          United States Court of Appeals
                     For the First Circuit


No. 16-2226

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      ASHLEY FLORES-CARTER,

                      Defendant, Appellant.


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

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                 Torruella, Boudin, and Kayatta,
                         Circuit Judges.


     Javier A. Morales-Ramos and Law Offices of Javier A. Morales-
Ramos on brief for appellant.
     Rosa   Emilia   Rodríguez-Vélez,  United   States   Attorney,
Thomas F. Klumper, Assistant United States Attorney, Acting Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.



                          May 18, 2018
            BOUDIN, Circuit Judge. Between 2013 and 2015, Ashley

Flores-Carter      ("Flores")    participated       in    a   drug    conspiracy

involving    the   smuggling    of    cocaine   from     Puerto   Rico    to   the

continental United States.           With kilograms of cocaine hidden in

the lining of their suitcases, Flores and her co-conspirators

traveled on commercial flights from Puerto Rico to several U.S.

cities.    On September 30, 2015, the government charged Flores with

conspiracy to possess cocaine with the intent to distribute,

21 U.S.C. §§ 846, 841(a)(1), asserting that Flores's role in the

drug conspiracy was two-fold:            Flores herself flew from Puerto

Rico to the United States with cocaine-filled suitcases; later,

Flores recruited others to participate as drug mules.

            Flores then made an incriminating post-arrest statement

to the DEA, negotiated with the government, spent time in jail

after bail was revoked, and received Jencks Act material, including

grand jury testimony,     18 U.S.C. § 3500(b); see also Fed. R. Crim.

P. 26.2.    She then entered a straight plea of guilty without any

agreement with the government.          On September 7, 2016, Flores was

sentenced to 84 months in prison, followed by five years of

supervised release.

            Flores    presents       three   main   arguments        on   appeal,

ultimately seeking a remand for re-sentencing.                    First, Flores

argues that at sentencing the government misled the district court

as to Luis Pintor, one of Flores's thirty-six co-defendants who


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had pled guilty pursuant to a negotiated plea agreement.                 In her

post-arrest DEA interview, Flores had admitted to completing a

drug-trafficking trip to New York with Pintor in early 2013.

During Flores's sentencing hearing, the district court briefly

inquired as to Pintor's sentence; the government responded that it

believed     Pintor   received    a    70-month     sentence     and    stated:

"[Pintor's] role within this conspiracy was even more limited than

this defendant." The Court replied: "Oh, okay."            Defense counsel

then stated:     "We don't believe so."          The judge did not revisit

the issue.

           Conceivably,     the       sentence    of   another     defendant,

sentenced by a different judge but involved in some aspect of the

same criminal enterprise, might in some instances matter to the

district judge, were the judge sure of relative culpability.                But

many judges might think the game not worth the candle.                 The judge

here apparently thought this since he made no finding and showed

no interest in such a dubious detour.            Rule 32, Fed. R. Crim. P.

32(i)(3)(B), calls on the court to resolve disputed material facts

or say that the dispute does not matter, but neither side here

invokes the rule with respect to this claim.

           Further, defense counsel was apparently satisfied with

the district court's disinterest in drawing any inference as to

relative culpability and certainly did not oppose leaving the

matter unexplored.     Having failed to object to the judge's evident


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intent to leave the disagreement unexplored, pursuing the matter

now would require at the very least plain error.              United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).           Defense counsel makes no

such claim and nothing here would support a claim of plain error

if one had been made.

            The sentencing transcript confirms that the district

court engaged in a proper and individualized sentencing.                  While

the Presentence Report ("PSR") included a two-point enhancement

for    obstruction   of   justice    based   on    Flores's    messages   to   a

potential witness, the court rejected this recommendation after

hearing from both Flores's attorney and the government, stating:

"I also considered that the texts as such are somewhat ambiguous

. . . I don't believe that . . . the government proved by a

preponderance of the evidence that the obstruction of justice

should be granted."

            The district court also considered the three different

drug    quantities   proposed--48      kilograms        in   the   government's

sentencing    memorandum,     8     kilograms      in   Flores's     sentencing

memorandum,    and   41   kilograms    in    the    PSR--before      ultimately

accepting the PSR's quantity.          The judge gave due attention to

disputes where they seemed to matter.             A fleeting reference to a

co-defendant and his sentence did not taint the sentencing hearing,

especially when examined under the plain error standard.




                                       - 4 -
           Additionally, Flores says that both the PSR and the

government's sentencing memorandum contained factual errors as to

the quantity of cocaine properly attributable to her.                The PSR

concluded that she was responsible for at least 41 kilograms; the

sentencing memorandum put the figure at 48.            Both attributed to

Flores the drugs handled by individuals she recruited.                   Under

either calculation (41 or 48 kilograms), Flores's base offense

level would be 32. U.S.S.G. § 2D1.1(c)(4)(2015). Flores's counsel

argued for level 30, holding Flores accountable for 8 kilograms

that   Flores    personally    smuggled   into   the   continental     United

States.

           The district court held Flores responsible for the PSR's

quantity: 41 kilograms.        Flores's sentencing memorandum generally

disputed the PSR's drug quantity of 41 kilograms but did not raise

the argument that Flores now presents on appeal, namely, that the

drugs smuggled by co-conspirators she recruited should not be

counted.   Rather, Flores argued (and still argues) over the number

of trips she took carrying drugs, but not to an extent that would

have reduced her base offense level below 32 given the amounts

carried by her recruits.

           Since      Flores   admitted   to   recruiting   at   least   four

individuals, and it was clear that the government's sentencing

memorandum      and   the   PSR   considered     Flores's   recruits     when

calculating the drug quantity, we see no excuse for Flores's


                                      - 5 -
failure to develop below the argument she now raises.                 Defense

counsel argued that one putative recruit was not sufficiently

recruited to count but never made the claim now advanced that true

recruits should not be counted.          The claim is forfeited and would

not be rescued by a claim of plain error, if attempted.

          At sentencing, the district court makes findings as to

drug quantity under a preponderance of the evidence standard,

United States v. Walker-Couvertier, 860 F.3d 1, 17 (1st Cir. 2017),

and the court "has wide discretion to decide whether particular

evidence is sufficiently reliable to be used at sentencing."

United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).

A   participant     in     a   drug        trafficking       conspiracy     "is

responsible . . .   for    drugs    he    himself    sold,   transported,    or

negotiated, as well as for drug quantities attributable to others

that are reasonably foreseeable to him . . . ."                    Id. at 5

(alterations in original) (internal quotation marks omitted).               The

41 kilogram figure is amply supported and unflawed by material

error.

          Finally, Flores argues that the district court did not,

but should have, considered the grand jury testimony cited in her

sentencing memorandum--testimony procured by Flores under the

Jencks Act, 18 U.S.C. § 3500(b).

          Shortly    prior     to    Flores's        scheduled   trial,     the

government   provided     Flores    with    Jencks    Act    material,    which


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included the grand jury transcripts at issue. 18 U.S.C. § 3500(b);

see also Fed. R. Crim. P. 26.2.          After pleading guilty, Flores

used the disclosed grand jury transcripts to bolster various

arguments in her sentencing memorandum.           The government argued

that   Flores's    use   of   such   material   was   improper   since   the

transcripts were provided for the sole purpose of potential use at

trial.    But the district court did consider the material.         Noting

that Flores's reliance was "unusual," the court stated that it had

reviewed her sentencing memorandum, which included citations to

the grand jury testimony.

            Since the district court did consider the information,

the premise of Flores's argument is wrong and the argument fails.

Whether material secured under the Jencks Act can be used in

sentencing, or only for the assigned purpose of cross-examining

government witnesses, is a question which has apparently rarely

arisen and need not be pursued on this appeal.

       Affirmed.




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