United States v. Adinolfi
Opinion
USCA1 Opinion
December 30, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1029
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DANIEL A. ATILIO-ADINOLFI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Benicio Sanchez Rivera, Federal Public Defender, and Miguel A.A.
_______________________ ___________
Nogueras-Castro, Assistant Federal Public Defender, on brief for
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appellant.
Charles E. Fitzwilliam, United States Attorney, Carlos A. P rez,
_______________________ _______________
Assistant United States Attorney, and Jos A. Quiles-Espinosa, Senior
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Litigation Counsel, on brief for appellee.
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Per Curiam. Defendant-appellant Daniel Atilio
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Adinolfi pleaded guilty on September 10, 1992 to several
counts of an indictment charging him with conspiracy to
possess with intent to distribute narcotics, distribution of
narcotics, and possession with intent to distribute
narcotics. From October 22 to 29, 1992, one of Atilio's
alleged co-conspirators, Jairo Giraldo Parra, was tried under
the same indictment. On December 16, 1992, following receipt
of the presentence investigation report ("the PSI report"),
the district court sentenced Atilio to concurrent terms of
ninety-two months' imprisonment on each count, a supervised
release term of five years, and a special monetary assessment
of $ 350. In arriving at this sentence under the sentencing
guidelines, the district court made a two-level upward
adjustment in Atilio's offense level pursuant to U.S.S.G.
3B1.1(c) on the ground that Atilio was a "manager" or
"supervisor" in the narcotics distribution conspiracy.
Atilio appeals from this upward adjustment. We affirm.
In explaining its ruling that Atilio was a
"manager" or "supervisor" in this criminal organization, the
district court stated,
The Court has heard argument of counsel
and has heard the defendant and is now
ready to rule on the issue of the two
points on the issue of supervisor --
supervisory role. The -- this Court is
in a position to rule on this issue
particularly because I presided over the
trial of Jairo Giraldo Parra, and
-3-
certainly the facts in that case
establish that -- those facts establish -
- establishes that the defendant
Adinolfi, Atilio Adinolfi, certainly held
a position of trust and confidence with -
- within Giraldo Parra's drug trafficking
organization and he certainly played a
supervisory role, a very important role.
He was present at most of the
transactions. He also drove with one of
the agents who was acting as a[n]
undercover agent. He also participated
in the transactions, and certainly he was
there in charge of the business, too,
sometimes in the counter, and he was a
very important cog in the trafficking
machinery constantly oiled by Parra.
Therefore, I shall deny you[r] counsel's
motion to eliminate the two-points
enhancement under Section 3B1.1B [sic] of
the sentencing guidelines.
Atilio objects on appeal, as he did in the district
court, that it was impermissible for the district court to
rely on evidence introduced at the trial of Jairo Giraldo
Parra. Since Atilio, having pleaded guilty, was not a party
to that trial, Atilio argues that he had no opportunity to
cross-examine the witnesses who provided the evidence the
district court used against him. Once that trial evidence is
excluded, Atilio contends, there was insufficient evidence
before the district court to justify the upward adjustment.
We have stated that "[i]t is well settled that
during the sentencing proceedings, a district court has broad
discretion in determining the information that may be
received and considered regarding a defendant." United
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States v. Pellerito, 918 F.2d 999, 1002 (1st Cir. 1990). As
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long as the district court complies with the requirements of
Fed. R. Crim. P. 32 by making a finding as to each factual
matter controverted by the defendant, the district court "has
a right to use the evidence presented at trial in determining
the sentence to be imposed." Id. Accordingly, we have
__
upheld the sentencing judge's reliance on trial evidence when
the trial had resulted in a mistrial and the defendant had
subsequently pleaded guilty, United States v. Hanono-Surujun,
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914 F.2d 15, 19 (1st Cir. 1990), and -- as in the instant
case -- when the defendant had pleaded guilty and did not
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