USCA1 Opinion

April 26, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2067
UNITED STATES OF AMERICA,
Appellee,
v.
PHILIP PLOURDE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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Tina Schneider, by Appointment of the Court, for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, w

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whom Jay P. McCloskey, United States Attorney, and Jonathan
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Chapman, Assistant United States Attorney, were on brief for appell
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*Of the District of Rhode Island, sitting by designation.

COFFIN, Senior Circuit Judge.

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conspiracy

to

possession

with intent to distribute heroin,

U.S.C.

841(a)(1)

appeals
evidence
that

possess

the

on

two

and

grounds:

of conspiracy
district court

underestimating
personal use.

with

Appellant was

intent to

distribute

convicted of
heroin

and

in violation of 21

(b)(1)(c) and

21

U.S.C.

first, that

there

was

846.

He

insufficient

to support

his conviction;

and second,

erred in

calculating his

sentence by

the quantity

of

heroin appellant

had for

his

We conclude that neither claim succeeds.

Sufficiency

of the evidence.

We shall, of course, take the

____________________________
evidence and

reasonable inferences

favorable to the verdict.

1300 (1st Cir. 1993).

therefrom in the

light most

United States v. Moran, 984 F.2d 1299,

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_____

And we shall, without narrating the entire

series of events leading to this prosecution,

allude to evidence

only insofar as the sufficiency issue requires.

Appellant,

who

bought

heroin from

supplier,

of

in Maine, argues that the evidence proves only that he

supplier

in

knew that

heroin at the

larger

who

discussed distribution

from

the

customarily

time of purchase, had

drug; the supplier never

and no drug

He makes the following points:

quantities

appellant,

number

customers

bought

to

Massachusetts

others

sold

Figueroa,

Lawrence,

was a mere customer of Figueroa.

and

Wilfredo

supplier;

the

consumed

some

a serious addiction to

requested appellant to sell for

with him or

extended any credit

distribution paraphernalia (such

the

him or

to him;

as scales or

drug

ledgers) were found that could be attributed to appellant.

The contrary evidence, however, was cumulatively impressive.

This

included:

the

continuity

and

duration

of

appellant's

dealings with Figueroa (at least five trips and fifty bags a week
for ten

weeks); appellant's

actual knowledge

that some of

the

heroin he bought from Figueroa was supplied by Soto, and inferred

knowledge of a third

source of the heroin bought

from Figueroa;

sales on a fairly steady basis to several identified customers in

Maine (Babbitt, Poland, Kierstead), as well as some customers not

identified but
in

which

whose existence could be

appellant

revealed

to

inferred; conversations

Figueroa

the

prices

he was

charging Maine buyers, apologized to Soto for "the people here in

Maine" who preferred another product to his, and in which he told

of future plans to sell heroin in Maine; the quantities purchased

by appellant, which were significantly in excess

of any estimate

of

the fact

appellant's own

although

appellant was

compensation at
bedroom

consumption;

and, finally,

without income

the time, some

when he was arrested.

and living

$500 in

cash was

This was

on workman's
found in

his

sufficient evidence to

support both a jury determination that appellant had joined

others

that,

with

in an agreement to distribute heroin and that he intended

to commit the substantive offense.

Calculation of drug quantity and base offense level.
______________________________________________________
determining

appellant's

sentence,

the

judge

accepted

In

the

conservative estimates of the total quantities of heroin involved

set

forth in

arrived at

the

Presentence Investigation

a total figure of

175.4 grams.
-3-

Report (PSR),
Based

and

on an average

consumption of 25 bags per week, and applying appropriate weights

for

the different

appellant's total
from

time periods

involved, the

judge calculated

consumption at 60.25 grams.

Subtracting this

175.4 still left a net quantity of slightly over 115 grams.

Accordingly, the
appellant's
quantity

personal

would be

regardless

of

appellant's
relevant

judge concluded that, even

heroin

still

whether

personal

consumption,

be
or

in excess
not

heroin

drug quantity,

the

of

the

relevant

100 grams.

district

consumption

his base

taking into account

in

judge

Thus,

excluded

determining

offense level

drug

the

under U.S.S.G.

2D1.1(10) would be 26.

Appellant now claims that the evidence was that
an average of five
Cumulating these
arrives

at a

to six bags a day,

quantities at

personal use

deducted from the total

he consumed

or 35 to 42 bags

a week.

appropriate weights per

bag, he

figure of

84.35 grams,

which, when

quantity, would produce a net

figure of

91.05 grams, and a base offense level of 24.

Even

if,

as

appellant

required

to exclude

personal

use in

the

suggests,

quantity

calculating his

of

the

trial

drugs he

base offense

court

were

possessed

for

level under

the

Sentencing Guidelines, see, e.g., United States v. Kipp,

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10 F.3d

1463, 1465-66 (9th

Cir. 1993), this

claim would

fail.

On

the

merits, there is sufficient evidence on the record from which the

trial judge properly could conclude that appellant's personal use

was,
100

on average, 25

bags per week, and

grams of heroin were

therefore, in excess of

involved in the

offense conduct.

And

-4-

wholly

apart from the

merits of the

claim, this issue

has not

been preserved for review.

To

begin,

consumption

appellant's

was something less than

after getting out

felt "pretty good,"
"ended
time,

and got high

that at

at

trial

certain.

but that

by the beginning

At this

once every four

to

his

8, 1991, he

of November,

he

time, he bought

one bag at a

or five days,

and then, by

three or four times every week.

the time of his

as

He testified that

of a treatment program in October

up using again."

mid-November,

testimony

arrest in August 1992,

He also testified

"maybe" he used

five bags a day.

In

addition,

fluctuating

the

amounts of

course of the conspiracy,

evidence

showed

heroin over

that

time, and

appellant bought
that

during the

he spent two separate periods

of time

in a substance abuse treatment program, in an effort to treat his

heroin

addiction.

personal
amount

This

evidence

consumption likely
of heroin

rehabilitation.

could have

available
Finally,

suggests

to

him,

that

appellant's

varied relative
and

the PSR stated

to

his

to the

efforts

that "[p]rior

at

to his

arrest, the defendant reports that his habit involved using up to

20 bags of heroin a

week."

district judge fairly could

per week

Based on

all of this evidence,

conclude that an average of

was representative

of appellant's

the

25 bags

average consumption

over time.
In any event, appellant has waived this claim.
objection to the PSR's estimate that he

He raised no

had "up to" a 20 bag per

-5-

week habit.
appellant

Even
made no

more

important, at

suggestion that

calculations as to appellant's
that the judge
that at

himself had

oral argument

on 25 bags a

the judge

hearing,

had erred

in his

personal consumption -- a subject

introduced.

We

note, in

before us, appellant's

that anyone with a habit requiring

by

the sentencing

addition,

counsel contended

five bags a day could not get

week because he could not

"take off two days a

week."

But

at the

sentencing

appellant, in an effort to
argued
habit

that when
which

proceeding, trial

for

minimize the total quantity involved,

appellant "couldn't

his cross-examination

stayed home and suffered."

counsel

in

make the
trial

five bag
showed he

a day

simply

The judge was obviously committing no

error, clear or otherwise, in harboring the same assumption.

Finally, at
judge asked

the conclusion

for any corrections.

of the sentencing
Counsel for

hearing, the

both prosecution

and defense expressed themselves as satisfied.

We

conclude by observing that no injustice has been done in

this case.

The

total quantities
justified

by

court, by

accepting conservative

involved, which were

some

of the

testimony,

appellant.
Affirmed.
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estimates of

substantially below those

has

been

most fair

to