United States v. Reyes

• Court: Court of Appeals for the First Circuit
• Decided: August 30, 1993
• Docket: 92-2124
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-2124

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     PEDRO REYES,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                           Feinberg,* Senior Circuit Judge,
                                      ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                _____________________

               Randy Olen, by Appointment  of the Court, with whom  John M.
               __________                                           _______
          Cicilline, was on brief for appellant.
          _________
               Margaret E. Curran, Assistant  United States Attorney,  with
               __________________
          whom Lincoln  C. Almond,  United States Attorney  and Kenneth  P.
               __________________                               ___________
          Madden,  Assistant  United States  Attorney,  were  on brief  for
          ______
          appellee.

____________________

                                   August 30, 1993
                                 ____________________
                              
          ____________________

          *  Of the Second Circuit, sitting by designation.

TORRUELLA,  Circuit   Judge.     Pursuant  to   a  plea
                                _______________

          agreement,  defendant-appellant Pedro  Reyes pled  guilty to  one

          count of conspiracy to  distribute and to possess with  intent to

          distribute  cocaine and one count of distribution of cocaine.  In

          this appeal, Reyes challenges the district court's calculation of

          his guideline sentencing range ("GSR"), contesting the inclusion,

          as relevant conduct, of  transactions involving his  codefendant,

          which  were the subject of  charges dropped pursuant  to the plea

          agreement.  Finding no clear error, we affirm.

                                          I
                                          I
                                          _

                    Because Reyes  pled  guilty, we  distill  the  relevant

          facts from the Pre-Sentence Report ("PSR") and the  transcript of

          the sentencing hearing.   United States  v. Castellone, 985  F.2d
                                    _____________     __________

          21,  22 (1st  Cir. 1993).   Reyes  and codefendant  Jos  Tav rez-

          Tolentio  ("Tav rez")  were  the  subjects  of  a  combined  Drug

          Enforcement Administration ("DEA") and local law enforcement drug

          investigation.

                    On  the  evening  of  Monday, January  27,  1992,  West

          Warwick detective Sergeant Peter Appollonia met Tav rez outside a

          building at 61 Whipple  Street in Providence, Rhode Island.   The

          two  men proceeded  to a  second floor  apartment where  they met

          Reyes.   Electric Company records  indicate that Reyes leased the

          apartment.  Once inside, Tav rez  produced a bag containing  27.4

          grams  of  cocaine  from   the  bathroom;  Reyes  and  Appollonia

          negotiated the price of this transaction  and a quantity discount

          for  a future  sale of  two ounces of  cocaine.   Appollonia then

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inquired if he  could purchase  the two ounces  on Wednesday  and

          Reyes told Appollonia  to come  by at anytime.   The  transaction

          concluded  when Appollonia paid Reyes $900 for the 27.4 grams and

          Reyes counted the money.

                    The  next  day, January  28,  1992,  DEA Special  Agent

          Botelho  met  Tav rez  at 1455  Mineral  Spring  Avenue  in North

          Providence.   Tav rez brought Botelho to  apartment sixteen where

          they met a man known  as "Tony."  Tav rez gave Botelho  124 grams

          of  cocaine and Botelho paid  him $3,100.   Shortly after Botelho

          entered the building on Mineral Street, DEA agents observed Reyes

          drive  his BMW,  accompanied by  a grey  Oldsmobile, from  his 61

          Whipple Street address to  the building on Mineral Street.   When

          the two vehicles arrived, the Oldsmobile proceeded to the rear of

          the  building.  Reyes  parked nearby, exited  his vehicle, walked

          around the parking lot  adjacent to the Mineral Street  building,

          and returned  to his  car where  he waited.   Shortly  before the

          transaction between Botelho and  Tav rez was completed, Reyes and

          the  Oldsmobile departed  the  area and  returned  to 61  Whipple

          Street.     The  DEA  interpreted  Reyes'   actions  as  counter-

          surveillance for the deal occurring above in apartment sixteen.

                    On  Saturday,   February  1,  1992,   at  approximately

          5:30 p.m., detective Appollonia returned  to 61 Whipple Street to

          purchase more  cocaine.   He  encountered Reyes  entering a  Ford

          Escort  and inquired whether Reyes  had cocaine for  sale.  Reyes

          directed Appollonia to  return later,  at which  time he,  Reyes,

          would have the cocaine.   Reyes then departed.   At approximately

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6:00  p.m., Reyes  returned  to 61  Whipple  Street in  his  BMW,

          followed  by  the  grey  Oldsmobile, and  entered  the  building.

          Appollonia returned  at 6:07 p.m. and  met Tav rez in  the second

          floor  apartment.   Reyes  was not  present.   Tav rez  left  the

          apartment  and returned with  54.9 grams of  cocaine.  Appollonia

          inquired whether  Reyes had informed  Tav rez that the  price was

          set  at  $1,700,  representing the  quantity  discount previously

          negotiated.     Tav rez  indicated   that  Reyes  had   done  so.

          Appollonia paid for the cocaine and left the premises.

                    On  Monday,  February 10,  1992, at  approximately 1:15

          p.m., agent Botelho returned  to 1455 Mineral Street to  buy more

          cocaine.   He met Tav rez, who  agreed to sell him  four and one-

          half ounces of cocaine.  Tav rez left Mineral Street and drove in

          a red Toyota wagon registered to Reyes to 61 Whipple Street.

                    Approximately 35 minutes later, Tav rez returned to the

          Mineral  Street  address.   Botelho  observed  Tav rez and  Reyes

          inspecting Botelho's car,  which was parked in the  adjacent lot.

          Tav rez again  met with Botelho and claimed that he would have to

          go to South Providence to obtain the cocaine.  Tav rez departed a

          second time, and  the Toyota and  Reyes' BMW went  to 61  Whipple

          Street.   DEA agents observed Tav rez,  Reyes and an unidentified

          man  entering the  building.   Tav rez then  returned  to Mineral

          Street with 124.1 grams of cocaine.  Botelho alerted other agents

          and  Tav rez was  arrested.   Later,  Reyes  was arrested  at  61

          Whipple Street, where the police found .18 grams of cocaine.

                    Count  one  charged  that  from a  time  unknown  until

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February 10, 1992, Reyes and Tav rez conspired to distribute, and

          to possess with intent to distribute, cocaine, in violation of 21

          U.S.C.    841(a)(1) and 846.  Counts two, three, and four charged

          Reyes  and Tav rez with distribution of cocaine on January 27 and

          28, and February 1, 1992, in violation of 21 U.S.C.    841(a)(1),

          841(b)(1)(B), and  18 U.S.C.    2.  Count five  charged Reyes and

          Tav rez  possessed  cocaine  with  intent  to  distribute  it  on

          February 10,  1992,  in  violation  of 21  U.S.C.      841(a)(1),

          841(b)(1)(C), and 18 U.S.C.   2.  Reyes pled guilty to counts one

          and two and the  government dropped the charges in  counts three,

          four, and five.

                    At sentencing,  the district court  determined the  GSR

          based  on the quantity of drugs involved in all the transactions,

          including amounts related to the  dropped charges.  The  quantity

          therefore was  330.58 grams,  which resulted  in  a base  offense

          level of 22.  United States  Sentencing Guidelines   2D1.1(c)(11)

          (Drug Quantity Table).  The judge adjusted the base offense level

          downward   by  two  levels   for  acceptance  of  responsibility.

          U.S.S.G.   3E1.1(a).  With an offense level of 20  and a criminal

          history category of  I, the GSR was 33  to 41 months.   The judge

          sentenced Reyes to 33 months.

                    On appeal,  Reyes contests the calculation  of the GSR,

          arguing that he should  be sentenced based  on the 27.4 grams  of

          cocaine involved in the  January 27 transaction to which  he pled

          guilty.   Based on a 27.4 grams,  the base offense level would be

          14,   yielding  an  offense  level  of  12  after  reduction  for

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acceptance of responsibility.   Reyes contends therefore that the

          GSR ought to have been 10 to 16 months.

                                          II
                                          II
                                          __

                    For  the purposes of sentencing,  the key factor is the

          quantity of  drugs involved.   That quantity  is "the sum  of the

          charged  conduct to  which defendant  pleads plus  his 'relevant'

          uncharged  conduct."  United States v. Bradley, 917 F.2d 601, 604
                                _____________    _______

          (1st Cir.  1990).  "The drug  quantity is to be  derived from all

          acts  'that were  part of the  same course  of conduct  or common

          scheme or plan  as the offense of conviction.'"  United States v.
                                                           _____________

          Garc a,  954  F.2d 12,  15 (1st  Cir.  1992) (quoting  U.S.S.G.  
          ______

          1B1.3(a)(2)).  "This court has repeatedly upheld the inclusion as

          relevant conduct  of  acts  either not  charged  or  charged  but

          dropped."  Id. (citing cases).  In the case of jointly undertaken
                     ___

          criminal  activity  (whether or  not  charged  as a  conspiracy),

          relevant conduct includes all  acts reasonably foreseeable by the

          defendant and committed in  furtherance of the jointly undertaken

          activity.  U.S.S.G.   1B1.3, comment. (n.1); Castellone, 985 F.2d
                                                       __________

          at 24; Garc a, 954 F.2d at  15.  To include disputed transactions
                 ______

          as relevant conduct, the government must prove by a preponderance

          of the evidence a sufficient nexus between the conduct underlying

          the  dropped charges and the  offense of conviction.  Castellone,
                                                                __________

          985 F.2d  at 24; United States  v. Sklar, 920 F.2d  107, 110 (1st
                           _____________     _____

          Cir.  1990).   We accord  considerable deference to  the district

          court's  determination that drug  transactions in dropped charges

          form part of the  same course of conduct as  counts of conviction

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and, absent mistake of law, will set aside those findings only if

          clearly  erroneous.  Castellone, 985 F.2d at 24; Garc a, 954 F.2d
                               __________                  ______

          at 15.

                    Reyes  contends that the government  did not prove by a

          preponderance  of the  evidence  a sufficient  nexus between  the

          charges  of  convictions  and the  January  28,  February  1, and

          February 10, 1992 transactions.  Reyes emphasizes that he was not

          physically  present  during  these   transactions  and  that  the

          district court found that Tav rez operated his own heroin concern

          without  Reyes'  participation.   Reyes  asserts  that, like  the

          heroin business, Tav rez was distributing cocaine  without Reyes'

          knowledge  and   in  furtherance  of   only  Tav rez'  individual

          interests.

                    With respect to the February  1, and February 10,  1992

          drug  deals, Reyes'  assertions are  ridiculous.  To  begin with,

          Reyes indicated at the January 27, drug sale, to which Reyes pled

          guilty,  that  detective  Appollonia  could come  by  anytime  to

          purchase cocaine.  The natural inference is that Reyes operated a

          cocaine  distribution   business.    On   February  1,  detective

          Appollonia encountered  Reyes outside  Reyes'  61 Whipple  Street

          address,  and asked to purchase cocaine.   Reyes asked Appollonia

          to  return  later  when the  cocaine  arrived.    Reyes left  the

          building and returned.   Moments later, Appollonia entered Reyes'

          second floor apartment and purchased cocaine from Tav rez.  Reyes

          was  not observed leaving the building.  The district judge could

          fairly infer that Reyes  had brought the cocaine back  to Whipple

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Street, allowing Tav rez to conduct the actual sale.

                    The  February 10  transaction  is  similarly linked  to

          Reyes.     Although  the  drug  buy   involved  a  different  law

          enforcement agent, Botelho, and  occurred at a different address,

          1455 Mineral Street, Tav rez drove a vehicle  registered to Reyes

          to Reyes' apartment; returned with Reyes to Mineral Street, where

          the  two observed  Botelho's  vehicle and  the surrounding  area;

          again returned  to Whipple  Street with Reyes;  and finally  went

          back to Mineral Street to sell Botelho the cocaine.   This series

          of  actions supports an inference  that Tav rez had  to clear the

          sale  with Reyes,  that  the two  conducted  an investigation  of

          Mineral  Street before  proceeding, and  that Reyes  provided the

          cocaine from the Whipple Street address.

                    The  evidence   connecting  Reyes  to  the  January  28

          transaction admittedly is less  convincing.  When considered with

          the  three other drug deals, however, we cannot conclude that the

          district court's  inclusion of this evidence  as relevant conduct

          was clearly erroneous.  The  other three transactions support the

          inference  that  Tav rez and  Reyes  worked  closely together  on

          cocaine  sales  and  that Reyes  was  the  supplier.   Given  the

          reconnaissance mission  during the  February 10 transaction,  the

          visit  paid to the parking lot at  Mineral Street by Reyes in his

          BMW and the grey Oldsmobile during the January 28 deal would also

          appear to be surveillance.   The district court could  reasonably

          infer  from  all the  evidence  that the  conduct  underlying the

          dropped charges formed part of the same course of conduct.  As we

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made clear in United States v. Ruiz, 905 F.2d 499,  508 (1st Cir.
                        _____________    ____

          1990),  "where there  is  more than  one  plausible view  of  the

          circumstances,  the sentencing  court's choice  among supportable

          alternatives cannot  be clearly  erroneous."  The  district court

          therefore was entitled to include the quantities  of cocaine from

          all the transactions when determining the GSR.

                    Finding no clear error, we affirm.
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