No. 20-1156

UNITED STATES OF AMERICA,

Appellee,

v.

MINERVA RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and Woodcock, District Judge.

Emmett E. Robinson and Robinson Law Firm, LLC, on brief for appellant. Lauren A. Graber, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellee.

June 4, 2021

 Of the District of Maine, sitting by designation. WOODCOCK, District Judge. On July 24, 2019, a jury convicted Minerva Ruiz of one count of conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and one count of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). On January 21, 2020, the district court imposed a downward variant sentence of forty-eight months of imprisonment followed by a two-year term of supervised release.

Ruiz appeals her convictions and sentence on three grounds. First, she contends the district court abused its discretion by finding certain coconspirator statements were non- hearsay under Federal Rule of Evidence 801(d)(2)(E) and admitting the statements into evidence. Second, she submits the district court failed to properly instruct the jury about the elements of her offenses. Third, she argues the district court clearly erred by applying a three-level mitigating role reduction under United States Sentencing Guidelines § 3B1.2 rather than a four-level minimal role reduction. We affirm the convictions and sentence. I. Background

Because Ruiz does not contest the sufficiency of the evidence presented against her, we recount the facts in a "balanced way, without favoring either side." United States v. Arias, 848 F.3d 504, 509 n.1 (quoting United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014)).

- 2 - A. The Crime

In June of 2017, the United States Drug Enforcement Administration (DEA) and Homeland Security Investigations (HSI) began investigating a man named Dalnovis Delarosa Arias. The investigation started after a Puerto Rican HSI confidential source (CS) told agents that an unidentified male using a specific cellphone number was selling heroin in Massachusetts. Under the oversight of federal agents, the CS set up a phone call on June 28, 2017, between Delarosa and a cooperating witness named Bernie Bravo. During the call, Delarosa told Bravo he could sell Bravo multiple kilograms of heroin, and Delarosa agreed to meet Bravo in Charlestown, Massachusetts, to discuss the terms of the heroin deal. Delarosa told Bravo that he did not drive but would find a ride to the meeting. At the instruction of federal agents, Bravo recorded this call and all subsequent communications with Delarosa.

On July 13, 2017, Bravo and Delarosa met in Charlestown to discuss a heroin deal. At the time, Delarosa was dating Minerva Ruiz. Around 2:00 p.m., before the Charlestown meeting, law enforcement saw Delarosa and Ruiz outside an apartment on Milton Street in Lawrence, Massachusetts, where Ruiz lived with her parents. Law enforcement observed Delarosa and Ruiz standing near the rear of a white Honda Civic that was registered to Ruiz at the Milton Street address. After some time, Delarosa and Ruiz departed

- 3 - in the Honda Civic with Ruiz driving. Federal agents followed the couple to the Bunker Hill Mall in Charle