          United States Court of Appeals
                      For the First Circuit


No. 14-2065

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     RICARDO AMARO-SANTIAGO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                              Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Luis Angel Guzman-Dupont argued, with whom Mark E. Howard and
Howard & Ruoff, PLLC, were on brief, for appellant.
     Nina Goodman, Attorney, Appellate Section, Criminal Division,
U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant
Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief, for
appellee.


                           May 31, 2016
            BARRON,    Circuit    Judge.     Ricardo    Amaro-Santiago    was

convicted, after a jury trial, of drug and weapons offenses

committed in connection with the Federal Bureau of Investigation's

Operation Guard Shack, which targeted corrupt Puerto Rico police

officers.   The District Court sentenced Amaro, who was not himself

a police officer, to fifteen years in prison.             Amaro challenges

his convictions and his sentence.          We affirm.

                                      I.

            Operation Guard Shack began in 2008.            It focused on

Puerto Rico police officers who were suspected of accepting money

from drug dealers in exchange for providing security during drug

transactions.

            In May 28, 2010, as part of that operation, the FBI

conducted the sting operation that led to Amaro's arrest.                The

sting took place at an apartment in Guaynabo, Puerto Rico.                It

involved a staged drug deal (using sham cocaine) in which Amaro

was   claimed   to    have   participated    --   along   with   two   police

officers -- by acting as an armed guard.          The FBI audio and video

recorded the deal.

            At trial, Amaro put on a duress defense and took the

stand to make his case.          Amaro testified that he needed $400 to

fix his car and that a co-worker had suggested that Amaro might be

able to borrow the money from her cousin, who was a police officer.

Amaro testified that he met with that officer, but the officer


                                    - 2 -
said he did not "have the money right now."             Amaro said he went

with the officer and a second officer to the apartment where the

drug transaction took place because he thought they were going

there to collect $400 for Amaro and not to provide security for a

drug transaction.     Amaro testified that he stayed at the apartment

and helped with the drug transaction only because, when he tried

to leave the apartment, the FBI agent posing as the drug dealer

made a comment to him that made him think the drug dealer would

hurt him if he tried to leave.          Finally, Amaro testified that he

did not report the drug transaction to the police because he was

afraid for his family's safety.

              Despite Amaro's testimony, the jury returned a guilty

verdict on all three counts it was asked to consider: conspiracy

to possess with intent to distribute cocaine in excess of five

kilograms, in violation of 21 U.S.C. § 841(a)(1) and § 846, aiding

and abetting the attempted possession with intent to distribute

cocaine in excess of five kilograms, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2, and possession of a firearm during

and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c).      The jury also found that the amount of fake

cocaine involved in the first two offenses was eleven kilograms.

The District Court then sentenced Amaro to fifteen years in prison.

Amaro   now    appeals,   challenging    both   his   convictions   and   his

sentence.


                                  - 3 -
                                   II.

           Amaro   first   contends     that   his    convictions   must    be

vacated because the prosecutor made two inappropriate statements

during   closing   argument.     The    parties      dispute   whether   Amaro

objected to those statements below, and thus they disagree about

whether our review should be de novo or only for plain error.              But

we do not need to resolve that disagreement because, even assuming

that our review is de novo, each of his challenges still fails.

           Under de novo review, we may reverse Amaro's convictions

on the basis of the prosecutor's remarks only if they were "both

inappropriate and prejudicial."        United States v. Matías, 707 F.3d

1, 5 (1st Cir. 2013). To be prejudicial, "the prosecutor's remarks

[must have] 'so poisoned the well that the trial's outcome was

likely affected.'"    United States v. Shoup, 476 F.3d 38, 43 (1st

Cir. 2007) (quoting United States v. Henderson, 320 F.3d 92, 107

(1st Cir. 2003)).     In determining whether a statement "poisoned

the well," we must consider "the totality of the circumstances,

including the severity of the misconduct, the prosecutor's purpose

in making the statement (i.e., whether the statement was willful

or inadvertent), the weight of the evidence supporting the verdict,

jury instructions, and curative instructions."             Matías, 707 F.3d

at 5-6 (quoting United States v. De La Paz-Rentas, 613 F.3d 18, 25

n.2 (1st Cir. 2010)).      Applying those standards here, we conclude




                                  - 4 -
that Amaro has not shown that the prosecutor's statements require

reversal of his convictions.

                                       A.

             Amaro first points to the prosecutor's statement in

closing argument concerning a key aspect of Amaro's duress defense.

The context for that statement is as follows.

             During the staged drug transaction at the apartment,

Amaro stated that he had left his cell phone downstairs.             The FBI

agent who was posing as the drug dealer said that Amaro should not

be allowed to get his cell phone because he would "run away."              The

agent   said,    "He'll   run   away   and   I   have   the   chainsaw   ready

for . . . any person that infiltrates in here put him dr-r-r-r-r-

r."

             At trial, Amaro testified that this comment made him

feel that his "life was threatened," and so he did not leave the

apartment.      In his closing argument, however, the prosecutor told

the jury that:

             you can't have an immediate threat that
             somebody's going to chop you up with a chain
             saw if there's not even a chain saw in the
             room. And there's no evidence that there was
             a chain saw anywhere in that apartment. And
             to be clear, to meet this element of the duress
             defense, that's the defendant's burden.      He
             has to put some evidence to you and prove that
             by a preponderance of the evidence that the
             threat was immediate, that there was a chain
             saw available for these people to chop him up.




                                   - 5 -
           Amaro argues that this statement improperly informed the

jury that, as a legal matter, the chainsaw remark could not support

a key element of his duress defense -- that the threat be an

"immediate threat of serious bodily injury."              United States v.

Bravo, 489 F.3d 1, 10 (1st Cir. 2007).       But although Amaro is right

that the jury could have found that he felt immediately threatened

as a result of the agent's statements regarding the chainsaw even

though   there   was   no   chainsaw   in   the   room,   the   prosecutor's

problematic statement does not warrant reversal.

           As troubling as the prosecutor's misstatement of the law

of duress is, the District Court's instruction the next morning

sufficed to cure any concern that the prosecutor's statement misled

the jury. In the curative instruction, the District Court properly

restated the elements of duress, and then added the following

comments that directly addressed what the prosecutor had said

regarding the chainsaw:

           Now, let me note that in this case -- and we've
           been here for seven, this is the eighth
           day -- the prosecutor for the Government in
           his closing argument stated that to meet the
           duress defense -- and I will quote, "Mr. Amaro
           had to prove that the threat was immediate and
           that there was a chain saw and that there was
           a chain saw available for these people to chop
           him up."     And that was the prosecutor's
           statements [sic].

           Now, I want you to be aware that the
           prosecutor's statement about the presence or
           not of a chain saw in the apartment and Mr.
           Amaro having to prove its presence to succeed,


                                  - 6 -
           is not part of the Court's duress instructions
           and cannot be considered by the jury as an
           instruction nor as what the law is. That is
           not the law, and that was an incorrect
           statement.

           Now, the presence of a chain saw or not in the
           apartment    is   an    argument   that    the
           prosecutor . . . has made and which you may
           consider in your deliberations in determining
           from the law and the evidence, as you find it,
           whether Mr. Amaro was under duress or not.
           However, if you consider that argument, you
           must also equally consider Mr. Amaro's
           arguments of duress which are not limited to
           the presence or not presence of a chain saw.

           Given the thoroughness and specificity of the curative

instruction, we do not see how the prosecutor's statement caused

prejudice that would warrant reversal.       See United States v.

Rodriguez, 675 F.3d 48, 63 (1st Cir. 2012) ("This court has

repeatedly held that a strong, explicit and thorough curative

instruction to disregard improper comments by the prosecutor is

sufficient to cure any prejudice from prosecutorial misconduct,"

id. (quoting United States v. Riccio, 529 F.3d 40, 45 (1st Cir.

2008))), as "juries are presumed to follow such instructions," id.

(quoting United States v. Gentles, 619 F.3d 75, 86 (1st Cir.

2010)).    And that is so notwithstanding Amaro's contention on

appeal that, because the instruction was not given until the

morning after the prosecutor made the statement, it "increased the

risk that the improper comment solidified in the minds of some

jurors."



                               - 7 -
           The problem for Amaro is that he objected to the District

Court's   giving    a   curative   instruction     immediately    after   the

statement was made, on the ground that the jury was "tired" and

thus that it would be "extreme[ly] prejudicial for the defense in

this case to have them brought back in here to read a corrective

instruction."      He thus asked that a curative instruction be read

"tomorrow morning."        Because Amaro cannot "properly challenge on

appeal a proposal [he himself] offered to the trial court," United

States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990), his

challenge to this statement by the prosecutor fails.

                                       B.

           The     other   statement    by   the   prosecutor    that   Amaro

contends warrants reversal was made in the prosecutor's closing

argument to illustrate the concept of reasonable doubt.                   The

challenged statement began as follows:

           Now, you heard Judge Gelpi's instructions on
           reasonable doubt.    Let me give you just an
           example of how you use reasonable doubt in
           your everyday lives.     When your car is on
           empty, you go to the gas station. You pull up
           to the pump, you swipe your card, you pay for
           the gas, you open your tank -- . . .

At that point, defense counsel objected, but the District Court

overruled the objection and instead warned the prosecutor that his

analogy had to comply with the court's statement of the law.              The

prosecutor then continued in front of the jury as follows:




                                   - 8 -
             As I was explaining to you about reasonable
             doubt -- and let me remind you that your
             instruction on the law comes from the Judge.
             This is an example that I'm giving you to
             explain what reasonable doubt is and how it's
             something you use in your everyday lives.

             So remember now, we're at the gas station.
             We've pulled up, we've swiped our card, we've
             opened our tank, we've put in our gas, we've
             filled up our car. It stops. It clicks. We
             take the pump out. We close our tank. We get
             into our car and our car drives. I submit to
             you, ladies and gentlemen, that all of this is
             circumstantial evidence that proves beyond a
             reasonable doubt that the substance you put in
             your car was gasoline. That is an example of
             how reasonable doubt is used in your everyday
             lives.

             Amaro argues that when someone "pull[s] up to a gas

station,   [that   person]    ha[s]      no     reasonable     doubts   that    the

substance [she is] about to buy is gasoline," and that this

presumption    "persists   unless       and    until   [she]    receive[s]     some

evidence that suggests that the substance was not gasoline." Amaro

thus contends that the prosecutor's analogy "stood the presumption

of innocence and the reasonable doubt standard on its head," by

encouraging the jury to presume that Amaro was guilty and thereby

"completely     eviscerated      the     presumption      of     innocence      and

reasonable doubt."

             But we have a hard time seeing how the prosecutor's

statement improperly led the jury to believe that the beyond a

reasonable    doubt   standard    is     less    strict   than    it    is.     The

prosecutor did not tell the jury that it could assume Amaro's guilt


                                       - 9 -
in the same way that a driver can assume gas is sold at a gas

station.     Rather, the prosecutor explained that the jury could

convict only if it were as confident that Amaro was guilty after

hearing the facts as a driver is confident he has purchased gas

after entering a gas station, pumping gas, and driving away.

             Moreover, we generally "assume[] that the jurors follow

jury instructions and thus that they followed the judge's, not

counsel's, definition of reasonable doubt."              United States v.

Gonzalez-Gonzalez, 136 F.3d 6, 9 (1st Cir. 1998). "That assumption

is especially so here, since the prosecutor also told the jury to

listen to the judge," id., and the prosecutor did so with respect

to this very issue.         Given that the District Court properly

instructed the jury on the presumption of innocence and the

reasonable    doubt   standard    and   that   the    District   Court    also

instructed the jury to follow the law as instructed by the court

and not by counsel, the prosecutor's use of the gas station analogy

did not so "poison[]the well" that we must reverse.              See Shoup,

476 F.3d at 43.

                                   III.

             Amaro   separately   challenges    his    convictions   on    the

ground that the District Court erred in delivering to the jury an

"Allen charge," which is a supplemental instruction that a judge

may give to a jury when it is deadlocked in its deliberations.

The charge aims to "urg[e] the jury to return to its deliberations"


                                  - 10 -
"for the sake of judicial economy."     United States v. Angiulo, 485

F.3d 37, 40 (1st Cir. 1973).   The charge takes its name from Allen

v. United States, 164 U.S. 492 (1896), and it has been described

as a "dynamite" charge because, due to its potentially coercive

effect, it, "[l]ike dynamite . . . should be used with great

caution."    United States v. Flannery, 451 F.2d 880, 883 (1st Cir.

1971).

            Amaro's challenge takes two forms.       He first seeks

reversal based on the District Court's decision to give the charge

rather than to grant his request for a mistrial.       He also seeks

reversal on the basis of the content of the charge that the

District Court gave.    We start by describing the relevant facts.

                                 A.

            The jury began deliberating at 11 a.m. on the eighth day

of trial.    After nine and half hours, the jury sent the District

Court a note that read:

            After several hours of deliveration [sic], we
            could not reach an agreement and every juror
            strongly agree [sic] that nothing could be
            made to change his mind.

            In response, the District Court proposed to the parties

that he give an Allen charge.      The government agreed.    Defense

counsel, however, asked the District Court to declare a mistrial

instead.    The District Court denied the request for a mistrial.




                               - 11 -
          The District Court then asked whether defense counsel

had any objections to the court giving an Allen charge.     Defense

counsel stated that, given that his request for a mistrial had

been denied, the charge should be given.

          The District Court proceeded to instruct the jury with

the First Circuit pattern Allen charge.    Before doing so, however,

the District Court made the following additional statement to the

jury, which is not part of the First Circuit pattern Allen charge:

          Now, I am going to instruct you to go back to
          the jury room and resume your deliberations.
          Or, if you need to recess and come back
          tomorrow, do so; it's your decision. And I
          will explain why and give you some further
          instructions as to why this is necessary.

          Now, first of all, let me explain that this is
          a very important case. It's an important case
          for the United States and it's a very
          important case also for Mr. Amaro. The trial
          has been expensive -- and, again, not in money
          but expensive in time, effort, and emotional
          strain to all Counsel in this case -- they
          worked extremely hard.      And what they're
          asking is that the respective clients, the
          United States and Mr. Amaro, have their day in
          court.

          The court also has put a lot of time and effort
          into this case, and I also know that you have
          put a lot of time and effort into this case.
          And I also remind you that it is your
          constitutional duty, as jurors, to try to
          reach a verdict following the instructions
          that I gave you and which I will repeat in
          part.    Now, if you're unable to reach a
          verdict, the trial will remain open and
          another jury will have to be selected to try
          this case.



                              - 12 -
             After receiving the charge, the jurors returned to their

deliberations.       Approximately forty minutes later, the jury asked

to review the video recording of the drug transaction.             The jury

was given the recording.          At 12:15 a.m. the next day, after

approximately three hours of post-Allen charge deliberations, the

jury reached a verdict of guilty on all counts.

                                       B.

             A district court's decision not to declare a mistrial

when confronted by a deadlocked jury is reviewed for abuse of

discretion.     United States v. Peake, 804 F.3d 81, 98 (1st Cir.

2015), petition for cert. filed, 84 U.S.L.W. 3527 (Mar. 9, 2016)

(No. 15-1134).       We see none here.

             Amaro   contends   that   the   "deadlock   should   have   been

respected" because "[t]he jury had demonstrated fully through a

long day and evening of deliberations that it had fully discharged

its duty to consider the evidence and reach a conscientious

decision."     But we have held that judges have acted within their

discretion in denying motions for a mistrial after trials and

deliberations of similar lengths to this one and in cases in which

the indications that the jury was deadlocked were stronger.              See

id. at 99 (holding that the district court did not abuse its

discretion when it denied the defendant's request for a mistrial

after a nine-day trial, two half-days of deliberations, and two

notes from the jury stating that it could not reach a verdict);


                                   - 13 -
see also United States v. Rengifo, 789 F.2d 975, 977-78, 985 (1st

Cir. 1986) (holding that the trial court's denial of a mistrial

and giving of an Allen instruction "was the correct response to

the information that the jury was at an impasse" after seven hours

of deliberations and two notes from the jury stating that it was

deadlocked).   And so, as in those cases, we conclude the judge did

not abuse his discretion in denying the motion for a mistrial in

this case.1

                                      C.

           Amaro's challenge to the content of the District Court's

Allen charge is presented for the first time on appeal, and so he

must show plain error.       United States v. Vanvliet, 542 F.3d 259,

266 (1st Cir. 2008).     Amaro must therefore show that "the Allen

charge   contained   error    which    was   obvious   and   affected   his

substantial rights, and that we should exercise our discretion to

reverse such an error because it 'seriously affected the fairness,

integrity or public reputation of judicial proceedings.'"               Id.

(quoting United States v. Hernández-Albino, 177 F.3d 33, 37-38

(1st Cir. 1999) (internal quotation marks and brackets omitted)).

And to establish that his substantive rights were affected by such




     1  Nor are we persuaded by Amaro's entirely speculative
argument that the deadlock "could very well have been the result
of the prosecutor's improper misstatement of the law regarding the
duress defense" because "the jury asked for the duress instruction
on two occasions after the judge gave the curative instruction."


                                 - 14 -
error, Amaro must show that the Allen "'charge in its context and

under all the circumstances' coerced the jury into convicting him."

Hernández-Albino, 177 F.3d at 38 (quoting Lowenfield v. Phelps,

484 U.S. 231, 237 (1988)).

            An Allen charge, by its nature, "can have a significant

coercive   effect     by   intimating   that   some   jury   members   should

capitulate to others' views, or by suggesting that the members

should compromise their rational positions in order to reach an

agreement."     Id.    And so, "[a]lthough federal courts have long

sanctioned the use of supplemental charges in the face of an

apparent impasse . . . , we have warned that such action should be

undertaken with 'great caution.'"        Id. (citation omitted) (quoting

Flannery, 451 F.2d at 883).

            In order to militate against the inherently coercive

nature of an Allen charge, we have required that such a charge

"contain three specific elements to moderate any prejudice."             Id.

Specifically, it must "(1) communicate the possibility of the

majority and minority of the jury reexamining their personal

verdicts; (2) restate the government's maintenance of the burden

of proof; and (3) inform the jury that they may fail to agree

unanimously."    Peake, 804 F.3d at 98.

            The Allen charge at issue here did all three of those

things.    Amaro nonetheless contends that the charge was improperly

coercive because it failed to do something else: refer back to


                                   - 15 -
Amaro's duress defense.   He contends that because the Allen charge

"totally eliminated any mention of the affirmative defense[,] the

juror[s] that might have been individually considering acquittal

due to the defense lost legitimacy and were coerced by that

charge."

           But we have never held that a district court must

instruct a jury on a defense in an Allen charge. Thus, the District

Court's decision to give a charge that communicated the three

elements set forth in our prior case law was not clear or obvious

error. Cf. Vanvliet, 542 F.3d at 270 (failure to give Allen charge

before the jury retired was not plain error because "[w]e have not

even discussed the desirability of this practice in our own circuit

precedents").

           More promising for Amaro is his contention that the

District Court included language in the charge that is not in the

pattern instruction and that was likely to push jurors who were

leaning toward acquittal to abandon that position and vote for

conviction.   After all, we have previously advised trial courts to

"avoid substantive departures from the formulations of the [Allen]

charge that have already received judicial approval" and adding to

those formulations "language which might heighten" the "coercive

effect" of such charges.     Flannery, 451 F.2d at 883.    And the

portions of the charge that Amaro challenges exemplify the problem

with such ad libbing.


                              - 16 -
          Amaro notes that, in going off-script, the District

Court instructed the jurors that it was their "constitutional duty"

to "try to reach a verdict."      Amaro also points to the District

Court's   statement   to   the   jury     that   the   trial     had   been

"expensive . . . not in money but expensive in time, effort, and

emotional strain to all Counsel in this case -- they worked

extremely hard," and that "[t]he court also has put a lot of time

and effort into this case."2 And he objects to the District Court's

statement that if the jury failed to reach a verdict, "the trial

will remain open and another jury will have to be selected to try

the case," on the ground that the statement suggested that "it

would be the jury's failure to reach a verdict that would be cause

of putting a second jury through the process."3                Finally, he




     2 The government contends that this instruction "merely stated
the obvious to a jury that had sat through an eight-day trial."
That may be true, but the concern remains that, in combination
with the other statements, the District Court's statement
suggested the jurors should come to a decision because of the cost
in "time, effort and emotional strain" to counsel and the court.
     3 The government argues that the language Amaro points to is

"no more coercive" than instructions that this Circuit approved in
United States v. Nichols, 820 F.2d 508 (1st Cir. 1987). But the
instruction in Nichols -- that the jury should consider that it
was "selected in the same manner and from the same source from
which any future jury must be selected" and that there is no reason
to believe that a future jury would be "more intelligent, more
impartial or more competent" to decide the case -- simply
encourages jurors to see themselves as capable of reaching a
verdict. Id. at 511-12. By contrast, the instruction the District
Court gave in this case suggested the jury would be burdening
another group of twelve people -- and the District Court -- if it
did not reach a verdict.


                                 - 17 -
contends that this aspect of the charge was incorrect, as it was

possible the government would decide not to try the case again and

thus that a second jury would not be "put[] . . . through the

process."

            We are troubled by the aspects of the District Court's

supplemental instructions that Amaro highlights.       For while the

District Court was free to tell the jury to "try to reach" a

verdict, the supplemental instruction as a whole included much

that seemed to pressure the jury to do more than simply try.      In

fact, we have criticized language similar to the language the

District Court used in this case.    See United States v. Paniagua-

Ramos, 135 F.3d 193, 198 (1st Cir. 1998) (stating that "the aura

of compulsion" in the trial court's Allen charge, which did not

include all three necessary elements, "was intensified" by the

court's statements that jury indecision "'is not going to be the

end of this' and that 'in the long run' 'I will have to simply try

this case again'"); Angiulo, 485 F.2d at 39 (disapproving of the

trial court's statements to the jury about the expense of trial

and that the court did not want to try the case again); Flannery,

451 F.2d at 883 (disapproving of the district court's statement

that "the case must at some time be decided").

            But even if the District Court's use of this supplemental

language was clear or obvious error, Amaro still has not shown

that the District Court's Allen charge "'in its context and under


                                - 18 -
all the circumstances' coerced the jury into convicting him," such

that his substantial rights were affected.        Hernández-Albino, 177

F.3d at 38 (quoting Lowenfield, 484 U.S. at 237).              In reaching

this conclusion, we acknowledge, as we have before, that there is

no way to be sure of the impact on a jury of an Allen charge.          See

Angiulo, 485 F.2d at 40 ("The impact [of an Allen charge] can never

be assessed accurately, for the relevant events take place in the

secrecy of the jury room, and never appear in the trial record.").

We nonetheless look to the factors that we have identified in the

past as indicative of whether such a charge was coercive, and here

those factors do not support a finding of prejudice.

          After receiving the Allen charge, the jurors continued

to deliberate for three hours, which is a period of time that we

have characterized before as a "significant period of reflection"

that counsels against finding a charge had a coercive effect.          See

Vanvliet, 542 F.3d at 270; see also Hernández-Albino, 177 F.3d at

39 (collecting cases in which post-charge deliberations of even

one hour or less weighed against finding coercion).           Moreover, the

core factual dispute in the case was a relatively straightforward

one -- whether Amaro was a willing or unwilling participant of the

drug   transaction    --   and   the   three     hours   of    post-charge

deliberations constituted one-quarter of the total time the jury

spent deliberating.    These facts, too, point against a conclusion

that the charge had a coercive impact.         See Hernández-Albino, 177


                                 - 19 -
F.3d at 39 (the fact that the jury deliberated for a total of "3

1/2 hours, of which the deliberations after the Allen charge

represented one third," "negate[d] any suggestion of coercion"

where "[t]he jury's task was [the] relatively straightforward" one

of determining whether the defendant was "merely present" or

actively involved in a drug conspiracy).

          More   significant   still,   less   than   an   hour   after

receiving the Allen charge, the jury asked to review the videotape

of the staged drug transaction and then continued deliberating for

more than two hours.     The jury's request to review this evidence

further suggests that the jurors took seriously the District

Court's instruction to "re-examine their positions" and "decide

the case if [they could] conscientiously do so," and thus that the

jurors did not reach their unanimous decision due to coercion

imposed by the charge.

          In sum, the language of the instruction is concerning

and confirms the importance of district courts, in accord with our

prior admonitions, hewing to the pattern instruction when giving

an Allen charge.   But this charge was not so clearly coercive on

its face as to compel a finding of prejudice, even if we assume

that some such charging language could.    See Lowenfield, 484 U.S.

at 239 (acknowledging that the language of one Allen charge may be

more coercive than the language of another).      And so, given the

other indications from the record that bear on our assessment of


                               - 20 -
the harm that might have flowed from the problematic aspects of

the charge, we conclude that Amaro has not met his burden of

showing that the jury was coerced.           Amaro therefore has not shown

that the District Court's Allen charge constituted plain error.

                                     IV.

             Amaro's final challenges to his convictions attack the

sufficiency of the evidence presented against him.                    "We review

challenges to the sufficiency of the evidence de novo, 'considering

all the evidence, direct and circumstantial, in the light most

favorable to the prosecution, drawing all reasonable inferences

consistent with the verdict, and avoiding credibility judgments,

to determine whether a rational jury could have found the defendant

guilty beyond a reasonable doubt.'"             United States v. Negrón-

Sostre, 790 F.3d 295, 307 (1st Cir. 2015) (quoting United States

v.   Alejandro-Montañez,      778   F.3d     352,   357   (1st   Cir.     2015))

(alteration omitted).

                                      A.

             Amaro argues that the trial evidence was insufficient to

convict him of the count of conspiracy to possess with intent to

distribute cocaine because "[t]here is no evidence that [he] joined

the sham transaction conspiracy at any point prior to the entry

into   the   apartment   on   May   28,    2010,"   or    that   he    "had   any

involvement with any of the targets after May 28, 2010."                  To the

extent Amaro means to argue that the absence of such evidence


                                    - 21 -
precluded a reasonable jury from finding that he knowingly and

voluntarily participated in the conspiracy -- as the government

was required to prove, see United States v. Dellosantos, 649 F.3d

109, 116 (1st Cir. 2011) -- he is mistaken.

            Amaro testified that he met with the two police officers

who provided protection for the same drug transaction before

traveling to the apartment where the drug transaction took place.

And the jury reviewed a video recording of the drug transaction

itself, in which Amaro is observed counting the sham cocaine,

helping to frisk the drug courier, and keeping watch as the drug

courier   purchased   the   sham   cocaine.   From   this   evidence,   a

reasonable juror could have concluded beyond a reasonable doubt

that Amaro entered the apartment having agreed to play the role of

security guard during the drug transaction in exchange for payment.

See United States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999)

("Jurors are entitled to draw reasonable inferences from proven

facts.").

                                     B.

            Amaro next contends that, given the record evidence, no

reasonable juror could have rejected his defense that he acted

under duress and thus that no reasonable juror could have found

him guilty beyond a reasonable doubt on any of the counts of which

he was convicted.     The parties appear to agree that, in reviewing

this argument, the question is whether any reasonable juror could


                                   - 22 -
have found by a preponderance of the evidence that Amaro did not

act under duress.         But even assuming, favorably to Amaro, that the

question is whether any reasonable juror could have found beyond

a reasonable doubt that Amaro did not act under duress, see United

States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996); United States

v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992), we conclude that

Amaro's challenge fails.

              To find an absence of duress, a reasonable juror would

have to find that Amaro did not "act[] under an immediate threat

of serious bodily injury or death" with "a well grounded belief

that the threat would be carried out[] and . . . no reasonable

opportunity to escape or otherwise to frustrate the threat."

Amparo, 961 F.2d at 291.          Amaro testified that he acted under an

"immediate threat" when he aided the sham drug transaction.                  He

testified that he went to the apartment only in an effort to borrow

$400   from    one   of    the   two   police   officers   who   also   provided

protection for the drug transaction.              And he testified that he

stayed in the apartment only because he felt that his life would

be in danger if he tried to leave.

              But "[c]redibility determinations are uniquely within

the jury's province, and we defer to the jury's verdict if the

evidence can support varying inferences." United States v. García-

Ortiz, 528 F.3d 74, 83 (1st Cir. 2008) (quoting United States v.

Calderón, 77 F.3d 6, 10 (1st Cir. 1996)). Here, the video evidence


                                       - 23 -
could support, beyond a reasonable doubt, a finding that Amaro's

testimony that he acted under duress was not credible.                See United

States v. Rodriguez-Alvarado, 952 F.2d 586, 589 (1st Cir. 1991)

(noting that "a state of mind" "can rarely be proven by direct

evidence,"    and    "is     usually   established     by   drawing   reasonable

inferences from the available facts" (quoting United States v.

Bank of New England, 821 F.2d 844, 854 (1st Cir. 1987))). In

particular, the video recording of the staged drug transaction

shows everyone, including Amaro, appearing relaxed throughout,

with Amaro spending much of the time sitting on a couch, drinking

a beer, and laughing.            Even the sham drug dealer's chain-saw

comments to Amaro are mixed with laughter, as if they are jokes.

                                         V.

             Amaro also challenges his sentence, and he does so on

two grounds.        Both of his challenges concern the jury's finding

that   his    two     drug    offenses    involved     eleven    kilograms    of

cocaine -- a finding that subjected him to a ten-year mandatory

minimum in this case.         See 21 U.S.C. § 841(b)(1)(A).       Amaro argues

that because of the problems he has identified, the case should be

"remanded    for     resentencing      without   the   applicability     of   the

minimum mandatory sentence" of ten years.

                                         A.

             Amaro first argues that the District Court committed

error under Alleyne v. United States, 133 S. Ct. 2151 (2013).


                                       - 24 -
Specifically, Amaro argues that the District Court did not instruct

the jury, and thus the jury did not find, that the amount of

cocaine attributable to Amaro was an element of the offense that

needed to be proven beyond a reasonable doubt.

              As Amaro concedes that he did not raise this issue below,

our review is for plain error.         See United States v. Harakaly, 734

F.3d 88, 94 (1st Cir. 2013).        Amaro must therefore show "that the

error   was    clear   or   obvious,   and   that   it   both    affected   his

substantial      rights     and   'seriously    impaired        the   fairness,

integrity, or public reputation of judicial proceedings.'"              United

States v. Ramos-González, 775 F.3d 483, 499 (1st Cir. 2015)

(quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir.

2013)).   He has failed to do so.

              Alleyne did not hold that a trial court must identify

weight as an element of an offense in instructing the jury.

Alleyne simply holds that, where weight increases the statutory

minimum, it is an element and thus must be proven beyond a

reasonable doubt.         See Alleyne, 133 S. Ct. at 2155.            As Amaro

acknowledges, the District Court clearly did instruct the jury

that it must find the drug quantity beyond a reasonable doubt.              So

while the District Court did not specifically inform the jury that

drug quantity was an element of the offense, the District Court

did not plainly err in failing to do so.




                                    - 25 -
             Nor are we persuaded by Amaro's contention that our

decision in United States v. Delgado-Marrero, 744 F.3d 167 (1st

Cir. 2014), requires a different conclusion.          In ruling that the

instructions on drug quantity in Delgado were inadequate, we

rejected the government's argument that because "the initial jury

instructions unequivocally established the government's duty to

prove each element of the underlying offense beyond a reasonable

doubt," the jury had been properly instructed that drug quantity

must be found beyond a reasonable doubt.     Id. at 186.      We explained

that   the    government's   argument   "presume[d]    that   the   jurors

understood that . . . 'drug quantity' was an element of the

underlying crime," but "[n]othing in the record support[ed] that

presumption."    Id.   We thus held that "given the timing and manner

in which the question was presented, the jurors understandably may

have failed to appreciate that the additional question represented

something more than an inconsequential afterthought."          Id. at 187.

             But here the jury was specifically instructed in advance

of its deliberations that it needed to find the requisite drug

quantity beyond a reasonable doubt.       Thus, while in Delgado there

was a "reasonable likelihood" that the jury understood the court's

limited instructions to permit the application of something other

than the reasonable doubt standard in assessing drug quantity, id.

at 187-89; see United States v. Paz-Alvarez, 799 F.3d 12, 23-24




                                 - 26 -
(1st Cir. 2015) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)),

that is not so in this case.4

                                  B.

          Amaro next argues that, even if the jury was properly

instructed on drug quantity, the evidence was insufficient to

support a finding that the quantity of cocaine attributable to his

offenses exceeded five kilograms.        For that reason, he contends,

he should be resentenced without the ten year mandatory minimum

that applied because of that finding.

          Amaro argues that there was "no evidence of the actual

weight of the [sham] cocaine in this case."        But the jury needed

to find beyond a reasonable doubt only that Amaro believed that

the amount of cocaine involved in the transaction exceeded five

kilograms in order for Amaro to be subject to a ten-year mandatory

minimum sentence.   See United States v. Sánchez-Berríos, 424 F.3d

65, 78 (1st Cir. 2005) (holding that "[a] culpable conspiracy may

exists even though the conspirators misapprehend certain facts");

United States v. Medina-Garcia, 918 F.2d 4, 7-8 (1st Cir. 1990)

(holding that "factual impossibility" is not a "defense to a charge


     4 Amaro also argues, albeit in passing, that the District
Court erred because it instructed the jury only that it must find
the amount of drugs involved in the drug transaction, rather than
the amount of drugs attributable to Amaro. But the District Court
instructed the jury to "make a finding as to the quantity of
[cocaine] that Mr. Amaro either conspired or attempted to possess."
And while the verdict form was not as precise as those
instructions, Amaro does not challenge that form.


                                - 27 -
of    attempt"   because   "[t]he   criminal   intention   to   commit   the

substantive crime . . . together with the fact that the crime was

not consummated due to an external fact, are sufficient to charge

[a]    defendant    with   an   attempt"     (internal   quotation   marks

omitted)).       And the record provides clear support for such a

finding.

             The video recording of the sham drug transaction shows

Amaro counting brick-shaped objects that had been designed to look

like kilograms of cocaine.          Amaro testified at trial that he

thought each of the "bricks" was a kilogram of cocaine.                  The

evidence further showed that there were eleven bricks, and that

Amaro counted all eleven and announced that count to the group.

The jury could thus conclude beyond a reasonable doubt that Amaro

believed that the total weight of the cocaine involved in the

transaction was eleven kilograms.

                                     VI.

             Having found no error, we affirm Amaro's convictions and

sentence.




                                    - 28 -
