United States v. Carvajal

United States Court of Appeals For the First Circuit No. 22-1207 UNITED STATES, Appellee, V. BERNARDITO CARVAJAL, a/k/a Christian Mendez-Acevedo, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] Before Kayatta, Lipez, and Rikelman, Circuit Judges. Eduardo Masferrer, Masferrer & Associates, P.C., with whom Danya F. Fullerton was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, and Hannah Sweeney was on brief, for appellee. October 26, 2023 RIKELMAN, Circuit Judge. After a jury convicted Bernardito Carvajal of possession with intent to distribute and distribution of fentanyl, the district court sentenced him to 120 months in prison. Carvajal appeals his sentence on two grounds. First, he argues the district court considered impermissible evidence, including conduct of which the jury acquitted him, in determining his sentence. Second, Carvajal contends the district court should have reduced his sentence based on his acceptance of responsibility at trial. Because controlling case law permits the consideration of acquitted conduct at sentencing and the record otherwise supports the district court's rulings, we affirm. I. Background A. Relevant Facts1 On June 13, 2019, police responded to a possible overdose at a home in Andover, Massachusetts. Upon entering the home, police discovered 26-year-old Richard Tonks unconscious in his bed, with an uncapped hypodermic needle next to his arm. Attempts to revive Tonks at the scene and later at a hospital failed. The medical examiner for the Commonwealth of Massachusetts, Dr. Maria Del Mar Capo-Martinez, determined that Tonks died from "acute intoxication due to the combined effects of 1 Because Carvajal does not challenge the sufficiency of the evidence supporting his conviction, we offer a "balanced" treatment of the facts. See United States v. Cox, 851 F.3d 113, 118 n.1 (1st Cir. 2017). - 2 - cocaine and fentanyl." Dr. Capo-Martinez performed an external examination of the body and tested blood and urine samples, which showed the presence of cocaine, fentanyl, and marijuana in Tonks's system. She did not conduct an internal examination or autopsy. Police also did not preserve or test the substance in the needle found next to Tonks. Following Tonks's death, his family and girlfriend turned in to the police drug paraphernalia that they discovered in Tonks's room. This paraphernalia included two plastic bags, one of which proved to contain cocaine, and the other fentanyl. They also turned in Tonks's cellphone, which contained Facebook and text messages that appeared to discuss drug transactions. The Facebook messages were between Tonks and a user named "Cmja MA," later identified as Carvajal. Tonks and Carvajal had been acquainted since at least 2018, when they were coworkers at a local restaurant, and the Facebook and text messages between them catalogued interactions from January to June of 2019. On January 23, 2019, Carvajal contacted Tonks to offer to sell him "white," which Tonks purchased.2 Later that day, Tonks's girlfriend took him to the hospital, concerned that Tonks …

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