
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1233                                    UNITED STATES,                                      Appellee,                                          v.                                 ALFONSO MENA-ROBLES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                _____________________        No. 92-1299                                    UNITED STATES,                                      Appellee,                                          v.                                MIGUEL TORRES-RIVERA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Torruella and Stahl, Circuit Judges and                                             ______________                               Burns, * District Judge.                                        ______________                                 ____________________            Olga M. Shepard for appellant Mena-Robles.            _______________            Julio C. Codias for appellant Torres-Rivera.            _______________            Jose  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with whom            _________________________        Daniel F.  Lopez-Romo, United  States Attorney  and Edwin O.  Vazquez,        _____________________                               _________________        Assistant United States Attorney, were on brief for appellant.                                 ____________________                                  September 28, 1993                                 ____________________        _____________________        *Of the District of Oregon, sitting by designation                      STAHL,  Circuit  Judge.    After a  jury  convicted                              ______________            appellants Miguel Torres Rivera ("Torres Rivera") and Alfonso            Mena  Robles ("Mena  Robles") of  conspiracy to  possess with            intent  to distribute  cocaine, in violation  of 21  U.S.C.              846,  they were  sentenced to  terms of  imprisonment of  200            months  and  170  months,  respectively.    On  appeal,  both            defendants claim  that the district court  erroneously denied            their motions for acquittal  made under Fed. R. Crim.  P. 29,            and   that  their   sentences   contravened  the   Sentencing            Guidelines.    Finding no  reversible  error,  we affirm  the            convictions and sentences.                                          I.                                          I.                                          __                                  Factual Background                                  Factual Background                                  __________________                      We recount the relevant  evidence in the light most            favorable to the prosecution.  United States v.  Alvarez, 987                                           _____________     _______            F.2d 77, 79  (1st Cir. 1993),  petition for cert.  filed,                                               ________ ___ _____  _____  ___            U.S.L.W.      (U.S. June 9, 1993) (No. 92-9080).   The arrest                     ____            and  indictment  of  appellants  and their  11  original  co-            defendants was  the culmination of a  reverse sting operation            conducted by the Puerto  Rico Department of Justice ("PRDOJ")            and  the   United  States  Drug   Enforcement  Administration            ("DEA").   The  law enforcement  agents posed  as large-scale            cocaine dealers.   Their goal  was to apprehend  genuine drug            traffickers by  arranging a "sale"  of a sizable  quantity of            cocaine.  Toward  that end, PRDOJ Agent Eric Munoz ("Munoz"),                                         -2-                                          2            posing  as a  cocaine  supplier, held  several meetings  with            potential purchasers  interested in  setting up a  deal.   On            March  22,  1990,  Munoz  met with  Carlos  Kortwright  Perez            ("Carlos  Kortwright"), his  wife, Damaris  Camacho Valcarcel            ("Damaris   Camacho"),  his  mother,   Frances  Perez  Corujo            ("Frances  Perez"),  and  Samuel   Solis  Sierra,  and  began            negotiations  for Kortwright's  purchase of  50 kilograms  of            cocaine  at  a  price  of  $16,000  per  kilogram.    Further            negotiations  took place on April  1, 1990, at  which time an            agreement  was reached  to  consummate the  deal in  mid-May.            After  several phone  conversations, Munoz  met on  April 25,            1990,  with  Carlos  Kortwright,  Damaris  Camacho,  and  her            brother, Miguel Camacho Valcarcel  ("Miguel Camacho").  Munoz            told  Miguel  Camacho  that  the deal  could  take  place  in            approximately two weeks.                      After further telephone conversations between Munoz            and  the  potential  buyers,  Munoz  met  again  with  Carlos            Kortwright  and  Damaris  Camacho  on  May  6,  1990.    They            discussed more details of the deal, with Munoz reporting that            the ship carrying the  cocaine to Puerto Rico was  already at            sea.    On May  10, 1990,  Damaris  Camacho called  Munoz and            informed him that the money needed for the drug sale had been            gathered.   For closing the  deal, two rooms  at the Cerromar            Hotel in Dorado  Beach, Puerto  Rico, had been  rented.   The            plan was for the sale to take place in one room, while police                                         -3-                                          3            would undertake surveillance from the other.  After preparing            the rooms, Munoz phoned Carlos Kortwright and told him he was            ready.  Two hours later,  Carlos Kortwright and Frances Perez            arrived at the hotel.  After hours of phone calls between and            among Munoz, Carlos Kortwright, his brother, Jose, and Samuel            Solis Sierra, it became  apparent that the money was  not, in            fact, ready.                      Finally,  the  deal  was  called  off,  with  Munoz            telling Carlos Kortwright that  the cocaine had been sold  to            other, more ready, purchasers.  He  did, however, report that            a  new  supply of  cocaine might  soon  be available.   After            several telephone contacts, an agreement was arranged to sell            Carlos Kortwright  75 kilograms  of cocaine at  $14,500 each.            The transaction was  set for May 24, 1990.   Again, two hotel            rooms  were rented, this time  at the Condado  Plaza Hotel in            Condado,  Puerto  Rico.    After  Munoz  and  his  undercover            partner,  Lt. Ayala,  phoned  Carlos Kortwright  and  Frances            Perez,  they all met at the hotel, along with Miguel Camacho,            Samuel Solis Sierra and Rolando Solis Sierra.  Miguel Camacho            accompanied Munoz to one of the hotel rooms to sample some of            the cocaine.  All  the buyers except Frances Perez  then left            the hotel, presumably to return later to consummate the deal.            Again, however,  the sale fell through,  as Carlos Kortwright            reported to Munoz that he was having problems with his "money            man."  Carlos Kortwright  then told Munoz that he  was "going                                         -4-                                          4            to take over everything  [and] be in charge," and  that Munoz            should   call  him  the  next  day,  Friday,  May  25,  1990.            Meanwhile, the  law enforcement officials had  decided to let            the weekend elapse before resuming negotiations.  On May  25,            1990, Munoz told Frances Perez that the deal was on hold.                      On  May  28,  1990, Munoz  again  contacted  Carlos            Kortwright and  Frances Perez to resume  negotiations.  Later            that day, the  three, along  with Lt. Ayala  and DEA  Special            Agent Miranda met at a Pizza  Hut in Condado.  They agreed to            carry out the cocaine sale on May 31, 1990, at a police-owned            beach house at Vega Baja, Puerto  Rico.  Prior to the meeting            at the  beach house, the  plans called  for a  meeting at  La            Terraza restaurant in Dorado,  Puerto Rico, where Munoz would            be able to see the  buyers' money.  It was agreed  that Munoz            would  then phone the beach  house, and they  would all drive            there, caravan  style.   In reality,  Munoz's picking up  the            telephone was to be the signal for  other officers to move in            and make arrests.                      On May 31, 1990, at approximately 2:00 p.m., Carlos            Kortwright phoned Munoz,  and the  two agreed to  meet at  La            Terraza  at 3:30  that afternoon.   Shortly  after Munoz  and            Ayala seated themselves in the empty restaurant, several cars            arrived simultaneously,  including  a brown  Buick  owned  by            appellant  Mena Robles.  In total,  Munoz testified to seeing            about  a  dozen people  arrive.    Of  those  people,  Carlos                                         -5-                                          5            Kortwright,   Alberto  Morales  Colberg  and  Jose  Francisco            Casiano  joined Munoz and Ayala at one table.  Appellants sat            across from each  other at the next table, two  to three feet            from the others,  facing in the  direction of Munoz's  table.            The  other  dozen  or  so   tables  in  the  restaurant  were            unoccupied.                      After  everyone gathered  in the  restaurant, Munoz            asked Carlos  Kortwright about  the two men  (the appellants)            seated  at   the  adjacent  table.     Munoz  testified  that            Kortwright told him  that "these people  are here to  protect            the money and  the money is outside."  Munoz  then offered to            buy drinks  for the  entire group, including  appellants, but            Colberg precluded any acceptance of the offer by insisting on            proceeding with the deal.  Soon after, a waiter brought Munoz            and Ayala drinks they had ordered before the others' arrival.            At  that point,  Ayala repeated  Munoz's drink  offer.   This            time, Casiano,  seated between Munoz  and Ayala,  interceded,            giving his  approval to Ayala's offer.  Appellant Mena Robles            ordered  a beer.  At about the same time, co-defendant Rafael            Montanez  Ortiz,  who  had   remained  outside,  entered  the            restaurant  and shouted  something  in the  direction of  the            group.  Carlos  Kortwright left the  table and spoke  briefly            with Montanez Ortiz.   When he returned,  Colberg again tried            to get the  deal going.  He asked Munoz  whether the 75 kilos            of cocaine were available.   When Munoz replied affirmatively                                         -6-                                          6            and  asked Colberg whether he  was ready to  buy, Colberg and            Carlos  Kortwright  went  to  the parking  lot,  retrieved  a            notebook and  calculator from  one of  the vehicles,  and sat            together at an empty  table in the restaurant, away  from the            others.   After a short time, they returned to their original            seats,  whereupon Colberg told Munoz that he was ready to buy            15  kilos  immediately, and  the  other 60  kilos  later that            evening.   Munoz balked, first telling Colberg that he had no            place  to keep the unsold 60 kilos that Carlos Kortwright had            originally agreed to buy, and then reminding Colberg that he,            Munoz, had yet to see any of the buyers' money.                      Colberg and  Carlos Kortwright then  escorted Munoz            to a blue Volvo in the parking lot.  Three men were near  the            car, one  of whom, Hector  Santana Olmo, was  leaning against            the trunk as Munoz arrived.  Munoz was unable to identify the            other two men  with Santana  Olmo.  Upon  opening the  trunk,            Santana  Olmo  showed Munoz  two bags  of  money.   The first            contained packs of five, ten, and twenty dollar bills, which,            Munoz told  Santana Olmo,  would be insufficient  to complete            the deal.   The second  bag, however, a  large plastic  trash            bag, contained packs  of fifty and one  hundred dollar bills.            Santana Olmo told Munoz that there was a total of $500,000 in            the two bags.   Satisfied by the buyers' showing,  Munoz told            them that he would alert his confederates.  On his way to the            telephone, Munoz stopped to talk to Ayala, who was then alone                                         -7-                                          7            in  the  restaurant.1     He  apprised  Ayala  of   what  had            transpired outside.                      Munoz proceeded  to the telephone.   When he picked            up the  receiver, however, the expected  law enforcement help            did not materialize.  He phoned headquarters and was informed            that  many of  the officers  were caught  in traffic.   Munoz            stalled on the phone, because he had told the buyers that the            drugs  would arrive five  minutes after  he placed  the call.            While speaking with headquarters, Munoz told an officer there            to  inform the arriving officers that the money was in a blue            Volvo.  While  still on  the phone, Munoz  was approached  by            Colberg  and Carlos Kortwright.   He told them  he was having            last-minute difficulty with his supplier.  When Munoz finally            got  off the phone, the three men started walking back toward            the restaurant, stopping in the parking lot, behind the brown            Buick,  which  was then  occupied  by three  people  with the            right-front  door open.  The  Buick was still  parked next to            Munoz's car.  Munoz then entered the restaurant, where Samuel            Solis Sierra was  speaking with Ayala.   As Munoz  approached            them,  other law enforcement agents arrived.  Munoz and Ayala            arrested  Solis Sierra.   Munoz  then went  outside with  the            other officers.  Santana Olmo, the two unidentified men  with            him, and the blue Volvo in which Munoz had seen the money had                                            ____________________            1.  According  to  Munoz,  appellants  had  remained  at  the            adjacent table  throughout the  negotiations.  The  record is            silent as to when they left it.                                         -8-                                          8            already  departed.  The men inside the brown Buick turned out            to  be appellants and Rafael Montanez Ortiz.  Mena Robles, to            whom the car was registered, was in the driver's seat; Torres            Rivera  was  in the  back; Montanez  Ortiz  was in  the front            passenger seat, adjacent to the open door.  A Magnum revolver            was found on  the ground about  five feet  from the open  car            door.  Bullets compatible with the gun were found on Montanez            Ortiz's person.  All three men were arrested.  In total, nine            people  were arrested  at the  restaurant; the  remaining co-            defendants were apprehended later.                      On  June 27, 1990, 13  people were named  in a six-            count indictment.  Count I  charged all 13 with participating            in a conspiracy to possess with intent to distribute cocaine.            Appellants  were  charged  only  in  Count  I.    Except  for            appellants,  all  defendants  pled  guilty  prior  to  trial.            Several pled  to one  count of  the indictment, while  others            pled  to   new  informations  in  exchange   for  having  the            indictment dismissed.        II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  The Rule 29 Motions2            A.  The Rule 29 Motions            _______________________                                            ____________________            2.  Pursuant to Fed. R. Crim P. 29, "The court on motion of a            defendant  or  of its  own motion  shall  order the  entry of            judgment of acquittal .  . . if the evidence  is insufficient            to sustain a conviction . . . ."                                         -9-                                          9                      Appellants claim that  the district court erred  in            denying their  respective  Rule 29  motions  for  acquittal.3            Our task is  to review  the record to  determine whether  the            evidence  and  reasonable inferences  therefrom,  taken as  a            whole and  in the  light most  favorable to  the prosecution,            would allow a rational jury to determine beyond  a reasonable            doubt  that the defendants were  guilty as charged.  Alvarez,                                                                 _______            987  F.2d at 83.   A conviction  may be premised  in whole or            part on circumstantial evidence.   Id.  In addition,  "juries                                               ___            are not required  to examine the  evidence in isolation,  for            `individual pieces of evidence, insufficient in themselves to            prove a  point, may in  cumulation prove it.   The sum  of an            evidentiary  presentation  may  well   be  greater  than  its            constituent parts.'"   United States v. Ortiz,  966 F.2d 707,                                   _____________    _____            711 (1st Cir.  1992), cert.  denied, 113 S.  Ct. 1005  (1993)                                  _____  ______            (quoting  Bourjaily v.  United States,  483 U.S.  171, 179-80                      _________     _____________            (1987)).  Finally, it  is not our function to  weigh evidence            or  make credibility determinations.  Id.  Instead, it is the                                                  ___            jury's responsibility to make  credibility judgments.   Thus,            the  jury is empowered  to accept or  reject, in  whole or in            part, any testimony.  Alvarez, 987 F.2d at 83.                                  _______                      Here, appellants were charged with and convicted of            conspiracy.  "The  `essence' of a conspiracy  is an agreement                                                                _________                                            ____________________            3.  Although both appellants appeal  the denial of their Rule            29  motions, they  assert  different grounds.   We  therefore            address them individually.                                         -10-                                          10            to  commit a crime."  United  States v. Moran, 984 F.2d 1299,                                  ______________    _____            1300  (1st Cir. 1993) (quoting Iannelli v. United States, 420                                           ________    _____________            U.S. 770, 777 (1975)  (emphasis in original)).  To  convict a            defendant of conspiracy, the  government must prove, beyond a            reasonable doubt, that the defendant intended to agree and to            commit the  substantive offense that  was the  object of  the            agreement.  United  States v.  Cruz, 981 F.2d  613, 616  (1st                        ______________     ____            Cir.  1992).  The agreement may be  express or tacit, and may            be proven by direct or circumstantial evidence.  Id.  (citing                                                             ___            United States v.   Rivera-Santiago, 872 F.2d 1073,  1079 (1st            _____________      _______________            Cir.), cert.  denied, 492  U.S. 910 (1989)).   "However,  the                   _____  ______            government  need not  establish that  the defendants  knew or            agreed  upon every  detail of  the conspiracy.   All  that is            required  is to  show the  essential nature  of the  plan and            their connections  with it."   United States v.  O'Campo, 973                                           _____________     _______            F.2d  1015,  1019  (1st  Cir. 1992)  (citation  and  internal            quotations omitted).                 1. Mena Robles                 1. Mena Robles                 ______________                      Appellant  Mena Robles  argues  that  the  evidence            fails to show  the existence of an agreement  between himself            and the  other conspirators.   We disagree.   It is true,  as            Mena Robles  argues, that  there  is no  evidence tending  to            indicate that he played a  role in arranging the transaction.            Mena Robles  also correctly asserts  that his actions  in the            restaurant on May  31, 1990, are consistent with the behavior                                         -11-                                          11            of  an   innocent  bystander;  that  is,   there  is  nothing            inherently  inculpatory about sitting  at a particular table,            near  other people, and accepting a beer when offered.  Those            facts  are not dispositive, however.  Even if Mena Robles did            not actively  participate until the final  negotiation, he is            not  necessarily  absolved  from   being  implicated  in  the            conspiracy because  the government  is not required  to prove            that he  took part  in all  aspects of  the conspiracy.   See                                                                      ___            Cruz,  981 F.2d  at  617.   As  for Mena  Robles's  "innocent            ____            bystander" argument, we note  that "jurors can be  assumed to            know  that  criminals  rarely  welcome  innocent  persons  as            witnesses  to serious  crimes and  rarely seek  to perpetrate            felonies before larger-than-necessary audiences."  Ortiz, 966                                                               _____            F.2d at  712.  In  addition, "`there are  circumstances where            presence itself  implies participation--as where  a 250-pound            bruiser stands silently  by during an extortion attempt, or a            companion  stands  by  during  a robbery,  ready  to  sound a            warning or give other aid if required.'"  Ortiz, 966 F.2d  at                                                      _____            712 (quoting United  States v.  Martinez, 479  F.2d 824,  829                         ______________     ________            (1st Cir. 1973)).                      Thus, the  jury could  have inferred,  for example,            that Montanez Ortiz's decision to shout to Carlos Kortwright,            within  earshot  of  the   negotiators,  was  done  with  the            knowledge that appellants were not "innocent bystanders," but            instead were  participants  in  the scheme.    Based  on  our                                         -12-                                          12            reading of the record, a reasonable  jury could also conclude            that  appellants:  arrived  at the  restaurant simultaneously            with the  other putative conspirators; parked  their car near            to those of the others; sat at an adjacent table,  only a few            feet from  the main  negotiators, despite  the fact  that the            rest  of   the  restaurant   was  empty;  faced   toward  the            negotiators for the  entire time they were in the restaurant;            first  declined,  and  then  accepted,  the  officers'  drink            offers,   apparently  in   response   to  instructions   from            codefendants   Colberg  and   Casiano;  were   identified  by            codefendant  Carlos Kortwright  as  being with  the group  to            "protect  the money;"4    and were  arrested  in a  car  with            codefendant Montanez Ortiz.                      While these  factual conclusions  are not  the only            ones  the jury  could  have reached,  we find  them eminently            reasonable.   See e.g., United States v. Nueva, 979 F.2d 880,                          ___ ____  _____________    _____            883 (1st Cir.  1992), cert.  denied, 113 S.  Ct. 1615  (1993)                                  _____  ______            ("prosecution need not exclude every reasonable hypothesis of            innocence, so long as the total evidence permits a conclusion            of guilty beyond a reasonable doubt.").  Accordingly, we find                                            ____________________            4.  Mena Robles urges us, for a variety of reasons, to reject            Munoz's     testimony    regarding     Carlos    Kortwright's            identification.   All of  the suggested bases  for rejection,            however,  depend  on  an evaluation  of  Carlos  Kortwright's            credibility, which, as we have already noted, is the province            of the jury.                                           -13-                                          13            the evidence sufficient  to support Mena Robles's  conspiracy            conviction.                 2. Torres Rivera                 2. Torres Rivera                 ________________                      As  his  first enumerated  issue,  appellant Torres            Rivera asks  "Whether there  was sufficient evidence  to find            this Appellant  guilty of the charged  conspiracy and whether            the  Appellant received  ineffective assistance  of counsel."            The ensuing section of the brief, however,  is devoted almost            entirely  to  a claim  of  prejudicial  variance between  the            indictment,  which  alleged  a  single  conspiracy,  and  the            evidence,   which,  according  to   Torres  Rivera,  revealed            "several"  conspiracies.     We  will  address  these  claims            individually.                      a.  Sufficiency of the Evidence                      a.  Sufficiency of the Evidence                      _______________________________                      Torres  Rivera  essentially  argues,  as  did  Mena            Robles,   that  he   was   an  innocent   bystander  to   the            negotiations, rather than a participant.  For the reasons set            forth in our disposition of Mena  Robles's similar claim, see                                                                      ___            supra  sec.   II.A.1,  we   find  Torres   Rivera's  argument            _____            meritless.                      b.  Prejudicial Variance                      b.  Prejudicial Variance                      ________________________                                         -14-                                          14                      Torres   Rivera's  variance  argument  is  no  more            availing.5   Essentially,  Torres Rivera  contends  that  the            "first" conspiracy  ended on May  29, 1990, when  the cocaine            deal apparently  collapsed because  of  problems with  Carlos            Kortwright's "money man," Miguel  Camacho.  Appellant  argues            that  the "second"   conspiracy  was formed  thereafter, when            Carlos  Kortwright  teamed  with  Morales  Colberg,  Casiano,            Santana Olmo and Montanez Ortiz.   Appellant claims that  the            evidence introduced relative to the "first" conspiracy caused            him substantial prejudice, as  he could conceivably have been            part of the "second" conspiracy only.                      Whether  there  is  a single  conspiracy,  multiple            conspiracies, or no conspiracy at all is ordinarily a factual            matter  for the jury to  determine.  United  States v. David,                                                 ______________    _____            940 F.2d  722, 732 (1st Cir. 1991),  cert. denied, 112 S. Ct.                                                 _____ ______            2301 (1992).   Where, as here, there  is no challenge  to the            jury  instructions, we  review  the jury's  conclusion as  to            whether one or more conspiracies existed only for evidentiary            sufficiency.   Id.     To conclude  that there  was  a single                           ___            conspiracy,  the jury  need  not be  presented with  evidence            showing  that each  coconspirator  knew every  detail of  the                                            ____________________            5.  At  oral argument,  the government suggested  that Torres            Rivera failed  to preserve this  argument because he  did not            raise it below.   Upon review of the record,  it appears that            appellant put forth the  variance argument in an unsuccessful            pretrial motion for severance.  We will therefore assume, for            purposes of  this appeal, that the  pretrial motion preserved            the issue.                                         -15-                                          15            conspiracy, or  even that  each conspirator knew  every other            coconspirator.   United States v. Garcia-Rosa,  876 F.2d 209,                             _____________    ___________            223  (1st Cir. 1989), cert. denied, 493 U.S. 1030, vacated on                                  _____ ______                 _______ __            other grounds sub nom. Rivera-Feliciano v. United States, 498            _____ _______ ___ ____ ________________    _____________            U.S. 954 (1990).  Indeed, a single conspiracy may exist where            there   has  been  no  direct  contact   among  some  of  the            participants.   United States v. Giry, 818 F.2d 120, 127 (1st                            _____________    ____            Cir.), cert. denied, 484 U.S.  855 (1987).  Moreover,  "[t]he                   _____ ______            fact  that  every  defendant  did not  participate  in  every            transaction necessary  to fulfill the aim  of their agreement            does  not   transform  a   continuing   plan  into   multiple            conspiracies."  United States v. Drougas, 748 F.2d 8, 17 (1st                            _____________    _______            Cir. 1984).   Instead, a jury may find a single conspiracy if            the  evidence  sufficiently  demonstrates "that  all  of  the            alleged  coconspirators directed  their  efforts towards  the            accomplishment of a common goal or overall plan."  Id.                                                                ___                      In this case, the "common goal" was the purchase of            a large  amount of cocaine.   Two unsuccessful  attempts were            made  to the consummate the sale, before the final attempt at            the  restaurant on  May 31,  1990.   In each  attempt, Carlos            Kortwright, Jose Kortwright, Samuel  Solis Sierra and Rolando            Solis  Sierra appeared to be the main actors.  The supporting            cast, however,  changed somewhat prior to  the final attempt,            as  Colberg,   Casiano,  Santana-Olmo,  Montanez   Ortiz  and            appellants  replaced  Damaris  Camacho,  Miguel  Camacho  and                                         -16-                                          16            Frances  Perez.    In  our  view,  the  evidence  supports  a            conclusion that these events constituted a  single conspiracy            to purchase cocaine.  As we  stated above, it is of no moment            that all the conspirators did not participate in all attempts            to  further the plan spearheaded  by the main  players.  See,                                                                     ___            e.g., United States v. Aponte-Suarez, 905 F.2d 483,  488 (1st            ____  _____________    _____________            Cir.), cert. denied, 498  U.S. 990 (1990) (finding sufficient                   _____ ______            evidence to support  single conspiracy where appellants  were            involved in only one of  three attempts by a major dealer  to            purchase  cocaine).   Therefore,  appellant  Torres  Rivera's            variance argument must fail.6                      c.  Ineffective Assistance of Counsel                      c.  Ineffective Assistance of Counsel                      _____________________________________                      Torres Rivera's claim of constitutionally defective            counsel rises and falls  with his variance claim.   He argues            that trial counsel was ineffective because of his  failure to            object to  evidence that  Torres Rivera alleges  was relevant            only to the "first" conspiracy, and that he was prejudiced by            the introduction of such evidence.                      It is well settled  that we measure the  quality of            trial counsel's  performance under the two-part  standard set            by Strickland v.  Washington, 466 U.S. 668  (1984).  Pursuant               __________     __________            to Strickland,  a defendant must show  that counsel performed               __________                                            ____________________            6.  Because  the jury  could reasonably  have found  a single            conspiracy,  we  do not  address  whether  Torres Rivera  was            prejudiced by the alleged "variance."                                         -17-                                          17            unreasonably and that prejudice resulted therefrom.  Id.; see                                                                 ___  ___            also United States v. Walters, 904 F.2d 765 (1st Cir. 1990).            ____ _____________    _______                      As  noted  above,  the  single/multiple  conspiracy            argument  is  without  merit.   Moreover,  according  to  the            record, the district court rejected the same argument made by            several  other defendants,  who, according  to Torres  Rivera            were  part of  the "second  conspiracy."   In light  of these            prior rulings,  counsel's failure  to rehash the  same failed            argument  cannot  be  considered  ineffective  assistance  of            counsel.  See United  States v. Andiarena, 823 F.2d  673 (1st                      ___ ______________    _________            Cir.  1987).  Accordingly, we reject Torres Rivera's claim of            ineffective assistance of counsel.            B. Sentencing Issues            B. Sentencing Issues            ____________________                      Appellants  aim a  barrage  of  arguments at  their            respective sentences.  We address them seriatim.                       Torres Rivera first argues that the  district court            erroneously  calculated  his  base  offense   level  ("BOL").            Pursuant to U.S.S.G.    2D1.1(c)  and 2D1.47, the  BOL for  a            conspiracy conviction such as this depends on the quantity of            contraband attributable to the defendant.  The district court            concluded that appellants were to  be held accountable for 15                                            ____________________            7.  Although section  2D1.4 has  since been repealed,  it was            part of the 1991  Guidelines Manual, applicable to this  case            by  virtue of the fact that sentencing took place in February            1992.  See, e.g., United States v. Pineda,  981 F.2d 569, 571                   ___  ____  _____________    ______            n.1  (1st Cir.  1992)  (appropriate guidelines  are those  in            effect  at time  of  sentencing). Accordingly,  all guideline            citations herein refer to the 1991 manual.                                         -18-                                          18            kilograms of  cocaine,8  and set  the BOL at 34.   U.S.S.G.              2D1.1(c).  Torres Rivera claims that the district court's use            of  the 15 kilogram amount  was erroneous; that  he should be            held  responsible for less than  500 grams; and  that his BOL            therefore should be 24.  We disagree.                      U.S.S.G.   1B1.3(a)(2) provides  that the BOL shall            be  determined  on  the  basis  of  "all  acts  or  omissions            committed or aided and abetted by the defendant, or for which            the  defendant would be  otherwise accountable, that occurred            during the commission  of the  offense of  conviction."   The            relevant application note provides:                      In   the   case   of  criminal   activity                      undertaken   in   concert  with   others,                      whether or not  charged as a  conspiracy,                      the  conduct  for  which   the  defendant                      "would  be  otherwise  accountable"  also                      includes conduct of others in furtherance                      of   the   execution   of  the   jointly-                      undertaken  criminal  activity  that  was                      reasonably foreseeable by the defendant.            U.S.S.G.   1B1.3,  comment. (n.1).   The final  piece of  the            puzzle  provides that  if  a "defendant  is  convicted of  an            offense  involving  negotiation  to traffic  in  a controlled            substance,  the weight  under negotiation  in an  uncompleted                                            ____________________            8.  This amount,  to which the government  stipulated, agrees            both  with the quantity that Colberg told Munoz that he would            be  able to immediately purchase, and with the money that was            shown  to Munoz in the  Volvo in the  restaurant parking lot.            According to the record, the negotiated price for the cocaine            was  $16,000 per  kilogram;  the $500,000  that Santana  Olmo            claimed was  in the  Volvo would, therefore,  have been  more            than sufficient to make the purchase.                                         -19-                                          19            distribution  shall  be  used  to  calculate  the  applicable            guideline  amount."   U.S.S.G.    2D1.4, comment.  (n.1); see                                                                      ___            also  United States v. Gerante,  891 F.2d 364,  369 (1st Cir.            ____  _____________    _______            1989) (affirming estimation of  drug quantity based on amount            of money found in defendant's possession).                      The thrust of Torres  Rivera's BOL argument is that            he had no ability  to produce any money to  purchase cocaine.            This argument is rooted in the following statement, contained            in Application Note 1 to section 2D1.4:                        However, where the  court finds that  the                      defendant did  not intend to  produce and                      was not reasonably  capable of  producing                      the  negotiated  amount, the  court shall                      exclude  from  the guideline  calculation                      the  amount that  it finds  the defendant                      did  not intend  to produce  and was  not                      reasonably capable of producing.            In referring  to this  statement, however, Torres  Rivera has            ignored the  very next sentence  in the same  Note:  "If  the            defendant is convicted of  conspiracy, see Application Note 1                                                   ___            to   1B1.3 (Relevant Conduct)."  And, as we noted above, that            section calls  for consideration  of the foreseeable  acts of            coconspirators in determining the BOL.  Thus, as the district            court correctly concluded, Torres Rivera's personal financial                                                       ________            ability is inapposite to the matter at hand.                        The  remainder  of   Torres  Rivera's   BOL-related            argument is directed at the fact that much of the negotiating            in  this case  took place  prior  to his  active involvement.            Therefore, he argues, those  negotiations could not have been                                         -20-                                          20            "reasonably foreseeable" to  him, and he  should not be  held            responsible for any drugs involved with earlier stages of the            case.  This argument, however, overlooks the events that took            place  on May 31, 1990, when he, as a guard, took part in the            final  negotiations.    Thus,  he   is  in  fact  being  held            responsible  for  drugs negotiated  while  he  was an  active            participant in the conspiracy.                      Finally, a recent  decision of  this court  further            undermines Torres Rivera's theory.  In United States v. De La                                                   _____________    _____            Cruz,  No. 92-1279, (1st Cir.  June 24, 1993),  we rejected a            ____            foreseeability argument  made by a defendant  whose only role            in a  drug conspiracy had  been as a driver.   At sentencing,            and on appeal, the defendant claimed that he had no knowledge            of the amount of cocaine he was transporting.  We first noted            that  the defendant  must have known  that he  was part  of a            large-scale deal  due to  the number  of people and  vehicles            present at the warehouse  where the drugs were stored.   Id.,                                                                     ___            slip op. at 17-18.  We then stated:            ____ ___                      A  defendant  who conspires  to transport                      for  distribution  a  large  quantity  of                      drugs,  but  happens  not  to   know  the                      precise  amount,  pretty  much takes  his                      chances that the amount actually involved                      will  be quite  large.   On  De La  Cruz'                      theory, no amount  at all could  properly                      be assigned to him if, as may well be the                      case, he never had a specific quantity in                      mind.   The danger actually posed  by the                      conspiracy  was  the distribution  of 240                      kilograms, De  La Cruz knew that  a large                      quantity   was   involved,    and--absent                                         -21-                                          21                      special  circumstances--we think  that is                      enough.            Id. at 18.  In our view, Torres Rivera's role is analogous to            ___            that  of  De  La  Cruz.   Given  his  presence  at  the final            negotiations and his role as a guard for the "money man," his            general  knowledge of the size of the cocaine deal is readily            inferable.  And,  like De  La Cruz, Torres  Rivera "took  his            chances" as to the specific quantity.                      In  light of  the foregoing, we  can find  no clear            error  in either  the district  court's determination  of the            quantity of cocaine attributable  to appellant Torres Rivera,            or  its resulting  use of  a BOL  of 34.   See,  e.g., United                                                       ___   ____  ______            States v.  Figueroa,  976 F.2d  1446, 1461  (1st Cir.  1992),            ______     ________            cert. denied,  113 S. Ct.  1346 (1993) (applying  clear error            _____ ______            standard to  appellate review of drug  quantity attributed to            conspiracy defendant).                       Torres  Rivera next  argues that  his sentence  was            disproportionately severe when compared with the sentences of            similarly situated  codefendants.  To support  this claim, he            dwells on the  fact that  his 200 month  prison sentence  was            greater  than those  received  by all  other  coconspirators,            including those referred to  in the indictment as organizers,            leaders, managers and negotiators.  We reject this sentencing            disparity claim.  First,  our review of the  record indicates            that   Torres  Rivera   was   treated   similarly  to   those            codefendants who pled guilty to  the same conspiracy count of                                         -22-                                          22            which he was convicted.9  All began with a BOL  based on a 15            kilogram conspiracy.   While  some sentences varied,  much of            that has  to do  with the  fact that Torres  Rivera was  in a            Criminal History Category  III, and that  he and Mena  Robles            were the only recipients of a firearm enhancement.  Moreover,            despite  Torres Rivera's  claim to  the contrary,  the record            reveals no downward sentencing departures having been granted            to any  codefendant.   And, as a final matter, we have firmly            held that  "a perceived need to  equalize sentencing outcomes            for similarly  situated codefendants, without  more, will not            permit a  departure  from  a  properly  calculated  guideline            sentencing range."   United States  v. Wogan, 938  F.2d 1446,                                 _____________     _____            1448  (1st  Cir.),  cert.  denied,  112  S.  Ct.  441 (1991).                                _____  ______            Accordingly,  we reject Torres  Rivera's sentencing disparity            argument.10                       Next,  both  appellants   challenge  the   district            court's  two-point  offense-level  enhancement,  pursuant  to                                            ____________________            9.  Several  other  coconspirators   pled  guilty  to  lesser            charges contained in superseding informations in exchange for            dismissal  of  their   indictments.    Those   coconspirators            therefore  received,  comparatively, the  shortest sentences.            We reject, however, Torres Rivera's reliance on the sentences            meted out to this group as support for his disproportionality            claim.  See,  e.g., United  States v. Butt,  955 F.2d 77,  90                    ___   ____  ______________    ____            (1st Cir. 1992) (where codefendants are charged and convicted            of different offenses, they are not "similarly situated").            10.  We  have  reviewed  Torres  Rivera's   other  sentencing            complaints and find them to be without merit.                                         -23-                                          23            U.S.S.G.     2D1.1(b)(1),11  for  possession   of  a  firearm            during the  offense.   This  circuit  calls for  the  firearm            enhancement "whenever a codefendant's possession of a firearm            in furtherance  of [] joint criminal  activity was reasonably            foreseeable to the defendant."   United States v. Bianco, 922                                             _____________    ______            F.2d  910, 912  (1st  Cir. 1991)  (citations omitted).12   In            reviewing a district court's  use of the firearm enhancement,            we accord due deference to the application of the enhancement            to the facts of the case.   United States v. Sostre, 967 F.2d                                        _____________    ______            728, 731 (1st  Cir. 1992).   Factual  conclusions related  to            sentencing need only  be supported by a preponderance  of the            evidence and will be set aside only for clear error.  Id.                                                                  ___                      Appellants essentially argue  that the evidence  is            not sufficient  to support the  two-level adjustment.   We do            not agree.  As noted above, coconspirator Montanez  Ortiz was            found  in possession of five  bullets compatible with the gun            retrieved  from  just  outside  the  car  in   which  he  and            appellants  were seated at the  time of their  arrests.  From            this, the court could properly infer  that Montanez Ortiz had                                            ____________________            11.  In relevant part, section 2D1.1(b)(1) provides for a two            level  BOL increase  "[i]f  a dangerous  weapon (including  a            firearm) was possessed during commission of the offense . . .            ."            12.  We  note  with  particular emphasis  the  First  Circuit            standard  because appellants  rely on  a  host of  cases from            other circuits.                                         -24-                                          24            the gun  on his person  prior to ejecting it  from the car.13            Appellants  assert  that  neither  their  presence   in  Mena            Robles's  car  with  Montanez  Ortiz, nor  any  other  record            evidence,    is   sufficient    to   infer    the   requisite            foreseeability.  However, as we stated in Bianco:                                                      _______                      [W]e  often  observe  that  firearms  are                      common tools  of the drug  trade.  Absent                      evidence of exceptional circumstances, we                      think   it   fairly   inferable  that   a                      codefendant's  possession of  a dangerous                      weapon is foreseeable to a defendant with                      reason    to     believe    that    their                      collaborative  criminal venture  includes                      an exchange of controlled  substances for                      a large amount of cash.            Id. at 912 (citations omitted).  See also Sostre, 967 F.2d at            ___                              ___ ____ ______            731-32   (enhancement   affirmed   where   only   codefendant            physically  possessed   gun,  but  defendant   was  part   of            "protection" team employed by  drug seller); United States v.                                                         _____________            Bello-Perez,  977  F.2d  664,  673 (1st  Cir.  1992)  (weapon            ___________            enhancement  affirmed where  only codefendant  was in  actual            possession  of firearm,  but both  defendant and  codefendant            served as "muscle" for drug-debt collections).                      Here, given the  jury's supportable conclusion that            appellants were  involved in  the drug transaction  at issue,            and  the lack of  any evidence  to contradict  the reasonable            foreseeability of Montanez Ortiz's possession of a gun at the                                            ____________________            13.  Indeed, Montanez  Ortiz  pled guilty,  in  exchange  for            dismissal of  the indictment, to an  information charging him            with carrying  a  firearm during  the  commission of  a  drug            related felony in violation of 18 U.S.C.   924(c).                                         -25-                                          25            scene of a  large-scale cocaine  deal, we can  find no  clear            error in  the district  court's application of  the two-level            weapon enhancement.14                      Next, Mena Robles contends that the gun enhancement            was the product of  vindictive sentencing on the part  of the            district judge.  This  assertion is based solely on  the fact            that only  these appellants  exercised their right  to trial,            and they alone received the  sentencing enhancement, although            those codefendants  who pled guilty to  the conspiracy charge            were situated similarly with respect to the firearm at issue.            We do not agree.                      In North  Carolina v. Pearce, 395  U.S. 711 (1969),                         _______________    ______            the  Supreme Court  faced a situation  where a  defendant who            successfully appealed  his conviction was again  found guilty            on retrial and  given a  harsher sentence by  the same  trial            judge.   The  Court,  concerned with  the  possibility  of  a            vindictive response to the exercise of a constitutional right            to  appeal, held  that  such an  increased  sentence must  be            explained in the record.  Id. at 726.  Later,  the Court held                                      ___                                            ____________________            14.  Appellants also argue that  the district court failed to            make  the specific findings mandated  by 18 U.S.C.   3553(c).            See  United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.            ___  _____________    ________            1990).   This assertion is  based primarily on  the fact that            the  sentencing judge  did not,  as he  said he  would, issue            written findings "summarizing  his reasons  for . .  . a  two            level increase . . .  ."  While it is apparently true that no            such  written  summary has  been  issued, our  review  of the            sentencing transcript  shows clearly that the  district court            made  factual   findings  sufficient  both   to  support  the            enhancement and to adequately frame the appeal.                                         -26-                                          26            that a "presumption of vindictiveness"  is triggered whenever            the  same judge  imposes  a stiffer  sentence after  retrial.            United States v.  Goodwin, 457  U.S. 368, 374  (1982).   This            _____________     _______            presumption may be  overcome only when  objective information            in  the record justifies the increased sentence.  Id. at 372-                                                              ___            384; Johnson v. Vose, 927 F.2d 10, 11 (1st Cir. 1991).                 _______    ____                      We   have   applied  the   Pearce   presumption  to                                                 ______            situations  where, as  here,  defendant has  rejected a  plea            bargain  in favor of  a trial.   See, e.g.,  United States v.                                             ___  ____   _____________            Crocker, 788 F.2d  802 (1st Cir.  1986); Longval v.  Meachum,            _______                                  _______     _______            693  F.2d 236  (1st Cir.  1982) cert.  denied, 460  U.S. 1098                                            _____  ______            (1983).  As we have pointed out, however, "not every instance            of an enhanced sentence following a defendant's exercise of a            legal right triggers the presumption."  Vose, 927 F.2d at 11.                                                    ____            "The  principle established by Pearce and  its progeny is not                                           ______            that  enlarged sentences  are forbidden,  but only  that such            sentences  may  not  be   fueled  by  vindictiveness."    Id.                                                                      ___            Therefore,  we have  qualified the presumption,  holding that            "[t]he presumption  [] arises only in  circumstances in which            there  is  a  reasonable  likelihood  that  the  increase  in            sentence is the product of  actual vindictiveness on the part            of the  sentencing authority."  Id.   In the absence  of such                                            ___            reasonable likelihood,  the  defendant bears  the  burden  of            proving actual vindictiveness.  Id., citing Alabama v. Smith,                                            ___         _______    _____            490 U.S. 794 (1989).                                          -27-                                          27                      As  we stated  above,  Mena Robles  has pointed  to            nothing in the  record to support a claim  of vindictiveness,            other than the fact of the gun enhancement itself.  This will            not suffice.  In  Both Longval and Crocker, the  trial judges                                   _______     _______            made  mid-trial  comments  which  "explicitly  linked harsher            sentences to the defendants' refusal to cut short their right            to a  jury trial."  Vose, 927 F.2d  at 12.  These remarks, we                                ____            determined,   were  sufficient  to   establish  a  reasonable            likelihood  of vindictiveness.   Id.15   Here, the  record is                                             ___            devoid  of similar  evidence  that would  trigger the  Pearce                                                                   ______            presumption    or    demonstrate    actual    vindictiveness.            Accordingly, Mena Robles's vindictiveness argument fails.16                      Appellant   Torres  Rivera  also  argues  that  the            implementation  of the  gun enhancement  without a  finding a            guilt  beyond  a  reasonable  doubt  is  a  violation of  due            process.  This contention has been soundly rejected, and thus            we need not address it further.  See United States v. Pineda,                                             ___ _____________    ______            981 F.2d 569, 574 (1st Cir. 1992).                                            ____________________            15.  In addition, we  noted in Crocker  and Longval that  the                                           _______      _______            trial judges' comments could  be construed as retaliation for            pursuing trials  in cases the judges  considered "unworthy of            [their] time and effort."   Crocker, 788 F.2d at 809.   Here,                                        _______            where  the sentencing judge did not preside at trial, no such            sentiment is likely.            16.  Indeed  we  must question,  but  need  not here  decide,            whether  such a presumption  can ever result  where, as here,            the sentencing judge was not the trial judge.                                         -28-                                          28                      As a final matter, we address Torres Rivera's claim            that  he should have  been granted a  four-point reduction in            his  BOL for playing only a "minimal" role in the conspiracy.            The district court  awarded him a  two-level adjustment as  a            "minor"  participant.  See U.S.S.G.    3B1.2.   We review the                                   ___            district  court's  mitigating  role determination  for  clear            error.   United States  v. Dietz, 950  F.2d 50, 52  (1st Cir.                     _____________     _____            1991).    According  to  the relevant  application  notes,  a            "minimal" participant  is a  defendant who is  "plainly among            the  least culpable  of those  involved in  the conduct  of a            group."  While that  description may superficially fit Torres            Rivera,  further  light is  shed  on  the parameters  of  the            adjustment by means of  these illustrative examples: "someone            who  played  no other  role in  a  very large  drug smuggling            operation  than  to  offload   part  of  a  single  marihuana            shipment, or in a case where an individual was recruited as a            courier for a single  smuggling transaction involving a small            amount  of  drugs."     U.S.S.G.     3B1.2,  comment.  (n.2).            Moreover   the  same   note  indicates   that   the  "minimal            participant"  adjustment will  be  used  "infrequently."   We            believe  the district  court  correctly  concluded that  this            should  not be one of those infrequencies.   In his role as a            guard  for  the  money,  Torres Rivera  occupied  a  position            integral to  the  completion  of  the deal.    Indeed,  Munoz            testified  that Carlos  Kortwright said that  such protection                                         -29-                                          29            was  necessary because "the money  man"  had  "lost money" in            prior  transactions.   In the  end,  we accept  the following            reasoning on the part of the district court:                      The  Court finds, however, that since the                      amount of drugs  involved was quite large                      and since defendant acted as a bodyguard,                      a    role   which    entailed   providing                      protection to the principal actors during                      their negotiations  and   may  result  in                      acts of violence, that  it cannot in good                      conscience  assign  any  such  actor  the                      label of minimal participant.            Based on  the foregoing, we  reject Torres Rivera's  claim of            minimal participant status.                      We  have reviewed appellants'  other arguments, and            find  them   without  merit.    Appellants'  convictions  and            sentences are therefore affirmed.                                    affirmed.                                    _________                                         -30-                                          30
