UNITED STATES OF AMERICA v. HERZZON SANDOVAL, EDWIN GUZMAN, ERICK ARGUETA LARIOS, and CESAR MARTINEZ
Nos. 18-1993, 18-2165, 18-2177, 19-1026
United States Court of Appeals, First Circuit
July 7, 2021
For the First Circuit
No. 18-1993
UNITED STATES OF AMERICA,
Appellee,
v.
HERZZON SANDOVAL, a/k/a Casper,
Defendant, Appellant.
No. 18-2165
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN GUZMAN, a/k/a Playa,
Defendant, Appellant.
No. 18-2177
UNITED STATES OF AMERICA,
Appellee,
v.
ERICK ARGUETA LARIOS, a/k/a Lobo,
Defendant, Appellant.
UNITED STATES OF AMERICA,
Appellee,
v.
CESAR MARTINEZ, a/k/a Cheche,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Madeleine K. Rodriguez, with whom Martin F. Murphy, Christian
A. Garcia, and Foley Hoag LLP were on brief, for appellant Herzzon
Sandoval.
Michael R. Schneider, with whom Good Schneider Cormier & Fried
was on brief, for appellant Edwin Guzman.
Thomas J. Iovieno on brief for appellant Erick Argueta Larios.
Stephen Paul Maidman for appellant Cesar Martinez.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
July 7, 2021
Herzzon Sandoval, Edwin Guzman, Erick Argueta Larios, and Cesar
Martinez challenge their federal convictions and sentences, which
stem from a wide-ranging federal criminal investigation into La
Mara Salvatrucha (“MS-13“) in Massachusetts. We affirm.
I.
MS-13 is a transnational criminal organization based in
El Salvador. In the United States, MS-13 is organized into small
local groups called “cliques.” The Federal Bureau of Investigation
(“FBI“), the Massachusetts State Police (“MSP“), and other law
enforcement agencies (together, “the Task Force“) began an
investigation into MS-13 cliques in Massachusetts in 2012.
As part of this investigation, the FBI developed a
cooperating witness, “CW-1,” who was able to become a member of
the “Eastside Loco Salvatrucha,” or “ESLS,” which is based in
Everett, Massachusetts and held regular meetings at a garage there.
Through CW-1‘s recordings and surveillance, the Task Force
identified Sandoval, Guzman, Larios, and Martinez as ESLS members
and ESLS as an MS-13 clique. It also identified Sandoval and
Guzman as the “runners” of ESLS, with Sandoval as the group‘s
undisputed leader and “first word” and Guzman as the group‘s
“second word.” The Task Force identified Larios and Martinez as
ESLS “homeboys,” or full members of the group.
of ESLS by being “jumped in” or “beaten in” -- a process that
involves members forming a circle and beating the individual while
someone counts to thirteen. The Task Force also learned, largely
through CW-1‘s recordings and surveillance, of multiple stabbings
and attacks, and at least one murder, against MS-13 rivals -- or
“chavalas” -- in which ESLS members were allegedly involved.
In investigating the MS-13 cliques in Massachusetts, the
Task Force used an undercover technique known as a “protection
detail.” Pursuant to this technique, CW-1 would recruit an
individual to protect drug shipments that CW-1 transported from
Massachusetts to New Hampshire, in exchange for five hundred
dollars. CW-1 recruited both Larios and Martinez for drug
protection details.
On May 15, 2017, a federal grand jury in the District of
Massachusetts returned a fifth superseding indictment (“FSI“)
related to the Task Force‘s investigation. This indictment charged
over fifty individuals with federal crimes, including the four
defendants who bring the present appeals.
The indictment charged Sandoval, Guzman, Larios, and
Martinez with violating
to conspire to violate the Racketeer Influenced and Corrupt
Organizations Act (“RICO“),
indictment identified the conspiracy with which each of these
RICO. That provision makes it “unlawful for any person employed
by or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise‘s affairs through a pattern of racketeering activity.”
Id.
“[R]acketeering activity” includes, among other things,
“any act or threat involving murder . . . which is chargeable under
State law and punishable by imprisonment for more than one year.”
following acts “involving murder“: murder, Mass. Gen. Laws ch.
265, § 1; assault with intent to murder, id. § 15; attempt to
murder, id. § 16; armed assault with intent to murder, id. § 18;
and conspiracy to commit murder, Mass. Gen. Laws ch. 274, § 7.
The indictment also charged both Larios and Martinez with an
additional crime -- conspiracy to possess with intent to distribute
and to distribute cocaine, in violation of
846.
On April 6, 2017, the District Court established four
separate trial groups for the defendants charged in the FSI.
Sandoval, Guzman, Larios, and Martinez were placed in trial group
three, which meant that they would be tried jointly.
30, 2018. The jury heard testimony from members of the Task Force
and from two cooperating defendants -- Jose Hernandez Miguel
(“Hernandez Miguel“) and Mauricio Sanchez (“Sanchez“) -- who had
been ESLS homeboys. The government‘s case also included recordings
-- both audio and video -- that CW-1 had made of ESLS meetings and
conversations with MS-13 members.
After fifteen days of trial and four days of
deliberation, the jury convicted Sandoval, Guzman, and Larios of
violating
that charged him with that crime. The jury‘s verdict finding
Sandoval, Guzman, and Larios guilty of committing that offense did
not specify which racketeering acts the jury had found each of
these defendants had agreed would be committed.
The jury found Martinez guilty of conspiracy to possess
with intent to distribute and to distribute cocaine, finding five-hundred grams or more attributable to and reasonably foreseeable
to him. The jury did not, however, find Larios guilty on the count
that charged him with committing that offense.
The District Court entered the judgments of conviction
and sentenced the defendants in late 2018. Sandoval received a
sentence of 240 months’ imprisonment and 3 years of supervised
release; Guzman, 192 months’ imprisonment and 3 years of supervised
release; Larios, 180 months’ imprisonment and 3 years of supervised
supervised release.
II.
We begin with the sufficiency-of-the-evidence challenges
that Sandoval, Guzman, and Larios bring to their respective
convictions under
challenges are without merit.
A.
To secure a conviction for committing the RICO
conspiracy offense at issue for each defendant, the government was
required to prove beyond a reasonable doubt that the defendant
“knowingly joined the conspiracy, agreeing with one or more
coconspirators ‘to further [an] endeavor which, if completed,
would satisfy all the elements of” the predicate RICO offense.
United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019)(quoting Salinas v. United States, 522 U.S. 52, 65 (1997)).
Section 1962(c) is the predicate RICO offense for the RICO
conspiracy offense that each defendant was charged with
committing, and it contains three main elements: “(1) the conduct
(2) of an enterprise (3) through a pattern of racketeering
activity,” Salinas, 522 U.S. at 62.
The “pattern of racketeering” element of that offense
“requires at least two acts of racketeering activity” within ten
years of each other.
was required to prove beyond a reasonable doubt that each “agreed
that at least two acts of racketeering would be committed in
furtherance of the conspiracy.” United States v. Leoner-Aguirre,
939 F.3d 310, 317 (1st Cir. 2019).
The government contends that a rational jury could
conclude from the evidence in the record that Sandoval, Guzman,
and Larios each agreed that at least two acts of racketeering would
be committed in furtherance of the conspiracy charged. In support
of this contention, the government relies on the evidence in the
record that pertains both to each defendant‘s ties to ESLS and to
ESLS being an MS-13 clique whose mission was for its members to
attack and kill rivals. In the government‘s view, the evidence of
the ties between each defendant and ESLS, when combined with the
evidence of ESLS‘s murderous mission and connection to MS-13 as
well as the evidence that the government introduced about the
nature of MS-13 itself, suffices to permit a reasonable juror to
find beyond a reasonable doubt that each defendant had entered
into the requisite agreement with respect to racketeering acts
involving murder.
After the government presented its case-in-chief,
Sandoval, Guzman, and Larios moved for judgment of acquittal on
the counts charging them with conspiring to violate § 1962(c).
Fed. R. Crim. P. 29(a). Then, at the close of all evidence, the
motions for judgment of acquittal. The District Court ultimately
denied the motions.
We review preserved challenges to the sufficiency of the
evidence de novo. See United States v. McLellan, 959 F.3d 442,
457 (1st Cir. 2020). We consider the evidence in the record in
the light most favorable to the jury‘s guilty verdict, Rodríguez-Torres, 939 F.3d at 29, and inquire whether on that view of the
record “no levelheaded jury could have found [the defendants]
guilty,” United States v. Guerrier, 669 F.3d 1, 7 (1st Cir. 2011).
B.
We begin with Sandoval‘s sufficiency challenge. He does
not dispute that the evidence suffices to show that he was the
leader of ESLS, that ESLS was an MS-13 clique, and that, as the
indictment alleged, MS-13 is an “enterprise” for purposes of RICO.
He also does not dispute that if the evidence suffices to show
that he, as an ESLS member, agreed that two or more murders of
ESLS rivals would be committed by members of ESLS, then the
evidence suffices to show that he committed the charged RICO
conspiracy offense.1 He contends nonetheless that his RICO
Notes
was required to prove that he personally committed or agreed to
commit two or more predicate acts. As the government points out,
the Supreme Court of the United States rejected this standard in
Salinas, 522 U.S. at 65-66. The government thus argues that
Sandoval waived an argument that the government failed to meet the
because he argues that the evidence in the record does not suffice
to show that he entered into such an agreement. We are not
persuaded.
The jury heard evidence that Sandoval, as the leader or
“first word” of the ESLS clique, stated in a conversation with a
prospective ESLS member, Hernandez Miguel, that “when one is jumped
into MS-13, one is aware that one is jumped in to kill or to look
for chavalas.” Moreover, Hernandez Miguel testified that Sandoval
made that statement to him in the course of a discussion that
Sandoval had with him about what it would mean for him to “run
with” ESLS, and Sandoval does not dispute that the evidence
suffices to show that ESLS was the MS-13 clique that he led. The
government also introduced evidence that supportably shows that
while Sandoval was leading ESLS, its members committed,
participated in, or assisted MS-13 members who were not themselves
members of ESLS in (1) a 2008 attack near Maverick Square in East
Boston on rivals of ESLS; (2) a December 14, 2014 shooting in
standard set forth in Salinas and Leoner-Aguirre -- proof that the
“defendant agreed that at least two acts of racketeering would be
committed in furtherance of the conspiracy,” Leoner-Aguirre, 939
F.3d at 317 (emphasis omitted). Sandoval does cite this standard
in his reply brief and maintains that the evidence was insufficient
to show even agreement of this sort. For present purposes, we
will treat this argument as preserved, given that Sandoval‘s
sufficiency challenge cannot succeed even if it is. See United States v. Leavitt, 925 F.2d 516, 517 (1st Cir. 1991).
killed; (3) a May 12, 2015 stabbing in Boston‘s Highland Park of
a rival gang member; (4) a December 27, 2015 attack on a rival
gang member in Chelsea; and (5) a January 1, 2016 stabbing of a
rival gang member in Chelsea.
What is more, the government introduced evidence that
supportably shows that Sandoval spoke at CW-1‘s request with yet
another individual, Joel Martinez, on December 6, 2015, about his
possibly joining the ESLS clique and that thereafter this
additional prospective ESLS member was involved in carrying out
both the December 2015 and the January 2016 attacks referenced
above. The evidence at trial supportably shows, moreover, that
this conversation between Sandoval and Joel Martinez about the
latter joining ESLS occurred at a time when Sandoval knew that --
or at least was operating under the impression that -- Joel
Martinez had recently killed Irvin de Paz, who was described as a
“chavala.” Indeed, the evidence supportably shows that Sandoval
explained to Joel Martinez in the conversation about his becoming
a member of ESLS that, because everyone in ESLS would have to agree
to him joining the clique, the other ESLS members wanted to meet
him, let him “find out to how [ESLS] think[s] as a group,” and
make sure that his “way of thinking coordinates with [ESLS‘s].”
It is thus significant that credible evidence introduced
at trial supportably shows that when ESLS members met the following
the clique, Luis Solis Vasquez, an ESLS member, mentioned that
Joel Martinez had committed two attacks “in a short time.” It is
significant, too, that evidence in the record supportably shows
that Sandoval then told the group at that meeting that “[Joel
Martinez] was doing the things that he‘s supposed to be doing,”
and that Joel Martinez was jumped in as a “homeboy” for ESLS that
same day.
Considered as a whole, the evidence reviewed above
suffices to permit a rational juror to find that the mission of
ESLS, as an MS-13 clique, was to murder and attempt to murder its
rivals, that Sandoval knew that this was ESLS‘s mission, and that
he agreed to facilitate that mission through his leadership role
in that clique. Given that the conspiracy offense set forth in 18
U.S.C. § 1962(d) does not require the government to prove that the
charged acts of racketeering were actually committed by either the
defendant charged with the conspiracy or by others, Salinas, 522
U.S. at 65; Rodríguez-Torres, 939 F.3d at 29 (“All the government
need show is that the defendant agreed to facilitate a scheme in
which a conspirator would commit at least two predicate acts, if
the substantive crime occurred.” (emphasis added)), no more
evidence was needed to support a finding by a reasonable juror
that the agreement element of this conspiracy offense had been
proved beyond a reasonable doubt, see United States v. Cianci, 378
agreement need not be express so long as its existence can
plausibly be inferred from the defendants’ words and actions and
the interdependence of the activities and persons involved”
(alteration in original) (quoting United States v. Boylan, 898
F.2d 230, 241-42 (1st Cir. 1990))). We therefore reject Sandoval‘s
sufficiency challenge to his RICO conspiracy conviction.
C.
Guzman‘s sufficiency challenge to his § 1962(d)
conviction necessarily fails insofar as it rests on contentions
like those that we have just rejected. But, Guzman does also make
some additional arguments that we must separately address.
First, Guzman argues that the evidence at trial
indicated that the mission of MS-13 was to “look for,” “stab,” or
“attack” rivals, or to “commit generic ‘violence,‘” but that none
of this conduct itself constitutes an act of racketeering. He
thus contends that the evidence of the requisite “agreement” that
two or more acts of racketeering would be committed in furtherance
of the conspiracy was insufficient in his case.
Guzman supports this contention with precedents in which
the jury was presented with alternative theories of guilt, one of
which was legally invalid. E.g., United States v. Nieves-Burgos,
62 F.3d 431, 435-36 (1st Cir. 1995) (explaining the rule that when
a “jury returns a guilty verdict on an indictment charging several
of the possible bases of conviction was legally erroneous” and it
“is impossible to tell which [basis] the jury selected” (first
quoting Turner v. United States, 396 U.S. 398, 420 (1970); and
then quoting Yates v. United States, 354 U.S. 298, 312 (1957))).
Here, however, the District Court clearly instructed the jury about
which RICO predicate acts the government had to prove the
defendants agreed that a member of the conspiracy would commit and
explained that those acts did not include armed assault with intent
to kill, assault and battery, or assault and battery with a
dangerous weapon. Thus, there is no force to this aspect of
Guzman‘s challenge, at least so long as the evidence suffices to
permit a reasonable juror to find that the mission of ESLS was to
commit racketeering acts that were charged in the indictment, such
as murder and assault with intent to murder.
Guzman does also contend that the evidence shows that he
“joined ESLS as a young man at a time when far fewer violent acts
were being committed” and that, by the time that the Task Force
investigation was underway, he “had become a hardworking, married
man with children, who sought to distance himself from the violent
acts” of the more violent members who “resented him and targeted
him.” Guzman thus likens his situation to that of the defendant
in the Fourth Circuit‘s unpublished decision in United States v.
Barnett, 660 F. App‘x 235 (4th Cir. 2016), which ruled that the
she agreed to the commission of racketeering acts. Id. at 248.
But, as we have explained, the evidence suffices to show
that the very mission of ESLS included the commission of the
predicate racketeering acts involving murder. Moreover, the jury
heard testimony from Hernandez Miguel about an episode some time
before he was removed to El Salvador in 2009 in which he and Guzman
“smashed [a chavala‘s] face with beer bottles” and about Guzman
providing him with clean clothes after the May 12, 2015 stabbing
in which Hernandez Miguel had participated. Thus, even if, as
Guzman contends, neither of these incidents itself involved the
commission of a charged racketeering act, the testimony from
Hernandez Miguel about those incidents -- especially given the
recency of the second of them -- still suffices to support a
plausible inference that Guzman was aware that ESLS‘s mission came
to include murder or attempted murder of rival gang members during
the course of his membership in it. After all, jurors are
permitted to make reasonable inferences, drawing on common sense,
about such matters as whether a member of a gang that has been
shown to have a mission of killing or attempting to kill rivals
would have known of that mission if he was involved in it as a
member both in helping to commit a violent attack on a rival and
in helping a member clean up after stabbing a rival. Accordingly,
violating § 1962(d).
D.
The last of the sufficiency challenges that we must
address is the one that Larios brings. He contends that the
evidence about the mission of MS-13 and ESLS cannot support a
finding of the requisite agreement as to him not only because of
when he joined the clique but also because there was no evidence
that he held a leadership position in it. In particular, Larios
contends that any inferences that could permissibly be drawn from
Hernandez Miguel‘s testimony about how Hernandez Miguel understood
the goals of the ESLS clique in 2009 would not suffice to permit
a similar inference to be drawn about how Larios understood that
clique‘s mission during his membership in it, given that Larios
joined that clique years later in 2013. Larios asserts in this
regard that the only evidence that the government presented that
described the goals and mission of ESLS or MS-13 as of the time
that Larios joined the clique was Sanchez‘s testimony that the
rules when he joined in 2013 were (1) “[a]ttend the meetings“;
(2) “[n]ot let a homeboy down“; and (3) “[r]epresent [MS-13]
through colors” and “be[] solid” with MS-13.
This argument fails to account, however, for all the
evidence in the record. For example, Sanchez went on to explain
in his testimony that “being solid” with MS-13 meant having the
rivals and the chavalas.” Thus, there is evidence that at the
time Larios joined the clique in 2013, respect was earned by “doing
hits.” And, the evidence also supportably shows that Larios was
present at Joel Martinez‘s jump-in and for the discussions about
Joel Martinez‘s attacks on rival gang members that preceded it.
In addition, the jury heard evidence both that Larios requested a
“green light” from Sandoval to kill CW-1, on suspicion that CW-1
was an informant, in 2015 and that Larios was given a clique
handgun around 2014 or 2015 after he had been shot at by chavalas,
so that “he could also shoot.”
Accordingly, we conclude that the evidence, when
considered as a whole and in the light most favorable to the jury‘s
verdict, Guerrier, 669 F.3d at 7, suffices to support an inference
that Larios knew that such killings and attempted killings of
rivals were part of MS-13‘s practice and mission and that he agreed
to further that mission as a member of ESLS -- indeed, by
committing predicate acts himself if need be. We therefore
conclude that a rational jury could find beyond a reasonable doubt
that Larios agreed that at least two acts of murder or attempted
murder would be committed in furtherance of the conspiracy.
III.
Sandoval, Guzman, and Larios next contend that even if
their sufficiency challenges fail, their convictions must be
a continuance due to pretrial publicity. These same three
defendants then separately bring a related challenge, which
Martinez also joins on appeal, to the District Court‘s denial of
a motion for a mistrial due to certain questions jurors raised
regarding their safety after the trial was underway. They contend
that this error, too, requires that their convictions be vacated.
We find no merit, however, to either of these claims of error,
which we consider in turn.
A.
We start with the challenge based on the denial of the
continuance motion. We describe the relevant facts and procedural
history before turning to our analysis of the merits.
1.
On the evening of the first day of jury empanelment --
January 30, 2018 -- President Trump delivered his State of the
Union address. The next morning, Sandoval moved to continue the
trial until March 2018 to “permit the impact of the President‘s
remarks to dissipate.”
The motion contended that the President‘s address
“sharply condemned MS-13,” describing its members as “savage” and
its crimes as “brutal[].” The motion also highlighted the fact
that media coverage of the address included emotional footage of
grieving families whose children were said to have been murdered
for the address.
The District Court denied the motion, in which Larios
and Guzman had joined. The District Court indicated that it would
ask the jurors an open-ended question about whether they had “heard
or seen anything about MS-13,” and it then proceeded to ask the
jurors if any of them had “learned or seen or read anything about
MS-13 prior to coming into court” that day. In response, seven
prospective jurors -- none of whom were empaneled -- specifically
mentioned the State of the Union address.2
2.
The three defendants who join in this challenge on appeal
-- Sandoval, Guzman, and Larios -- argue that the steps that the
District Court took to address the concern about pretrial publicity
raised in the motion were inadequate and that, even though none of
the empaneled jurors mentioned hearing or seeing the President‘s
statements, the District Court should have presumed prejudice
among the members of the jury pool as a result of the media coverage
of President Trump‘s comments about MS-13. The three defendants
speech last night” in response to another question; this juror was
also not empaneled.
denying the motion for a continuance.3
We may assume that all three defendants preserved their
challenge to the denial of this motion, such that our review of
that denial is for manifest abuse of discretion, see West v. United
States, 631 F.3d 563, 568 (1st Cir. 2011). For, as we will explain,
even under that standard of review, the challenge is without merit.
These defendants rely chiefly on our pretrial publicity
cases in arguing that the District Court erred in not presuming
prejudice. But, while those cases provide that prejudice should
be presumed “where ‘prejudicial, inflammatory publicity about [a]
case so saturated the community from which [a defendant‘s] jury
was drawn as to render it virtually impossible to obtain an
impartial jury,‘” United States v. McNeill, 728 F.2d 5, 9 (1st
Cir. 1984) (alterations in original) (quoting United States v.
Chagra, 669 F.2d 241, 250 (5th Cir. 1982)),4 none of the cases
conducted an inadequate voir dire. Cf. United States v. Tsarnaev,
968 F.3d 24, 56-62 (1st Cir. 2020), cert. granted, 141 S. Ct. 1683
(2021); United States v. Lazo, 816 F. App‘x 752, 760-62 (4th Cir.
2020) (considering requested voir dire questions in an MS-13 case
in light of the 2018 State of the Union address).
prejudice, which permits the presumption “where ‘enough jurors
admit to prejudice to cause concern as to any avowals of
impartiality by the other jurors.‘” United States v. Casellas-Toro,
807 F.3d 380, 386 n.3 (1st Cir. 2015) (quoting United States v.
Orlando-Figueroa, 229 F.3d 33, 43 (1st Cir. 2000)). The
Moreover, although the government‘s case against these defendants on the RICO conspiracy charge that each faced did rely in significant respects on evidence concerning the nature of MS-13 as a transnational criminal organization, that case ultimately depended on what the evidence showed about each of their ties to ESLS and their knowledge of the mission of that particular MS-13 clique rather than merely on the nature of MS-13 itself. Thus, given the District Court‘s voir dire and its instructions repeatedly reminding the jury that it was required to consider each defendant‘s guilt individually, we reject the contention that the District Court abused its discretion in denying the motion for the continuance. See McNeill, 728 F.2d at 9 (“Even setting aside defendants make no argument for a presumption of prejudice on this ground.
B.
We next consider the challenge that all four defendants -- including Martinez -- bring to the District Court‘s denial of a motion for a mistrial that was based on an alleged “climate of fear” among the jurors. Here, too, we conclude that the District Court did not manifestly abuse its discretion. See United States v. Chisholm, 940 F.3d 119, 126 (1st Cir. 2019).
1.
On the fourth day of trial, during which the government presented testimony that MS-13‘s “position concerning informants” was that its members would kill them, the District Court received two notes from jurors. One of the notes asked whether jurors’ names would be made public or made available to the defendants. The other note asked, “Should I worry about my safety[?]”
As the trial progressed, the government asked Hernandez Miguel during his testimony on February 8, 2018, what he thought MS-13 would do to him as a result of his testimony. He responded that the rules of MS-13 provide that when someone testifies against another member of that organization, its members will “kill him
The next day the District Court informed counsel that it had received two additional notes from jurors expressing concerns about their own safety. One of these notes asked whether the jurors’ identities were being revealed to the defendants. The other note asked whether there were known cases of MS-13 affiliates harming jurors -- or the families of jurors -- who had to deliberate about crimes committed by other MS-13 members and stated that “[t]his is a concern of multiple jurors.”
In response, the District Court addressed the jurors, without the defendants present (but with their attorneys in attendance). The District Court told the jurors that there was “no reason for concern” and no reason to believe that there was a threat of violence to any of them. The District Court further explained to the jurors at that time that actions had been taken to protect their anonymity, and the District Court reminded the jurors that they were obliged to render a verdict without any fear of consequences and that they were not to discuss the case among themselves prior to deliberations. The District Court then conducted an individual voir dire to ask the jurors whether they thought they could still render a fair verdict and to discuss any remaining concerns.
At the end of the process, Sandoval‘s counsel moved for a mistrial. He pointed to an alleged “climate of fear” reflected by the notes from the jurors, as well as both an “undercurrent of discussion about the testimony” despite the Court‘s instructions and what he alleged was a lack of candor in some jurors’ voir dire responses. The other defendants joined this motion, which the District Court denied.
2.
A trial judge has “wide discretion” in responding to concerns about juror impartiality and determining appropriate remedial measures to ensure it. United States v. Tejeda, 481 F.3d 44, 52 (1st Cir. 2007) (quoting United States v. Rodríguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006)). In this case, the District Court had the opportunity to “observe[] the demeanor of each juror,”
The defendants do assert that the District Court‘s remedial actions were demonstrably insufficient. They point out that one week after the individual voir dire responding to jurors’ expressions of fear, the District Court received a note from a juror that indicated that one juror had attempted on multiple occasions to engage other jurors -- who were following instructions -- in conversation about the case, despite the District Court‘s emphasis during the individual voir dire on not discussing the case. Cf. Tejeda, 481 F.3d at 53 (explaining that court instructed the jury not to discuss threatening incident and that “those who
But, the District Court investigated this issue, including by following up with that very juror, who indicated to the District Court in response that there had been no discussion of the merits of the case and that he was not attempting to sway or deliberate with other jurors. The District Court then went on to remind that juror of the critical importance of not engaging in any discussion about the case of any kind prior to the jury‘s deliberations, and no defendant thereafter objected to the handling of the issue.6 We thus conclude that the District Court did not abuse its considerable discretion in declining the “last-resort remedy” of ordering a mistrial. Chisholm, 940 F.3d at 126.
IV.
We turn our focus, then, to a set of challenges that Sandoval, Guzman, and Larios bring concerning the testimony of FBI Supervisory Special Agent Jeffrey Wood, as they contend that their convictions must be vacated in consequence of errors that were made with respect to admitting the testimony that he provided at trial. Once again, we conclude that the challenges fail.
We first consider Sandoval, Guzman, and Larios‘s contention that the District Court abdicated its gatekeeping role in permitting Wood to testify as an expert regarding MS-13. We do not agree.
A trial court‘s gatekeeping obligation with respect to the admission of expert testimony applies to nonscientific evidence, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), and the parties here agree that the District Court had such an obligation with respect to Agent Wood‘s testimony about MS-13 and the nature of its operations. But, our review of whether the District Court‘s manner of performing its gatekeeping function amounted to an abdication of that role is only for abuse of discretion, see United States v. Phillipos, 849 F.3d 464, 471 (1st Cir. 2017), and we conclude that there was none with respect to the District Court‘s assessment of Agent Wood‘s ability to testify as an expert, see United States v. Lopez-Lopez, 282 F.3d 1, 14 (1st Cir. 2002) (finding “no reason to believe that the district court somehow failed to perform its gatekeeping function” where, “outside of the presence of the jury, . . . [it] heard defense counsel‘s objections” and found that the agent‘s “testimony was based on his experience“); United States v. Diaz, 300 F.3d 66, 73-74 (1st Cir. 2002) (explaining that there is “no particular
Before trial, the government informed the defense that it would offer expert testimony regarding the history, structure, and organization of MS-13. Sandoval, Larios, and Martinez all moved in limine to exclude the proposed expert testimony. At the final pretrial conference, the District Court carefully considered the defendants’ motions in limine and Sandoval‘s request for a Daubert/Kumho hearing with respect to Agent Wood testifying as an expert, which was premised on the notion that such a hearing could provide more information about the qualifications and trainings listed in the expert disclosure.
The government maintained, however, that no hearing was necessary to determine Wood‘s qualifications to so testify. It noted in that regard the detailed expert disclosure that had been made regarding Wood‘s qualifications and the availability of his testimony in an earlier trial before the District Court stemming from the same investigation.
Notwithstanding the government‘s contention that there was no need for a hearing on Agent Wood‘s qualifications, the District Court permitted the defendants to seek additional information about Wood‘s background and the basis for his testimony. Furthermore, the District Court indicated that it would
Then, on the first day of trial, the District Court ruled that the background information about the operation of MS-13 was an appropriate subject of expert testimony. It acknowledged that, as in other cases in which expert testimony aids the jury in understanding the operation of complex criminal schemes, the knowledge is “not acquired due to some kind of scientific methodology” but instead is based on law enforcement trainings and materials and information gained in the course of investigation. The District Court found this foundation of knowledge to be an appropriate basis for expert testimony on issues like MS-13‘s hierarchy and structure and indicated that cross-examination and objections could ensure that Agent Wood was not drawing inappropriate conclusions from unduly small data sets in providing his testimony on those topics as an expert witness. Finally, the District Court found that Wood‘s background and experience sufficed to enable him to testify about MS-13‘s history, structure, organization, rituals, rivals, and mission, due to knowledge that he had accrued through speaking to law enforcement professionals and cooperators and reviewing videos, photographs, and law enforcement presentations and materials.
We have recognized that in the law enforcement field an “expert‘s experience and training bear a strong correlation to the
The three defendants who join this challenge nonetheless contend that there was insufficient information put forward in support of Wood testifying as an expert about, for example, how many individuals had spoken with him and the percentage of those conversations that supported his opinions and conclusions concerning MS-13. But, these defendants cite no authority providing that a district court must conduct a probing inquiry of that degree of intensity into an expert witness‘s expertise when it is founded on that witness‘s experience, as Wood‘s is. Moreover, the District Court permitted the defense at trial to elicit information about the underlying conversations that Agent
B.
These same three defendants next contend that the District Court erred by permitting Wood to provide testimony that went beyond the scope of proper expert testimony. Here, too, we review for abuse of discretion. See United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994).
The defendants distinguish between what they call “conventional topics of gang testimony” -- information about MS-13‘s structure, organization, history, colors, tattoos, and rivals -- and other subjects “highly prejudicial” to the defendants. But, the testimony that the defendants contend falls into this latter category -- specifically, information about the mission of MS-13, the requirements to join MS-13, MS-13‘s treatment of suspected informants, and the interactions between El Salvador and U.S. MS-13 cliques -- was fairly within the scope of the information about MS-13‘s modes of operation generally. And that is a subject that the District Court reasonably found to be one for which expert
That some of Wood‘s expert testimony about the rules and operation of MS-13 was more prejudicial than other forms of general gang testimony also does not mean, as the defendants suggest, that it was necessarily improper as expert testimony. The District Court acted within its discretion in determining that the testimony‘s prejudicial effect did not substantially outweigh the testimony‘s probative value. See Montas, 41 F.3d at 784 (“[T]he trial court enjoys vast discretion in deciding whether to admit expert testimony under Rules 702 and 403.“); see also Angiulo, 897 F.2d at 1189 (upholding expert testimony about defendants’ roles in the criminal organization, recognizing that “although this type of testimony posed some risk of prejudicing the defendants, it was particularly helpful in assisting the jury to understand the often complex structure of organized crime activities“).
We also reject the contention that the District Court abused its discretion in admitting Wood‘s testimony insofar as that contention is premised on the fact that some of that testimony was not proper for an expert witness to provide because it did not
To be sure, “‘courts must be mindful when the same witness provides both lay and expert testimony’ because of the heightened possibility of undue prejudice,” which is a concern that “is especially acute where the dual roles of expert and fact witness are filled by a law enforcement official.” Flores-De-Jesús, 569 F.3d at 21 (citation omitted) (quoting United States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008)). But, there is no per
C.
We move on, then, to Sandoval, Guzman, and Larios‘s federal constitutional challenge concerning Agent Wood‘s testimony, which these defendants base on the Confrontation Clause. See
The defendants broadly assert that Wood‘s testimony was a regurgitation of conversations that he had with law enforcement officers in the United States and El Salvador. The defendants acknowledge that properly qualified experts whose work is based on reliable principles and methods may rely on inadmissible hearsay evidence in forming an expert opinion without running afoul of the Confrontation Clause in then relaying that opinion, once formed, through their own testimony. See
The only portions of Wood‘s testimony that the defendants appear to challenge concern the information pertaining to MS-13 that Wood obtained in conversation with law enforcement
We have already rejected, however, the defendants’ challenge to Wood‘s testimony based on the contention that the principles and methods that he relied on to form his expert opinion were inadequate to permit him to offer expert testimony. And, given that conclusion, the defendants’ acknowledgement that Wood did “amalgamat[e]” the potential information he relied upon fatally undercuts their Confrontation Clause claim. See Rios, 830 F.3d at 418 (“When an expert‘s understanding of the inner workings of a criminal organization stems in significant part from . . . activities [like interviews and interrogations], courts have agreed that it is the process of amalgamating the potentially testimonial statements to inform an expert opinion that separates an admissible opinion from an inadmissible transmission of
D.
Sandoval, Guzman, and Larios relatedly contend that the District Court improperly limited the scope of the defense‘s cross-examination of Wood concerning CW-1 in a way that impaired their rights under the Confrontation Clause. We conclude that this challenge also is without merit.
1.
In the early stages of the Task Force‘s Massachusetts MS-13 investigation, the FBI began developing CW-1 as a cooperating witness. CW-1 was brought to Boston from El Salvador -- the country to which he had been removed after serving a federal prison sentence -- around 2013, and initially posed as a drug dealer.
Wood was not the case agent when CW-1 was first brought on as an informant or when CW-1 infiltrated the ESLS clique, but he was involved in the investigation as of those times. And, after Wood became the case agent in 2015, he began the process to enter CW-1 into the witness protection program.
Shortly thereafter, according to Wood‘s testimony, he became aware of information indicating that CW-1 had committed serious violent crimes throughout the course of the investigation. Wood met with CW-1 about these concerns in December 2015, and CW-1 denied involvement. CW-1 was admitted into the witness protection program but was terminated from the program over a year later.
The defendants sought to cross-examine Wood about CW-1‘s termination from witness protection and about the details of CW-1‘s “crime spree.” The District Court repeatedly questioned the relevance of this information in the absence of CW-1 being called as a witness or the government introducing evidence about the value that CW-1 provided to the FBI or the good things that CW-1 did. The District Court also noted that CW-1, who did not testify, could not be impeached through Wood.
Sandoval‘s counsel argued in response that the information about CW-1 went to Wood‘s credibility, as Wood had
2.
Sandoval, Guzman, and Larios contend that their Confrontation Clause rights were infringed by the District Court‘s ruling limiting cross-examination of Wood about both CW-1‘s commission of serious crimes while serving as an informant for the FBI and CW-1‘s involvement with and termination from the witness protection program. When a challenge to a district court‘s decision to limit cross-examination has been properly preserved, we review de novo the district court‘s “conclusion that, even though cross-examination was limited, the defendant was afforded sufficient leeway to establish a reasonably complete picture of the witness’ veracity, bias, and motivation.” United States v. Jiménez-Bencevi, 788 F.3d 7, 21 (1st Cir. 2015) (quoting United States v. Capozzi, 486 F.3d 711, 723 (1st Cir. 2007)).7
We may assume that the challenge at issue has been properly preserved by each defendant, as the District Court‘s ruling limiting cross-examination of Wood still permitted the defense to “paint for the jury a complete picture” and thus “afforded a reasonable opportunity to impeach” Wood. Id. (quoting Martínez-Vives, 475 F.3d at 53). The District Court‘s ruling did not bar any defendant from using cross-examination to call attention to issues related to the quality of the information that Wood was relying upon, and, more specifically, to raise concerns about the veracity of those he was speaking to when forming his opinions. The District Court‘s ruling also did not prevent testimony from being elicited from Wood that he had learned that “CW-1 had committed some serious violent crimes throughout the investigation,” that CW-1 had made false representations about these crimes to the FBI, and that CW-1 was ultimately terminated from the witness protection program. The jury thus was not barred
cross-examination because they argued below only that the proposed questioning was “relevant” as it went to Wood‘s credibility. But, this claim necessarily sounds in the Confrontation Clause, which ensures the right to engage in “appropriate cross-examination” to permit the jury to “draw inferences relating to the reliability of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
Nor did the District Court abuse its discretion in imposing the limits that it did on the ability of the defendants through cross examination to elicit the details of CW-1‘s criminal activity. The defendants contend that the type of questioning that the defense was left to pursue was “simply too vague and opaque” to be effective. But, the District Court had “wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). And, the District Court supportably concluded that the line of questioning at issue was irrelevant insofar as it was offered to impeach CW-1, who did not testify, and only marginally relevant insofar as it related to Agent Wood‘s competence as a case agent or expert. The District Court‘s subsequent decision to limit the level of detail on the topic also was neither overbroad nor “manifestly unreasonable.” United States v. Ofray-Campos, 534
E.
Finally, we consider the same three defendants’ Jencks Act claim,
Following the defendants’ request, the government ultimately produced a redacted version of the Threat Assessment. Neither the District Court nor the defendants viewed the unredacted document, which the defendants contend may have been a “statement” of Agent Wood for Jencks purposes and thus subject to production under that Act. The defendants argue that the District Court abused its discretion by failing to conduct an independent inquiry into whether the Threat Assessment was Jencks material -- which includes any written statement “made by” “any witness called by the United States” “and signed or otherwise adopted or approved by him,”
1.
Sandoval first sought production of the Threat Assessment before trial. He then moved for the immediate production of the Threat Assessment after Wood mentioned the document in his testimony on the fourth day of trial. Sandoval followed up with a written motion seeking production of “the original Threat Assessment, the amended version, and the special benefits parole package” as “‘written statement[s] made by . . . or otherwise adopted or approved by’ Special Agent Wood.” (alterations in original) (quoting
2.
The District Court did not determine whether the Threat Assessment was producible under the Jencks Act. The defendants contend that the failure to make that determination was an abuse
The government responds that a claim of prejudice cannot lie because the defense declined the offer for a continuance that the District Court had given to them and thus that a remand for a hearing is not required. See United States v. Arboleda, 929 F.2d 858, 863-64 (1st Cir. 1991); cf. United States v. Kifwa, 868 F.3d 55, 63 (1st Cir. 2017) (“Where, as here, a defendant spurns a continuance that would have cured the adverse effects of a delayed disclosure, a claim of prejudice will not lie.“). The defendants maintain, however, that we cannot determine whether a continuance would have cured the prejudice until the government produces the unredacted Threat Assessment or a Jencks determination is made as to that material.
It is true that Kifwa and the other authority the government relies on concern the failure by a defendant to seek a continuance after belatedly receiving the discoverable information. See Kifwa, 868 F.3d at 63; United States v.
But, these facts demonstrate only that we do not know whether the material was actually subject to production (and that its absence was therefore potentially prejudicial). These facts do not demonstrate that a continuance would not have cured the prejudice. The defendants, moreover, do not themselves offer a reason to conclude that a continuance would not have cured the prejudice, aside from the fact that there was no review of, or Jencks determination as to, the redacted portions of -- and, if such a document exists, an amended version of -- the Threat Assessment.
Indeed, the record contains nothing that shows that a continuance would not have allowed the determination about whether the material was Jencks material to be made. And, had that determination been made in the affirmative, the District Court had made clear to the parties that it would “permit a recall of [Agent Wood],” should it be “appropriate and fair to do [so],” if the information turned out to be Jencks material useful to the defense. See Arboleda, 929 F.2d at 864 (finding “failure to identify any prejudice” doomed Jencks claim because it “is not enough” that
V.
Next up are two challenges that concern the admission of various statements by witnesses at trial. We conclude that neither one has merit.
Larios, Sandoval, and Guzman bring the first of these two challenges, in which they contend that the admission of cooperating witness CW-1‘s statements -- included in transcripts of conversations between the defendants and other ESLS members taken from recordings that CW-1 had made for the government -- violated the Confrontation Clause and thus requires that their convictions be vacated.11 We find no merit to the contention.
1.
Beginning in 2014, CW-1 began to record some of the ESLS clique meetings at the garage in Everett. In 2015, the FBI set CW-1 up as a “gypsy cab driver” -- or an unlicensed cab driver -- and outfitted his vehicle with a secret audio-video recorder. Through this means, CW-1 recorded conversations with various MS-13 members who called for rides. Additionally, the FBI was able to intercept CW-1‘s phone calls. The transcripts of some of the recorded conversations from these sources -- translated into English -- were introduced into evidence, and some portions were read aloud to the jury during the trial.
2.
We review preserved challenges to the District Court‘s evidentiary rulings for abuse of discretion, though in doing so “we consider de novo whether the strictures of the Confrontation Clause have been met.” United States v. Walter, 434 F.3d 30, 33 (1st Cir. 2006) (quoting United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir. 2005)). Where the appellant did not lodge a proper objection below, we review only for plain error. United States v. Díaz, 670 F.3d 332, 344 (1st Cir. 2012).
The defendants first point to a “standing objection” that the District Court granted to “all the videos” on the third day of trial. But, the grant of that standing objection was given in the course of the presentation of various surveillance videos collected from “personal cameras” from “several residences,” which bear no clear relation to the statements at issue here. The grant of that standing objection also followed a series of objections on relevance grounds.
The defendants separately point to an objection that was made concerning the speaker designations in the transcript and the need for authentication of the transcripts.13 But, this objection,
Nor do either of the two subsequent objections that the defendants also highlight have any apparent connection to this particular confrontation issue. One such objection concerned Wood‘s testimony and the basis of his knowledge. The other, after which the District Court “g[ave] a standing objection to defendants on the transcripts,” was the “[s]ame objection” seemingly on the issue of the transcript authentication, speaker identification, and translation accuracy. At most, therefore, we review this claim for plain error, which means that we must find that the District Court committed “(1) an error (2) that is clear and obvious, (3) affecting the defendant‘s substantial rights, and (4) seriously impairing the integrity of judicial proceedings.” Reda, 787 F.3d at 628.
identifications for which Agent Wood -- who did not speak Spanish -- did not have personal knowledge.
The defendants who join this challenge “fail[] to even attempt to explain how the plain error standard has been satisfied.” United States v. Veloz, 948 F.3d 418, 429 (1st Cir. 2020) (quoting United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018)); see also United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) (“[Appellant] has waived these challenges because he has not even attempted to meet his four-part burden for forfeited claims.“). Moreover, even if we looked past the appellate waiver, we would find no plain error.
The parties agree that the statements at issue were testimonial. The key issue, therefore, is whether they were “admitted for purposes other than establishing the truth of the matter asserted.” United States v. Maher, 454 F.3d 13, 19-20 (1st Cir. 2006).
Many of the statements by CW-1 that the defendants challenge were made during the January 8, 2016 clique meeting that, the evidence supportably shows, ended with Joel Martinez‘s jump-in. For example, the transcripts entered into evidence show that, during that meeting, in a conversation about the murder of Irvin de Paz and who would receive credit for it (and, at the same time, who would be implicated for it), CW-1 characterized Joel Martinez as being “on observation” by another MS-13 clique at the time he murdered Irvin de Paz. The transcripts further show that in that
The defendants contend that these statements were offered to establish that these attacks happened, that they were connected to MS-13, and that the clique was finding housing for Joel Martinez because he committed the murder. Similarly, they point to CW-1‘s statements identifying the victims in the murder of Javier Ortiz as rival gang members. And, the defendants contend that CW-1‘s statements telling Joel Martinez that he should ask to be an ESLS homeboy provided substantive evidence showing that criminal activity was acceptable to MS-13 members. They also contend that CW-1‘s statements on the transcripts connected to a December 8, 2014 drug protection detail for which CW-1 solicited Larios‘s help were offered for their truth because it was CW-1 who “proposed the plan” and because CW-1‘s statements “related to the commission of that criminal activity.”
The defendants are right that we have been careful to reject “overbroad” applications of the “context” exception to the prohibition against the admission of hearsay. E.g., United States
In both Cabrera-Rivera and Maher, the non-hearsay rationale for the statements was that they “put the investigation into context” -- that is, they helped explain why the investigation proceeded as it did. Cabrera-Rivera, 583 F.3d at 33; see Maher, 454 F.3d at 22. The admission of the challenged statements here, in contrast, can fairly be characterized as putting the conversation into context -- that is, putting the defendants’ statements into the full context of the conversation so that their inculpatory nature could be properly understood. See Walter, 434 F.3d at 34 (“The other parts of the discussion ‘were properly admitted as reciprocal and integrated utterance(s) to put [the defendant‘s] statements into perspective and make them intelligible to the jury and recognizable as admissions.‘” (alteration in original) (quoting United States v. McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990))).
The defendants who join this challenge do rightly assert that some of CW-1‘s statements that they challenge as improperly admitted identified various attacks -- which the government then characterized as racketeering activity -- and linked them to MS-13. For example, it was CW-1 who, in a conversation at the January 8, 2016 clique meeting about the hits that Joel Martinez had
But, as the government points out, such statements were admissible not only as “reciprocal and integrated utterances” but also to demonstrate the clique‘s motivations for jumping Joel Martinez into the clique and the clique members’ reactions to reports of violence, rather than for the truth of what was asserted in CW-1‘s statements -- for example, that Joel Martinez actually did commit that hit. And, notably, there was other evidence presented about the fact of the commission of these attacks,15 while the government‘s closing argument makes clear that it was using the transcripts to illustrate how the clique responded to the commission of these attacks. Even beyond those reasons, we also note that the defendants did not seek a limiting instruction when the transcripts were presented. See id. at 35 (holding that because the defendant “never asked for such a limiting
B.
Larios also challenges the admission of his own post-arrest statement. But, this challenge fails as well.
At trial, Hernandez Miguel testified about certain statements that Larios made to him while they were detained together after being arrested in January 2016. The conversation concerned Larios‘s prior arrest, in January 2015, on Massachusetts firearms charges. Larios reportedly told Hernandez Miguel that after his 2015 arrest he was “certain it was [CW-1] who had snitched on him,” so he formed a plan with Martinez to kill CW-1 and asked Sandoval for a “green light” to kill him.
Larios does not and cannot argue that the statement was inadmissible when offered against him. See
VI.
Our next focus is on a pair of challenges that concern purported misstatements of the evidence in the government‘s closing argument. Here, too, the challenges provide no basis for overturning the convictions of any of the defendants.
A.
The first of these challenges is Sandoval, Guzman, and Larios‘s claim that a mistrial was warranted based on the
[Sandoval] doesn‘t say to his clique, I want you to go kill Irvin de Paz, I want you to go kill Javier Ortiz, I want you to kill Saul Rivera, I want you to kill Minor Ochoa, right, he says go kill chavalas, right, so this advanced warning argument is foolish.
Sandoval moved for a mistrial on the ground that there was no evidence that he said, “go kill chavalas.” The government responded that the statement was paraphrasing what Sandoval had said and constituted fair argument based on Sandoval‘s position in the clique and the statements that the evidence supportably shows that he had made. The District Court denied Sandoval‘s motion.
We review the denial of a request for a mistrial for abuse of discretion, United States v. Gentles, 619 F.3d 75, 81 (1st Cir. 2010), and a preserved challenge to the propriety of a prosecutor‘s arguments de novo, Veloz, 948 F.3d at 435. We find no error by the District Court in denying the motion for the mistrial based on the prosecutor‘s statement in the closing argument.
B.
Guzman also takes aim at what he contends is a misstatement that the government made at the end of its closing argument. In summarizing the involvement of each defendant, the prosecutor stated:
[Guzman] is along with [Hernandez Miguel] when he breaks that beer bottle over that man‘s head and leaves him gasping for air in the street in East Boston. He collects the money that enables MS-13 to continue to thrive, he beats [Sanchez] for violating clique rules, and he‘s actually the one that counts [Joel Martinez] in to the Eastside clique and welcomes him to La Mara.
(emphasis added).
We review the District Court‘s interpretation and application of this guideline de novo. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). But, when it comes to the District Court‘s factual findings pursuant to this Guidelines regime -- such as which activities of the conspiracy were reasonably foreseeable to the defendant -- we review only for clear error. See id.; Marino, 277 F.3d at 38.
2.
Sandoval‘s revised Presentence Investigation Report (“PSR“) concluded that Sandoval was accountable for three separate offenses that constituted “underlying racketeering activity“: the attempted murder of December 27, 2015; the attempted murder of January 1, 2016; and being an accessory after the fact to the September 20, 2015 murder of Irvin de Paz. Each of these offenses -- or cross-references -- was treated as a separate group and,
The PSR included a four-level adjustment for Sandoval‘s role as an “organizer or leader” of criminal activity. See
The TOL of 43 and CHC of I yielded a Guidelines sentencing range (“GSR“) of life imprisonment. See
Sandoval did not object below to the interpretation of the Guidelines that led to this determination in the PSR. He did, however, contend that the government had not met its burden to show that the attempted-murder offenses treated as “relevant conduct” in the PSR were reasonably foreseeable to Sandoval and within the scope of his own agreement -- and, moreover, that the government failed to offer sufficient reliable evidence to
Sandoval‘s sentencing hearing was held on October 9, 2018. After hearing the parties’ arguments, the District Court found that the PSR correctly calculated the Guidelines offense levels and properly accounted for both the two attempted murders and the accessory-after-the-fact cross-reference.
In so concluding, the District Court made an individualized finding regarding the relevant conduct determination. It found that the two attacks were attempted murders and that first-degree murder was the appropriate cross-reference for these attempts. It then also found that they were reasonably foreseeable to Sandoval. Moreover, as to the accessory-after-the-fact cross-reference, the District Court found both that it was a racketeering act and that, by a preponderance of the evidence, Sandoval‘s actions went beyond mere harboring.
On appeal, Sandoval reasserts his argument below that the government failed to prove, even by a preponderance of the evidence, that either attempted murder was reasonably foreseeable to him.24 He points to the lack of any evidence presented at trial that he knew about either of these attacks in advance, much less ordered or authorized those attacks. He also contends that there is not sufficient evidence to support the general conclusion that any crime committed by Joel Martinez was foreseeable to Sandoval.
Whether the conduct was reasonably foreseeable to Sandoval is a fact-bound determination that we review for clear error. See Marino, 277 F.3d at 38; United States v. LaCroix, 28 F.3d 223, 226, 230-31 (1st Cir. 1994); United States v. Rodríguez, 731 F.3d 20, 28 (1st Cir 2013).25 We find none.
The District Court supportably found that the evidence showed by a preponderance that based on Sandoval‘s conversations with Joel Martinez about joining ESLS, “[Joel Martinez] would view himself as being somewhat in a probationary lifestyle” requiring that he “prove that he was worthy by committing attacks,” which
Sandoval contends that the conversation with Joel Martinez before the attempted murders at issue here contained no implication that Joel Martinez needed to do anything else to prove himself -- Sandoval argues that, to the contrary, he indicated that a discussion with the clique members was all that was needed. And, Sandoval argues, the government failed to offer any evidence that he ordered Joel Martinez to commit any acts of violence or instructed anyone else to report back on Joel Martinez‘s activities.
Given our determination on this score, we need not address Sandoval‘s claims concerning the accessory-after-the-fact group. Sandoval argues that the group should have been limited to mere harboring, which receives fewer levels under the Guidelines. But, that difference would not have affected the TOL -- or the GSR -- that applied to Sandoval (not to mention the statutory maximum).26
Sandoval also asserts that a statutory-maximum sentence is such a significant upward variance from what he contends was his proper GSR -- 51 to 63 months -- that his sentence is substantively unreasonable. As we have explained, however, the District Court‘s calculation of the GSR as 240 months of imprisonment was not in error, and challenges based on substantive unreasonableness are “unlikely” to succeed when, as in this case, “the sentence imposed fits within the compass of a properly calculated [GSR].” United States v. Ruiz-Huertas, 792 F.3d 223, 228-29 (1st Cir. 2015) (quoting United States v. Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014)). Given that the District Court offered a “plausible sentencing rationale” for the imposition of that statutory-maximum sentence and reached a “defensible result,” United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)) -- namely, that murders and a great deal of violence occurred that would not have occurred but for this organization in which Sandoval was a “significantly high leader” -- the within-Guidelines sentence of 240 months of imprisonment that Sandoval received was substantively reasonable.
B.
Next, we take up the procedural and substantive reasonableness challenges that Guzman brings to his 192-month
1.
Guzman‘s PSR calculated an offense level based on four groups of relevant conduct: accessory after the fact to the May 12, 2015 attempted murder; accessory after the fact to the September 20, 2015 murder; the attempted murder of December 27, 2015; and the attempted murder of January 1, 2016. When combined with a “manager or supervisor” adjustment pursuant to
Guzman‘s sentencing hearing was held on November 15, 2018. The District Court found that, by a preponderance of the evidence, Guzman was liable as an accessory after the fact to the May 12, 2015 attempted murder. But, the District Court did not include as relevant conduct under
In conducting that analysis, the District Court started from the premise that the case involved “what‘s in effect a huge murder conspiracy,” in which it found Guzman to have held a “substantial leadership role.” But, the District Court also recognized that there was no evidence that Guzman personally committed violent acts and that there was less evidence against Guzman than against many of the other defendants charged in the indictment. The District Court also considered that Guzman had a close relationship with his family and a stable work history, that he had a painfully difficult childhood, and that he had joined the gang at a young age and there was “some evidence that he was participating less as time went on.” The District Court ultimately imposed a 192-month sentence of imprisonment -- a sentence lower than Sandoval‘s (and lower than the government‘s recommendation as to Guzman, which was also the statutory-maximum 240 months) in light of Guzman‘s “somewhat diminished participation in the organization” and his “family ties.”
2.
First, Guzman contends that accessory after the fact to attempted murder does not qualify as a RICO predicate act of
As explained above, “underlying racketeering activity” under
Guzman does not dispute that accessory after the fact to attempted murder is chargeable under state law and punishable by imprisonment for more than one year. See
In United States v. McKenney, 450 F.3d 39 (1st Cir. 2006), however, we construed the use of “involving” in a provision of the Armed Career Criminal Act (“ACCA“),
Relying on these definitions, the government argues that accessory after the fact to attempted murder under Massachusetts law -- because it requires that the offending conduct occur “after the commission of a felony” and with the knowledge that the principal “has committed a felony,”
By its terms, the Massachusetts accessory-after-the-fact statute does “include as a necessary circumstance,” Shular, 140 S. Ct. at 785, the commission of the underlying felony, see
Guzman first contends that the constructions of “involving” in McKenney and Shular “contain no limiting principle.” But, we are hardly in a position as a panel to rely
To the extent that he does develop such an argument, it is based solely on his contention that accessory after the fact to attempted murder has a different mens rea from the offense of murder itself and involves conduct “that is often, in itself, comparatively innocuous.” And, in support of his position on this score, Guzman relies on one out-of-circuit precedent construing a provision that is quite distinct textually from the one at issue here. That precedent is the Ninth Circuit‘s decision in United States v. Innie, 7 F.3d 840 (9th Cir. 1993), which rejected the government‘s argument that being an accessory after the fact to a “crime of violence” under the then-existing career offender provision of the Guidelines is analogous to conspiring to commit or aiding and abetting a “crime of violence” under that provision of the Guidelines. See id. at 852.
But, the question in that case, given what the relevant provision of the Guidelines said, was not the same as ours or the
True, in that distinct context, the Ninth Circuit found it significant that, “unlike one who conspires to commit a crime of violence, an accessory after the fact does not agree to commit the crime of violence” and thus that the accessory-after-the-fact offense did not constitute a “crime of violence” under that Guidelines provision. Id. at 852. But, we do not see how that addresses the issue here.
One can see the basis for the conclusion -- contestable as it may be -- that an offense of accessory after the fact to murder for hire may not “involve[] conduct that presents a serious risk of physical injury to another,”
Thus, Guzman has not shown that McKenney and Shular, which construed a provision using similar “involving” language, do
3.
Having rejected Guzman‘s legal contention that the conduct involved in the offense of accessory after the fact to attempted murder cannot constitute “underlying racketeering
a.
Again, the District Court applied only one accessory-after-the-fact cross-reference as to Guzman. This was related to the May 12, 2015 stabbing. The evidence presented about that stabbing came primarily from Hernandez Miguel‘s testimony.
According to that testimony, Hernandez Miguel went with other MS-13 members to a park in Chelsea on a request from a fellow ESLS member who had encountered members of the rival 18th Street gang there. On the way to the park, Hernandez Miguel testified, they picked up a foot-long military-style knife. Hernandez Miguel testified that, once they arrived at the park, the “chavalas” started running after an MS-13 member flashed a knife. Hernandez Miguel saw two ESLS members beating a rival gang member on the ground -- he then joined them and started stabbing the rival gang member with the military-style knife. The man he was stabbing kicked the knife while Hernandez Miguel was stabbing him with it, and Hernandez Miguel ended up cutting himself.
Hernandez Miguel left with CW-1 and another individual who was associated with a different MS-13 clique. He testified that they decided to go to Guzman‘s house given that Hernandez
The government‘s evidence also included testimony from an officer with the Chelsea Police Department who, the evidence supportably shows, responded to the scene of the stabbing. The officer testified that an individual with tattoos he associated with the 18th Street gang was lying on the ground bleeding from a single stab wound to the left side of the middle of his torso. The individual was transported “immediately to the hospital” in an ambulance.
b.
Guzman first argues that the evidence was insufficient to show by a preponderance of the evidence that the underlying act -- the May 12, 2015 stabbing -- constituted attempted murder under
Guzman next argues that, even if the stabbing did constitute attempted murder, the government still failed to show that Guzman had sufficient knowledge of the underlying felony to be considered an accessory after the fact under Massachusetts law. Even assuming, as Guzman contends, that this requires that Guzman was apprised of “the substantial facts of the [underlying] felonious crime,” Commonwealth v. Devlin, 314 N.E.2d 897, 899 & n.4 (Mass. 1974), we find that the District Court did not clearly err in answering this question in the affirmative. In addition to Hernandez Miguel‘s testimony that he told Guzman “what had happened” and what the evidence supportably showed about Guzman‘s understanding of the clique‘s mission, the District Court could supportably conclude from Hernandez Miguel‘s description of Guzman‘s actions -- which included explaining that he would throw Hernandez Miguel‘s clothes away because he “worked with the garbage” and expressing concern that someone might “snitch” --
4.
Next, Guzman asserts that the District Court imposed an upward departure without notice. This challenge is based on the fact that, in the statement of reasons, the District Court completed the section corresponding to departures (section V) rather than the section corresponding to variances (section VI), indicating an above-Guidelines departure under
a.
As Guzman acknowledges, the government had not sought an upward departure. And, as he also acknowledges, the District Court did not check the box in section IV of the statement of reasons indicating that it departed from the Guidelines range (IV.C); instead, it checked the box indicating that it imposed a variance (IV.D).
The District Court explained, moreover, that it was imposing a sentence based on the
b.
Guzman argues in the alternative that even if the District Court is deemed to have fashioned a variant sentence under
First, Guzman contends that
Guzman does not point to any indication other than the check mark in the statement of reasons that the District Court
5.
Next, Guzman assigns error to the District Court‘s finding that Guzman was a “manager or supervisor” under
At trial, Hernandez Miguel testified that Guzman was in charge of the clique money and would “collect the dues.” The government also argues that Guzman had some degree of control over the clique‘s guns. And, while testimony at trial indicated that clique members considered Sandoval the “main runner” and Guzman as the “second one,” Hernandez Miguel also testified that “the second one is there in case the first one is not.” The evidence also supportably showed that clique members sought permission from the “runners,” plural, which was fairly understood to include Guzman, to do certain things and that clique members reported their activities to “runners,” plural.
In light of this evidence, we find that the District Court did not clearly err in finding, by a preponderance of the evidence, that Guzman exercised “some ‘degree of control or organizational authority over others.‘” United States v. Cali, 87 F.3d 571, 578 (1st Cir. 1996) (quoting United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)); see also United States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993) (“Managerial status [generally] attach[es] if there is evidence that a defendant, in
6.
Finally, Guzman contends that his above-Guidelines sentence was substantively unreasonable. As we have indicated, “[t]he hallmarks of a substantively reasonable sentence are ‘a plausible sentencing rationale and a defensible result.‘” Zapata-Vázquez, 778 F.3d at 24 (quoting Martin, 520 F.3d at 96). When, as here, we are reviewing a sentence outside the GSR, we are “obliged to consider the extent of the variance,” but we still “give due deference to the district court‘s decision that the
Guzman also contends that the District Court‘s upward-variance decision was based largely on factors already accounted for in the Guidelines calculation -- specifically, Guzman‘s leadership role and his role as an accessory after the fact to the May 12, 2015 attempted murder.
To the extent the District Court relied on these factors to impose a sentence above the Guidelines range, it “specifically articulate[d] [its] reasons for doing so,” which was all it was required to do. United States v. Maisonet-González, 785 F.3d 757, 764 (1st Cir. 2013); see also United States v. Hernández-Ramos, 906 F.3d 213, 215 (1st Cir. 2018) (concluding that the sentencing court‘s reliance on offense conduct and personal characteristics in varying upward was not improper double-counting because those considerations “form the foundation of most guidelines calculations” and therefore the defendant‘s “double-counting argument, if embraced, would render every variance based on offense conduct and the defendant‘s characteristics unreasonable“). The District Court did not abuse its discretion in this respect.
Guzman also argues that to the extent the above-Guidelines sentence was based on his gang membership, this, too, was improper. Because this argument relies on the
We conclude that the District Court‘s sentencing rationale, which carefully addressed the competing considerations -- such as Guzman‘s family ties, hard work, and “somewhat diminished participation” in the organization along with his leadership role in “what‘s in effect a huge murder conspiracy” -- both was plausible and arrived at a result that was within the “universe of reasonable sentences,” Rivera-González, 776 F.3d at 52. There was no error in this regard.
We next consider the challenges that Larios brings to his 180-month sentence of imprisonment for RICO conspiracy. We begin by explaining the relevant procedural history.
1.
The PSR calculated five groups to determine Larios‘s adjusted offense level, based on the following relevant conduct: the cocaine conspiracy related to the drug protection detail, calculated based on 5 kilograms of cocaine; the conspiracy to murder CW-1; accessory after the fact to the September 20, 2015 murder of Irvin de Paz; accessory after the fact to the December 27, 2015 attempted murder; and accessory after the fact to the January 1, 2016 attempted murder.
Larios objected to all of these cross-references. He also objected to the use of the preponderance standard for the relevant conduct determination, arguing that such enhancements should be proved beyond a reasonable doubt. And, he argued that he was entitled to a downward departure for sentencing factor manipulation.
At Larios‘s sentencing on November 19, 2018, the District Court reiterated its finding, as a general matter, that accessory after the fact does constitute racketeering activity for purposes of
The District Court imposed a 180-month prison sentence. In doing so, it stated that it felt the sentence imposed would be “appropriate whether or not the guidelines came out the way they did, whether higher or lower.” In determining that the sentence was appropriate, the District Court considered, among other factors, that Larios was not a clique leader, that there was no evidence that he had personally committed actual violence, and the sentences given to his codefendants.
2.
Larios challenges the standard of proof used to find relevant conduct based on the Due Process Clause of the U.S. Constitution. He contends that it requires that a heightened standard of proof apply to those determinations when the relevant conduct drives the Guidelines significantly higher. He relies for this proposition on our recognition that “[a]t the outer limits,
We have recognized that “[r]elevant conduct increases a defendant‘s sentence, sometimes very significantly, despite the fact that it was not charged in an indictment, and even despite the fact that a jury may have acquitted the defendant for that precise conduct.” Carrozza, 4 F.3d at 80 (citation omitted). Nevertheless, we have held that the applicability of relevant conduct need only be proved by a preponderance of the evidence where it does not change the statutory sentencing range, see id.; González, 857 F.3d at 58-61, and we have rejected the suggestion that there may be reason to deviate from this rule in the RICO context, see Carrozza, 4 F.3d at 80-81.
Nor did the use of the preponderance standard to determine relevant conduct in this particular case lead to an outcome so unfair as to raise due process concerns. This Court has found an enhancement based on relevant conduct to raise such concerns in one case, which we described as “an unusual and perhaps
Larios received a sentence under the 20-year statutory maximum for the offense of conviction. See
Larios separately contends that there is insufficient evidence in the record, even under a preponderance standard, to attribute the drug conspiracy and the conspiracy to murder CW-1 to him. We disagree.
We address the cross-reference for conspiracy to murder CW-1 first. This cross-reference reflects the testimony from Hernandez Miguel that Larios had told him that he had previously “made a plan” with Martinez to kill CW-1 and had asked Sandoval for a “green light.”
Larios argues that Hernandez Miguel‘s testimony about Larios‘s statements was uncorroborated; that the statements, if made, were merely “idle chatter“; and that even if Larios did make the statements and was sincere, there was no agreement and “can be no conspiracy based on only one person‘s illusory desire.” But, we will set the District Court‘s determination on this score aside only if clearly erroneous. See Sepulveda, 15 F.3d at 1200.
Having presided over the lengthy and complex trial, the District Court was “steeped in the facts of the case” and in a superior position to make credibility determinations. Id. It thus did not clearly err in attributing the conspiracy to murder CW-1 to Larios for sentencing purposes based on Hernandez Miguel‘s testimony indicating that Larios and Martinez had “devised a plan” and the fact that such testimony comported with the other evidence
Given this conclusion, we need not consider Larios‘s arguments that the inclusion of the drug conspiracy as “underlying racketeering activity” was unsupportable. The inclusion of that offense as a cross-reference had no independent effect on the TOL -- or the GSR -- that applied to Larios.30 See Sepulveda, 15 F.3d at 1199 (“It is unnecessary to address an allegedly erroneous sentencing computation if, and to the extent that, correcting it will not change the applicable offense level or otherwise influence the defendant‘s GSR . . . .“); cf. Carrozza, 4 F.3d at 82 n.10 (noting that district courts need not even “make findings as to acts proffered as relevant conduct” if those acts will not affect the offense level under
4.
Larios‘s final challenge regarding his sentence takes aim at the District Court‘s decision rejecting his claim of sentencing factor manipulation, which is also known in this circuit as “sentencing entrapment.” United States v. DePierre, 599 F.3d 25, 29 (1st Cir. 2010). Larios bears the burden to show by a preponderance of the evidence that “the government . . . improperly enlarged the scope or scale of the crime to secure a higher sentence.” See id.; see also United States v. Barbour, 393 F.3d 82, 86 (1st Cir. 2004). Our review is for clear error. Barbour, 393 F.3d at 86.
We note at the outset that, to the extent Larios can be understood as arguing that the District Court failed to even consider his sentencing manipulation claim, we disagree. The District Court made clear that it overruled any argument Larios made based on sentencing entrapment or manipulation. See United States v. Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008) (concluding based on a similar statement that the sentencing court considered sentencing factor manipulation enough to reject it). In fact, as Larios‘s counsel acknowledged during the sentencing hearing, the
Nor can we conclude that the District Court clearly erred in making the determination that sentencing manipulation had not been shown. The primary focus of the sentencing manipulation inquiry in this circuit is on the impropriety of the government‘s conduct. DePierre, 599 F.3d at 29; Jaca-Nazario, 521 F.3d at 58. In order to meet his burden, Larios must show “extraordinary misconduct.” DePierre, 599 F.3d at 29 (quoting Jaca-Nazario, 521 F.3d at 58); accord United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995).
Larios relies on the government‘s role in the drug protection detail and the circumstances linking Larios to the December 27, 2015 and January 1, 2016 attempted murders and the Irvin de Paz murder. But, none of these events inflated the applicable GSR. Thus, we do not see how sentencing manipulation would apply here, much less have an effect in Larios‘s case, given that it provides an “equitable remed[y]” in the form of lowering the offense level or authorizing a below-Guidelines sentence in those cases in which the sentence has been improperly driven up by government misconduct. United States v. Capelton, 350 F.3d 231, 246 (1st Cir. 2003); see also Montoya, 62 F.3d at 3; United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994).
A defendant “cannot make out a case of undue provocation simply by showing that the idea originated with the government or that the conduct was encouraged by it, or that the crime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendant had done before.” Montoya, 62 F.3d at 3-4 (citations omitted). Moreover, “the district court‘s ultimate judgment whether the government‘s conduct is outrageous or intolerable is not lightly to be disregarded.” Id. at 4. Accordingly, we conclude that there is no merit to Larios‘s claim of sentencing factor manipulation.
Finally, we consider Martinez‘s sentencing challenges. Martinez, who was acquitted of the RICO conspiracy count, was convicted only of conspiracy to distribute (500 grams or more of) cocaine in violation of
After receiving the PSR, Martinez objected to the inclusion of material related to conduct for which he was acquitted in the PSR‘s statement of offense conduct. He argued that the material, which was not conduct related to the drug offense for sentencing purposes, was “extremely prejudicial and harmful.” Martinez requested a statutory-minimum sentence of 60 months. The government requested a sentence of double that length, arguing that Martinez was “more dangerous than his GSR suggests” given corroborated evidence of Martinez‘s involvement in MS-13 and his commission of violence on behalf of the enterprise.
Martinez was sentenced on December 18, 2018. The District Court adopted the PSR‘s GSR calculation of 60 to 63 months of imprisonment.32 At Martinez‘s sentencing hearing, the District Court noted that “considerable caution” was warranted with respect to the use of acquitted conduct. Nevertheless, it concluded that it “could find fairly easily by a preponderance of the evidence
Martinez appeals his 72-month sentence as procedurally unreasonable on two grounds. First and foremost, he challenges the District Court‘s reliance on acquitted conduct in sentencing. Additionally, he argues -- albeit only in a footnote -- that the District Court improperly departed from the GSR without meeting the requirements of
1.
We take the acquitted conduct point first. Martinez acknowledges that this argument is foreclosed by First Circuit precedent. See, e.g., United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006) (holding that United States v. Booker, 543 U.S. 220 (2005), did not change the law that “acquitted conduct, if proved by a preponderance of the evidence, still may form the basis for a sentencing enhancement“). But, Martinez argues at length that this Court, in so holding, has adopted an erroneous and overbroad interpretation of United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam) (holding that “a jury‘s verdict of
Martinez makes no argument as to how we may do so, however. With rare exceptions, “newly constituted panels in a multi-panel circuit are bound by prior panel decisions closely on point.” United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008). Martinez makes no attempt to establish how either of those exceptions -- which require either that subsequently announced controlling authority contradict the preexisting panel opinion or that subsequently announced authority, “although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind,” id. at 225 (quoting Williams v. Ashland Eng‘g Co., 45 F.3d 588, 592 (1st Cir. 1995)) -- apply here.
And, indeed, it is clear they do not. Martinez argues that Booker, along with various Justices’ calls (in non-controlling opinions) to examine the continuing use of acquitted conduct in sentencing, see, e.g., Jones v. United States, 574 U.S. 948, 948 (2014) (Scalia, J., dissenting from denial of certiorari), demonstrates that “the Supreme Court has never foreclosed challenges to the use of acquitted conduct at sentencing under the
2.
Martinez also contends, like Guzman, that the District Court applied an improper upward departure. Again, we review for abuse of discretion. See Flores-Quiñones, 985 F.3d at 133.
Here, too, the District Court checked the box for
Moreover, the District Court‘s oral pronouncements make clear that it was varying rather than departing. The District
In any event, any procedural error that occurred to the extent that the District Court‘s rationale is better understood as a departure would be harmless. The record makes abundantly clear that “the district court would have imposed the same sentence as a variance in any event,” Aponte-Vellón, 754 F.3d at 93, and Martinez makes no separate claim that the extent of the variance was unwarranted.
IX.
For the foregoing reasons, we affirm the convictions and sentences for these defendants.