United States v. Olea

• Court: Court of Appeals for the First Circuit
• Decided: March 15, 1993
• Docket: 92-2168
• Status: Published

Opinion

USCA1 Opinion

March 15, 1993    UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2168

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     SANTOS OLEA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                                Stahl, Circuit Judge.
                                       _____________

                                 ____________________

            Damon  M. D'Ambrosio  with whom  Martin  D.  Harris and  Martin D.
            ____________________             __________________      _________
        Harris, Esquire, Ltd. were on brief for appellant.
        ______  _____________
            Margaret E.  Curran, Assistant United  States Attorney, with  whom
            ___________________
        Lincoln  C.  Almond, United  States  Attorney,  and Zechariah  Chafee,
        ___________________                                 _________________
        Assistant United States Attorney, were on brief for the United States.

____________________

                                    March 15, 1993
                                 ____________________

CAMPBELL,  Senior  Circuit   Judge.    This  is   a
                                 _______________________

            Sentencing  Guidelines  appeal, in  which defendant-appellant

            Santos  Olea  contends that  the  sentencing  court erred  by

            considering  as relevant  conduct quantities of  cocaine from

            sales to which  he did  not plead guilty,  by increasing  his

            sentence for  an obstruction of  justice, and by  denying his

            request   to   reduce   the  sentence   for   acceptance   of

            responsibility.  We affirm the sentence.

                                          I.
                                          I.

                      Santos Olea  was indicted  in January 1992  on four

            counts: Count I charged  that on December 12, 1991,  Olea and

            codefendant Alberto Gonzalez distributed cocaine in violation

            of 21  U.S.C.   841(a)(1); Counts II and III charged that the

            same  occurred on December 16 and December 20, 1991; Count IV

            charged that  from a time  unknown until  December 20,  1991,

            Olea   and  Gonzalez  conspired   to  distribute  cocaine  in

            violation of 21  U.S.C.   846.   Olea  pleaded guilty in  the

            United States District Court for the District of Rhode Island

            to Count I  in return  for the dismissal  of the three  other

            counts.1

                      At sentencing  in September  1992, the  court heard

            testimony  from  Detective Gannon  of  the  Providence Police

            Department,  who presented  his view  of Olea's  role in  the

____________________

            1.  Codefendant  Gonzalez,  who  is  not a  party  here,  was
            indicted  on the same four  counts and pleaded  guilty to the
            first three.

                                         -2-

three sales.   A  government informant, "Luis,"  arranged for

            Gannon  to  make  an  undercover  purchase  of  cocaine  from

            codefendants Olea  and Gonzalez at a  shopping center parking

            lot in Providence. 

            On  December 12,  1991, at  11:30 a.m.,  Olea drove  into the

            parking  lot with Gonzalez in the  passenger seat, where they

            met with Detective  Gannon inside the  car.  Luis  introduced

            defendant  Santos Olea  as "Hector"  and Alberto  Gonzalez as

            "Jose."   Gonzalez  handed  a package  of  cocaine to  Gannon

            (weighing approximately  60 grams).   Both Olea  and Gonzalez

            told him  to check it  out.   Gannon gave Gonzalez  $1,450 in

            cash,  who counted it and handed  it to Olea who also counted

            it.   When Gannon said he would want more cocaine later, Olea

            said that Gannon could contact him through informant Luis.

                      On December  16, 1991,  Gannon called Luis,  who in

            turn  called "Hector," and the three men spoke on a three-way

            telephone  line   with  Luis  acting   as  a  Spanish-English

            interpreter.   Gannon said to Hector that he wanted "the same

            thing,"  to which Hector replied, "I'm busy today.  I'll send

            my  nephew."  Hector also said, "Same place, same price, same

            quantity."    Gannon testified  that  the  voice of  "Hector"

            sounded like the voice of defendant-appellant Olea, and that,

            in  his opinion, he was speaking  with Olea.  Later that day,

            codefendant Gonzalez arrived alone at the same parking lot at

            the same time in the same  car, which was registered to Olea.

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Gonzalez delivered 60.7  grams of cocaine  to Gannon for  the

            same price.  Gonzalez then gave Gannon a phone number to call

            for more cocaine.  The number  was listed to the same address

            where Olea and Gonzalez  apparently lived and were eventually

            arrested.

                      Three more times in the next few days, Gannon spoke

            to  "Hector" on  the telephone  in the  same manner:   Gannon

            called Luis, who in turn established a three-way conversation

            with "Hector."   Luis later  told Gannon that  he established

            the phone contact with  "Hector" by dialing the  phone number

            given  to  Gannon by  Gonzalez.   On  the third  call, Gannon

            arranged for  a purchase of  double the previous  quantity of

            cocaine.  Hector  told Gannon that  his "nephew" would  again

            deliver it at the same place.  On December 20, Gonzalez again

            came  to  the parking  lot in  Olea's  car and  completed the

            transaction  for 123.65 grams.  The total weight of the three

            sales was  245.20 grams.   Police subsequently  arrested Olea

            and Gonzalez  at the  address where  the  telephone line  was

            registered.

                      Prior  to sentencing,  Olea wrote  a letter  to the

            court apologizing for his involvement in the December 12 drug

            sale,  to  which  he  had  pleaded  guilty.    However,  Olea

            proclaimed  that  he  merely  gave Gonzalez  a  ride  to  the

            shopping center  on December 12,  never touched the  money or

            drugs, and  had  nothing  else to  do  with  Gonzalez's  drug

-4-

dealing.  Olea also strenuously denied any connection with or

            knowledge  of the December 16 and December 20 sales, claiming

            that Gonzalez  merely borrowed  his car without  telling Olea

            what   he  was  doing.    The  letter  was  included  in  the

            presentence report.

                      After  hearing  the   evidence  at  the  sentencing

            hearing and  considering Olea's letter and  objections to the

            presentence  report, the  court  sentenced Olea.   The  court

            judged Detective  Gannon to  be a  credible  witness, and  so

            found  that  the  "Hector"  on  the  telephone  was  actually

            defendant Olea and that Olea had actively participated in all

            three drug sales.   Based upon the evidence, the  court found

            that  the entire amount of cocaine in the three sales, 245.20

            grams,  should  be  considered  in  calculating  Olea's  base

            offense  level.  The court  also found that  Olea's letter to

            the court contained material falsehoods regarding his role in

            the transactions.  After  denying any downward adjustment for

            a  minor role in the offense, increasing the offense level by

            two points pursuant  to U.S.S.G.    3C1.1 for obstruction  of

            justice, and denying a  two-point reduction for acceptance of

            responsibility under  U.S.S.G.   3E1.1, the  court calculated

            the offense level as  22.  With criminal history  category I,

            the applicable sentencing  range was  41 to 51  months.   The

            court sentenced  defendant to  42 months incarceration  and 5

            years supervised  release, along  with other fines  and other

-5-

conditions  not  relevant  here.     Olea  appeals  from  his

            sentence.

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II.
                                         II.

                      Appellant contends that the sentencing  court erred

            in  three particulars:  (1) it  included as  relevant conduct

            under U.S.S.G.   1B1.3 the quantities of cocaine involved  in

            the  December 16  and December  20 sales;  (2) it  found that

            appellant obstructed justice under  U.S.S.G.   3C1.1; and (3)

            it denied appellant a reduction in sentence for acceptance of

            responsibility under  U.S.S.G.   3E1.1.2   All of appellant's

            three  arguments turn on the extent of his involvement in the

            three cocaine sales.

                      At the sentencing hearing, the court made a factual

            finding  that  appellant was  an  active  participant in  the

            December 12  sale, and was not  a mere driver  as he claimed.

            The court also found that appellant arranged for the December

            16 and  20 sales,  even though codefendant  Gonzalez actually

            delivered the drugs to the parking lot.  The court's findings

            rested  in large part  on the testimony  of Detective Gannon,

            whom the court found to be a credible witness.  Assessment of

            the  credibility  of  witnesses is  for  the  trier of  fact.

            United States  v. Serrano, 870 F.2d 1, 5 (1st Cir. 1989).  We
            _____________     _______

            must accept these findings  unless clearly erroneous.  United
                                                                   ______

            States v. Gerante, 891 F.2d 364, 368 (1st Cir. 1989).
            ______    _______

____________________

            2.  All references to the United States Sentencing Guidelines
            are  to the November 1,  1991, version, which  is the version
            applicable to appellant's case.

                                         -7-

We  do  not find  clear  error.   Detective  Gannon

            testified  that,  on  December  12, he  met  with  appellant,

            identified as "Hector," and  that appellant spoke with Gannon

            about the quality of the cocaine, counted the money, and told

            Gannon to contact him  through Luis if he wanted  more drugs.

            Gannon arranged for each  of the two later sales  by speaking

            on  the  telephone  to  someone  who  answered  to  the  name

            "Hector."   Each  call took  place in  the same  manner, with

            Gannon  calling Luis,  who  in turn  established a  three-way

            conference  call with  "Hector" by  dialing the  phone number

            supplied  to Gannon by Gonzalez.  Gannon recognized the voice

            of  "Hector" each time as  that of appellant  Olea.  "Hector"

            told Gannon  to meet his "nephew" at the "same place."  After

            such  phone calls,  the  later two  sales  took place,  under

            circumstances quite  similar to  the first sale,  with Olea's

            codefendant similarly involved, using  Olea's car.  The court

            was  under   no  obligation   to  accept  Olea's   denial  of

            involvement, which it could have found implausible in all the

            circumstances. 

                      We turn next to the district court's application of

            U.S.S.G.    1B1.3(a),3  concerning  relevant conduct.   In  a

____________________

            3.  Section 1B1.3(a) provides:

                      Unless otherwise specified, (i)  the base
                      offense   level   where   the   guideline
                      specifies  more  than  one  base  offense
                      level,     (ii)      specific     offense
                      characteristics    and    (iii)     cross

                                         -8-

drug distribution case, quantities  of drugs not specified in

            the count of conviction are to be included in determining the

            offense  level if  they  were part  of  the same  "course  of

            conduct  or part of a common scheme  or plan" as the count of

            conviction.   U.S.S.G.    1B1.3  comment.  (backg'd.); United
                                                                   ______

            States v. DiIorio, 948 F.2d 1, 6 (1st Cir. 1991).  We believe
            ______    _______

            that  the court  reasonably concluded,  based on  its finding

            that appellant had participated in all three drug sales, that

            the relevant amount of cocaine here was the total amount sold

            in   the  three   separate   transactions,  the   later   two

            transactions being  relevant even  though  appellant did  not

            actually  appear in  person  at the  delivery  of the  drugs.

            DiIorio, 948 F.2d at 7.  Finding no clear error, Gerante, 891
            _______                                          _______

            F.2d  at 368,  we thus  reject appellant's  challenge to  the

            court's determination of the relevant conduct.

____________________

                      references  in  Chapter  Two,   and  (iv)
                      adjustments  in  Chapter Three,  shall be
                      determined on the basis of the following:
                      . . .
                           (2)  solely with respect to offenses
                                of  a  character  for  which   
                                3D1.2(d)  [Groups   of  Closely
                                Related  Counts] would  require
                                grouping  of  multiple  counts,
                                all    acts    and    omissions
                                described    in    subdivisions
                                (1)(A)  and  (1)(B) above  that
                                were part of the same course of
                                conduct  or  common  scheme  or
                                plan   as    the   offense   of
                                conviction; 
                      . . . .

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Appellant  also  challenges   the  obstruction   of

            justice  enhancement  under  U.S.S.G.      3C1.1.    Such  an

            enhancement  is  authorized,  inter  alia,  when  a defendant
                                          _____  ____

            provides  "materially  false   information  to  a   judge  or

            magistrate"  or  "to a  probation  officer  in respect  to  a

            presentence or other investigation  for the court."  U.S.S.G.

               3C1.1,  comment.  (n.3(f),  (h)).    The  enhancement  was

            properly applied  here as appellant was  supportably found to

            have misrepresented two material  facts in his letter to  the

            district court  (which also  was considered by  the probation

            officer  in  preparing the  presentence  report): he  falsely

            portrayed  himself  as  "an  unwitting  dupe"  (the  district

            court's words) in  the December 12  sale, and falsely  stated

            that he had nothing whatsoever to do with the December 16 and

            20 sales.  Cf.  United States v. Dunnigan, 61  U.S.L.W. 4180,
                       ___  _____________    ________

            4183, 1993 U.S.  LEXIS 1779 (U.S.  Feb. 23, 1993)  (upholding

            obstruction  of  justice  enhancement  under     3C1.1  where

            defendant committed  perjury  at  trial);  United  States  v.
                                                       ______________

            Akitoye,  923  F.2d  221,   228-29  (1st  Cir.  1991)  (same;
            _______

            defendant falsely  denied any  knowledge of drug  dealing and

            characterized  codefendant "as  the villain  of the  piece").

            While  the  counts  charging   these  later  two  sales  were

            dismissed in connection  with Olea's plea to  Count I, Olea's

            false assertions  that he had  not participated in  them were

            "material" for the  purposes of U.S.S.G.   3C1.1 because they

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"would tend to  influence or affect"  the calculation of  his

            base offense level for his conviction on Count I.  U.S.S.G.  

            3C1.1, comment.  (n.5).   The sentencing  court did  not err,

            therefore,  in adding a two-level enhancement for obstruction

            of justice.

                      Finally, we  turn to  appellant's challenge  to the

            court's refusal to grant  a two-level decrease for acceptance

            of responsibility.   Appellant contends that  he was entitled

            to such a decrease because he pleaded guilty to and expressed

            some  remorse for his crime  under Count I.   But a reduction

            for  acceptance of responsibility is not "a matter of right."

            U.S.S.G.    3E1.1, comment.  (n.3); United States  v. O'Neil,
                                                _____________     ______

            936  F.2d 599, 599 (1st Cir. 1991).  Except in "extraordinary

            cases," "[c]onduct resulting in  an enhancement under   3C1.1

            (Obstructing  or  Impeding  the  Administration  of  Justice)

            ordinarily indicates  that  the defendant  has  not  accepted

            responsibility for his criminal conduct . .  . ."  U.S.S.G.  

            3E1.1, comment. (n.4); United States v. Aymelek, 926 F.2d 64,
                                   _____________    _______

            69  (1st   Cir.  1991).    The   district  court  justifiably

            determined that this was not the extraordinary case.  

                      Appellant  argues that  the  court improperly  gave

            weight to  his statements denying any  responsibility for the

            two  later drug  sales  that were  charged  in the  dismissed

            counts.   It is true that, under our precedent, appellant was

            not required to have shown remorse for the dismissed charges.

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United States v.  Perez-Franco, 873 F.2d  455, 463 (1st  Cir.
            _____________     ____________

            1989)  ("[A] defendant  who has  made  a plea  agreement must

            accept responsibility  solely for the  counts to which  he is

            pleading  guilty.");  see  also  O'Neil,  936  F.2d  at  599.
                                  _________  ______

            However,  the district court did  not base its  denial of the

            acceptance of responsibility decrease solely upon defendant's

            statements relative to  the dismissed charges.  It noted that

            he had also lied in  asserting that he had only a  minor role

            in the December 12  sale.  His refusal to  accept appropriate

            responsibility  for that  sale,  to which  he pleaded,  alone

            warranted a  finding that  he did not  accept responsibility.

            Moreover, the  court's supported  finding that appellant  had

            lied  when denying  involvement in the  two later  sales took

            appellant  well beyond  the Perez-Franco  safe harbor,  which
                                        ____________

            allows  a  defendant  to  remain  silent  as  to the  conduct

            contained  in  a dismissed  charge  but does  not  sanction a

            defendant's  giving of materially  false information relative

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thereto.4  There was no error in the court's  refusal to find

            that Olea had accepted responsibility.

                                         III.
                                         III.

                      Finding  no error  in  any of  the court's  rulings

            below, we affirm appellant's sentence.

                      Affirmed.  
                      ________

____________________

            4.  While this  proceeding is  not controlled by  the current
            Application  Note  1(a)  to  section  3E1.1,  that  note  now
            articulates the  distinction we make.  It reads, in pertinent
            part:

                      Note  that a defendant is not required to
                      volunteer,   or    affirmatively   admit,
                      relevant  conduct  beyond the  offense of
                      conviction in order to obtain a reduction
                      under  subsection (a).   A  defendant may
                      remain  silent  in  respect  to  relevant
                      conduct beyond the offense  of conviction
                      without affecting his ability to obtain a
                      reduction    under    this    subsection.
                      However, a defendant who  falsely denies,
                      or frivolously contests, relevant conduct
                      that the court determines  to be true has
                      acted  in  a  manner   inconsistent  with
                      acceptance of responsibility[.]

            U.S.S.G.   3E1.1,  comment. (n.1(a))  (as amended,  effective
            Nov.  1, 1992).  The  district court here  indicated that had
            defendant  said nothing  about  the later  sales, instead  of
            falsely denying all involvement,  it would have been prepared
            to  grant  the  decrease  for  acceptance  of  responsibility
            (assuming truthfulness as to Count I). 

                                         -13-