APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez,
U.S. District Judge]
Lizarribar-Masini, for appellant Tanco-Baez. Eleonora C.
Marranzini, Assistant Federal Public Defender, with whom Eric
A. Vos, Federal Public Defender, and Vivianne M.
Marrero-Torres, Assistant Federal Public Defender,
Supervisor, Appeals Section, were on brief, for appellant
Mariel Espada, for appellant Rosario-Serrano.
F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for
Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
BARRON, Circuit Judge.
Tanco-Baez ("Tanco"), José
Cepeda-Martínez ("Cepeda"), and Peter
Rosario-Serrano ("Rosario") were indicted in the
United States District Court for the District of Puerto Rico
on three counts of federal firearms charges arising out of a
drive-by shooting. Cepeda and Rosario each challenge their
conviction on one of those counts and Tanco challenges his
conviction on two of those counts, while Tanco and Cepeda
also challenge their sentences for their convictions on those
counts. We reject all three co-defendants' challenges to
their convictions, except for Cepeda's challenge to his
conviction on one of the counts, which we agree is not
supported by sufficient evidence and must be reversed. We
affirm Tanco's sentence, but we vacate and remand
Cepeda's sentence not only for the conviction that we
reverse but also for the one that we affirm, as we conclude
that our reversal of his other conviction requires that
following facts are not in dispute. On the morning of March
26, 2014, Tanco, Cepeda, and Rosario participated in a
drive-by shooting on the Román Baldorioty de Castro
expressway in Carolina, Puerto Rico. A witness reported
seeing a high-speed car chase that involved a blue Toyota
Yaris, a gray Toyota Yaris, and a wine-colored Jeep Cherokee.
The chase ended when the two Toyotas crashed under a bridge.
The Jeep remained at a close distance. A witness then heard
two rounds of rapid gunfire. Thereafter, the three
co-defendants fled the scene in the Jeep Cherokee.
Rico Police Department officers pursued the Jeep until it
eventually stopped near a pedestrian bridge in the nearby
city of San Juan. At that point, the three defendants
abandoned the vehicle and fled on foot across the bridge to a
was arrested almost immediately in the third-floor hallway of
one of the buildings in the housing project. Law enforcement
officers seized a pistol magazine that was found nearby.
Officers also found and seized a bag of marijuana hidden
inside Cepeda's shoe.
and Rosario were apprehended in an apartment within Building
46 of the housing project. The officers then searched the
apartment. They found a pistol magazine under a table, a
pistol frame inside a laundry bag, and two pistol magazines
under a bed. The slide and barrel of the pistol found in the
laundry bag were later found on either side of Building 46.
also found two Glock pistols beside the Jeep Cherokee -- a
model 17 and a model 27. The latter model had been modified
to fire as a machinegun. Multiple shell casings from the
scene of the shooting matched the three firearms seized in
Building 46 and near the Jeep Cherokee.
September 17, 2014, Tanco, Cepeda, and Rosario were indicted
in the District of Puerto Rico as co-defendants on a number
of federal firearms charges. Cepeda was charged with
possession of firearms and ammunition by an unlawful user or
addict of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3) (Count One); Tanco was charged with being a
convicted felon in possession of firearms and ammunition, in
violation of 18 U.S.C. § 922(g)(1) (Count Two); Tanco,
Cepeda, and Rosario were each charged with aiding and
abetting each other in the illegal possession of a
machinegun, in violation of 18 U.S.C. § 922(o) (Count
three defendants proceeded to an eight-day jury trial in late
June 2015. At trial, an expert testified that Tanco's DNA
was present on the steering wheel and stick shift of the gray
Yaris and a cigarette butt found in the driver's side of
that car. The expert also testified that Rosario's DNA
was found on the steering wheel of the Jeep.
enforcement agent testified at the trial as well. He stated
through an interpreter that Cepeda admitted to him in a
post-arrest interview that he had gone into a vehicle to
smoke marijuana that day, that he "smoked on a daily
basis and that it had been a long time since he had
started," and that he possessed the machinegun on the
day of the events.
government did not introduce into evidence a written or
recorded statement by Cepeda. Nor did the government
introduce into evidence any notes that memorialized the law
enforcement agent's interview with Cepeda, which had
taken place over a year before trial.
jury returned guilty verdicts against each of the defendants
on all of the counts that each faced. Cepeda filed a motion
for judgment of acquittal under Federal Rule of Criminal
Procedure 29 on Counts One and Three, Tanco filed a Rule 29
motion on Counts Two and Three, and Rosario filed a Rule 29
motion on Count Three. The government opposed each Rule 29
motion, and the District Court denied them all.
March 3, 2016, the District Court held sentencing hearings
for both Tanco and Cepeda. Cepeda was sentenced to 120 months
of imprisonment for his convictions on Counts One and Three,
to be served concurrently with one another. Tanco was
sentenced to 120 months of imprisonment as to his convictions
on Counts Two and Three, also to be served concurrently.
sentencing hearing was held on April 18, 2016. He received a
sentence of 102 months' imprisonment on his conviction
pursuant to Count Three. The District Court also imposed
three-year terms of supervised release on all three
co-defendants for their convictions.
Cepeda, and Rosario filed timely notices of appeal. The
consolidated appeals challenge: (1) the sufficiency of the
evidence as to Cepeda's conviction on Count One for
possession of firearms and ammunition by an unlawful user or
addict of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3); (2) the sufficiency of the evidence for
Tanco's conviction on Count Two for being a convicted
felon in possession of firearms and ammunition, in violation
of 18 U.S.C. § 922(g)(1); (3) the sufficiency of the
evidence for Tanco's and Rosario's convictions on
Count Three for aiding and abetting in the illegal possession
of a machinegun, in violation of 18 U.S.C. § 922(o); and
(4) the procedural and substantive reasonableness of
Tanco's and Cepeda's sentences.
begin by addressing the defendants' challenges to the
denial of their Rule 29 motions, in which the defendants take
aim at the sufficiency of the evidence supporting their
convictions. We review de novo the District Court's
denial of a Rule 29 motion that is based on a challenge to
the sufficiency of the evidence to support a conviction.
United States v. Cortes-Caban, 691 F.3d 1, 12 (1st
Cir. 2012); United States v. Perez-Melendez, 599
F.3d 31, 40 (1st Cir. 2010). We undertake such review by
considering the evidence in the record "in the light
most favorable to the prosecution" and by determining
whether, considered in that light, the "body of proof,
as a whole, has sufficient bite to ground a reasoned
conclusion that the government proved each of the elements of
the charged crime beyond a reasonable doubt." United
States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999).
first consider Cepeda's challenge to the sufficiency of
the evidence for his conviction on Count One for violating 18
U.S.C. § 922(g)(3), which makes it "unlawful for
any person . . . who is an unlawful user of or addicted to
any controlled substance . . . to . . . possess in or
affecting commerce, any firearm or ammunition." To
establish the "unlawful user" element of this
offense, the government must prove beyond a reasonable doubt
that (1) the defendant used controlled substances regularly,
(2) that the use took place over a long period of time, and
(3) that the use was proximate to or contemporaneous with his
possession of a firearm. See United States v.
Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (defining
"unlawful user" under § 922(g)(3)); United
States v. Marceau, 554 F.3d 24, 30 (1st Cir. 2009)
does not dispute that he possessed a firearm. He contends
only that the evidence was insufficient to support a finding
that he was "an unlawful user of . . . any controlled
substance" within the meaning of § 922(g). He
alleges that the only evidence in the record that could
suffice to support that finding is the testimony from the law
enforcement officer who interviewed him that he admitted
during that interview that he had been a regular, long-term
drug user. Cepeda further contends that this evidence cannot
suffice to establish that he was an "unlawful
user," however, because, in his view, that admission was
government agrees that the admission is necessary to prove
Cepeda's regular, long-term drug use and thus that he was
an "unlawful user." The government further agrees
that the admission must be corroborated in order for it to be
able to provide the requisite evidentiary support for a
finding that he was an "unlawful user," such that
his conviction then could survive Cepeda's
sufficiency-of-the-evidence challenge. But, the government
contends, his challenge still lacks merit.
government asserts, first, that Cepeda failed to contend in
his Rule 29 motion that the admission concerning the nature
and duration of his drug use was not corroborated. Thus, the
government contends, he has waived that ground for reversing
his conviction for lack of sufficient evidentiary support,
or, at least, he has forfeited that argument and cannot meet
the demanding plain error standard that applies in
not agree. In his written Rule 29 motion, in addition to
advancing various specific arguments, Cepeda made a general
sufficiency-of-the-evidence challenge, claiming that
"the government presented insufficient evidence at trial
to support the elements of the offenses of which he was
convicted." See United States v. Foley, 783
F.3d 7, 12 (1st Cir. 2015) ("[A] general
sufficiency-of-the-evidence objection preserves all possible
sufficiency arguments."); United States v.
Marston, 694 F.3d 131, 135 (1st Cir. 2012) ("There
is good reason in case of doubt to treat an ambiguous [Rule
29] motion . . . as 'general' in the sense that it
preserves all grounds."). In that written motion, Cepeda
also called the District Court's attention to the lack of
sufficient evidence to establish Cepeda's status as an
unlawful user, while stating that "Officer
Concepcion's testimony that Mr. Cepeda stated he had
smoked marijuana 'for a long time' . . . without more
. . . could not have persuaded a rational trier of fact that
Mr. Cepeda was an unlawful  user of controlled substances
at the time of the charged offense." We know, too, that
the government asserted, in response to this motion, that the
evidence was sufficient to sustain the conviction, in part
because Cepeda's "confession was corroborated by the
testimonial and ballistic evidence presented on trial."
We therefore conclude that this issue was not forfeited
below. See United States v. Valenzuela, 849 F.3d
477, 487 (1st Cir. 2017) ("Because this argument was
included in the defendant's original Rule 29 motion, we
undertake de novo review.").
the government contends that even if Cepeda preserved this
challenge below, it lacks merit because the admission
concerning his long-term drug use was corroborated. But,
here, too, we disagree. To explain why, though, we need to
provide some background about the relevant legal precedents
on the weight that federal courts may give to certain types
of incriminating statements by criminal defendants in
assessing their evidentiary sufficiency challenges to their
convictions. We begin by describing those precedents. We then
explain why, in light of them, the admission that is at issue
was not corroborated and thus cannot suffice to support the
"unlawful user" element of the offense for which
Cepeda was convicted.
is a settled principle of the administration of criminal
justice in the federal courts that a conviction must rest
upon firmer ground than the uncorroborated admission or
confession of the accused." Wong Sun v. United
States, 371 U.S. 471, 488-89 (1963). This
"corroboration rule" initially was intended to
mitigate the risk that a false confession would lead to a
conviction for a crime that not only had not been committed
by the defendant but also that had not been committed by
anyone else. See Smith v. United States, 348 U.S.
147, 153-54 (1954).
risk was evident from early English and American cases.
Defendants in some of them had been sentenced to death for
homicide solely on the basis of their confessions of guilt,
but the supposed victims had then appeared, post-sentencing,
"very much alive." David A. Moran, In Defense
of the Corpus Delicti Rule, 64 Ohio St. L.J. 817, 826-31
thus began, in cases involving an offense that, like
homicide, involved physical damage or injury, to demand
evidence independent of the defendant's confession of
what is known as the corpus delicti -- encompassing both an
injury and a criminal cause for that injury. Only with such
evidence could a confession to that offense be considered
corroborated. And thus, only with such evidence could a
conviction be deemed adequately supported by the evidence if
the sufficiency of the proof depended upon the confession.
way, courts ensured that there would at least be independent
proof of a crime in place before the accused could
be convicted of committing it, even if there were no proof
apart from the defendant's confession of the
defendant's culpability for that crime. So, for
example, under this corroboration rule, a defendant's
confession to a homicide could not ground the conviction for
that offense unless the government also put forth adequate
"tangible evidence of the death of the supposed
victim." Wong Sun, 371 U.S. at 489 n.15.
while the corroboration rule initially served this important
but "extremely limited function," Smith,
348 U.S. at 153, the Supreme Court expanded on it in a trio
of cases decided on the same day in 1954. See Smith,
348 U.S. 147; Opper v. United States, 348
U.S. 84 (1954); United States v. Calderon, 348 U.S.
160 (1954). In so elaborating the rule's scope, the Court
broadened it in various ways, some of which have direct
bearing on the issues that are before us in this appeal.
the Court explained in this trio of cases that, although the
corroboration rule was aimed at ensuring that a defendant
could not be convicted of committing a crime based simply on
his confession when no independent evidence indicated that a
crime had been committed at all, the rule also reflected
broader concerns about the reliability of certain statements
by the accused. Specifically, the Court described the rule as
reflecting the fact that confessions may be unreliable
because they are coerced or induced or because, even if not
involuntarily made, they might "reflect the strain and
confusion attending [an accused's] predicament rather
than a clear reflection of his past." Smith,
348 U.S. at 153. The Court further explained that the
requirement that a conviction for a crime like homicide must
rest on more than an uncorroborated confession by the accused
reflects the fact that the average juror is not familiar with
the criminal justice system's long history of false
observations provided background for the Court's
clarification in this trio of cases that the scope of the
corroboration rule was not limited to
"confessions." To be sure, the Court explained, a
confession is a "complete and conscious admission of
guilt," Opper, 348 U.S. at 91, and the
corroboration rule historically had been applied to such
confessions by the accused. But, the Court held in these
cases that the corroboration rule was no less applicable to
certain admissions by the accused, even though such
statements by the accused are not like a confession because
they fail to "admit to all the elements of the
offense," Smith, 348 U.S. at 154, and may
merely "explain actions rather than admit guilt,"
Opper, 348 U.S. at 91.
Court described the types of admissions to which the
corroboration rule applied as "statements of the accused
out of court that show essential elements of the crime . . .
necessary to supplement an otherwise inadequate basis for a
verdict of conviction." Opper, 348 U.S. at 91.
After all, the Court elaborated, these "admissions have
the same possibilities for error as confessions."
Id. Thus, the Court explained, when an accused's
"admission is made after the fact to an official charged
with investigating the possibility of wrongdoing, and the
statement embraces an element vital to the Government's
case," it must be corroborated, just as a confession