United States v. Marte

38 F. App'x 618
CourtCourt of Appeals for the First Circuit
DecidedMay 6, 2002
Docket01-1416
StatusPublished
Cited by1 cases

This text of 38 F. App'x 618 (United States v. Marte) 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. Marte, 38 F. App'x 618 (1st Cir. 2002).

Opinion

BOWNES, Senior Circuit Judge.

Defendant-appellant Jose Marte, along with nineteen other individuals, was charged in a multi-count indictment of knowingly and intentionally conspiring to possess with intent to distribute and distributing quantities of heroin in violation of Title 21 U.S.C. § 841(a)(1). Page three of the indictment stated that because the conspiracy described in Count I involved one kilogram or more of a heroin mixture, the provisions of 21 U.S.C. § 841(b)(1)(A)(i) applied, and therefore a minimum sentence of ten years was mandated.

Marte entered a guilty plea to Count I pursuant to a written plea agreement with the government. After a sentencing hearing, the district court sentenced Marte to 168 months (14 years) in prison and 5 years supervised release.

Two issues are before us: (1) whether the district court erred in determining that the amount of heroin Marte conspired to distribute amounted to one kilogram or more; and (2) whether the district court erred in finding that Marte was a supervisor or manager in the framework of the heroin conspiracy.

I. BACKGROUND

The investigation that culminated in this case started in August, 1996, and ended in July, 1999. It ferreted out an extensive conspiracy to purchase heroin from sellers in New York City and transport it to Lynn, Massachusetts, where it was processed and stored. The heroin was then sold to customers in Massachusetts, Vermont, and other states.

Starting in 1996, a Drug Enforcement Agency (“DEA”) undercover agent bought good-sized quantities of heroin from Angel Lopez and others in Lynn. In June, 1998, the DEA was judicially authorized to place wiretaps on three telephones used by Lopez and others so as to obtain information about their heroin trafficking. The wiretapped conversations led the DEA to conclude that Domingo Acevedo and his brother, Rafael, were the sources of Lopez’s heroin purchases and that Domingo’s apartment at 193 Essex Street was used as an office in which heroin sales were discussed and settled by telephone.

The DEA was judicially authorized to install a wiretap on the phone in Domingo Acevedo’s apartment at 193 Essex Street in Lynn. Based on the conversations recorded by this wiretap, the DEA learned that Marte and Nicholas Moreno, inter alia, regularly bought large amounts of heroin in New York City. The heroin was supplied to the Acevedo brothers, who in turn resold it to Lopez and others. The DEA also learned that Marte and Moreno used the apartment at 193 Essex Street as a base of operation for planning heroin sales and trips to New York City to obtain heroin.

In the fall of 1998 the DEA in Vermont investigated heroin trafficking in Barre, Vermont, and its environs. The Vermont DEA learned that heroin was being sold regularly to residents of Vermont by Jesus Veadejo, who resided in Lynn, Massachu *620 setts. Veadejo was arrested in early December, 1998. As a result, it was determined that Marte regularly sold heroin to Veadejo, who resold it to Vermont dealers, who took it to Vermont for sale to retail customers.

In early February, 1999, the DEA obtained authorization for four more wiretaps. Three of the wiretaps were the sources of incriminating evidence. These wiretaps established, inter alia, that an apartment at 345 Essex Street in Lynn, shared by two of the indicted conspirators, was also used as an office for discussing and consummating heroin transactions.

II. DISCUSSION

Clear error is the standard we apply in assessing the district court’s 'findings concerning the quantity of heroin and Marte’s role in the conspiracy. United States v. Caba, 241 F.3d 98, 102 (1st Cir.2001); United States v. Hernandez, 218 F.3d 58, 71 (1st Cir.2000). We review de novo the district court’s interpretation of the Sentencing Guidelines and its application of the law. United States v. Muniz, 49 F.3d 36, 41 (1st Cir.1995).

We first set forth the pertinent law of sentencing. We start with the Guidelines: “Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of controlled substance.” U.S.S.G. § 2D1.1, cmt. n. 12 (2001)(empha-sis added). The rule in this Circuit is that a reasonable determination of drug quantity may be used where “it is impossible or impractical to obtain an exact drug quantity for sentencing purposes.” United States v. Morillo, 8 F.3d 864, 871 (1st Cir.1993); see also United States v. Hud-dleston, 194 F.3d 214, 224 (1st Cir.1999); United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir.1998). We have also held, however, that a reasonable estimate of drug quantity must be based on adequate indicia of reliability and support in the record. United States v. Rivera-Maldonado, 194 F.3d 224, 228 (1st Cir.1999). Moreover, a district court judge should follow a “conservative approach” when determining huge quantities. United States v. Sklar, 920 F.2d 107, 113-14 (1st Cir.1990).

As is usual in sentencing appeals, the district court used the presentence report (PSR) as the primary source for its findings of facts. It also examined witness statements and three affidavits of co-conspirators submitted by the government. Our careful examination of the evidence, as contained in the PSR and affidavits, convinces us that the district court did not clearly err in finding that Marte conspired to distribute more than one kilogram of heroin. Nor was it clearly erroneous for the district court to find that Marte’s role in the conspiracy was that of a manager or supervisor.

The evidence as to drug quantity is to the following effect. Marte was involved in the heroin business with Moreno. 1 At times Marte was a wholesale buyer for Moreno and at other times he and Moreno, working together, supplied heroin to joint customers. Although the district court did not explicitly so find, we think the evidence amply permitted it to have found that Marte and Moreno knowingly worked together as the principal wholesale suppliers for the conspiracy. Under well-established conspiracy doctrine, either could be found responsible for the sales by the other. See, e.g., United States v. O’Campo,

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Related

Marte v. United States
537 U.S. 896 (Supreme Court, 2002)

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Bluebook (online)
38 F. App'x 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marte-ca1-2002.