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United States v. Rodriguez-Milian

United States Court of Appeals, First Circuit

April 19, 2016

UNITED STATES OF AMERICA, Appellee,
v.
CARLOS E. RODRÍGUEZ-MILIÁN, Defendant, Appellant

         Petition for certiorari filed at, 06/14/2016

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[Copyrighted Material Omitted]

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          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.

         Luis A. Guzmán Dupont for appellant.

         Jenifer Y. Hernández-Vega, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

         Before Lynch, Selya and Lipez, Circuit Judges.

          OPINION

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          SELYA, Circuit Judge.

          A party who fails to preserve potential claims of error in the trial court usually encounters strong headwinds on appeal.

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So it is here. Concluding that the appellant's asseverational array is largely unpreserved and wholly unpersuasive, we affirm his conviction and sentence. We nonetheless remand to allow the district court to consider a sentence reduction under a recent amendment to the sentencing guidelines.

         I. BACKGROUND

         We recite the background facts " in the light most hospitable to the verdict, consistent with record support." United States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006). Starting in 2005, a drug-trafficking organization headed by the notorious Junior Cápsula smuggled cocaine by sea from the Dominican Republic into Puerto Rico aboard yawls specially retrofitted with secret compartments. After law enforcement personnel seized two of the vessels, the drug ring began to consider alternative modes of transportation (including airplanes).

         In June of 2009, defendant-appellant Carlos E. Rodríguez-Milián became involved with a scheme to fly drug shipments from the Dominican Republic to Puerto Rico and to ferry cash on return flights. Shortly after this plot was hatched, the appellant purchased a small aircraft that he thereafter used to transport a leader in the drug ring from Puerto Rico to the Dominican Republic. Later that summer, the appellant and a confederate, Jeffrey Núñez-Jiménez (Núñez), transported roughly $500,000 in illegal drug-sale proceeds from Puerto Rico to the Dominican Republic.

         A subsequent flight by the two men in the appellant's recently-purchased airplane took place on August 22, carrying a cargo of no less than 50 kilograms of cocaine. Spotted on radar when it entered Puerto Rican airspace, their airplane aroused suspicion because it failed to communicate with anyone, flew past Borinquen Airport, and descended instead into Arecibo Airport (which was not an authorized port of entry for international air traffic). The airplane landed before any law enforcement personnel arrived to investigate. Two men (later identified as Diego Pérez and Fernando Nieves) approached the aircraft, while a third man, José Marrero-Martell, watched from a nearby automobile. Marrero-Martell testified that Junior Cápsula had told him that he (Cápsula) had delivered cocaine to the appellant and Núñez. Junior Cápsula then added that Marrero-Martell should pick up the drugs from the airport.

         An airport security guard became inquisitive at the sight of all the activity around the appellant's aircraft. When the guard approached, the appellant told Pérez that he would distract the guard while the bags were unloaded. The appellant told the guard (falsely) that Pérez and Nieves had arrived by parachute. The guard then instructed the appellant not to take off until customs officials could arrive, and shortly thereafter put the appellant on the telephone with a customs agent. The appellant suggested that the landing at Arecibo was due to electrical problems and that his real destination was Isla Grande Airport. In the meantime, the other three men (Pérez, Nieves, and Núñez) unloaded bags filled with cocaine from the aircraft and stashed them in a waiting automobile. The car then departed and -- about 35 minutes after landing at Arecibo -- the appellant and Núñez flew away before customs officials could arrive.[1]

         In due season, a federal grand jury returned an indictment that targeted, among

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other things, the broad drug-trafficking conspiracy headed by Junior Cápsula. One count of the indictment, however, charged the appellant with participating in a narrower conspiracy to import five or more kilograms of cocaine into the customs territory of the United States. See 21 U.S.C. § § 952(a), 963. At trial, Marrero-Martell and Pérez testified for the government as cooperating witnesses. The jury found the appellant guilty on the single count lodged against him and, on August 22, 2014, the district court sentenced him to serve a 235 month term of immurement. This timely appeal ensued.

         II. ...


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