          United States Court of Appeals
                     For the First Circuit


No. 14-1194

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      VÍCTOR MANUEL CARELA,

                      Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                  Torruella, Selya, and Lynch,
                         Circuit Judges.



     Patricia A. DeJuneas, with whom Sibbison & DeJuneas, was on
brief, for appellant.
     Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.



                        November 4, 2015
          TORRUELLA, Circuit Judge.          This appeal arises out of

Defendant-Appellant Víctor Manuel Carela's ("Carela") involvement

in a drug smuggling operation.       Carela was convicted on two counts:

(1) conspiracy to possess with intent to distribute five kilograms

or more of cocaine; and (2) possession with intent to distribute

five kilograms or more of cocaine.         Finding no reversible error,

we affirm his conviction and sentence.

                             I.    Background

          On September 16, 2012, a multi-agency1 investigation was

initiated in regard to suspected drug trafficking in the coastal

area along Yabucoa and Maunabo, Puerto Rico.        At 4:00 a.m. in the

morning of September 17, 2012, Border Patrol agents observed an

unlit vessel approaching Maunabo.          The law enforcement officers

participating    in   this        investigation   requested   helicopter

assistance from the Puerto Rico Police Department, which was

shortly dispatched.    The helicopter spotted a thirty-three foot

vessel and communicated its location to law enforcement officers

on the ground.

          Around this same time, officers led a tactical land

approach in the area and discovered a red Ford Excursion surrounded


1  This investigation involved agents from the U.S. Customs and
Border Patrol, U.S. Coast Guard, Puerto Rico Police Department,
and Yabucoa Municipal Police Department.


                                     -2-
by multiple gas tanks along with other supplies such as food and

drink.    Proceeding    to    the   beach,   officers   uncovered   918.7

kilograms of cocaine hidden within the nearby bushes.

          Later that day, officers for the Municipal Police of

Yabucoa ("Yabucoa officers") were told that a shipment of drugs

had been intercepted along the Maunabo coastline.           The Yabucoa

officers were instructed to patrol the area in order to locate

individuals that may be linked to the intercepted shipment.          The

Yabucoa officers encountered Carela hitchhiking on a section of

the PR-901 road that was two miles from the sea.        When the Yabucoa

officers approached Carela in a marked police vehicle, he jumped

over the railing on the side of the road and down a precipice.

          A few minutes later, the Yabucoa officers encountered

Carela a second time.        This time, the Yabucoa officers stopped

their vehicle and approached Carela on foot.       The Yabucoa officers

asked Carela, who was dressed in jet skiing shoes and wet clothing,

what he was doing in the area.            Carela responded that he was

collecting metal.2     The Yabucoa officers continued to speak with

Carela, who appeared agitated, tired and pale, and invited him to



2  Carela did not have any metal on his person. Further, one of
the Yabucoa Police officers that encountered Carela testified that
she has never seen any individuals collecting metal in the area in
which Carela was found.


                                    -3-
drink some water in their car.       While Carela was drinking water,

the Yabucoa officers again asked him what he was doing in the area

and Carela indicated that he had been on a boat.         At this juncture,

the Yabucoa officers arrested Carela and read him his rights.

Carela had no identification or cell phone on his person and only

a small amount of cash.

           On the ride to the police station, Carela told the

Yabucoa officers that he was supposed to be paid "$5,000 for the

task, . . . but since it wasn't completed, he was not going to

receive it."    Later that day, Carela was interrogated by Agent

Carlos   Martínez,   a   Homeland   Security    agent.    Agent   Martínez

testified that Carela appeared "excited," "happy," "pumped up,"

and "very cooperative" during his interrogation.          Carela admitted

to the agent that he was hired for this "drug smuggling venture

[and] that his job was to refuel the vessel that was coming in

with the narcotics."     Carela further admitted that he assisted in

the offloading of narcotics from the vessel.

           Carela was indicted on: (1) conspiracy to possess with

intent to distribute five kilograms or more of cocaine; and (2)

possession with intent to distribute five kilograms or more of

cocaine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii); 846.         On April 22,

2013, Carela's first trial ended in a mistrial because the jury

could not reach a unanimous verdict.           Carela was tried a second

                                    -4-
time and convicted on both counts.              On January 22, 2014, Carela

was sentenced to 196 months of incarceration.             This timely appeal

followed.

                               II.    Discussion

            Carela    raises     a     number     of    issues   on    appeal.

Specifically, Carela argues that: (1) the district court erred

when it admitted an unexecuted draft contract into evidence in

violation of the Federal Rules of Evidence; (2) the district judge

made    several      improper        remarks     that    violated     Carela's

constitutional rights; (3) the district court improperly admitted

testimony in Spanish in violation of the Jones Act, 48 U.S.C.

§ 864; (4) the Government engaged in prosecutorial misconduct; and

(5) Carela's sentence was both procedurally and substantively

unreasonable.     We consider Carela's contentions below.

A.   The Unexecuted Draft Contract

            1. Background

            During the course of the second trial, the Government

sought to introduce an unsigned copy of a draft sales contract

(the "draft contract") via which Edwin Léon-Léon ("Léon") sold

Carela the red Ford Excursion that law enforcement officers found

on the beach on September 17, 2012.              The Government also called

Léon to testify that Léon and Carela had executed the draft

contract.    After hearing Léon's testimony, the district court

                                       -5-
admitted   the   draft    contract     into    evidence,      over    Carela's

objections regarding the authenticity of the document, because

Léon did not keep a copy of the original and Léon attested that he

gave the original to Carela when the sale was executed.

           Carela now argues that the draft contract was improperly

admitted   because   it   is   proscribed     hearsay   and   its    admission

requires a new trial.

           Carela concedes that he did not object to the admission

of the draft contract on hearsay grounds and that plain error

review would normally apply.       See United States v. Avilés-Colón,

536 F.3d 1, 22 (1st Cir. 2008).        Nonetheless, Carela argues that

because he objected to the admissibility of the draft contract on

the ground that it could not be authenticated, we should apply

closer scrutiny.     United States v. Jefferson, 925 F.2d 1242, 1254

(10th Cir. 1991) (stating that closer scrutiny may be appropriate

when the failure to preserve the precise grounds for error is

mitigated by an objection on related grounds).

           2. Applicable Law and Analysis

           As noted above, we generally employ plain error review

when a party has failed to preserve an objection in the lower

court. United States v. Acevedo-Maldonado, 696 F.3d 150, 156 (1st

Cir. 2012) (citing United States v. Rodríguez, 525 F.3d 85, 95

(1st Cir. 2008) (plain error review applies where defendant failed

                                     -6-
to object on hearsay grounds)).             Carela argues that we should

apply closer scrutiny, but fails to cite to any case law affirming

that we are bound to do so.        Nonetheless, we note that his claims

still fail under this rubric.

           When reviewing for plain error, we ask whether "(1) an

error occurred; (2) the error was clear and obvious; (3) the error

affected the defendant's substantial rights; and (4) the error

impaired the fairness, integrity, or public reputation of the

judicial proceedings."       United States v. Ramos, 763 F.3d 45, 56

n.15 (1st Cir. 2014) (citation omitted).

           Here, the prosecution sought to introduce the contract

as additional evidence that linked Carela to the drug smuggling

operation.        The   Government's   case    did   not      depend   on   the

introduction of the draft contract into evidence because there was

already ample evidence against Carela, which included: (1) Carela

met law enforcement officers while hitchhiking in an area that is

known to be a drug delivery point; (2) Carela was found within two

miles of where the shipment of cocaine had been found several hours

earlier   while    wearing   jet   skiing    shoes   in   a   disheveled    and

dehydrated state; (3) the Yabucoa officers who are from the area

did not immediately recognize Carela; (4) Carela provided police

with an unlikely story that he was in the area collecting metal

even though the area is not known for metal collection; (5) Carela

                                     -7-
admitted to the police that he had been on a boat and that he had

accepted an offer of $5,000 to unload cocaine; and (6) Carela was

wet when he was patted down.      As a result, whether Carela did in

fact purchase the Ford Excursion is not essential to link him to

the drug conspiracy.     Because there was an overwhelming amount of

other evidence against Carela, we are unable to conclude that the

admission    of   the   draft   contract    somehow   violated   Carela's

substantive rights.

            In light of the ample evidence against Carela, the

district court's admission of the draft contract did not impact

Carela's substantial rights.       Our conclusion would be the same

under the closer scrutiny approach.        Thus, we find that it was not

plain error for the district court to admit the draft contract

into evidence.

B. Whether the District Court Judge Erred by Commenting on the
   Evidence

            1. Background

            During the course of the second trial, the district court

judge stated in open court that he would allow the draft contract

to be presented as evidence because (1) the draft contract had

been authenticated; (2) the draft contract was admissible because

the original copy of the contract was lost or destroyed; and (3)

the original contract could not be subpoenaed from the purchaser.


                                   -8-
            In a subsequent sidebar conference, the district court

judge again stated that he would admit the draft contract because

Léon did not keep a copy of the original and the original copy of

the draft was not available.

            Carela argues that the district court's ruling violated

his Fifth and Sixth Amendment rights because it improperly endorsed

the Government's position.       This ruling, Carela argues, deprived

the jury of its corresponding factual determination because it

prevented   the   jury   from   deciding    whether   the   original   sales

contract ever existed, whether Léon kept a copy of the original

contract, and whether Léon gave a credible explanation as to why

the original contract was missing.         Carela avers that the district

court's ruling constituted error and requests a new trial.

            2. Applicable Law and Analysis

            Carela did not contemporaneously object to the comments

at issue during the proceedings below.         As a result, we review the

district judge's comments under the plain error standard.

            A trial judge "retains the common law power to question

witnesses and to analyze, dissect, explain, summarize and comment

on the facts and evidence."       Logue v. Dore, 103 F.3d 1040, 1045

(1st Cir. 1997) (citations omitted).          However, the judge may not

overstep his bounds and give an impression of judicial bias.

United States v. Rivera-Rodríguez, 761 F.3d 105, 111 (1st Cir.

                                    -9-
2014).   Improper judicial intervention will seriously prejudice a

defendant's case if there is a reasonable probability that, but

for the error, the verdict would have been different.      Id. at 112.

In order to determine if there was judicial bias, we consider each

intervention in the context of the trial as a whole, whether the

comments were improper, and whether the complaining party can show

serious prejudice.   Id. at 111.

           Federal Rule of Evidence 1008 establishes that the jury

generally determines whether a writing produced at trial is the

original writing.    Fed. R. Evid. 1008.   In the same vein, we have

held that the Sixth Amendment guarantees a criminal defendant the

opportunity for a jury to decide guilt or innocence.     United States

v. Bello, 194 F.3d 18, 25 (1st Cir. 1999).

           Here, we do not find that the district court judge acted

improperly or that he decided Carela's guilt or innocence.        The

statements that Carela objects to are part of the district court's

ruling regarding the admissibility of the draft contract.          In

light of the trial as a whole, we cannot conclude that the district

court's ruling to admit the draft agreement in open court somehow

prejudiced Carela.   As stated in the preceding section, there was

significant evidence in this case against Carela.      Thus, we cannot

conclude that but for the district court's ruling the result of

the proceeding would have been different.

                                -10-
          We further note that our review of the transcripts to

which Carela refers yields no commentary or question by the trial

judge   that     exceeds   the     bounds   of   acceptable   judicial

participation.     See Acevedo-García v. Monroig, 351 F.3d 547, 561

(1st Cir. 2003).

          As such, we find that the district court's comments were

proper and did not endorse the Government's position.

C. Whether the Jones Act was violated

          1. Background

          Carela claims that the Jones Act3 was violated because

on the second day of trial, Agent Martínez testified to the Spanish

version of Carela's statement.       In simpler terms, Agent Martínez

testified that Carela told him that he had been driving "a red-

type guagua, tipo guagua."       Carela posits that there is no English

meaning of the word "guagua" or "tipo" and that this statement

violated the Jones Act and necessitates a new trial.

          Carela further takes issue with what he characterizes as

the prosecutor's attempt to get around the Jones Act by attempting

to translate "guagua" as a red truck during the Government's



3  The Jones Act requires that all pleadings and proceedings in
the United States District Court for the District of Puerto Rico
be conducted in the English language. 48 U.S.C. § 864; see also
United States v. Millán-Isaac, 749 F.3d 57, 63 (1st Cir. 2014).


                                   -11-
closing.4 Carela vociferously argues that this is an inaccurate

translation of the word "guagua," which according to Carela can

only mean bus.

             2. Applicable Law and Analysis

             Carela readily concedes that no Jones Act objections

were raised below.       As a result, we review for plain error.                   See

United States v. Mescual-Cruz, 387 F.3d 1, 12 (1st Cir. 2004).

             In    general   terms,    a       prosecutor's     comment     does   not

violate the Jones Act so long as the proceedings were conducted in

English. United States v. Báez-Martínez, 786 F.3d 121, 127 n.1

(1st Cir. 2015) (clarifying that an occasional reference to a

foreign language word or phrase by a lawyer or witness does not

offend the Jones Act).

             Further, a violation of the English language requirement

constitutes        reversible   error          whenever     the    appellant       can

demonstrate that the untranslated evidence "has the potential to

affect the disposition of an issue raised on appeal."                         United

States v. Rivera-Rosario, 300 F.3d 1, 10 (1st Cir. 2002).                   However,

there   is    no    prejudice   from       a    Jones     Act   violation    if    the

untranslated evidence lacks such potential.                 Id.


4  The prosecutor stated during his closing "[h]e tells us that he
was in a red guagua, in a red truck, to go to the area to provide
his services."


                                       -12-
          We cannot find that there was a Jones Act violation in

this case.   There is no dispute that testimony in question was

delivered in English.     It is true that the English testimony was

peppered with Spanish colloquialisms.         However, an occasional

reference to a Spanish word or words does not offend the Jones

Act.

          Carela did not suffer any prejudice here.        The disputed

statement lacks the potential to impact the disposition of the

issue raised on appeal.     As has already been discussed in this

opinion, the record shows that there was ample evidence linking

Carela to the charged conduct.    The passing references to "guagua"

and "tipo" lack any potential to change the outcome of this case.

Although the prosecutor may have attempted to translate "guagua"

during his closing remarks, the reference also lacked any potential

to prejudice Carela or to affect the disposition of the case.

          In light of the foregoing, we conclude that there was no

violation of the Jones Act.       We further conclude that Carela

suffered no prejudice.

D. Alleged Prosecutorial Misconduct

          1. Background

          Carela   maintains   that   the   prosecutor's   closing   and

rebuttal arguments constituted prosecutorial misconduct and merit



                                 -13-
reversal.5     Carela argues that the prosecutor improperly: (1) told

the jury that the red Ford Excursion was registered in Carela's

name   when    in   fact   it   was    not;    (2)   misrepresented      the   legal

significance of the draft contract by calling it a contract instead

of a draft contract and claiming that it certified the details of

the sale; and (3) implied that Carela was charged with a conspiracy

to possess with intent to distribute more than five kilograms of

cocaine, and substantive possession in an uncharged conspiracy.

              According to Carela, the context of the prosecutor's

intentional     misconduct      must    favor    reversal     because:    (1)   the

allegedly     improper     statements     were       made   during   closing    and

rebuttal arguments after the court instructed the jury -- a

"delicate point in the trial process," United States v. Taylor, 54

F.3d 967, 977 (1st Cir. 1995); (2) the misconduct occurred after

the jury in the first trial had failed to convict him; and (3) the

United States Attorney's Office in the District of Puerto Rico,

where the case was tried, allegedly has a long-standing problem of

prosecutorial misconduct during closing arguments.




5  Carela argues that his Jones Act violations claims also qualify
as forms of prosecutorial misconduct. However, as we have already
stated in our preceding section, there was no Jones Act violation
in this case.


                                        -14-
             2. Applicable Law and Analysis

             Because Carela did not raise these objections during

trial, this Court reviews the prosecutor's comments under the plain

error standard.         United States v. Glover, 558 F.3d 71, 77 (1st

Cir. 2009).       In the context of prosecutorial misconduct, this

Court reverses a district court "only if the prosecutor's remarks

'so   poisoned    the    well   that    the     trial's    outcome     was   likely

affected.'"      United States v. Vázquez-Larrauri, 778 F.3d 276, 283

(1st Cir. 2015) (quoting United States v. Kasenge, 660 F.3d 537,

542   (1st   Cir.   2011)).        When   determining       whether      there   was

prosecutorial misconduct, we consider the following factors: "(1)

the severity of the prosecutor's misconduct, including whether it

was   deliberate    or    accidental;     (2)    the   context    in     which   the

misconduct     occurred;     (3)    whether      the      judge   gave    curative

instructions and the likely effect of such instructions; and (4)

the strength of the evidence against the defendant[]."                           Id.

(citation and internal quotation marks omitted) (alteration in

original).     We further note that when assaying the prosecutor's

remarks, context often determines meaning.                    United States v.

Sepúlveda, 15 F.3d 1161, 1187 (1st Cir. 1993).                    In borderline

cases, the standard of review can also figure importantly.                       Id.

"[I]n the absence of a contemporaneous objection it seems fair to



                                       -15-
give the arguer the benefit of every plausible interpretation of

her words." Id.       (citations omitted).

            The Government concedes that the Ford Excursion was not

registered to Carela.           However, the Government argues that no

error resulted from a twice made comment during a long closing.

We note that an unintentional misrepresentation of the record may

constitute misconduct under certain circumstances.                   United States

v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007).

            Although      the   prosecutor's      statements        at   issue   were

inaccurate, they did not so poison the well that "the trial's

outcome was likely affected."            Vázquez-Larrauri, 778 F.3d at 283

(citation      omitted)    (internal     quotation        marks    omitted).      In

particular, two factors render the prosecutor's comments harmless:

(1) "the district judge gave curative instructions" as to the

jury's   role    in   weighing    the    evidence    and     determining      guilt,

including effective direct reference to the evidentiary value to

be given to lawyers' closing arguments; and, most importantly and

as   alluded    to    above,    (2)   "the     strength    of     evidence   against

[Carela]" (i.e. his admissions and the circumstantial evidence)

outweighs any risk of affecting Carela's substantial rights.                     Id.

            Carela also takes issue with the prosecutor's statement

that the draft contract certified that the Ford Excursion was being

sold and that the draft agreement was "a very specific contract."

                                        -16-
The Government again concedes that the prosecutor's word choice

was far from ideal, but posits that these statements did not affect

the outcome of trial.     We also agree with the Government on this

point.   Although we encourage the Government to refrain from

utilizing this type of language during trial and to ensure that

its statements are factually accurate, we cannot conclude that

Carela suffered prejudice here.      As we have discussed throughout

this opinion, there was an abundance of evidence against Carela in

this case.     In fact, Carela himself admitted to being part of the

conspiracy.     As such, we cannot conclude that the prosecutor's

gaffes poisoned the well and impacted the outcome of trial.

             Carela further claims that the prosecutor improperly

implied that Carela was guilty of an uncharged conspiracy because

he purchased the Ford Excursion.

             [Carela] needed a van. He bought it before in
             July with other co-conspirators. As Mr. Edwin
             Léon Léon explained to you, the transaction
             was somebody came in and paid him cash for the
             vehicle. When he was selling it, two vehicles
             arrived, five or six individuals. He thought
             he was selling to this individual, but then as
             they were ready to sign the documents, he
             said, “No, no, no. Please put it in the friend
             of my relative or friend, Mr. Víctor Manuel
             Carela.” And he has the documents to purchase
             it.

             That’s a conspiracy. More than two individuals
             working together to accomplish what the object
             of the conspiracy is in this case. (Emphasis
             added)

                                 -17-
           Although      the   use     of   the      word    "that"   is    somewhat

ambiguous, we read the prosecutor's statement as referring to the

charged conspiracy to smuggle cocaine and not a conspiracy to

purchase the Ford Excursion.           Moreover, we emphasize that in the

absence of a contemporaneous objection, it seems fair to give the

Government the benefit of every plausible interpretation of the

words in dispute.     Sepúlveda, 15 F.3d at 1187.

           In light of the evidence against Carela, we conclude

that   Carela   failed    to   show    that    the     prosecutor's      statements

resulted in plain error.

E. Whether the Sentence was Unreasonable

           1. Background

           Lastly,    Carela     argues       that    his     sentence     was   both

procedurally and substantively unreasonable.                   Carela attacks his

sentence   on   the   ground    that    the    court        improperly   considered

evidence in Spanish in violation of the Jones Act.                       In simpler

terms, the district court refused Carela's requested minor role

adjustment because it relied on evidence that Carela admitted to

driving a red "guagua."        According to Carela, because there is no

English language evidence that supports a finding that Carela drove

the red Ford Excursion, his sentence is unreasonable.

           Carela points out the following factors to support his

contention that he only played a minor role (i.e. did not occupy

                                       -18-
a position of trust): (1) "he was not trusted with the executed

contract or any other documents related to ownership" of the red

Ford Excursion; (2) he was not given the keys to the red Ford

Excursion; (3) he did not pay for the red Ford Excursion; (4) he

did not drive away in the red Ford Excursion at the time of sale;

(5) he was not paid in advance, or for that matter was never paid,

the $5,000 he was to receive for his services; and, finally, (6)

his role is notably minor if the broad context of the drug

smuggling    conspiracy     --   an   international     operation   requiring

complex logistics management (i.e., coordination of travel from

Venezuela to Puerto Rico) and substantial investment of funds in

the product (i.e., cocaine), labor, and equipment (e.g., transport

Vessel) -- is taken into consideration.           He thus avers that it was

clear error to deny his requested minor role adjustment.

             2. Applicable Law and Analysis

             This   Court        reviews     sentencing      decisions    for

reasonableness based on a totality of the circumstances, and in a

bifurcated    manner:   first,     for     procedural   reasonableness,   and

second, for substantive reasonableness.            United States v. Ayala-

Vázquez, 751 F.3d 1, 29 (1st Cir. 2014).                The district court's

"legal determinations of the Sentencing Guidelines' meaning and

scope" are reviewed de novo, and its factual determinations are

reviewed for clear error.         United States v. Bryant, 571 F.3d 147,

                                      -19-
153 (1st Cir. 2009).                This Court will not "upset the sentencing

court's fact-based application of the guidelines unless it is

clearly erroneous."             United States v. Santos-Batista, 239 F.3d 16,

21 (1st Cir. 2001) (citation omitted).

              In order for a criminal defendant to qualify for a minor

role    reduction          under     United      States    Sentencing      Guidelines      §

3B1.2(b),       he   must       satisfy     a    two-pronged    test:      (1)   "he   must

demonstrate that he is less culpable than most of those involved

in the offenses of conviction;" and, (2) "he must establish that

he is less culpable than most of those who have perpetrated similar

crimes."      United States v. Mateo-Espejo, 426 F.3d 508, 512 (1st

Cir. 2005) (citations omitted). Typically, "[r]ole-in-the-offense

determinations         [e.g.,       minor-role         adjustments]    are   notoriously

fact-sensitive."            United States v. Ortiz-Santiago, 211 F.3d 146,

148    (1st     Cir.       2000).      We       have   held   that    in   making      these

determinations a "defendant who participates in only one phase of

a conspiracy may nonetheless be found to play a non-minor role in

the conspiracy as a whole."                 United States v. Vargas, 560 F.3d 45,

51 (1st Cir. 2009).              Finally, it must be noted that "[r]eliable

hearsay    is    .     .    .   admissible        during   sentencing      proceedings."

United States v. Ramírez-Negrón, 751 F.3d 42, 52 (1st Cir. 2014).

              Here, we have already found that there is no Jones Act

violation.       Further, the district court did not commit a Jones Act

                                                -20-
violation when it stated that Carela "drove the Ford Excursion."

The district court's statement did not prejudice Carela such that

reversal is required here.         In fact, the district court refused

Carela's proposed minor role adjustment on the grounds that Carela

(1) used his name to purchase the red Ford Excursion that was used

to bring 15 cans of gasoline to the landing site in order to refuel

the transport vessel; (2) the red Ford Excursion was going to be

used to transport 38 bales of cocaine found at the vessel landing

site; (3) Carela was paid $5,000; and (4) when Carela used his

name   to   purchase   the   red   Ford    Excursion   there   were   other

individuals with him and it was one of these other individuals who

paid for the Ford Excursion.

            Carela's involvement in the charged offenses was not

dependent on his driving of the Ford Excursion.         Thus, even if the

brief reference to Carela driving the Ford Excursion could have

constituted a Jones Act violation, it would not have prejudiced

Carela.

            Further, denying the minor role adjustment to Carela did

not constitute clear error.           Carela admitted to loading the

cocaine onto a vehicle and transporting the cocaine.           Carela also

admitted that he had been hired to refuel the vessel that was

transporting narcotics.



                                    -21-
           Carela failed to establish that he was less culpable

than the other participants in the offense, or indeed that he was

less culpable than similarly situated offenders.         A lack of profit

or success in the criminal enterprise does not trigger a downward

adjustment for a minor role.       Cf. United States v. García-Ortiz,

657 F.3d 25, 29 (1st Cir. 2011) ("The essential predicate is a

showing   that   the   defendant   is   both   less   culpable   than   his

confederates . . . and less culpable than the mine-run of those

who have committed similar crimes." (citing United States v.

Ocasio, 914 F.2d 330, 333 (1st Cir. 1990))).            The record makes

clear that the trial court fully considered the relevant factors

in denying the minor role adjustment.

           We further note that the district court varied downward

when sentencing Carela from a suggested 235 to 293 months to a

term of 196 months because the court felt that the guideline range

was too harsh.

                           III.    Conclusion

           Having found no reversible error in the proceedings of

the trial court, Carela's sentence and conviction are affirmed.

           Affirmed.




                                   -22-
