United States v. Ortiz-Islas

• Citation: 829 F.3d 19
• Decision Date: 11 July 2016
• Docket Number: No. 14-1864,14-1864
• Parties: United States of America, Appellee, v. Apolinar Ortiz–Islas, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

829 F.3d 19

United States of America, Appellee

v.Apolinar Ortiz–Islas, Defendant, Appellant.

No. 14-1864

United States Court of Appeals, First Circuit.

July 11, 2016

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP, Andover, MA, was on brief, for appellant.

Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Thompson, Circuit Judge, Souter, Associate Justice,^* and Barron, Circuit Judge.

SOUTER, Associate Justice.

Apolinar Ortiz–Islas appeals his conviction and sentence for conspiracy to possess cocaine for distribution and to distribute it. We affirm.

I

Mathieu LeBlanc orchestrated a cocaine distribution conspiracy that completed a number of transactions beginning in 2010. He would typically arrange for Robert Rossignol to receive money in Canada and smuggle it across the border into Maine. LeBlanc then would drive the money to Texas or have others, including Chad Hallett, transport it for him. Ahead of his and the money's arrival in Texas, LeBlanc would notify Victor Charles and Kyle MacDonnell that he was coming so that they could arrange a meeting between LeBlanc and a cocaine supplier, most frequently Ortiz–Islas. Charles and MacDonnell would provide protection and logistical support during the transaction. After the exchange, Hallett or Charles would drive the cocaine from Texas to Maine, where it would be handed off to Rossignol.

In May 2012, Charles was incarcerated for a parole violation, but he sought to preserve his place in the conspiracy even while in custody, by receiving payment on future deals between LeBlanc and Ortiz–Islas in recognition of the logistical groundwork he had helped to lay in the past. Both LeBlanc and Ortiz–Islas agreed to pay Charles for deals completed while he was locked up. At one point, Ortiz–Islas contacted Charles's wife to obtain LeBlanc's phone number, and Charles ensured that LeBlanc and Ortiz–Islas knew how to make contact with each other.

LeBlanc planned to complete a deal in June 2012 and spoke ahead of time directly to Ortiz–Islas, since Charles was in custody. LeBlanc made the plans known to Charles, who requested that his share be paid to his mother. Hallett received the money for the June deal from Rossignol in Maine, and, for this particular trip, was supposed to meet LeBlanc in New Jersey, where they would exchange Canadian currency for American dollars. Hallett then would drive the converted cash to Texas, where he would connect with LeBlanc again. As part of the June deal, Ortiz–Islas agreed to “front” cocaine to LeBlanc: Ortiz–Islas would give LeBlanc more drugs than he paid for on the understanding that LeBlanc would make up the difference in a subsequent transaction.

But the June arrangements went awry. Hallett was arrested driving the cash from Maine and agreed to participate in a controlled delivery of the money to LeBlanc in New Jersey, as planned. LeBlanc was then arrested in New Jersey on June 28 and, like Hallett, agreed to cooperate. He placed recorded phone calls to Ortiz–Islas, fabricating a reason to stall and work out new logistics for what would be a controlled transaction.

While LeBlanc and Ortiz–Islas were still hashing out the details of the delayed deal, on August 16 a grand jury in Maine indicted Rossignol, Charles, and Ortiz–Islas for conspiring “with persons known and unknown” to distribute and to possess with intent to distribute at least five kilograms of cocaine in “Maine and elsewhere” over a period beginning “no later than January 1, 2011,” and continuing until “no earlier than June 28, 2012” (the date of LeBlanc's arrest).

What was supposed to be the June deal ended as a sting operation on September 18. Ortiz–Islas met with a federal agent posing as LeBlanc's courier and was arrested as they approached the location of the planned swap, where cocaine was seized.

Rossignol and Charles, who were included in the indictment alongside Ortiz–Islas, pleaded guilty, as did LeBlanc and Hallett, who were charged separately. MacDonnell received immunity. At Ortiz–Islas's trial, Charles, LeBlanc, Hallett, and MacDonnell testified against him, Charles attesting that on behalf of LeBlanc he made about six trips to Maine transporting cocaine purchased from Ortiz–Islas. The first was said to involve three kilograms, and the quantity on each subsequent trip was at least five. The jury convicted Ortiz–Islas of conspiring to distribute and to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1)

, 846.

At sentencing, the district court found Ortiz–Islas accountable for almost 34 kilograms of cocaine, which (at the time) gave him a base offense level of 34 under U.S. Sentencing Guidelines Manual § 2D1.1(c)(3)

(U.S. Sentencing Comm'n 2013). The court applied a two-level increase in light of evidence that Ortiz–Islas possessed a gun at some of the drug deals, id. § 2D1.1(b)(1), but varied back downward by two levels at the parties' urging in recognition of impending Guidelines amendments providing two-level reductions in drug-quantity offense levels. An offense level of 34 and a criminal history category of I yielded a Guidelines sentencing range of 151 to 188 months. Id. (sentencing table). The Government recommended a sentence at the top of this range. But taking account of the other conspirators' sentences (Hallett received 48 months, LeBlanc got 104, and Charles and Rossignol 120 each), the court sentenced Ortiz–Islas within the Guidelines range to 170 months' imprisonment. He appealed.

II

Ortiz–Islas raises four issues, none of them meritorious.

A

According to him, there was an impermissible variance between the indictment's charge and the Government's proof. While the evidence may have shown that he conspired to sell cocaine to LeBlanc in Texas, he says, it failed to place him in a conspiracy with LeBlanc to distribute the drugs in Maine or elsewhere.

“When a defendant asserts a claim of variance premised on the notion that multiple conspiracies existed and that his activities were not part of the charged conspiracy, the initial question is one of evidentiary sufficiency.” United States v. Ramirez–Rivera , 800 F.3d 1, 46 (1st Cir. 2015)

(internal quotation marks omitted) (quoting United States v. Dellosantos , 649 F.3d 109, 116 (1st Cir. 2011) ). “We review sufficiency challenges de novo. We consider all the direct and circumstantial evidence in the light most flattering to the [G]overnment, ‘drawing all reasonable inferences consistent with the verdict ... to determine whether a rational jury could have found the defendant[ ] guilty beyond a reasonable doubt.’ ” Id. at 16 (citations omitted) (quoting United States v. Négron–Sostre , 790 F.3d 295, 307 (1st Cir. 2015) ).

“Three factors guide our assessment of whether the evidence was sufficient to prove that a set of criminal activities [constituted] a single conspiracy: ‘(1) the existence of a common goal, (2) overlap among the activities' participants, and (3) interdependence among the participants.’ ” United States v. Paz–Alvarez , 799 F.3d 12, 30 (1st Cir. 2015)

(quoting United States v. Ciresi , 697 F.3d 19, 26 (1st Cir. 2012) ). “In considering these three factors, we must remember that the existence of a single conspiracy does not require the participants to know of all the other participants, understand all the details of the conspiracy, or participate in each aspect of the conspiracy.” Dellosantos , 649 F.3d at 118

.

Here, all three considerations point to a single conspiracy. The first, existence of a common goal, “is broadly drawn” and in a case like this is satisfied by evidence of a shared “interest in furthering the distribution of drugs.” Négron–Sostre , 790 F.3d at 309

(internal quotation marks omitted) (quoting United States v. Portela , 167 F.3d 687, 695 & n. 3 (1st Cir. 1999) ). That was the common goal here: “namely, to sell drugs for profit.” Paz–Alvarez , 799 F.3d at 30. Contrary to Ortiz–Islas's characterization, he had more than a mere buyer-seller relationship with LeBlanc: he was engaging in selling wholesale quantities obviously purchased for further sale, and he was even willing to front cocaine to LeBlanc, an act of trust that assumed an ongoing enterprise with a standing objective.

The second, overlap among the activities' participants, “is satisfied by the pervasive involvement of a single core conspirator.” Dellosantos , 649 F.3d at 118

(internal quotation marks omitted) (quoting United States v. Mangual–Santiago , 562 F.3d 411, 422 (1st Cir. 2009) ). Here, LeBlanc fills that bill. He would (i) arrange for Rossignol to smuggle currency from Canada into Maine, (ii) pay Hallett and others to drive the cash to Texas, (iii) inform Charles and MacDonnell of his upcoming arrival in Texas, (iv) meet with Ortiz–Islas among others to swap the money for cocaine, and (v) direct Hallett, Charles, and others to transport the drugs back to Maine.

Remarkably, Ortiz–Islas denies that the required overlap occurred, relying on United States v. Monserrate–Valentín

:

[T]he mere fact that a central person (the “hub” of a wheel) is involved in multiple conspiracies (the wheel's “spokes”) does not mean that a defendant ... who participated in a spoke conspiracy ... may be convicted of participating in an overarching conspiracy encompassing the entire wheel. The [G]overnment must also produce evidence from which a jury could reasonably infer that the spoke defendant knew about and agreed to join any larger overarching conspiracy.

729 F.3d 31, 44–45 (1st Cir. 2013)

(citation and some internal quotation marks omitted) (quoting United States v. Franco–Santiago , 681 F.3d 1, 11 (1st Cir. 2012), abrogated on other grounds by Musacchio v. United States , ––– U.S. ––––, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016) ). But this was not a “hub-and-spoke conspiracy,” where “one core figure supplies drugs to multiple participants.” United States v. Niemi , 579 F.3d 123, 127 (1st...