

                    [NOT FOR PUBLICATION]
                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 95-2283

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        JUANA ORTEGA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Francis J. Boyle, U.S. District Judge]                                                                

                                         

                            Before

               Stahl and Lynch, Circuit Judges,                                                          
                and O'Toole,* District Judge.                                                        
                                         

     Richard K. Corley for appellant.                                  
     Zechariah Chafee, Assistant United States Attorney, with                                 
whom  Sheldon  Whitehouse,  United  States  Attorney, was  on                                     
brief, for appellee.

                                         

                         May 20, 1997
                                         

*Of the District of Massachusetts, sitting by designation.

          Per  Curiam.     Juana  Ortega  appeals  both   her                      Per  Curiam.                                      

conviction for conspiracy to distribute cocaine base ("crack"

cocaine) and her  sentence.   She claims that  her trial  was

flawed  in that the court  gave an improper  Allen charge and                                                              

that  there   was  insufficient   evidence  to  support   her

conviction.   She  also  argues error  in  the trial  court's

denial of her motion for a new trial.  Finally, she  disputes

the court's determination of her sentence.  We affirm.

                              I.

          Ortega  was charged with distributing crack cocaine

in violation  of 21 U.S.C.   841(a)(1) and 18 U.S.C.   2, and

conspiracy  to distribute  crack cocaine  in violation  of 21

U.S.C.     841(a)(1),  846.    Her  arrest resulted  from  an

ongoing   undercover   operation   conducted   by   the  Drug

Enforcement Agency ("DEA").

          Between  December  18  and  19,  1994,  Hector  San

Martin, a DEA informant,  made arrangements to purchase crack

from Julio Valdez at a Providence, Rhode Island, Burger King.

Although Valdez himself had made a  previous drug delivery to

San  Martin several days  earlier, Valdez told  San Martin by

phone  that this  time the  crack would  be delivered  in the

Burger King  parking lot on  December 19  by a boy,  girl, or

woman.  The Burger King was located about a quarter mile from

the  apartment  Valdez  was  using  at  37  Labin  Street  in

Providence.    

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          On the day of  the deal, Valdez told San  Martin by

phone that  a lady  in white  would deliver the  drugs.   The

"lady in white" turned out to be Ortega.

          That afternoon, DEA agents  conducting surveillance

observed  Valdez  and Ortega  emerge  from  the Labin  Street

apartment and walk together to the Burger King.  After Valdez

pointed  to San Martin's car, Ortega got into the front seat.

Valdez remained nearby to keep a lookout. 

          According  to San  Martin's testimony,  when Ortega

entered  the car, he asked Ortega if she had "the stuff," and

she replied "yes."   She then pulled out a  clear plastic bag

containing cocaine base from her inside jacket pocket.  After

San  Martin explained  that he wanted  to check  the quality,

Ortega answered "okay" and handed the bag to him.  

          Leaving  the crack bag on the floor of the car, San

Martin told Ortega  that the money was  in the trunk  and got

out.  At the sight of the raised trunk door -- the signal for

arrest  -- DEA agents moved  in to arrest  Valdez and Ortega.

After  a  few seconds,  Ortega got  out  of the  car  and ran

screaming;  she was caught and arrested by one of the agents.

Valdez, who had also tried to run, was caught and arrested as

well. 

          In  her statement to  police, Ortega  complained of

severe neck pain due to a thyroid condition and said that she

had been at 37 Labin Street, her girlfriend's apartment, only

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to rest.   She explained her  walk to the  Burger King as  an

attempt to ease the pain.  As for the drug delivery, she said

only that  at some point  she was asked  to do a  "favor" and

that  because  of her  physical  pain, she  was  not thinking

clearly.

          On the second day of jury deliberations at Ortega's

trial,  the jury  informed the  court that  it had  reached a

verdict  on all counts  but was deadlocked  on the conspiracy

count.     The  court  then  issued   a  supplemental  charge

instructing the jury to  go back and try to  reach a verdict.

Thirty minutes later,  the jury returned a guilty  verdict on

the conspiracy charge.

          At sentencing,  the court  found that Ortega  had a

base offense level  of 32 based on the quantity  of crack she

was delivering  (84.3 grams) and a  criminal history category

of  I.  The court then granted a two-level reduction pursuant

to U.S.S.G.   5C1.2 and  a four-level reduction for  Ortega's

minimal role in  the offense.   Thus, the  offense level  was

reduced  from 32  to 26,  and defendant  was sentenced  to 63

months in prison and 5 years of supervised release.

                             II.

          Ortega's   motion   for  acquittal   based   on  an

insufficient evidence  argument  was denied  by the  district

court.  Viewing the record in the light most favorable to the

government,  a rational jury could  have found guilt beyond a

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reasonable doubt.   See United  States v.  Dockray, 943  F.2d                                                              

152, 157 (1st Cir.  1991).  We therefore affirm  the district

court's  denial of Ortega's Rule  29(c) motion.   See Fed. R.                                                                 

Crim. P. 29(c).

          To prove  conspiracy, the government must show that

the  defendant had the intent to agree and that the defendant

had  an  intent  to  distribute cocaine  --  the  substantive

offense.  See  United States  v. DeLutis, 722  F.2d 902,  905                                                    

(1st Cir. 1983).  Viewing the evidence and drawing inferences

therefrom, a rational jury  member could certainly have found

guilt  beyond  a reasonable  doubt.    See  United States  v.                                                                     

Montas, 41 F.3d 775,  778 (1st Cir. 1994), cert.  denied, 115                                                                    

S.  Ct.  1986  (1995).     Such  evidence  included  Valdez's

statement  to San  Martin that  a woman  wearing white  would

deliver the  drugs, Ortega's walk  with Valdez to  the Burger

King, Ortega's entrance into a stranger's car, and her prompt

delivery of a bag containing  crack previously hidden on  her

body, when asked for "the stuff."   

          This  case is  unlike  those Ortega  cites for  the

proposition that  a single  drug transaction  is insufficient

evidence of conspiracy.  See, e.g., Delutis, 722 F.2d at 906;                                                       

United States v. Izzi,  613 F.2d 1205, 1210 (1st  Cir. 1980).                                 

There is no such per se rule in any event; we look at all the

facts in  the case.  DeLutis merely held that the single sale                                        

there  was insufficient  to tie  the defendant  buyer  to the

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sellers' drug distribution  conspiracies.   See DeLutis,  722                                                                   

F.2d at  905-06;  see also United States v. Acevedo, 842 F.2d                                                               

502,  505-06 (1st  Cir.  1988) (rejecting  the argument  that

evidence of conspiracy  between sellers must  be insufficient

because it involved only a single  sale).  A single sale  can

establish  a common  purpose on  the part  of the  sellers --

here, Ortega  and Valdez.   See Acevedo,  842 F.2d  at 506.                                                     

Moreover, in  DeLutis, there was no  direct or circumstantial                                 

evidence that defendant intended  to agree to become involved

in a larger supplier/distributor relationship, and there  was

no basis  to infer based on  the single act in  question.  In

Izzi,  there  was  no   evidence  of  agreement  linking  the                

defendant to the broader  conspiracy during the dates charged

in the indictment.  Here, there  were only two members of the

conspiracy, and  it is not  difficult to infer  knowledge and

agreement.   

          Other  cases  Ortega  cites  for  support  are also

distinguishable.   See,  e.g., United  States v.  Ocampo, 964                                                                    

F.2d 80 (1st Cir. 1992); United States v. Mehtala, 578 F.2d 6                                                             

(1st Cir. 1978).  The evidence here shows that Ortega's level

of  involvement  was  greater  than  mere  knowledge  of  the

substantive  crime and  thus suffices  to support  the jury's

finding that  there was an  intent to agree and  an intent to

distribute.   See United States v. Brandon, 17 F.3d 409, 439-                                                      

40  (1st Cir. 1994) (explaining  that Ocampo and Mehtala held                                                                    

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only that defendant's mere presence at scene of crime or mere

association  with  criminals  was  insufficient   to  support

conspiracy conviction). 

          Ortega  also challenges the supplemental charge the

judge  gave to  the  jury  when  it  announced  that  it  was

deadlocked  on  the  conspiracy   count.    The  trial  court

committed  no error.  In fact, the judge recited verbatim the

Allen-type charge recommended by  this court in United States                                                                         

v. Angiulo,  485 F.2d 37, 40  n.3 (1st Cir. 1973).   That the                      

jury  returned  a verdict  thirty  minutes later  is  not, as

Ortega asserts, evidence of "coercion." 

          Ortega's appeal of the  trial court's denial of her

motion  for new  trial fares no  better.  We  review only for

abuse of  discretion or  misapplication of  law.   See United                                                                         

States v. Rodriguez,  738 F.2d 13,  17 (1st Cir. 1984).   The                               

district court need only  order a new trial if  a miscarriage

of justice  would  otherwise result.   See  United States  v.                                                                     

Indelicato,  611  F.2d  376, 387  (1st  Cir.  1979).   Ortega                      

presents  no  claim  that  even  suggests  a  miscarriage  of

justice.  Moreover, she does not recount any prejudicial acts

that  resulted in an unfair trial, see Payton v. Abbott Labs,                                                                        

780  F.2d 147, 152-53 (1st  Cir. 1985), nor  does she contend

that the verdict was seriously  erroneous, see Borras v. Sea-                                                                         

Land Serv., Inc., 586 F.2d 881,  887 (1st Cir. 1978).  It was                            

well within the court's discretion to deny the motion. 

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          Lastly,  Ortega  challenges  her  sentence  on  two

equally  unsuccessful grounds, arguing  first that  the judge

should have  used the base  offense level for  powder cocaine

instead of  crack cocaine and, second, that  the court should

have  allowed a  downward departure  for  diminished capacity

under U.S.S.G.   5K2.13.   There is absolutely no support for

Ortega's first  claim: the court, pursuant  to the Sentencing

Guidelines, calculated  the base  offense level based  on the

drug  involved in  the  crime.    See  U.S.S.G.     2D1.1(c).                                                 

Evidence at trial showed that the drug was crack cocaine. 

          As  for  Ortega's  second  claim,  we  are  without

jurisdiction  to review  a discretionary  refusal  to depart.

See United States  v. Morrison,  46 F.3d 127,  130 (1st  Cir.                                          

1995);  see also United States v. Saldana, 109 F.3d 100, 102-                                                     

03  (1st  Cir.  1997).   While  the  district  court did  not

explicitly  address  Ortega's   request  for  departure   for

diminished capacity, it is clear from the total circumstances

of  the case  as well  as the  court's remarks  at sentencing

that, rather  than believing  it lacked authority  to depart,

the court simply declined to do so.  See Morrison, 46 F.3d at                                                             

130.  Ortega has  advanced no colorable claim of  legal error

that would lead us to exercise jurisdiction here.

          Affirmed.                              

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