## Facts

- From 2000 to 2008, Tomás Sepúlveda-Hernández supplied marijuana and co-owned an open-air drug market near a public basketball court in Vega Baja, Puerto Rico.
- A federal grand jury indicted Sepúlveda-Hernández and others for drug-trafficking offenses; he was tried alone in the District of Puerto Rico.
- A jury convicted him of (1) conspiracy to possess with intent to distribute at least 50 grams of crack and 100 kilograms of marijuana, and (2) aiding and abetting distribution of at least 100 kilograms of marijuana.
- On a special verdict form, the jury found the offenses occurred within 100 feet of a “youth center,” triggering 21 U.S.C. § 860(a).
- The district court sentenced him under § 860(a) and entered a $1,000,000 criminal forfeiture judgment.
- On appeal, he challenged the nature and application of § 860(a), the sufficiency of evidence that the basketball court was a “youth center,” the availability of lesser-included § 841 convictions, other asserted trial errors, and forfeiture.

## Issues

1. Whether 21 U.S.C. § 860(a) creates an independent substantive offense or merely a sentencing enhancement.
2. Whether the evidence proved beyond a reasonable doubt that the drug activity occurred within 100 feet of a “youth center” as defined by § 860(e)(2).
3. Whether, after vacating § 860(a) convictions for evidentiary insufficiency, the court could order entry of convictions under the lesser-included offense, 21 U.S.C. § 841(a)(1).
4. Whether asserted trial errors or the forfeiture judgment required reversal.

## Decision

- The First Circuit held § 860(a) creates an independent substantive offense requiring proof of an additional element (proximity to specified facilities).
- The court vacated the § 860(a) convictions and sentence because the evidence did not establish that the basketball court was “intended primarily for use” by persons under 18.
- The court ordered entry of convictions under § 841(a)(1) as lesser-included offenses and remanded for resentencing.
- The court rejected the remaining claims of error and affirmed the $1,000,000 criminal forfeiture judgment.

## Legal Principles

- Section 860(a) is a separate federal drug offense, not a sentencing factor, because it uses offense-creating language, adds an element, and carries its own penalty scheme.
- When the government charges § 860(a), it must prove the added proximity element to the jury beyond a reasonable doubt.
- A “youth center” under § 860(e)(2) requires proof that the facility is intended primarily for use by persons under 18; evidence that minors use an open community facility is not enough without proof of primary intended use.
- If a conviction for a greater offense fails solely for lack of proof on an additional element, an appellate court may direct entry of conviction on a lesser-included offense whose elements the jury necessarily found, consistent with double-jeopardy limits.
- Criminal forfeiture may be affirmed where supported by the proven drug-trafficking conduct, even if a related drug-free-zone component is vacated.

## Conclusion

The First Circuit ruled that § 860(a) defines a distinct offense requiring proof that the relevant facility qualifies as a statutory “youth center,” vacated Sepúlveda-Hernández’s § 860(a) convictions for insufficient evidence on that element, ordered entry of § 841(a)(1) convictions as lesser-included offenses, remanded for resentencing, and affirmed the forfeiture judgment and remaining rulings.


United States v. Sepúlveda-Hernández, 752 F.3d 22 (1st Cir. 2014)