United States Court of Appeals For the First Circuit

No. 21-1198

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS SOTO-VILLAR, a/k/a Jairo,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

Thomas J. Gleason and Gleason Law Offices, P.C. on brief for appellant. Rachael S. Rollins, United States Attorney, and Mark T. Quinlivan, Assistant United States Attorney, on brief for appellee.

July 11, 2022 SELYA, Circuit Judge. In this sentencing appeal,

defendant-appellant Carlos Soto-Villar claims that his 188-month

sentence rests, in part, on two errors: the district court's

allegedly misguided attribution to him of all drugs found in an

apartment used by him and his coconspirators, and the district

court's allegedly erroneous application of the so-called "stash

house" enhancement. Concluding, as we do, that these claims do

not survive scrutiny, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. Throughout the latter part of 2018, the defendant and a

coconspirator, Angel Valdez, ran a drug-trafficking enterprise in

and around Methuen, Massachusetts. Valdez lined up shipments of

heroin and fentanyl from Mexican suppliers and recruited the

defendant to join him because of the defendant's local drug

distribution network.

Together, they stored the drugs that Valdez procured in

a third-floor apartment at 73 Tenney Street in Methuen. The

apartment was leased by the defendant and the defendant's

girlfriend, using aliases. The apartment was, for the most part,

unfurnished, but it was equipped with various drug paraphernalia

for weighing, cutting, and packaging drugs. Before selling the

drugs, the two coconspirators prepared, cut, weighed, and packaged

them inside the apartment.

- 2 - The record is murky on the issue of habitation, although

there is evidence indicating that the defendant slept in the

apartment (at least on some occasions). The district court made

no finding as to whether he actually lived there.

The defendant developed a working relationship with Ana

Caraballo (who had previously dated Valdez). Caraballo began

brokering drug deals for the defendant in the fall of 2018. In

late November, the defendant informed Caraballo of a recent

shipment of drugs (approximately ten kilograms of fentanyl) that

were ready to sell. Caraballo contacted Luis Cabrera, who had

said that he wanted to buy two kilograms of fentanyl. Unbeknownst

to Cabrera or to Caraballo, Cabrera's putative purchaser was

working with the Drug Enforcement Administration (DEA) as a

confidential source. The defendant agreed to sell Cabrera a

kilogram of fentanyl for $52,000.

On December 6, Caraballo collected the kilogram from the

defendant at the Tenney Street apartment. The next day, she

transferred the drugs to Cabrera and drove with him to rendezvous

with the putative purchaser. While they were en route to a

secondary location, state troopers stopped their vehicle, arrested

the pair, and seized the fentanyl.

Caraballo eventually admitted that she had secured the

drugs from the Tenney Street apartment. Armed with this

- 3 - information, DEA agents applied for a search warrant. In the

meantime, the apartment was placed under surveillance.

Once the search warrant was obtained, state troopers

approached the apartment and announced their presence. At that

point, three men fled from inside the apartment. These men were

later identified as the defendant, Valdez, and Felix Vanoy Pineda-

Lara. Valdez and Pineda-Lara avoided apprehension that night, but

the defendant was nabbed a short distance from the apartment.

In the ensuing search of the apartment, DEA agents seized

a substantial quantity of drugs,1 along with extensive evidence

that drugs were being stored, cut, weighed, and packaged there.

For example, the agents seized three blenders (used to mix drugs

with adulterants), a quantity of lactose (a cutting agent), two

digital scales, three steel drug presses, drug-packaging

materials, a vacuum sealer, and a spiral notebook consistent with

a drug ledger. What is more, the agents seized $15,500 in cash.

In due course, a federal grand jury sitting in the

District of Massachusetts returned an indictment, which (as

relevant here) charged the defendant with conspiracy to distribute

and to possess with intent to distribute 400 grams or more of

1 The seized drugs included 8,971.341 grams of fentanyl (including 1,815 grams of a mixture containing fentanyl and heroin), and 188.5 grams of heroin. This contraband was estimated to have a street value of roughly $500,000.

- 4 - fentanyl.2 See

. On May 26, 2020, a grand jury

returned a superseding indictment charging the defendant and

Valdez with a single count of conspiracy to distribute and to

possess with intent to distribute one kilogram or more of heroin

and 400 grams or more of fentanyl. See

Valdez and the

defendant were tried separately. Following a four-day trial and

two days of deliberation, a jury found the defendant guilty. As

part of the verdict, the jury determined that one kilogram or more

of heroin and 400 grams or more of fentanyl were reasonably

foreseeable by and attributable to him.3

For federal sentencing purposes, drug quantity plays a

key role in establishing a drug-trafficking defendant's base

offense level (BOL). See United States v. Ventura,

(1st Cir. 2003). Drugs are attributed to a defendant both from

the count(s) of conviction and from "'relevant' uncharged

conduct." United States v. Bradley,

(1st Cir.

1990) (quoting USSG §1B1.3(a)(3)). Put another way, drug

quantities not included in the count(s) of conviction may still be

attributed to the defendant if they were "bound up in the acts

'that were part of the same course of conduct or common scheme or

2The same indictment contained charges against Caraballo and Cabrera. Based on the drug quantities found by the jury, the defendant 3

faced a mandatory minimum sentence of ten years to life. See

(b)(1)(A)(vi), 846.

- 5 - plan as the offense of conviction.'" United States v. Sepulveda,

(1st Cir. 1993) (quoting USSG §1B1.3(a)(2)).

In the case of jointly undertaken criminal activity,

such as a conspiracy, a defendant is "not automatically saddled

with the full weight of the conspiracy's wrongdoing." Id. Even

so, he may be held responsible for drugs "bound up" in others'

acts that were reasonably foreseeable by him so long as those acts

were committed within the scope of the conspiracy and in

furtherance of it. Id.; see United States v. Garcia,

(1st Cir. 1992); see also USSG §1B1.3(a)(1)(B).

To bring uncharged acts and drug quantities into play at

sentencing, the government must establish an adequate connection

between the conduct and the offense(s) of conviction. See United

States v. Sklar,

(1st Cir. 1990). And it must

prove all drug quantities, including those reasonably foreseeable

within a conspiracy, by a preponderance of the evidence. See id.;

Sepulveda,

. The defendant's role in the conspiracy

is, of course, an important datum in establishing his

responsibility for uncharged conduct. See Garcia,

.

Once a defendant's BOL is determined, the court may make

various adjustments, both up and down, consistent with the

sentencing guidelines. The objective is to determine the

defendant's total offense level (TOL), which — when combined with

his criminal history category (CHC) — yields his advisory guideline

- 6 - sentencing range (GSR). See United States v. Platte,

(1st Cir. 2009); see also USSG Ch.5, Pt.A (Sentencing

Table).

With this backdrop in place, we return to the case at

hand. Following the jury's verdict, the district court ordered

the preparation of a presentence investigation report (PSI

Report). Among other things, the probation department's

investigation teased out a connection between the defendant and an

earlier incident. In November of 2018, the defendant and Valdez

allegedly sent Pineda-Lara to retrieve fifteen kilograms of

fentanyl from a truck driver in Sturbridge, Massachusetts. When

the authorities attempted to thwart the transaction, Pineda-Lara

abandoned his vehicle, discarded the bag of drugs, and avoided

apprehension by fleeing on foot. The authorities recovered the

fifteen kilograms of fentanyl from the roadside.

The district court convened the disposition hearing on

March 4, 2021. Early on, the court turned its attention to

determining the GSR. In the process, the court relied heavily on

recommendations contained in the PSI Report.

The PSI Report recommended that the defendant be held

responsible for 62,965.55 kilograms of converted drug weight.4

4When only one drug is considered at sentencing, the actual weight involved establishes the BOL. When — as in this case — more than one drug is involved, the quantity of each drug is multiplied by a conversion factor to yield "converted drug weight,"

- 7 - This drug weight was predicated on the kilogram of fentanyl that

the defendant delivered to Caraballo, the nine-kilogram assortment

of heroin and fentanyl seized at the Tenney Street apartment, and

the fifteen kilograms of fentanyl recovered from the uncharged

transaction between Pineda-Lara and the truck driver. The upshot

was a BOL of 36. See USSG §2D1.1(c)(2) (explaining that "[a]t

least 30,000 KG but less than 90,000 KG of Converted Drug Weight"

results in BOL of 36).

The PSI Report also recommended a two-level "stash

house" enhancement, concluding that the defendant maintained the

Tenney Street apartment as a premises for the purpose of

distributing a controlled substance. See id. §2D1.1(b)(12). With

this enhancement in place, the defendant's TOL of 38 and his CHC

of I called for a GSR of 235 to 293 months in prison. See USSG

Ch.5, Pt.A (Sentencing Table).

The defendant objected to the proposed drug quantity and

to the "stash house" enhancement. The government defended the

probation department's recommendations on both fronts. After

considering the parties' views, the district court concluded that

the fifteen kilograms of fentanyl tied to Pineda-Lara could not

fairly be attributed to the defendant. The court further concluded

so that quantities of different drugs may be combined into a single number for purpose of establishing the BOL and — ultimately — calculating the GSR. See USSG §2D1.1(c), n.(K).

- 8 - that the kilogram of fentanyl distributed to Caraballo and all the

drugs found inside the Tenney Street apartment were reasonably

foreseeable by the defendant and, thus, fairly attributable to

him. The court premised its inclusion of the drugs in the

apartment on a series of subsidiary findings: that the defendant

rented the apartment; that he was "deeply involved" in the

conspiracy, which utilized the apartment as a base of operations

for its drug-distribution activities; and that he used it for

storing, cutting, weighing, and packaging drugs.

The district court's findings triggered a revised BOL of

34. See id. §2D1.1(c)(3). The court then turned to the two-level

"stash house" enhancement, see id. §2D1.1(b)(12), and upheld it.

In this regard, the court stressed that the defendant was "firmly

placed" in the apartment — which he leased — "beyond any doubt."

The court emphasized the defendant's role in packaging the drugs

and dealing with Caraballo.

With a TOL of 36 and a CHC of I, the defendant's GSR was

188 to 235 months. See USSG Ch.5, Pt.A (Sentencing Table). After

hearing the arguments of counsel and the defendant's allocution,

the court imposed a bottom-of-the-range sentence: a 188-month

term of immurement. This timely appeal ensued.

II

On appeal, the defendant advances two interrelated

claims of error. First, he asserts that the district court erred

- 9 - when it attributed to him the totality of the drugs found in the

Tenney Street apartment. Second, he asserts that the district

court erred when it applied the "stash house" enhancement.5

Each of these claims was seasonably raised in the

district court and, thus, each of them is duly preserved for

appeal. See Platte,

.

A

Preserved claims of sentencing error are reviewed for

abuse of discretion. See Gall v. United States,

(2007); United States v. Cortés-Medina,

(1st

Cir. 2016). Abuse of discretion is not a monolithic standard of

review. See United States v. Ruiz-Huertas,

(1st

Cir. 2015); United States v. Flores-Machicote,

(1st Cir. 2013). Under this rubric, "we afford de novo review to

the sentencing court's interpretation and application of the

sentencing guidelines, assay the court's factfinding for clear

error, and evaluate its judgment calls for abuse of discretion."

Ruiz-Huertas,

.

In this case, the defendant's chief claim of error is

focused on the district court's subsidiary drug-attribution

5This claim of error is presented in a desultory fashion and without much clarity. Accordingly, it might well be deemed waived for lack of development. See United States v. Zannino,

(1st Cir. 1990). We nonetheless give the defendant the benefit of the doubt and address the claim head-on.

- 10 - findings. Such findings are factual findings and, thus, are

reviewed for clear error. See United States v. Huddleston,

(1st Cir. 1999). Similarly, the defendant's

objection to the use of the "stash house" enhancement constitutes

a factbound challenge and, thus, is reviewed for clear error. See

United States v. Jones,

(1st Cir. 2015). Under

this deferential standard, we must accept the district court's

findings unless, on the whole of the record, we form "a strong,

unyielding belief that a mistake has been made." United States v.

Cintrón-Echautegui,

(1st Cir. 2010) (quoting Cumpiano

v. Banco Santander P.R.,

(1st Cir. 1990)).

B

The defendant's chief claim of error challenges the

district court's attribution to him of the drugs found in the

apartment. He asserts that he did not rent the apartment, pointing

to what he says is an obvious dissimilarity between the signature

on the lease and the signature on his driver's license. He adds

that he was not a major player in the conspiracy but, rather,

merely a mid-level dealer. Finally, he notes the paucity of

surveillance data pinning him to the apartment.

Where, as here, a drug quantity finding is used to

develop a defendant's guideline range, the government has the

burden of proving the drug quantity by a preponderance of the

- 11 - evidence. Sepulveda,

. The record in this case

amply supports the sentencing court's drug-quantity finding.

To begin, the court carefully canvassed the record and

supportably determined that the defendant rented the Tenney Street

apartment. Similarly, the court supportably determined that the

defendant was "deeply involved" in the conspiracy. We briefly

discuss the basis for each of these subsidiary findings.

As a formal matter, the apartment was leased to "Emilio

Rivera." The record shows with conspicuous clarity, though, that

"Emilio Rivera" was a pseudonym used by the defendant. Indeed, it

was the name that he gave to the authorities when he was

apprehended and the name that appeared on the driver's license

that he carried on his person. Moreover, the co-tenant shown on

the lease was the defendant's girlfriend (also using an alias).

These facts provided a firm foundation for the district court's

findings that "Emilio Rivera" and the defendant were one and the

same and that the defendant — not an imposter — had rented the

apartment.

There was more. The record makes manifest that the

defendant — along with Valdez — used the apartment to store, cut,

weigh, and package large quantities of drugs to sell to the

conspiracy's customers. Caraballo visited the apartment on

several occasions and regularly saw the defendant there, among

"kilos" of drugs and drug paraphernalia for preparing, packaging,

- 12 - and distributing. She further testified that, on one occasion,

she purchased a large number of Ziplock bags at the defendant's

request and delivered them to the defendant at the apartment.

Similar bags, used for packaging drugs, were discovered at the

apartment during the search. In addition, the defendant fled from

the apartment on the night of his arrest and was found to be

carrying a cell phone containing images of drugs and drug

paraphernalia closely resembling those within the apartment.

The district court's factbound finding that the

defendant was "deeply involved" in the conspiracy is ironclad.

Importantly, the record reveals that the defendant was recruited

into the conspiracy because he had assembled a local sales network.

The evidence is compelling that — as the district court found —

the drugs within the apartment were to be sold in the ordinary

course of the conspiracy's operations through the defendant's

network. Given this evidence, the record permits a reasonable

inference that he was a critical cog in the machinery of the

conspiracy. After all, Caraballo testified that Valdez recruited

the defendant for the operation because he would be able to "move"

— that is, sell — the drugs more quickly, knowing more people in

the area. Typically, the person who is leading the sales effort

is as essential to the success of a business as the person who is

leading the procurement effort.

- 13 - A finding of attribution requires an individualized

determination of drug quantity, even when taking a conspiracy-wide

perspective. See United States v. Colón-Solís,

(1st Cir. 2004). This determination must be based on amounts

reasonably foreseeable by the defendant, contemplated within the

scope and in furtherance of the conspiracy. See

In making

such a finding, a sentencing court is entitled to draw reasonable

inferences from the facts before it. See Cintrón-Echautegui,

. Here — in light of the totality of the circumstances

— it strains credulity to argue that the district court

misperceived the record in attributing the drugs inside the

apartment to the defendant. Far from producing "a strong,

unyielding belief that a mistake has been made,"

, the

record validates the district court's drug-attribution

determination. It follows that nothing resembling clear error

infects that determination.

The defendant resists this conclusion. He complains

that he cannot be held responsible for the drugs in the apartment

because he was neither the ringleader of the conspiracy (Valdez,

he says, was the boss) nor the importer of the contraband. But

labels are not dispositive with respect to drug-quantity

attribution. See United States v. Mateo-Espejo,

(1st Cir. 2005) (noting that "courier" handled and, thus, was still

responsible for large drug quantity); United States v. Santos, 357

- 14 - F.3d 136, 141 (1st Cir. 2004) (similar). The proper inquiry

remains whether the defendant — a person "deeply involved" in the

conspiracy — reasonably could foresee that the drugs inside the

apartment were to be distributed in the ordinary course of the

conspiracy's operations. See USSG §1B1.3(a)(1), comment. (n.1);

see also Santos, 357 F.3d at 140; Colón-Solís,

.

On this record, we discern no clear error in the district court's

affirmative response to that inquiry. After all, even though

Valdez may have procured the drugs and assembled the inventory, it

was the defendant who spearheaded their distribution.

The defendant has one last shot in his sling. He argues

that because the authorities had not previously surveilled the

apartment to develop what he terms "historical evidence" about the

conspiracy, the drugs found there cannot be attributed to him.

This is whistling past the graveyard: surveillance evidence may

prove helpful in making a drug-attribution finding, but such

evidence is not a sine qua non for such a finding. See Cintrón-

Echautegui,

(noting that district courts may

generally rely upon information contained in PSI Report); Sklar,

(noting that sentencing court may rely on

"virtually any dependable information" to calculate drug

quantity). The question is not what historical evidence would

have revealed but, rather, whether the evidence presented was

sufficient to show that the defendant bore responsibility for the

- 15 - drugs in the apartment. See Cintrón-Echautegui,

;

Ventura,

; see also United States v. Tardiff,

(1st Cir. 1992) (explaining that sentencing court

has "broad discretion to determine what data is, or is not,

sufficiently dependable to be used in imposing sentence"). The

government surpassed that benchmark here.

C

This brings us to the two-level "stash house"

enhancement. We assume, favorably to the defendant, that his

challenge to this enhancement has been adequately developed. See

supra note 5.

The "stash house" enhancement provides in relevant part

that "[i]f the defendant maintained a premises for the purpose of

manufacturing or distributing a controlled substance," the

sentencing court may increase his offense level by two levels.

The government bears the burden of proving the applicability of

sentencing enhancements by a preponderance of the evidence. See

Jones,

; United States v. Paneto,

(1st Cir. 2011). An application note to the sentencing guidelines

explains that:

Subsection (b)(12) applies to a defendant who knowingly maintains a premises (i.e., a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution.

- 16 - Among the factors the court should consider in determining whether the defendant "maintained" the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.

Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.

USSG §2D1.1, comment. (n.17).

The application note fits this case like a glove, and

the record unquestionably substantiates the district court's

application of the enhancement. As we already have explained, the

court supportably found that the defendant rented the apartment.

Therefore, he had a possessory interest in it. Then the defendant

— in concert with Valdez — proceeded to use the apartment as the

nerve center of the conspiracy's operations. That usage was

continuous: drugs were regularly stored, cut, weighed, and

packaged there. The equipment and supplies needed to perform those

tasks were kept on the premises. Thus, the defendant exercised

dominion and control over both the apartment and the drugs. To

summarize succinctly, the defendant knowingly maintained the

- 17 - apartment as a premises for the packaging and distribution of

drugs; that activity constituted a principal use of the apartment;

and the defendant had a significant degree of control over the

drug-related activities.

That ends this aspect of the matter. We review the

district court's application of the enhancement only for clear

error. See Jones,

. Given the copious evidence in

the record and the reasonable inferences therefrom, we discern

none. See, e.g., United States v. Flores-Olague,

(7th Cir. 2013); United States v. Miller,

(8th Cir. 2012); United States v. Verners,

(10th Cir. 1995). And even if "the raw facts are susceptible to

more than one reasonable inference" — and we doubt that they are

— "a sentencing court's choice between those competing inferences

cannot be clearly erroneous." Jones,

. We conclude

that the "stash house" enhancement was appropriately deployed.

III

We need go no further. For the reasons elucidated above,

the defendant's sentence is

Affirmed.

- 18 -