United States Court of Appeals For the First Circuit

No. 22-1077

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS MIGUEL CONCEPCION-GULIAM,

Defendant, Appellant.

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

[Hon. William G. Young, U.S. District Judge]

Before

Kayatta, Selya, and Montecalvo, Circuit Judges.

Anthony D. Martin on brief for appellant. Rachael S. Rollins, United States Attorney, and Mark T. Quinlivan, Assistant United States Attorney, on brief for appellee.

March 10, 2023 SELYA, Circuit Judge. Defendant-appellant Carlos Miguel

Concepcion-Guliam challenges both his conviction and his sentence

on various grounds. Although his attack is multi-dimensional, we

conclude that all of its several components are without force.

Accordingly, we affirm.

I

We rehearse the relevant facts, recounting them "in the

light most hospitable to the verdict, consistent with record

support." United States v. Tkhilaishvili,

(1st Cir.

2019); see United States v. Norris,

(1st Cir.

2021); Casillas-Díaz v. Palau,

(1st Cir. 2006).

We then map the travel of the case.

On June 19, 2019, an employee of the Extra Space Storage

facility in Stoughton, Massachusetts, contacted the Stoughton

Police Department (SPD) to report suspected narcotics in Unit 171.

Rental payments on the unit had lapsed, and management permitted

an officer to observe the drugs (which were in plain view inside

the unit). SPD officers then obtained and executed a search

warrant for Unit 171. Although the unit had been rented by Janice

Bryant, the officers retrieved documents from within the unit

bearing the name "Jason Torres." Subsequent inquiry identified

"Jason Torres" as a pseudonym for Randy Guerrero. The search also

revealed a treasure trove of drug paraphernalia and drugs:

- 2 - blenders, scales, lactose (a cutting agent), sifters, plastic

baggies, and around sixty grams of fentanyl and valeryl fentanyl.

The next day, the SPD officers obtained and executed a

search warrant with respect to Unit 1435 — a second-floor unit at

the storage facility, which had been rented in the name of "Jason

Torres." Inside that unit, the officers found an assortment of

controlled substances, a blender, a scale, and plastic baggies.1

Once all the contraband was seized, the officers closed and latched

the door to Unit 1435, leaving a copy of the search warrant in

plain view atop a storage bin in the middle of the unit. They

then set up surveillance.

About three hours later, an SUV entered the storage

facility and parked at the entrance leading up to the second floor.

The defendant exited the vehicle and entered the facility.

Approximately twenty seconds later, he sprinted back to the SUV,

jumped into the driver's seat, and began to reverse. By then,

police officers in marked cruisers blocked his path. After

momentarily stopping, the defendant accelerated and crashed into

one of the cruisers. He was subsequently arrested, and a search

1The drug cache found in Unit 1435 was as follows: 1,080 grams of fentanyl, acetyl fentanyl, valeryl fentanyl; 0.2 grams of fentanyl and valeryl fentanyl; 663.1 grams of fentanyl; 17.1 grams of cocaine base; and 970.4 grams of cocaine. The quantities of fentanyl and cocaine were packaged both in individual baggies containing less than two grams each and in larger pressed bricks (packaged in vacuum-sealed bags).

- 3 - incident to his arrest recovered four grams of fentanyl on his

person. The packaging of that fentanyl was consistent with the

individual packaging of the fentanyl located in Unit 1435.

On July 24, 2019, a federal grand jury sitting in the

District of Massachusetts returned an indictment charging the

defendant with attempted possession with intent to distribute 400

grams or more of fentanyl. See

(a)(1),

841(b)(1)(A)(vi), 846. The defendant maintained his innocence,

and on February 24, 2020, he moved to suppress, among other things,

his arrest, all evidence obtained incident to his arrest, and all

evidence seized from the two storage units. But days before the

scheduled hearing on his motion to suppress, the defendant withdrew

his motion.2

Trial began on June 2, 2021. The government called as

witnesses SPD Detective Robert Kuhn, Janice Bryant, SPD Officer

Steven Camara, and Drug Enforcement Administration Task Force

Officer Brian Simpkins. At the close of the government's case in

chief, the defendant moved for judgment of acquittal. See Fed. R.

2 A few days before trial, the defendant filed a motion in limine, seeking to preclude the government from introducing a golconda of evidentiary items, including "[a]ll items seized when [the defendant] was arrested and taken at gunpoint into custody." The district court denied this motion in an electronic order on June 1, 2021. The parties make no mention of this motion and order in their appellate briefs, and we deem any objection to the electronic order to be waived. See United States v. Zannino,

(1st Cir. 1990).

- 4 - Crim. P. 29(a). The district court denied his motion. The defense

rested without calling any witnesses or presenting any evidence,

and the defendant renewed his motion for judgment of acquittal.

See

That motion, too, was denied. The court submitted the

case to the jury, which found the defendant guilty.

Following the jury's verdict, the defendant filed four

post-trial motions seeking either judgment of acquittal or a new

trial. See

(c). In an electronic order, the district court

denied all four motions.

The disposition hearing was held on October 27, 2021.

The court adopted the presentence investigation report, which

delineated a total offense level (TOL) of thirty-four and a

criminal history category of I. It then reduced the TOL by two

levels and set the guideline sentencing range at 121 to 151 months.

The prosecutor asked the court to impose a bottom-of-

the-range sentence: 121 months. Defense counsel submitted "that

the appropriate sentence [for the defendant] would be something

between the 0 time received by Ms. Bryant [who rented Unit 171]

and the 72 months received by Mr. Guerrero [who allegedly owned

the drugs in Unit 1435]." In the end, he asked for a "time served"

sentence (roughly twenty-six months).

The district court queried the prosecutor as to why the

defendant should receive a longer sentence than Guerrero (the

putative owner of the drugs). The prosecutor replied that Guerrero

- 5 - was not charged for the same conduct: Guerrero's "was a separate

matter involving different drugs on different occasions that

didn't involve this defendant." Following the defendant's

allocution, the court imposed a 108-month term of immurement. In

explaining its sentence, the court noted, among other things, that

the defendant's conduct was not an isolated event but that the

evidence showed that he had been selling a significant quantity of

drugs for over a year.

This timely appeal ensued.

II

In this venue, the defendant advances several

assignments of error. First, he launches a Fourth Amendment

challenge to his arrest and to the seizure of evidence from his

person. Second, he challenges the admission of what he curiously

terms "lay opinion testimony." Third, he mounts a sufficiency-

of-the-evidence claim. Fourth, and finally, he raises claims of

sentencing error. We address these matters sequentially.

A

We begin with the defendant's Fourth Amendment

challenge: his claim that his arrest and the subsequent search of

his person were unreasonable. This claim does not get out of the

starting gate. When a defendant raises a Fourth Amendment claim

before the district court and subsequently withdraws that claim,

he has waived the claim and is precluded from resurfacing it on

- 6 - appeal.3 See United States v. Orsini,

(1st Cir.

2018) (explaining that once waived, a claim of error ordinarily

may not be resurrected on appeal); United States v. Rodriguez,

(1st Cir. 2002) (explaining that "[a] party waives

a right when he intentionally relinquishes or abandons it"). That

is precisely the situation here: "[a] party who identifies an

issue, and then explicitly withdraws it, has waived that issue."

Rodriguez,

.

B

The defendant next objects to what he styles as Detective

Kuhn's "lay opinion testimony." Despite this generic reference,

though, the only "testimony" that the defendant singles out is

Detective Kuhn's purported state-of-mind testimony and,

specifically, "whether [the defendant] attempted to open the door

of the storage unit." This claim of error falls only awkwardly —

if at all — under the "lay opinion testimony" label, see Fed. R.

Evid. 701; United States v. Valbrun,

(1st Cir.

2017), and — more importantly — reflects an effort to reinvent the

record. As such, the claim of error founders.

3 We note that "the waiver rule may 'admit[] of an occasional exception' in extraordinary circumstances." United States v. Orsini,

(1st Cir. 2018) (alteration in original) (quoting Nat'l Ass'n of Soc. Workers v. Harwood,

(1st Cir. 1995)). The defendant does not argue that extraordinary circumstances are present here. And in all events, we discern none.

- 7 - We ordinarily review claims relating to the admission or

exclusion of evidence for abuse of discretion. See United States

v. Kilmartin,

(1st Cir. 2019). Here, however,

the defendant did not object below to the admission of the evidence

that he now challenges.4 Our review, therefore, is only for plain

error. See United States v. Etienne,

(1st Cir.

2014); United States v. Duarte,

(1st Cir. 2001).

Plain error review is "not appellant-friendly." United

States v. Rodriguez,

, 634 n.1 (1st Cir. 2019). To

prevail under plain error review, the defendant must carry the

devoir of persuasion as to each of "four showings: (1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Duarte,

; see United

States v. Pinkham,

(1st Cir. 2018).

We need not tarry. Here, Detective Kuhn did not offer

any testimony as to the defendant's state of mind. He only

testified as to what he personally had observed: that — while

4 In the court below, the defendant did object to the admission of lay opinion testimony on other grounds, including as it related to the modus operandi of drug traffickers. He did not object, however, to Detective Kuhn's purported state-of-mind testimony. It is well settled that "an objection to the admission of evidence on one ground does not preserve other grounds for appeal." United States v. Iwuala,

(1st Cir. 2015).

- 8 - surveilling the storage facility — he saw the defendant arrive in

an SUV and enter the only door leading up to the second floor.

About twenty seconds later, the defendant sprinted out of the

building. After the defendant's arrest, Detective Kuhn went to

the second floor and observed that the door to Unit 1435 was open

even though the officers had closed it following their execution

of the search warrant three hours earlier. Detective Kuhn added

that the facility had been under surveillance, that neither he nor

any other officer had opened that door since executing the search

warrant, and that no other person had entered that portion of the

facility. The inference was virtually inescapable — though not

explicitly stated by Detective Kuhn — that the defendant must have

opened the door.

Notably absent from Detective Kuhn's testimony is any

mention of the defendant's state of mind. Detective Kuhn's

testimony focused exclusively on the defendant's actions, as

observed by him. The district court did not err — let alone

plainly err — in allowing this testimony. See Fed. R. Evid. 602.

C

We turn next to the defendant's challenge to the

sufficiency of the evidence. "We review preserved objections to

evidentiary sufficiency de novo." United States v. Gobbi,

(1st Cir. 2006); see Kilmartin,

. In

conducting this tamisage, we scrutinize all the evidence in the

- 9 - light most hospitable to the jury's verdict, draw all reasonable

inferences to the government's behoof, "and ask whether a rational

jury could find that the government proved all the elements of the

offense beyond a reasonable doubt." United States v. Fuentes-

Lopez,

(1st Cir. 2021); see United States v.

Rodríguez-Vélez,

(1st Cir. 2010).

In this instance, the defendant was convicted of

attempted possession with intent to distribute 400 grams or more

of fentanyl. "To prove attempt, the government must show that a

defendant intended to commit the substantive offense and that he

took a substantial step toward its commission." Gobbi,

. Here, the substantive offense was possession of a

controlled substance with intent to distribute. See

(a)(1), 841(b)(1)(A)(vi), 846; see also United States v.

García-Carrasquillo,

(1st Cir. 2007).

"[P]ossession may be either actual or constructive." Gobbi,

. "Actual possession is 'the state of immediate, hands-

on physical possession.'"

(quoting United States v. Zavala

Maldonado,

(1st Cir. 1994)).

On appeal, the defendant complains that the government

failed to prove beyond a reasonable doubt both that he intended to

possess the fentanyl found in Unit 1435 and that he intended to

distribute it. We do not agree.

- 10 - As a start, a jury reasonably could conclude — as this

jury did — that the defendant intended to possess the fentanyl

found in Unit 1435 and that he took a substantial step toward

effectuating that possession. Detective Kuhn testified that after

seizing the drug paraphernalia and fentanyl from the unit, the

officers left a copy of the search warrant on top of a storage bin

inside the unit. The warrant was placed in a conspicuous manner

so that anyone entering the storage unit "would see it

immediately." The officers then closed the storage unit and

commenced surveillance.

Approximately three hours later, Detective Kuhn observed

the defendant enter the storage facility and park next to the

entrance leading up to the second floor where Unit 1435 was

located. The defendant left the vehicle, went through the door,

"and less than 20 seconds [later] appeared in a full sprint back

towards th[e] black SUV." Following the defendant's arrest,

Detective Kuhn returned to Unit 1435 and found the door to the

storage unit open. Detective Kuhn testified that neither he nor

any other officer had opened the door. He also testified that no

one else had entered the facility during the relevant time frame.

Based on this testimony, the jury reasonably could have

inferred that the defendant took a substantial step toward

possessing the fentanyl inside Unit 1435 and that he intended to

possess those drugs. This inference was reinforced by the fact

- 11 - that the defendant carried corner bags that were consistent with

those found in Unit 1435 in size, color, and texture.

Similarly, a jury reasonably could infer that the

defendant intended to distribute the fentanyl. "An inference of

intent to distribute may be drawn from the circumstances

surrounding possession," including the defendant's statements and

conduct and whether the drug quantity was "too large for personal

use only." United States v. Bobadilla-Pagán,

(1st

Cir. 2014); see United States v. Mendoza-Maisonet,

(1st Cir. 2020).

The record in this case makes manifest that the defendant

intended to distribute the fentanyl. For one thing, Bryant

identified the defendant as a drug courier. Bryant testified that

she regularly purchased fentanyl from a man she identified as

"Junior." In the beginning, Junior delivered the fentanyl to her

himself, but eventually, others started delivering the fentanyl

that she purchased from him. Bryant identified the defendant as

one of those delivery persons: she stated that she met with the

defendant "[a]lmost every day" for "[m]any months" to purchase

fentanyl.

For another thing, the quantity and packaging of the

fentanyl was consistent with that intended for distribution.

Detective Kuhn testified that vacuum-sealed bags are used "[t]o

compress the narcotics for transportation purposes" so as to

- 12 - facilitate subsequent sales and that corner bags are used "[f]or

distribution purposes." The jury was entitled to credit these

statements, see Mendoza-Maisonet,

, and, at any rate,

the jury reasonably could have inferred that the fentanyl — given

the quantity found — was not intended for personal use but, rather,

for distribution, see United States v. Ayala-García,

(1st Cir. 2009) ("[A] large amount and individual packaging of

drugs is sufficient to demonstrate an intent to distribute for

purposes of section 841(a)(1).").

We add, moreover, that these inferences were

strengthened by the defendant's on-the-spot conduct. Evidence of

flight may form a basis for an inference of consciousness of guilt.

See United States v. Benedetti,

(1st Cir. 2005).

Here, the defendant's hasty getaway attempt (which included

frantically accelerating his vehicle in reverse and crashing it

into a police cruiser) was fertile ground for an inference of

consciousness of guilt.

In an effort to cushion the clout of this evidence, the

defendant argues that Detective Kuhn's testimony is "[d]eficient"

because "there [was] no direct evidence to support" the conclusion

that the defendant entered the storage facility with the intent to

possess and to distribute the fentanyl. Direct evidence, though,

is not essential to ground a conviction; circumstantial evidence

alone may suffice. See United States v. Ortiz,

, 711

- 13 - (1st Cir. 1992). And the circumstantial evidence here was

powerful: it fully supported the jury's determination that the

defendant sought to possess the fentanyl in the unit in order to

distribute it.

In a last-ditch effort to tip the scales, the defendant

argues that Detective Kuhn's testimony is "[s]peculative." He

suggests that "it is plausible to assume" that the defendant was

at the storage facility to meet a drug dealer. But this suggestion

is plucked from thin air: there is simply no evidence in the

record to support it. And, moreover — even if we assume its

plausibility — our task is not to choose among plausible though

competing inferences but, rather, to "honor the jury's evaluative

choice." Rodríguez-Vélez,

.

That ends this aspect of the matter. Considering all

the evidence presented and the reasonable inferences therefrom in

the light most favorable to the jury's verdict, we hold that the

evidence was sufficient to support the defendant's conviction for

attempted possession with intent to distribute fentanyl.

D

This brings us to the defendant's claims of sentencing

error. The defendant contends that his sentence is both

procedurally infirm and substantively unreasonable. We examine

these contentions separately. See United States v. Clogston,

(1st Cir. 2011).

- 14 - 1

The defendant's claim of procedural error centers on the

district court's explanation of the sentence imposed. When — as

in this case — a defendant fails to raise a claim of procedural

error in the court below, our review is only for plain error. See

United States v. Rijos-Rivera,

(1st Cir. 2022);

Duarte,

. Because we discern no error — plain or

otherwise — the defendant's claim fails.

When imposing a sentence, the court is obligated to

"state in open court the reasons for its imposition of [a]

particular sentence."

(c); see United States v.

Vega-Salgado,

(1st Cir. 2014). This obligation

does not require that a sentencing court address each of the

sentencing factors limned in

(a) but, rather, that

it "identify the main factors driving its determination." United

States v. Sepúlveda-Hernández,

(1st Cir. 2016).

The court below did just that. After hearing from the

government, defense counsel, and the defendant, the district court

pronounced its downwardly variant sentence. It then succinctly

explained its sentencing determination, noting that the

defendant's offense conduct was not a "mistake." Instead — the

court elaborated — the evidence showed that the defendant was

"selling drugs . . . for well more than a year and this [entailed]

a vast quantity of drugs." The court took into account mitigating

- 15 - factors, commenting that the defendant was "a good family man" and

that separation from his daughter would be "terrible." Given this

focus, we cannot give credence to the defendant's complaint that

the court's pronouncement of sentence was "bereft of any discussion

or consideration of [his] particular circumstance[s]."

Relatedly, the defendant assails the sentencing court

because it "fail[ed] to address the question of sentencing

disparity." This assault misses the mark.

We agree that in imposing sentences, courts are mandated

"to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct."

(a)(6); see United States v. Rivera-Gonzalez,

(1st Cir. 2010). To make out a successful claim

of sentencing disparity, though, a defendant "must compare

'apples . . . to apples.'" United States v. Bedini,

(1st Cir. 2017) (alteration in original) (quoting United States

v. Mateo-Espejo,

(1st Cir. 2005)). A claim of

sentencing disparity "will not succeed if there are 'material

differences between [the complaining defendant's] circumstances

and those of [his] more leniently punished confederates.'" United

States v. García-Sierra,

(1st Cir. 2021) (first

alteration in original) (quoting United States v. Galindo-Serrano,

(1st Cir. 2019)).

- 16 - The court below was sensitive to the possibility that

sentencing disparities might arise. The court asked the prosecutor

why the defendant "should . . . get more [time] than" Guerrero

(who was sentenced to seventy-two months in prison). The

prosecutor explained — without contradiction — that "Guerrero was

not actually charged . . . for the same conduct." She elaborated

that the defendant was comparing "apples and oranges" because

Guerrero's situation "was a separate matter involving different

drugs on different occasions." On this record, we cannot say that

the sentencing court erred in determining that there was no

sentencing disparity.

Nor does the record suggest any disparity with respect

to Bryant. Even though the district court did not specifically

inquire as to why the defendant should serve more time in prison

than Bryant, there is no indication in the record that Bryant was

charged with any crime.5 Moreover, her history of criminal

convictions (if any) is unknown. Given these uncertainties, she

is simply not a fair comparator. And because the court adequately

The defendant's plaint that Bryant "was doing exactly what 5

[he] was purportedly doing, but . . . faced no charges" is unavailing. Even assuming that the defendant and Bryant engaged in comparable misconduct, it is entirely "within the government's discretion to charge similarly situated defendants differently. Only when a prosecutor discriminates against defendants based on impermissible criteria such as race or religion is a prosecutor's discretion subject to review and rebuke." United States v. Rodriguez,

(1st Cir. 1998) (footnote omitted). There is no such allegation here.

- 17 - explained the sentence it imposed, the defendant's claim of

procedural error fails.

2

We review the substantive reasonableness of a sentence

for abuse of discretion. See Holguin-Hernandez v. United States,

(2020). "There is no one reasonable

sentence in any given case but, rather, a universe of reasonable

sentencing outcomes." Clogston,

. In assaying the

reasonableness of a challenged sentence, we ask "whether the

sentence falls within this broad universe." United States v.

Rivera-Morales,

(1st Cir. 2020). A sentence will

find a home within this broad universe if it rests on "a plausible

rationale and . . . represents a defensible result."

And

when — as in this case — a defendant challenges a downwardly

variant sentence, he must carry a particularly heavy burden to

show that the length of the sentence imposed is unreasonable. See

United States v. deJesús,

(1st Cir. 2021); United

States v. Millán-Machuca,

, 32 (1st Cir. 2021).

Here, the sentencing court's rationale was plausible.

As we already have explained, the court's reasoning stressed the

gravity of the offense and the defendant's relevant conduct. So,

too, the sentence imposed represented a defensible result. The

defendant was charged with attempting to possess with intent to

distribute 400 grams or more of fentanyl. Fentanyl is an extremely

- 18 - dangerous drug, widely reputed to be the modern-day equivalent of

the Grim Reaper. And to heighten the seriousness of the

defendant's conduct, the evidence at trial showed that he had been

peddling fentanyl for over a year, in what the district court

supportably described as "vast" quantities. Given these facts, we

cannot say that the downwardly variant sentence that the district

court imposed was beyond the universe of reasonable sentences.

The defendant attempts to do double duty with his claim

of sentencing disparity by recasting it as a claim of substantive

unreasonableness. But it is no more convincing the second time

around. As we already have pointed out, the defendant does not

base this claim on an apples-to-apples comparison. And in the

absence of any such comparator, the claim shrivels. See United

States v. González-Barbosa,

(1st Cir. 2019).

No more need be said. We find the defendant's sentence

to be substantively reasonable.

III

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

the defendant's conviction and sentence are

Affirmed.

- 19 -