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

,

841(a)(1) and (b)(1)(A)(ii); one count of attempted possession

with intent to distribute controlled substances in violation of

(a)(1), (b)(1)(A)(ii),

; and two counts

- 2 - of money laundering in violation of

(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

; 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

. 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,

, 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,

(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,

(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,

(1st Cir.

2011) (quoting United States v. Fuller,

(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,

(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,

(1st Cir. 2011),

and we conclude that the District Court did not clearly err in

making it, see United States v. Belanger,

(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,

(1st Cir.

2002))); see also United States v. Ruiz,

(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,

(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;

(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,

(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,

(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,

(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,

(1st Cir.

1991); see also United States v. Miranda-Martinez,

,

- 21 - 276 (1st Cir. 2015) (explaining that "firearms are common tools"

in drug-trafficking schemes (quoting Bianco,

)).

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,

(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,

.

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,

, 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

(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,

(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,

(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,

(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 -