United States v. Serna

• Court: Court of Appeals for the First Circuit
• Decided: August 11, 1992
• Docket: 92-1132
• Status: Published

Opinion

USCA1 Opinion

August 11, 1992   UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1132

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    AUGUSTO SERNA,

                                Defendant, Appellant.

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ERRATA SHEET

            The cover of the opinion of this Court  issued on August 4,  1992,
        is amended as follows:

            "[Hon.  Nicholas  Tsoucalas,  U.S.  District  Judge]" should  read
                                          _____________________
        "[Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]".
                                    _________________________________

_________________________________
        *The  Honorable  Nicholas  Tsoucalas,  Judge  of  the  U.S.  Court  of
        International Trade, sitting by designation.August 4, 1992
                                [NOT FOR PUBLICATION]


____________________

No. 92-1132 

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    AUGUSTO SERNA,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]
                                       _________________________________

                                 ____________________

                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
                                               ______________

                                 ____________________

            John C. Doherty on brief for appellant.
            _______________
            Jeffrey R. Howard,  United States Attorney, Peter E. Papps,  First
            _________________                           ______________
        Assistant  United  States Attorney,  and  Robert  J. Veiga,  Assistant
                                                  ________________
        United States Attorney, on brief for appellee.

____________________

____________________
        ______________________________
        *The  Honorable  Nicholas  Tsoucalas,  Judge  of  the  U.S.  Court  of
        International Trade, sitting by designation.

                      Per Curiam.  In April 1991, appellant Augusto Serna
                      __________

            was charged  in a  one-count  indictment with  conspiring  to

            distribute cocaine in violation of 21 U.S.C.    841(a)(1) and

            846.   Seven  other  individuals  were  indicted  along  with

            appellant,  including  appellant's  brother,   Carlos  Serna.


Appellant pled guilty to  the charge.  His brother  never has

            been  apprehended  and remains  a  fugitive.   Appellant  was

            sentenced on January 13, 1992 to 120 months imprisonment.

                      1.    Appellant contends  that  the district  court

            erred in  calculating the  amount of cocaine  attributable to

            him  under  the United  States  Sentencing  Guidelines.   The

            district court properly relied  on the Presentence Report and

            the  testimony  presented at  the  sentencing  hearing.   See
                                                                      ___

            United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).  It
            _____________    ______

            attributed to appellant between five and fifteen kilograms of

            cocaine.   Under  the Guidelines,  this  resulted in  a  base

            offense  level of 32.  See U.S.S.G.   2D1.1(c)(6).  Appellant
                                   ___

            received   a   two-level    decrease   for   acceptance    of

            responsibility.  Combined with  his criminal history category

            of  I, the  sentencing table  provides for  97 to  121 months

            imprisonment.    Under  21  U.S.C.     841(b)(1)(A)(ii),  the

            minimum  mandatory term of  imprisonment is  10 years  -- the

            sentence appellant received.

                      Appellant admits to  having sold, on  approximately

            five  occasions,  a  total of  224  ounces  of  cocaine to  a

            codefendant, Bradley Frost, during  1987.  Appellant had been

            introduced  to Frost by a  co-worker who knew  that Frost was

            looking  for someone  from  whom he  could purchase  cocaine.

            Appellant indicated  that he knew  where to get  the cocaine.

            He  supplied Frost  with the  drug until  appellant  left the

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United States in January  1988 to return to Colombia.   Frost

            stated   that   he  had   purchased   all   of  his   cocaine

            (approximately 11  kilograms) from appellant  and his brother

            Carlos.

                      At the  sentencing hearing and on appeal, appellant

            maintains  that when he left this country in January 1988, he

            abandoned the  conspiracy, had no further  contact with Frost

            and  had ceased to sell  cocaine altogether.   He also stated

            that  he  had  never sold  cocaine  to  anyone  prior to  his

            involvement with  Frost.   He specifically testified  that he

            never had made any  arrangement with his brother to  have him

            continue to provide cocaine to Frost or to anyone else during

            appellant's absence.          When   appellant   returned  to

            Lowell  in late  May or  early June  of 1988,  he found  that

            others were  living  in  the  apartment he  shared  with  his

            brother.  Appellant then moved to  New Jersey.  He went  back

            to  Lowell, however, when he found out that the Lowell police

            had  raided his apartment.  When appellant went to the Lowell

            police  station  to retrieve  his  passport,  which had  been

            seized along with 700 grams of cocaine and $2,900 in cash, he

            was arrested.

                      U.S.S.G.   1B1.3(a) controls  the manner in which a

            court  calculates the  quantity  of drugs  attributable to  a

            defendant for purposes of determining his or her base offense

            level.  Even where a defendant was not personally involved in

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all of the drug  transactions described in an  indictment for

            conspiracy,    1B1.3(a)(1) requires  the sentencing  court to

            consider  "all  acts and  omissions  committed  or aided  and

            abetted by the defendant, or for which the defendant would be

            otherwise accountable, that occurred during the commission of

            the offense of conviction . . . ."   An application note to  

            1B1.3  explains  that "[i]n  the  case  of criminal  activity

            undertaken in concert with others . . . the conduct for which

            the defendant 'would be otherwise accountable'  also includes

            conduct  of  others in  furtherance of  the execution  of the

            jointly-undertaken  criminal  activity  that  was  reasonably
                                                               __________

            foreseeable by  the defendant."   U.S.S.G.    1B1.3, comment.
            ___________

            (n.1) (emphasis added).

                      We will not overturn  the district court's decision

            to  include in its calculation all  the drugs Frost purchased

            unless it is  clearly erroneous.  See Garcia, 954 F.2d at 16;
                                              ___ ______

            United States v. Bianco,  922 F.2d 910, 913 (1st  Cir. 1991).
            _____________    ______

            The government  must prove by a preponderance of the evidence

            facts sufficient to support  the sentence.  Bianco,  922 F.2d
                                                        ______

            at 913; United States v. Blanco, 888 F.2d  907, 909 (1st Cir.
                    _____________    ______

            1989).  Under this standard, we find that the record contains

            adequate  support  for  the   court's  finding  that  it  was

            reasonably foreseeable that appellant's role as  the supplier

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of  Frost's  cocaine  would be  continued  by  Carlos in  his

            absence.

                      Appellant  relies primarily  on  the argument  that

            because  he was  not  in  Massachusetts  during most  of  the

            conspiracy there was no  way he could have known  that Carlos

            was supplying  Frost  with  cocaine.   The  evidence  in  the

            Presentence Report  and the evidence presented  by government

            at  the sentencing hearing,  however, was to  the effect that

            appellant had  told Frost that  Carlos would take  over while

            appellant  was gone.       To  support this  contention,  the

            government pointed to grand jury and other testimony provided

            by  Frost's   stepfather,  James  Alexander.    According  to

            Alexander, he and  Frost had  met on at  least six  occasions

            with appellant  and Carlos  after appellant's return  to this
                                        _____

            country.   Alexander stated that Frost  would hand money over

            to  appellant.   Carlos would  then leave  the  apartment and

            return with the cocaine.  Indeed, Carlos continued to live in

            the apartment  after appellant left for Colombia and when the

            police  raided  the  apartment  they  found  cocaine  on  the

            premises.   Finally,  there was  no  link between  Frost  and

            Carlos other than appellant.

                      Appellant  makes  much   of  the   fact  that   the

            government  did not  have Alexander,  who was  present during

            appellant's  sentencing hearing,  testify.   However,  "[t]he

            sentencing  court  is free  to  rely  upon outside  evidence,

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including  hearsay evidence  that has  never been  subject to

            cross-examination."   United  States v.  Zuleta-Alvarez,  922
                                  ______________     ______________

            F.2d 33, 36  (1st Cir.  1990), cert. denied,  111 S.Ct.  2039
                                           ____________

            (1991).   Alexander's testimony and the information contained

            in the  Presentence Report  provided a sufficient  basis upon

            which  the district court could infer  that it was reasonably

            foreseeable that  Carlos would continue to  supply Frost with

            cocaine.  See id. at 36-37; Garcia, 954 F.2d at 17.  "[W]here
                      ___ ___           ______

            there is more than  one plausible view of the  circumstances,

            the  sentencing court's choice among supportable alternatives

            cannot be  clearly erroneous."   United States  v. Ruiz,  905
                                             _____________     ____

            F.2d 499, 508 (1st Cir. 1990).

                      2.   Appellant  next claims  that under  U.S.S.G.  

            3B1.2  he  should  have  received a  downward  adjustment  of

            between  2 and 4 levels as a "minimal" or "minor" participant

            in the conspiracy.   The government argues that the  issue is

            moot.    It points  out that  the  finding that  appellant is

            responsible  for  over five  kilograms  triggers a  statutory

            minimum of 10  years (which is  what appellant recieved)  and

            this  minimum   becomes   the  minimum   guideline   sentence

            regardless of any  reduction in the offense  level on account

            of  minimal or minor participation.  U.S.S.G.   5G1.1(b).  We

            agree with the government but  note that the district court's

            refusal to  declare appellant a minor  or minimal participant

            would not in any event constitute error.

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We review a district  court's "role in the offense"

            decision  only for clear error.   United States  v. Brum, 948
                                              _____________     ____

            F.2d  817, 820  (1st  Cir. 1991);  United  States v.  Rosado-
                                               ______________     _______

            Sierra,  938  F.2d  1,  1-2  (1st  Cir.  1991)  (per curiam).
            ______

            Appellant bears  the burden of  proving his entitlement  to a

            downward adjustment  under   3B1.2.   Rosado-Sierra, 938 F.2d
                                                  _____________

            at 1.

                      The  commentary  to     3B1.2 makes  plain  that  a

            defendant is not entitled to a downward adjustment unless the

            defendant is  "substantially less culpable  than the  average

            participant."   Comment. (backg'd).  "It is intended that the

            downward adjustment  for a  minimal participant will  be used

            infrequently."    U.S.S.G.     3B1.2,  comment.  (n.2).    As

            examples of  minimal actors, this  note cites one  whose only

            role is to off-load a single shipment of marijuana or one who

            was recruited only as a courier in a single transaction.  Id.
                                                                      ___

            comment.  n.1.  

                      Here, appellant  admitted to  being  a supplier  of
                                                             ________

            cocaine, hardly a  minor role  in any drug  operation.  As  a

            result, we cannot conclude  that the district court's finding

            in  this regard was clearly erroneous.  For cases in which we

            have reached similar  results, see Brum,  948 F.2d at  820-21
                                               ____

            (when police conducted search, defendant found  standing next

            to  table   on  which  cocaine   packaging  operation   being

            conducted); United States  v. DiIorio, 948  F.2d 1, 5-6  (1st
                        _____________     _______

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Cir. 1991) (defendant had knowledge  of codefendants' ongoing

            plans  to  sell  cocaine,  received  money  for  cocaine  and

            participated in setting up meeting place); Rosado-Sierra, 938
                                                       _____________

            F.2d at 2(defendant worked asa "broker" forseller ofcocaine).

                      3.  Appellant's  final argument is that  he did not

            receive a fair sentencing hearing.  He lists  eight instances

            in  which he  claims that  the sentencing  judge  was biased,

            evinced a predisposition  to defend  the government,  already

            had prejudged  appellant's guilt  and made findings  prior to

            hearing appellant's evidence and testimony.  Having carefully

            reviewed  the transcript and  read the eight  excerpts in the

            context of the  entire hearing,  it is plain  that the  judge

            allowed  appellant to  present evidence and  to testify.   It

            also  is clear  that he  listened to  what appellant  and his

            attorney  had to say before imposing sentence.  That he found

            appellant's version of the facts not credible does not render

            the  hearing biased  or  unfair.   See  18 U.S.C.     3742(e)
                                               ___

            ("court of appeals shall  give due regard to the  opportunity

            of  the  district  court  to  judge the  credibility  of  the

            witnesses").

                      The judgment of the district court is affirmed.
                                                            ________

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