USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2031
UNITED STATES OF AMERICA,
Appellee,
v.
GERARDO DELGADO MUNOZ,
Defendant, Appellant.
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No. 92-2032
UNITED STATES OF AMERICA,
Appellee,
v.
SAUL ANDINO FIGUEROA,
a/k/a BRUNO,
Defendant, Appellant.
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No. 92-2033
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN MARTINEZ,
Defendant, Appellant.
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No. 92-2034
UNITED STATES OF AMERICA,
Appellee,
v.
LEANDRO QUINONES,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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Owen S. Walker for appellant Gerardo Delgado Munoz.
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John C. Doherty, by Appointment of the Court, for appellant Saul
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Andino Figueroa.
Raymond E. Gillespie, by Appointment of the Court, for appellant
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Leandro Quinones.
Nicholas B. Soutter, by Appointment of the Court, with whom Paul
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S. McGovern was on brief for appellant Juan Martinez.
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Dina Michael Chaitowitz, Assistant United States Attorney,
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Organized Crime Drug Enforcement Task Force, with whom Donald K.
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Stern, United States Attorney, was on brief for the United States.
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October 13, 1994
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*Of the District of Rhode Island, sitting by designation.
*Of the District of Rhode Island, sitting by designation.
BOUDIN, Circuit Judge. Appellants Gerardo Delgado-
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Munoz, Leandro Quinones, Juan Martinez, and Saul Andino-
Figueroa were indicted on June 21, 1991, for conspiracy to
distribute cocaine base, commonly known as "crack" cocaine,
in violation of 21 U.S.C. 841(a)(1) and 846. Delgado was
alleged to have been the ringleader of the operation, with
Quinones serving as his chief lieutenant and Andino and
Martinez filling various subordinate roles as lookout,
courier, driver and guard.
The indictment alleged that members of the conspiracy
had sold cocaine base to an undercover operative of the Drug
Enforcement Administration, Pamela Mersky, on six different
occasions in April and May 1991. The transactions, which all
took place in Boston and its suburbs, involved a total of
896.2 grams of cocaine base, 506 grams of which changed hands
in the final transaction on May 30, 1991. In addition to
conspiracy, each defendant was charged with one or more
substantive counts of cocaine distribution corresponding to
the transactions in which he participated.1
Appellants and two other co-defendants were tried to a
jury in April 1992. The government's evidence consisted
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1Specifically, Delgado and Quinones were charged with
six substantive distribution counts arising out of
transactions on April 9, 19, 23, May 6, 16, and May 30, 1991.
Andino was charged with four substantive distribution counts
pertaining to the April 23, May 6, 16, and May 30
transactions. Martinez was charged with one distribution
count for the May 30 transaction.
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primarily of Special Agent Mersky's testimony, supported by
tape-recordings of her conversations with the defendants and
testimony of surveillance agents who monitored the
transactions. The jury convicted appellants on all counts.
One co-defendant, Paulita Cadiz, was also convicted on all
counts but has not appealed; the remaining defendant, Lazaro
Delgado, was acquitted. On June 29, 1992, the court
sentenced Andino to 151 months' imprisonment, Martinez to 240
months' imprisonment, and sentenced Delgado and Quinones each
to 360 months' imprisonment.
These appeals followed. Each appellant except Delgado
challenges his conviction, and all challenge their sentences.
We first consider appellants' challenges to various
evidentiary rulings and instructions at trial, as well as to
the sufficiency of the evidence on various counts.
Thereafter, the sentencing issues are addressed.
I. THE CONVICTIONS
A. Andino
We begin with the conviction of Andino, who is also
referred to in the indictment as "Bruno." Andino was alleged
to have assisted Delgado and the others on at least four drug
transactions by watching over the drugs, conducting counter-
surveillance, and sometimes by making the actual delivery.
He argues first that the trial court erroneously admitted a
spontaneous confession made upon his arrest in Puerto Rico.
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Andino was not present at the May 30, 1991, transaction
between his co-defendants and Mersky, after which the other
defendants were arrested. Instead, Andino was apprehended on
November 26, 1991, when United States Marshals executed an
arrest warrant for Andino in Catalina, Puerto Rico. Upon
arriving at Andino's home, the marshals were met at the door
by appellant's brother, Cuco Andino-Figueroa, whom the
marshals initially mistook for appellant. When the marshals
told the brother that they had a warrant from Boston for
narcotics offenses, appellant entered the room and shouted,
"I'm the one you are looking for. I'm the guilty one. He's
never been to Boston. I'm the one that's been to Boston."
Prior to trial, Andino filed a motion in limine to
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preclude testimony as to his spontaneous confession. At a
hearing, Andino argued that the confession should be excluded
because it would guarantee conviction. Construing this as an
argument under Fed. R. Evid. 403, the district court denied
the motion on the ground that the confession was "strongly
probative of [Andino's] knowledge and his intent," and was
"not unfairly prejudicial." Andino now argues that the
district court failed to adequately consider the prejudicial
impact of the confession in striking the Rule 403 balance.
The district court's wide latitude in admitting or
excluding evidence under Rule 403 is well established.
Daigle v. Maine Medical Center, Inc., 14 F.3d 684, 690 (1st
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Cir. 1994). The district court found--and we agree--that
Andino's outburst "shows knowledge on the part of the
defendant . . . that a particular crime involving narcotics
was the subject of the arrest, and it took place in Boston."
The admission has special importance since at trial Andino
argued that the government had arrested the wrong man. The
damage done to the defense is not a basis for exclusion; the
question under Rule 403 is "one of `unfair' prejudice--not of
prejudice alone." United States v. Moreno Morales, 815 F.2d
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725, 740 (1st Cir. 1987).
We turn next to a hearsay issue. At trial, Mersky was
allowed, over Andino's objection, to testify that a landlord
had given federal drug agents a rent receipt showing that
Andino rented a room at 6 Michigan Avenue in Dorchester,
Massachusetts. That address was shown at trial to have been
a center of the conspiracy. Andino argued both at trial and
on appeal that he was prejudiced by any reference to the rent
receipt--which, he contends, was "blatant hearsay" and should
not have been admitted.
Although the government might have argued that the rent
receipt itself was not hearsay, cf. Fed. R. Evid. 801(a) (a
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"statement" is an oral or written "assertion"), it is
apparently willing to treat the testimony in question as if
it were a report of what the landlord said orally to the DEA
agents. But the government insists that the testimony was
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not elicited or used for purposes of proving that Andino
actually lived at 6 Michigan Avenue. Rather, it says that
the testimony was brought out on redirect merely in order to
explain that Mersky had some colorable reason--whether or not
correct--for attaching Andino's name to the description she
furnished to the marshals in Puerto Rico.
This redirect was important, the government says,
because during the drug deals, about which Mersky testified
at length, she had known Andino only as "Bruno" and had no
knowledge of his real name. On cross-examination of Mersky,
Andino's defense counsel had brought out this fact; he
suggested in further questions that Mersky's description of
Bruno, given to the marshals in Puerto Rico, did not match
Andino's appearance in the courtroom; and arguably he left
the impression through his questions that there was something
suspicious in the unexplained appearance of Andino's real
name in the information given to the marshals.
It is quite true that an out-of-court statement is not
hearsay if it is used only to show that the statement was
made and that the listener heard the words uttered. See 6
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Fed. R. Evid. 801(c) (hearsay is an out-of-court statement
offered "to prove the truth of the matter asserted"). We
have no doubt that it was on this theory that the district
judge overruled the hearsay objection, saying that Mersky
"doesn't know whether it is true or not [that Andino lived at
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6 Michigan Avenue]. She just knows how she found out. It is
not offered for the truth of the matter, just how she found
out." Whether or not there is still an underlying hearsay
problem is an issue that could be debated at length; and in
some measure it might depend on matters not clearly
developed: exactly what the landlord said; just what
information was relayed to Mersky and then to the marshals;
and precisely what inference the government is aiming to
refute.
We see no reason to engage in these speculations because
the admission of this evidence was patently harmless. Mersky
had dealt face to face with "Bruno" on four different
occasions. Her ability to identify Andino as Bruno could be
easily tested in the courtroom and was in fact tested on
cross-examination. The jury was also apprised of Andino's
virtual confession at the time of his arrest ("I'm the guilty
one."), and his further incriminating statement after his
arrest (Andino told his father that there was no point in a
removal hearing since "[Mersky] would come over and identify
me"). The alleged hearsay did not alter the outcome.
Andino next claims that there was insufficient evidence
to support his conviction for the May 30, 1991, transaction
in which other defendants sought to sell 506 grams of cocaine
base to Mersky. The parties agree that Andino was not
present at this transaction. At trial, the government argued
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that Andino was liable under Pinkerton v. United States, 328
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U.S. 640 (1946). Pinkerton permits a defendant to be held
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liable for actions committed by a co-conspirator if that
crime is in furtherance of the conspiracy and is committed
while the defendant is a member of the conspiracy. Id. at
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328. See United States v. O'Campo, 973 F.2d 1015, 1021 (1st
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Cir. 1992).
In this court, Andino does not dispute the theory but
argues that the evidence at trial was so thin that his motion
for judgment of acquittal should have been granted. This
requires Andino to "bear the heavy burden of demonstrating
that no reasonable jury could have found [him] guilty beyond
a reasonable doubt." United States v. Innamorati, 996 F.2d
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456, 469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993). We
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review the evidence in the light most favorable to the
government, "drawing all plausible inferences in its favor
and resolving all credibility determinations in line with the
jury's verdict." Id.
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Under Pinkerton, the government was required to prove
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that the May 30 transaction was carried out by members of the
conspiracy, in furtherance of the conspiracy, and at a time
when Andino was still a member of the conspiracy. Andino has
not claimed a lack of evidence to support his conspiracy
conviction. Nor does he dispute that the May 30 transaction
was in furtherance of the conspiracy. But he does dispute
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that he was still a member as of May 30, 1991, arguing in his
brief that he "disappeared entirely from the Government's
radar screen" after May 16, 1991. In fact, there is no
evidence in the record concerning his activities after that
date until his arrest in Puerto Rico on November 26, 1991.
A "`mere cessation of activity in furtherance of a
conspiracy does not constitute withdrawal.'" United States
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v. Nason, 9 F.3d 155, 162 (1st Cir. 1993), cert. denied, 114
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S. Ct. 1331 (1994) (quoting United States v. Juodakis, 834
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F.2d 1099, 1102 (1st Cir. 1987)). To withdraw, a conspirator
must take some affirmative action "either to defeat or
disavow the purposes of the conspiracy." Juodakis, 834 F.2d
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at 1102. Typically, we have required "evidence either of a
full confession to authorities or a communication by the
accused to his co-conspirators that he has abandoned the
enterprise and its goals." Id. Even if a very extended
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lapse of time might be sufficient to infer withdrawal, the
two-week interval in this case is not enough.
B. Martinez
Appellant Martinez also challenges his conviction. Both
Martinez and his co-defendant, Gerardo Delgado, pleaded
guilty on October 30, 1985, in Connecticut state court to
possession of cocaine with intent to distribute it. The
government introduced these convictions at trial over the
defendants' objections in order to show, inter alia,
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"knowledge and intent in a common scheme or plan." Martinez
now asserts that "[a]dmission of evidence of Martinez' prior
conviction impermissibly prejudiced his defense," but adds no
explanation to this one-line allegation. "[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." United States
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v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
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1082 (1990).
Martinez also says that the evidence was insufficient to
support his convictions for conspiracy, and for possession
with intent to distribute on May 30, 1991. The government's
evidence on both counts arises from the May 30 transaction.
Martinez was first spotted at about 6:50 p.m. that evening by
a state police officer who saw Martinez walking up and down
the street outside SkipJack's restaurant in Brookline
Village. Mersky, who had been told by Delgado to wait
outside SkipJack's at 7:30 p.m. in order to purchase drugs,
testified that Martinez greeted her there and then walked
away.
Shortly thereafter, Delgado contacted Mersky by
signaling her beeper. When Mersky called Delgado from a pay
phone, Mersky was told to meet Paulita Cadiz, who (along with
Lazaro Delgado) accompanied her to a blue-colored Oldsmobile
occupied by Martinez and a female juvenile. Martinez, then
sitting in the driver's seat, pushed a large piece of luggage
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located on the passenger-side floor toward Lazaro Delgado and
assisted him in opening it. The bag contained numerous vials
of cocaine base. Mersky took the bag and walked away,
announcing that she was "going to get the money."
As Mersky walked away, she signalled to two officers who
were waiting in an unmarked car nearby. The officers, each
of whom were wearing raid jackets marked with police
insignia, got out of their car and turned toward the blue
Oldsmobile, displaying firearms and shouting "police." Both
officers testified that Martinez then threw the Oldsmobile
into reverse and backed up Brookline Avenue at a high rate of
speed. After crashing into another unmarked police cruiser,
Martinez put the car back in forward gear and sought to flee.
He was eventually stopped and arrested.
The testimony was ample to convict Martinez on both the
conspiracy and substantive distribution counts. A reasonable
jury could have inferred that Martinez was conducting
counter-surveillance when he was first observed outside
SkipJack's. Martinez was the only adult in the blue
Oldsmobile along with the suitcase containing the drugs;
since he then pushed the drugs over to Lazaro Delgado to give
to Mersky, the jury could reasonably have found that Martinez
had possessed the drugs.2 His intent to distribute can
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2Martinez argues that he could not have possessed the
drugs because he did not have sole access to the bag.
Exclusive access is not a prerequisite to possession; indeed,
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likewise be inferred from this same event and from his
participation in the overall transaction. The attempt to
flee further corroborates his guilt.
The jury was also entitled to infer that Martinez agreed
to cooperate with his alleged co-conspirators in carrying out
the transaction. The many steps of the dance performed by
the participants indicate careful planning and coordination,
and Martinez's own multiple roles--lookout, initial contact
with Mersky, guardian of the drugs--do not look like the
unplanned actions of an unwitting victim who was merely along
for the ride. In any event, the evidence was sufficient for
a reasonable jury to convict Martinez on both the conspiracy
and substantive distribution counts.
C. Quinones
The remaining appellant is Quinones. The government
alleged at trial that Quinones was Delgado's partner in their
drug distribution activities. Quinones now argues that the
district court erred in instructing the jury on the issue of
liability for crimes committed by co-conspirators under the
Pinkerton doctrine. As already explained, Pinkerton allows a
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defendant to be held criminally liable for the acts of a co-
conspirator carried out in furtherance of the conspiracy at a
time when the defendant is a member of the conspiracy, even
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"joint possession" is one of the possibilities mentioned in
the standard charge. See, e.g., United States v. Maldonado,
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23 F.3d 4, 6-7 (1st Cir. 1994).
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though the defendant himself did not participate in those
acts. See 328 U.S. at 645-48.
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Quinones argues that the district court should have
emphasized the jury's obligation to find each element of
Pinkerton beyond a reasonable doubt. Although the district
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court gave a separate reasonable doubt instruction applicable
to the entire case, Quinones cites us to the Seventh
Circuit's decision in United States v. McKenzie, 922 F.2d
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1323, 1330 (7th Cir.), cert. denied, 112 S. Ct. 163 (1991),
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which suggested that a complete Pinkerton instruction should
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inter alia "`advise jurors that the government [bears] the
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burden of proving . . . all elements of the powerful
Pinkerton doctrine . . . beyond a reasonable doubt'" (quoting
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United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir.
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1990)).
This court "evaluate[s] [a] challenged instruction in
the context of the overall charge." E.g., United States v.
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Vavlitis, 9 F.3d 206, 212 (1st Cir. 1993). Similarly, the
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Supreme Court in Cupp v. Naughten, 414 U.S. 141, 146-47
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(1973), referred to "the well-established proposition that a
single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall
charge." Here, the district court began its charge by
stating that the government was obligated to "prove every
element of every offense beyond a reasonable doubt," and
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referred to that burden of proof over a dozen times during
the course of its instructions.
Pinkerton may be a powerful doctrine, but there is no
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reason to think that the jury is especially likely to forget
the general instruction on reasonable doubt when it comes to
applying Pinkerton. We have no intention of constructing a
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special requirement that reasonable doubt be mentioned again,
after an adequate general statement, in relation to selected
elements in an offense or theory of liability. Indeed, in
United States v. Mount, 896 F.2d 612, 623-24 (1st Cir. 1990),
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cert. denied, 114 S. Ct. 415 (1993), we rejected just such an
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argument pertaining to the district court's instruction on
interstate transportation of stolen property.
II. THE SENTENCES
Appellants also challenge numerous aspects of their
sentences under the federal sentencing guidelines, and we
consider each appellant's claims in turn--starting with
Delgado, the alleged ringleader of the drug distribution
conspiracy.
A. Delgado
At Delgado's sentencing, the district court began with a
base offense level of 36 in light of the amount of drugs
involved, added one level because drug distribution activity
took place in proximity to a school, U.S.S.G. 2D1.2, then
added four levels for Delgado's leadership role. U.S.S.G.
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3B1.1(a). The court denied Delgado a two-level reduction for
acceptance of responsibility, see U.S.S.G. 3E1.1, and
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placed him in criminal history category II based on a 1985
Connecticut conviction for possession of cocaine with intent
to distribute. The court then sentenced Delgado to 360
months, the bottom of the resulting guideline range.
On appeal, Delgado first contests the district court's
denial of a reduction for acceptance of responsibility.
Shortly after his arrest, Delgado made a statement to police
officers in which, he asserts, he accepted responsibility for
his crime. In that statement, according to police reports,
Delgado acknowledged that he had called someone who had the
cocaine in order to set up the transaction, and had then
called Special Agent Mersky to arrange a meeting. Despite
this admission, Delgado subsequently pled not guilty to the
indictment and went to trial.
Delgado now contends that the district court failed to
consider his post-arrest statement and refused to reduce his
offense level under section 3E1.1 solely as punishment for
invoking his constitutional right to a trial. The district
court addressed the statement made by Delgado, but concluded
in substance that it was not a full acceptance of
responsibility. Indeed, while the statement admitted that
Delgado played some role in the offense, it downplayed his
own role and asserted that some unnamed individual was the
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true source of the drugs. The court's decision is reviewed
only for clear error, and no such error occurred here.
United States v. Donovan, 996 F.2d 1343, 1346 (1st Cir.
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1993); U.S.S.G. 3E1.1, application note 5.
At sentencing, the district court said that Delgado's
failure to plead guilty was an important factor in the denial
of credit. This is consistent with the guidelines, which
provide that "[c]onviction by trial . . . does not
automatically preclude a defendant from consideration for
such a reduction" but ordinarily the adjustment "is not
intended to apply to a defendant who puts the government to
its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt
and expresses remorse." U.S.S.G. 3E1.1, application note
2.3
Obviously, the guideline, consistent with pre-guideline
practice, means that a defendant who declines to plead guilty
reduces the chance of a lightened sentence. But "not every
burden on the exercise of a constitutional right, and not
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3There are exceptions; the guidelines specifically
mention one who "litigates to preserve issues that do not
relate to factual guilt . . . ." Id. Delgado argues on
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appeal that he failed to plead guilty to avoid being
immunized and forced to testify against his brother, Lazaro
Delgado, on behalf of the government. Since neither this
argument nor any evidence in support of it were ever
presented to the district court, we do not consider the
claim. United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
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1991).
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every pressure or encouragement to waive such a right, is
invalid." Corbitt v. New Jersey, 439 U.S. 212, 218 (1978)
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(possibility of a lesser sentence through a plea bargain does
not unconstitutionally burden the right to stand trial). The
guidelines "merely codify a tradition of leniency [for guilty
pleas] and are not an impermissible burden on the exercise of
constitutional rights." United States v. Uribe, 891 F.2d
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396, 400 (1st Cir. 1989), cert. denied, 495 U.S. 951 (1990).
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Delgado also objects to the district court's
consideration, in calculating his criminal history category,
of a prior Connecticut conviction for unlawfully possessing
cocaine with intent to distribute. At his sentencing hearing
in the present case, Delgado sought to attack collaterally
the prior state conviction, asserting that his guilty plea in
that case was constitutionally invalid. The district court,
relying upon our decision in United States v. Paleo, 967 F.2d
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7 (1st Cir. 1992), considered Delgado's arguments on the
merits but determined that the guilty plea "passed
constitutional muster."
After Delgado's sentencing, Paleo was greatly narrowed
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by United States v. Isaacs, 14 F.3d 106, 108-110 (1st Cir.
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1994), which held that the sentencing guidelines provide no
independent authority for collateral review of prior
convictions used in calculating a defendant's criminal
history category. Although Isaacs preserved certain
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exceptions based upon the Constitution rather than the
guidelines, the Supreme Court subsequently held in Custis v.
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United States, 114 S. Ct. 1732 (1994), that the Constitution
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requires collateral review of a prior conviction used to
enhance a defendant's federal sentence only where the
defendant alleges a complete denial of his Sixth Amendment
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right to counsel in the prior proceeding.
Although Custis considered collateral attack under the
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Armed Career Criminal Act rather than the sentencing
guidelines themselves, the constitutional question is the
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same in each context. Like Delgado in the present case,
Custis alleged that one of his prior convictions was procured
pursuant to a guilty plea that was not knowing and
intelligent as required by Boykin v. Alabama, 395 U.S. 238
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(1969). The Supreme Court rejected this argument, noting
that "when a guilty plea is at issue, `the concern with
finality served by the limitation on collateral attack has
special force.'" 114 S. Ct. at 1738 (quoting United States
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v. Timmreck, 441 U.S. 780, 784 (1979)). Given Custis, we do
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not reach the merits of Delgado's challenge to his earlier
conviction.
B. Andino
We turn now to the sentencing claims of Andino. The
district court began with a base offense level of 36, finding
that Andino was responsible for 745.1 grams of cocaine base.
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U.S.S.G. 2D1.1(c). The court then deducted two levels on
the ground that Andino was a minor participant in the
conspiracy, U.S.S.G. 3B1.2(b). Given a criminal history
category of I, the guideline range was 151 to 188 months, and
the district court imposed a sentence of 151 months. Andino
now asserts that the court erred in several respects, firstly
by attributing to him 506 grams of cocaine base sold by other
defendants to Mersky on May 30, 1991, when Andino was neither
present nor involved in the transaction.
Individuals convicted of membership in a drug conspiracy
are held responsible at sentencing not only for "drugs [they]
personally handled or anticipated handling," but also, "under
the relevant conduct rubric, for drugs involved in additional
acts that were reasonably foreseeable by [them] and were
committed in furtherance of the conspiracy." United States
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v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993). In the
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usual case, what is foreseeable depends on the scope of the
defendant's agreement with the other participants in the
criminal enterprise. United States v. Garcia, 954 F.2d 12,
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16 (1st Cir. 1992). Accordingly, the district court's task
was to determine whether the May 30 transaction was
reasonably foreseeable based upon the scope of Andino's
agreement with his co-conspirators. Our review is only for
clear error. United States v. De la Cruz, 996 F.2d 1307, 1314
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(1st Cir.), cert. denied, 114 S. Ct. 356 (1993).
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The record leaves little question that the May 30 sale
was the "natural progression of the earlier series of sales,"
Garcia, 954 F.2d at 16, and thus within the scope of Andino's
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agreement with his co-conspirators. True, the government's
evidence did not mention Andino after May 16, but there is
also no evidence that he affirmatively withdrew from the
conspiracy. Nor is it conclusive that the May 30 transaction
was larger than earlier transactions. In fact, co-defendant
Quinones told Special Agent Mersky that the conspirators had
other customers who bought in larger quantities than she did.
Next, the district court found that Andino was a minor
participant in the conspiracy and accordingly reduced his
base offense level by two levels, pursuant to U.S.S.G.
3B1.2(b). In so doing, the court rejected Andino's argument
that he was entitled to an even larger reduction as a minimal
participant. See U.S.S.G. 3B1.2(a). Andino now renews
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this argument on appeal, stressing his unfamiliarity with the
English language and his absence at the group's largest
transaction on May 30, 1991.
The guidelines note that the "minimal participant"
reduction should be "used infrequently," U.S.S.G. 3B1.2,
application note 2, and the defendant has the burden of
showing his entitlement to the reduction. United States v.
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Figueroa, 976 F.2d 1446, 1461 (1st Cir. 1992) cert. denied,
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113 S. Ct. 1346 (1993). Here, Andino was involved in at
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least four cocaine transactions and performed a number of
different functions, including guarding the drugs, conducting
counter-surveillance, and delivering cocaine base to Special
Agent Mersky. Compare U.S.S.G. 3B1.2, application note 2
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(minimal participant "played no other role . . . than to
offload part of a single marijuana shipment," or was a
courier in "a single smuggling transaction"). We sustain the
district court's finding that Andino's role was "minor"
rather than something less.
Last, the guidelines distinguish dramatically between
cocaine and cocaine base (or "crack"), treating one gram of
the latter as the equivalent of 100 grams of the former.
Andino argues that the government's trial evidence failed to
distinguish clearly between cocaine base and ordinary
cocaine. He also claims that the jury's finding of cocaine
base rests upon "untrustworthy evidence and faulty although
well intended instruction[s]" by the court.
Whether the substance distributed was cocaine or cocaine
base was a matter to be determined by the district judge at
sentencing, not the jury. United States v. Barnes, 890 F.2d
_____________ ______
545, 551 n.6 (1st Cir. 1989), cert. denied, 494 U.S. 1019
____________
(1990). Under 21 U.S.C. 841(a), the jury need only find
that the defendant distributed a substance containing some
mixture of cocaine as defined in schedule II. Barnes, 890
______
F.2d at 551 n.6; see 21 U.S.C. 812, 841(a). On appeal
___
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from the sentence, we need only review the district court's
sentencing determination that the substance involved was
cocaine base. Barnes, 890 F.2d at 551 n.6.
______
Andino's argument is directed to the trial testimony of
DEA chemist Florence Wong, who testified about the
differences between ordinary cocaine and cocaine base.
Although Wong did misspeak at one point in the transcript,
her overall testimony was not confusing or misleading: it
was that ordinary cocaine (cocaine hydrochloride) and cocaine
base are distinct forms of the drug, and that the latter
commonly goes by the street name of "crack"; that she had
tested samples from each of the transactions involving the
defendants; and that each sample contained cocaine base.
Corroborated by recorded statements of Andino's co-
defendants, and by field tests conducted by Mersky, Wong's
testimony amply supports the district court's finding that
the defendants distributed cocaine base.
C. Martinez
In sentencing Martinez, the district court began with a
base offense level of 36 based on its finding that Martinez
was accountable for 506 grams of cocaine base. The court
granted a four-level reduction (because Martinez was a
minimal participant in the conspiracy, U.S.S.G. 3B1.2(a))
and added two levels (because Martinez had obstructed justice
by recklessly endangering others in fleeing from police,
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U.S.S.G. 3C1.2). Martinez's total offense level of 34, and
his criminal history category of II, yielded a guideline
range of 168 to 210 months' imprisonment. But because of his
prior Connecticut drug conviction, Martinez was subject to a
mandatory minimum sentence of 240 months, 21 U.S.C.
841(b)(1)(A); U.S.S.G. 5G1.1(b), which the district judge
imposed.
On appeal, Martinez makes three claims of error. First,
although he was present at the May 30, 1991 transaction,
Martinez complains on appeal that he could not have foreseen
that there would be 506 grams of cocaine base involved.
Martinez did not raise this argument below. Accordingly our
review is only for plain error, Fed. R. Crim. P. 52(b);
United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993),
______________ ___________
a difficult assertion here since foreseeability is a fact-
based inquiry.
We have already determined that the evidence was
sufficient to establish that Martinez was a member of the
conspiracy who joined in its general objectives. It was
entirely reasonable to infer that Martinez knew that a
substantial quantity of drugs were to be sold on May 30. As
we held in De la Cruz, "[a] defendant who conspires to
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transport for distribution a large quantity of drugs, but
happens not to know the precise amount, pretty much takes his
chances that the amount actually involved will be quite
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large." 996 F.2d at 1314.
Second, Martinez claims that there is an unfair
disparity between his sentence and those meted out to his co-
defendants. We have held that at least in the ordinary case,
"[t]he guidelines do not require the sentencing court to
consider related cases or to justify a sentence in terms of
the punishment meted out to co-defendants." United States v.
_____________
Font-Ramirez, 944 F.2d 42, 50 (1st Cir. 1991), cert. denied,
____________ ____________
112 S. Ct. 954 (1992). In this case, moreover, Martinez's
sentence was wholly determined by a mandatory minimum
prescribed by statute. See 21 U.S.C. 841(b)(1)(A).
___
Martinez's final claim is a vague and perfunctory
collection of challenges to the validity of the sentencing
guidelines under the heading "Sentencing is Impermissibly
Draconian." Martinez does not explain in what way the
sentencing guidelines are inflexible or what mitigating
circumstances they have failed to reflect in this case. In
any event, Martinez's sentence was determined by a statutory
minimum sentence for defendants in Martinez's circumstances
and any alleged inflexibility in the guidelines is
irrelevant.
Martinez's further argument--that the Constitution
provides a right to "punishment that fits the crime"--is
resolved by Harmelin v. Michigan, 111 S. Ct. 2680 (1991).
________ ________
That decision upheld, against a proportionality challenge, a
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state regime imposing a mandatory sentence of life without
parole for possessing more than 650 grams of cocaine. See
___
also United States v. Lowden, 955 F.2d 128, 131 (1st Cir.
____ _____________ ______
1992) (upholding, under Harmelin, a sentence of seven years
________
for distribution of 7.7 grams of LSD). Conspiracy to
distribute a large quantity of cocaine base is a serious
crime, the more so when committed by a prior offender. Given
Harmelin, we cannot say that Martinez's sentence was
________
unconstitutionally excessive.
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D. Quinones
In sentencing Quinones, the district court began with a
base offense level of 36, based on a finding that he was
accountable for 896.2 grams of cocaine base. The court then
added three levels on account of Quinones' managerial role in
the conspiracy. U.S.S.G. 3B1.1(b). The resulting offense
level of 39, along with Quinones' criminal history category
of IV, yielded a guideline range of 360 months to life. The
court sentenced Quinones at the bottom of that range.
Quinones now challenges the district court's decisions as to
his role in the offense and the amount of drugs for which he
should be held accountable.
Section 3B1.1(b) of the guidelines provides that "[i]f
the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive, increase
[the base offense level] by 3 levels." Quinones does not
dispute that the conspiracy in this case involved at least
five participants; he argues, however, that he did not play a
managerial role. The government had the burden at sentencing
of proving by a preponderance of the evidence that an upward
adjustment was warranted. United States v. Ortiz, 966 F.2d
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707, 717 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005
_____________
(1993). Despite Quinones' assertion that he was merely "a
foot soldier" like Martinez and Andino, we think that there
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was sufficient evidence to sustain the district court's
finding. Special Agent Mersky testified that Delgado, the
acknowledged ringleader of the conspiracy, introduced
Quinones to her as his "partner." Moreover, the district
court found that Quinones had exercised supervisory control
over Andino at the abortive transaction on May 3. Quinones'
action in renegotiating the price of the drugs at the more
successful May 6 transaction also suggests a position of
authority.
Quinones rightly points out that one can imagine more
than one explanation for all of these events, but we think
that the view taken by the district court is not implausible.
United States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993)
______________ ______
(sentencing court's choice between two plausible views of the
record cannot be clearly erroneous). Additionally, we have
said that "[m]anagerial status may attach if there is
evidence that a defendant, in committing the crime, exercised
control over, or was otherwise responsible for overseeing the
activities of, at least one other person." Id. The
___
imposition of the sentence enhancement here was not clear
error.
Like Andino, Quinones was not present at the May 30,
1991 transaction and thus claims that he should not have been
held accountable for the 506 grams of cocaine base involved
in that transaction. As we have noted above, there was
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considerable evidence at trial that Quinones played a
prominent role in the conspiracy, making it reasonable to
infer that Quinones was well-acquainted with the scope of the
group's activities and plans. Quinones does not argue that
he had withdrawn from the conspiracy prior to May 30.
Accordingly, we uphold the district court's determination
that Quinones was accountable for the full amount of cocaine
base distributed over the life of the conspiracy.
Appellants' convictions and sentences are affirmed.
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