United States v. Karen Diiorio

948 F.2d 1, 1991 U.S. App. LEXIS 24696, 1991 WL 206300
CourtCourt of Appeals for the First Circuit
DecidedOctober 16, 1991
Docket91-1340
StatusPublished
Cited by46 cases

This text of 948 F.2d 1 (United States v. Karen Diiorio) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Karen Diiorio, 948 F.2d 1, 1991 U.S. App. LEXIS 24696, 1991 WL 206300 (1st Cir. 1991).

Opinion

BOWNES, Senior Circuit Judge.

This is a Sentencing Guidelines appeal. In November of 1990, a federal grand jury in the district of Rhode Island issued a three-count indictment against the appellant, Karen Dilorio, and a co-defendant, Fernando Cabral. The first count charged Dilorio and Cabral with conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. § 846. The two remaining counts charged them with two separate distributions of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. In January of 1991, Dilorio entered into a plea bargaining agreement with the government. Appearing before the Honorable Raymond J. Pettine of the District Court for the District of Rhode Island, Dilorio pled guilty to the third count of the indictment, which charged a single distribution of cocaine. At a sentencing hearing held in March of 1991, the district court, acting on the plea agreement, granted the government’s motion for dismissal of the first two counts of the indictment. The district court sentenced Dilorio to eighteen months in prison and an additional mandatory three-year period of supervised release.

On appeal, Dilorio raises three challenges to the district court’s application of the Guidelines. First, she claims that the district court should have granted a four-level downward adjustment in her offense level because of her “minimal” role in the cocaine distribution. Second, she asserts that in determining her base offense level according to the amount of drugs involved in the transaction, the district court erroneously included an amount of cocaine charged in a count that was dismissed pursuant to the plea bargaining arrangement. Finally, Dilorio argues that the district court erred in its interpretation of the Guidelines when it determined that it had no authority to depart downwards from the . applicable sentencing level. We affirm the district court’s application of the Sentencing Guidelines.

I. BACKGROUND AND PROCEDURAL HISTORY

A) The Offense

The following facts are set out in the Government’s Presentence Report and are undisputed by the appellant. According to that report, on August 30, 1989, a confidential informant of the Drug Enforcement Administration (DEA) arranged for the introduction of appellant Dilorio and her co-defendant Fernando Cabral (Cabral) to two undercover DEA agents, Special Agent John Adams (Adams) and Task Force Agent Lisa Farrell (Farrell). The meeting between Agents Adams and Farrell, the informant, Dilorio and Cabral took place at the T.F. Green State Airport in Warwick, Rhode Island. The group then proceeded to the Marriott Hotel in Providence, Rhode Island, where they continued the meeting. There, Cabral stated that he could supply the agents with various amounts of cocaine on a weekly basis and indicated that the agents could advise the informant of how much cocaine they wished to purchase. In the course of this meeting, Dilorio expressed her concern that the undercover agents were “cops” and declared that all future meetings should be held at the El Inca Restaurant in Providence. Agents Adams and Farrell were already familiar with the El Inca Restaurant as a haven for cocaine trafficking.

About two weeks later, on September 12, 1989, Agents Adams and Farrell met again with Cabral. Dilorio was not present. On this occasion, Cabral offered the undercover agents 2.014 grams of cocaine as a sample of a larger amount to be made available later in the day. This distribution of cocaine provided the basis for the second count of the indictment against Dilorio. That afternoon Cabral met with the undercover agents, again without Dilorio. Cabral gave the agents 198.267 grams of co *3 caine and told Agents Adams and Farrell that they would have to pay $4,200 the following day. This second distribution of cocaine was the basis of the third count of the indictment, to which Dilorio ultimately pled guilty.

The following day, September 13, 1989, Agent Farrell met with Cabral, Dilorio and the informant in the parking lot of the Burger King restaurant on Hartford Avenue in Providence. In the presence of DiIorio, Cabral and Agent Farrell discussed a future purchase of cocaine. Cabral then told Agent Farrell to give the informant the $4,200 for the cocaine received the previous day. Agent Farrell gave the money to the informant, and the informant in turn gave the money to Cabral. Cabral then passed the money to Dilorio, and had DiIorio count it. Dilorio then returned the money to Cabral.

After the meeting that day, Agents Farrell and Adams had several conversations with Cabral and Dilorio about the purchase of additional amounts of cocaine. After Cabral and Dilorio ultimately proved unwilling or unable to make other cocaine sales, they were arrested.

B) The Sentence

Following her indictment for three counts of cocaine trafficking, Dilorio entered into a plea bargaining agreement with the government. The government agreed to recommend the dismissal of the first two counts of the indictment — conspiracy to distribute cocaine, and the distribution of the 2.014 gram sample — in return for Dilorio’s guilty plea to the third count — distribution of the 198.267 gram amount at the September 13 meeting.

At her sentencing hearing on March 26, 1991, Dilorio’s counsel raised several objections to the probation officer’s Presentence Report. These objections had been presented to the court earlier in the form of a written objection and were essentially the same claims that she raises in her current appeal, i.e., that she was a “minimal” participant entitled to a four-level downward adjustment in her offense level, that the 2.014 grams of cocaine should not have been included in the calculation of her base offense level, and that her physical condition, family circumstances, employment record and lack of a criminal record justified a downward departure from the applicable sentencing level. The court declined Dilorio’s counsel’s offer to further elaborate on her physical condition, and indicated that it was fully aware of her arguments for downward departure.

The district court accepted the probation officer’s recommendation that Dilorio’s offense level be lowered because of her acceptance of responsibility for her criminal conduct, based on her written statement submitted to the probation officer for purposes of the Presentence Report. The court rejected, however, Dilorio’s claim that she was a “minimal” participant in the transaction entitled to a four-level reduction. Instead, it granted the three-level downward adjustment suggested by the probation officer. Although Judge Pettine observed that he did “think that this is a classic case of one who truly is a minimal participant in this whole affair,” he considered explicitly the following facts in refusing to grant the full four-level downward adjustment: Dilorio’s knowledge of the ongoing nature of Cabral’s activities; her fears that the undercover agents might be “cops”; Dilorio’s attempts to move the meetings to the El Inca Restaurant; and her counting of the $4,200 payment.

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Bluebook (online)
948 F.2d 1, 1991 U.S. App. LEXIS 24696, 1991 WL 206300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-karen-diiorio-ca1-1991.