United States v. Phelan

• Court: Court of Appeals for the First Circuit
• Decided: December 15, 1994
• Docket: 92-2453
• Status: Published

Opinion

USCA1 Opinion

December 15, 1994

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 92-2453

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    DAVID PHELAN,

                                Defendant, Appellant.

                                 ____________________

        No. 92-2454

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   STEPHEN LILLIS,

                                Defendant, Appellant.

                                 ____________________

        No. 92-2455

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    RAYMOND LUCE,

                                Defendant, Appellant.

                                 ____________________



ERRATA SHEET
                                     ERRATA SHEET

The opinion of this court issued  on December 6, 1994,  is amended

        as follows:

            On page 4,  last line, replace the  word "undertake" with the word

        "undertaken".



December 6, 1994        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

____________________

No. 92-2453

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID PHELAN,

Defendant, Appellant.

____________________

No. 92-2454

UNITED STATES OF AMERICA,

Appellee,

v.



STEPHEN LILLIS,

Defendant, Appellant.

____________________

No. 92-2455

UNITED STATES OF AMERICA,

Appellee,

v.

RAYMOND LUCE,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________



____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
                                   ______________

____________________

Roger A. Cox, by Appointment of  the Court, for appellant  Stephen
            ____________

        Lillis.

            David Phelan on brief pro se.
            ____________

            Raymond Luce on brief pro se.
            ____________

            Ronald Cohen, by Appointment of the  Court, on brief for appellant
            ____________

        Raymond Luce.

            George W.  Vien, Assistant  United States  Attorney, with whom  A.
            _______________                                                 __

        John Pappalardo, United States  Attorney, and Donald K. Stern,  United
        _______________                               _______________

        States Attorney, were on briefs for the United States. 

____________________

____________________



BOUDIN,  Circuit  Judge.     From  1988  through   1991,
                          ______________

            appellant    Stephen    Lillis'   drug    organization   sold

            phencyclidine  ("PCP"   or  "angel  dust")   in  and   around

            Cambridge, Somerville and Charlestown, Massachusetts.  PCP is

            usually  smoked   after  it  has  been   diluted  with  other

            substances.   Lillis and his associates  would procure PCP in

            liquid  form, and  then treat  mint leaves  with  the liquid,

            making  it smokable.  These treated mint leaves would be sold

            in packages to customers who contacted the ring by calling an

            electronic-beeper "800"  telephone number.   A street  dealer

            for the ring--such as  co-appellants David Phelan and Raymond

            Luce--would return the call  and arrange for a place  to meet

            to complete the sale.  

                 Lillis, Phelan,  and Luce  stood trial together  in late

            April 1992.  All were convicted of one count of conspiracy to

            possess  PCP  with  intent  to  distribute.    21  U.S.C.    

            841(a)(1), 846.  Lillis was also convicted  of several counts

            of  possession  with  intent   to  distribute,  21  U.S.C.   

            841(a)(1), and Luce was convicted of one such count.  Lillis,

            classified as  an organizer, U.S.S.G.    3B1.1(a), received a

            262-month sentence,  and Phelan a 151-month  sentence.  Luce,

            largely  due to  the  trial judge's  finding  that he  was  a

            "career offender," see  U.S.S.G.   4B1.1 et  seq., received a
                               ___                   ________

            360-month sentence.  

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On this  appeal, each  of the appellants  challenges his

            sentence.  Lillis' target  is the trial judge's determination

            that the  Lillis organization distributed  or possessed  with

            intent to distribute between three and ten kilograms of  PCP.

            Findings as  to drug  quantities are  factual, and  we review

            them only for clear error.  United States v. Whiting, 28 F.3d
                                        _____________    _______

            1296, 1304 (1st Cir.),  cert. denied, 115 S. Ct.  379 (1994).
                                    ____________

            "[T]he  sentencing  court has  broad discretion  to determine

            what data is, or  is not, sufficiently dependable to  be used

            in imposing sentence."   United States  v. Tardiff, 969  F.2d
                                     _____________     _______

            1283,  1287  (1st  Cir.   1992).    Yet,  because  guidelines

            sentences vary  dramatically depending upon drug quantity, we

            have  stressed that  district  courts must  exercise care  in

            making quantity assessments.   United States v. Sepulveda, 15
                                           _____________    _________

            F.3d 1161, 1196  (1st Cir.  1993), cert. denied,  114 S.  Ct.
                                               ____________

            2714 (1994).

                 Here, the  district court attributed  to the  conspiracy

            between  three and  ten kilograms  of a mixture  or substance

            containing PCP.  U.S.S.G.    2D1.1(a)(3),  (c).  The district

            judge  based his findings on the evidence presented at trial.

            At sentencing,  he set  forth and  explained his  findings in

            detail.   The district  court  relied most  heavily upon  the

            trial  testimony of  Robert Knapik,  a dealer  in the  Lillis

            organization  through  much  of  1988  and  1989.   Based  on

            Knapik's   testimony,  the  district  court  found  that  the

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conspiracy had in its possession two one-gallon containers of

            PCP.   Using  the unchallenged  figure  of 2.64  kilograms  a

            gallon, this is obviously more than three kilograms.

                 Lillis' claim that the district court erred is based  on

            a misreading  of the  Knapik testimony.   Knapik  agreed that

            "throughout  the entire course of [his]  stay there [he] only

            observed  one liquid gallon of  PCP."  But immediately before

            that  statement, Knapik  made  clear that  he was  testifying

            solely about a Reading location  used by the ring.  In  other

            testimony, he testified that  he saw a gallon of  PCP at what

            was apparently a Cambridge  location also used by the  ring. 

            We  note  also  that none  of  the  parties  objected at  the

            sentencing  hearing when  the  district court  said that  two

            gallons were proved.

                 Even  if  Knapik   observed  only   one  liquid   gallon

            altogether,  it  appears  that  this  would  not  affect  the

            outcome.  He also testified to the  presence of at least five

            pounds of  treated  mint  leaves,  which--together  with  one

            liquid  gallon--would  more  than exceed  the  three kilogram

            minimum.    Further,  while  these  were  the  most  specific

            figures,   there  was   considerable  testimony   from  other

            witnesses  at trial  about  the  scope  and duration  of  the

            conspiracy that made the  three kilogram figure plausible, if

            not  modest, as  an  estimate of  the  conspiracy's scale  of

            operations.

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Luce and Phelan argue  that they were essentially street

            dealers  and not responsible for the large amount of PCP that

            the organization  sold.   Under the Sentencing  Guidelines, a

            conspirator  is responsible  for "all  reasonably foreseeable

            acts and  omissions of others  in furtherance of  the jointly

            undertaken  criminal  activity,   that  occurred  during  the

            commission of  the offense of conviction,  in preparation for

            that  offense,  or  in  the  course  of attempting  to  avoid

            detection or  responsibility for  that offense."   U.S.S.G.  

            1B1.3(a)(1)(B).  This guideline language was added  effective

            November 1, 1992, after the appellants were sentenced, but so

            far as pertinent it is merely a clarification of more oblique

            earlier  language   in  force  when  Luce   and  Phelan  were

            sentenced.   See United  States v. Valencia-Lucena,  988 F.2d
                         ___ ______________    _______________

            228, 234 n.5 (1st Cir. 1993).

                 The    organization's    activities   were    reasonably

            foreseeable to  both  Luce and  Phelan.   Although  the  ring

            handled a large volume  of PCP, the  number of people in  the

            ring  was  comparatively small,  and the  small size  of this

            group suggests that each of its members knew generally of the

            organization's   scope  and   the  amount   of  PCP   it  was

            distributing.  Moreover, Knapik saw Phelan deliver liquid PCP

            and  treated mint  leaves to  the Reading  apartment "two  to

            three times,"  and testified  that Phelan delivered  PCP from

            New  York to  Massachusetts.   Knapik observed  Phelan making

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anywhere from 200 to  1,000 sales for the organization.   The

            district court was  entitled to believe that Phelan  had more

            sales than those seen by Knapik.

                 For his part,  Luce was an  important street dealer  who

            worked several shifts for  the Lillis organization and played

            a role in preparing  the PCP for market.   Theresa Marrapodi,

            Luce's former girlfriend, gave  grand jury testimony that she

            saw Luce assist Lillis  in treating the mint leaves.   Knapik

            testified that Luce worked a regular evening shift as well as

            Saturdays,  and  a number  of  customers  testified to  their

            dealing with  him.  While  these purchases  do not add  up to

            three kilograms, they indicate that  Luce worked at the heart

            of the Lillis organization.

                 Luce  challenges the  court's use  of Marrapodi's  grand

            jury testimony in sentencing, since she was not presented for

            cross-examination.    But reliable  hearsay  can  be used  at

            sentencing.  United States v. Zuleta-Alvarez, 922 F.2d 33, 36
                         _____________    ______________

            (1st  Cir.  1990), cert.  denied, 500  U.S.  927 (1991).   In
                               _____________

            particular, it is settled that district  judges may use grand

            jury  testimony   provided  it  has  sufficient   indicia  of

            reliability.   See United  States v.  Williams, 10  F.3d 910,
                           ___ ______________     ________

            914-15  (1st Cir.  1993).   The  factors  that we  listed  in

            Williams--testimony given  under oath  and in a  formal grand
            ________

            jury proceeding--apply with equal force here.

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Luce also contends that the trial judge acted unlawfully

            in sentencing him as a "career offender" pursuant to U.S.S.G.

              4B1.1.   He points to  21 U.S.C.   851(a)(1),  which states

            that "[n]o person  who stands convicted  of an offense  under

            this  part  shall be  sentenced  to  increased punishment  by

            reason  of  one  or  more prior  convictions,  unless  before

            trial . . . the United States  attorney files an  information

            with   the  court . . . stating   in  writing   the  previous

            conviction to  be relied  upon."   Since  no information  was

            filed, and since he received a greater sentence due to career

            offender  status,  Luce reasons  that  his  sentence must  be

            vacated.

                 Section 851(a)(1)  does not apply to  sentence increases

            under the Sentencing Guidelines but  only to increases in the

            statutory  maximum  or  minimum  penalty  based  on  a  prior
            _________

            conviction.  United States v. Sanchez, 917 F.2d 607, 616 (1st
                         _____________    _______

            Cir. 1990), cert. denied, 499 U.S. 977 (1991).  Every circuit
                        ____________

            to  consider the issue agrees.   See, e.g.,  United States v.
                                             _________   _____________

            Koller,  956  F.2d 1408  (7th  Cir. 1992);  United  States v.
            ______                                      ______________

            Whitaker,  938 F.2d 1551 (2d Cir. 1991), cert. denied, 112 S.
            ________                                 ____________

            Ct. 977  (1992).   Here, Luce's  indictment charged  him with

            conspiracy  to possess more than one kilogram of PCP with the

            intent  to  distribute  it,  a felony  that  carries  with  a

            statutory  minimum  of  ten  years  and  a  maximum  of  life

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imprisonment,  21  U.S.C.    841(b)(1)(A)(iv),  and  he   was

            sentenced within that range.

                 Finally, the district  court did not err  by refusing to

            sever Luce's trial from that of Phelan and Lillis.  We review

            the trial judge's refusal to sever "only for a manifest abuse

            of discretion resulting in a miscarriage of justice."  United
                                                                   ______

            States  v. Welch, 15 F.3d  1202, 1210 (1st  Cir. 1993), cert.
            ______     _____                                        _____

            denied, 114 S. Ct. 1661 (1994).  Luce   has   made  no   such
            ______

            showing of unfair prejudice  and, because a single conspiracy

            was  plausibly  charged,  the  testimony  against  Lillis and

            Phelan would generally have been admissible against Luce even

            if  his trial  had  been  severed.    See  United  States  v.
                                                  ___  ______________

            Innamorati, 996  F.2d 456, 469 (1st Cir.),  cert. denied, 114
            __________                                  ____________

            S. Ct. 409, 114 S. Ct. 459 (1993).

                 Affirmed.
                 ________

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