NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

Nos. 18-3538, 18-3586, 18-3590, 18-3664, 19-2909 & 19-2917 ____________

UNITED STATES OF AMERICA

v.

JESUS BURGOS-MONTANEZ, Appellant in 18-3538 JEAN CARLOS VEGA-ARIZMENDI, Appellant in 18-3586 JOSE R. HODGE, Appellant in 18-3590 SERGIO QUINONES-DAVILA a/k/a Chulin a/k/a Pai, Appellant in 18-3664 OMY A. GUTIERREZ-CALDERON, Appellant in 19-2909 ANIBAL A. VEGA-ARIZMENDI, a/k/a Bebo, Appellant in 19-2917 ____________

On Appeal from the District Court of the Virgin Islands (D.C. No. 1-16-cr-00009) District Judge: Honorable Wilma A. Lewis ____________

Argued on December 8, 2022 *

Before: CHAGARES, Chief Judge, GREENAWAY, JR. and FISHER, Circuit Judges.

(Filed: April 4, 2023)

* Counsel for five of the Defendants participated in oral argument. The sixth, Yohana Manning, counsel for Jesus Burgos-Montanez, did not participate in argument, as he was on medical leave. This court offered Attorney Manning an opportunity to reschedule argument, which he declined on January 24, 2023. Yohana M. Manning Manning Legal Services 2120 Company Street, Suite 2 Christiansted, VI 00820 Counsel for Appellant Jesus Burgos-Montanez

Robert J. Kuczynski ARGUED Law Office of Beckstedt & Associates 2162 Church Street Christiansted, VI 00820 Counsel for Appellant Jean Carlos Vega-Arizmendi

Renee D. Dowling ARGUED Law Office of Renee D. Dowling P.O. Box 1047 Christiansted, VI 00821 Counsel for Appellant Jose R. Hodge

Kye Walker ARGUED The Walker Legal Group 2201 Church Street Suite 16AB, 2nd Floor Christiansted, VI 00820 Counsel for Appellant Sergio Quinones-Davila

Jennie M. Espada-Ocasio ARGUED P.O. Box 13811 San Juan, PR 00908 Counsel for Appellant Omy A. Gutierrez-Calderon

Eszart A. Wynter, Sr ARGUED 27 Estate Whim, P.O. Box 1847 Frederiksted, VI 00841 Counsel for Appellant Anibal A. Vega-Arizmendi

Delia L. Smith, United States Attorney Adam Sleeper, Assistant United States Attorney ARGUED Everard E. Potter Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802 Counsel for Appellee

2 ___________

OPINION * ___________

FISHER, Circuit Judge.

These consolidated appeals arise from a lengthy drug conspiracy trial involving

six defendants: Jesus Burgos-Montanez, Jose Hodge, Jean Carlos Vega-Arizmendi,

Anibal Vega-Arizmendi 1, Sergio Quinones-Davila, and Omy Gutierrez-Calderon. 2 From

2014 to 2016, Defendants conspired to smuggle drugs onto St. Croix by boat. They were

eventually convicted of conspiracy to possess with intent to distribute more than five

kilograms of cocaine, as well as either possession or attempted possession of cocaine.

They appeal, arguing errors occurred at trial and sentencing. For the reasons set forth

below, we will affirm the convictions and sentences of all Defendants.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Because Jean Carlos and Anibal share a last name, we use their first names. 2 This was the Defendants’ second trial involving the drug conspiracy. The first trial ended in a mistrial, so they were re-tried in 2019.

3 3

Before discussing the merits of the Defendants’ appeal, we note an error made by the Defendants that potentially results in the forfeiture of some of their arguments.

While the appeal was pending, our Clerk’s Office encouraged the Defendants to

adopt, pursuant to Fed. R. App. P. 28(i), portions of one another’s briefs to minimize repetition. Defendants Jean Carlos, Gutierrez-Calderon, Hodge and Quinones-Davila

attempt to incorporate all arguments raised by their co-Defendants by including blanket

statements of incorporation in their briefs. This is insufficient. Defendants must make clear the specific issues they are incorporating; otherwise, they have forfeited the issue on

appeal. United States v. Williams,

, 339 n.7 (3d Cir. 2020). “[G]eneral

statements of adoption under Rule 28(i) will not be regarded.”

This Court will not “serve as a Defendant’s lawyer, ‘scour[ing] the record’ for him and determining ‘which

of the many issues of his codefendants [are] worthy of our consideration.’”

(quoting

United States v. Fattah,

, 146 n.9 (3d Cir. 2019)). Thus, any arguments

Defendants attempt to incorporate are forfeited.

Defendants challenge their convictions based on the sufficiency of the evidence.

We review a district court’s denial of a motion for judgment of acquittal de novo. United

States v. Hoffert,

(3d Cir. 2020). In conducting our de novo sufficiency

of the evidence inquiry, we view “the record in the light most favorable to the

The District Court had jurisdiction under

and

. 3

This Court has jurisdiction under

(final decisions).

4 prosecution to determine whether any rational trier of fact could have found proof of guilt

beyond a reasonable doubt.” United States v. Caraballo-Rodriguez,

(3d Cir. 2013) (internal quotation marks, citation, and alteration omitted).

To succeed on Count One, conspiracy to possess with intent to distribute more

than five kilograms of cocaine from January 2014 to March 2016, in violation of

(a), 841(b)(1)(A)(ii) and 846, the Government needed to prove the

following: “(1) a unity of purpose between the alleged conspirators; (2) an intent to

achieve a common goal; and (3) an agreement to work together toward that goal.” United

States v. Pressler,

(3d Cir. 2001). Counts Two through Five are

attempted possession with the intent to distribute more than five kilograms of cocaine; to

convict, the jury must have been persuaded beyond a reasonable doubt that each

defendant “(1) acted with the requisite intent to violate the statute, and (2) performed an

act that, under the circumstances as he believes them to be, constitutes a substantial step

in the commission of the crime.” United States v. Tykarsky,

(3d Cir.

2006). Count Six charged possession with intent to distribute five or more kilograms of

cocaine, in violation of 21 U.S.C. §§§ 841(a), 841(b)(1)(A)(ii), 846 and

,

where the Government needed to prove that each Defendant “(1) knowingly possessed

[the] controlled substance with (2) the intent to distribute it.” United States v. Iglesias,

(3d Cir. 2008) (citation omitted). Counts Two through Six were

brought under the theory of aiding and abetting, meaning the Government also needed to

prove beyond a reasonable doubt that a substantive crime was committed, the Defendant

5 knew a crime was committed, and he “acted with intent to facilitate it.” United States v.

Petersen,

(3d Cir. 2010) (citation omitted).

1. Count One

Defendants Quinones-Davila, Burgos-Montanez, Gutierrez-Calderon, and Anibal

Vega-Arizmendi challenge the sufficiency of evidence supporting Count One, conspiracy

to possess with intent to distribute more than five kilograms of cocaine from January

2014 to March 2016. A conviction for conspiracy requires a unity of purpose and intent

among the conspirators, along with an agreement to work together. Pressler,

.

Quinones-Davila argues there was insufficient evidence to support his conviction

because he and Hodge refused to work together, meaning there were two separate

conspiracies—not one, as alleged in the indictment. A conviction must be vacated when

the number of conspiracies charged in the indictment and proved at trial differs and the

difference “prejudices a substantial right of the defendant.” United States v. Kelly,

(3d Cir. 1989). To determine whether a group of individuals was engaged

in a single conspiracy or multiple conspiracies, we consider: (1) “whether there was a

common goal among the conspirators”; (2) “whether the agreement contemplated

bringing to pass a continuous result that [would] not continue without the continuous

cooperation of the conspirators”; and (3) “the extent to which the participants overlap in

the various dealings.” United States v. Kemp,

(3d Cir. 2007) (quoting

Kelly,

).

6 There was sufficient evidence for a rational jury to find a single conspiracy, as

there was a common goal to retrieve cocaine in the waters of St. Croix and the success or

failure of the operation depended on the constant drug runs. Additionally, Hodge and

Quinones-Davila overlapped in their dealings: Hodge told Timothy Schoenbohm—the

Government’s confidential informant and primary witness at trial—that Quinones-Davila

wanted to meet him, and Hodge made a trip to retrieve drugs for Quinones-Davila.

Because there was sufficient evidence of a single conspiracy, there was no variance that

could have prejudiced Quinones-Davila’s substantial rights.

Burgos-Montanez, Gutierrez-Calderon, and Anibal contend there was insufficient

evidence to convict them because they were present but were not aware of the illegal

activities of the conspiracy. To sustain a conviction for conspiracy with intent to

distribute a controlled substance, the government must introduce drug-related evidence

from which “a rational trier of fact could logically infer that the defendant knew a

controlled substance was involved in the transaction at issue.” United States v. Boria,

(3d Cir. 2010). The record shows all three Defendants’ participation and

knowledge of the conspiracy.

Burgos-Montanez helped bring a heavy fuel tank onto Schoenbohm’s boat, the

Scorpion, before boarding it himself. Burgos-Montanez was also found on the beach at

Knight’s Bay near four suitcases containing over 87 kilograms of cocaine, and he fled

when police announced themselves. A rational trier of fact could infer Burgos-Montanez

knew about the illegality of the conspiracy from the totality of this evidence. See

Caraballo-Rodriguez,

(sufficient evidence of conspiracy where the

7 defendant traveled from Puerto Rico to Philadelphia with only a small bag containing $33

and who transferred suitcases that did not belong to him from the baggage conveyor to a

vehicle); United States v. Leon,

, 893 & n.19 (3d Cir. 1984) (sufficient

evidence of conspiracy where the defendant was present at the crime scene, associated

with those involved in criminal enterprise, and fled from the scene when agents

announced themselves).

There is also sufficient evidence of Gutierrez-Calderon’s involvement and

knowledge of the drug trafficking conspiracy. He provided Schoenbohm with a firearm

and later asked Schoenbohm if the Scorpion could go out again for a drug run and offered

to pay.

Anibal was present in October 2014 when a group discussed retrieving 71

kilograms of cocaine. Anibal was also on the Scorpion for multiple failed retrieval

attempts, and for the successful one when he helped get the cocaine onto the boat.

Ultimately, there was sufficient evidence to convict all of the Defendants of Count

One.

2. Count Two

Gutierrez-Calderon argues there was insufficient evidence to convict him of aiding

and abetting the attempted possession of 80 kilograms of cocaine in November 2014

because he did not provide Schoenbohm with a firearm, and Schoenbohm spoke

inconsistently about the gun’s origin. To convict an individual of aiding and abetting an

attempted possession, the government needs to prove the defendant knew about the crime

8 and helped facilitate it. Petersen,

. Despite Schoenbohm’s inconsistent

testimony, there is enough evidence in the record for a reasonable jury to find Gutierrez-

Calderon aided and abetted the attempted possession by giving Schoenbohm the gun.

Schoenbohm testified that Gutierrez-Calderon gave him a firearm for protection

before an attempted drug run and told Schoenbohm the gun was a “fully automatic,

machine gun” that “shoots real fast.” JA 2034–35. However, Gutierrez-Calderon points

out that when the police stopped Schoenbohm, he told them the firearm belonged to the

car’s passenger, Hodge. At trial, Schoenbohm explained he initially lied to the police

because he was afraid of the consequences if he said the gun belonged to him. Viewing

these inconsistent statements in the light most favorable to the Government, see

Caraballo-Rodriguez,

, a trier of fact could believe Schoenbohm’s

explanation at trial and find Gutierrez-Calderon guilty: attempted possession of cocaine

occurred, Gutierrez-Calderon knew the crime would occur, and he facilitated the crime

by providing Schoenbohm with a gun.

3. Count Four

Jean Carlos argues there was insufficient evidence to convict him of attempt

because the Government did not prove the gas tank he brought onto the Mako—another

boat that often made drug runs—was used for the May 2015 attempt. To be convicted of

an attempt, a defendant must perform a substantial step in the commission of the charged

crime. Tykarsky,

. If the gas was not used for the May 2015 attempt, he

argues, then he did not perform a substantial step and should not have been convicted.

9 While mere preparation is insufficient to constitute a substantial step of an attempted

crime, gathering needed items or traveling to the scene goes “beyond mere planning.”

United States v. Davis,

, 304–05 (3d Cir. 2021); see also Model Penal Code

§ 5.01(2)(f) (“possession, collection, or fabrication of materials to be employed in the

commission of the crime, at or near the place contemplated for its commission” may be

sufficient). Supplying the Mako with gas was a substantial step.

DEA Task Force Officer Peter Kalme testified that Jean Carlos told him that he

went to St. Croix in May 2015 with a gas tank to acquire cocaine on the Mako. DEA

surveillance of the Mako in May 2015 showed the boat leaving Chenay Bay in the

morning and returning after 9:00 p.m. without its lights on. Because Schoenbohm

testified that he would turn off the navigation lights to avoid detection when he went out

to retrieve cocaine, this indicates the Mako was on a drug run when the DEA surveilled it

in May 2015. Thus, a reasonable jury could conclude that Jean Carlos’s actions

constituted a substantial step towards the May 2015 attempt.

4. Count Six

Burgos-Montanez and Gutierrez-Calderon contend the District Court erred when it

held there was sufficient evidence to convict them of Count Six, possessing and aiding

and abetting others’ possession with intent to distribute more than five kilograms of

cocaine in November 2015. Gutierrez-Calderon argues he did not directly give

Schoenbohm gas money, and thus did not “act[] with intent to facilitate” the possession

of cocaine. Petersen,

(citation omitted). Burgos-Montanez takes a

10 different approach, arguing he did not have advance knowledge that the controlled

substance was more than five kilograms of cocaine—meaning he did not know the nature

of the crime committed—and thus cannot have aided and abetted it. Both Defendants are

incorrect.

There was sufficient evidence to convict Gutierrez-Calderon of Count Six because

he facilitated the gas payment, which Schoenbohm used to fuel his boat and retrieve

drugs. Hodge texted Schoenbohm and told him to text Gutierrez-Calderon, who would

send gas money. The same day, Schoenbohm texted Gutierrez-Calderon the number 700

and his own name, and then Gutierrez-Calderon texted Schoenbohm an assortment of

numbers and Burgos-Montanez’s name. Western Union records show a sender named

Jesus Burgos-Montanez sent $700 with a money transfer control number that matched the

numbers Gutierrez-Calderon texted Schoenbohm. Although Gutierrez-Calderon did not

send the gas money himself, he coordinated the payment. And even though Gutierrez-

Calderon never told Schoenbohm explicitly that the payment was gas for a drug run, a

reasonable jury could rationally infer this was the payment’s purpose and that Gutierrez-

Calderon aided and abetted the attempted possession of cocaine.

Burgos-Montanez contends there is no evidence he knew the controlled substance

was more than five kilograms of cocaine, and an aider and abettor must have knowledge

of the facts triggering penalties—here, whether five or more kilograms of cocaine were

intended to be distributed. Burgos-Montanez’s cited case addressed whether an aider and

abettor of an

(c) violation must know the principal would use or carry a

firearm during the crime. Rosemond v. United States,

(2014). But in the

11 context of § 841(a) and (b) charges—which are the relevant charges here—the defendant

need not within the scope of the conspiracy “consciously cognize the amount [of drugs]

he is distributing in order to violate the law.” Williams,

. “[A] person who

engages in drug trafficking violates § 841(a), and the penalty for that violation is to be

determined according to § 841(b), which provides both a default penalty and heightened

penalties based on certain additional findings.” Id. As a result, it is sufficient that the

knowing or intentional distribution or possession occurred; the quantity of the drug is a

“factual finding that goes to the sentence to be imposed.” Id. This interpretation is

consistent with Apprendi because there the Court “operated on an expansive definition of

‘crime’ according to its ‘invariable linkage’ with punishment, . . . rather than specifically

the conduct and mental state deemed illegal.” Id. (quoting Apprendi v. New Jersey,

(2000)). Therefore, there was sufficient evidence for a reasonable jury to

convict Burgos-Montanez of Count Six.

The District Court properly denied Gutierrez-Calderon’s motion for a new trial

due to an alleged court closure. A motion for a new trial must be filed within fourteen days of the verdict or finding of guilt unless the reason for the motion is newly

discovered evidence. Fed. R. Crim. P. 33(b)(1)–(2). Gutierrez-Calderon first raised the

courtroom closure issue four months after the jury’s verdict in a pro se motion; his

counsel filed a motion for a new trial a month later. The motion was not based on newly

discovered evidence, and thus, his claim is untimely. 4

4 Gutierrez-Calderon has been represented by two lawyers. The first tried the case and filed the opening brief, while the second filed the reply brief and argued the case. In 12 Quinones-Davila contends the District Court abused its discretion when it denied

his motion to pre-authorize payment for a DEA expert; because of this, he argues he

should be granted a new trial. In cases where the defendant is “financially unable to

obtain investigative, expert, or other services necessary for adequate representation,” he

may request that the court authorize funding. 18 U.S.C. § 3006A(e)(1). The defendant

must demonstrate with specificity why the expert is required. See United States v.

Gadison,

(5th Cir. 1993); United States v. Pitts, 346 F. App’x. 839, 841–

42 (3d Cir. 2009). Before authorizing the funds, the court must determine whether the

“defendant may have a plausible defense.” United States v. Roman,

(3d Cir. 1997) (citation omitted). The District Court did not abuse its discretion in

denying Quinones-Davila’s motion for a DEA expert.

On appeal, Quinones-Davila states a DEA expert would have effectively cross- examined agents and reviewed discovery materials to identify potential breaches of DEA

policies, including the mishandling of confidential informants. However, when filing his

motion before trial, Quinones-Davila did not provide these specific reasons. Instead, he

asserted the DEA expert would interpret discovery and create cross examination

questions. Because these reasons were not specific—and this Court reviews a district

court’s denial of an expert witness “in light of only the information available to the trial

the reply brief, Gutierrez-Calderon argues for the first time that his previous counsel was ineffective because he did not raise the courtroom closure issue when Gutierrez-Calderon told him about it at trial. Despite the change in attorneys, the ineffective assistance of counsel claim is forfeited. Gutierrez-Calderon’s new counsel had the opportunity to file a substitute opening brief raising this issue. New counsel instead chose to adopt the opening brief on file. As the argument was not raised in the opening brief, it is forfeited. See United States v. Kolodesh,

, 230 n.3 (3d Cir. 2015). 13 court at the time it acted on the motion,” Gadison, 8 F.3d at 191—the District Court did not abuse its discretion in denying Quinones-Davila’s motion.

Quinones-Davila argues that the District Court also abused its discretion by denying his motion to continue because he did not have enough time to study the first

trial’s transcript and the new discovery materials. When exercising its discretion to grant

or deny a motion to continue, a court should consider: the efficient administration of criminal justice; the accused’s rights, including the opportunity to prepare a defense; and

the rights of other defendants who may be prejudiced by a continuance. United States v.

Kikumura,

(3d Cir. 1991). A district court abuses its discretion when the denial of a continuance is “so arbitrary as to violate due process.”

(citation omitted).

Here, after the first trial ended in a mistrial, the Government filed a second

superseding indictment and sent new discovery materials to the Defendants. The first trial’s discovery, evidence, and testimony put the Defendants on notice of the charges

that would be in the second superseding indictment. Additionally, Quinones-Davila

received daily transcripts of the four key witnesses’ testimony during the first trial—

meaning he had nearly ten months to review the key parts of the transcript—and he had

over a month to investigate the new evidence in the last discovery batch. Thus, Quinones-

Davila was afforded the opportunity to prepare a defense and the denial of the continuance was not “so arbitrary as to violate due process.” Kikumura,

. 5

5 Quinones-Davila argues the totality of the denial of his motions to hire a DEA expert and to continue rendered his trial fundamentally unfair, and he should be granted a new trial. Because the District Court did not abuse its discretion in denying either the motion to authorize a DEA expert or the motion to continue, it did not abuse its discretion in denying Quinones-Davila’s motion for a new trial. 14 Jurors 5 and 12 were dismissed at two different points during trial after they

separately expressed concern about whether their families would be safe if the

Defendants were convicted. Hodge raises several issues with how the District Court

handled these jurors, arguing he was denied his right to a fair and impartial jury. He only

asserted one of these issues below, so we review the issues that were not raised for plain

error. Fed R. Crim. P. 52(b). We review the issue that was raised below for abuse of

discretion. United States v. Bertoli,

, 1392–93 (3d Cir. 1994). Ultimately,

Hodge is unsuccessful.

First, Hodge argues he was prejudiced because the District Court did not ask the remaining jurors whether they discussed retaliation if they were to find the Defendants

guilty. Hodge raised this issue below, so we review it for abuse of discretion. Such

discussions would have constituted premature deliberation and, therefore, juror misconduct. See United States v. Resko,

, 688–90 (3d Cir. 1993). But “[t]he

more speculative or unsubstantiated the allegation of misconduct, the less the [district

court’s] burden to investigate.” Bertoli,

(citation omitted). Hodge’s juror

misconduct argument is entirely speculative, so the District Court had no burden to

investigate. Juror 5’s concern was triggered by her mother’s comment that “so and so has

a cousin that’s in the thing that you’re in,” and Juror 5 was worried about retaliation because at least one Defendant knew her mother. JA 3898. On the other hand, Juror 12

indicated nothing happened to trigger his concern, like premature jury deliberations, and

no one had contacted his family. The lack of similarities indicates the jury was not deliberating prematurely, so there was no reason to question the rest of the jury—and

therefore the District Court did not abuse its discretion.

15 Second, Hodge argues the District Court erred by communicating ex parte with Juror 12 because the parties did not know the extent, if any, of premature jury

deliberations. When Juror 12 was probed by the Court during the ex parte discussion, he

implied he was not afraid due to external pressures. And the District Court provided a

summary of the conversation with Juror 12 to the parties. When the District Court gave

this summary, Hodge’s counsel asked a question about whether Juror 12’s family had

been contacted. The District Court responded that it would ask the juror that question. When the Court spoke with Juror 12 again, it asked the question Hodge’s counsel brought

up—meaning, if counsel wanted the Court to inquire about potential premature jury

deliberations as well, she could have asked the Court to discuss it with Juror 12. This was

sufficient to resolve counsel’s concerns of premature jury deliberation, and there was no

plain error.

Third, Hodge argues the District Court erred by failing to instruct dismissed jurors

to not discuss the case with third parties; he contends a third party could communicate

information from the dismissed jurors to seated jurors and taint the jury. He also argues

the District Court erred by not immediately warning Juror 12—after he expressed safety concerns, but before he was dismissed a week later—to refrain from discussing his

concerns with the other jurors. Hodge points to no evidence that the lack of instruction

actually tainted the jury. Thus, there is no plain error.

Jean Carlos argues that DEA Officer Kalme—who translated during Jean Carlos’s

post-arrest interview—should not have been allowed to testify about the interview

because he refreshed his recollection by reviewing the report of another agent who

conducted the interview and took notes. A witness’s testimony must be based on his

16 personal knowledge. Fed. R. Evid. 602. “Testimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the

ability and opportunity to perceive the event that he testifies about.” United States v.

Hickey,

(6th Cir. 1990); see also United States v. Gerard,

(3d Cir. 2012). A witness can testify from personal knowledge even if he

refreshes his recollection with a report written by someone else. United States v. Booz,

(3d Cir. 1971). The District Court did not abuse its discretion by allowing Officer Kalme to testify. Kalme testified that the report was accurate: after he

read it, it matched his recollection of the interview. Thus, a reasonable juror could

conclude that Kalme was testifying from his personal knowledge rather than merely

reciting the contents of the report. 6

The District Court did not clearly err when it held Anibal and Jean Carlos

ineligible for statutory safety valve relief. To prevail on this claim, a defendant must,

among other things, “truthfully provide[] to the Government all information and evidence

[he] has concerning the offense.”

(f)(5); U.S.S.G. § 5C1.2(a)(5).

However, “the fact that the defendant has no relevant or useful information to

provide . . . shall not preclude a determination by the court that the defendant has

complied with this requirement.” Id. While this Court reviews the ultimate safety valve

determination de novo, we review the factual determination of whether a defendant

6 Jean Carlos also argues there is a potential hearsay issue when a witness testifies about statements he heard through an interpreter. See, e.g., United States v. Nazemian,

, 525–26 (9th Cir. 1991). However, unlike in Nazemian and Jean Carlos’s other cases, Kalme understood Jean Carlos without translation, so these potential hearsay issues are not applicable.

17 satisfied the safety valve requirements for clear error. United States v. Sabir,

(3d Cir. 1997).

Anibal fails to show he met the statutory requirements of safety valve relief.

Despite arguing he was innocent and had no information, his counsel later told the

District Court that he may have information to share about his incarceration with the co-

Defendants. But nine months passed between the first partial sentencing hearing and the

second hearing, and no information was provided. Because Anibal’s counsel informed the District Court that Anibal had information but it was never shared with the

Government, Anibal does not qualify for safety valve relief.

Jean Carlos fails to show the District Court clearly erred in finding that he was not

entirely truthful because his statements contradicted each other and the record. In his

written proffer, Jean Carlos said he was not present when $500,000 was dumped into the

ocean; in his post-arrest statements, he said he was there. Also, Jean Carlos and

Schoenbohm’s accounts differ on when Jean Carlos arrived in St. Croix in December

2014. Although Jean Carlos argues any errors were due to his imperfect memory, the

contradictions support the finding that he was not fully truthful. Either way, Jean Carlos’s failure to provide details and the Government’s ability to identify why Jean Carlos was

not completely forthcoming is sufficient to show that the District Court’s factual finding

was not clearly erroneous. See United States v. Miranda-Santiago,

(1st Cir. 1996) (requiring more than simple conclusory statements by the government that it

did not believe the defendant). 7

7 Jean Carlos also argues the District Court erred in applying a two-point special skill enhancement. Because Jean Carlos is ineligible for safety valve relief—and the District Court sentenced him to the statutory mandatory minimum—removing the special skill enhancement would not lessen his sentence and any error was harmless.

18 Gutierrez-Calderon argues the District Court clearly erred by applying the

manager or supervisor enhancement to his sentence because he did not accompany

Schoenbohm on any drug runs or give Schoenbohm money to buy drugs. The Sentencing

Guidelines allow the judge to increase the offense “[i]f the defendant was a manager or

supervisor (but not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). Applying this

enhancement was not clear error.

To qualify for the enhancement, the court must find the defendant exercised

control over another individual, there were multiple participants in the crime, and there was some differentiation in the participants’ culpabilities and responsibilities. United

States v. Katora,

(3d Cir. 1992). The word “control” is used “in a

broad sense to mean [a] supervisory or organizational role . . . including recruitment.” United States v. Kamoga,

(7th Cir. 1999) (citation omitted) (holding

“control” encompasses indirect supervisory authority and a defendant does not need

knowledge of all the other participants in a criminal activity). We review a district court’s

factual determinations, including a defendant’s role in the offense under U.S.S.G.

§ 3B1.1, for clear error. United States v. Raia,

(3d Cir. 2021).

The evidence shows Gutierrez-Calderon exercised control over at least one other person by providing the necessary resources and arranging the payment to support

criminal activity. 8 Gutierrez-Calderon stated he was going to pay for the Mako’s storage,

8 Gutierrez-Calderon cites United States v. Badaracco,

(3d Cir. 1992) for the proposition that “the government must prove by a preponderance of the evidence that the developers were criminally responsible participants if the upward adjustment is to stand.” Badaracco does not apply. Badaracco is relevant only given that we recognize that there are multiple participants in the instant offense who are criminally responsible.

. That is not the relevant issue here.

19 he coordinated payment for gas by sharing the necessary sender and receiver information, and he provided Schoenbohm with a gun. Thus, it was not clear error to conclude

Gutierrez-Calderon acted as a manager or supervisor.

The Sentencing Guidelines provide that “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense,” his sentence can be reduced by up to three

levels. U.S.S.G. § 3E1.1. Quinones-Davila argues he is eligible for this reduction because

he cooperated with the Government. But acceptance of responsibility generally does not

apply when a defendant “puts the government to its burden of proof at trial by denying

the essential factual elements of guilt.” U.S.S.G. § 3E1.1, cmt. n.2.

Despite previous cooperation with the Government, Quinones-Davila did not

accept responsibility for his actions. He challenged his factual guilt by moving for a

judgment of acquittal and disputed the sufficiency of the Government’s evidence and witnesses. Cooperating with the government is not the same as accepting responsibility

and thus the District Court did not err when it denied Quinones-Davila’s request for an

acceptance of responsibility reduction.

Hodge argues the District Court erred when it used improper evidence to

determine his drug quantity, and it should have waited to sentence him until the certified

trial transcript was ready. At trial, the jury found that Hodge was responsible for five or

more kilograms of cocaine; at sentencing, the District Court attributed 193.3 kilograms to Hodge. To determine this amount, the District Court listened to the Government’s proffer

and relied on its notes from trial to confirm the proffer’s accuracy. “At sentencing, ‘the

government bears the burden of proving drug quantity by a preponderance of the

20 evidence.’” United States v. Douglas,

(3d Cir. 2018) (quoting United States v. Paulino,

(3d Cir. 1993)) (internal alterations omitted). The

district court must “satisfy itself that the evidentiary basis for its estimate has sufficient

indicia of reliability.” Id. at 151. This “indicia of reliability” can be found from

corroboration or consistency with other evidence. Id. The Government met its burden of

proving drug quantity by a preponderance of the evidence, and the District Court’s

reliance on its notes to corroborate the evidence was proper. 9

To support its argument for Hodge’s drug quantity, the Government reminded the

District Court about testimony from a chemist and Schoenbohm. Because the Court was

present during trial, it could rely on its own recollection and notes to ensure this testimony, among other evidence presented by the Government, was reliable for

sentencing purposes. There was no need for the District Court to wait until the trial

transcript was ready because the evidence used to estimate Hodge’s drug quantity was sufficiently reliable. See Paulino,

(determining that an agent’s recital of

events from a discussion with a confidential informant met the sufficient indicia of

reliability standard).

For the foregoing reasons, we will affirm the District Court.

9 From his briefing, Hodge implies that he did not have sufficient notice under Fed. R. Crim. P. 32 because the sentencing judge relied on the Government’s proffer as opposed to “sufficient evidence.” This, he argues, did not allow him to properly challenge the basis of calculations of drug quantity. First, Hodges conflates arguments under Rule 32 and sufficient indicia of reliability. Second, the District Court presented evidence heard at trial when Hodge was present. This does not implicate the same “surprise” concerns underlying the notice requirement embedded in Rule 32(i)(1)(C).

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