UNITED STATES OF AMERICA, Appellee, v. WILLIAM TEJEDA, Defendant, Appellant.
No. 06-1824
United States Court of Appeals For the First Circuit
April 3, 2007
[Hon. William G. Young, U.S. District Judge]
Before Boudin, Chief Judge, Torruella and Lynch, Circuit Judges.
David J. Apfel, with whom Jennifer W. Fischesser, William J. Trach, and Goodwin Procter LLP were on brief, for appellant.
Susan M. Poswistilo, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Four of Tejeda‘s co-conspirators pled guilty, and two, Amanda Eldridge and Desiree Alves, testified against him. Tejeda and a co-conspirator, Carmen Figueroa, went to trial; she testified, he did not. Both were convicted. Tejeda was sentenced to twenty years’ imprisonment, five years of supervised release, and a special assessment of $100.
As to his conviction, Tejeda does not attack the sufficiency of the evidence. The evidence against him was extremely strong, a point discussed later. He does argue that the trial court committed two errors that deprived him of a fair trial and require his conviction be set aside. The first claim of error is that the court should have granted a mistrial when an older man sitting in the gallery of the courtroom on the first day of trial (and later possibly connected to defendant by the evidence) made a throat-slitting gesture. That gesture was seen by two jurors and discussed by them with other jurors. The second trial error
Tejeda also attacks his sentence on the grounds that the district court erroneously relied on the Guidelines applicable to crack cocaine offenses and that the sentence was unreasonable.
Acknowledging the able advocacy on both sides, we affirm the conviction and sentence.
I.
The facts in evidence at the trial fairly establish the following.
From January 2003 through March 2004, Tejeda supplied crack cocaine to a drug distribution ring operating in Cape Cod, Massachusetts. Tejeda was based in New York; his address, ironically, was 1234 Boston Road, in the Bronx. The Cape Cod ring was headed by Manuel Mendes, a co-defendant, who operated the ring while imprisoned at the Plymouth County House of Correction. That imprisonment limited Mendes in his mobility and in his command operations, but it did not stop him. Mendes operated the drug ring by giving instructions to co-defendant Figueroa, and sometimes to co-defendant Alves, both of whom he was permitted to telephone. Figueroa, in turn, contacted Tejeda and the other conspirators.
On Mendes’ instructions, testifying co-conspirator Amanda Eldridge drove to New York in January 2003, along with Carmen
Eldridge testified that, under Mendes’ direction, she made the trip to New York to pick up drugs from Tejeda every week or so for a four-month period. Eldridge then drove back to Cape Cod and gave the drugs to either Alves or Figueroa. Each time, Tejeda gave Eldridge disk-shaped packages containing crack cocaine. Eldridge also identified Tejeda‘s voice in a call recorded by the government. The recording captured Tejeda and Figueroa arranging a drug transaction for February 17, 2004 in New York.
The February 17, 2004 transaction went off as planned, as was established by the testimony of Alves and two drug enforcement officers who witnessed the event. Co-defendant Christopher Custer was the courier this time. Alves did not go on the trip, but she did give Custer the money to purchase the drugs the night before, and she received the drugs at her home in Yarmouth from Custer when he returned from his successful trip to New York.
The DEA had established surveillance over Tejeda‘s home in the Bronx and observed Custer‘s arrival and actions on February
The police made arrests immediately after observing another drug deal, this one on March 16, 2004. Custer, after again obtaining money on Cape Cod to pay for the crack, went to New York. Agents saw Tejeda leave the Boston Road address in the Bronx. Tejeda then got in a car, and police tracked the car to Manhattan. In Manhattan, an agent observed Custer on the same street as the car carrying Tejeda. A short time later, after losing sight of Custer, the agent saw Tejeda get out of the front passenger seat of the car, and Custer get out of the back passenger seat and into the front passenger seat of the car. The police thereafter stopped the car; in it were two disk-like objects, which later tested positive for cocaine base. That evening Tejeda was arrested.
The government‘s case rested primarily on this evidence, and not on the testimony of the non-pleading co-defendant, Figueroa.
A. The Throat-Slitting Gesture and Fair Trial Rights
1. Facts And Procedural History
On the morning of the third day of trial, Friday, May 6, 2005, the government‘s witness was Lt. Balcom. During questioning, Lt. Balcom indicated that on one occasion he had observed some of the individuals in the courtroom in the red van. At the prosecutor‘s request, Lt. Balcom pointed out these people in the courtroom.
During the morning break, a juror reported privately to the court that she and another juror had seen one of the individuals identified by Lt. Balcom make a throat-slitting gesture on the second day of trial, Wednesday, May 4. After the break and outside of the presence of the jury, the court inquired and was told by defense counsel that the man in question was Tejeda‘s grandfather. The jury was never informed of this fact.
The court reported to counsel, outside the presence of the jury, that a juror had stated that she had observed Tejeda‘s grandfather making a throat-slitting gesture. The court then ordered the gesturer and his wife to leave the courthouse and barred them from the courthouse and the surrounding vicinity. At least some members of the jury were later informed of the court‘s order. On the record, the court described the man barred from the courtroom as an “obviously frail appearing, old man.”
Before starting the trial again that Friday, the court said to the jurors:
A matter has been conveyed to . . . me and I have taken care of it completely. Put it out of your mind. It has nothing to do with this case. Have in mind, while the report is fully appropriate, indeed we want such a report, do not discuss the case among yourselves, the case now, in the jury room.
Tejeda did not object to the instruction, and the trial continued for the day. Later, several of the jurors, on query, said that the jury had complied with this instruction. Assuming that to be true, any discussion amongst the jurors occurred before the court dealt with the report of the gesture.
On Sunday, May 8, Tejeda submitted a written mistrial motion. On Monday, May 9, the court denied the motion but told the parties it would grant their request to voir dire the juror who had reported the gesture, Juror 11.
The court then individually questioned Juror 11. She said that she was concerned about the gesture but did not report it on the day she saw it. It was only after she heard the testimony of Lt. Balcom identifying the spectator as having been at the red van that she started to feel uncomfortable about what she had seen
When asked whether she had linked the individual making the gesture to any particular party in the case, Juror 11 answered that she didn‘t know whether the older gentleman and the lady who had been sitting with him had anything to do with a particular person or side. The juror stated that all she knew was that Lt. Balcom had testified to seeing one of them in the red van. While she recognized the public nature of the courtroom setting, she was concerned that people in the courtroom could know the names of the jurors. The court asked whether she could put the incident out of her mind when evaluating the case and be fair to all parties. She answered affirmatively, and the court, observing her, found her to be forthcoming. Tejeda again moved for mistrial.
The court then questioned Juror 6, who also had seen the gesture. Juror 6 described the gesture as odd and a strange thing to do in the middle of a court proceeding but did not think there was anything to it. She said that it was unclear to her toward whom the gesture was directed. Juror 6, like Juror 11, answered in the affirmative as to her ability to be fair and impartial. The court then denied the motion for mistrial.
Each juror was asked whether he or she could be fair and impartial, and every one responded in the affirmative. While several of the jurors indicated that they thought the gesture was inappropriate, no juror expressed fear for his or her safety. Two jurors reported that the gesture had been unsettling or disconcerting for the jurors who had seen it. One juror stated that the reported gesture put pressure on the jury, but that the remedial action taken by the court had been appropriate. Another juror stated that there could be safety concerns, but after hearing of the court‘s order barring the gesturer from the courthouse, she stated that she was satisfied with her own safety. One juror reported that he knew nothing of the gesture.
Following the voir dire of the entire jury, Tejeda renewed his motion for a mistrial and also requested that the jury foreperson, Juror 11, be deemed an alternate so she would not participate in the jury deliberation. These motions were ultimately denied.
2. Appropriate Analytical Framework
a. Structural Error
Tejeda argues that it is clear that the jury here was not impartial, despite the trial judge‘s finding to the contrary and the jurors’ individual declarations that the incident did not render any of them unable to remain impartial in reaching a verdict.
Tejeda leaps from this purported factual certainty to an argument, presented for the first time on appeal, that this issue must be analyzed as structural error. Tejeda would like this to be so because in structural error cases the defendant is entitled to automatic reversal. We reject Tejeda‘s argument.
Structural error analysis has been constricted in its use to a limited category of claimed errors, none of which fits this case. The Supreme Court has held that it is structural error for a criminal defendant to be tried before a judge who has a financial interest in convicting him. Tumey v. Ohio, 273 U.S. 510, 523, 535 (1927). Tejeda infers from Tumey that his claim that a juror is
Mere error in the trial process itself is not structural error. United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563-64 (2006). Structural errors are reserved for cases where criminal defendants are denied basic protections which “necessarily render a trial fundamentally unfair” such that “no criminal punishment may be regarded as fundamentally fair.” Neder v. United States, 527 U.S. 1, 8-9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)) (internal quotation marks omitted). Tejeda‘s claim of juror bias is not within this very limited class of cases. See United States v. Mackey, 114 F.3d 470, 474 (4th Cir. 1997) (juror bias and misconduct claims are not structural errors).1
On appeal, Tejeda also argues for the first time2 that he is entitled to a presumption of prejudice under Remmer v. United States, 347 U.S. 227 (1954). We hold that the Remmer presumption does not apply here.
In Remmer, the defendant learned after his conviction that a third party had attempted to bribe a juror to get a verdict favorable to the defendant, and he moved for a new trial. Id. 228. The court had not informed defense counsel of the bribe, but had initiated an investigation of the bribe and had held an ex parte meeting with the prosecution. Id. The defendant‘s motion for new trial was denied. Id. 229. The Supreme Court held that Remmer was not entitled to an automatic reversal, but rather to a hearing before the trial court, and that the jury tampering would be presumed to be prejudicial. Id. 229-30.
There is an ongoing debate in the circuits about the limits on and the ongoing vitality of the presumption of prejudice rule announced in Remmer. Compare United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir. 1984) (presumption of prejudice no longer exists), with United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (proper inquiry is whether likelihood of prejudice is high enough to assign to the government the burden of proving
This court has already rejected defendant‘s argument that the Remmer presumption applies to all claims of juror bias resulting from extraneous contacts. See, e.g., Bradshaw, 281 F.3d at 288-89; United States v. Gomes, 177 F.3d 76, 82-83 (1st Cir. 1999); United States v. Boylan, 898 F.2d 230, 260-62 (1st Cir. 1990).
Gaston-Brito is inapposite. In Gaston-Brito, a cooperating witness was asked to identify the person who had threatened to kill his daughter if his wife did not turn over drug proceeds. A case agent seated at the prosecution table pointed to the defense table, possibly indicating to the jury that the defendants had made the threat, although no evidence established that. Id. 12. The gesture at issue here is of a completely different nature.
There are other distinctions. As Gaston-Brito noted, the government created the problem there when a case agent for the prosecution made an inappropriate gesture conveying substantive evidence. Id. 13. Since the jury could well think that the agent had inside information, there was a risk the jurors would consider the information during deliberations. Id. The court in Gaston-Brito said it was applying a heightened standard when the prosecution was responsible for improper ex parte conduct.3 Id. Here, the gesture did not come from the prosecution and was not an effort to put evidence in front of the jury. We add that there are different considerations at play when a defendant attempts to vacate a conviction, in the face of overwhelming evidence of guilt, on the basis that someone associated with the defense made an improper gesture to the jury. For example, we would not want to create an incentive for such gesturing by individuals associated with defendants.
3. Merits Analysis
Our usual standard of review once the trial judge has made an appropriate inquiry, and the one that we utilize here, is an abuse of discretion standard, which recognizes that the district court “has wide discretion in deciding how to handle and how to respond to allegations of juror bias and misconduct that arise during a trial.” United States v. Rodriguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006); see also United States v. Mikutowicz, 365 F.3d 65, 74 (1st Cir. 2004); Bradshaw, 281 F.3d at 286-87. We review the
Where a colorable claim of jury taint surfaces before jury deliberations occur, our law describes the sequence of steps a trial judge should take. See id. at 289. The judge should investigate the allegation promptly, addressing whether the taint-producing event occurred, and if so, assessing the magnitude and extent of any prejudice caused. Id. The trial court has wide discretion in how it goes about this inquiry. Id. at 290. The district court, if faced with the issue initially post-verdict, may convene an evidentiary hearing, but it is not obligated to do so. Boylan, 898 F.2d at 258.
If the court determines that there is a taint-producing event and a significant potential for prejudice, the trial court should then examine whether prophylactic measures will alleviate the prejudice (and if so, take them), or whether the threat can otherwise be dispelled or disproved. Bradshaw, 281 F.3d at 289. The court may determine that no curative measures will suffice and grant a timely motion for a mistrial. Id.
Here, the court followed every step in the procedure. There is no realistic objection to the process it used. Rather, Tejeda‘s attack is on the court‘s conclusion that any potential prejudice had been adequately addressed. The court did not apply
This case involves (1) a risk of a perception by a juror of an implicit threat from someone who might, in the juror‘s view, be associated with the defendant; and (2) the risk that this “threat” might influence the juror‘s ability to impartially evaluate the evidence. These risks are weighed against the individual jurors’ own statements that they were not so influenced and the trial judge‘s findings of fact that the jurors could fairly and impartially reach a verdict.
The risks in this case are considerably weaker than those posed by the facts in Rodriguez-Ortiz, where we upheld a district court‘s denial of mistrial. 455 F.3d at 23-24. There, a juror reported he had received an explicit death threat related to the case. Id. at 24. On inquiry, the juror said he could remain impartial, and the court concluded he could do so. Id. Other circuits have likewise affirmed the denial of a mistrial when a juror was threatened but assured the court that he could remain impartial in deciding the case. See, e.g., United States v. Simmons, No. 99-50381, 2000 WL 429704, at *1-2 (9th Cir. Apr. 20, 2000) (unpublished table decision) (mem.) (affirming denial of mistrial when spectator made gestures during closing arguments that made some jurors feel threatened); Leisher v. Conrad, 41 F.3d 753, 754-55 (D.C. Cir. 1994) (affirming denial of mistrial when two
Tejeda argues that more than a single juror is involved, which increases the risk of taint. This, he says, necessarily requires a different result from that reached in Rodriguez-Ortiz. It does not. The implicit threat, while serious, was of a different nature than the direct threat in Rodriguez-Ortiz. Further, it is unclear here to whom the gesture was intended, and here there was a possible, but not direct, association between the threat and the case.
Importantly, the district court did not ignore the risk that one or more of the jurors could perceive this gesture as a threat or that a threat might impair impartiality. First, the court took immediate remedial action. The court had the spectator who was the source of the “threat” removed from the courtroom and
Nor did the court leave the incident for further conversation and musings among the jurors. The court instructed them not to discuss it, and, those who were later questioned said the jurors had complied with that instruction. Normally, if jurors say they have followed instructions, their statements are credited. Cf. Penry v. Johnson, 532 U.S. 782, 799 (2001); Boylan, 898 F.2d at 263.4
There are, of course, extreme cases in which jurors’ responses will not be credited. See Bruton v. United States, 391 U.S. 123, 135-36 (1968) (“[T]here are some contexts in which the
The district court did not abuse its discretion in its handling of the throat-slitting gesture. Rather, it responded sensitively and correctly.
B. Severance and Bifurcation
Appellate review of trial court decisions to sever trials of criminal co-defendants is for manifest abuse of discretion. United States v. DeLeon, 187 F.3d 60, 63 (1st Cir. 1999); Boylan, 898 F.2d at 246. Ordinarily, criminal co-defendants are to be tried together. United States v. Houle, 237 F.3d 71, 75-76 (1st Cir. 2001). This rule has particular resonance in drug conspiracy cases, where multiple defendants often share a single indictment.
See United States v. Soto-Beníquez, 356 F.3d 1, 29 (1st Cir. 2003). Tejeda bears the burden of making “a strong showing of prejudice” in order to gain a new trial. Boylan, 898 F.2d at 246 (quoting United States v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)) (internal quotation marks omitted).Tejeda twice moved to sever his trial from that of his co-defendants. He did so as to all co-defendants by motion before trial. Later, on the first day of trial, he orally moved to sever his trial from that of co-defendant Figueroa, after he learned that Figueroa would testify and present a battered woman defense as to her relationship with Mendes.5 Her testimony would be that Mendes regularly beat her. Her proffer indicated that she would not implicate Tejeda in the abuse she suffered.
On appeal, the only issue has to do with the motions to sever the case against Figueroa. Tejeda‘s severance motion argued that it was likely that Figueroa would take the stand and admit her involvement in the conspiracy, but present a case of duress because she had been under the influence of Mendes, who had pled guilty. The court denied the motion for severance saying Tejeda could cross-examine Figueroa, and that no inconsistent defenses were involved.
On May 12, 2005, Tejeda proposed to the trial court that it bifurcate the trial, differentiating the evidence applicable to his case and to Figueroa‘s. Specifically, Tejeda proposed that he put on his case, the prosecution put on its rebuttal, then the jury decide on Tejeda‘s guilt or innocence alone. Thereafter, Figueroa would present her defense, the prosecution its rebuttal, and the jury would then render its verdict as to Figueroa. The court denied Tejeda‘s motion. The motion was renewed at the close of the prosecution‘s case-in-chief and again denied.
The prosecution questions whether the severance motion on the day of trial and the bifurcation motion6 were timely. See
Severance should be granted where “defenses are so irreconcilable as to involve fundamental disagreement over core and basic facts.” United States v. Peña-Lora, 225 F.3d 17, 34 (1st Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553, 561 (1st Cir. 1986) (emphases added)) (internal quotation marks omitted). But where there is merely some dissonance, where the defenses are just “somewhat antagonistic,” we will usually not reverse a trial court‘s denial of severance. United States v. Serafino, 281 F.3d 327, 329 (1st Cir. 2002). Tejeda relies on
Here, by contrast, there was no true antagonism of defenses. Tejeda‘s defense explicitly acknowledged there was a drug conspiracy; he simply argued the prosecution could not prove beyond a reasonable doubt that he was the New York source of drugs for the conspiracy. Thus, Figueroa‘s defense that there was a drug conspiracy, but that she had acted under duress, was not an antagonistic defense at all. Her defense did not in any way hinge on Tejeda‘s participation in the conspiracy. Indeed, even if the jury accepted her duress defense it could either accept or reject Tejeda‘s defense. Severance is not required every time a duress defense is asserted by one defendant. Peña-Lora, 225 F.3d at 34; United States v. Arias-Villaneuva, 998 F.2d 1491, 1507 (9th Cir. 1993), overruled on other grounds by United States v. Jimenez-Ortega, 472 F.3d 1102, 1102-04 (9th Cir. 2007).
Even if Tejeda had shown that severance from Figueroa was appropriate in this drug conspiracy case, it was his burden to show
Tejeda‘s real argument is not one of antagonism. It is that Figueroa‘s testimony about being regularly beaten by her boyfriend Mendes, the head of the conspiracy, would spill over to Tejeda, who was accused of conspiring with Mendes in drug distribution. This is a sort of argument that “you are known by the friends you keep,” and bad friends will taint you in the jury‘s eyes. It is almost inherent in drug conspiracy cases that a co-conspirator may have engaged in other types of blameworthy conduct. That is not enough to warrant severance of co-defendants’ trials. While Mendes’ treatment of Figueroa may have been more shocking than run-of-the-mill blameworthy conduct from drug co-conspirators, Tejeda‘s role in the conspiracy — as a geographically-removed supplier several states distant — lessened the risk that the jurors might ascribe Mendes’ conduct to him. Moreover, the trial judge instructed the jury that evidence of Mendes’ mistreatment of Figueroa was not to be considered in the case against Tejeda.
The district court did not abuse its discretion in denying the severance motion. Nor was there any abuse of discretion in the denial of the bifurcation procedure. Such a procedure risked confusion of the jury and unwarranted singling out of the case against Tejeda.
Given that we have found no error in the district court‘s handling of the throat-slitting gesture or the severance and bifurcation motions, Tejeda‘s cumulative error claim is without merit.
III. Sentencing Claims
A. Application of Crack Cocaine Guidelines
We review de novo sentencing issues involving questions of law. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996).
We bypass the question of forfeiture because even if Tejeda preserved his claim, it fails on the merits. As Tejeda conceded before the district court, our decision in United States v. Medina, 427 F.3d 88 (1st Cir. 2005), forecloses any argument that as a general matter the government must prove to the jury beyond a reasonable doubt that the cocaine base at issue is crack cocaine. In Medina, the defendant was convicted of, inter alia, possession with intent to distribute over fifty grams of cocaine base. Id. at 90. On appeal, Medina argued that the trial court
Tejeda argues that the sentencing court was not permitted to make the crack determination in his case because it was the law of the case that all sentencing enhancements be proved to the jury beyond a reasonable doubt. This argument is without merit. At
Tejeda argues that he was prejudiced by the district court‘s change of position because (1) the court never conducted a jury-waived proceeding to determine whether the cocaine base at issue was crack cocaine and (2) the court had promised this jury-waived proceeding, and as a result, the trial record, on which the district court relied in determining that the cocaine base was crack, was underdeveloped with respect to the crack issue.
Tejeda is correct that the district court repeatedly stated that the government would not be able to seek a sentencing enhancement for crack unless it had pled and proved the issue to
The district court did in fact conduct a jury-waived proceeding on the crack issue on September 22, 2005.9 At that proceeding, Tejeda offered an expert to testify to the difference between crack and other forms of cocaine base. However, the parties all agreed that crack was merely one form of cocaine base, and there was no factual dispute as to whether crack and cocaine base were one and the same. Tejeda also offered his expert to cast doubt that the drugs seized on March 16, 2004 from the car in which Tejeda had been riding were crack. He proffered that his expert would testify that while the DEA had concluded that a different drug sample — seized from co-conspirator Custer‘s home — was crack, the DEA had not concluded that the drugs linked to Tejeda were crack. This was an inaccurate characterization of the DEA‘s conclusions, as the prosecution pointed out. The parties had stipulated that the DEA had concluded that both tested samples contained cocaine base. The DEA had made no finding as to whether either sample contained crack cocaine. As a result, Tejeda‘s expert‘s testimony would not have been informative on any factual dispute. The district court solicited additional briefs from the parties and stated that if necessary, it would convene an evidentiary hearing at some point in the future.
As to Tejeda‘s second argument, it is unpersuasive for Tejeda to suggest that he would have presented an expert at trial had he known what would be the nature of the jury-waived proceeding. Tejeda did attempt to have his expert testify at trial. In his proffer Tejeda indicated that the expert would testify about the difference between cocaine base and crack cocaine and the difficulty of telling the two apart visually. The district court, however, refused to allow the expert to testify because the request was not timely,10 and because, the court concluded, the testimony would confuse the jury. The court did say at the time it precluded the expert from testifying that it would hear the expert at the time of sentencing. But this was not the reason that the expert was precluded from testifying at trial.11
The jury was not required to find that the cocaine base possessed by Tejeda was crack. The district court did not abuse its discretion when it revised its position on proof of sentencing
Finally, Tejeda argues that the district court‘s deciding that the crack cocaine Guidelines applied violated his protection against double jeopardy and his due process rights. Tejeda essentially argues that the government failed to prove at trial that the drugs were crack, and that he should not have been forced at sentencing to once again mount a defense to such a charge. There was no error in the district court‘s application of the crack cocaine Guidelines, much less a due process violation. Likewise, double jeopardy principles are inapplicable here. Double jeopardy concerns arise only when a jury verdict or a trial court‘s ruling, “whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Pacheco, 434 F.3d at 112 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)) (internal quotation marks omitted). There was no such trial court ruling here. Whether or not the cocaine base at issue was crack is not a factual element of the offense charged. Medina, 427 F.3d at 92 & n.3.
B. Reasonableness of Tejeda‘s Sentence
Tejeda argues that his sentence is unreasonable as a matter of law. See United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc). He argues that the nature and
The district court explained its reasons for imposing a twenty-year sentence. It discussed the fact that Tejeda was “the supplier in a massive [crack] distribution ring” and stated that “crack cocaine is one of the most addictive, dangerous substances known to our society.” The court stated that its sentence took rehabilitation into account, although the court did not think rehabilitation particularly likely,12 and it referred to Tejeda‘s family circumstances, concluding that while they were tragic, they had been caused by Tejeda. The court further stated that comparison to the average sentence imposed by other courts for the offense in question was not necessarily instructive since that average did not account for factors such as drug quantity. Finally, we note that “[a]lthough a district court may consider disparities among co-defendants in determining a sentence, [a
Tejeda‘s conviction and sentence are affirmed.