
USCA1 Opinion

	




          July 27, 1995                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2109                                    UNITED STATES,                                      Appellee,                                          v.                                 STEPHEN D. CARDELLI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Robert M. Napolitano on brief for appellant.            ____________________            Jay P.  McCloskey, United  States Attorney,  Jonathan R.  Chapman,            _________________                            ____________________        Assistant  United  States Attorney,  and  F.  Mark Terison,  Assistant                                                  ________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Defendant Stephen Cardelli appeals the                      __________            sentence imposed upon his convictions for federal tax evasion            and conspiring to possess with intent to distribute more than            five kilograms of cocaine.  We affirm.                                          I.                   In  September  1992,  a six-count  indictment  charged            Cardelli  with  two drug  offenses  and four  counts  of tax-            evasion. Cardelli subsequently entered into  a plea agreement            under which he agreed to  plead guilty to counts one and  six            of  the  indictment.   These  respectively  charged him  with            conspiring to  possess with  intent to distribute  cocaine in            violation of 21 U.S.C.   841(a)(1), 841(b)(1)(A), and evasion            of  federal income  taxes in violation  of 26  U.S.C.  7201.1            Cardelli  entered  his guilty  plea on  April  7, 1993.   His            sentencing hearing was held on September 26, 1994.                 At  the sentencing hearing,  Cardelli contested the drug            quantity used to calculate his sentence under the United            States Sentencing  Guidelines (Nov.  1993).   While  Cardelli            could  not recall the precise amount of cocaine that he sold,            he  estimated it to  be an amount  below 15  kilograms.2  The            government  then called  DEA Agent  John Bryfonski,  the case                                            ____________________            1.  The government agreed to  dismiss the remaining counts of            the indictment.  Cardelli  also agreed to cooperate  with the            government's investigative efforts.            2.  The  Drug Quantity  Table of  the Guidelines,   2D1.1(c),            assigned  a base offense level of 34 to offenses involving at            least 15 but less than 50 kilograms of cocaine.             agent on the investigation that led to Cardelli's indictment.            Consistent with  the  information in  the presentence  report            (PSR), Bryfonski testified that between  May, 1988 and May or            June,  1989,  Cardelli  and  four others  participated  in  a            cocaine  distribution  ring  that operated  in  the Portland,            Lewiston,  and  Auburn  areas  of Maine.3    Agent  Bryfonski            testified that Dan  and Randy Hicks  and Pizzi each  provided            consistent information to the government concerning the birth            and subsequent  operation of the conspiracy.   Thus, sometime            in  May,   1988,  the  five  conspirators   met  at  Giobbi's            restaurant in Portland and  agreed that Cardelli would supply            cocaine to Dan and Randy Hicks who, in turn, would distribute            it to Pizzi for retail sales.                     Dan  Hicks estimated  that  Cardelli  supplied him  with            approximately 25-30 kilograms of cocaine during the course of            the  conspiracy.   Randy  Hicks,  who  often transported  the            cocaine from  Portland to Lewiston/Auburn,  estimated that  a            total of  20-25 kilograms was involved.  Pizzi indicated that            he received   approximately 35-40 kilograms during the course                                            ____________________            3.  The  other  individuals involved  in the  conspiracy were            of the  conspiracy.4  Bryfonski also  testified that Cardelli            Jonathan Singer,  who supplied  the cocaine to  Cardelli, Dan            and Randy Hicks, a  father and son team who  obtained cocaine            from Cardelli,  and Christopher  Pizzi, who  obtained cocaine            from the  Hickses and distributed  it to retail  customers in            the Lewiston/Auburn area.  Although Singer was never charged,            Dan and Randy Hicks and Christopher Pizzi pled guilty to drug            offenses arising from their conspiracy with Cardelli.               4.  When asked how Pizzi  knew that all of this  cocaine came            from Cardelli, Bryfonski related  that Pizzi was occasionally            present  in  Cardelli's  business  office  when  distribution            matters were discussed.                                           -3-            himself  had  indicated during  his debriefing  sessions with            government agents that he had sold more than 15 kilograms.                    Cardelli did not testify at his sentencing hearing.   He            presented   no  evidence  to   controvert  agent  Bryfonski's            testimony.   Defense  counsel  stated that  he would  like an            opportunity  to  cross-examine  the coconspirators,  implying            that their  statements, particularly that of  Dan Hicks, were            unreliable because  the  coconspirators had  all  been  given            reduced   sentences  in  return  for  implicating  Cardelli.5            Relying on agent Bryfonski's testimony and the information in            the  PSR,   the  district  judge  found   that  Cardelli  was            responsible for at least 15 kilograms of cocaine and that his            corresponding base  offense level was  34.6  While  the court            acknowledged  that  agent   Bryfonski's  description  of  the                                            ____________________            5.  We note, however, that defense counsel neither subpoenaed            these witnesses, nor requested a continuance so that he might            secure their presence.  Yet it was apparent from the PSR that            substantially more  than 15 kilograms had  been attributed to            Cardelli.               6.  The PSR attributed a total of 29.4 kilograms to Cardelli.            That  figure   was  based  on  evidence   that  Cardelli  had            distributed  a  total  of  27  kilograms  to  Dan  Hicks  for            Christopher  Pizzi  and  evidence  that  Cardelli  also   had            provided an  additional 2000  grams to one  Phillip DiStefano            for distribution to Dan  Hicks.  The PSR also  indicated that            Cardelli  provided  an  additional  396.9  grams  to  another            individual  (Phillip  Gullifer).    Absent  evidence  to  the            contrary,"[f]acts   contained   in   a   presentence   report            ordinarily  are considered  reliable evidence  for sentencing            purposes."   United States v.  Morillo, 8 F.3d  864, 872 (1st                         _____________     _______            Cir. 1993).                                         -4-            conconspirators'  drug  quantity estimates  was  hearsay, the            court found that this evidence was reliable because all three            coconspirators had  indicated that at least  15 kilograms had            been  distributed during the course of the conspiracy.7                                                         Thus, starting  with a            base offense level of  34, the court added 2 points  based on            Cardelli's leadership  role in the conspiracy  and deducted 3            points based on his acceptance of responsibility to arrive at            a  total offense  level  of 33.    Applying criminal  history            category II,  the court determined  that Cardelli's guideline            sentencing  range was 151-188 months.  The court then allowed            the  government's motion  for a  downward departure  based on            Cardelli's  substantial cooperation (see U.S.S.G.  5K1.1) and                                                 ___            accepted the  government's  sentencing recommendation.    The            court sentenced  Cardelli to  108 months' imprisonment  and 5            years  of supervised release on the conspiracy count and to a            concurrent 60 months' imprisonment  and 3 years of supervised            release  on the  tax evasion  charge.  Cardelli  appeals this            sentence.                                         II.                  Cardelli  maintains  that  the  district  court  made  a            serious mistake by  basing its drug  quantity finding on  the                                            ____________________            7.  The court specifically noted that it did not need to find            the precise number of kilograms that Cardelli had  sold since            the  court's finding  triggered  the base  offense level  for            crimes involving 15 to 50 kilograms.  See n. 2, supra.                                                     ___       _____                                         -5-            hearsay  statements  of his  coconspirators  as  described in            agent Bryfonski's  testimony.   Cardelli  implies that  these            descriptions are  nothing more than  "drug filtered memories"            that are all the more unreliable because they were not tested            by cross-examination.   Cardelli  contends that the  district            court  committed  clear  error   by  crediting  this  hearsay            evidence without  requiring the coconspirators to  testify in            court.                 We review the district court's findings on drug quantity            only for clear error.   See, e.g., United States  v. Whiting,                                    ___  ____  _____________     _______            28 F.3d 1296,  1304 (1st Cir.), cert. denied, 115  S. Ct. 328                                            _____ ______            (1994);  United  States v. Zuleta-Alvarez, 922  F.2d 33, 36-7                     ______________    ______________            (1st Cir.  1990), cert. denied, 500 U.S. 927 (1991).  We find                              _____ ______            no  error here.   It  is well  established that,  "[r]eliable                                                               [r]eliable            hearsay  can  be  used   at  sentencing."  United  States  v.                                                       ______________            Connolly,  51   F.3d  1,  5  (1st   Cir.  1995)(holding  that            ________            codefendants'  drug quantity  estimates  reported in  PSR and            investigating officer's testimony were reliable hearsay where            estimates  were  "generally  consistent").     Here,  as   in            Connolly,  the  three coconspirators  consistently attributed            ________            more  than  15  kilograms  of  cocaine  to  Cardelli.    This            consistency   was   sufficient    corroboration   that    the            coconspirators' estimates were reliable enough to support the            court's  conservative finding  that Cardelli  was responsible            for  at  least  15  kilograms.    But  for  his  own  unsworn                                         -6-            statements, Cardelli presented  no evidence to the  contrary.            The  district court  was  not required  to credit  Cardelli's            contrary  estimate,  see  Connolly, id.,  particularly  where                                 ___  ________  ___            Cardelli presented  no evidence and conceded that  he did not            recall the precise amount that he had sold.                    We also do not  find any error in the  district court's            acceptance of  the drug quantity estimates  reported by agent            Bryfonski   absent   direct    testimony   from    Cardelli's            coconspirators.   Although  the PSR  clearly  indicated  that            these  witnesses  had  knowledge  of  the  amounts  involved,            defense counsel  did not ask for  cross-examination until the            day of Cardelli's sentencing hearing.  This was far too late.            See United States v. Zuleta-Alvarez, 922 F.2d at 36  (holding            ___ _____________    ______________            district  court did  not err  in denying  request for  cross-            examination made  at sentencing  hearing).  We  have reviewed            the  record thoroughly  and are  satisfied that  the district            court's   quantity   determination   is   supported    by   a            preponderance of the evidence.  See United States v. Morillo,                                            ___ _____________    _______            8 F.3d at  871.   Accordingly, the judgment  of the  district            court is affirmed.                                  ________                                                       -7-
