UNITED STATES OF AMERICA v. ISMAEL E. CRUZ-RAMOS
No. 18-1569
United States Court of Appeals, First Circuit
January 27, 2021
For the First Circuit
No. 18-1569
UNITED STATES OF AMERICA,
Appellee,
v.
ISMAEL E. CRUZ-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. William E. Smith, U.S. District Judge]
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Ruth M. Liebesman, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom W. Stephen Muldrow, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
January 27, 2021
OVERVIEW
We deal again with fallout from a bloody war between two
Puerto Rico-based gangs known to all involved as La ONU and La
Rompe.1 Today‘s appeal — a sequel to Ramírez-Rivera — focuses on
Ismael Cruz-Ramos, an accused La ONU leader indicted and convicted
of committing (or aiding and abetting others in committing) the
crimes of: RICO conspiracy, count 1; drug conspiracy, count 2;
conspiracy to possess firearms in furtherance of the drug
conspiracy, count 3; VICAR murder of a La Rompe boss nicknamed
“Pekeke,” count 29; and using and carrying a firearm in relation
to Pekeke‘s murder, count 30.2 Last time around, we vacated his
convictions because the police lacked probable cause to search his
house — and so held that the evidence seized had to be suppressed.
See 800 F.3d at 31-34. Back in the district court, Cruz-Ramos
convinced the judge to suppress some incriminating statements as
well. But a jury again convicted him of the relevant charges.
sentenced to life plus 25 years, he filed the present appeal.3
This time, however (after noting only what is necessary for
resolving his current set of issues, ranging from claimed trial
problems to supposed sentencing glitches), we leave him as we found
him.4
ALLEGED TRIAL ERRORS
Cruz-Ramos mounts several arguments either for judgments
of acquittal or for a new trial.
Convinced that the judge erred in denying his acquittal
motion, Cruz-Ramos claims that four out of the five convictions
failed on evidentiary-insufficiency grounds: the RICO-conspiracy
conviction (count 1), because the evidence supposedly did not show
that La ONU ran as a continuous unit; the drug-conspiracy
conviction (count 2), because the evidence allegedly did not prove
that he belonged to a La ONU-owned drug point at a public-housing
evidence purportedly did not show that he possessed La ONU-owned
guns; and the VICAR-murder conviction (count 29), because the
evidence allegedly did not prove that he played a role in Pekeke‘s
killing.5
Shifting gears, Cruz-Ramos criticizes the judge for not
giving the jurors a multiple-conspiracy instruction, seeing how he
thinks the evidence did not connect the drug points to one another
and so did not establish the single drug conspiracy alleged in the
indictment. He also criticizes the judge for not telling the
jurors that the government had to prove his “advance knowledge”
that a partner would possess a real gun in furtherance of a drugtrafficking scheme, the advance-knowledge language coming from
Rosemond v. United States, 572 U.S. 65 (2014).
Cruz-Ramos last argues that he at least deserves a new
trial on all counts, because the judge wrongly admitted evidence
concerning his harboring a fugitive. As he sees it, that evidence
— involving both a plea agreement in which he pled guilty to
constituted “fruits” of searches held illegal in our earlier
opinion, lacked relevance, and posed a high risk of undue
prejudice. All of which means — in his mind anyway — that the
judge should have granted his new-trial motion.
Like the government, we find these arguments wanting.
Acquittal
We take a de novo look at Cruz-Ramos‘s preserved
sufficiency claims, studying the record in the light most pleasing
to the prosecution, giving the prosecution the benefit of all
sensible inferences and credibility choices as well — and rejecting
his challenges if any rational jury could have convicted him when
viewing all the evidence (direct and circumstantial) in this way.
See, e.g., Rodríguez-Torres, 939 F.3d at 23; United States v.
Manor, 633 F.3d 11, 13-14 (1st Cir. 2011). That he may have a
reasonable theory of innocence will not move the needle, because
the issue is not whether a rational jury could have acquitted but
whether it rationally could have found guilt beyond a reasonable
doubt. See, e.g., Manor, 633 F.3d at 14.
Rico Conspiracy
Getting a grip on RICO‘s intricacies is no easy matter.
But generally, the statute criminalizes engaging in a pattern of
racketeering activity as part of “an enterprise,” or
enterprise includes not only a legal entity like a “corporation”
but also “any union or group of individuals associated in fact.”
United States v. Turkette, 452 U.S. 576, 579 n.2 (1981) (quoting
association in fact is expansive,” such an entity must have “at
least” these “structural features“: a “purpose,” “relationships
among those associated with the enterprise,” and “longevity
sufficient to permit these associates to pursue the enterprise‘s
purpose.” Boyle v. United States, 556 U.S. 938, 944, 946 (2009).
So an association-in-fact entity can be either “formal or
informal,” as long as the enterprise‘s “various associates
function as a continuing unit.” Turkette, 452 U.S. at 583. But
that enterprise need not have a “hierarchical structure or a ‘chain
of command‘” and no purpose beyond carrying out a pattern of
racketeering acts. See Boyle, 556 U.S. at 946-48.
Cruz-Ramos‘s sole complaint is that prosecutors produced
inadequate proof “of an organization that worked as an ongoing
unit” (so framed, his argument eliminates any need to discuss
RICO‘s other elements). But the claim is hopeless when one reads
the record the right way — afresh, and in the light most agreeable
to the government.
leader, a firearms supplier, and a heroin drug-point owner at Las
Gladiolas, a La ONU-dominated public-housing project. And they
did much more than that. They also chronicled La ONU‘s roughly
decade-long work as a union of various housing-project gangs, with
the unifying goals being running more drug points and taking down
common enemies like La Rompe — using deadly violence whenever
needed. Identifiable by its name — the “ONU” in La ONU “stands
for Organización de Narcotraficantes Unidos,” which in English
means “Organization of United Drug Traffickers,” see Rodríguez-Torres, 939 F.3d at 25 (emphasis added) — this mega-gang used
special hand signals to differentiate its members from other
members; made and enforced strict rules of conduct (e.g., no
fraternizing with La Rompe gangbangers or cooperating with the
police, on pain of death); and required associates at different La
ONU-controlled drug points to share resources (guns, drugs,
manpower, etc.) in its bid to be the biggest and baddest crime
syndicate around. And while not necessary (courtesy of Boyle,
which held that an association-in-fact enterprise need have no
formal hierarchy or decision-making mechanism), La ONU had —
throughout its many years of operation — a main leader (though
members close to him had a say in important gang matters,
apparently), drug-point owners, enforcers, sellers, and lookouts.
unit, despite what Cruz-Ramos says. See, e.g., Rodríguez-Torres,
939 F.3d at 24-25 (finding similar evidence sufficient).
Drug Conspiracy
A series of statutes criminalize conspiring to
distribute drugs within a 1,000 feet of a public-housing facility.
See
linger long over Cruz-Ramos‘s claim that no evidence showed that
he “belonged [in a] group operating” in a La ONU-dominated publichousing project. After all, cooperators testified that he owned
a heroin drug point at the La ONU-run Las Gladiolas public-housing
facility. Calling the cooperators’ statements too speculative, he
implies that the jury should not have believed them. But his
argument goes to credibility, something we cannot consider in
reviewing this challenge.6 See, e.g., Manor, 633 F.3d at 14.
Firearms Conspiracy
Also unpersuasive is Cruz-Ramos‘s claim that the
firearms-conspiracy conviction cannot stand, because no evidence
proved that he “possessed weapons in furtherance of drug
showing [of] a sufficient nexus between the firearm and the drug
crime [or crime of violence] such that the firearm advances or
promotes the drug crime [or crime of violence].” Ramírez-Rivera,
800 F.3d at 23 (quoting United States v. Gurka, 605 F.3d 40, 44
(1st Cir. 2010), and discussing
(alteration in original). And undercutting Cruz-Ramos‘s argument
is evidence showing both that he “[a]lways” carried automatic
weapons with him as he ran his drug point and that he gave his La
ONU associates guns — all to protect and expand the gang‘s drug
turf.
Perhaps anticipating that we might reach this
conclusion, Cruz-Ramos tries to downplay the evidence, labeling it
nothing more than “a generic assertion” that he “was an enforcer.”
But a glance at the testimony of one cooperator is sufficient to
refute the claim, for he not only identified Cruz-Ramos as an
enforcer but specifically described how he and Cruz-Ramos — often
with others, and always armed to the teeth with assault rifles and
the like — went “to other housing projects” multiple times “to
shoot them up.”
In something of a last stand here, Cruz-Ramos faults
prosecutors for not linking him to any of the guns presented at
trial. But even if he did not own those guns, the jury heard
— with the goal being to further the gang‘s drug interests. So
this argument is not a difference-maker. See id. (rejecting a
similar argument on similar grounds).
VICAR Murder
As relevant to Cruz-Ramos‘s case, VICAR outlaws
“attempting or conspiring to commit murder” for “the purpose of
. . . maintaining or increasing position in an enterprise engaged
in racketeering activity.” See
Pekeke‘s murder (remember that Pekeke was a La Rompe leader),
alleging that no evidence “connect[ed]” him to that crime. He is
wrong.
Viewing the record in the light most sympathetic to the
government‘s case (as required), we see evidence of the following
— all supporting the aiding-and-abetting theory behind this
conviction. Cruz-Ramos attended a meeting where La ONU leaders
kicked around ideas on how to off Pekeke. Ultimately, they agreed
to pay a person named “Joshua” to gun Pekeke down at a La Rompedominated public-housing project and then send a rescue crew in to
get Joshua out. Cruz-Ramos gave the crew a fake license plate and
registration sticker to put on a rescue car (to hide the fact that
the car was stolen). And after the shooting, rescuers went to
SUV.
An undaunted Cruz-Ramos notes that cooperator José
Gutiérrez-Santana did not name him as a planning member attendee
or as a rescuer. But cooperator Wesley Figueroa-Cancel did both.
And the jurors could decide “which witness to credit,” with us
required to assume, “in the posture of a sufficiency-of-theevidence challenge, . . . that they credited those witnesses whose
testimony lent support to the verdict.” See United States v. Lara,
181 F.3d 183, 204 (1st Cir. 1999).
Cruz-Ramos also notes that cooperators never said that
he knew why rescuers needed “a vehicle and plate.” But the jurors
could reasonably infer from his rescue-mission participation that
he knew what those items were for. See Rodríguez-Torres, 939 F.3d
at 23 (reminding us to make all natural inferences “in the
government‘s favor” when considering a sufficiency-of-the-evidence
claim).
Pulling out all the stops, Cruz-Ramos says that the
“government‘s scientists contradicted” the cooperators. For
example, he claims (with no record cites) that cooperators said
“Joshua . . . was shot as he ran from the project, but no blood
trail or trace was found“; that “[n]o police report or medical
record suggests Joshua was shot“; and that an “investigator
road leading to it, contradicting the theory of a shooting in front
of” the project. As touched on above, the usual rule is that
“[s]ifting through conflicting testimony and determining where the
truth lies is the sort of work that falls squarely within the
jury‘s province,” not ours. See United States v. Nascimento, 491
F.3d 25, 46 (1st Cir. 2007). And Cruz-Ramos gives us no reason to
vary from that rule (like showing that each cooperator‘s testimony
was so implausible that we cannot trust it as a matter of law).
So this line of argument is a dead end too.
With the sufficiency issues out of the way, we examine
Cruz-Ramos‘s claims of instructional error.
Jury Instructions
Cruz-Ramos‘s preserved claim about the missing multipleconspiracies instruction gets abuse-of-discretion review, with us
reversing only if he can show “he suffered substantial prejudice.”
See United States v. Camacho-Santiago, 851 F.3d 81, 85 (1st Cir.
2017); see also United States v. Brandon, 17 F.3d 409, 450 (1st
Cir. 1994) (elaborating that in the alleged multiple-conspiracies
setting, “[t]he prejudice we must guard against” is the prejudicial
spillover of evidence “resulting from trying defendants en masse
for distinct and separate offenses committed by others“). And his
unpreserved claim about the missing advance-knowledge instruction
F.3d 242, 246 (1st Cir. 2001), with him having to make the
difficult showing that the judge erred and clearly so, and that
the error also affected his substantial rights — but even then we
can still affirm if he does not show as well that the error
seriously harmed the fairness, integrity, or public perception of
his trial, see United States v. Takesian, 945 F.3d 553, 563 (1st
Cir. 2019); see also United States v. Dominguez Benitez, 542 U.S.
74, 83 n.9 (2004) (noting that satisfying each facet of the plainerror test is a daunting task, “as it should be“); Paniagua-Ramos,
251 F.3d at 246 (stressing that “the plain error hurdle, high in
all events, nowhere looms larger than in the context of alleged
instructional errors“).
Multiple Conspiracies
Sometimes the simplest approach is the best approach.
See, e.g., United States v. Tsarnaev, 968 F.3d 24, 78 (1st Cir.
2020) (explaining that “[o]ften ‘[t]he simplest way’ to decide an
issue is ‘the best‘” (first alteration added) (quoting Stor/Gard,
Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013))).
So it is here. Even assuming — without granting — that the evidence
justified a multiple-conspiracies instruction, its omission did
not substantially prejudice Cruz-Ramos. And that is because, while
Cruz-Ramos may not have gotten the exact instruction that he
prove that he (Cruz-Ramos) was part of the charged drug conspiracy.
“[Y]ou must be convinced,” the judge said, “that the government
has proven beyond a reasonable doubt” that the conspiratorial
“agreement specified in the indictment, and not some other
agreement or agreements, existed between at least two people to
possess with the intent to distribute a controlled substance” and
that Cruz-Ramos “willingly joined that agreement.” And “[i]f . . .
you [have] a reasonable doubt,” the judge added, then “you must”
acquit. Quite a number of our cases have found instructions of
this sort sufficient to protect a defendant from prejudice in
circumstances like Cruz-Ramos‘s. See United States v. Belanger,
890 F.3d 13, 33 (1st Cir. 2018) (collecting authority); see also
Camacho-Santiago, 851 F.3d at 87. And Cruz-Ramos offers no
plausible reason why those cases should not control here.
Advance Knowledge
Citing Rosemond, Cruz-Ramos argues that the judge
slipped by not telling the jurors that, to find him guilty of
aiding and abetting possession of a gun in furtherance of a drug
crime (what a mouthful), they had to find he had “advance
knowledge” that a gun would be used. See 572 U.S. at 77-81. And,
the theory goes, because of that lack of instruction, the jurors
could have convicted him merely because he intended to help commit
he had prior knowledge that a compatriot would possess a gun.
Rosemond addressed aiding-and-abetting liability for the
“compound” offense of using or carrying a firearm while committing
certain violent or drug-related crimes. See 572 U.S. at 67-68, 71
(analyzing
specific and entire crime charged,” Rosemond said, “the full scope
(predicate crime plus gun use) of
accused aider and abettor must have had “advance knowledge” that
a cohort would “use or carry a gun during [its] commission,”
because he must have decided “to align himself with the illegal
scheme in its entirety — including its use of a firearm.” Id. at
67; see generally United States v. Fernández-Jorge, 894 F.3d 36,
52-55 (1st Cir. 2018) (finding Rosemond error in a nonplain-error
case, because the aiding-and-abetting instruction let the jury
convict even if the defendant intended only the general “endeavor”
to succeed, rather than the firearm-specific crime).
Cruz-Ramos concedes that he did not raise this Rosemond
issue at trial. Which means he must run the usually lethal
gauntlet of plain-error review — i.e., (and to repeat) he must
show not only error, but error that is obvious, affects his
substantial rights, and seriously undermined the fairness,
integrity, or public perception of the judicial process. See
(1st Cir. 2016) (stating that “the First Circuit already had an
advance knowledge requirement for aiding and abetting convictions”
before Rosemond and “has consistently used the ‘consciously
shared’ formulation to describe our aiding and abetting law,”
making “an error in which the district court used a wellestablished formulation . . . unlikely to qualify as plain
error“). But Cruz-Ramos makes no attempt to show how his Rosemondbased claim satisfies the demanding plain-error standard — his
brief fails to even mention plain error, let alone argue for its
application here. See generally
(announcing that “[t]he appellant‘s brief must contain” the
“appellant‘s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies“). And knowing that it is not on us to construct a party‘s
arguments for him, see United States v. Charriez-Rolón, 923 F.3d
45, 52 (1st Cir. 2019), that failure waives this claim, see United
States v. Velázquez-Aponte, 940 F.3d 785, 800 (1st Cir. 2019);
United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018);
United States v. Pabon, 819 F.3d 26, 33-34 (1st Cir. 2016).7
New Trial
We inspect Cruz-Ramos‘s problem with the judge‘s newtrial denial for abuse of discretion, knowing that an abuse of
discretion exists “only when no reasonable person could agree with
the judge‘s decision,” see Laureano-Salgado, 933 F.3d at 29, that
a material error of law is by definition an abuse of discretion,
see United States v. Carpenter, 736 F.3d 619, 629 (1st Cir. 2013),
and that we ordinarily overturn a new-trial denial only to prevent
a crime “at the time of the offense.” Looking to counter this
claim, the government cites a decades-old opinion by Puerto Rico‘s
highest court (issued well before his crimes went down) — an
opinion stating that Puerto Rico‘s penal code “not only considers
as principals or authors those who directly commit the punishable
offense, but those as well who aid in the commission thereof.”
People v. Martés Olán, 3 P.R. Offic. Trans. 488, 492 (P.R. 1975)
(quoting People v. Vélez, 36 P.R.R. 521, 523-24 (P.R. 1927))
(emphasis added). Our Ramírez-Rivera opinion read Puerto Rico law
as punishing a person as a principal if he “‘participates directly
in the commission of a crime,’ ‘forces, provokes, abets or induces
another person to commit a crime,’ or ‘cooperates before,
simultaneously or after the commission of a crime, and without
whose participation the crime could not have been perpetrated.‘”
800 F.3d at 22 n.16 (quoting P.R. Laws Ann. tit. 33, §§ 4671(a),
(b), (d)) (emphasis added). And with Ramírez-Rivera on the books,
Cruz-Ramos writes that he raises this issue simply to preserve his
right to petition for en banc or Supreme Court review based on his
belief that the quoted English translation misconstrues the word
“instigar” in the original Spanish to include “abet.” But see
University of Cambridge, Spanish-English Dictionary,
http://dictionary.cambridge.org/dictionary/spanish-english,
“instigar“. So we need say no more on that subject.
To understand Cruz-Ramos‘s claim, we must provide some
necessary context.
According to the evidence admitted at trial, a La ONU
member named “Bernard” shot down a police helicopter to help
himself and other La ONU-ers avoid arrest. One of the pilots died.
And Bernard fled to Cruz-Ramos‘s house. Acting on a tip, the
police went there and searched the place without a warrant, seizing
guns and drugs — a search we stamped unconstitutional in Ramírez-Rivera.
The police arrested Cruz-Ramos and Bernard. About three
months later, Cruz-Ramos pled guilty under a plea agreement to
harboring a fugitive. In a document attached to the agreement,
Cruz-Ramos admitted certain facts — including that the police
wanted Bernard for the helicopter shooting. And over Cruz-Ramos‘s
objections, the judge in our case allowed the plea agreement and
accompanying statement of facts into evidence.
With this backdrop in place, we now consider Cruz-Ramos‘s arguments.
As for Cruz-Ramos‘s lead claim — that the judge should
have excluded as fruit of an illegal search all evidence about his
harboring-a-fugitive plea agreement, which included his
concessions concerning Bernard‘s crime — the factors that go into
temporal proximity of the illegal conduct and the concessions,
(c) the existence of intervening events, and (d) the flagrancy of
the illegality. See, e.g., Brown v. Illinois, 422 U.S. 590, 603-
04 (1975); United States v. Stark, 499 F.3d 72, 76 (1st Cir. 2007)
(discussing the Brown factors). No single factor is determinative,
however. See Brown, 422 U.S. at 603.
Because no one doubts that Cruz-Ramos voluntarily signed
the plea agreement (factor (a)), and the government concedes for
present purposes that the police acted egregiously (factor (d)),8
the dispute here is really over factors (b) and (c). And so we
turn to them.
Cruz-Ramos signed the plea agreement three months after
the illegal search (factor (b)) — far more than the two days
between an illegal search and a confession in another case that we
said “counsel[ed] against suppression.” See Stark, 499 F.3d at
76. And during those intervening months, he had time to reflect
on his situation and consult with a lawyer before signing the plea
agreement (factor (c)) — an agreement, by the way, that he has
never tried to invalidate as a product of the illegal search.
should be a “last resort” rather than a “first impulse,” see Hudson
v. Michigan, 547 U.S. 586, 591 (2006) — we think that the causal
link between the illegality and the plea agreement is so stretched
that the illegality did not infect the plea agreement, see Brown,
422 U.S. at 598 (emphasizing that a confession caused by unlawfully
seized evidence need not be suppressed if “an intervening
independent act of free will . . . purge[s] the primary taint” of
the illegal search (quoting Wong Sun v. United States, 371 U.S.
471, 486 (1963)); see generally United States v. Davis, 617 F.2d
677, 687-89 (D.C. Cir. 1979) (refusing to suppress a defendant‘s
grand-jury testimony (provided as part of his plea agreement) given
weeks after an illegal arrest when he had “time to consult with
counsel and to reflect on his decision to cooperate,” because
“[t]he taint of the . . . illegality had dissipated by the time
[he] took the witness stand“).9
Relevancy is a very low threshold, requiring only that the evidence have “any tendency to make a fact more or less probable.” See
So it is no exaggeration to say that “[a] relevancy-based argument is usually a tough sell.” See Bielunas, 621 F.3d at 76. And Cruz-Ramos fails to make the sale here.
The indictment charged the helicopter-shooting murder as an overt act in furtherance of the RICO conspiracy. And “when the scope of a RICO conspiracy includes murder as a tool to further the enterprise, a ‘murder [is] still relevant to the RICO count[] as it tend[s] to prove the existence and nature of the RICO
The indictment also listed several “means and methods by which” La ONU members “conducted and participated” in the enterprise‘s “affairs,” including “provid[ing] shelter and protection to known fugitive members of La ONU in order to aid against their apprehension by law enforcement.” And Cruz-Ramos‘s harboring-a-fugitive plea agreement helped bolster that charge, making the agreement relevant under our modest relevancy requirements. See Polanco, 634 F.3d at 44 (noting how relevancy is usually an easy hurdle to clear); see generally United States v. Rodríguez-Soler, 773 F.3d 289, 293-94 (1st Cir. 2014) (stating that because convictions frequently “result from the cumulation of bits of proof which, taken singly, would not be enough in the mind
A judge of course “may” exclude relevant evidence if (roughly speaking) it is “unfair[ly] prejudic[ial]” to the defendant or risks confusing the jury, among other things. See
Cruz-Ramos makes a single-sentence suggestion that jurors “could have been confused by” his harboring “confession,” without offering any authority or meaningful discussion of the issue. So he waived it by inadequately briefing it. See, e.g., Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) (holding waived a
Cruz-Ramos also implies that his plea agreement presents a hearsay problem. But during the trial he agreed with the judge that the rule against hearsay posed no obstacle to admission. That aside, his brief “provides neither the necessary caselaw nor reasoned analysis to show” that his hearsay intimation is correct. See Rodríguez, 659 F.3d at 176. And again, such cursory treatment is not enough to preserve an issue for review. See, e.g., id.
Making a last-ditch bid to save this claim, Cruz-Ramos writes that because “[t]he helicopter murder was excluded by the district court during the first trial,” the judge should have done the same in the second. But he makes this argument only in his reply brief and so waived that one as well. See, e.g., Liberty Mut. Ins. Co. v. Nippon Sanso K.K., 331 F.3d 153, 162 (1st Cir. 2003) (holding that an “argument . . . not made in the opening brief but only in the reply . . . is waived“).
On to sentencing.
Cruz-Ramos claims that the judge made three procedural sentencing errors — first by imposing a 2-level enhancement for his having played a leadership role in the crimes, next by assessing 2 criminal history points against him for his prior conviction for harboring a fugitive, and finally by having a 25-year sentence on the count of using and carrying a firearm in relation to Pekeke‘s murder run consecutively to the life sentences on the other counts.11 We review preserved challenges for abuse of discretion and unpreserved ones for plain error, see, e.g., United States v. Garay-Sierra, 832 F.3d 64, 67 (1st Cir. 2016) —
These arguments lack heft, as the government points out.
Enhancement
We can make relatively quick work of Cruz-Ramos‘s unpreserved complaint about the leadership enhancement — an enhancement justified only if the government proved each of the following by a preponderance of the evidence: that “the criminal enterprise involved at least two complicit participants (of whom [Cruz-Ramos] may be counted as one)“; and that “in committing the offense,” Cruz-Ramos “exercised control over, managed, organized, or . . . otherwise . . . superintend[ed] the activities of . . . at least one of those other persons.” See United States v. Soto-Peguero, 978 F.3d 13, 23 (1st Cir. 2020) (quoting United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997)). As part of this analysis, a judge looks to a variety of factors, including the nature and degree of the defendant‘s participation, planning, and control — and whether he exercised decisionmaking authority, drafted collaborators, or claimed a bigger piece of the spoils. See
We approach a judge‘s leadership assessment with “considerable deference,” given the fact-intensive character of the inquiry. See Soto-Peguero, 978 F.3d at 23 (quoting Cruz, 120 F.3d at 3). Add to this that Cruz-Ramos must show that the judge plainly erred, and his level of difficulty escalates exponentially. See, e.g., Tsarnaev, 968 F.3d at 80 (stressing how the plain-error rule places a formidable obstacle in an appellant‘s way).
Cruz-Ramos rests his hopes solely on the notion that “[n]o evidence” showed he controlled or managed a participant. But to reject this claim, all we need do is observe that a cooperator said that as a drug-point owner within the organization, Cruz-Ramos “order[ed] . . . other guys” around — something only La ONU “leaders” could do. See Soto-Peguero, 978 F.3d at 23 (noting that “[e]ven a single instance of managing the actions of others can substantiate the enhancement“). Cruz-Ramos implies that he cannot be a leader because “every drug point owner was a leader” and with so many “leader[s], no one is a leader” for sentencing purposes. But unfortunately for him, the law is that “more than one person” can “qualif[y] as a leader or organizer of a criminal
Criminal History
That takes us to Cruz-Ramos‘s preserved claim that the judge wrongly assigned criminal-history points for his harboring-a-fugitive conviction. To hear him tell it, that conviction involved conduct relevant to the RICO conspiracy and so could not be factored into his criminal-history score. As support, he (at least implicitly) relies on a guideline rule saying that when tweaking a defendant‘s sentence for his prior criminal history, a judge may use as a “prior sentence” only a “sentence previously imposed . . . for conduct not part of the instant offense.” See
But Cruz-Ramos overlooks a key guideline exception in the RICO context. Even if some convictions count as part of the underlying racketeering conduct, if the defendant got convicted of them before “the last overt act of the [RICO] offense,” the judge can treat them as part of the defendant‘s criminal history. See
Consecutive Sentences
We need not say much about Cruz-Ramos‘s last preserved claim either. He concedes that a firearm-in-furtherance sentence under
The problem for Cruz-Ramos, however, is that his two-sentence argument lacks both record cites and supporting analysis — for what it is worth, the government disputes his account of the record, saying that he “was charged and convicted” under
For the reasons recorded above, we affirm the district court across the board.