United States v. Lynch

Opinion

USCA1 Opinion

June 13, 1996         [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No. 95-1486



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  JENNIEROSE LYNCH,



                                Defendant, Appellant.



                              __________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                              __________________________



                                        Before



                                Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                              __________________________



               Jeffrey  M.  Smith  and  Peters,  Smith  &  Moscardelli,  by
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          appointment of the court, on brief for appellant.

               Donald K. Stern, United States Attorney, and Frank A. Libby,
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          Jr., Assistant United  States Attorney, on  brief for the  United
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          States.



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Per  Curiam.   In  this  sentencing appeal,  defendant-
                    Per  Curiam.
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          appellant Jennierose Lynch, represented  by able counsel, assigns



          error  in  regard  to  two  district  court  determinations  that



          materially affected the  length of her  sentence.  Discerning  no



          hint of error, we summarily affirm.



                    1.   The  appellant's  first complaint  relates to  the
                    1.



          district  court's  drug  quantity   determination.    The   court



          determined   that  the   appellant  personally   participated  in



          transactions  involving   between  two  and  one-half   and  four



          kilograms  of cocaine;  that the  conspiracy of  which she  was a



          member,  during   the   period  of   her   membership,   launched



          transactions  involving another  five to  fifteen kilograms  at a



          minimum; that many (if not all) of these transactions occurred in



          the course  of jointly undertaken criminal  activity (the charged



          conspiracy) and were foreseeable to her; and that, therefore, she



          was  responsible (in  the  relevant conduct  sense, see  U.S.S.G.
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           1B1.3) for over five  kilograms of cocaine in toto,  bringing to
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          bear  a mandatory  minimum ten-year  sentence.   See 21  U.S.C.  
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          841(b)(1)(A)(ii) (providing for mandatory minimum sentence of ten



          years in cases involving five kilograms or more of cocaine).



                    We review  the district court's findings  of fact anent



          drug quantity only for clear error, and we will set such findings



          aside only if we are persuaded that the sentencing court has made



          a  "serious mistake."  United States v.  Morillo, 8 F.3d 864, 870
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          (1st Cir. 1993).  We are not so persuaded here;  to the contrary,



          we  believe  that  the   sentencing  court's  findings  are  both


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sufficiently explicit and sufficiently record-rooted.



                    Drug   quantities  need   not   be   determined  in   a



          mathematically   precise   fashion.     Within  the   margins  of



          reliability,  sentencing  courts  have  the  authority   to  make



          reasonable estimates based on  available information.  See, e.g.,
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          United States v. Sepulveda,  15 F.3d 1161, 1199 (1st  Cir. 1993),
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          cert. denied, 114 S. Ct. 2714 (1994); United States v. Sklar, 920
          _____ ______                          _____________    _____



          F.2d 107,  113 (1st Cir.  1990).   It is, moreover,  settled that



          members of a drug-trafficking  conspiracy may be held accountable



          at  sentencing for  different  drug quantities  depending on  the



          circumstances of their involvement.   See United States v. Munoz,
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          36 F.3d  1229, 1237 (1st  Cir. 1994 ),  cert. denied, 115  S. Ct.
                                                  _____ ______



          1164  (1995); United States v. Garcia, 954  F.2d 12, 16 (1st Cir.
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          1992).   In  respect to  a  defendant's accountability  for  drug



          transactions  in  which  she   did  not  personally  participate,



          foreseeability is the key.  See Garcia, 954 F.2d at 16.   "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."  Munoz, 36 F.3d at 1237.
                        _____



                    Here, the record reveals  that the district court fully



          understood these  principles, applied the correct legal standard,



          and made a fact-sensitive  determination of what trafficked drugs



          were, in  the court's words, "reasonably  foreseeable or actually



          known to [Lynch]  . .  . during the  time she  was a knowing  and



          willing participant in th[e]  conspiracy."  These findings cannot



          be  set aside under the jurisprudence of clear error.  After all,


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the district court heard  over ten weeks of trial  testimony, and



          also had  the benefit of a  compendious presentence investigation



          report  (PSI  Report)    a report  that  was not  contradicted by



          countervailing  evidence  in  any  relevant  particulars.     The



          testimony and the specifics in  the PSI Report, viewed  favorably



          to the government, fully  substantiate the findings.  No  more is



          exigible.  See, e.g., United States  v. Gonzalez-Vazquez, 34 F.3d
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          19, 25 (1st Cir. 1994) (discussing utility at sentencing of facts



          contained  in PSI Report); United  States v. Ruiz,  905 F.2d 499,
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          508 (1st Cir. 1990) (discussing utility of trial testimony in the



          sentencing phase);  see also United States  v. Jimenez-Otero, 898
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          F.2d  813, 815 (1st Cir.  1990) (explaining that,  when there are



          two  or  more plausible  views  of the  evidence,  the sentencing



          court's choice among them cannot be clearly erroneous).1



                    2.  The appellant's second issue involves the so-called
                    2.



          "safety valve" provision, 18  U.S.C.   3553(f), which  in certain



          cases constrains the application of  mandatory minimum sentences.



          Pursuant to this  provision, the sentencing court  is directed to



          impose  a sentence  in  accordance with  the guidelines  (without



          regard  to  any  statutory  minimum)  if  a  convicted  defendant



          satisfies five set criteria.   See id.; see also  U.S.S.G.  5C1.2
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          (Nov. 1995)  (implementing the  statute).   The court below  held



          that Lynch failed to meet the fifth of these criteria in that she

                              
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               1Lynch's contention  that the district court  failed to make

          specific subsidiary findings of fact related to the drug quantity

          issues  is unavailing.  The sentencing  court's findings need not

          be  precise to the point of pedantry.  Here they are sufficiently

          explicit and comprehensive to withstand criticism.



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did  not  provide  complete  and  truthful  information  "to  the



          Government"  in  the  appropriate  time   frame.    18  U.S.C.   



          3553(f)(5).  Lynch argues that she satisfied this  requirement by



          providing the information  to the probation officer in the course



          of  the  compilation  of the  PSI  Report.    The district  court



          disagreed with Lynch's argument.  So do we.



                    We  need not  tarry.   While this  case was  pending on



          appeal, a panel of this court decided the precise point, contrary



          to  the  appellant's  position,   in  United  States  v.  Jimenez
                                                ______________      _______



          Martinez, No. 95-1511,  slip op. at 19  (1st Cir. Apr.  24, 1996)
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          (concluding that "government"  as used in 18  U.S.C.   3553(f)(5)



          and U.S.S.G.   5C1.2(5) refers exclusively  to the  prosecutorial



          authority, and not  to the probation department); see also United
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          States v. Montanez, No. 95-2096,  slip op. at 6-7 (1st Cir.  Apr.
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          24,  1996).   Jimenez Martinez  is binding  here, and  blocks the
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          appellant's desired access to the safety valve.



                    We  need  go  no  further.2   Because  the  appellant's



          points are  unpersuasive, we summarily affirm  her conviction and



          sentence.


Affirmed.  See 1st Cir. R. 27.1.
          Affirmed.  See 1st Cir. R. 27.1.
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               2Given the  view that  we take  of the  merits, we  need not

          reach   and express no opinion upon   the government's contention

          that  the appellant, in executing the  plea agreement, waived her

          right to prosecute this appeal.


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