United States v. Hernandez-Hernandez ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1123
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ANTONIO HERNÁNDEZ-HERNÁNDEZ, a/k/a Vale,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Barron, Lipez, and Dyk,*
Circuit Judges.
Rafael F. Castro Lang for appellant.
Gregory B. Conner, Assistant United States Attorney, with
whom Francisco A. Besosa-Martínez, Assistant United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United
States Attorney, were on brief, for appellee.
June 30, 2020
* Of the Federal Circuit, sitting by designation.
BARRON, Circuit Judge. In connection with a 2015 scheme
to transport cocaine from the Dominican Republic to Puerto Rico,
José Antonio Hernández-Hernández ("Hernández") pleaded guilty to,
and was convicted of, two drug-trafficking offenses and two money-
laundering offenses in the United States District Court for the
District of Puerto Rico. Hernández now challenges his sentence.
We affirm.
I.
Hernández was indicted in 2015 on four counts of an
eight-count indictment that also charged three others -- Kelvin
Radhames De Morla-Santana ("De Morla"), Dima Osiris Gerardino-
Manzueta ("Gerardino"), and José Luis Hernández-Peña -- for their
respective roles in the drug-trafficking scheme. Unbeknownst to
the conspirators, the individuals on the other side of the planned
transaction to bring the cocaine to Puerto Rico and distribute it
included federal law enforcement agents.
More specifically, the indictment charged Hernández with
one count of conspiracy to possess with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(A)(ii); one count of attempted possession
with intent to distribute controlled substances in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 18 U.S.C. § 2; and two counts
- 2 -
of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
2.
The government offered Hernández a plea deal. If he
would plead guilty to the first drug-trafficking count and both of
the money-laundering counts, then the government would agree to
the following in return. First, the government would stipulate
that Hernández was only accountable for offenses involving at least
15 kilograms of cocaine but less than 50 kilograms, even though
the conspirators initially agreed to transport 200 kilograms of
cocaine to Puerto Rico and actually delivered roughly 60 kilograms
of cocaine. That stipulation would have had favorable sentencing
consequences for Hernández under the United States Sentencing
Guidelines ("Guidelines") due to the base offense level that
corresponds to that stipulated drug quantity. See U.S.S.G. § 2D1.1
(U.S. Sentencing Comm'n 2018) (providing a base offense level of
32 for drug-trafficking offenses involving "[a]t least 15 KG but
less than 50 KG of Cocaine"; a base offense level of 34 for drug-
trafficking offenses involving "[a]t least 50 KG but less than 150
KG of Cocaine"; and a base offense level of 36 for drug-trafficking
offenses involving "[a]t least 150 KG but less than 450 KG of
Cocaine").
Second, the government would agree not to pursue a
sentencing enhancement under the Guidelines pursuant to U.S.S.G.
§ 2D1.1(b)(1), based on firearms that had been seized from his
- 3 -
codefendants. That guideline, which requires a two-level
enhancement, applies when "a dangerous weapon (including a
firearm) was possessed" in relation to the defendant's offense if
it involved drugs. Id.
Under this proposed deal, all three counts would have
been grouped for Guidelines calculation purposes. See U.S.S.G.
§ 3D1.2(c) (explaining that counts should be grouped "[w]hen one
of the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline
applicable to another of the counts"). Thus, his base offense
level under the Guidelines would have been 32. See U.S.S.G.
§ 2D1.1.
The government anticipated, moreover, that Hernández's
total offense level under this deal would have been 33. That was
so because the government intended to request a two-level
enhancement under U.S.S.G. § 3B1.1, which allows for an increase
of two or four levels for a "leader" or "organizer" of "a criminal
activity" depending on whether that activity was "extensive"; a
two-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(2)(B), which
imposes a two-level increase for a defendant who was also convicted
of a money-laundering offense pursuant to 18 U.S.C. § 1956; and a
three-level reduction for his acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a)-(b).
- 4 -
If Hernández had accepted this plea deal, given his
expected total offense level of 33 and his criminal history
category of I, his recommended sentencing range, per the
Guidelines, would have been 135-168 months of imprisonment.
Hernández, however, rejected the plea deal. He would not agree to
the application of the sentencing enhancement for being a leader
or organizer of criminal activity under U.S.S.G. § 3B1.1. He
instead entered a straight plea of guilty to each of the four
counts for which he had been charged in the indictment.
The United States Probation Office prepared a
presentence report ("PSR") based on Hernández's straight guilty
plea. Hernández filed various objections to it.
First, Hernández objected to the sentencing enhancement
of four levels that the PSR applied for his role as a leader or
organizer of an extensive criminal activity under U.S.S.G.
§ 3B1.1(a). See U.S.S.G. § 3B1.1(a) ("If the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive, increase by 4
levels.").
Second, Hernández objected to the two-level enhancement
under U.S.S.G. § 2D1.1(b)(1) that the PSR applied based on the
firearms seized from his codefendants. He argued that only his
codefendants had been in possession of the firearms on which the
- 5 -
enhancement was premised and that he could not have foreseen his
codefendants' possession of them.
Finally, Hernández disputed the PSR's finding that his
drug-trafficking offenses involved 200 kilograms of cocaine and
thus that his base offense level was 36. He argued that, even
though the venture was originally set to transport that amount of
cocaine, the offenses only involved the 60 kilograms of cocaine
that were actually delivered, which meant that his base offense
level should be 34. See U.S.S.G. § 2D1.1(c) (providing a base
offense level of 34 for offenses involving between 50-150 kilograms
of cocaine, and a base offense level of 36 for offenses involving
150-450 kilograms of cocaine).
The Probation Office amended the PSR to find Hernández
responsible for 60 kilograms of cocaine rather than 200 kilograms.
The amended PSR thus, after grouping all four counts pursuant to
U.S.S.G. § 3D1.2(c), calculated his base offense level to be 34,
see U.S.S.G. § 2D1.1(c)(3).
The amended PSR then applied a four-level enhancement
for Hernández's role as a leader or organizer, pursuant to U.S.S.G.
§ 3B1.1(a), as well as an enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(15)(C).1 The latter guideline provides for a two-level
1 Although the Sentencing Guidelines in effect when the
amended PSR was prepared in 2016 listed this enhancement under
§ 2D1.1(b)(15)(C), in the Guidelines in effect at Hernández's
- 6 -
enhancement when a defendant "receives an adjustment under §3B1.1"
and "the defendant was directly involved in the importation of a
controlled substance." Id. The application of each of those
enhancements brought Hernández's total offense level to 40.
The amended PSR also applied two more enhancements. It
applied the two-level enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(1), in connection with Hernández's coconspirators'
firearms possession. It then applied the two-level enhancement
pursuant to U.S.S.G. § 2S1.1(b)(2)(B), because of Hernández's
money-laundering convictions under 18 U.S.C. § 1956. The
application of these two additional enhancements brought his total
offense level to 44.
The amended PSR, however, also made one more
adjustment -- this time to Hernández's benefit. It applied a
three-level reduction for his acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a)-(b).
That adjustment reduced his total offense level to 41.
His criminal history category was I. The result was that the
amended PSR's recommended guideline sentencing range was 324-405
months of imprisonment.
After receiving the amended PSR, Hernández objected
again. He challenged the application of the leader or organizer
sentencing in 2019, that same enhancement is provided at
§ 2D1.1(b)(16)(C).
- 7 -
enhancement, U.S.S.G. § 3B1.1(a), arguing that instead of an
enhancement he deserved a two-level reduction pursuant to
§ 3B1.2(b) because his role was only that of a "minor" participant.
He also challenged the dangerous weapon enhancement under U.S.S.G.
§ 2D1.1(b)(1). Hernández additionally requested that he be given
a two-level safety-valve reduction pursuant to U.S.S.G. § 5C1.2,
which mitigates the harsh effect of mandatory minimum sentences on
certain first-time offenders who played only supporting roles in
drug-trafficking schemes and who provided testimony about their
involvement in the criminal activity. See United States v. Ortiz-
Santiago, 211 F.3d 146, 150–51 (1st Cir. 2000).
The government, for its part, disputed the amended PSR's
drug quantity determination. It argued that Hernández's sentence
should be based on a base offense level that reflected the entire
200 kilograms of cocaine that he originally promised to traffic
rather than only the 60 kilograms that were delivered.
The District Court accepted the defendant's guilty plea.
With respect to sentencing, the District Court initially followed
the government's recommendation and found that the drug quantity
was 200 kilograms of cocaine rather than the amended PSR's
recommended 60 kilograms. Accordingly, the District Court found
that Hernández had a base offense level of 36 rather than 34, as
the amended PSR had determined it to be. See U.S.S.G.
§ 2D1.1(c)(2) (providing a base offense level of 36 for
- 8 -
drug-trafficking offenses involving "[a]t least 150 KG but less
than 450 KG of Cocaine"). The District Court then followed the
amended PSR, however, by applying the same sentencing enhancements
and reductions that it had recommended.
The District Court found that the four-level enhancement
pursuant to U.S.S.G. § 3B1.1(a) for a leader or organizer applied
because the defendant was an "organizer" and "the criminal activity
involved five or more participants, and also . . . was extensive."
That finding, in turn, along with other reasons, caused the
District Court to reject Hernández's request for a safety-valve
reduction of two levels. But, that finding also resulted in the
District Court applying the two-level enhancement set forth in
U.S.S.G. § 2D1.1(b)(16)(C), which calls for those additional
levels to be added to a defendant's offense level when § 3B1.1(a)
applies and the offense involves the importation of controlled
substances.
With the total offense level then at 42, the District
Court applied two additional two-level enhancements. One was the
weapons enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), and the
other was the enhancement pursuant to U.S.S.G. § 2S1.1(b)(2)(B),
which was based on Hernández's money-laundering convictions.
Those enhancements brought the total offense level to 46.
Finally, the District Court applied the three-level
reduction for acceptance of responsibility pursuant to U.S.S.G.
- 9 -
§ 3E1.1(a)-(b). That adjustment resulted in a total offense level
of 43 rather than 41, which the amended PSR had calculated it to
be.
With this total offense level, and a criminal history
category of I, Hernández's recommended guideline sentencing range
was, the District Court noted, life imprisonment. But, the
District Court decided to apply a two-level downward variance by
"assuming" for sentencing purposes (notwithstanding its earlier
factual finding that the drug quantity involved in the drug
trafficking offenses was 200 and not merely 60 kilograms of
cocaine) that, consistent with the amended PSR's calculation,
Hernández's drug-trafficking offenses only involved "at least 50
kilos, but less than 150 kilos of cocaine," which would bring
Hernández's base offense level down to 34. See U.S.S.G.
§ 2D1.1(c)(3).
Thus, after grouping Hernández's counts of conviction
pursuant to § 3D1.2(c), the District Court applied Hernández's
sentencing enhancements to the base offense level of 34, resulting
in a total offense level of 41. Hernández's resulting Guidelines
sentencing range was 324-405 months of imprisonment, which is the
range for a person with that total offense level and a criminal
history category of I. The District Court then applied the
§ 3553(a) sentencing factors and sentenced Hernández to 324 months
of imprisonment for the drug-trafficking counts and 240 months of
- 10 -
imprisonment for the money-laundering counts, to be served
concurrently.
Hernández timely appealed his sentence.
II.
We start with Hernández's contention that the District
Court committed procedural errors in calculating his Guidelines
sentencing range. The alleged errors concern the application of
the various enhancements to which he had objected below, as well
as the District Court's refusal to apply one of the downward
adjustments that he had requested. Because Hernández was sentenced
in 2019, we apply the Guidelines in effect at that time, which
were the 2018 Guidelines. See United States v. Crudup, 375 F.3d
5, 8 (1st Cir. 2004) ("Normally, the sentencing judge is to apply
the guidelines version in effect at the time of sentencing."). We
find no merit to these challenges.
A.
Hernández first challenges the four-level "leader or
organizer" enhancement that the District Court applied pursuant to
U.S.S.G § 3B1.1(a). This enhancement requires a district court to
make "both a status determination -- a finding that the defendant
acted as an organizer or leader of the criminal activity -- and a
scope determination -- a finding that the criminal activity met
either the numerosity or the extensiveness benchmarks established
- 11 -
by the guideline." United States v. Tejada-Beltran, 50 F.3d 105,
111 (1st Cir. 1995).
The District Court found that Hernández satisfied the
status requirement based on a finding that he was an "organizer."
The District Court also found that the scope requirement was met
because "the criminal activity involved five or more
participants."
On appeal, Hernández does not contest the District
Court's scope finding. Thus, the only question for us concerns
Hernández's status: was he an "organizer" of the criminal
activity?
To qualify as an "organizer," "the defendant must have
exercised some degree of control over others involved in the
commission of the offense or he must have been responsible for
organizing others for the purpose of carrying out the crime."
United States v. Carrero-Hernández, 643 F.3d 344, 350 (1st Cir.
2011) (quoting United States v. Fuller, 897 F.2d 1217, 1220 (1st
Cir. 1990)). Specifically, the defendant "must have been the
organizer" not only of the general activity but also "of one or
more other participants" who were not "undercover law enforcement
officer[s]." U.S.S.G. § 3B1.1(a) cmts. nn.1-2; see United States
v. Arbour, 559 F.3d 50, 56 (1st Cir. 2009) ("[T]he guideline
commentary makes plain that a defendant needs only to have led or
organized one criminal participant, besides himself of course, to
- 12 -
qualify as a leader or organizer under § 3B1.1(a)."). Importantly,
"our cases distinguish between organizing criminal activities and
organizing criminal actors. Only the latter may be used to ground
an enhancement under § 3B1.1(a)." Carrero-Hernández, 643 F.3d at
350–51 (footnote omitted).
As we will explain, the District Court found that
Hernández, in the course of facilitating various aspects of the
drug-trafficking scheme, gave significant "instructions" to at
least one of his codefendants to help ensure the transfer within
Puerto Rico of what he thought was cocaine (although, by that time,
the undercover law enforcement agents had ensured that it was
actually fake). We review that factual finding for clear error,
see United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011),
and we conclude that the District Court did not clearly err in
making it, see United States v. Belanger, 890 F.3d 13, 36 (1st
Cir. 2018) ("Clear error cannot be said to exist unless 'on the
entire evidence [we are] left with the definite and firm conviction
that a mistake has been committed.'" (alteration in original)
(quoting United States v. Brown, 298 F.3d 120, 122 (1st Cir.
2002))); see also United States v. Ruiz, 905 F.2d 499, 508 (1st
Cir. 1990) ("[W]here there is more than one plausible view of the
circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous."). For that reason,
although the evidence of Hernández's general coordination of
- 13 -
criminal activities is not itself enough to show that he was an
"organizer," the entire record evidence suffices to show that the
District Court did not err in finding that he was.
The District Court did not specify the "instructions"
that it had in mind in finding that Hernández gave them. In its
brief to us, though, the government asserts that these
"instructions" included Hernández's direction to one of his
codefendants (and thus not an undercover agent) to drive the car
that was supposed to contain the cocaine that had been brought to
Puerto Rico so that it could be transferred to facilitate its
distribution.
Hernández does not dispute the government on this point.
Thus, the key question for us is whether the record suffices to
support the District Court's finding that Hernández gave that key
instruction to a codefendant to facilitate the venture. We
conclude that it does.
It is undisputed that Hernández thought that he was
coordinating the sea-transfer of cocaine to an individual who went
by the name "Looney Tunes," who would then bring the cocaine into
the Commonwealth, where it would be picked up for future
distribution. Unbeknownst to Hernández, however, Looney Tunes was
in fact not a single individual but a group of undercover Homeland
Security Investigations ("HSI") agents. According to the record,
Hernández's communications with Looney Tunes throughout the
- 14 -
venture were extensive. They concerned both the coordination of
the initial transfer of what was then real cocaine at sea from
Hernández's associates to Looney Tunes so that it could be brought
to Puerto Rico, as well as the planned transfer of it (though, by
then the undercover agents had swapped in sham cocaine) within the
Commonwealth from Looney Tunes back to Hernández's other
associates.2 It was in the course of carrying out that second
planned transfer of the cocaine that, the record supportably shows,
Hernández gave the "instruction" that provides the sufficient
basis for the District Court's "organizer" finding.
After Hernández reached out to Looney Tunes to
coordinate the transfer in Puerto Rico of what he thought was real
cocaine for cash, the record shows, Looney Tunes told Hernández
that the exchange would happen at the Pep Boys Auto Store at
Altamira in Guaynabo, Puerto Rico. At the appointed time, the
record further shows, Hernández and his codefendant, José Luis
2The record shows that Hernández had many communications with
Looney Tunes via BlackBerry messenger. These communications
included the coordination of the sea transfer of cocaine from
Hernández's associates, who arrived in a boat coming from the
Dominican Republic, to Looney Tunes, who came in a boat from Puerto
Rico. The record also shows that these communications resulted in
an agreement as to the amount of money that Hernández would pay
Looney Tunes for fuel expenses during the transfer at sea. And,
the record shows that when Hernández's associates who were aboard
their vessel from the Dominican Republic transferred only
approximately 60 kilograms of cocaine to Looney Tunes rather than
the promised 200 kilograms, it was Hernández who messaged with
Looney Tunes to sort out the disparity.
- 15 -
Hernández-Peña, arrived in a Honda and parked at the Pep Boys Auto
Store, while another codefendant, Gerardino, arrived in a Mazda.
At that point, the record reveals, an HSI undercover
agent whom Hernández thought was Looney Tunes told him that the
exchange spot to transfer the cocaine was being moved to the Tren
Urbano Martinez Nadal Station parking lot in Guaynabo. The record
shows that the following then transpired: Hernández exited the
Honda and got into the Mazda, which Gerardino was driving, and the
two men, together, then left the Pep Boys Auto Store parking lot
in the Mazda and drove to the Tren Urbano Martinez Nadal Station
parking lot.
According to the record, the HSI agent posing as Looney
Tunes informed Hernández -- exactly when is not clear -- that the
cocaine was inside a Ford Expedition that was parked at the
Martinez Nadal Station parking lot and that he should retrieve the
keys from the Ford and drive away in it. Significantly, the record
as presented on appeal does not indicate that the instruction from
the undercover agent to Hernández to get in the Ford and drive
away in it gave as an option that Hernández should instruct
Gerardino to do so in his stead. Nevertheless, the record shows,
after the agent had transmitted this instruction to Hernández about
getting into the Ford, it was Gerardino and not Hernández who got
out of the Mazda, entered the Ford that had the sham cocaine, and
then attempted to drive away in it.
- 16 -
Thus, the record permits the inference that Hernández
had instructed Gerardino to get into the Ford that contained the
sham cocaine and drive away in it and that Hernández had done so
on his own initiative rather than at another's direction. To be
sure, there is no direct evidence that Hernández gave this
instruction directing a coconspirator to carry out this critical
aspect of the venture or that in doing so he exercised his own
discretion. But, the inference that he chose to give that key
instruction at that critical moment on his own initiative draws
strength not only from the discrete sequence of events just
described concerning what happened in Puerto Rico but also from
the District Court's amply supported finding that Hernández "had
a complete understanding of the totality of the activity, before
and after," of the venture as a whole and thus that he was not
merely a bit player operating at its margins.
In disputing that the record supportably shows that
Hernández gave this instruction, Hernández does not contest that
he was instructed by the agents to drive the Ford that had the
sham cocaine or that, in the end, Gerardino was the one driving
it. He even admits that "[t]he agents instructed [him] to take
the Ford pick-up parked at the train station which had the drugs
inside and to leave the car in which he arrived with the money
- 17 -
inside."3 But, he contends, the sworn statement from Gerardino
that he rather than Hernández was "following the instructions of
another individual" when he rather than Hernández "went to exchange
the red Mazda for another vehicle" shows that, contrary to the
District Court's finding, Hernández did not "control[]" or
"exercise[] decision-making authority" over his coconspirator in
that instance.
We may assume to Hernández's benefit that Gerardino's
statement is best read to imply that the "another individual" to
whom he referred was not Hernández. But, even if we make that
assumption, we still conclude that the District Court did not
clearly err in finding as it did as to Hernández giving this
instruction.
The District Court could reasonably have disregarded
such a statement from Gerardino as not credible. United States v.
Appolon, 695 F.3d 44, 66 (1st Cir. 2012) ("[W]here there is more
than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous."). After all, Hernández fails to point to any evidence
in the record that indicates that the "individual" to whom
3Hernández also said the agents "directed [Hernández] to a
van parked at the train station and gave him instructions to
retrieve the car keys from the van's fueling area and drive away
in the van and to leave the Mazda CX-7 with the money in the
parking lot."
- 18 -
Gerardino referred was anyone but Hernández, as nothing in the
record indicates that Gerardino was in contact at that time with
anyone other than Hernández. By contrast, the evidence does show
that Hernández was the contact for Looney Tunes and had
communicated directly with him at the key moment about getting
into the Ford and driving it away.
We therefore conclude that the record evidence
supportably shows that Hernández, acting on his own initiative,
instructed Gerardino "to exchange the red Mazda for another
vehicle" and thus that the District Court did not clearly err in
finding that Hernández "gave instructions." Accordingly, because
the District Court supportably found that Hernández instructed a
coconspirator (and not an undercover agent) to perform this key
task in this criminal venture, we agree with the government that
the District Court committed no error in applying the four-level
sentencing enhancement pursuant to U.S.S.G. § 3B1.1(a), based on
a finding that Hernández was an "organizer."
B.
Hernández next argues that the District Court erred in
adding an additional two-level enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(16). That enhancement states: "If the defendant
receives an adjustment under § 3B1.1 (Aggravating Role) and the
offense involved 1 or more of the following factors . . .
[including that] the defendant was directly involved in the
- 19 -
importation of a controlled substance . . . [then] increase by 2
levels." We have just explained, though, that the District Court
did not err in applying the § 3B1.1 enhancement due to Hernández's
status as an organizer. Thus, this challenge fails, as Hernández
does not challenge the application of this enhancement on any other
ground.
C.
Hernández also challenges the District Court's refusal
to apply the so-called safety-valve reduction, which would reduce
his total offense level by two levels if it were applicable. See
U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). A prerequisite to
eligibility for the safety-valve reduction, however, is that "the
defendant was not an organizer, leader, manager, or supervisor of
others in the offense." U.S.S.G. § 5C1.2(a)(4). Because the
District Court supportably found that Hernández was an
"organizer," he is not eligible for this reduction. Thus, this
challenge also fails.
D.
That brings us to Hernández's challenge to the two-level
enhancement that the District Court imposed under U.S.S.G.
§ 2D1.1(b)(1), which applies "[i]f a dangerous weapon (including
a firearm) was possessed." We review the District Court's
interpretation and application of the Guidelines de novo, and its
- 20 -
factual findings for clear error. See United States v. Nuñez, 840
F.3d 1, 4 (1st Cir. 2016).
This enhancement "is applicable whether the weapon is
possessed by the defendant himself or by one of his
coconspirators." United States v. Gobbi, 471 F.3d 302, 313 (1st
Cir. 2006). Hernández does not dispute that although he was not
found to be in possession of a weapon himself, his codefendants,
Gerardino and De Morla, arrived at the location of the drug
transfer with weapons in their vehicles. He argues, however, that
because he was unaware that his codefendants possessed firearms,
the District Court erred in applying the enhancement. We do not
agree.
So long as it is "reasonably foreseeable that a co-
conspirator would possess a weapon in furtherance of the criminal
activity," a defendant need not actually be aware of the existence
of his coconspirator's weapon for the enhancement to apply. United
States v. Greig, 717 F.3d 212, 219 (1st Cir. 2013). In addition,
as we have explained before, "[a]bsent evidence of exceptional
circumstances, we think it fairly inferable that a codefendant's
possession of a dangerous weapon is foreseeable to a defendant
with reason to believe that their collaborative criminal venture
includes an exchange of controlled substances for a large amount
of cash." United States v. Bianco, 922 F.2d 910, 912 (1st Cir.
1991); see also United States v. Miranda-Martinez, 790 F.3d 270,
- 21 -
276 (1st Cir. 2015) (explaining that "firearms are common tools"
in drug-trafficking schemes (quoting Bianco, 922 F.2d at 912)).
Moreover, once it has been shown that a coconspirator possessed a
firearm during an offense and that it was reasonably foreseeable
to the defendant for the coconspirator to do so, "[t]he enhancement
should be applied . . . unless it is clearly improbable that the
weapon was connected with the offense." U.S.S.G. § 2D1.1(b)(1)
cmt. n.11(A).
The District Court did not clearly err in determining
that at least one of Hernández's "[co]conspirators possessed a
weapon during the offense" and that "it was foreseeable to have
that weapon present during the exchange" because "[t]his was a
very dangerous situation dealing with [and] involving significant
amount[s] of drugs and money." In fact, far from pointing to any
such exceptional circumstances here that could compel a different
conclusion than the one the District Court reached on that score,
Hernández admitted the situation was "extremely dangerous" because
the individuals on the other side of the drug-trafficking scheme
were "dangerous." Nor can Hernández show that he had met his
burden to demonstrate that it was "clearly improbable" that the
weapons involved were related to the drug-trafficking scheme, see
United States v. Anderson, 452 F.3d 87, 91 (1st Cir. 2006)
(explaining that "once the government shows that the firearm was
present during the commission of the offense," the defendant must
- 22 -
meet the "heav[y] burden . . . of establishing that it was clearly
improbable that the gun was used in connection with the offense"),
as his bare assertion that he was unaware that his codefendants
were carrying firearms is not sufficient to do so. See U.S.S.G.
§ 2D1.1(b)(1) cmt. n.11(A). Thus, the District Court committed no
error in applying this sentencing enhancement. See Greig, 717
F.3d at 219.
E.
Hernández's final procedural challenge to his sentence
is that the District Court erred in initially finding that his
drug-trafficking offenses involved 200 kilograms of cocaine. We
agree with the government, however, that any error was harmless.
The District Court, as we have explained, ultimately varied
downward by sentencing him as if the offenses involved only 60
kilograms of cocaine. The District Court thus imposed Hernández's
sentence as if the base offense level that he contends
applies -- 34 rather than 36 -- did apply. Nor does the record
indicate that the District Court would have varied downward even
more if it had initially found that Hernández's drug-trafficking
offenses involved 60 kilograms of cocaine rather than 200
kilograms. See Williams v. United States, 503 U.S. 193, 202–03
- 23 -
(1992) (explaining that if "the district court would have imposed
the same sentence" even without the error, it was harmless).
III.
Hernández's final challenge to his sentence is that it
is substantively unreasonable under 18 U.S.C. § 3553(a)(6), which
directs district courts "to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct." Hernández bases his argument on the fact
that his 324-month prison sentence for his drug-trafficking crimes
is significantly longer than the prison sentences of his
codefendants, Gerardino and De Morla. They were sentenced,
respectively, to 123 months and 120 months of imprisonment, while
Hernández was sentenced to 324 months.
We review preserved challenges to the substantive
reasonableness of a sentence for abuse of discretion. See United
States v. Viloria-Sepulveda, 921 F.3d 5, 8 (1st Cir. 2019). "A
sentence is substantively reasonable so long as it rests on a
plausible sentencing rationale and embodies a defensible result."
United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015)
(internal quotation marks omitted).
Section 3553(a)(6) warns against disparate sentences for
similarly situated codefendants, but "a district court may
consider differences and similarities between co-defendants at
sentencing." United States v. Marceau, 554 F.3d 24, 33 (1st Cir.
- 24 -
2009). In this case, Hernández was both convicted of offenses
that his codefendants were not and declined to enter into a plea
agreement while his codefendants did. In light of these
differences between Hernández and his codefendants, we must reject
his disparity challenge.
IV.
For the reasons stated, we affirm Hernández's sentence.
- 25 -