United States v. Andrade

• Court: Court of Appeals for the First Circuit
• Decided: August 26, 1996
• Docket: 95-1883
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit



                                 ____________________


No. 95-1883



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    LOUIS ANDRADE,



                                      Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Nancy Gertner, U.S.District Judge]
                                            __________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Cyr and Lynch, Circuit Judges.
                                           ______________



                                 ____________________



            Daniel J. Johnedis on brief for appellant.
            __________________

            Donald K. Stern, United States Attorney,  and Ralph F. Boyd,  Jr.,
            _______________                               ___________________

        Assistant United States Attorney, on brief for appellees.



                                 ____________________



                                   August 26, 1996

                                 ____________________

                      LYNCH, Circuit Judge.  Louis Andrade was  convicted
                      LYNCH, Circuit Judge.
                             _____________



of possessing cocaine base with intent  to distribute. He was



            sentenced to  168 months in prison.  He appeals from both his



            conviction and his sentence. 



                      Andrade's main argument is that the evidence seized



            when the car in which he  was riding was stopped by  officers



            from  the Boston  Anti-Gang  Violence Unit  should have  been



            suppressed.  He says that the ostensible reason for the stop,



            a traffic violation, was  only a pretext to search the car in



            hope  of proving more serious charges.  For these charges, he



            says,  there then  existed  no probable  cause or  reasonable



            suspicion.  His argument is foreclosed by the Supreme Court's



            decision in Whren v.  United States, 116 S. Ct.  1769 (1996),
                        _____     _____________



            decided  after  this case  was  initially briefed.    He also



            argues that the 14.21 grams of cocaine base with which he was



            caught  was so  small an  amount that  it is  unreasonable to



            infer  that he  had the  needed intent  to distribute.   This



            argument  is without merit.   As for  Andrade's challenges to



            his  sentence,  his  argument  based on  the  distinction  in



            severity  of  sentences  between  crack  cocaine  and  powder



            cocaine  is foreclosed.  That distinction  does not  permit a



            downward  departure in sentence.   There was no  error in the



            enhancement of his sentence  for his attempt to shoot  one of



            the arresting officers.


-3-
                                          3



I



                      We recite  the facts  as the jury  could reasonably



            have found them.  Andrade was a passenger in a car which made



            an  ill-considered and  illegal U-turn  in front  of oncoming



            traffic on Columbia Road in Boston on February 20, 1994. This



            maneuver was  observed at around  8:00 p.m by  Officers Byrne



            and Linskey  of  the  Anti-Gang Violence  Unit.    Byrne  and



            Linskey were patrolling the area in an unmarked car driven by



            Officer  Freeman   of  the  same  unit.    The  Unit  gathers



            intelligence on gangs, leading to arrests  of gang members in



            the Roxbury, Mattapan,  and Dorchester areas of Boston.   The



            Unit uses motor  vehicle violations as a  tool to investigate



            gang activities.



                      The officers followed the car, and saw three adults



            in the  vehicle.   They also  saw that the  car had  a broken



            taillight.    As the  car  slowed to  a  stop in  front  of a



            building on Seaver Street, the officers turned  on their wig-



            wag  light  and then  approached the  car  on foot.   Officer



            Freeman  identified himself  and  asked  the  driver,  Sandra



            Wright, for  her license, while Officer  Linskey detained the



            front  seat  passenger,   Terrell  Andrade  (Louis  Andrade's



            brother), who had  emerged from the  car. As Officer  Freeman



            shone a flashlight into the car, he saw, in the center of the



            front seat, a plastic  bag containing an off-white, rock-like



            substance which looked  like crack cocaine.   He leaned  into


-4-
                                          4



the car and picked up the bag and then signalled to the other



            officers to handcuff Wright and Terrell Andrade. 



                       Officer Freeman  then went to open  the right rear



            passenger  door, next  to  where Louis  Andrade was  sitting.



            While Officer Freeman  spoke to Andrade, he  saw that Andrade



            was  sitting stiffly  with  his left  hand  behind his  back.



            Andrade ignored  Officer Freeman's  several commands  that he



            take  his hand from behind  his back.   Drawing their service



            pistols,  Officers Freeman  and  Byrne yelled  at Andrade  to



            remove his hand  from behind  his back.   Andrade pulled  his



            left  hand from  behind  his back  and  threw out,  onto  the



            street, a  bag containing  a substance  which appeared  to be



            crack  cocaine.    When  Officer Freeman  then  attempted  to



            handcuff Andrade,  Andrade lurched backward into  the car and



            tried to reach down to the floor.  As Officer  Freeman leaned



            into  the  car  toward Andrade,  he  suddenly  saw  a gun  in



            Andrade's hand.  He screamed "gun," pushed  himself away from



            Andrade, saw a flash,  and heard a noise.   Believing Officer



            Freeman had been  shot (he  was not), Officer  Byrne fired  a



            single shot at Andrade, hitting him in the leg and ending the



            confrontation.



                      Officer Linskey then pulled  Andrade out of the car



            and asked  him where the  gun was.   Andrade denied  having a



            gun, but  Sandra Wright yelled  "check his ankles;  check his



            ankles." The officers did so and  found the gun, not on Louis


-5-
                                          5



Andrade's ankle,  but on the  floor of the car  near to where



            Andrade had been sitting.  A spent cartridge was found jammed



            in the  gun's chamber,  indicating that  the weapon  had been



            fired, and, fortuitously, that  no additional rounds could be



            fired.   An upset Sandra Wright continued to scream "the dude



            in  the back shot at  a cop; the  dude in the back  shot at a



            cop; I could have gotten shot."



                      Accompanying  Louis  Andrade  on  the ride  to  the



            hospital,  Linskey  observed  Andrade  attempting  to  remove



            $260.00,  in  mostly ten  and twenty  dollar bills,  from his



            pants pocket.  Linskey later found another plastic bag in the



            same pocket.   That bag,  like the others,  contained cocaine



            base  ("crack");  the two  bags  connected  to Louis  Andrade



            totalled  some 14.21 grams in weight.  That amount of cocaine



            is enough for 140 "jums" (doses) or "dime bags."



                      In a  four  count indictment,  Andrade was  charged



            with possession with intent  to distribute cocaine base, with



            unlawful  possession by  a convicted  felon of a  firearm and



            ammunition,  with   possession  of   a  firearm  bearing   an



            obliterated serial  number, and  with using a  firearm during



            and  in relation  to  a drug  trafficking  crime.   The  jury



            convicted on  the drug  possession  count under  21 U.S.C.   



            841(a)(1)  and  deadlocked  on  the  firearms  counts.    The



            district  court denied  subsequent  motions for  judgment  of



            acquittal and for a new trial.   Andrade was sentenced to 168


-6-
                                          6



months in prison  and four years  supervised release.   After



            sentencing, the  court dismissed  the firearms counts  on the



            government's motion. 



                                          II



                      Andrade makes three attacks  on his conviction.  He



            argues that the trial judge erroneously denied his  motion to



            suppress  the  evidence   seized  during  the   "warrantless,



            pretextual traffic stop of  the car in which defendant  was a



            passenger."   He  also says  that the  evidence of  intent to



            distribute   the  drugs   was   insufficient  to   support  a



            conviction, and that  the thinness of that evidence  at least



            entitles him to a new trial.  Although ably  briefed, none of



            these arguments prevails.



            A. The Suppression Motion
            _________________________



                      Andrade  filed  a motion  to suppress  the evidence



            seized during the  car stop on the  theory that the  stop was



            pretextual.   The district court held  an evidentiary hearing



            and determined the stop  was not pretextual but was  made, as



            the  officers said,  to investigate  why the  car had  made a



            "sharp, harsh U-turn" into oncoming traffic.  The court later



            modified  its  ruling to  note  that  there was  evidence  to



            suggest  a second  motive for  the stop,  but that  under the



            objective test of United States v. Miller, 589 F.2d 1117 (1st
                              _____________    ______



            Cir.  1978), cert.  denied,  440 U.S.  958 (1979),  any mixed
                         _____  ______



            motive was irrelevant.  Our review of the ultimate conclusion


-7-
                                          7



as to whether the  Fourth Amendment was violated is  de novo.
                                                                 __ ____



            Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996).
            _______    _____________



                      In support of his claim that the motion to suppress



            should have  been granted, Andrade relies on  a theory firmly



            rejected  by the  Supreme  Court in  Whren.   In  Whren,  the
                                                 _____        _____



            Supreme Court  affirmed the denial  of a  motion to  suppress



            drugs  seized when  the police  stopped a  car for  a traffic



            violation.   The Court held that the temporary detention of a



            motorist upon probable cause to believe the traffic laws have



            been  violated does  not  transgress the  Fourth  Amendment's



            prohibition on  unreasonable seizures,  even  if the  officer



            would not  have stopped  the motorist absent  some additional



            law  enforcement  objective.  Whren,  116  S.  Ct.  at  1774.
                                          _____



            Because  the Fourth  Amendment allows  certain actions  to be



            taken in certain  circumstances, regardless  of motives,  the



            Court rejected  any  inquiry into  the  officers'  subjective



            intent or into what a "reasonable officer" would have done in



            similar  circumstances.  Id.  at  1775.      The  Court  thus
                                     ___



            foreclosed any  argument that ulterior motives can invalidate



            an otherwise justified traffic stop. Id. at 1774.
                                                 ___



                      Here, the illegal  U-turn plainly provided probable



            cause to stop  the car  for violating the  traffic laws,  and



            Andrade does not  argue otherwise.  Under  Whren, the inquiry
                                                       _____


-8-
                                          8



stops there, as does  Andrade's appeal on this point.1   Id.;
                                                                     __



            see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.
            ___ ____ _____________    _________



            1996) (officers on  undercover investigatory narcotics detail



            may lawfully make traffic violation stop).



            B. Evidence of Intent to Distribute
            ___________________________________



                      Andrade's  remaining attacks  are  premised on  his



            contention  that the  evidence did  not show  that he  had an



            intent to distribute the cocaine  base, even if the  evidence



            were sufficient to show  that he did possess it  for personal



            use.  He challenges  the district court's denial of  both his



            Rule 29  motion for a judgment  of acquittal and his  Rule 33



            motion for a new trial.



                      1. Motion for Judgment of Acquittal
                         ________________________________



                      In  a sufficiency challenge,  we determine whether,



            drawing   all   reasonable  inferences   in   favor   of  the



            prosecution,  a  rational  jury  could find  guilt  beyond  a



            reasonable doubt.  United States v. Luciano-Mosquera, 63 F.3d
                               _____________    ________________



                                
            ____________________



            1.  In his reply brief, Andrade argues that the potential for

            discriminatory  treatment of members  of minority communities

            requires courts  to invalidate pretextual traffic  stops.  He

            suggests that circumstantial  evidence, particularly  Officer

            Byrne's description of  the occupants of the car  as "black,"

            indicates that racial animus was at work  here.  This line of

            argument  was  rejected in  Whren,  where  the Supreme  Court
                                        _____

            pointed out  that "the constitutional basis  for objecting to

            intentionally discriminatory application  of the laws  is the

            Equal Protection Clause,  not the  Fourth Amendment."  Whren,
                                                                   _____

            116  S. Ct. at 1774.   In any event,  we need not pursue this

            issue further; it was not raised in Andrade's principal brief

            to this court and is therefore waived.  See United  States v.
                                                    ___ ______________

            Edgar, 82 F.3d 499, 510 (1st Cir.), petition for cert. filed,
            _____                               ________________________

            65 U.S.L.W. 3110 (U.S. July 16, 1996)(No. 96-5082).



                                         -9-
                                          9



1142,  1149(1st  Cir. 1995),  cert. denied,  116 S.  Ct. 1879
                                          ____________



            (1996).



                      It would,  of course,  be unusual  for there  to be



            direct  evidence of  a defendant's  intent to  distribute the



            drugs in his  possession where the defendant  is not observed



            dealing drugs but instead is merely found with the drugs.  As



            a result, juries,  and courts, have to decide what inferences



            may  be  reasonably drawn  from the  available circumstantial



            evidence. See United States  v. Echeverri, 982 F.2d 675,  678
                      ___ _____________     _________



            (1st Cir. 1993).  That evidence may include information about



            the  amounts and types of  the drugs possessed  and about the



            accompanying accoutrements,  such as  the sums of  money also



            found, whether there is drug weighing, cutting, and packaging



            paraphernalia,  whether a weapon is used, and the like.  See,
                                                                     ___



            e.g.,  id.  at  678-79  (considering  layout  of  defendant's
            ____   ___



            apartment, amount  of cocaine  found, and  the presence of  a



            scale and a ledger as corroborative of intent).



                      To  support  his  insufficiency  argument,  Andrade



            relies  upon United States v.  Valerio, 48 F.3d  58 (1st Cir.
                         _____________     _______



            1995).  There, this court vacated a conviction for possession



            of  powder  cocaine with  intent  to  distribute because  the



            evidence was  insufficient to  prove that the  defendant knew



            about the large quantities of cocaine which were hidden in an



            apartment in which  she was  a short-term guest.  Id. at  64.
                                                              ___



            The court found that the defendant could only have been found


-10-
                                          10



to be  aware of 14.83  grams of cocaine hidden  in her baby's



            shoe;  this was "not large  enough" a quantity  to support an



            inference of distributive intent. Id.2
                                              ___



                      This  is a  different case and  we have  no trouble



            affirming the jury verdict.  To start, this case involves not



            cocaine  powder, but cocaine base  or "crack."   The cases on



            which   Andrade  relies   involve  powder   cocaine  (cocaine



            hydrochloride),  not  crack cocaine  (cocaine base)  which is



            more  potent  and  is  sold  in  much  smaller  doses.    The



            legislative  history  of  the  federal  drug  laws repeatedly



            indicates that  crack's greater  potency is a  primary reason



            that offenses involving crack  receive higher penalties  than



            do those  involving similar amounts of powder  cocaine.  See,
                                                                     ___



            e.g., United  States v.  Buckner, 894  F.2d 975,  978-80 (8th
            ____  ______________     _______



            Cir. 1990)(compiling statements  of members  of Congress  and



            hearing testimony of  drug abuse experts).  For example, when


____________________



            2.  Andrade  also draws  our  attention to  United States  v.
                                                        _____________

            Martinez, 44 F.3d 148 (2d Cir. 1995), in which a panel of the
            ________

            Second  Circuit (over Judge Walker's dissent) initially found

            the evidence  of intent to distribute  insufficient where the

            defendant  possessed 3.5 grams of powder  cocaine, as well as

            one-half ounce  of "cut," a one gram scale, and a gun. Id. at
                                                                   ___

            151.   However, the panel later  reconsidered its disposition

            of  the  case and  decided  to  affirm Martinez's  conviction

            because "any amount of drugs,  however small, will support  a

            conviction  when there  is additional  evidence of  intent to

            distribute."  See Martinez  v. United  States, 54  F.3d 1040,
                          ___ ________     ______________

            1043  (2d Cir.),  cert. denied,  116 S.  Ct. 545  (1995). The
                              ____________

            "cut,"  the scale,  and particularly  the firearm,  which "by

            itself  provided strong  evidence of  intent to  distribute,"

            supported  the inference  that the  defendant was  engaged in

            drug trafficking. Id.  
                              ___



                                         -11-
                                          11



Congress    disapproved   proposed    Sentencing   Guidelines



            amendments  that  would  have  equalized  the  penalties  for



            offenses involving crack and powder cocaine, the House Report



            noted the "unique  nature of the  crack cocaine trade,  which



            often  entails trafficking  in much  smaller  quantities than



            with  powder cocaine."  H.R.  Rep. No. 272,  104th Cong., 1st



            Sess. 3  (1995).   Thus,  whether  or not  14.21  grams is  a
                              



            "small" amount of powder cocaine, it is not a small amount of



            crack cocaine.  



                      Nor was  unadorned evidence of amount  all that the



            jury had to  go on.   The government's  expert witness,  Sgt.



            Kevin Buckley, who had  been involved in more than  1000 drug



            investigations, testified  that the  amount of  crack cocaine



            Andrade possessed  could make  more than  140 "jums,"  with a



            street value of at least $1400; that he had never seen a mere



            user with more  than 8-10 "jums" at  a time; that  mere users



            typically use all of  their cash to feed their habit;  that a



            mere user usually smokes all of the crack he can obtain right



            away;  and that, in Boston, crack is  usually sold in $10 and



            $20 bags.  Also, Andrade had no implements  with him to smoke



            the crack.   This was  enough, even without  consideration of



            the presence of  the firearm.   The jury  had ample  evidence



            from which  to draw  the inference  of intent  to distribute.



            Cf.  United States v. Bergodere,  40 F.3d 512,  518 (1st Cir.
            ___  _____________    _________



            1994)(affirming  intent finding  where total value  of heroin


-12-
                                          12



seized was $1500  and gun and  drug packaging materials  were



            found), cert. denied, 115 S. Ct. 1439 (1995).  The inferences
                    ____________



            drawn by the  jury were  thus proper and  reasonable, and  we



            affirm  the  district court's  denial  of  Andrade's Rule  29



            motion.



                      2. Motion for a New Trial
                      _________________________



                      Andrade  asks that,  even if  we find  the evidence



            sufficient  to sustain the jury  verdict, we grant  him a new



            trial in the interest of justice. See Fed. R. Crim. P. 33.3  
                                              ___



            However,  "the decision  to  grant or  deny  a new  trial  is



            committed  to the  sound discretion  of the  district court."



            United States v. Soto-Alvarez, 958  F.2d 473, 479 (1st Cir.),
            _____________    ____________



            cert. denied,  506 U.S. 877 (1992).  Thus, we will affirm the
            ____________



            district  court's denial of a new trial unless there has been



            a  "manifest abuse of discretion."   United States v. Tibolt,
                                                 _____________    ______



            72 F.3d 965,  972 (1st Cir. 1995),  cert. denied, 116  S. Ct.
                                                ____________



            2554 (1996); see also 3 Charles A. Wright, Federal Practice &
                         ________                      __________________



            Procedure: Criminal     559  (2d  ed.  1982)(appellate  court
            ___________________


____________________



            3.  The  government argues  that Andrade's  motion for  a new

            trial   was  untimely,   and  that   the  court   thus  lacks

            jurisdiction to consider  it.  However, on December 22, 1994,

            just two  days after the guilty  verdict, defendant's counsel

            filed a motion  for leave to file a Rule 33 motion at a later

            date;  the district  judge  allowed  that  motion.   Rule  33

            expressly permits  the court  to extend  the  time limit  for

            filing a motion. Motions  shall be made "within 7  days after

            verdict or finding of  guilty or within such further  time as
                                             ____________________________

            the court may fix during the 7-day period." Fed. R.  Crim. P.
            _________________

            33 (emphasis  added).   Andrade's  Rule  33 motion  was  thus

            timely, and we reach the merits of this claim.



                                         -13-
                                          13



"properly  defers" to trial court on motion for a new trial).


The remedy of  a new  trial is rarely  used; it  is



            warranted  "only  where  there  would  be  a  miscarriage  of



            justice" or "where the evidence preponderates heavily against



            the verdict."  United States v. Indelicato, 611 F.2d 376, 386
                           _____________    __________



            (1st Cir.  1979)(internal quotations omitted).   Andrade does



            not present any new  evidence or point to any grave errors by



            the  trial judge,  but merely  reiterates his claim  that the



            evidence of intent was thin.  As we find that the evidence in



            the record fully supported the jury's verdict, neither of the



            necessary     conditions  for  a  new   trial  is  satisfied.



            Accordingly, the district court  did not abuse its discretion



            when it denied Andrade's Rule 33 motion.     



                                         III



                      Andrade's   appeals  from  his  sentence  are  also



            without merit.  Andrade's first  claim is that because  there



            is a disparity between  the punishments for crack and  powder



            cocaine, the trial judge  erred in not departing  downward to



            the comparable  base offense  level for powder  cocaine.   He



            argues that  the recent report of  the Sentencing Commission,



            which   recommended   a  modification   of   this  disparity,



            demonstrates that there are factors not adequately considered



            by the current  Guidelines. See  U.S.S.G   5K2.0,  p.s.   The
                                        ___



            district  court agreed  with Andrade  that the  disparity was


-14-
                                          14



"unfair" and  that, in  the right circumstances,  a departure



            based on the  Commission findings would be justified.   Here,



            however, the  district judge  found that  were she  to depart



            downward,  Andrade's extensive  criminal  record  would  then



            require   a   substantial   compensatory  upward   departure.



            Accordingly, the  court set  Andrade's base offense  level at



            26,  the  required  level  under  the  Guidelines  for  cases



            involving between five and twenty grams of cocaine base.  See
                                                                      ___



            U.S.S.G.   2D1.1(c)(7).



                       The district court thus rejected Andrade's request



            for a  departure  on a  discretionary,  not a  legal,  basis.



            While in other circumstances,  this court lacks  jurisdiction



            to  review  the  discretionary decisions  of  the  sentencing



            judge,  United States v. Sanchez,  81 F.3d 9,  10 (1st Cir.),
                    _____________    _______



            petition for cert. filed (U.S. July 8, 1996)(No. 96-5082), we
            ________________________



            would reject Andrade's  appeal here regardless.   As we  have



            held, the Sentencing Commission's findings with regard to the



            sentence disparity between crack  and powder cocaine are "not



            a  ground for departure under   5K2.0."   Id. at 11; see also
                                                      ___        ___ ____



            United   States  v.  Camilo,  71  F.3d  984,  990  (1st  Cir.
            _______________      ______



            1995)(noting congressional rejection of Guidelines amendments



            that would  have eliminated disparity), cert.  denied, 116 S.
                                                    _____________



            Ct. 1555 (1996).4   The district court thus had no discretion



                                
            ____________________



            4.  Andrade  emphasizes  that  Congress, when  rejecting  the

            proposed equalization of crack and powder cocaine  penalties,

            invited  the  Sentencing  Commission   to  come  up  with  an



                                         -15-
                                          15



to  depart  downward  based  on  the  sentencing  distinction



            between crack and powder  cocaine.  This court has  also held



            the  distinction  to be  constitutional.    United States  v.
                                                        _____________



            Singleterry, 29  F.3d 733,  739-41 (1st Cir.),  cert. denied,
            ___________                                     _____ ______



            115 S. Ct. 647 (1994). 



                      Andrade also attacks  the district court's decision



            to  increase his sentence by  three levels for his aggravated



            assault  on  a  police  officer.   See  U.S.S.G.    3A1.2(b).
                                               ___



            Andrade contends  that  the presentence  report finding  that



            Andrade "retrieved a gun,  which he had earlier  attempted to



            conceal . .  . and discharged it in the  direction of Officer



            Freeman" was  unreliable and  unsupported by trial  evidence.



            Andrade argues that  the district judge  erred in relying  on



            that report and on unreliable trial evidence.



                      In  a  sentencing appeal,  we  review  the district



            court's  findings of fact for  clear error, giving due regard



            to  the district  court's  credibility judgments.  18  U.S.C.



              3742(e).   Here, the district judge's  finding that Andrade



            assaulted  Officer  Freeman  was  clearly based  on  her  own



            assessment  of the evidence presented at trial.  Her findings



            on this point were explicit:


____________________



            alternative  proposal.   However,  as has  been observed,  "a

            direction to  study a matter,  even from Congress,  cannot be

            said  to change the  state of the  law (here,  the legal fact

            that the  Commission has considered the  'circumstance'-- the

            difference between crack and powder cocaine)."  United States
                                                            _____________

            v. Anderson, 82 F.3d 436, 440 (D.C. Cir. 1996).
               ________



                                         -16-
                                          16



I saw the testimony, I saw the witnesses.

                      I  heard what  Officer Freeman  said.   I

                      listened   to  him   with  25   years  of

                      experience behind me.  And I believe him.



            Andrade  points to nothing  in the record  that renders these



            findings  clearly  erroneous.    As the  evidence,  including



            Wright's exclamation that "that dude shot at a cop," supports



            a  finding of aggravated assault on an officer, we affirm the



            three-level enhancement.



                      Andrade's conviction and sentence are affirmed.


-17-
                                          17