United States v. Olivier

• Court: Court of Appeals for the First Circuit
• Decided: December 22, 1993
• Docket: 93-1306
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 93-1306

                                    UNITED STATES,

                                      Appellee,

                                          v.

                             PEDRO ARISMENDY OLIVIER-DIAZ
                                     a/k/a ARTY,

                                      Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                           and Barbadoro,* District Judge.
                                           ______________

                                 ____________________

            George  L.  Garfinkle with  whom  Jeffrey  A. Denner  and Perkins,
            _____________________             __________________      ________
        Smith & Cohen were on brief for appellant.
        _____________
            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with
            _______________________
        whom Jay  P.  McCloskey, United  States Attorney,  and Jonathan  Toof,
             __________________                                ______________
        Assistant United States Attorney, were on brief for appellee.

                                 ____________________

                                  December 22, 1993
                                 ____________________

        _____________________

        *Of the District of New Hampshire, sitting by designation.

BARBADORO, District  Judge.   Defendant Pedro
                                       _______________

             Arismendy Olivier-Diaz appeals from the sentence he received

             after  he was found guilty  of conspiracy to possess cocaine

             with  intent to  distribute  and  aiding  and  abetting  the

             distribution of  cocaine.  See  21 U.S.C.     841(a)(1), 841
                                        ___

             (b)(1)(c), 846, and 18 U.S.C.    2. Arismendy challenges his

             sentence  on  two grounds.    First,  he  contends that  the

             district  court erred in calculating his offense level under

             the federal sentencing guidelines when it (1) relied on  the

             testimony of an allegedly untrustworthy witness to determine

             the amount  of cocaine involved  in the  conspiracy and  (2)

             concluded on the  basis of inadequate evidence that he acted

             as an organizer or leader  of a criminal activity  involving

             five or more participants.   Second, he claims for the first

             time on appeal that  the court engaged in  "double counting"

             when it  increased his  criminal history  category by  using

             prior   convictions  that   allegedly   resulted  from   the

             conspiracy on which his federal sentence was based.  Finding

             no reversible error,  we affirm Arismendy's sentence  in all

             respects.

I.

                                       BACKGROUND

          A.  The Offenses
              ____________

                            During  the  fall  of 1990,  Arismendy  met  Ramon

          Verona, a small-time drug dealer,  and offered to sell him cocaine.

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Verona initially declined.   However, he later  contacted Arismendy

          on two occasions and purchased 125 grams of cocaine on credit.  Two

          or   three  months  later,   Arismendy  persuaded  Verona   and  an

          unidentified  woman  to  make  several  trips  from   New  York  to

          Massachusetts  to transport cocaine.  Once in Massachusetts, Verona

          and  the  courier  delivered  the  cocaine   to  a  confederate  of

          Arismendy's whom  Verona knew only  as "Giovanni."  For  each trip,

          Verona  was paid $500  and supplied  with 125  grams of  cocaine on

          credit.

                            Verona   used  the   cocaine  he   obtained   from

          Arismendy to supply three of his customers in Maine, Peter Lauzier,

          Vicki  Hall and  Pauline Rivard.   Because  Verona ran  the cocaine

          operation  on credit,  however, debt  collection  quickly became  a

          significant problem.  By May 1991, Rivard owed Verona approximately

          $16,000  for  "fronted"  cocaine,  $4,000  of  which  was  owed  to

          Arismendy.   Arismendy's solution  to this problem  was to  recruit

          Verona's paramour,  Argentina Dalmassi,  and three  men, to  travel

          with him to Maine to collect the debt.   On June 2, 1991, the group

          arrived  at  Rivard's  home and  confronted  her  boyfriend, Robert

          Pelletier.   When Pelletier  informed them that  Rivard was  not at

          home, Arismendy and the three  men ransacked the house, taking some

          cash and  some jewelry.   As they were leaving,  Arismendy proposed

          that he take possession  of Pelletier's boat and provide  Pelletier

          with cocaine to sell until he paid back what Rivard owed.

                            Later  that day, Arismendy encountered Rivard at a

          nearby flower  shop and  demanded payment.   Although  she believed

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that  she  only  owed  money  to Verona,  Rivard  promised  to  pay

          Arismendy the next day.  Moments later, Dalmassi  appeared, slapped

          Rivard  in the  face and  demanded immediate  payment.   Arismendy,

          however,  ordered Dalmassi  to leave.   The  group was  arrested on

          charges  related  to  this collection  attempt  but  they  were all

          released on bail later  that day.  Fearing for her  safety when she

          learned  of  their release,  Rivard  went  to  the authorities  and

          offered to cooperate.

                            In  July 1991,  Arismendy, unbeknownst  to Verona,

          began distributing cocaine  directly to Lauzier and Hall.   For the

          next several months, Arismendy supplied them with two to ten ounces

          of  cocaine  every  other  week.   In  early  October,  a  customer

          contacted  Lauzier and  Hall and  asked  to purchase  cocaine.   In

          response, Lauzier and Hall went to a trailer owned by their friend,

          Elwin Baker, weighed the cocaine in Arismendy's presence, and drove

          to a  local bar to make the sale.   They were immediately arrested,

          however, because their  customer sold the cocaine  to an undercover

          officer of the  Maine Bureau of Intergovernmental  Drug Enforcement

          (MBIDE).   Arismendy, who  was waiting to be  paid for the cocaine,

          became concerned  after Lauzier and  Hall failed to return,  and he

          sent Baker  out to search  for them.   When Arismendy  learned that

          they had been arrested, he had Baker  drive him back to his home in

          New York.   Arismendy later placed  Baker in charge  of Lauzier and

          Hall's business and sold him as much  as eight ounces of cocaine at

          a time. 

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Arismendy  was arrested  by the  MBIDE  in January

          1992 and was subsequently convicted of the present  federal charges

          in the United States District Court for the District of Maine.

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B.  The Sentence
              ____________

                            The court  held a sentencing  hearing on  February

          26, 1993.  Verona was called as a witness at the  hearing and cross

          examined by the defense in an effort to attack his trial testimony.

          During this examination, Verona testified that he had made at least

          four  trips  from  New York  to  Massachusetts,  transporting seven

          kilograms  of  cocaine on  the  first  trip,  and added,  "I  don't

          remember  well,  but  I  think  the other  [trips]  were  about  10

          kilograms each."   This testimony differed slightly  from his trial

          testimony where he had claimed that he had made "five or six trips"

          and had delivered seven kilograms of cocaine on the first two trips

          and ten kilograms on each remaining trip.

                            In  determining Arismendy's  total offense  level,

          the district court first grouped  the two counts on which Arismendy

          had  been convicted,  see U.S.S.G.     3D1.2(d), and  set his  base
                                ___

          offense level  at  34 because  it  found that  Arismendy's  conduct

          involved approximately  36 kilograms  of cocaine.   See  U.S.S.G.  
                                                              ___

          2D1.1(c)(5)  (Drug Quantity Table) (establishing base offense level

          34 for conduct involving "[a]t  least 15 KG but less than 50  KG of

          Cocaine").    The court  then  found  that  Arismendy had  been  an

          organizer or leader  of a criminal activity involving  five or more

          participants and added four levels to his base offense  level.  See
                                                                          ___

          U.S.S.G.   3B1.1(a).   Finally, because Arismendy had received  two

          firearms  as  partial  payment  for  cocaine,  the  court  made  an

          additional two-level increase to his offense level.  See U.S.S.G.  
                                                               ___

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2D1.1(b)(1).  These calculations resulted  in a total offense level

          of 40.  

                            The   court  then  placed  Arismendy  in  criminal

          history category  II  by assigning  one criminal  history point  to

          prior State of Maine convictions for theft and criminal threatening

          and a second  point to  a prior  State of New  York conviction  for

          operating a motor vehicle while  impaired by alcohol.  See U.S.S.G.
                                                                 ___

             4A1.1(c).    Accordingly,   the  court  determined   Arismendy's

          guideline sentencing  range to be  324-405 months.  The  court then

          sentenced  Arismendy  to  365  months  in  prison,  five  years  of

          supervised release and a $5,000 fine.  This appeal followed.

II.

                                     DISCUSSION

          A.  The Offense Level
              _________________

                           Arismendy  challenges  two steps  in  the  district

          court's offense level computation.  We consider his claims "mindful

          that we  must both  'accept the  findings of  fact of the  district

          court unless they are clearly erroneous' and 'give due deference to

          the district court's application of the guidelines to  the facts.'"

          United States v. Ruiz, 905 F.2d 499,  507 (1st Cir. 1990)  (quoting
          _____________    ____

          18 U.S.C.

            3742(e)).

               1.  Cocaine Quantity
                   ________________

                            Arismendy's first argument is that the  sentencing

          court erroneously relied  on Verona's testimony in  determining the

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amount of cocaine involved in the conspiracy because Verona offered

          uncorroborated  and self-contradictory  testimony in  an effort  to

          receive favorable treatment  from the government.   We reject  this

          contention. 

                            Arismendy's counsel forthrightly conceded at  oral

          argument that if Verona's testimony were  believed, his claim would

          collapse.   Given  this concession,  we  easily conclude  that  the

          district court did not err in its drug quantity determination.  The

          record  shows unequivocally that after considering the evidence and

          rejecting the same arguments now  raised on appeal, the court found

          Verona's testimony to be credible.  In the absence  of clear error,

          such  assessments  are  exclusively  within  the  province  of  the

          sentencing court.   We  find no such  error here.   Cf. id.  at 508
                                                              ___ ___

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

          the sentencing court's choice among supportable alternatives cannot

          be clearly erroneous").  

                       2.  Leadership Role
                           _______________

                           Arismendy  next  claims  that  the  district  court

          committed clear error  when it increased his offense  level by four

          levels because  of his alleged  leadership role in  the conspiracy.

          See  U.S.S.G.    3B1.1(a).   He contends  that the  enhancement was
          ___

          improper because the evidence established only that  he acted alone

          in  selling  cocaine  to multiple  "independent  customers."     We

          disagree.

                            Two  conditions  must be  met before  a leadership

          role enhancement is in order under U.S.S.G.   3B1.1(a).  See United
                                                                   ___ ______

8

States v.  Preakos, 907  F.2d 7,  9 (1st Cir.  1990) (per  curiam).
          ______     _______

          First, the sentencing  court must find that the  defendant acted as

          "an  organizer or  leader of  a  criminal activity."   Second,  the

          activity must  have  "involved five  or  more participants  or  was

          otherwise extensive."   See   United States  v. McDowell,  918 F.2d
                                  ___________________     ________

          1004, 1011 (1st Cir. 1990) (quoting U.S.S.G.   3B1.1(a)).  

                            In   determining  whether   a  defendant   had   a

          leadership role  in criminal  activity, the  commentary to  section

          3B1.1 instructs courts to consider such factors as decision  making

          authority, recruitment  of accomplices, degree of  participation in

          planning the offense, degree of  control over others, and a claimed

          right to  a larger share  of the fruits  of the crime.   U.S.S.G.  

          3B1.1, comment.  (n.4); see also Preakos,  907 F.2d at 9.   Because
                                  ___ ____ _______

          such  "role  in  the offense"  assessments  are  fact-specific, the

          district  court's views  must be  accorded  "considerable respect."

          See United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).
          ___ _____________    ______

                           The  instant  record  amply  supports  the district

          court's conclusion that Arismendy was an organizer or leader of the

          drug  distribution conspiracy.   The  court  could reasonably  have

          inferred  from the  trial evidence  that  Arismendy: (1)  initiated

          cocaine discussions with  Verona; (2) convinced Lauzier and Hall to

          work with him; (3) attempted  to persuade Pelletier to sell cocaine

          for  him; (4)  actively  supervised the  collection  of debts;  (5)

          instructed Baker to take over the Maine distribution business after

          Lauzier and Hall were arrested; and (6) exercised a high  degree of

          decision making  authority  both in  organizing the  multi-kilogram

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cocaine shipments from  New York to Massachusetts  and in directing

          and coordinating  Verona  and  the  female courier.    Given  these

          permissible  inferences, the  court was  not  clearly erroneous  in

          finding that Arismendy  was an organizer or leader  of the criminal

          activity.    Cf.,  e.g.,  Preakos,  907  F.2d  at  9-10  (upholding
                       ___   ____   _______

          enhancement where defendant, among other things, "exercised control

          over his distributors, at  least in the sense that he directed them

          with  regard to  their role  in the  various cocaine  shipments and

          apparently coordinated aspects of the distribution").

                            The  district  court  also  could  have  plausibly

          concluded  from the  record  that five  or  more participants  were

          involved   in  Arismendy's  criminal  activity.      Under  section

          3B1.1(a), a "participant"  is any person, including  the defendant,

          who is "criminally responsible for  the commission of the offense .

          . . ." See U.S.S.G.   3B1.1,  comment. (n.l); see also Preakos, 907
                 ___                                    ___ ____ _______

          F.2d at  10 (defendant included  as a participant under  U.S.S.G.  

          3B1.1(a)).  Even without counting the persons Arismendy claims were

          merely  customers,  at  least  five  others,  including  Arismendy,

          Verona, the female courier, Giovanni,  and one or more of the  four

          debt collectors, could reasonably have been considered participants

          in Arismendy's criminal activity.  Thus,  we find no clear error in

          the sentencing court's determination. 

B.  The Criminal History Category
              _____________________________

                            Arismendy's final contention is that the  district

          court  engaged in  "double counting"  when  it used  the theft  and

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criminal  threatening  convictions   --  which,  appellant  claims,

          resulted  from his June 1991, collection  attempt against Rivard --

          to increase his  criminal history category.    Arismendy bases this

          claim on section 4A1.2(a)(1) of the Guidelines, which provides that

          in computing a defendant's criminal history, a court may count only

          sentences that were "previously imposed . . . for conduct not  part

          of the  instant offense."   He contends  that because the theft and

          criminal  threatening convictions  resulted from  conduct  that was

          part of the federal drug distribution conspiracy, these convictions

          cannot be  used to increase  his criminal history category.   Since

          Arismendy  did not  raise this  claim  in the  district court,  his

          sentence  can be  reversed on  this basis  only  upon a  showing of

          "plain error."  See Fed. R. Crim. P. 52(b).   He has failed to make
                          ___

          such a showing here.

                            Three  criteria   restrict  a  reviewing   court's

          authority to reverse a sentence under the plain error rule.  First,

          a  reviewable  error  must  have  occurred  during  the  sentencing

          process.   Second, the error must be  "clear" or "obvious."  Third,

          the error  must affect  "substantial rights,"  which in  most cases

          means  that the  defendant must  make a  specific showing  that the

          error probably affected his sentence.  United States v. Carrozza, 4
                                                 _____________    ________

          F.3d 70, 87-88  (1st Cir. 1993)(citing United States  v. Olano, 113
                                          ______ _____________     _____

          S. Ct. 1770, 1777-78 (1993)).  Even if all three criteria have been

          satisfied,  the reviewing  court  retains  the  discretion  not  to

          correct  an error,  however  plain,  unless  the  error  "seriously

          affect[s]  the fairness, integrity or public reputation of judicial

11

proceedings."   Olano, 113 S. Ct. at 1779 (quoting United States v.
                          _____                              _____________

          Atkinson, 297 U.S. 157, 160 (1936)).
          ________

                            Applying  the  plain  error  standard,  we  reject

          Arismendy's double counting  argument without reaching its  merits.

          Where the error defendant asserts  on appeal depends upon a factual

          finding the defendant neglected to  ask the district court to make,

          the error cannot be "clear" or "obvious" unless the desired factual

          finding is the  only one rationally supported by  the record below.

          See  United States v. Gaudet,  966 F.2d 959,  962 (5th Cir.), reh'g
          ___  _____________    ______                                  _____

          denied, 973 F.2d 927 (1992), cert.  denied, 113 S. Ct. 1294 (1993).
          ______                       _____  ______

          Here, Arismendy's double  counting argument depends upon  his claim

          that the theft  and criminal threatening convictions  resulted from

          the unsuccessful effort to collect Rivard's cocaine debt.  However,

          the record  on this subject is equivocal  at best.  The Presentence

          Report  describes the  theft and  criminal  threatening convictions

          without stating whether  they resulted from Arismendy's  attempt to

          collect Rivard's debt.  Moreover,  the Report states that Arismendy

          was  arrested  on the  theft  and criminal  threatening  charges on

          August 7, 1991,  whereas the unrebutted evidence  produced at trial

          established that  Arismendy was arrested  for his role in  the debt

          collection  effort  on   June  2,  1991.    Since  Arismendy  never

          challenged this portion of the Presentence Report, the only support

          for  his argument  in the  record is  that  his attempt  to collect

          Rivard's cocaine debt involved conduct that  could have resulted in

          theft and criminal  threatening convictions.  While we  might infer

          from this evidence that the  theft and criminal threatening charges

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and the debt  collection effort are related, the  record also amply

          supports the  opposite conclusion.   We  therefore cannot  conclude

          that the district court committed  obvious error in using the theft

          and  criminal  threatening  convictions  to  enhance  his  criminal

          history category.        

                                          III.

                                       CONCLUSION

                            For  the  reasons  expressed  above,   Arismendy's

          sentence is

          affirmed.
          ________

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