United States v. Jackson

• Court: Court of Appeals for the First Circuit
• Decided: August 31, 1993
• Docket: 92-1686
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-1686

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  PRISCILLA JACKSON,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                             Torruella, Oakes,* and Cyr,

                                   Circuit Judges.
                                   ______________

                                _____________________

               Norman  E. V.  D'Andrea, by  Appointment of  the Court,  for
               _______________________
          appellant.
               Kenneth P.  Madden, Assistant United  States Attorney,  with
               __________________
          whom  Lincoln C. Almond, United States Attorney, was on brief for
                _________________
          appellee.

____________________

                                   August 31, 1993
                                 ____________________

____________________

          *  Of the Second Circuit, sitting by designation.

TORRUELLA,  Circuit  Judge.   On  December  4, 1991,  a
                                ______________

          federal  grand  jury  indicted appellant  Priscilla  Jackson  and

          codefendant Juan Familia, charging conspiracy  to possess cocaine

          with  intent to distribute it (Count I) and possession of cocaine

          with intent to distribute it  (Count II).  See 21 U.S.C.     846,
                                                     ___

          841(a)(1) and 841(b)(1)(C).  Familia, whose appeal is not part of

          this case,  was also charged with  using a firearm  during and in

          relation to a drug trafficking crime  in violation of 18 U.S.C.  

          924(c).  Jackson  was not charged  with this third count.   After

          trial, a jury convicted both defendants  on Counts I and II,  but

          acquitted Familia of the firearm charge.  Jackson does not appeal

          her conviction, but contests  the district court's calculation of

          her  guideline sentencing range ("GSR")  on several grounds.  For

          the reasons that follow, we affirm.

                                          I
                                          I
                                          _

                    On November 11, 1991,  police officers from Providence,

          Rhode Island went to execute a search warrant at the second floor

          apartment of  142 Bowdoin  Street, Providence.   At approximately

          7:00 p.m., Familia departed from the apartment and drove away  in

          a Dodge minivan.   The officers stopped the vehicle  and returned

          with Familia to his apartment.  

                    They entered  the kitchen  through the rear  door using

          Familia's  keys.    The  kitchen  leads  directly to  the  master

          bedroom, which contained  a bed,  a crib, an  upright dresser,  a

          bureau  and a television table.  Jackson  was on the bed with the

          couple's child.

                    Upon entering the apartment,  Familia declared:  "All I

have  is a gun.  It's under  the mattress."  The police proceeded

          to  search  the  apartment.   They  found  the  pistol under  the

          mattress.  A bottle of inositol, a chemical used to cut or dilute

          cocaine,  sat on  top of the  bureau.   The bottom  drawer of the

          dresser was nailed shut.  The officers discovered that the drawer

          itself had  been removed and  only the facade  remained.   On the

          floor behind the false drawer front, they found a paper bag and a

          metal box.  The paper bag  held three plastic bags that contained

          299.22 grams of cocaine.  The metal box contained $3866 in United

          States  currency and  two  Rhode Island  state lottery  receipts,

          which indicated that  Familia had  received a total  of $2085  in

          winnings  on August  28, 1991.    The police  also found  a small

          plastic bag containing  ten rounds of  .38 caliber ammunition  in

          plain view on the floor in front of the bedroom closet.

                    After trial,  a jury  convicted Familia and  Jackson of

          conspiring to possess, and possession of,  cocaine with intent to

          distribute  it.  The sentencing judge  held a hearing at which he

          considered objections raised by the government and Jackson to the

          Presentence  Investigation Report  ("PSR").   After  argument, he

          determined  the GSR.   The  judge assigned  a base  offense level

          ("BOL") of 24  for the quantity of drugs involved in the offense.

          He arrived at the BOL by converting  the $3866 in currency seized

          into 109.6  grams of cocaine based on the going price at the time

          of the  offense.1   To that  amount, the  judge added the  299.22
                              
          ____________________

          1   Based  on  advice from  the  Drug Enforcement  Administration
          ("DEA"), the  probation officer who prepared  the PSR established
          $1000 as  the going  price for an  ounce of cocaine  in November,

                                         -3-

grams of cocaine  actually seized.  Thus, the  BOL derived from a

          total  quantity of  408.82  grams of  cocaine.   See  U.S.S.G.   
                                                           ___

          2D1.1(c)(10) (Drug Quantity Table) & comment. (n.12) (Nov. 1991).

          The court  increased the BOL  by two levels  for possession of  a

          dangerous  firearm, as required  by U.S.S.G.    2D1.1(b)(1).  The

          court  rejected   the  two-level   decrease  for  a   minor  role

          recommended by the PSR,  finding insufficient evidence to warrant

          such  a reduction.   See id.  at    3B1.2(b).   Based on  a total
                               ___ ___

          offense level  of 26 and  Jackson's criminal history  category of

          III, the court determined that the GSR was 78 to 97 months.

                    Jackson   appeals  from  the   sentencing  judge's  GSR

          calculation,  raising three contentions:  The  court erred by (1)

          denying  her a  downward adjustment  of two  levels based  on her

          minor role in the offense;  (2) raising the offense level by  two

          points for presence of a firearm; and (3) converting the $3866 in

          currency into  a quantity of  cocaine to  determine the BOL.   We

          consider each in turn.

                                          II
                                          II
                                          __

                    Mitigating  Role.    Guideline    3B1.2  allows  for  a
                    ________________

          downward adjustment of  the offense level for  defendants who are

          less  culpable than other participants in the crime.  A defendant

          bears the  burden of  establishing that  she deserves a  downward

          adjustment.  United States v. Ortiz, 966 F.2d 707, 717 (1st  Cir.
                       _____________    _____

          1992),  cert. denied, 113 S. Ct. 1005 (1993).  Since role-in-the-
                  ____________

____________________

          1991.   Therefore,  $3866 converts  to  3.866 ounces  of cocaine,
          which is equivalent to 109.6 grams.

                                         -4-

offense determinations  are fact-bound,  we review  such findings

          only for clear error.   See, e.g., United  States v. Sostre,  967
                                  ___  ____  ______________    ______

          F.2d  728, 732 (1st  Cir. 1992); United States  v. Brum, 948 F.2d
                                           _____________     ____

          817, 820 (1st Cir. 1991).

                    In this  case, Jackson  was convicted of  conspiring to

          possess, and possession of, cocaine with intent to distribute it.

          Familia testified that neither defendant was involved with drugs,

          and that the drugs might have belonged to his brother (he was not

          certain  to  whom  they belonged).    Neither  the  jury nor  the

          sentencing  judge  credited Familia's  contentions,  however, and

          Jackson offered nothing else  to meet her burden of  proving that

          she acted in  a lesser  capacity.  We  therefore cannot  conclude

          that the judge  clearly erred in denying the downward adjustment.

          See  United States v.  Ruiz, 905  F.2d 499,  508 (1st  Cir. 1990)
          ___  _____________     ____

          ("where   there  is   more  than   one  plausible  view   of  the

          circumstances,  the sentencing  court's choice  among supportable

          alternatives cannot be clearly erroneous").

                    Weapon   Possession   Adjustment.      The   sentencing
                    ________________________________

          guidelines require that the offense level be raised two points if

          a  firearm  was  possessed  during a  drug  trafficking  offense.

          U.S.S.G.    2D1.1(b)(1).   "We have  held that,  if a  weapon was

          present,  the  adjustment should  be  made unless  it  is clearly

          improbable  that  the weapon  and  the  offense were  connected."

          United  States v. McDowell, 918  F.2d 1004, 1011  (1st Cir. 1990)
          ______________    ________

          (citing Ruiz, 905  F.2d at  507; United States  v. Mocciola,  891
                  ____                     _____________     ________

          F.2d 13, 17 (1st Cir. 1989)).

-5-

Jackson argues  that her offense level  should not have

          been raised for presence of a weapon.  Jackson asserts that there

          was no  evidence  showing that  she knew  the gun  was under  the

          mattress or that she had ever used the firearm.  On the contrary,

          Familia testified that the gun was  his and that she knew nothing

          about the weapon.   Moreover, she was not charged  for possession

          of a weapon and Familia was acquitted of possession during a drug

          trafficking crime.  The adjustment, she argues, was unwarranted.

                    The  determination that  a weapon  is present  during a

          drug  offense is  factual; it  will be  set aside only  for clear

          error.  United States v. Corcimiglia, 967 F.2d 724, 726 (1st Cir.
                  _____________    ___________

          1992);  United  States v.  Pineda, 981  F.2d  569, 572  (1st Cir.
                  ______________     ______

          1992).    Neither  the fact  that  Jackson  was  not charged  for

          possession   of   the   weapon   nor   Familia's   acquittal   is

          determinative.   The  decision  not to  charge  Jackson may  have

          resulted from the government's belief that it could not prove her

          guilt beyond a reasonable doubt.  The acquittal of Familia merely

          established that the government failed  to prove his guilt beyond

          a reasonable  doubt.  At sentencing however,  the government need

          only  prove facts by a preponderance of the evidence, Pineda, 981
                                                                ______

          F.2d at 574  (citing United States v.  Wright, 873 F.2d  437, 441
                               _____________     ______

          (1st  Cir. 1989)), and uncharged conduct may be attributed to the

          defendant  for sentencing  purposes, U.S.S.G.    1B1.3,  comment.

          (backg'd.)  ("Conduct that is not  formally charged or  is not an

          element  of  the  offense  of  conviction   may  enter  into  the

          determination  of the  applicable guideline  sentencing range.");

-6-

see, e.g.,United States v. Garc a,954 F.2d 12, 15(1st Cir. 1992).
          ___  ____ _____________    ______

                    The facts are not nearly as favorable to Jackson as she

          believes.  The weapon was definitely present; the police found it

          under  the mattress  where  Familia said  it  was located.    The

          sentencing  court reasonably  inferred that  Jackson knew  of its

          presence:   Jackson  lived  in the  apartment  with Familia;  the

          firearm was hidden under their bed, the ammunition for the pistol

          lay on the floor, next  to the bed, plainly within her  view; the

          apartment  was used to traffic narcotics; and the gun was located

          only a few feet from where  the cocaine and inositol were  found.

          Given Familia's numerous other implausible statements,  the judge

          was entitled  to disregard Familia's  exculpatory statement  that

          Jackson knew nothing of  the weapon and that  he purchased it  to

          deter car thieves.  Even  if Familia owned the weapon, under  the

          circumstances  detailed above,  it  was reasonable  to find  that

          Jackson  also possessed the weapon.  See Corcimiglia, 967 F.2d at
                                               ___ ___________

          727.   Moreover,  "an alternative  legal  basis for  the  weapons

          possession, in  and of  itself, does  not prevent  the sentencing

          court from granting the enhancement."  Id. (citing United  States
                                                 ___         ______________

          v. Almonte, 952 F.2d 20, 25 (1st Cir. 1991), cert. denied, 112 S.
             _______                                   ____________

          Ct. 1776 (1992); Ruiz, 905 F.2d at 508).  
                           ____

                    In any event, when  it has been shown that  the firearm

          was present,  the  relevant inquiry  is  whether it  is  "clearly

          improbable"  that the  weapon  could have  been  used during  the

          offense.   E.g., Corcimiglia, 967 F.2d at 727; McDowell, 918 F.2d
                     ____  ___________                   ________

          at  1011.  Defendant bears  the burden of  demonstrating that the

-7-

connection was clearly improbable.  Corcimiglia, 967 F.2d at 728.
                                              ___________

          Nothing in the record disputes  the reasonable inference that the

          gun was connected to the  offense.  The sentencing judge did  not

          clearly err in imposing the two-level increase.

                    Conversion of  Currency.  The PSR  recommended that the
                    _______________________

          $3866  of currency found in the  metal box, which was stored next

          to the cocaine  in the  bedroom, be considered  proceeds of  drug

          trafficking  for  sentencing purposes.    As  a  result, the  PSR

          converted the  seized  currency into a quantity of  cocaine based

          on  an approximation of the  going price of  cocaine in November,

          1991  ($1000).2   The sentencing  court agreed  and computed  the

          total  quantity of  cocaine relevant  to setting  the BOL  as the

          amount  of cocaine actually seized  and the amount  that could be

          purchased by the seized currency.  Including this extra amount of

          cocaine raised the BOL by two levels.

                    Jackson  contests the  conversion  of  the currency  on

          three grounds.  She argues first that because the $1000 price per

          ounce  was  an  approximation,  it is  unfair  to  calculate  the

          quantity on  that basis.  She  next contends that the  DEA source

          for  the conversion  price  was never  called  as a  witness  and

          "technically there was a  denial of confrontation."  (Appellant's

          Brief  at 9).    Finally,  she  urges  that  the  district  court

          incorrectly  deemed  the  $3866  of  currency  proceeds  of  drug

          transactions because there was evidence that the money could have

____________________

          2   A DEA  agent provided  the  price estimate  to the  probation
          officer.  See supra note 1.
                    ___ _____

                                         -8-

come from at least two or three other sources.

                    In  sentencing  cases  involving  disputed  amounts  of

          illicit substances, we  have required  that reliable  information

          support,  by  a  preponderance  of  the  evidence,  the  quantity

          attributed  to the defendant.  See, e.g., United States v. Sklar,
                                         ___  ____  _____________    _____

          920  F.2d  107,  113 (1st  Cir.  1990).    Under the  Guidelines,

          "[w]here there is no drug  seizure or the amount seized  does not

          reflect  the scale  of the  offense,  the sentencing  judge shall

          approximate the quantity of  the controlled substance."  U.S.S.G.

            2D1.4 comment. (n.2).  In  making the estimate, "the judge  may

          consider,  for  example, the  price  generally  obtained for  the

          controlled  substance,  .  .  .  [and]  similar  transactions  in

          controlled  substances by the defendant  . . . ."  Id.3   We have
                                                             ___

          sanctioned  the use of estimates  when an exact  figure cannot be

          determined, but we demand that "when choosing between a number of

          plausible estimates  of drug quantity .  . . a court  must err on

          the side  of caution."   Sklar, 920 F.2d  at 113  (quoting United
                                   _____                             ______

          States  v.  Walton, 908  F.2d  1289,  1301 (6th  Cir.)  (internal
          ______      ______

          quotation  omitted),  cert.  denied,  111  S.  Ct.  273  (1990)).
                                _____________

          Ultimately, however,  the determination  that an amount  of money

          represents  proceeds from drug transactions that  are part of the

          same  course of  conduct as  the charged  offense,  and therefore

          represents  relevant conduct  attributable to  the defendant,  is

          predominantly  factual  and  reviewable  only  for  clear  error.
                              
          ____________________

          3  The current  Guidelines allow for estimation of  quantities as
          well.  The language  of the commentary has been  moved to   2D1.1
          comment. (n.12).

                                         -9-

United  State  v. Gerante,  891 F.2d  364,  368 (1st  Cir. 1989);
          _____________     _______

          Sklar, 920 F.2d  at 114;  see also United  States v. Duarte,  950
          _____                     ________ ______________    ______

          F.2d 1255, 1265 (7th Cir. 1991) (ascertaining quantity  of drugs,

          which  involves  conversion  of  currency  into  equivalent  drug

          quantity, is  factual determination subject  to clearly erroneous

          standard), cert. denied, 113 S. Ct. 174 (1992).
                     ____________

                    In United States v. Gerante, the defendant was arrested
                       _____________    _______

          with  4.98 kilograms  of cocaine  and $68,000  in cash.   Gerante

          objected  to  treating  money  found   in  his  residence  as  an

          equivalent quantity of contraband  for the purpose of determining

          relevant conduct  under   1B1.3.   Following  the command  of the

          Guidelines, we  approved the practice of  estimating the quantity

          of cocaine that a defendant had exchanged for a sum  of money and

          holding the defendant accountable for that quantity, provided the

          money represents  drug transactions  that are  part  of the  same

          course  of conduct as the instant offense.   See id., 891 F.2d at
                                                       ___ ___

          369; see also Sklar, 920 F.2d at 113 (approving same practice).  
               ________ _____

                    Several  other circuits have  approved the  practice in

          cases  involving large  quantities  of contraband  and  currency.

          See, e.g.,  United States v. Hicks, 948  F.2d 877 (4th Cir. 1991)
          ___  ____   _____________    _____

          (involving  two  kilograms  of  cocaine and  $279,550  in  cash);

          Duarte,  950 F.2d at 1265  (approving principle in case involving
          ______

          five  kilograms and  $117,000 cash,  but remanding  because price

          range estimate could have resulted in two different GSRs); United
                                                                     ______

          States  v.  Stephenson, 924  F.2d 753  (8th  Cir.) (233  grams of
          ______      __________

          cocaine  and $112,867 cash);  but cf. United  States v. Gonz lez-
                                        _______ ______________    _________

-10-

S nchez,  953  F.2d  1184,  1186-87 (9th  Cir.  1992)  (approving
          _______

          principle  of  converting  $1541  into quantity  of  heroin,  but

          rejecting conversion where  no evidence  supported connection  of

          currency to drug transactions).  Cases involving large amounts of

          currency  more readily  support a  reasonable inference  that the

          amount seized  does not reflect  the scale of the  offense.  When

          drug traffickers possess large amounts of cash in ready proximity

          to  their drug supply, a  reasonable inference may  be drawn that

          the money represents drug profits.

                    Small amounts  of currency do not present  such a clear

          case.    Nonetheless,  the  obligation of  the  sentencing  judge

          remains  the  same.   The judge  must  determine the  quantity of

          cocaine  involved, taking into account  all relevant conduct.  If

          the judge supportably finds that  the quantity of cocaine  seized

          does  not reflect "the scale of the offense," and concludes, by a

          preponderance of the evidence, that certain  amounts of money are

          drug proceeds from  the same  course of conduct,  then the  judge

          must estimate  the amount of  drugs that the  defendant exchanged

          for the currency seized.

                    We   turn  now   to  Jackson's  argument   against  the

          conversion  of  the $3866  to 109.6  grams  of cocaine.   Neither

          Jackson's written objections to  the PSR nor her argument  at the

          sentencing hearing  challenged the $1000 conversion  price or the

          failure of the  DEA agent  who provided the  conversion price  to

          testify  at the sentencing hearing.  Having failed to raise these

          contentions before the  sentencing court, they may not  be raised

-11-

for the first time on appeal.  See, e.g., United States v. Dietz,
                                         ___  ____  _____________    _____

          950 F.2d 50,  56 (1st  Cir. 1991); United  States v.  Uricoechea-
                                             ______________     ___________

          Casallas,  946 F.2d  162, 166  (1st Cir.  1991), see  also United
          ________                                         _________ ______

          States v. Zuleta-Alvarez,  922 F.2d  33, 36 (1st  Cir. 1990)  ("A
          ______    ______________

          sentencing hearing  need not  meet all the  procedural safeguards

          and strict evidentiary limitations  of a criminal trial."), cert.
                                                                      _____

          denied, 111 S. Ct. 2039 (1991).
          ______

                    We  are unpersuaded  by Jackson's  third contention  as

          well.  She  argues that the  currency could have come  from other

          sources and, as  a consequence,  the evidence did  not support  a

          finding that these funds were proceeds of drug transactions which

          were part of the same course of conduct.  In many cases involving

          small amounts of currency it will be difficult for the government

          to  prove by a  preponderance of the  evidence that  the money is

          tied to drug trafficking.  This, however, is not such a case.

                    Jackson claims  that $2085 of the  seized currency were

          winnings  from the Rhode  Island Lottery and  offered the lottery

          receipts from August 28,  1991 found in the metal  box containing

          the  currency  to  prove  that  contention.    The  balance,  she

          contends, was given to Familia to purchase his van and ship it to

          his  sister in  Puerto Rico.   These  appear to  be superficially

          appealing explanations.  They prove unavailing, however.  

                    The sentencing judge rejected her story because Familia

          never   claimed   that  monies   were   lottery   winnings,  thus

          contradicting   Jackson's  assertions.     Where   their  stories

          overlapped,  the judge did not believe Familia or his sister, who

-12-

testified that she sent him $3600 for his car.  At the sentencing

          hearing,  Familia's  sister  was  unable to  provide  any  detail

          concerning  the purchase of  the car.  She  could not recall what

          denominations of currency she  sent to her brother.   She did not

          know the  make of the vehicle, its age, its mileage, how much her

          brother charged for the van, or the cost of shipping it to Puerto

          Rico.    The judge  therefore  rejected  the various  alternative

          sources of the currency  and determined that the funds  were drug

          proceeds.

                    We cannot say  that the sentencing judge's  conclusions

          were clearly erroneous.  It is possible that Familia's sister was

          not knowledgeable regarding motor vehicles and that she entrusted

          the details of the transaction to her brother, satisfied that her

          kin  would  treat  her  honestly.    The  judge  present  at  the

          sentencing  hearing is  in  the best  position  to determine  the

          credibility  of  the witnesses  and the  source of  the currency,

          however.   See  Wainwright  v. Witt,  469  U.S. 412,  428  (1985)
                     ___  __________     ____

          (credibility determinations are peculiarly within a trial judge's

          province).   Here,  the court  discredited a  remotely plausible,

          lawful  explanation  for the  monies and  found  them to  be drug

          profits.

                    Finding no clear error, we affirm.
                                               ______

-13-