CA1: another Puerto Rico drug case

US v. Malpica-Garcia, Nos. 05-2492, 05-2493.  This case begins by telling us everything we ever wanted to know about drug dealing in Puerto Rico. 

A defendant raises a sufficiency claim to a conspiracy charge.  What is interesting about this is that the defendant makes a pretty good argument: that he was just friends with the dealers.  But the government says “we got videos that show he was more than a bystander.”  Maybe the government had some other witnesses.  Good enough for the First.  The First goes on to explain all the things that the government doesn’t have to prove to send a person to jail for life.  Conspiracy is such a great tool in the war on poverty. 

Another interesting issue is the fact that one of the defendants apparently had a falling out with a co-conspirator.  That, according to the First, doesn’t extinguish the conspiracy.  More down below.

The government wins a FRE 613 argument (regarding the use of some government agents to impeach others),  because, the First says that he didn’t develop it enough.

Regarding sentencing, the First says that the District Court really didn’t shift the conspiracy-wide amount of drugs to the defendant, and that finding wasn’t erroneous.  It also says he managed and supervised.

USSG § 2K2.4, the Fist says doesn’t govern double-counting of a gun when possessed in a school zone, rather the statute, 18 U.S.C. § 924 governs how to double-count things.  But, whatever the case, neither is applicable because in this case the defendant was punished for possession while drug trafficking, as well as having the gun in the school zone.

Finally, the First explains how to deal with undischarged sentences: 5G1.3(b) requires that an undischarged sentence run concurrently with the sentence for the instant offense "only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense and (2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines."