USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1686
UNITED STATES OF AMERICA,
Appellee,
v.
PRISCILLA JACKSON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Oakes,* and Cyr,
Circuit Judges.
______________
_____________________

Norman E. V. D'Andrea, by Appointment of the Court, for

_______________________
appellant.
Kenneth P. Madden, Assistant United States Attorney, with
__________________
whom Lincoln C. Almond, United States Attorney, was on brief for
_________________

appellee.

____________________
August 31, 1993
____________________

____________________
*

Of the Second Circuit, sitting by designation.

TORRUELLA,
federal

grand

jury

Circuit Judge.
______________

On

indicted appellant

December
Priscilla

codefendant Juan Familia, charging conspiracy

with

4, 1991,
Jackson

and

to possess cocaine

intent to distribute it (Count I) and possession of cocaine

with intent to distribute it

841(a)(1) and 841(b)(1)(C).
this case,

(Count II).

was also charged with

Jackson

846,

Familia, whose appeal is not part of

using a firearm

relation to a drug trafficking crime

924(c).

See 21 U.S.C.
___

was not charged

during and in

in violation of 18 U.S.C.

with this third count.

trial, a jury convicted both defendants

acquitted Familia of the firearm charge.

on Counts I and II,

After

but

Jackson does not appeal

her conviction, but contests

her

the district court's calculation of

guideline sentencing range ("GSR")

on several grounds.

For

the reasons that follow, we affirm.

I
I
_
On November 11, 1991,

police officers from Providence,

Rhode Island went to execute a search warrant at the second floor

apartment of

142 Bowdoin

Street, Providence.

At approximately

7:00 p.m., Familia departed from the apartment and drove away
a Dodge minivan.

The officers stopped the vehicle

in

and returned

with Familia to his apartment.

They entered
Familia's

keys.

The

bedroom, which contained

bureau

the kitchen
kitchen

leads

a bed,

and a television table.

through the rear

directly to

a crib, an
Jackson

door using
the

master

upright dresser,

was on the bed with the

couple's child.
Upon entering the apartment,

have
to

is a gun.
search

mattress.

the

It's under
apartment.

Familia declared:

the mattress."
They

found

"All I

The police proceeded

the

pistol under

the

A bottle of inositol, a chemical used to cut or dilute

cocaine,

sat on

top of the

dresser was nailed shut.

itself had

bureau.

The bottom

drawer of the

The officers discovered that the drawer

been removed and

only the facade

remained.

On the

floor behind the false drawer front, they found a paper bag and a
metal box.

The paper bag

299.22 grams of cocaine.

States

currency and

on August

The metal box contained $3866 in United

two

which indicated that

winnings

held three plastic bags that contained

Rhode Island

Familia had
28, 1991.

plastic bag containing

state lottery

received a total
The police

ten rounds of

receipts,

of $2085

also found

in

a small

.38 caliber ammunition

in

plain view on the floor in front of the bedroom closet.

After trial,

a jury

convicted Familia and

conspiring to possess, and possession of,

distribute

it.

The sentencing judge

Jackson of

cocaine with intent to

held a hearing at which he

considered objections raised by the government and Jackson to the

Presentence
determined

Investigation Report
the GSR.

("BOL") of 24

The

judge assigned

of the

After
a base

argument, he

offense level

for the quantity of drugs involved in the offense.

He arrived at the BOL by converting

into 109.6

("PSR").

the $3866 in currency seized

grams of cocaine based on the going price at the time

offense.1

To that

amount, the

judge added the

299.22

____________________

1
Based on advice from the Drug Enforcement Administration
("DEA"), the probation officer who prepared the PSR established
$1000 as the going price for an ounce of cocaine in November,
-3-

grams of cocaine
total

actually seized.

quantity of

408.82

Thus, the

grams of

BOL derived from a

cocaine.

See
___

U.S.S.G.

2D1.1(c)(10) (Drug Quantity Table) & comment. (n.12) (Nov. 1991).

The court

increased the BOL

dangerous

firearm, as required

court

rejected

the

a reduction.

offense level

for possession of

by U.S.S.G.

two-level

recommended by the PSR,

such

by two levels

2D1.1(b)(1).

decrease

for

minor

The

role

finding insufficient evidence to warrant

See id.
___ ___

of 26 and

at

3B1.2(b).

Based on

Jackson's criminal history

a total

category of

III, the court determined that the GSR was 78 to 97 months.

Jackson
calculation,
denying

her a

appeals

from

the

raising three contentions:

downward adjustment

minor role in the offense;

sentencing
The

of two

judge's

GSR

court erred by (1)

levels based

on her

(2) raising the offense level by

two

points for presence of a firearm; and (3) converting the $3866 in

currency into

a quantity of

cocaine to

determine the BOL.

We

consider each in turn.

II
II
__
Mitigating Role.
________________
downward adjustment of

Guideline

3B1.2

the offense level for

allows

for

defendants who are

less

culpable than other participants in the crime.

bears the

burden of

adjustment.
1992),

establishing that

A defendant

she deserves a

downward

United States v. Ortiz, 966 F.2d 707, 717 (1st

_____________
_____

cert. denied, 113 S. Ct. 1005 (1993).

____________

Cir.

Since role-in-the-

____________________
1991.
Therefore, $3866 converts to
which is equivalent to 109.6 grams.

3.866 ounces

of cocaine,

-4-

offense determinations

are fact-bound,

only for clear error.

See, e.g., United States v. Sostre,

___ ____ ______________
______

F.2d

728, 732 (1st

we review

Cir. 1992); United States

_____________

such findings

967

v. Brum, 948 F.2d

____

817, 820 (1st Cir. 1991).

In this

case, Jackson

was convicted of

conspiring to

possess, and possession of, cocaine with intent to distribute it.

Familia testified that neither defendant was involved with drugs,

and that the drugs might have belonged to his brother (he was not
certain

to

sentencing

whom
judge

they belonged).
credited Familia's

Neither

the

contentions,

jury nor

the

however, and

Jackson offered nothing else

she acted in

a lesser

that the judge

See
___

capacity.

We

proving that

therefore cannot

conclude

clearly erred in denying the downward adjustment.

United States v.
_____________

("where

to meet her burden of

there

is

circumstances,

Ruiz, 905
____
more

F.2d 499,

than

the sentencing

one

508 (1st

plausible

court's choice

Cir. 1990)

view

of

the

among supportable

alternatives cannot be clearly erroneous").

Weapon
Possession
Adjustment.
________________________________

The

sentencing

guidelines require that the offense level be raised two points if

a

firearm

U.S.S.G.
present,
improbable

was

possessed

2D1.1(b)(1).
the

during a
"We have

adjustment should

that

the weapon

(citing Ruiz, 905

____

F.2d at

trafficking

held that,

be

and

United States v. McDowell, 918

______________
________

drug

the

made unless

if a

weapon was

it

is clearly

offense were

F.2d 1004, 1011

507; United States

_____________

offense.

connected."

(1st Cir. 1990)

v. Mocciola,
________

891

F.2d 13, 17 (1st Cir. 1989)).

-5-

Jackson argues

that her offense level

should not have

been raised for presence of a weapon.

was no

evidence

showing that

Jackson asserts that there

she knew

the gun

mattress or that she had ever used the firearm.

Familia testified that the gun was
about the weapon.

was under

the

On the contrary,

his and that she knew nothing

Moreover, she was not charged

for possession

of a weapon and Familia was acquitted of possession during a drug

trafficking crime.
The
drug

The adjustment, she argues, was unwarranted.

determination that

offense is

factual; it

a weapon

will be

is present

set aside only

during a

for clear

error.

United States v. Corcimiglia, 967 F.2d 724, 726 (1st Cir.

_____________
___________

1992);

United States v.
______________

1992).

Neither

possession

of

the fact
the

determinative.

Pineda, 981
______

The

that

weapon
decision

F.2d

Jackson

569, 572
was

nor

Familia's

not to

charge

(1st Cir.

not charged

for

acquittal

is

Jackson may

have

resulted from the government's belief that it could not prove her
guilt beyond a reasonable doubt.

The acquittal of Familia merely

established that the government failed

a reasonable
only

doubt.

At sentencing however,

the government need

prove facts by a preponderance of the evidence, Pineda, 981

______

F.2d at 574
(1st

to prove his guilt beyond

(citing United States v.

_____________

Wright, 873 F.2d

______

437, 441

Cir. 1989)), and uncharged conduct may be attributed to the

defendant

for sentencing

(backg'd.)
element

purposes, U.S.S.G.

("Conduct that is not

of

determination

the

offense

of the

of

1B1.3,

formally charged or

conviction

applicable guideline

may

enter

comment.

is not an
into

the

sentencing range.");

-6-

see, e.g.,United States v. Garc a,954 F.2d 12, 15(1st Cir. 1992).
___ ____ _____________
______

The facts are not nearly as favorable to Jackson as she

believes.
under

The weapon was definitely present; the police found it

the mattress

where

Familia said

sentencing

court reasonably

presence:

Jackson

lived

it

inferred that
in the

apartment

was located.

The

Jackson knew

of its

with Familia;

the

firearm was hidden under their bed, the ammunition for the pistol
lay on the floor, next
apartment

to the bed, plainly within her

was used to traffic narcotics; and the gun was located

only a few feet from where

the cocaine and inositol were

Given Familia's numerous other implausible statements,

was entitled

to disregard Familia's

Jackson knew nothing of

deter car thieves.
circumstances
Jackson
727.

view; the

Even

it

"an alternative
and of

he purchased it

if Familia owned the weapon, under

was reasonable

also possessed the weapon.

possession, in

the judge

exculpatory statement

the weapon and that

detailed above,

Moreover,

found.

to find

that

to

the

that

See Corcimiglia, 967 F.2d at

___ ___________
legal

itself, does

basis for

not prevent

the

weapons

the sentencing

court from granting the enhancement."

Id. (citing United States

___
______________

v. Almonte, 952 F.2d 20, 25 (1st Cir. 1991), cert. denied, 112 S.
_______
____________
Ct. 1776 (1992); Ruiz, 905 F.2d at 508).
____
In any event, when
was present,
improbable"

the

it has been shown that

relevant inquiry

that the

weapon

is

whether it

could have

been

the firearm
is

"clearly

used during

the

offense.

E.g., Corcimiglia, 967 F.2d at 727; McDowell, 918 F.2d

____ ___________
________

at

Defendant bears

1011.

the burden of

demonstrating that the

-7-

connection was clearly improbable.

Nothing in the record disputes
gun was connected to the

Corcimiglia, 967 F.2d at 728.

___________

the reasonable inference that the

offense.

The sentencing judge did

not

clearly err in imposing the two-level increase.

Conversion of Currency.
_______________________
$3866

of currency found in the

to the cocaine
trafficking

for

in the

The PSR

recommended that the

metal box, which was stored next

bedroom, be considered

sentencing purposes.

As

proceeds of
a

result, the

drug

PSR

converted the
on

seized

currency into a quantity of

an approximation of the

1991

($1000).2

total

The sentencing

quantity of

amount

going price of

cocaine in November,

court agreed

cocaine relevant

of cocaine actually seized

purchased by the seized currency.

cocaine based

and computed

to setting

the BOL

and the amount

the

as the

that could be

Including this extra amount of

cocaine raised the BOL by two levels.

Jackson

contests the

conversion

of

the currency

on

three grounds.

She argues first that because the $1000 price per

ounce

approximation,

was

an

quantity on
for

that basis.

the conversion

price

"technically there was a

Brief

at 9).

incorrectly

Finally,
deemed

the

She

it is

unfair

to

calculate

next contends that the

was never

called

as a

denial of confrontation."
she

urges

that

$3866

of

currency

the

the

DEA source
witness

and

(Appellant's

district

proceeds

of

court

drug

transactions because there was evidence that the money could have
____________________
2
A DEA agent provided the
officer. See supra note 1.
___ _____

price estimate

-8-

to the

probation

come from at least two or three other sources.

In

sentencing

illicit substances, we
support,

by

attributed
920

F.2d

cases

have required

preponderance

113 (1st

the scale

for

that reliable

the

evidence,

1990).

offense,

approximate the quantity of

consider,

amounts

the

quantity

Under the

Guidelines,

judge shall

U.S.S.G.

making the estimate, "the judge

example, the
.

the sentencing

does not

the controlled substance."

In

of

information

seizure or the amount seized

of the

2D1.4 comment. (n.2).

disputed

See, e.g., United States v. Sklar,

___ ____ _____________
_____

Cir.

"[w]here there is no drug

reflect

of

to the defendant.
107,

involving

price
.

generally

controlled

substance,

[and]

controlled

substances by the defendant

sanctioned

the use of estimates

obtained for

similar

transactions

. . . ."

when an exact

Id.3
___

may

the

in

We have

figure cannot be

determined, but we demand that "when choosing between a number of

plausible estimates
the side
States
______

of drug quantity .

of caution."
v.

quotation

Walton, 908
______
omitted),

Ultimately, however,
represents
same

F.2d

1289,

cert. denied,
_____________

at 113

1301 (6th
111

the determination

S.

conduct as

relevant conduct

predominantly

factual

____________________

and

the charged

Cir.)
Ct.

(internal

273

(1990)).

that an amount

of money

offense,

attributable to
reviewable

must err on

(quoting United
______

proceeds from drug transactions that

course of

represents

Sklar, 920 F.2d

_____

. . a court

only

are part of the

and therefore

the defendant,
for

clear

is

error.

3 The current Guidelines allow for estimation of quantities as

well. The language of the commentary has been moved to
2D1.1
comment. (n.12).
-9-

United State
_____________

v. Gerante,
_______

Sklar, 920 F.2d

_____

at 114;

891 F.2d

364,

368 (1st

Cir. 1989);

see also United States v. Duarte,

________ ______________
______

F.2d 1255, 1265 (7th Cir. 1991) (ascertaining quantity

which

involves

quantity, is

conversion

of

currency

into

factual determination subject

950

of drugs,

equivalent

drug

to clearly erroneous

standard), cert. denied, 113 S. Ct. 174 (1992).

____________

In United States v. Gerante, the defendant was arrested

_____________
_______
with

4.98 kilograms

objected

to

of cocaine

and $68,000

money

in

treating

found

his

in cash.

Gerante

residence

as

an

equivalent quantity of contraband

for the purpose of determining

relevant conduct

Following

Guidelines, we

under

1B1.3.

approved the practice of

the command

of the

estimating the quantity

of cocaine that a defendant had exchanged for a sum

of money and

holding the defendant accountable for that quantity, provided the

money represents

drug transactions

that are

part

of the

same

course

of conduct as the instant offense.

See id., 891 F.2d at

___ ___

369; see also Sklar, 920 F.2d at 113 (approving same practice).
________ _____
Several
cases

other circuits have

involving large

quantities

of contraband

See, e.g.,
___ ____

United States v. Hicks, 948

_____________
_____

(involving

two

Duarte,
______
five

kilograms

950 F.2d at 1265

kilograms and

of

approved the

practice in

and

currency.

F.2d 877 (4th Cir. 1991)

cocaine and

$279,550

in

cash);

(approving principle in case involving

$117,000 cash,

but remanding

because price

range estimate could have resulted in two different GSRs); United

______
States
______

v.

cocaine

Stephenson, 924
__________

F.2d 753

and $112,867 cash);

(8th

Cir.) (233

grams of

but cf. United States v. Gonz lez_______ ______________

_________
-10-

S nchez,
_______

953

principle

of

F.2d

1184,

converting

rejecting conversion where

1186-87 (9th
$1541

into quantity

no evidence

currency to drug transactions).

Cir.

1992)
of

(approving
heroin,

supported connection

but

of

Cases involving large amounts of

currency

more readily

amount seized

support a

does not reflect

reasonable inference
the scale of the

that the

offense.

When

drug traffickers possess large amounts of cash in ready proximity

to

their drug supply, a

reasonable inference may

be drawn that

the money represents drug profits.

Small amounts

of currency do not present

case.

Nonetheless,

the

remains

the

cocaine

involved, taking into account

same.

obligation of

The judge

must

the judge supportably finds that

does

the

such a clear

sentencing

determine the

judge

quantity of

all relevant conduct.

the quantity of cocaine

If

seized

not reflect "the scale of the offense," and concludes, by a

preponderance of the evidence, that certain

drug proceeds from
must estimate

the same

the amount of

amounts of money are

course of conduct,
drugs that the

then the

judge

defendant exchanged

for the currency seized.

We
conversion

turn
of

now

to

the $3866

to 109.6

Jackson's written objections to

sentencing hearing
failure of the
testify

Jackson's

argument

grams

of cocaine.

who provided the

at the sentencing hearing.

contentions before the

at the

price or the

conversion price

to

Having failed to raise these

sentencing court, they may not

-11-

the

Neither

the PSR nor her argument

challenged the $1000 conversion

DEA agent

against

be raised

for the first time on appeal.

950 F.2d 50,
Casallas,
________

56 (1st

946 F.2d

Cir. 1991); United States v.

______________
162, 166

States v. Zuleta-Alvarez,
______
______________
sentencing hearing

See, e.g., United States v. Dietz,

___ ____ _____________
_____

(1st Cir.

922 F.2d

need not

1991), see also United

_________ ______

33, 36 (1st

meet all the

and strict evidentiary limitations

Uricoechea___________

Cir. 1990)

("A

procedural safeguards

of a criminal trial."), cert.

_____

denied, 111 S. Ct. 2039 (1991).

______
We
well.

She

are unpersuaded
argues that the

sources and, as

by Jackson's

third contention

currency could have come

a consequence,

the evidence did

as

from other

not support

finding that these funds were proceeds of drug transactions which

were part of the same course of conduct.

In many cases involving

small amounts of currency it will be difficult for the government

to

prove by a

preponderance of the

tied to drug trafficking.

winnings

evidence that

the money is

This, however, is not such a case.

Jackson claims

that $2085 of the

seized currency were

from the Rhode

Island Lottery and

offered the lottery

receipts from August 28,

1991 found in the metal

the

that

currency

to

prove

contention.

box containing

The

balance,

she

contends, was given to Familia to purchase his van and ship it to

his

sister in

Puerto Rico.

These

appear to

be superficially

appealing explanations.

They prove unavailing, however.

The sentencing judge rejected her story because Familia

never

claimed

contradicting
overlapped,

that

monies

Jackson's

were

lottery

assertions.

winnings,

Where

their

thus

stories

the judge did not believe Familia or his sister, who

-12-

testified that she sent him $3600 for his car.

hearing,

Familia's

concerning

sister

the purchase of

denominations of currency she

know the

was

unable to

the car.

She

At the sentencing

provide

any

detail

could not recall what

sent to her brother.

She did not

make of the vehicle, its age, its mileage, how much her

brother charged for the van, or the cost of shipping it to Puerto

Rico.

The judge

therefore

sources of the currency

rejected

the various

alternative

and determined that the funds

were drug

proceeds.
We cannot say
were clearly erroneous.

that the sentencing judge's

conclusions

It is possible that Familia's sister was

not knowledgeable regarding motor vehicles and that she entrusted

the details of the transaction to her brother, satisfied that her

kin

would

treat

her

honestly.

The

judge

present

at

the

sentencing

hearing is

credibility
however.

of
See
___

in

the best

the witnesses
Wainwright
__________

position

and the

v. Witt,
____

469

to determine

source of
U.S. 412,

the

the currency,
428

(1985)

(credibility determinations are peculiarly within a trial judge's

province).
lawful

Here,

explanation

the court
for the

discredited a
monies and

found

profits.
Finding no clear error, we affirm.
______

-13-

remotely plausible,
them to

be drug