there
for one purpose, and that's to get the drugs
to where they're going, and they're there for
protection. They're there to switch out the
4

They also requested a new trial pursuant to Fed. R. Crim. P. 33,
which was also denied.
-8-

Case: 13-2155

Document: 00116902540

Page: 9

Date Filed: 10/14/2015

Entry ID: 5945179

hoses like I mentioned, because you can't do
it with just [one] person.
You have the
captain who is the navigator to get you to
where it's going, the exact point. You have a
mechanic in case it breaks down and you have
problems on the water. Everybody has a duty,
a specific duty.
Appellants claim that the district court abused its
discretion in allowing Agent Conchin to testify about the different
roles of individuals on board vessels transporting drugs.

They

argue that this testimony should have been stricken from the record
because it exceeded the scope of the topics allowed by the district
court.

In addition, they claim that Agent Conchin improperly

identified the roles of the Appellants in the charged conspiracy
without having personal knowledge of it and that he addressed the
ultimate issue for the jury -- whether Appellants were members of
the conspiracy and possessed the intent to import and distribute
narcotics -- which is prohibited by Rule 704(b) of the Federal
Rules of Evidence and constitutes reversible error pursuant to this
court's holdings in United States v. Meises, 645 F.3d 5 (1st Cir.
2011); United States v. Flores-De-Jesús, 569 F.3d 8 (1st Cir.
2009); and United States v. Casas, 356 F.3d 104 (1st Cir. 2004).
We disagree.
2.

Applicable Law and Analysis

It is well established that the district court "enjoys
leeway in deciding to admit or exclude expert testimony."
States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989).

-9-

United

Rulings on

Case: 13-2155

Document: 00116902540

preserved

evidentiary

discretion.

Page: 10

objections

Date Filed: 10/14/2015

are

Casas, 356 F.3d at 113.

evidentiary rulings is for plain error.

reviewed

for

Entry ID: 5945179

abuse

of

Review of unobjected-to
Id.

Under this exacting

standard, an appellant must show that (1) there was an error,
(2) which was clear or obvious, (3) that affected his substantial
rights, and (4) also seriously impaired the fairness, integrity, or
United States v. De

public reputation of judicial proceedings.
Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011).

Because Appellants

did not meaningfully object to the testimony they now challenge,
our review is for plain error.
Appellants'

first

argument

--

that

Agent

Conchin's

testimony was inadmissable because it exceeded the scope of the
topics allowed by the district court -- falls flat at the outset.
The district court allowed Agent Conchin to testify about the "mode
of

transportation"

of

drugs.

Appellants

cannot

show

that

interpreting "mode of transportation" to include not only the
physical description of vessels used to transport drugs, but also
the process itself of transporting drugs in such vessels and the
roles people perform while transporting the drugs amounts to error,
much less clear or obvious error.

Thus, Appellants' claim cannot

survive plain-error review.
Appellants' second argument suffers the same fate.

"For

expert testimony to be admissible under Fed. R. Evid. 702, it must
'be relevant to the task at hand' and helpful to the jury in its

-10-

Case: 13-2155

Document: 00116902540

deliberations."

Page: 11

Date Filed: 10/14/2015

Entry ID: 5945179

United States v. García-Morales, 382 F.3d 12, 18

(1st Cir. 2004) (quoting United States v. López-López, 282 F.3d 1,
14 (1st Cir. 2002)).

This court has approved the admission of

expert testimony regarding "the operation of criminal schemes and
activities" in drug trafficking cases, finding such testimony
relevant and "helpful to juries in understanding some obscure or
complex aspect of the crime."

Id. at 18-19 (quoting United States

v. Montas, 41 F.3d 775, 783 (1st Cir. 1994) (noting that "expert
testimony regarding the description of a typical drug network [is]
relevant to provide context to the jury in evaluating the offenses
charged" (alteration in original) (internal quotation marks and
citation omitted) (quoting United States v. Clarke, 24 F.3d 257,
269 (D.C. Cir. 1994)); see also, e.g., Flores-de-Jesús, 569 F.3d at
26

(holding

that

the

expert

witness

"properly

described

the

operation of drug points generally, including the various 'roles'
typically involved in an intricate drug conspiracy and the practice
of storing drugs intended for sale"); Ladd, 885 F.2d at 960
(holding that because "jurors are not expected to be familiar with
the idiom and workings of the heroin community . . . [e]xpert
interpretation of drug jargon and practices, supplied by one versed
in the business, has often been admitted to assist the trier of
fact in drug-trafficking cases").
The leeway enjoyed by the district court in determining
the scope of expert witness testimony is limited by Rule 704(b) of

-11-

Case: 13-2155

Document: 00116902540

Page: 12

Date Filed: 10/14/2015

Entry ID: 5945179

the Federal Rules of Evidence, which prohibits an expert witness
from testifying that a "defendant did or did not have the mental
state or condition that constitutes an element of the crime
charged."

Fed. R. Evid. 704(b).

"This bar does not, however,

apply to 'predicate facts from which a jury might infer such
intent.'" United States v. Schneiderhan, 404 F.3d 73, 81 (1st Cir.
2005) (quoting United States v. Valle, 72 F.3d 210, 216 (1st Cir.
1995)).
Here, Agent Conchin
Appellants

do

not

contest

provided proper expert testimony.

that

the

challenged

testimony

was

relevant. In addition, because the nature of narcotics trafficking
by vessels is likely outside the knowledge of the average layman,
we find that Agent Conchin's testimony was likely to assist the
jury in understanding the evidence or determining a fact at issue.
See Fed. R. Evid. 702; Ladd, 885 F.2d at 960.
Furthermore, contrary to Appellants' contentions, Agent
Conchin's testimony was not disallowed by Meises, Flores-de-Jesús,
or Casas. In those cases we "particularly condemned testimony from
. . . agent[s], not based on personal knowledge, describing the
roles played in the drug conspiracy by individual defendants"
because "[s]uch descriptions amount to impermissible testimony from
the agent[s] 'that each of the defendants was guilty of the
conspiracy charged.'"

Meises, 645 F.3d at 13 (quoting Casas, 356

F.3d at 119); see also Flores-de-Jesús, 569 F.3d at 24 (holding

-12-

Case: 13-2155

Document: 00116902540

Page: 13

Date Filed: 10/14/2015

Entry ID: 5945179

that the court erred in allowing the expert witness to identify the
appellants by name and role in the conspiracy, where this testimony
was not based on his personal knowledge); Casas, 356 F.3d at 118,
120 (stating that the agent's testimony, which identified the roles
of each defendant in the drug conspiracy despite lacking personal
knowledge

of

it,

was

not

an

appropriate

subject

for

expert

testimony). Unlike in the cases cited by Appellants, Agent Conchin
did not identify Appellants' roles in the charged conspiracy, nor
did he even refer to Appellants in particular or to their yola.
Rather,

based

on

his

experience

in

narcotics

cases

and

international maritime interdictions, he referred to "the people
that are on those boats" as he testified about the general roles
involved in the transportation of drugs by vessels.

Thus, he did

not need to have personal knowledge of Appellants' specific roles
in the charged conspiracy; his testimony was in line with our
precedent. See Flores-de-Jesús, 569 F.3d at 26 (allowing an expert
witness to describe "the operation of drug points generally,
including the various 'roles' typically involved in an intricate
drug conspiracy"); García-Morales, 382 F.3d at 18-19; Ladd, 885
F.2d at 960.
In addition, Agent Conchin's testimony did not encroach
upon the jury's factfinding function regarding the ultimate issue
of guilt. He merely provided facts from which the jury could infer
culpable intent.

See Schneiderhan, 404 F.3d at 81; United States

-13-

Case: 13-2155

Document: 00116902540

Page: 14

Date Filed: 10/14/2015

Entry ID: 5945179

v. DiMarzo, 80 F.3d 656, 659-60 (1st Cir. 1996) (holding under
similar circumstances that the agent's testimony that "in his
experience,

innocent

observers

are

not

invited

to

accompany

criminals engaged in completing a drug deal" did not "encroach upon
the jury's factfinding function regarding the ultimate issue of
guilt"); see also United States v. Valencia-Amezcua, 278 F.3d 901,
909 (9th Cir. 2002) (allowing expert witness to testify about the
"aversion

of

large-scale

methamphetamine

producers

to

allow

unaffiliated individuals near clandestine operations"). Moreover,
the district court clearly instructed the jury that "mere presence"
on the yola was insufficient to establish guilt and that it was for
the jury to decide whether the government had met its burden of
proving the necessary mens rea.

See DiMarzo, 80 F.3d at 660.

Therefore, there was no error, plain or otherwise, in allowing
Agent Conchin's testimony.
We note, however, one improper statement made by Agent
Conchin

during

cross-examination.

Because

Agent

Conchin's

descriptions about drug trafficking referred to millions of dollars
of profit, Liriano's defense counsel asked Agent Conchin in crossexamination whether he knew if Liriano had any possessions, such as
a house or jewelry.

Agent Conchin began to respond, "To answer

your question, obviously people that transport drugs such as your
client," but did not finish his response because he was immediately
interrupted by defense counsel, who -- although he did not object

-14-

Case: 13-2155

Document: 00116902540

Page: 15

Date Filed: 10/14/2015

Entry ID: 5945179

to Agent Conchin's statement -- said, "That's not my question." On
appeal, Peña-Santo -- but not Liriano -- claims that this response
constituted improper testimony on his guilt.

Because Peña-Santo

neither objected to nor moved to strike to the statement, we review
only for plain error.

De Jesús-Viera, 655 F.3d at 57.

Peña-

Santos's claim fails under that stringent standard because he is
unable to satisfy plain-error review's third and fourth prongs;
that is, that it affected his substantial rights and that it
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. Id. Such an effect cannot be attributed
to a "single, isolated [and fleeting] statement" like this one,
which was made in response to a question by defense counsel
regarding a matter outside the scope of Agent Conchin's testimony.
See United States v. Trinidad-Acosta, 773 F.3d 298, 307 (1st Cir.
2014).
B.

Sufficiency of the Evidence
Appellants claim reversible error by the district court

in

the

denial

acquittal.

of

See

their

respective

motions

Fed. R. Crim. P. 29.

for

judgments

of

They argue that the

government demonstrated only that they were "merely present" on the
vessel and that there was no evidence that they agreed to import or
possess with intent to distribute the drugs.

They also claim that

the evidence presented at trial was consistent with their defense,

-15-

Case: 13-2155

Document: 00116902540

Page: 16

Date Filed: 10/14/2015

Entry ID: 5945179

namely, that they were attempting to enter the United States
illegally.

We disagree.
1.

Standard / Scope of Review

We review de novo the district court's denial of a Rule
29 motion for judgment of acquittal.
310.
to

Trinidad-Acosta, 773 F.3d at

In so doing, we view the evidence in the light most favorable

the

jury's

verdict,

circumstantial evidence."
367 (1st Cir. 2013).

giving

"equal

weight

to

direct

and

United States v. Appolon, 715 F.3d 362,

We evaluate the sum of all the evidence and

inferences drawn therefrom, and determine whether that sum is
enough for any reasonable jury to find all the elements of the
crime proven beyond a reasonable doubt. United States v. Shaw, 670
F.3d 360, 362 (1st Cir. 2012) ("Individual pieces of evidence
viewed in isolation may be insufficient in themselves to prove a
point, but in cumulation may indeed meet the mark.").

Also, "[w]e

do not assess the credibility of a witness, as that is a role
reserved

for

government

the

jury.

succeeded

in

Nor

need

we

eliminating

be

convinced

every

consistent with the defendant's innocence."

that

possible

the

theory

Trinidad–Acosta, 773

F.3d at 310–11 (quoting United States v. Troy, 583 F.3d 20, 24 (1st
Cir. 2009)).

We will uphold the verdict unless the evidence is so

scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
beyond a reasonable doubt.

United States v. Azubike, 564 F.3d 59,

-16-

Case: 13-2155

64

Document: 00116902540

(1st

Cir.

2009).

Page: 17

Date Filed: 10/14/2015

Accordingly,

"defendants

Entry ID: 5945179

challenging

convictions for insufficiency of evidence face an uphill battle on
appeal."

United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.

2008) (alterations omitted) (quoting United States v. O'Shea, 426
F.3d 475, 479 (1st Cir. 2005).
To sustain a drug-conspiracy conviction, the government
must prove beyond a reasonable doubt that the defendant "knew about
and voluntarily participated in the conspiracy, 'intending to
commit the underlying substantive offense.'"

United States v.

Acosta–Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United
States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "An
agreement to join a conspiracy may be express or tacit, and may be
proved by direct or circumstantial evidence." Trinidad–Acosta, 773
F.3d at 311 (quoting United States v. Liriano, 761 F.3d 131, 135
(1st Cir. 2014)).
Appellants are right that their "'mere presence' at the
scene of criminal activity is not enough" to convict them.

See

United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997).
However, they grossly underestimate the strong circumstantial
evidence supporting the jury's conclusion of guilt.
The evidence presented at trial, viewed in the light most
favorable to the jury's verdict, showed that Appellants, along with
two co-defendants, traveled from the Dominican Republic to the
coast of Dorado, Puerto Rico, on a twenty-to-twenty-five-foot

-17-

Case: 13-2155

Document: 00116902540

Page: 18

Date Filed: 10/14/2015

Entry ID: 5945179

wooden yola, which was painted blue both on the inside and outside
to blend in with the water, had no navigation lights, and was
riding "very low" in the water.

Its lack of lights, low profile,

color, and material made it very hard to be seen or be picked up on
radar. It also had excessive horsepower and fuel for its size, and
did not have any fishing or recreational gear on board.

Instead,

it carried six "block shape[d]" gym bags wrapped in duck tape,
containing more than $3 million worth of heroin and cocaine. These
bags were in plain view of everyone on board the yola.
Once the individuals on board the yola detected that they
had

been

spotted

by

law

enforcement,

they

started

moving

"erratically" on the boat, and "multiple crew members" started
throwing the six bags, as well as small backpacks and objects that
looked like cell phones and GPS units, into the water.

The six

bags were so large and heavy that more than one individual was
needed to lift and throw each one overboard.

Two different

witnesses identified all four Appellants in open court as four of
the six individuals on board the intercepted yola.

There was also

testimony that, when initially intercepted by law enforcement,
Appellants first hesitated to comply with the officers' orders to
stay put and raise their hands.
Furthermore, the jury also heard testimony from expert
witness Agent Conchin about the way drugs are usually packaged (in
"same size bricks"), the type of vessels used to transport drugs,

-18-

Case: 13-2155

Document: 00116902540

Page: 19

Date Filed: 10/14/2015

Entry ID: 5945179

and the roles of people involved in the maritime transportation of
narcotics.
This evidence, which included lay and expert witness
testimony,

a

video,5

and

multiple

photos,6

coupled

with

the

inferences that may be drawn therefrom, was enough for a reasonable
jury to conclude beyond a reasonable doubt that Appellants were
guilty of the conspiracy charges against them.
consistent with our precedent.

Our conclusion is

For example, in United States v.

Cuevas-Esquivel, 905 F.2d 510 (1st Cir. 1990), the defendants, who
were apprehended on a thirty-to-forty-foot boat surrounded by
floating bales of marihuana, raised arguments similar to those
pressed by Appellants here.

In rejecting their argument of "mere

presence," this court held that
[r]ationality support[ed] the jury's finding.
The jury could without undue strain conclude
that it was simply incredible that with only
four persons on board a relatively small
vessel, on its way to "nowhere," with an open
cargo hold, surrounded by a sea of floating
marihuana bales which some of the crew had
been seen dumping, that all four were not
participants in this criminal venture. It is
entirely reasonable for the jury to conclude
that conspirators, engaged in conduct which by
its nature is kept secret from outsiders,

5

On the video, the jury could see individuals on board the yola
tossing bags overboard and law enforcement recovering them from the
water, as well as the individuals' erratic movements when they were
first detected by law enforcement and their hesitance to comply
with the order to raise their hands.
6

There were photos of the yola and the bags and drugs recovered
from the water.
-19-

Case: 13-2155

Document: 00116902540

Page: 20

Date Filed: 10/14/2015

Entry ID: 5945179

would not allow the presence of innocent
bystanders. Neither juries nor judges are
required to divorce themselves of common
sense, where, as here, the appellant's
portrayal of himself as an innocent bystander
is inherently unbelievable.
Id. at 515 (internal quotation marks and citation omitted) (quoting
United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982)); see
also United States v. Rosa-Cariño, 615 F.3d 75, 81 (1st Cir. 2010)
(noting that "[d]rug smugglers handling

. . . valuable drugs are

unlikely to involve unknowledgeable outsiders"); Guerrero, 114 F.3d
at 342 (noting that "where the circumstantial evidence permits a
jury to conclude that activities aboard a vessel concern the
obvious presence of contraband, the jury reasonably may infer the
crew's knowing participation in the venture"); United States v.
Piedrahita-Santiago, 931 F.2d 127, 130 (1st Cir. 1991) (holding
where seven crewmembers were on board a "small" forty-foot vessel
that

"[a]

larger

crew

than

ordinarily

needed

for

navigation

purposes suggests that the crew was hired for the purpose of
loading

and

unloading

cargo

rather

than

merely

steering

the

vessel"); United States v. Luciano-Pacheco, 794 F.2d 7, 11 (1st
Cir. 1986) (stating that "given the necessarily close relation of
crewmembers cramped onto a vessel . . . with marijuana, it is
entirely reasonable for the jury to conclude that conspirators
.

.

.

would

reasonably

not

allow

the

presence

of

innocent

bystanders in their midst while conducting a lengthy, illegal
operation")

(internal

quotation
-20-

marks

and

citation

omitted)

Case: 13-2155

Document: 00116902540

Page: 21

Date Filed: 10/14/2015

Entry ID: 5945179

(quoting United States v. Beltrán, 761 F.2d 1, 6 (1st Cir. 1985);
Smith, 680 F.2d at 259-60 (1st Cir. 1982) (crewmember's presence on
a vessel carrying large quantities of marihuana together with
reasonable inferences, supported the conviction notwithstanding
defendant's contention that he was a mere passenger).
Although Appellants argue that the evidence was also
consistent with their defense that they were on the vessel taking
a ride to Puerto Rico with the sole intention of illegally entering
the United States, it was up to the jury to believe or disbelieve
their defense.

The jury did not believe it and we cannot second-

guess that determination. See Trinidad-Acosta, 773 F.3d at 310-11.
"Nor

need

we

be

convinced

that

the

government

succeeded

in

eliminating every possible theory consistent with the defendant's
innocence."7

Id. at 311 (quoting Troy, 583 F.3d at 24).

Thus, the

district court properly denied Appellants' motions for judgment of
acquittal.
C.

Government's Statements
According

to

Appellants,

the

prosecutor

made

some

improper remarks during trial that deprived them of a fair trial.

7

Although we have held that where the evidence is equally or
nearly equally consistent with innocence as it is with guilt, "a
reasonable jury must necessarily entertain a reasonable doubt,"
O'Laughlin v. O'Brien, 568 F.3d 287, 301 (1st Cir. 2009) (quoting
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)),
that is not the case here, where the evidence establishing guilt
was very strong.
-21-

Case: 13-2155

Document: 00116902540

Page: 22

Date Filed: 10/14/2015

Entry ID: 5945179

Some of these remarks were objected to by some appellants at trial,
while others were not.

We discuss each in turn.

This court reviews de novo whether objected-to remarks by
the prosecution were improper and/or constituted misconduct.

See

United States v. Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir.
2014);

United States v. Appolon, 695 F.3d 44, 66 (1st Cir. 2012).

If

conclude

we

that

statements

were

improper

or

constituted

misconduct, we must then determine whether such statements resulted
in prejudice to the Appellants.

United States v. Rodríguez, 675

F.3d 48, 62 (1st Cir. 2012); United States v. Azubike, 504 F.3d 30,
38-39 (1st Cir. 2007); United States v. Joyner, 191 F.3d 47, 53
(1st Cir. 1999) ("[W]e review for harmless error, that is, whether
the argument was 'sufficiently prejudicial to warrant a new trial
under the circumstances'" (quoting United States v. Rosales, 19
F.3d 763, 767 (1st Cir. 1994))).

In determining whether the

prosecutor's remarks were harmless, "we evaluate the . . . comments
as a whole, not in isolation," Joyner, 191 F.3d at 53 (quoting
Rosales, 19 F.3d at 767), and "we focus on (1) the severity of the
misconduct, including whether it was isolated and/or deliberate;
(2) whether curative instructions were given; and (3) the strength
of the evidence against the [Appellants]."

United States v.

González-Pérez, 778 F.3d 3, 19 (1st Cir. 2015) (citing Rodríguez,
675 F.3d at 62).

The prosecutor's improper statements "are

considered harmful if they 'so poisoned the well that the trial's

-22-

Case: 13-2155

Document: 00116902540

Page: 23

Date Filed: 10/14/2015

Entry ID: 5945179

outcome was likely affected, thus warranting a new trial.'"

Id.

(quoting Rodríguez, 675 F.3d at 62).
Any unpreserved claims of prosecutorial misconduct are
reviewed

for

plain

error.

Id.;

Rodríguez,

675

F.3d

at

64

(requiring defendant to prove there was an error, which was clear
or obvious, that affected his substantial rights, and seriously
impaired the fairness, integrity, or public reputation of the
judicial proceedings).
1.

Opening Statement

During her opening statement, the prosecutor stated:
You'll hear the Judge inform you that
jurisdictional aspects is not an issue for you
to determine. It's already been determined by
this Court that the United States had
jurisdiction over this vessel and that these
individuals were on board this vessel which we
had jurisdiction over with the intent and
knowledge to possess and distribute the
narcotics.
Now, in this case there are no -Peña-Santo's defense counsel immediately objected to the statement
saying, "I object to that, Your Honor.
determined.

That they knew that there were drugs on board is

something for the jury.
decide."

That's not what the Court

That's an issue of fact for the jury to

Gil-Martínez's counsel joined his objection and added

that the district court's "ruling was regarding the jurisdiction,
not that there were drugs inside the vessel."

Faced with these

objections, the prosecutor responded, "I don't believe I stated

-23-

Case: 13-2155

that.

Document: 00116902540

Page: 24

Date Filed: 10/14/2015

Entry ID: 5945179

You will have to determine whether those drugs were on

board, and you'll see the video of them throwing them overboard."
Because only Peña-Santo and Gil-Martínez preserved this
argument, our review of their claim is for harmlessness. While our
review of Vicente-Arias and Liriano's claim would ordinarily be for
plain error, because Appellants' claim fails under both standards
of review, we limit our discussion to the more defendant-friendly
standard.
The prosecutor's statement gave the impression that the
court had already determined that Appellants had the "intent and
knowledge to possess and distribute the narcotics," which was not
correct and, thus, was improper.

However, we still need to

determine whether the statement was prejudicial.
A

review

of

the

record

does

prosecutor intended to mislead the jury.

not

reveal

that

the

Rather, it suggests that

she simply misspoke when trying to list a series of issues the
government wanted to address as an introduction to the government's
case.

Furthermore,

the

prosecutor's

isolated and not deliberate.
Defense

counsel

for

improper

statement

was

See González-Pérez, 778 F.3d at 19.

Gil-Martínez

and

Peña-Santo

immediately

objected to the statement and, although the district court made no
comment or ruling after the objection, the prosecutor immediately
retracted the statement by saying: "I don't believe I stated that.

-24-

Case: 13-2155

Document: 00116902540

Page: 25

Date Filed: 10/14/2015

Entry ID: 5945179

You will have to determine whether those drugs were on board, and
you'll see the video of them throwing them overboard."8
Also, while the district court did not give a curative
instruction at the time, we note that one was not requested.
Moreover, the district court repeatedly instructed the jury that
attorneys' arguments were not evidence.

During the preliminary

instructions, the court stated, "[r]emember these are arguments.
It's what the Government intends to prove in the case.
the actual evidence.

It's not

The actual evidence will be coming in after

the witnesses start coming in and presenting exhibits."

Then,

during the final jury instructions, the district court reiterated
that it was the government who had to prove intent beyond a
reasonable doubt.

Specifically, it stated, "[f]or you to find a

defendant guilty of this crime, you must be convinced that the
Government has proven each of these things beyond a reasonable
doubt . . . that the defendants agreed to import cocaine and heroin
. . . [and] did so knowingly and intentionally."
against finding prejudice.

This militates

See United States v. Gentles, 619 F.3d

8

We note that the correction itself is problematic because it
suggested that the video showed the defendants throwing packages
overboard, whereas it was agreed that the defendants could not be
identified as doing so from the video.
No contemporaneous
objection was made, so we review for plain error. As with the
government's initial statement, the inaccurate reference in the
correction does not amount to plain error, particularly given the
admission in the testimony of the government's witness Agent Perry,
that the defendants could not be identified in the video as
throwing the packages overboard.
-25-

Case: 13-2155

Document: 00116902540

Page: 26

Date Filed: 10/14/2015

Entry ID: 5945179

75, 82 (1st Cir. 2010) ("finding no error where defendant failed to
request a curative instruction and court gave general instructions
before deliberation as to what the jury could and could not
consider as evidence" (citing United States v. Robinson, 473 F.3d
387, 398 (1st Cir. 2007))); see also González-Pérez, 778 F.3d at 21
("[W]e ordinarily presume that juries follow instructions.").
Finally, we find it unlikely that any prejudice surviving
the instructions could have affected the outcome of the case.

The

evidence of Appellants' guilt was strong enough to prevent any
prejudice surviving the instructions from affecting the outcome of
the case.

In addition, the fact that this statement was made at

the beginning of the trial also makes it less likely to have
affected the outcome of the case. See United States v. Mooney, 315
F.3d 54, 60 (1st Cir. 2002) ("The context of the prosecutor's
comments also weighs against finding that they likely affected the
outcome of the trial.

The comments occurred during opening

arguments, not during summation where the last words the jury hears
have significant potential to cause prejudice.").

In sum, because

we do not find that the prosecutor's statement "so poisoned the
well that the trial's outcome was likely affected," González-Pérez,
778 F.3d at 19 (quoting Rodríguez, 675 F.3d at 62) (internal
quotation marks omitted), Appellants' claim fails.

-26-

Case: 13-2155

Document: 00116902540

2.

Page: 27

Date Filed: 10/14/2015

Entry ID: 5945179

Redirect Examination

On direct examination, Ms. Cacho, the chemist, testified
about the tests she performed on some of the drugs in order to
conclude

that

they

were

heroin

and

cocaine.

During

cross-examination, Gil-Martínez's defense counsel asked Ms. Cacho
whether she knew if other tests --

such as fingerprint analysis

and DNA testing -- had been performed on the packages containing
the drugs.

Defense counsel's point was that no tests linked the

Appellants to the drugs.
anything

other

substances.

than

Ms. Cacho testified that she did not do

analyze

the

chemical

composition

of

the

On redirect examination, the prosecutor asked Ms.

Cacho, "Did you watch the video of the defendants throwing the
drugs into the water?" Gil-Martínez's defense counsel objected and
stated that "[t]hat was not part of the cross-examination."

The

district court allowed the question, to which Ms. Cacho responded,
"No."
Although they did not object at trial to the prosecutor's
question to Ms. Cacho on redirect examination, Peña-Santo and
Vicente-Arias now argue that it was a "loaded" and "speaking
question" that aimed to confuse the jury by making them believe
that there was direct evidence linking them to the crimes charged.
They allege that, because there was no direct evidence or witness
identifying them as throwing anything into the water and no one

-27-

Case: 13-2155

Document: 00116902540

Page: 28

Date Filed: 10/14/2015

Entry ID: 5945179

could tell from the video whether they were the ones throwing the
drugs overboard, they are entitled to a new trial.
Since Peña-Santo and Vicente-Arias failed to object to
the question at the trial level, our review is only for plain
error.9

Their claim falls short because, at the very least, they

failed to establish plain-error review's third and fourth prongs.
Specifically, Peña-Santo and Vicente-Arias have not shown that
their substantial rights were affected and that the fairness,
integrity, or public reputation of their judicial proceedings were
seriously impaired, especially because Ms. Cacho responded to the
question in the negative.

Although they argue that the question

wrongly gave the impression that direct evidence (the video) showed
them

throwing

the

drugs

overboard,

the

fact

that

Ms.

Cacho

responded that she had not seen the video -- coupled with the fact
that the jury examined the evidence (including the video) from
which the government could lawfully suggest that the jury draw an
inference

that

Appellants

were

the

ones

throwing

the

drugs

overboard10 -- sufficiently attenuated any effect that the question

9

We note that only Gil-Martínez objected to the prosecutor's
question at the trial level, but he did so on different grounds -that the question went beyond the scope of the cross-examination -and neither Peña-Santo nor Vicente-Arias joined his objection.
10

The government may suggest to the jury which inferences should
be drawn from the evidence as long as the government does not know
that the suggested inferences are false or has very strong reasons
to doubt those inferences. See United States v. Kasenge, 660 F.3d
537, 542 (1st Cir. 2011) (stating that "[a]lthough it is the jury's
job to draw the inferences, there is nothing improper in the
-28-

Case: 13-2155

Document: 00116902540

alone could have had.

Page: 29

Date Filed: 10/14/2015

Entry ID: 5945179

This is just not the kind of "blockbuster

error" for which "plain error review tends to afford relief."
Rodríguez, 675 F.3d at 64.
3.

Closing Argument

Peña-Soto and Vicente-Arias also challenge the following
statement made by the government during its closing argument:
"That's not someone's personal drug stash right there.

$3.2

million is not something that the four of them are going to use
casually at parties.

Those are drugs that the four of them are

going to sell at a profit, $3.2 million."

Although they did not

object to the statement at the trial level, Peña-Santo and VicenteArias assert that it satisfies the plain error standard of review
since there was no evidence, either circumstantial or direct, that
they intended to sell drugs for profit or that they stood to gain
millions of dollars in profit.

Relying on Arrieta-Agressot v.

United States, 3 F.3d 525, 527 (1st Cir. 1993), they claim that the
challenged statement was inflammatory by referring to money and
wealth, and that the evidence showed, at most, that they acted as
couriers (mules) or may have assisted on the boat.

We disagree.

Although there was no direct evidence that Appellants
intended to sell the drugs for profit, there is no error -- plain

Government's suggesting which inferences should be drawn," but
noting that it is error for the government to propound inferences
that it knows to be false, or has a very strong reason to doubt)
(citations omitted).
-29-

Case: 13-2155

Document: 00116902540

Page: 30

Date Filed: 10/14/2015

Entry ID: 5945179

or otherwise -- in referencing the amount or worth of the drugs and
inviting the jury to draw the inference that the drugs were not for
personal use.

See United States v. Bergodere, 40 F.3d 512, 518

(1st Cir. 1994) (noting that "we have long recognized that factors
such as the quantity and purity of the drugs confiscated by the
authorities can support an inference of intent to distribute"); see
also United States v. Meadows, 571 F.3d 131, 144-45 (1st Cir. 2009)
(At closing argument, the prosecution may "ask jurors to draw
reasonable inferences from the evidence.").

And, even if the

Appellants would not be the ones actually to sell the drugs and
were instead couriers or mules, they were still part of the same
conspiracy to import and distribute (and eventually sell for
profit) controlled substances, which were the charged offenses.
Furthermore,

Peña-Santo's

Arrieta-Agressot

is

Arrieta-Agressot

had

and

Vicente's

misplaced.
to

do

with

The
the

defendants' actions had on society.

reliance

improper
"evil"

comments

effect

that

on
in
the

There, we established that a

prosecutor's statement is improper if it serves no purpose besides
inflaming the passions and prejudices of the jury.

3 F.3d at 527.

Here, however, the prosecutor's reference to the worth of the drugs
had the legitimate purpose of both refuting the Appellants' mere
presence defense and suggesting that the jury draw an inference as
to the required element of intent.

See Bergodere, 40 F.3d at 518.

Thus, their plain error claim fails.

-30-

Case: 13-2155

D.

Document: 00116902540

Page: 31

Date Filed: 10/14/2015

Entry ID: 5945179

Peña-Santo's Cumulative Error Claim
Peña-Santo argues that if none of his previous claims of

error is sufficient to vacate his conviction, their cumulative
prejudicial effect requires that his conviction be vacated and his
case remanded for a new trial.
We

have

acknowledged

that

"[i]ndividual

errors,

insufficient in themselves to necessitate a new trial, may in the
aggregate have a more debilitating effect."

United States v.

Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).

"[C]laims under

the cumulative error doctrine are sui generis." Id. at 1196. When
reviewing such a claim a Court must consider:
each such claim against the background of the
case as a whole, paying particular weight to
factors such as the nature and number of []
errors committed; their interrelationship, if
any, and combined effect; how the district
court dealt with the errors as they arose
(including the efficacy -- or lack of efficacy
-- of any remedial efforts); and the strength
of the government's case.
Id.

In addition, the length of the trial is another factor to be

considered.

Id.

Here, none of Peña-Santo's alleged errors -- which are
not many, considering the length of the trial -- resulted in
substantial prejudice and most of them are entirely without merit.
Furthermore, as previously explained, the evidence against PeñaSanto was very strong, and the district court did not conduct the
trial in a manner that undermined his right to a fair trial.

-31-

Thus,

Case: 13-2155

Document: 00116902540

Page: 32

Date Filed: 10/14/2015

Entry ID: 5945179

we reject his contention that his conviction was tainted by
cumulative error.

See United States v. Flemmi, 402 F.3d 79, 95

n.23 (1st Cir. 2005) ("[B]ecause we have found that none of [the
defendant's]

individual

complaints

resulted

in

substantial

prejudice and that most are completely without merit, we reject the
final contention that his conviction was tainted by cumulative
error." (quoting United States v. DeMasi, 40 F.3d 1306, 1322 (1st
Cir. 1994))).

"The Constitution entitles a criminal defendant to

a fair trial, not to a mistake-free trial."

Sepúlveda, 15 F.3d at

1196 (citing Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986));
United States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988)).
E.

Gil-Martínez's Sentencing Disparity Claim
Gil-Martínez claims that he received a disparately higher

sentence than co-defendant Vicente-Arias, even though there was no
evidence of dissimilar conduct among them and they both had the
same Criminal History Category ("CHC").
1.

Background

The Presentence Investigation Report ("PSR") recommended
a Guidelines sentencing range ("GSR") for Gil-Martínez of 235 to
297

months

of

imprisonment.11

The

11

PSR

did

not

identify

any

Pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(d) (2004)
("U.S.S.G."), Counts One and Two were grouped together.
These
offenses resulted in a base offense level of thirty-eight, pursuant
to U.S.S.G. § 2D1.1. Gil-Martínez had no previous criminal history
and had a CHC of I. This yielded a GSR of 235 to 297 months of
imprisonment.
-32-

Case: 13-2155

Document: 00116902540

Page: 33

Date Filed: 10/14/2015

Entry ID: 5945179

information that would warrant a role adjustment or a departure.
At the sentencing hearing, the district court considered the PSR's
recommended GSR and took into account Gil-Martínez's "unfortunate
rearing and upbringing."

It considered that at times Gil-Martínez

was unable to eat because his family could not afford food, he
lived in a wooden house with a dirt floor, and he only had a fourth
grade education because he left school at a young age to help
support

his

family.

Gil-Martínez

argued

that

a

within-the-

Guidelines sentence would be unreasonable when compared to VicenteArias's sentence of 130 months of imprisonment.

He then requested

to be sentenced to 120 months of imprisonment, the statutory
minimum.

He argued that sentencing him to a greater term of

imprisonment would create a sentencing disparity.
The district court considered Gil-Martínez's request for
a sentence similar to that of Vicente-Arias, who received a minor
role reduction.

The government opposed Gil-Martínez's request for

a downwardly variant sentence of 120 months, arguing that, while
Vicente-Arias had received a minor role reduction, Gil-Martínez had
a number of roles onboard the yola, which distinguished him from
Vicente-Arias.

The government pointed out that Gil-Martínez had

admitted to operating and fueling the yola.

The district court

concluded that it did not have any information that would support
granting Gil-Martínez a minor role reduction like that VicenteArias

received

or

otherwise

sentencing

-33-

him

to

a

term

of

Case: 13-2155

Document: 00116902540

Page: 34

Date Filed: 10/14/2015

Entry ID: 5945179

imprisonment the same as or similar to that of Vicente-Arias.

The

court also considered the sentences imposed on other co-defendants.
It noted that, although Peña-Santo received the statutory minimum
sentence

of

120

months

of

imprisonment,

Peña-Santo's

characteristics were different from those of Gil-Martínez because
Peña-Santo was facing serious health conditions and his life
expectancy was less than six months. The district court noted that
although Gil-Martínez compared himself only to Vicente-Arias and
Peña-Santo,

the

district

court

had

also

sentenced

another

co-defendant who had pleaded guilty pursuant to a straight plea to
188 months of imprisonment.

The district court then stated that,

in sentencing each defendant, it had taken into consideration "the
particular situation of each and every one defendant" and had
"individualized sentencing."

After concluding that the court did

not have any information to support a minor role reduction, and
that Gil-Martínez was in good health, the district court imposed on
Gil-Martínez

a

downwardly

variant

sentence

of

192

months

of

imprisonment.
2.

Standard / Scope of Review

We review challenges to the reasonableness of a sentence
"under a deferential abuse-of-discretion standard." Gall v. United
States, 552 U.S. 38, 41 (2007).

We first consider "whether the

district court made any procedural errors, such as 'failing to
calculate

(or

improperly

calculating)

-34-

the

Guidelines

range,

Case: 13-2155

Document: 00116902540

Page: 35

Date Filed: 10/14/2015

Entry ID: 5945179

treating the Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range.'"

United States v. Maisonet-González, 785 F.3d

757, 762 (1st Cir. 2015) (quoting United States v. Rivera-Moreno,
613 F.3d 1, 8 (1st Cir. 2010)).

If the district court has

committed no procedural error, we then review the substantive
reasonableness of the sentence imposed for abuse of discretion.
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
"When conducting this review, we take into account the totality of
the circumstances, including the extent of any variance from the
Guidelines." Maisonet-González, 785 F.3d at 762 (quoting TrinidadAcosta, 773 F.3d at 309). "A sentence will withstand a substantive
reasonableness

challenge

so

long

as

there

is

sentencing rationale and a defensible result.'"

'a

plausible

Id. (quoting

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
In fashioning a sentence, judges must consider "the need
to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct." 18
U.S.C. § 3553(a)(6). Although this provision is primarily aimed at
national disparities, rather than those between co-defendants,
Martin, 520 F.3d at 94, we have also held that if "'identically
situated defendants' receive significantly disparate sentences, red

-35-

Case: 13-2155

Document: 00116902540

Page: 36

flags may indeed be raised."

Date Filed: 10/14/2015

Entry ID: 5945179

United States v. Rivera-López, 736

F.3d 633, 636 (1st Cir. 2013) (quoting United States v. Mueffelman,
470 F.3d 33, 41 (1st Cir. 2006)).
3.
We
sentencing

Analysis
afford

because,

the
after

district
the

court

court

has

wide

discretion

calculated

the

in
GSR,

"sentencing becomes a judgment call, and a variant sentence may be
constructed based on a complex of factors whose interplay and
precise weight cannot even be precisely described."

United States

v. Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520
F.3d at 92).

Gil-Martínez does not allege that the district court

failed to consider the 18 U.S.C. § 3553(a) sentencing factors -including the need to avoid sentencing disparities -- or commit any
other procedural error. Rather, his challenge goes to the weighing
of the section 3553(a) sentencing factors, specifically the factors
establishing the need to avoid sentencing disparities and the
history and characteristics of the defendant.
sentenced

below

the

applicable

GSR,

his

As Gil-Martínez was
challenge

to

the

substantive reasonableness of his sentence faces an uphill battle.
See United States v. Joubert, 778 F.3d 247, 256 (1st Cir. 2015)
("When, as in this case, a district court essays a substantial
downward variance from a properly calculated guideline sentencing
range, a defendant's claim of substantive unreasonableness will

-36-

Case: 13-2155

Document: 00116902540

Page: 37

Date Filed: 10/14/2015

Entry ID: 5945179

generally fail." (quoting United States v. Floyd, 740 F.3d 22,
39-40 (1st Cir. 2014))).
As the Government correctly contends, a district court's
consideration

of

sentencing

disparity

aims

primarily

at

the

minimization of disparities among defendants nationally and, while
avoidance of disparities among co-defendants may be considered, "a
defendant is not entitled to a lighter sentence merely because his
co-defendants

received

lighter

sentences."

United

States

v.

Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (quoting United States v.
Marceau, 554 F.3d 24, 33 (1st Cir. 2009)).

Furthermore, contrary

to Gil-Martínez's claim, he is not entitled to the same sentence as
Vicente-Arias because they are not "identically situated," inasmuch
as Vicente-Arias received a minor role reduction12 and Gil-Martínez
did not.

See Rivera-López, 736 F.3d at 636; United States v.

Rivera-González, 626 F.3d 639, 648 (1st Cir. 2010).

At the

sentencing hearing the district court stated that it would not
grant Gil-Martínez a minor role reduction because it did not have
any information supporting a minor role reduction, and, as the
government argued, the information was to the contrary, with
Gil-Martínez having admitted to operating and fueling the yola.
The district court concluded that this information distinguished
Gil-Martínez's role in the conspiracy from that of Vicente-Arias.
Gil-Martínez has failed to show that these findings of fact

12

This resulted in Vicente-Arias having a lower GSR.
-37-

Case: 13-2155

Document: 00116902540

Page: 38

Date Filed: 10/14/2015

Entry ID: 5945179

regarding his role in the conspiracy were clearly erroneous.

See

United States v. Torres-Landrúa, 783 F.3d 58, 66 n.10 (1st Cir.
2015).

In addition, although Gil-Martínez selectively compares

himself only to Vicente-Arias, the record shows that the district
court did take into consideration the need to avoid sentencing
disparities not only in relation to Vicente-Arias, but also in
relation to his other co-defendants.

It is clear from the record

that the district court also took into consideration that another
co-defendant, who had pleaded guilty pursuant to a straight plea,
had received a sentence of 188 months of imprisonment, and that
Peña-Santo, who was sentenced to the statutory minimum, received
that sentence because he was sick and his life expectancy was less
than six months. Because it is evident that the district court did
consider the need to avoid sentencing disparities among defendants,
as well as the other sentencing factors, sufficiently explained its
chosen

sentence,

and

arrived

at

a

defensible

result,

Maisonet-González, 785 F.3d at 762, Gil-Martínez's challenge to the
reasonableness of his downwardly variant sentence fails.
III.

Conclusion

The record reflects that Appellants were afforded a fair
trial, that the expert testimony of Agent Conchin was proper, and
the evidence of their guilt was more than sufficient to support the
jury's verdicts. In addition, the record shows that Gil-Martínez's

-38-

Case: 13-2155

Document: 00116902540

sentence was appropriate.

Page: 39

Date Filed: 10/14/2015

Entry ID: 5945179

Thus, Appellants' convictions and Gil-

Martínez's sentence are affirmed.
Affirmed.

-39-