United States v. Cardelli

Opinion

USCA1 Opinion

July 27, 1995

                                [NOT FOR PUBLICATION]

                           UNITED STATES COURT OF APPEALS 

                                FOR THE FIRST CIRCUIT


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No. 94-2109



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 STEPHEN D. CARDELLI,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Robert M. Napolitano on brief for appellant.
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            Jay P.  McCloskey, United  States Attorney,  Jonathan R.  Chapman,
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        Assistant  United  States Attorney,  and  F.  Mark Terison,  Assistant
                                                  ________________

        United States Attorney, on brief for appellee.


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                                 ____________________



Per Curiam.  Defendant Stephen Cardelli appeals the
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            sentence imposed upon his convictions for federal tax evasion



            and conspiring to possess with intent to distribute more than



            five kilograms of cocaine.  We affirm.



                                          I.



                   In  September  1992,  a six-count  indictment  charged



            Cardelli  with  two drug  offenses  and four  counts  of tax-



            evasion. Cardelli subsequently entered into  a plea agreement



            under which he agreed to  plead guilty to counts one and  six



            of  the  indictment.   These  respectively  charged him  with



            conspiring to  possess with  intent to distribute  cocaine in



            violation of 21 U.S.C.   841(a)(1), 841(b)(1)(A), and evasion



            of  federal income  taxes in violation  of 26  U.S.C.  7201.1



            Cardelli  entered  his guilty  plea on  April  7, 1993.   His



            sentencing hearing was held on September 26, 1994.



                 At  the sentencing hearing,  Cardelli contested the drug



            quantity used to calculate his sentence under the United



            States Sentencing  Guidelines (Nov.  1993).   While  Cardelli



            could  not recall the precise amount of cocaine that he sold,



            he  estimated it to  be an amount  below 15  kilograms.2  The



            government  then called  DEA Agent  John Bryfonski,  the case


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            1.  The government agreed to  dismiss the remaining counts of

            the indictment.  Cardelli  also agreed to cooperate  with the

            government's investigative efforts.



            2.  The  Drug Quantity  Table of  the Guidelines,   2D1.1(c),

            assigned  a base offense level of 34 to offenses involving at

            least 15 but less than 50 kilograms of cocaine. 



agent on the investigation that led to Cardelli's indictment.



            Consistent with  the  information in  the presentence  report



            (PSR), Bryfonski testified that between  May, 1988 and May or



            June,  1989,  Cardelli  and  four others  participated  in  a



            cocaine  distribution  ring  that operated  in  the Portland,



            Lewiston,  and  Auburn  areas  of Maine.3    Agent  Bryfonski



            testified that Dan  and Randy Hicks  and Pizzi each  provided



            consistent information to the government concerning the birth



            and subsequent  operation of the conspiracy.   Thus, sometime



            in  May,   1988,  the  five  conspirators   met  at  Giobbi's



            restaurant in Portland and  agreed that Cardelli would supply



            cocaine to Dan and Randy Hicks who, in turn, would distribute



            it to Pizzi for retail sales.    



                 Dan  Hicks estimated  that  Cardelli  supplied him  with



            approximately 25-30 kilograms of cocaine during the course of



            the  conspiracy.   Randy  Hicks,  who  often transported  the



            cocaine from  Portland to Lewiston/Auburn,  estimated that  a



            total of  20-25 kilograms was involved.  Pizzi indicated that



            he received   approximately 35-40 kilograms during the course
                                
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            3.  The  other  individuals involved  in the  conspiracy were
            of the  conspiracy.4  Bryfonski also  testified that Cardelli

            Jonathan Singer,  who supplied  the cocaine to  Cardelli, Dan

            and Randy Hicks, a  father and son team who  obtained cocaine

            from Cardelli,  and Christopher  Pizzi, who  obtained cocaine

            from the  Hickses and distributed  it to retail  customers in

            the Lewiston/Auburn area.  Although Singer was never charged,

            Dan and Randy Hicks and Christopher Pizzi pled guilty to drug

            offenses arising from their conspiracy with Cardelli.   



            4.  When asked how Pizzi  knew that all of this  cocaine came

            from Cardelli, Bryfonski related  that Pizzi was occasionally

            present  in  Cardelli's  business  office  when  distribution

            matters were discussed.  



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himself  had  indicated during  his debriefing  sessions with



            government agents that he had sold more than 15 kilograms.   


Cardelli did not testify at his sentencing hearing.   He



            presented   no  evidence  to   controvert  agent  Bryfonski's



            testimony.   Defense  counsel  stated that  he would  like an



            opportunity  to  cross-examine  the coconspirators,  implying



            that their  statements, particularly that of  Dan Hicks, were



            unreliable because  the  coconspirators had  all  been  given



            reduced   sentences  in  return  for  implicating  Cardelli.5



            Relying on agent Bryfonski's testimony and the information in



            the  PSR,   the  district  judge  found   that  Cardelli  was



            responsible for at least 15 kilograms of cocaine and that his



            corresponding base  offense level was  34.6  While  the court



            acknowledged  that  agent   Bryfonski's  description  of  the


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            5.  We note, however, that defense counsel neither subpoenaed

            these witnesses, nor requested a continuance so that he might

            secure their presence.  Yet it was apparent from the PSR that

            substantially more  than 15 kilograms had  been attributed to

            Cardelli.   



            6.  The PSR attributed a total of 29.4 kilograms to Cardelli.

            That  figure   was  based  on  evidence   that  Cardelli  had

            distributed  a  total  of  27  kilograms  to  Dan  Hicks  for

            Christopher  Pizzi  and  evidence  that  Cardelli  also   had

            provided an  additional 2000  grams to one  Phillip DiStefano

            for distribution to Dan  Hicks.  The PSR also  indicated that

            Cardelli  provided  an  additional  396.9  grams  to  another

            individual  (Phillip  Gullifer).    Absent  evidence  to  the

            contrary,"[f]acts   contained   in   a   presentence   report

            ordinarily  are considered  reliable evidence  for sentencing

            purposes."   United States v.  Morillo, 8 F.3d  864, 872 (1st
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            Cir. 1993).



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conconspirators'  drug  quantity estimates  was  hearsay, the



            court found that this evidence was reliable because all three



            coconspirators had  indicated that at least  15 kilograms had



            been  distributed during the course of the conspiracy.7      



                                                   Thus, starting  with a



            base offense level of  34, the court added 2 points  based on



            Cardelli's leadership  role in the conspiracy  and deducted 3



            points based on his acceptance of responsibility to arrive at



            a  total offense  level  of 33.    Applying criminal  history



            category II,  the court determined  that Cardelli's guideline



            sentencing  range was 151-188 months.  The court then allowed



            the  government's motion  for a  downward departure  based on



            Cardelli's  substantial cooperation (see U.S.S.G.  5K1.1) and
                                                 ___



            accepted the  government's  sentencing recommendation.    The



            court sentenced  Cardelli to  108 months' imprisonment  and 5



            years  of supervised release on the conspiracy count and to a



            concurrent 60 months' imprisonment  and 3 years of supervised



            release  on the  tax evasion  charge.  Cardelli  appeals this



            sentence.



                                         II. 



                 Cardelli  maintains  that  the  district  court  made  a



            serious mistake by  basing its drug  quantity finding on  the


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            7.  The court specifically noted that it did not need to find

            the precise number of kilograms that Cardelli had  sold since

            the  court's finding  triggered  the base  offense level  for

            crimes involving 15 to 50 kilograms.  See n. 2, supra.   
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hearsay  statements  of his  coconspirators  as  described in



            agent Bryfonski's  testimony.   Cardelli  implies that  these



            descriptions are  nothing more than  "drug filtered memories"



            that are all the more unreliable because they were not tested



            by cross-examination.   Cardelli  contends that the  district



            court  committed  clear  error   by  crediting  this  hearsay



            evidence without  requiring the coconspirators to  testify in



            court.



                 We review the district court's findings on drug quantity



            only for clear error.   See, e.g., United States  v. Whiting,
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            28 F.3d 1296,  1304 (1st Cir.), cert. denied, 115  S. Ct. 328
                                            _____ ______



            (1994);  United  States v. Zuleta-Alvarez, 922  F.2d 33, 36-7
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            (1st Cir.  1990), cert. denied, 500 U.S. 927 (1991).  We find
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            no  error here.   It  is well  established that,  "[r]eliable
                                                               [r]eliable



            hearsay  can  be  used   at  sentencing."  United  States  v.
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            Connolly,  51   F.3d  1,  5  (1st   Cir.  1995)(holding  that
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            codefendants'  drug quantity  estimates  reported in  PSR and



            investigating officer's testimony were reliable hearsay where



            estimates  were  "generally  consistent").     Here,  as   in



            Connolly,  the  three coconspirators  consistently attributed
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            more  than  15  kilograms  of  cocaine  to  Cardelli.    This



            consistency   was   sufficient    corroboration   that    the



            coconspirators' estimates were reliable enough to support the



            court's  conservative finding  that Cardelli  was responsible



            for  at  least  15  kilograms.    But  for  his  own  unsworn


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statements, Cardelli presented  no evidence to the  contrary.



            The  district court  was  not required  to credit  Cardelli's



            contrary  estimate,  see  Connolly, id.,  particularly  where
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            Cardelli presented  no evidence and conceded that  he did not



            recall the precise amount that he had sold.  



                  We also do not  find any error in the  district court's



            acceptance of  the drug quantity estimates  reported by agent



            Bryfonski   absent   direct    testimony   from    Cardelli's



            coconspirators.   Although  the PSR  clearly  indicated  that



            these  witnesses  had  knowledge  of  the  amounts  involved,



            defense counsel  did not ask for  cross-examination until the



            day of Cardelli's sentencing hearing.  This was far too late.



            See United States v. Zuleta-Alvarez, 922 F.2d at 36  (holding
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            district  court did  not err  in denying  request for  cross-



            examination made  at sentencing  hearing).  We  have reviewed



            the  record thoroughly  and are  satisfied that  the district



            court's   quantity   determination   is   supported    by   a



            preponderance of the evidence.  See United States v. Morillo,
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            8 F.3d at  871.   Accordingly, the judgment  of the  district



            court is affirmed.             
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