FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District
A. Morales-Ramos and Law Offices of Javier A. Morales-Ramos
on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Thomas F. Klumper, Assistant United States Attorney, Acting
Chief, Appellate Division, and Julia M. Meconiates, Assistant
United States Attorney, on brief for appellee.
Torruella, Boudin, and Kayatta, Circuit Judges.
BOUDIN, Circuit Judge.
2013 and 2015, Ashley Flores-Carter ("Flores")
participated in a drug conspiracy involving the smuggling of
cocaine from Puerto Rico to the continental United States.
With kilograms of cocaine hidden in the lining of their
suitcases, Flores and her co-conspirators traveled on
commercial flights from Puerto Rico to several U.S. cities.
On September 30, 2015, the government charged Flores with
conspiracy to possess cocaine with the intent to distribute,
21 U.S.C. §§ 846, 841(a)(1), asserting that
Flores's role in the drug conspiracy was two-fold: Flores
herself flew from Puerto Rico to the United States with
cocaine-filled suitcases; later, Flores recruited others to
participate as drug mules.
then made an incriminating post-arrest statement to the DEA,
negotiated with the government, spent time in jail after bail
was revoked, and received Jencks Act material, including
grand jury testimony, 18 U.S.C. § 3500(b); see
also Fed. R. Crim. P. 26.2. She then entered a straight
plea of guilty without any agreement with the government. On
September 7, 2016, Flores was sentenced to 84 months in
prison, followed by five years of supervised release.
presents three main arguments on appeal, ultimately seeking a
remand for re-sentencing. First, Flores argues that at
sentencing the government misled the district court as to
Luis Pintor, one of Flores's thirty-six co-defendants who
had pled guilty pursuant to a negotiated plea agreement. In
her post-arrest DEA interview, Flores had admitted to
completing a drug-trafficking trip to New York with Pintor in
early 2013. During Flores's sentencing hearing, the
district court briefly inquired as to Pintor's sentence;
the government responded that it believed Pintor received a
70-month sentence and stated: "[Pintor's] role
within this conspiracy was even more limited than this
defendant." The Court replied: "Oh, okay."
Defense counsel then stated: "We don't believe
so." The judge did not revisit the issue.
the sentence of another defendant, sentenced by a different
judge but involved in some aspect of the same criminal
enterprise, might in some instances matter to the district
judge, were the judge sure of relative culpability. But many
judges might think the game not worth the candle. The judge
here apparently thought this since he made no finding and
showed no interest in such a dubious detour. Rule 32, Fed. R.
Crim. P. 32(i)(3)(B), calls on the court to resolve disputed
material facts or say that the dispute does not matter, but
neither side here invokes the rule with respect to this
defense counsel was apparently satisfied with the district
court's disinterest in drawing any inference as to
relative culpability and certainly did not oppose leaving the
matter unexplored. Having failed to object to the judge's
evident intent to leave the disagreement unexplored, pursuing
the matter now would require at the very least plain error.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). Defense counsel makes no such claim and nothing here
would support a claim of plain error if one had been made.
sentencing transcript confirms that the district court
engaged in a proper and individualized sentencing. While the
Presentence Report ("PSR") included a two-point
enhancement for obstruction of justice based on Flores's
messages to a potential witness, the court rejected this
recommendation after hearing from both Flores's attorney
and the government, stating: "I also considered that the
texts as such are somewhat ambiguous . . . I don't
believe that . . . the government proved by a preponderance
of the evidence that the obstruction of justice should be
district court also considered the three different drug
quantities proposed--48 kilograms in the government's
sentencing memorandum, 8 kilograms in Flores's sentencing
memorandum, and 41 kilograms in the PSR--before ultimately
accepting the PSR's quantity. The judge gave due
attention to disputes where they seemed to matter. A fleeting
reference to a co-defendant and his sentence did not taint
the sentencing hearing, especially when examined under the
plain error standard.
Flores says that both the PSR and the government's
sentencing memorandum contained factual errors as to the
quantity of cocaine properly attributable to her. The PSR
concluded that she was responsible for at least 41 kilograms;
the sentencing memorandum put the figure at 48. Both
attributed to Flores the drugs handled by individuals she
recruited. Under either calculation (41 or 48 kilograms),
Flores's base offense level would be 32. U.S.S.G. §
2D1.1(c)(4)(2015). Flores's counsel argued for level 30,
holding Flores accountable for 8 kilograms that Flores
personally smuggled into the continental United States.
district court held Flores responsible for the PSR's
quantity: 41 kilograms. Flores's sentencing memorandum
generally disputed the PSR's drug quantity of 41
kilograms but did not raise the argument that Flores now
presents on appeal, namely, that the drugs smuggled by
co-conspirators she recruited should not be counted. Rather,
Flores argued (and still argues) over the number of trips she
took carrying drugs, ...