USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2031
UNITED STATES OF AMERICA,
Appellee,
v.
GERARDO DELGADO MUNOZ,
Defendant, Appellant.
_____________________
No. 92-2032
UNITED STATES OF AMERICA,
Appellee,
v.
SAUL ANDINO FIGUEROA,
a/k/a BRUNO,
Defendant, Appellant.
____________________
No. 92-2033
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN MARTINEZ,
Defendant, Appellant.
____________________
No. 92-2034
UNITED STATES OF AMERICA,
Appellee,

v.
LEANDRO QUINONES,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________

Before
Boudin, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Pettine,* Senior District Judge.
_____________________
____________________

Owen S. Walker for appellant Gerardo Delgado Munoz.

______________
John C. Doherty, by Appointment of the Court, for appellant S
_______________
Andino Figueroa.
Raymond E. Gillespie, by Appointment of the Court, for appell
____________________
Leandro Quinones.
Nicholas B. Soutter, by Appointment of the Court, with whom P
___________________
_
S. McGovern was on brief for appellant Juan Martinez.
___________

Dina Michael Chaitowitz, Assistant

United States
Attorn
_________________________
Organized Crime Drug Enforcement Task Force, with whom Donald
_______
Stern, United States Attorney, was on brief for the United States.
_____
____________________
October 13, 1994
____________________

____________________
*Of the District of Rhode Island, sitting by designation.
*Of the District of Rhode Island, sitting by designation.

BOUDIN,

Circuit Judge.
_____________

Munoz, Leandro
Figueroa were

Quinones,

Juan Martinez,

indicted on June

distribute cocaine base,

in violation of
alleged to

Appellants

Gerardo
and

21 U.S.C.

have been the

Quinones

serving

as his

Martinez

filling

various

Saul

21, 1991, for

commonly known as

DelgadoAndino-

conspiracy to

"crack" cocaine,

841(a)(1) and 846.

Delgado was

ringleader of the

operation, with

chief

and Andino

lieutenant

subordinate

roles

as

and

lookout,

courier, driver and guard.

The indictment
had

alleged that members

of the

conspiracy

sold cocaine base to an undercover operative of the Drug

Enforcement Administration,

Pamela Mersky, on

occasions in April and May 1991.

took place in

Boston and

six different

The transactions, which all

its suburbs, involved

a total

of

896.2 grams of cocaine base, 506 grams of which changed hands

in the

final transaction

conspiracy,

each

on May 30,

defendant was

substantive counts

1991.

charged

of cocaine distribution

In

with

addition to
one or

more

corresponding to

the transactions in which he participated.1

Appellants and
jury

in April

1992.

two other co-defendants were

The

government's evidence

tried to a
consisted

____________________
1Specifically, Delgado and Quinones were charged with
six
substantive
distribution
counts arising
out
of
transactions on April 9, 19, 23, May 6, 16, and May 30, 1991.
Andino was charged with four substantive distribution counts
pertaining to the April
23, May 6, 16, and
May 30
transactions.
Martinez was charged with one distribution

count for the May 30 transaction.

-3-3-

primarily of Special

Agent Mersky's testimony, supported

tape-recordings of her conversations with the

testimony

of

transactions.

surveillance

who

defendants and
monitored

The jury convicted appellants

One co-defendant,
counts but has not
Delgado,

agents

was

Paulita Cadiz,

by

the

on all counts.

was also convicted

on all

appealed; the remaining defendant, Lazaro

acquitted.

On

June

29,

1992,

the

court

sentenced Andino to 151 months' imprisonment, Martinez to 240

months' imprisonment, and sentenced Delgado and Quinones each
to 360 months' imprisonment.
These appeals followed.

Each appellant

except Delgado

challenges his conviction, and all challenge their sentences.

We

first

consider

appellants'

challenges

evidentiary rulings and instructions at

the

sufficiency

of

the

evidence

A.

Andino

THE CONVICTIONS

various

trial, as well as to
on

various

Thereafter, the sentencing issues are addressed.

I.

to

counts.

We

begin

with the

conviction of

Andino, who

referred to in the indictment as "Bruno."

is also

Andino was alleged

to have assisted Delgado and the others on at least four drug

transactions by watching over the
surveillance,
He

and sometimes by

argues first that the trial

drugs, conducting countermaking the

actual delivery.

court erroneously admitted a

spontaneous confession made upon his arrest in Puerto Rico.

-4-4-

Andino was not present at the

between his

co-defendants and Mersky, after

defendants were arrested.

November 26,

1991, when

arrest warrant
arriving
by

which the other

Instead, Andino was apprehended on

United States Marshals

for Andino

in Catalina,

executed an

Puerto Rico.

Upon

at Andino's home, the marshals were met at the door

appellant's

brother,

Cuco

marshals initially mistook for

told

May 30, 1991, transaction

the brother

narcotics offenses,

that they

Andino-Figueroa,
appellant.

had a

the

When the marshals

warrant from

appellant entered the

whom

Boston for

room and shouted,

"I'm the one you are looking for.

never been to Boston.
Prior

to

He's

I'm the one that's been to Boston."

trial, Andino

preclude testimony

I'm the guilty one.

as to his

filed

a motion

in limine to
__________

spontaneous confession.

At a

hearing, Andino argued that the confession should be excluded

because it would guarantee conviction.
argument under Fed. R. Evid.
the motion

on the ground

probative of
"not

unfairly

403, the district court

that the confession

[Andino's] knowledge
prejudicial."

district court failed to

Construing this as an

was "strongly

and his intent,"

Andino

now

denied

and was

argues that

the

adequately consider the prejudicial

impact of the confession in striking the Rule 403 balance.

The
excluding

district
evidence

court's
under

wide
Rule

latitude
403

is

in admitting
well

or

established.

Daigle v. Maine Medical Center, Inc., 14 F.3d 684,

______
___________________________

690 (1st

-5-5-

Cir.

1994).

Andino's

The district

outburst

"shows

court found--and
knowledge

on

the

we agree--that
part

of

the

defendant . .

. that a particular

crime involving narcotics

was the subject of the arrest, and it took place

The admission

has special

importance since at

argued that the government

in Boston."
trial Andino

had arrested the wrong man.

The

damage done to the defense is not a basis for exclusion;

the

question under Rule 403 is "one of `unfair' prejudice--not of

prejudice alone."

United States v. Moreno Morales, 815 F.2d

_____________
______________

725, 740 (1st Cir. 1987).

We turn next

to a hearsay issue.

At

trial, Mersky was

allowed, over Andino's objection,

to testify that a landlord

had

rent receipt

given federal

Andino

rented a

Massachusetts.
a center of

drug agents a
room at

6 Michigan

showing that

Avenue in

Dorchester,

That address was shown at trial to have been

the conspiracy.

Andino argued both at trial and

on appeal that he was prejudiced by any reference to the rent

receipt--which, he contends, was "blatant hearsay" and should
not have been admitted.
Although the government might
receipt itself was not
"statement"

is

an

apparently willing to

hearsay, cf. Fed. R. Evid.

___

oral

But

or

written

801(a) (a

"assertion"),

treat the testimony in

it were a report of what

agents.

have argued that the rent

it

is

question as if

the landlord said orally to the DEA

the government insists

-6-6-

that the testimony

was

not

elicited

actually
the

or used

for purposes

lived at 6 Michigan

Avenue.

of proving

that Andino

Rather,

it says that

testimony was brought out on redirect merely in order to

explain that Mersky had some colorable reason--whether or not

correct--for attaching Andino's name

to the description

she

furnished to the marshals in Puerto Rico.

This

redirect

because during
at

was

important,

the drug deals, about

length, she had

defense

counsel

had

given to the marshals

Andino's appearance

in the

says,

"Bruno" and had no

On cross-examination of Mersky,

suggested in further questions

Bruno,

government

which Mersky testified

known Andino only as

knowledge of his real name.

Andino's

the

brought out

this

fact;

he

that Mersky's description

of

in Puerto Rico,

did not match

courtroom; and arguably

he left

the impression through his questions that there was something

suspicious in

the

unexplained appearance

of Andino's

real

name in the information given to the marshals.

It is quite true
hearsay if it
made

is used

and that the

that an out-of-court statement is

only to show

that the statement

listener heard the words

uttered.

not
was
See 6
___

Fed. R.

Evid. 801(c)

offered "to prove

have no
judge

(hearsay is an

the truth

doubt that it
overruled the

out-of-court statement

of the matter

was on this theory

hearsay

asserted").

We

that the district

objection, saying

that Mersky

"doesn't know whether it is true or not [that Andino lived at

-7-7-

6 Michigan Avenue].

She just knows how she found out.

not offered for the truth

out."

Whether or not

problem is
some

information
and

there is still

an issue that could be

measure

developed:

of the matter, just how

it

might

exactly

what

depend

precisely what

inference

an underlying hearsay

matters

landlord

was relayed to Mersky

she found

debated at length; and in

on

the

It is

not

said;

clearly

just

what

and then to the marshals;

the government

is aiming

to

refute.
We see no reason to engage in these speculations because
the admission of this evidence was patently harmless.
had

dealt

face

to

face with

"Bruno"

on

four

Mersky

different

occasions.
easily

Her ability to identify Andino as Bruno could be

tested in

the courtroom

cross-examination.

The jury

and was

in fact

was also apprised

tested on
of Andino's

virtual confession at the time of his arrest ("I'm the guilty

one."),

and his

further

arrest (Andino told

incriminating statement

his father that there was

removal hearing since "[Mersky]

me").

after his

no point in a

would come over and identify

The alleged hearsay did not alter the outcome.

Andino next claims that

to support

there was insufficient evidence

his conviction for the May

30, 1991, transaction

in which other defendants sought to sell 506 grams of cocaine

base

to Mersky.

The parties

present at this transaction.

agree

that Andino

was

not

At trial, the government argued

-8-8-

that Andino was liable under Pinkerton

_________
U.S.
liable

640 (1946).
for actions

crime is in

Pinkerton
_________

v. United States, 328

_____________

permits a defendant

committed

furtherance of the

by a

to be held

co-conspirator if

conspiracy and is

that

committed

while the defendant

328.

is a member of

the conspiracy.

See United States v. O'Campo,

___ _____________
_______

Id. at
___

973 F.2d 1015, 1021 (1st

Cir. 1992).
In

this court, Andino

does not dispute

the theory but

argues that the evidence at trial was so thin that his motion
for judgment of

acquittal should

requires Andino

to "bear

the heavy burden

that no reasonable jury could

a reasonable

doubt."

have been

granted.

This

of demonstrating

have found [him] guilty beyond

United States v.
_____________

Innamorati, 996 F.2d

__________

456, 469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993).
____________
review the
government,

evidence

in

the

light most

"drawing all plausible

favorable

inferences in

to

We
the

its favor

and resolving all credibility determinations in line with the

jury's verdict."

Id.
___

Under Pinkerton,
_________

the government was required to prove

that the May 30 transaction was carried out by members of the

conspiracy, in furtherance

of the conspiracy, and

at a time

when Andino was still a member of the conspiracy.

Andino has

not

conspiracy

claimed a

conviction.
was

lack of

evidence to

support his

Nor does he dispute that the May 30 transaction

in furtherance of the

conspiracy.

-9-9-

But

he does dispute

that he was still a member as of May 30, 1991, arguing in his

brief that
radar

he

"disappeared entirely

screen" after

evidence in

May 16,

1991.

the record concerning his

from the

Government's

In fact,

there is

no

activities after that

date until his arrest in Puerto Rico on November 26, 1991.

A

"`mere

conspiracy does
v. Nason, 9 F.3d
_____
S. Ct.

cessation of

activity

some

disavow the
at 1102.
full

United States v.
_____________

to his

United States
_____________

action "either

of time might

to

defeat

authorities

goals."

Id.
___

or a

communication by

that he

has abandoned

Even if a

be sufficient to

or

Juodakis, 834 F.2d

________

we have required "evidence either

co-conspirators

and its

Juodakis, 834
________

To withdraw, a conspirator

purposes of the conspiracy."

Typically,

enterprise
lapse

affirmative

confession to

accused

155, 162 (1st Cir. 1993), cert. denied, 114

____________

1331 (1994) (quoting

take

furtherance of

not constitute withdrawal.'"

F.2d 1099, 1102 (1st Cir. 1987)).

must

in

of a
the
the

very extended

infer withdrawal, the

two-week interval in this case is not enough.

B.

Martinez

Appellant Martinez also challenges his conviction.

Martinez
guilty

and

his

on October

co-defendant,
30, 1985, in

possession

of cocaine

government

introduced these

defendants'

objections

Gerardo

Connecticut state

with intent

in

Delgado,

to distribute

convictions
order

to

at trial
show,

Both

pleaded
court to
it.

The

over the

inter alia,
___________

-10-10-

"knowledge

and intent in a common scheme or plan."

now asserts that "[a]dmission

Martinez

of evidence of Martinez' prior

conviction impermissibly prejudiced his defense," but adds no

explanation
to in a

to this one-line allegation.

"[I]ssues adverted

perfunctory manner, unaccompanied by

developed argumentation,

are deemed waived."

some effort at
United States
_____________

v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.

_______
____________
1082 (1990).
Martinez also says that the evidence was insufficient to

support his
with

convictions for conspiracy,

and for

intent to distribute on May 30, 1991.

evidence on both

counts arises from the

possession

The government's

May 30 transaction.

Martinez was first spotted at about 6:50 p.m. that evening by

a state police officer
the

street

Village.

outside
Mersky,

who saw Martinez walking up

SkipJack's

who

had been

outside SkipJack's at 7:30 p.m.

testified

restaurant

that Martinez

told

in

and down
Brookline

by Delgado

in order to purchase

greeted her

to

wait
drugs,

there and

then walked

contacted

Mersky

away.
Shortly
signaling

thereafter,

her beeper.

Delgado

by

When Mersky called Delgado from a pay

phone, Mersky was told to meet Paulita Cadiz, who (along with
Lazaro Delgado) accompanied her to a
occupied

by Martinez and a female

blue-colored Oldsmobile
juvenile.

Martinez, then

sitting in the driver's seat, pushed a large piece of luggage

-11-11-

located on the passenger-side floor toward Lazaro Delgado and

assisted him in opening it.

of

cocaine base.

The bag contained numerous vials

Mersky took

the

bag and

walked

away,

announcing that she was "going to get the money."

As Mersky walked away, she signalled to two officers who
were waiting in an
of

whom

were

unmarked car nearby.

wearing

insignia, got out

raid

of their

The

jackets

officers, each

marked

car and turned

with

police

toward the

blue

Oldsmobile, displaying firearms and shouting "police."

officers testified

that Martinez then

threw the

Both

Oldsmobile

into reverse and backed up Brookline Avenue at a high rate of

speed.

After crashing

into another unmarked police cruiser,

Martinez put the car back in forward gear and sought to flee.
He was eventually stopped and arrested.
The testimony was ample to convict Martinez on
conspiracy and substantive distribution counts.
jury

could

have

inferred

counter-surveillance
SkipJack's.
Oldsmobile

when

Martinez
along with

was
the

that
he

Martinez

was
the

first
only

suitcase

both the

A reasonable

was

conducting

observed

adult

in

outside
the

containing the

blue
drugs;

since he then pushed the drugs over to Lazaro Delgado to give

to Mersky, the jury could reasonably have found that Martinez
had

possessed the

drugs.2

His

intent

to distribute

can

____________________
2Martinez argues that he could not have possessed the
drugs because he did not have sole access to the bag.
Exclusive access is not a prerequisite to possession; indeed,
-12-12-

likewise

be

participation

inferred
in the

from this

same

event

overall transaction.

and from
The

his

attempt to

flee further corroborates his guilt.

The jury was also entitled to infer that Martinez agreed
to cooperate with his alleged co-conspirators in carrying out
the

transaction.

the

participants indicate careful planning and coordination,

and

Martinez's own multiple

with Mersky,

The many

guardian of

steps of the

dance performed by

roles--lookout, initial contact

the drugs--do

not

look like

the

unplanned actions of an unwitting victim who was merely along

for the ride.

In any

event, the evidence was sufficient for

a reasonable jury to convict

Martinez on both the conspiracy

and substantive distribution counts.

C.
The

Quinones
remaining

appellant is

Quinones.

The government

alleged at trial that Quinones was Delgado's partner in their

drug distribution
district

activities.

Quinones now

argues that the

court erred in instructing the jury on the issue of

liability for crimes committed

Pinkerton doctrine.
_________

by co-conspirators under

the

As already explained, Pinkerton allows a

_________

defendant

to be held criminally liable for the acts of a co-

conspirator carried out in furtherance of the conspiracy at a

time when the defendant

is a member of the

conspiracy, even

____________________
"joint possession" is one of the possibilities mentioned in
the standard charge. See, e.g., United States v. Maldonado,
___ ____ _____________
_________
23 F.3d 4, 6-7 (1st Cir. 1994).
-13-13-

though
acts.

the defendant

himself did

not participate

in those

See 328 U.S. at 645-48.

___
Quinones

emphasized

argues that

the jury's

Pinkerton beyond
_________

the

district court

obligation

to find

a reasonable doubt.

should

each element

have
of

Although the district

court gave a separate reasonable doubt instruction applicable

to

the

Circuit's

entire

case,

decision in

1323, 1330 (7th Cir.),

Quinones

cites

United States
_____________

us

to

the

v. McKenzie,
________

cert. denied, 112 S. Ct.

____________

Seventh
922 F.2d

163 (1991),

which suggested that a complete Pinkerton instruction

_________
inter alia
__________
burden

"`advise jurors

of proving

that the government

all

elements

of

should

[bears] the
the

powerful

Pinkerton doctrine . . . beyond a reasonable doubt'" (quoting

_________
United States v.
______________

Elizondo, 920
________

F.2d 1308,

1317 (7th

Cir.

1990)).
This

court "evaluate[s]

the context of the

Vavlitis,
________
Supreme

overall charge."

9 F.3d 206, 212

Court in

Cupp
____

Similarly, the

414 U.S.

141, 146-47

well-established proposition that a

instruction to a jury may not be judged in artificial

isolation, but must be

charge."

instruction in

E.g., United States v.

____ ______________

(1st Cir. 1993).

v. Naughten,
________

(1973), referred to "the

single

[a] challenged

Here, the

viewed in the context of

district

stating

that the

government was

element

of every

offense

court

obligated to

beyond a

-14-14-

began its

the overall
charge

by

"prove every

reasonable doubt,"

and

referred

to that burden of

proof over a

dozen times during

the course of its instructions.

Pinkerton may
_________
reason

be a powerful

doctrine, but there

to think that the jury is especially likely to forget

the general instruction on reasonable

applying

is no

Pinkerton.
_________

We have no

doubt when it comes to

intention of constructing a

special requirement that reasonable doubt be mentioned again,

after an adequate general
elements

in an offense or

statement, in relation to selected

theory of liability.

Indeed, in

United States v. Mount, 896 F.2d 612, 623-24 (1st Cir. 1990),
_____________
_____
cert. denied, 114 S. Ct. 415 (1993), we rejected just such an
____________
argument pertaining

to the

district court's instruction

on

interstate transportation of stolen property.

II.
Appellants

also

sentences under
consider

each

Delgado,

the

the

THE SENTENCES

challenge

numerous aspects

federal sentencing

appellant's

claims

alleged ringleader

in
of

of

their

guidelines, and
turn--starting

the drug

we
with

distribution

conspiracy.
A.

Delgado

At Delgado's sentencing, the district court began with a

base offense

level of

36 in

light of

involved, added one level because drug

the amount

of drugs

distribution activity

took place in proximity

added four levels

to a school, U.S.S.G.

2D1.2, then

for Delgado's leadership role.

U.S.S.G.

-15-15-

3B1.1(a).

The court denied Delgado a two-level reduction for

acceptance
placed

of

him in criminal history

Connecticut
to

responsibility,

see
___

U.S.S.G.

3E1.1,

category II based

and

on a 1985

conviction for possession of cocaine with intent

distribute.

The

court then

sentenced

Delgado to

360

months, the bottom of the resulting guideline range.

On appeal,
denial

of

Delgado first contests the

reduction

Shortly after

for acceptance

district court's

of

responsibility.

his arrest, Delgado made a statement to police

officers in which, he asserts, he accepted responsibility for

his crime.

In that statement, according to

police reports,

Delgado acknowledged that

he had called someone

cocaine

up the

in order

called Special
this admission,

to set

Agent Mersky to

who had the

transaction, and

had then

arrange a meeting.

Despite

Delgado subsequently pled not

guilty to the

indictment and went to trial.

Delgado now

contends that the district

consider his post-arrest statement

offense level

under section

and refused to reduce his

3E1.1 solely as

invoking his constitutional

court failed to

punishment for

right to a trial.

The district

court addressed the statement

made by Delgado, but concluded

in

not

substance

that

responsibility.
Delgado played
own role and

it

was

Indeed, while
some role in

full

the statement

the offense, it

asserted that some

acceptance

of

admitted that
downplayed his

unnamed individual was

the

-16-16-

true source of the

only

for

drugs.

clear error,

United States v.
______________
1993); U.S.S.G.

and

Donovan,
_______

The court's decision

no

such

996 F.2d

is reviewed

error occurred
1343,

1346 (1st

here.
Cir.

3E1.1, application note 5.

At sentencing,

the district

court said that

Delgado's

failure to plead guilty was an important factor in the denial

of credit.

This

is consistent

with the guidelines,

which

provide

that

automatically
such

"[c]onviction
preclude a

reduction" but

intended to apply to

by

trial

defendant
ordinarily

does

from consideration
the

adjustment "is

a defendant who puts the

not
for
not

government to

its burden of proof at trial by denying the essential factual

elements of
and expresses

guilt, is convicted, and only

remorse."

U.S.S.G.

then admits guilt

3E1.1, application note

2.3
Obviously, the guideline, consistent

with pre-guideline

practice, means that a defendant who declines to plead guilty

reduces the chance of
burden on the

a lightened sentence.

exercise of

a constitutional

But

"not every

right, and

not

____________________
3There are exceptions; the
guidelines specifically
mention one who "litigates to preserve issues that do not
relate to factual guilt . . . ."
Id.
Delgado argues on
___
appeal that he failed to plead guilty to avoid being
immunized and forced to testify against his brother, Lazaro
Delgado, on behalf of the government.
Since neither this
argument nor any evidence in support of it were ever
presented to the district court, we do not consider the
claim.
United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
_____________
_____
1991).
-17-17-

every pressure or
invalid."

encouragement to

waive such

Corbitt v. New Jersey, 439 U.S.

_______
___________

a right,

is

212, 218 (1978)

(possibility of a lesser sentence through a plea bargain does

not unconstitutionally burden the right to stand trial).

The

guidelines "merely codify a tradition of leniency [for guilty

pleas] and are not an impermissible burden on the exercise of
constitutional

rights."

United States
_____________

v. Uribe,
_____

891 F.2d

396, 400 (1st Cir. 1989), cert. denied, 495 U.S. 951 (1990).
____________
Delgado

also

consideration,
of a prior

objects

to

district

court's

in calculating his criminal history category,

Connecticut conviction for

cocaine with intent to distribute.

in the

the

present case,

unlawfully possessing

At his sentencing hearing

Delgado sought to

attack collaterally

the prior state conviction, asserting that his guilty plea in

that case was constitutionally

invalid.

The district court,

relying upon our decision in United States v. Paleo, 967 F.2d

_____________
_____
7

(1st Cir.

merits

but

1992),

considered Delgado's

determined

that

the

arguments on

guilty

plea

the

"passed

constitutional muster."
After
by

Delgado's sentencing, Paleo

_____

United States v. Isaacs,

_____________
______

1994), which

was greatly narrowed

14 F.3d 106,

held that the sentencing

108-110 (1st Cir.

guidelines provide no

independent

authority

convictions
history

used

in

category.

for

collateral

calculating
Although

review

of

defendant's

Isaacs
______

prior

criminal

preserved

certain

-18-18-

exceptions

based

upon

the

Constitution

guidelines, the Supreme Court

United States, 114 S. Ct.
_____________
requires
enhance

defendant's

defendant alleges

than

the

subsequently held in Custis v.

______

1732 (1994), that the Constitution

collateral review
a

rather

of

a prior

federal

a complete
________

conviction used

sentence

only

denial of his

where

to
the

Sixth Amendment

right to counsel in the prior proceeding.

Although
Armed

Career

guidelines
same

Custis considered collateral

______
Criminal

themselves,

in each

context.

Act

rather

than

the constitutional
______________
Like Delgado

attack under the

the

sentencing

question

in the

is the

present case,

Custis alleged that one of his prior convictions was procured

pursuant

to

intelligent as
(1969).
that

The

"when

guilty

plea

that

required by Boykin
______
Supreme Court

a guilty

finality served

by the

special force.'"

114

was

not

v. Alabama, 395
_______

rejected this

plea is

at

S. Ct. at 1738 (quoting

not

of Delgado's challenge

U.S. 238

concern with

limitation on collateral

780, 784 (1979)).

and

argument, noting

issue, `the

v. Timmreck, 441 U.S.

________
reach the merits

knowing

attack has

United States
_____________

Given Custis, we do
______
to his earlier

conviction.
B.

Andino

We

turn now

to the

sentencing claims

of Andino.

The

district court began with a base offense level of 36, finding

that Andino was

responsible for 745.1 grams of cocaine base.

-19-19-

U.S.S.G.
the ground

2D1.1(c).
that

The court then deducted two

Andino

conspiracy, U.S.S.G.

was

3B1.2(b).

minor

participant

Given a

levels on
in

the

criminal history

category of I, the guideline range was 151 to 188 months, and

the

district court imposed a sentence of 151 months.

Andino

now asserts that the court erred in several respects, firstly

by attributing to him 506 grams of cocaine base sold by other
defendants to Mersky on May 30, 1991, when Andino was neither
present nor involved in the transaction.
Individuals convicted of membership in a drug conspiracy
are held responsible at sentencing not only for "drugs [they]
personally handled or anticipated handling," but also, "under
the relevant conduct rubric, for drugs involved in additional
acts

that were

committed in

reasonably

[them] and

furtherance of the conspiracy."

v. Sepulveda,
_________

15 F.3d

usual case, what is

defendant's

foreseeable by

1161, 1197 (1st

United States
_____________

Cir. 1993).

foreseeable depends on the scope

agreement

with the

other

United States v. Garcia, 954

______________
______

16 (1st Cir.

Accordingly, the district

was

to

reasonably

determine

whether

foreseeable

agreement with his

the

based

May

upon

co-conspirators.

In the
of the

participants in

criminal enterprise.
1992).

were

30

F.2d 12,

court's task

transaction

the scope
Our review

the

of

was

Andino's

is only for

clear error. United States v. De la Cruz, 996 F.2d 1307, 1314

_____________
__________
(1st Cir.), cert. denied, 114 S. Ct. 356 (1993).
____________

-20-20-

The record leaves little

question that the May

30 sale

was the "natural progression of the earlier series of sales,"

Garcia, 954 F.2d at 16, and thus within the scope of Andino's
______
agreement with his
evidence
also

co-conspirators.

did not mention Andino

no evidence

conspiracy.

that

True,

the government's

after May 16,

he affirmatively

but there is

withdrew from

the

Nor is it conclusive that the May 30 transaction

was larger than earlier

transactions.

Quinones told Special Agent

In fact, co-defendant

Mersky that the conspirators had

other customers who bought in larger quantities than she did.

Next, the district
participant

in the

base offense
3B1.2(b).

court found that Andino was

conspiracy and

level by

In so doing,

two

accordingly

levels, pursuant

a minor

reduced his

to U.S.S.G.

the court rejected Andino's argument

that he was entitled to an even larger reduction as a minimal

participant.

See U.S.S.G.
___

3B1.2(a).

Andino now

renews

this argument on appeal, stressing his unfamiliarity with the

English

language

and his

transaction on May 30, 1991.

absence

at

the group's

largest

The

guidelines

reduction should
application

note

be "used

note

2, and

showing his entitlement

Figueroa,
________
113 S.

that

the

the

defendant has

to the reduction.

(1993).

participant"

infrequently," U.S.S.G.

976 F.2d 1446, 1461 (1st

Ct. 1346

"minimal

3B1.2,

the

burden of

United States v.
_____________

Cir. 1992) cert. denied,

____________

Here, Andino

was involved

in at

-21-21-

least

four cocaine

transactions and

performed a

number of

different functions, including guarding the drugs, conducting

counter-surveillance, and delivering
Agent Mersky.
(minimal

Compare U.S.S.G.
_______

participant "played

offload part

of

single

cocaine base to Special

3B1.2,

no other

application note 2
role .

marijuana shipment,"

courier in "a single smuggling transaction").

district

court's

finding

. .

that

Andino's role

or

than to
was

We sustain the
was

"minor"

rather than something less.

Last,

the

guidelines distinguish

dramatically between

cocaine and cocaine

the

latter as

base (or "crack"), treating one

the equivalent

Andino argues that the

distinguish
cocaine.
base

clearly

He also

of 100

grams of

gram of

the former.

government's trial evidence failed to

between

cocaine

base

and

claims that the jury's finding

rests upon "untrustworthy

ordinary
of cocaine

evidence and faulty although

well intended instruction[s]" by the court.

Whether the substance distributed was cocaine or cocaine
base

was a matter to be determined

sentencing, not the

545, 551 n.6
(1990).
that

jury. United States v. Barnes,

_____________
______

(1st Cir.

Under 21 U.S.C.

1989), cert. denied,

____________

F.2d at 551

cocaine as defined
n.6; see 21
___

a substance
in schedule

U.S.C.

-22-22-

812,

890 F.2d

494 U.S.

841(a), the jury need

the defendant distributed

mixture of

by the district judge at

1019

only find

containing some
II. Barnes,
______

841(a).

On

890

appeal

from the sentence, we

sentencing

need only review the

determination

that

the

district court's

substance

involved was

cocaine base. Barnes, 890 F.2d at 551 n.6.

______
Andino's argument is directed
DEA

chemist

differences

Florence
between

Although Wong did

her

Wong,

to the trial testimony of

who

ordinary

cocaine

misspeak at one

overall testimony was

testified
and

about

cocaine

point in the

not confusing or

the
base.

transcript,

misleading:

it

was that ordinary cocaine (cocaine hydrochloride) and cocaine

base

are distinct

commonly goes by
tested samples
defendants;

the drug,

the street
from each

and that

Corroborated

by

sample

of

had

involving the

contained cocaine

statements

base.

Andino's

tests conducted by

amply supports the

the latter

that she

of the transactions

each

by field

and that

name of "crack";

recorded

defendants, and
testimony

forms of

co-

Mersky, Wong's

district court's

finding that

the defendants distributed cocaine base.

C.

Martinez

In sentencing Martinez, the

base offense level of
was accountable for

district court began with a

36 based on its finding

506 grams

granted

four-level

minimal

participant in the

that Martinez

of cocaine base.

reduction

(because

The

Martinez

conspiracy, U.S.S.G.

court
was

3B1.2(a))

and added two levels (because Martinez had obstructed justice

by

recklessly

endangering others

-23-

in

fleeing from

police,

-23-

U.S.S.G.
his

3C1.2).

Martinez's total offense level of 34, and

criminal history

category

of II,

yielded a

range of 168 to 210 months' imprisonment.

prior Connecticut drug conviction,
mandatory

minimum

sentence

841(b)(1)(A); U.S.S.G.

of

guideline

But because of his

Martinez was subject to a

240

months,

21

5G1.1(b), which the

U.S.C.

district judge

imposed.
On appeal, Martinez makes three claims of error.
although he

was present

at the

May

Martinez complains on appeal that he

that there

would

be 506

grams

Martinez did not raise this

review

is

only for

30, 1991

transaction,

could not have foreseen

of cocaine

argument below.

plain error,

First,

Fed.

base

involved.

Accordingly our

R. Crim.

P. 52(b);

United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993),

______________
___________
a difficult

assertion here

since foreseeability is

a fact-

based inquiry.
We

have

already

sufficient

to establish

conspiracy

who

determined

joined in

that

that Martinez
its general

the

evidence

was

was a member

of the

objectives.

It was

entirely

reasonable

to

infer

that Martinez

substantial quantity of drugs were to

we

held in

transport

De la Cruz,
___________

"[a]

for distribution

that

be sold on May 30.

defendant who

a large

knew

conspires

quantity of

a
As
to

drugs, but

happens not to know the precise amount, pretty much takes his
chances

that

the amount

actually

involved

will be

quite

-24-24-

large."

996 F.2d at 1314.

Second,

Martinez

claims

that

there

is

an

unfair

disparity between his sentence and those meted out to his codefendants.
"[t]he

We have held that at least in the ordinary case,

guidelines do

not

consider related cases or

require the

sentencing court

to justify a sentence in

the punishment meted out to co-defendants."

Font-Ramirez, 944 F.2d 42, 50 (1st Cir.
____________
112

S. Ct. 954 (1992).

sentence

was

wholly

In this
determined

to

terms of

United States v.
_____________

1991), cert. denied,

____________

case, moreover, Martinez's

by

mandatory

minimum

prescribed by statute.
Martinez's
collection of

final

claim

the

841(b)(1)(A).
vague

does

guidelines

are

and

the validity of

heading "Sentencing

Martinez

sentencing

is

challenges to

guidelines under
Draconian."

See 21 U.S.C.
___

not

the sentencing

is

Impermissibly

explain in

inflexible

or

perfunctory

what
what

way

the

mitigating

circumstances they have failed

to reflect in this case.

any event, Martinez's sentence

was determined by a statutory

minimum sentence for

and

any

alleged

defendants in Martinez's
inflexibility

in

the

In

circumstances
guidelines

is

irrelevant.
Martinez's
provides

a right

resolved by
That

further
to

argument--that

"punishment that

Harmelin v. Michigan,
________
________

the
fits the

111 S.

Constitution
crime"--is

Ct. 2680

(1991).

decision upheld, against a proportionality challenge, a

-25-25-

state regime

imposing a

mandatory sentence of

life without

parole for

possessing more

also United States

____ _____________

than 650 grams

v. Lowden,
______

955 F.2d 128,

of cocaine.

See
___

131 (1st

Cir.

1992) (upholding,

under Harmelin, a sentence

________

of seven years

for

of

Conspiracy

distribution

distribute

a large

7.7

grams of

quantity

LSD).

of cocaine

base is

a serious

crime, the more so when committed by a prior offender.

Harmelin,
________

we

cannot

say

unconstitutionally excessive.

that

Martinez's

to

sentence

Given
was

-26-26-

D.

Quinones

In sentencing Quinones, the

base offense
accountable

level of

district court began with a

36, based

on a

finding that

for 896.2 grams of cocaine base.

he was

The court then

added three levels on account of Quinones' managerial role in

the conspiracy.
level of
of IV,
court

U.S.S.G.

3B1.1(b).

39, along with Quinones'

The

resulting offense

criminal history category

yielded a guideline range of 360 months to life.

sentenced

Quinones

at

Quinones now challenges the

his role

the

bottom

of

that

The

range.

district court's decisions as to

in the offense and the amount of drugs for which he

should be held accountable.

Section 3B1.1(b)
the

defendant

was

of the guidelines provides

a

manager or

organizer or leader) and

or more

participants

[the base offense

dispute that

supervisor

that "[i]f

(but

not

an

the criminal activity involved five

or was

level] by

otherwise extensive,
3 levels."

the conspiracy in

increase

Quinones does

this case involved

not

at least

five participants; he argues, however, that he did not play a

managerial role.
of

The government had the burden at sentencing

proving by a preponderance of the evidence that an upward

adjustment was
707,

717

(1993).
foot

warranted.

(1st Cir.

United States v.
_____________

Ortiz, 966 F.2d

_____

1992), cert. denied,

_____________

Despite Quinones'

113 S.

assertion that he

soldier" like Martinez and

Ct. 1005

was merely "a

Andino, we think that there

-27-27-

was

sufficient

finding.

evidence

Special Agent

acknowledged
Quinones

ringleader

to her

sustain the

district

Mersky testified that

of

the

as his "partner."

court found that Quinones

over

to

Delgado, the

conspiracy,
Moreover,

introduced
the district

had exercised supervisory

Andino at the abortive transaction on May 3.

action

in renegotiating the price

successful

May 6

transaction

of the drugs

also suggests

court's

control
Quinones'

at the more

a position

of

authority.
Quinones rightly

points out

that one can

imagine more

than

one explanation for all

of these events,

but we think

that the view taken by the district court is not implausible.

United States v. Savoie, 985
______________
______

F.2d 612, 616

(1st Cir. 1993)

(sentencing court's choice between two plausible views of the

record cannot
said

that

be clearly erroneous).

"[m]anagerial

status

Additionally, we have

may

attach

if

there

is

evidence that a defendant, in committing the crime, exercised

control over, or was otherwise responsible for overseeing the
activities

of, at

least

one

other

person."

imposition

of the

sentence enhancement

Id.
___

here was

The

not clear

error.
Like

Andino, Quinones

was not present

at the

May 30,

1991 transaction and thus claims that he should not have been
held
in

accountable for the 506 grams

that

transaction.

As we

of cocaine base involved

have

noted above,

there was

-28-28-

considerable
prominent

evidence

role in

at

trial

the conspiracy,

that

Quinones

making it

played

reasonable to

infer that Quinones was well-acquainted with the scope of the

group's activities

and plans.

he

from

had

withdrawn

Accordingly,

we uphold

that Quinones was

Quinones does

the conspiracy
the

not argue that

prior

district court's

to

May

30.

determination

accountable for the full amount of cocaine

base distributed over the life of the conspiracy.

Appellants' convictions and sentences are affirmed.
________

-29-29-