United States v. Gonzalez

Opinion

USCA1 Opinion

November 16, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-2471

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   WESLEY GONZALEZ,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Barbara A.H. Smith on brief for appellant.
            __________________
            Edwin  J. Gale,  United  States  Attorney,  and Zechariah  Chafee,
            ______________                                  _________________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per  Curiam.    Appellant Wesley  Gonzalez  pleaded
                      ___________

            guilty  to  a  one-count indictment  which  charged  him with

            possession of a  substance containing a detectable  amount of

            cocaine with intent to distribute in violation of 21 U.S.C.  

            841(a)(1).  He appeals two aspects of the sentence imposed by

            the  district   court  under  the  United  States  Sentencing

            Guidelines (U.S.S.G.).   Because the appeal does  not present

            any  substantial  questions,  we   summarily  dispose  of  it

            pursuant to Local Rule 27.1.

                      1.    Appellant  claims  that  the  district  court

            improperly fined  him for the  cost of his five-year  term of

            supervised release.  This fine amounts to $6,918 and is to be

            paid in  monthly installments  of $115.30  once appellant  is

            released.  According  to appellant, U.S.S.G.    5E1.2(i) does

            not permit such a fine in his case because the district court

            "waived" the  assessment of a punitive fine.

                      U.S.S.G.   5E1.2(a) states that "[t]he  court shall

            impose  a  fine  in all  cases,  except  where the  defendant

            establishes that  he is unable  to pay  and is not  likely to

            become able  to pay  any fine."   U.S.S.G.    5E1.2(i) states

            that [n]otwithstanding . . . the provisions of subsection (c)

            [list  of  minimum   and  maximum  fines],  but   subject  to

            subsection (f)  [waiver or  imposition of  lesser fine],  the

            court shall impose an additional fine amount that is at least

            sufficient to pay  the costs to the  government of any .  . .

supervised release ordered."  In United States v. Corral, 964
                                             _____________    ______

            F.2d  83 (1st Cir. 1992), we held  that "a district court may

            not  impose a duty  to pay for the  costs of incarceration or

            supervised  release if the defendant is indigent for purposes

            of  a  [punitive] fine  under  Sentencing Guidelines  section

            5E1.2(a)."  Id. at 84.
                        ___

                      Corral is of no avail  to appellant for the  simple
                      ______

            reason  that the  district  court,  in  fact,  did  impose  a

            punitive fine under  U.S.S.G.   5E1.2(a).   Appellant's claim

            to the  contrary rests  upon page 5  of the Judgment  form on

            which  the district  court  checked  the  box  preceding  the

            following words:   "Fine is waived or is  below the guideline

            range, because of the defendant's inability to pay."  By only

            focussing   on  the  "inability  to  pay"  language  for  the

            proposition  that a  punitive  fine  was "waived,"  appellant

            conveniently  ignores what the  district court judge  said at

            the sentencing hearing concerning a fine under   5E1.2(a):

                           As far as the fine is concerned,  it
                      does  not  appear  you  have  substantial
                      assets.  You  have some assets  and based
                      on  that, the Court will impose a fine in
                                _______________________________
                      the amount of one  hundred dollars and  a
                      __________________________________
                      special assessment in the amount of fifty
                      dollars as required by law.

            Transcript of Sentencing Hearing,  at 17-18 (emphasis added).

            Indeed, page 4 of the Judgment form specifically  states that

            the total fine  of $7,018 is composed  of a fine of  $100 and
                                                        ____

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the cost of  supervised release of $6,918.   Thus, this claim

            is without merit.

                      2.  Appellant's second assignment of error concerns

            the conversion  of $29,990  into 1,000  grams of  cocaine for

            sentencing purposes under U.S.S.G.   1B1.3(a)(2) and   2D1.1.

            This  sum was  part  of the  cash seized  during a  search of

            appellant's  apartment  conducted  by  the  Drug  Enforcement

            Administration  (DEA).  Also  seized were 3  plastic sandwich

            bags containing a total of 17.6 grams of 80% pure  cocaine, a

            pager, a cellular  telephone, a shoe box filled  with plastic

            bags, three  sifters, a spoon  and a triple-beam scale.   The

            latter three  items were  found  to have  cocaine residue  on

            them;  it is  undisputed that  all of  the seized  items were

            "common" implements of the cocaine trade.

                      As for  the cash,  DEA agents  found $4,450 in  the

            bedroom and $3,990 on a table in the living room.   They also

            discovered $26,000 hidden beneath  a stereo speaker.  Out  of

            the total  amount, the government  accepted appellant's claim

            that $4,450 represented the settlement of an insurance claim.

            This  left the  $29,990 which  the  Presentence Report  (PSI)

            concluded represented the proceeds of sales of 1,000 grams of

            cocaine.

                      Appellant  did  not object  at  sentencing  to this

            calculation.   Normally, such a  failure results in a waiver.

            See United States v. Dietz,  950 F.2d 50, 55 (1st Cir.  1991)
            ___ _____________    _____

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("in connection with  sentencing as in other contexts,  . . .

            arguments not seasonably addressed to the trial court may not

            be  raised  for  the  first  time  in  an  appellate venue").

            Appellant urges, nonetheless, that where a fundamental  error

            in  the application  of the Guidelines  affects "substantial"

            rights,  review  is  proper  to  prevent  a  "miscarriage  of

            justice."   See United States  v. Agoro, 996 F.2d  1288, 1291
                        ___ _____________     _____

            (1st  Cir. 1993) (where government agreed with defendant that

            sentence  imposed  by district  court exceeded  the allowable

            guideline range, court  would address claim raised  for first

            time on appeal).

                      This  is  not  such a  case.    Indeed, appellant's

            arguments  fall  short  of demonstrating  any  defect  in the
                                                      ___

            court's  sentencing calculations.    Pursuant  to U.S.S.G.   

            1B1.3(a)(2),  appellant is responsible for all acts that were

            "part of the same course of  conduct or common scheme or plan

            as the offense  of conviction. . .  ."  See United  States v.
                                                    ___ ______________

            Figueroa, 976 F.2d 1446, 1460 (1st  Cir. 1992), cert. denied,
            ________                                        ____________

            113 S. Ct.  1346 (1993).  When applied to  drug offenses, the

            district court  may take into  account "the amount  of drugs,

            whether or not  `specified in the  count of conviction,'"  so

            long  as the  drugs  are  part of  the  conduct underlying  a

            defendant's conviction.   United States v. Tabares,  951 F.2d
                                      _____________    _______

            405, 410 (1st  Cir. 1991) (quoting    1B1.3(a)(2) &  comment.

            (backg'd)).    Further,  in  determining  a  defendant's base

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offense level where  "the amount seized does not  reflect the

            scale  of  the  offense,  the  court  shall  approximate  the

            quantity of  the controlled  substance."   U.S.S.G.    2D1.1,

            commentary (n.12).

                      Appellant argues  that  the  government  failed  to

            establish by a preponderance of the evidence that there was a

            sufficient  connection between the $29,990 and the offense to

            which he  pleaded guilty.   Specifically,  appellant contends

            that  the PSI  merely concluded  that  the money  represented

            proceeds from other drug transactions without  presenting any

            evidence of  actual sales  or any  evidence of  a conspiracy.

            Instead,  appellant asserts,  the only concrete  evidence was

            the  17.6 grams  found in  his apartment.   This  should have

            resulted,  he goes on,  in a finding that  he was involved in

            only a "very small scale operation."  Thus, he concludes that

            our decision in  United States v. Gerante, 891  F.2d 364 (1st
                             _____________    _______

            Cir.  1989), does  not  control  and  an  "approximation"  by

            converting  the  cash into  1,000  grams of  cocaine  was not

            permitted.

                      In  Gerante, defendant was arrested while he was in
                          _______

            possession of 4.98 kilograms of cocaine.  A subsequent search

            of  his home revealed small additional quantities of cocaine,

            five loaded guns  and $68,000.  Upon being  questioned by DEA

            agents, defendant  stated, among  other things,  that he  had

            been trafficking in multi-kilogram amounts of cocaine for six

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months and that the $68,000 represented proceeds from a prior

            deal.  We  held that the district  court's determination that

            the drugs  purchased with the  $68,000 were part of  the same

            course  of conduct  under  U.S.S.G.     1B1.3(a)(2)  was  not

            clearly  erroneous.   891  F.2d at  368.   As  a result,  the

            conversion  of  the cash  into  a  quantity  of  cocaine  was

            permitted by the Guidelines, in  part, because the amount  of

            drugs seized did  not reflect the scale of the  offense.  Id.
                                                                      ___

            at 369 (citation omitted).

                      Appellant's  effort   to  distinguish   Gerante  is
                                                              _______

            unavailing.   Conspicuously absent  from his  version of  the

            events  is  the  admission,  made  by  his  attorney  at  the

            sentencing hearing,  that the  $29,990, in fact,  represented

            proceeds from sales of cocaine.  See Transcript of Sentencing
                                             ___

            Hearing, at 4, 14 (in  arguing for a reduction for acceptance

            of responsibility, counsel emphasized the fact that appellant

            did  not "fight"  the conversion  of the  money into  sums of

            cocaine and acknowledged that the money appellant made to buy

            cocaine put him in a higher guideline range).  As in Gerante,
                                                                 _______

            this admission  provides sufficient evidence that the $29,990

            was  part of  the same  course of  conduct as the  offense of

            conviction.  See United States v. Figueroa, 976 F.2d at 1460-
                         ___ _____________    ________

            61 (where defendants in taped  telephone conversations stated

            that they  sold $6,000  worth of "dime"  bags of  cocaine per

            day,  no clear error  in approximating the  amount of cocaine

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based on "the  sums of money admittedly  received") (footnote

            omitted).

                      Finally, we  reject appellant's  argument that  the

            result of the conversion (which raised his base offense level

            from   12   to    26)   rendered   his    sentence   "grossly

            disproportionate" and  "inequitable."   Similar increases  in

            sentencing ranges due to the addition of  quantities of drugs

            not included in  the offense conduct have been  upheld.  See,
                                                                     ___

            e.g., United States v. Sklar,  920 F.2d 107, 112-14 (1st Cir.
            ____  _____________    _____

            1990)  (despite  seizure  of  only  one   package  containing

            cocaine,  court's   addition  for   sentencing  purposes   of

            estimated   quantities   of  cocaine   contained   in  eleven

            previously  mailed  packages  --  which  essentially  doubled

            guideline range --  not clearly erroneous); United  States v.
                                                        ______________

            Vazzano, 906 F.2d 879, 884  (2d Cir. 1990) (addition of extra
            _______

            amount  of cocaine defendant  told informant he  had recently

            sold for  purposes of calculating base offense level held not

            clear error; addition almost tripled guideline range).

                      Appellant adds  the claim  that  his trial  counsel

            provided  ineffective assistance  in violation  of  the Sixth

            Amendment by, among other omissions, failing to object at the

            sentencing  hearing to  the conversion  of  the $29,990  into

            1,000  grams of  cocaine.   "We have  held with  a regularity

            bordering on  the  monotonous that  fact-specific  claims  of

            ineffective  assistance cannot  make  their debut  on  direct

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review of criminal convictions,  but, rather, must originally

            be presented to, and acted upon by, the trial court."  United
                                                                   ______

            States  v. Mala,  No. 91-2229,  slip  op. at  9-10 (1st  Cir.
            ______     ____

            October 27,  1993).  Because  this claim may turn  on factual

            matters outside of the record now before us, the claim is not

            ripe for appellate review.

                      We,  therefore, affirm  the judgment  of conviction
                                      ______

            without prejudice to appellant's right to file a motion under

            28  U.S.C.     2255  concerning  his  claims  of  ineffective

            assistance of counsel.   We express no opinion  on the merits

            of any such claims.

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