
USCA1 Opinion

	




          February 8, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1709                                    UNITED STATES,                                      Appellee,                                          v.                                 PAUL J. CASTELLONE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Edward  J.  Romano with  whom  Michael  Devlin  was  on brief  for            __________________             _______________        appellant.            Stephanie S. Browne,  Assistant United States Attorney, with  whom            ___________________        Margaret E.  Curran, Assistant United  States Attorney and  Lincoln C.        ___________________                                         __________        Almond, United States Attorney, were on brief for appellee.        ______                                 ____________________                                   February 8, 1993                                 ____________________                      STAHL,  Circuit Judge.  Defendant-appellant Paul J.                              _____________            Castellone pled guilty to a two-count information in which he            was charged  with distribution of marijuana,  in violation of            21  U.S.C.    841(a)(1).  He  was sentenced  to 21  months of            imprisonment and three years of  supervised release.  In this            appeal,  Castellone challenges  his sentence  on two  grounds            related to  the district  court's calculation of  the offense            level assigned to  his conviction.   Specifically,  defendant            argues:  1) that  the court erroneously included as  relevant            conduct certain amounts of marijuana sold by a coconspirator;            and  2) that  the court  should not  have ascribed  to him  a            managerial role in the  offense.  As we find  these arguments            persuasive, and the government has candidly made us aware  of            an  apparent   mathematical  error   in  the   offense  level            calculation, we remand for resentencing.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      Because  Castellone  pled  guilty,  we  garner  the            relevant  facts from  the  probation  officer's  Pre-Sentence            Report (PSR)  and the  transcript of the  sentencing hearing.            United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).  In            _____________    ______            early   January   1992,  Detective   Michael  Purro   of  the            Providence,   Rhode  Island,   Police  Department   began  an            undercover   investigation   of   marijuana  trafficking   by            Castellone  and Roland R. Chaput.   Purro was  assisted by an                                         -2-                                          2            agent  from  the  federal  Bureau  of  Alcohol,  Tobacco  and            Firearms.                      On  January  9,  1992,  Detective  Purro,  in   his            undercover  capacity, purchased  one pound of  marijuana from            Castellone  for $2,200  ("the first  sale").   The next  day,            Purro purchased  another pound  of marijuana  from Castellone            for  the same  price ("the  second sale").   Both  sales took            place in the late afternoon at a Dunkin Donuts on East Street            in Providence.   Prior  to the  second  sale, Purro  followed            Castellone  to the  Dunkin  Donuts parking  lot and  observed            Chaput  arrive  and  enter  Castellone's  car.    Purro  then            approached  Castellone's  vehicle   and  introduced   himself            directly to Chaput, whom he believed, correctly, as it  later            turned out, to be Castellone's supplier.                      At some point between January 10 and 16, Castellone            and Purro discussed  a sale of five pounds of marijuana and a            handgun.  Castellone told  Purro that he had been  in contact            with Chaput and would be able to execute the sale.  Since law            enforcement officials  considered Chaput to be a higher-level            dealer and a more important target than Castellone, Detective            Purro decided  to exclude  Castellone from any  future deals,            and  instead  buy  directly  from Chaput.    After  obtaining            Chaput's  phone number from  a confidential  informant, Purro            contacted him and after discussion was offered five pounds of            marijuana for $1700 per pound ("the third sale").  Castellone                                         -3-                                          3            was totally unaware of  the third sale or the  direct contact            between Purro and Chaput.                      On January  16, 1992, at  approximately 6:30  p.m.,            Chaput,  Purro, and two other men, Robert Laiter and Peter M.            Leite, all arrived at the Dunkin Donuts in separate vehicles.            Chaput retrieved a handgun from Laiter's car and delivered it            to  Purro.   Chaput, Laiter  and Leite  were all  arrested as            Chaput was removing the marijuana  from the trunk of  Leite's            car.   Law enforcement agents found  five, approximately one-            pound packages of marijuana in the trunk.1                      Castellone was  not present at the  third sale, but            was later  arrested pursuant to  a warrant.   He subsequently            agreed to plead  guilty to an  information charging him  with            the first two marijuana deals.   He also agreed to assist the            government  in its  attempts  to arrest  others  in the  drug            trade.  In  return for his cooperation, the government agreed            not to charge him with  conspiring with Chaput to  distribute            marijuana.  The plea agreement also indicated that the weight            of the two sales  to which Castellone was pleading  was 908.7            grams.   Moreover, the government agreed it would not seek to            hold  Castellone responsible  at sentencing  for the  2,300.3            grams  or the firearm seized at the January 16, 1992, arrest.                                            ____________________            1.  The total weight of the five packages was  2,300.3 grams.            As  a  pound  contains  454 grams,  the  contraband  slightly            exceeded five pounds.                                         -4-                                          4            Finally, the government agreed to recommend a sentence at the            low end of the applicable guideline range.                                         II.                                         II.                                         ___                                      Sentencing                                      Sentencing                                      __________                      In  calculating  Castellone's  base  offense  level            ("BOL"), the probation officer used a total quantity  of 3209            grams  of marijuana.  This  amount included the 2,300.3 grams            Chaput  delivered to Purro at the third  sale, as well as the            908.7 grams  Castellone sold directly  to Purro at  the first            two sales.  Applying the Sentencing Guidelines' Drug Quantity            Table, U.S.S.G.   2D1.1(c), the probation officer tabulated a            BOL of 12, applicable to  quantities of marijuana between 2.5            and five  kilograms.  The BOL was increased by two levels for            Castellone's  managerial  role  in the  offense,  U.S.S.G.               3B1.1(c),  and  decreased by  two  levels  for acceptance  of            responsibility.     After  assigning  Castellone  a  criminal            history category  of I, the probation  officer concluded that            Castellone's offense level was 12, with a resulting guideline            range of 10 to 16 months.                      Prior to  sentencing,  Castellone objected  to  the            inclusion of  the 2300.3  grams of  marijuana from  the third            sale  as  relevant  conduct,  as  well  as  to  the two-level            adjustment for a managerial role in the offense.   At the May            19, 1992, sentencing hearing, the defense put Detective Purro            on  the  stand to  testify  about,  inter alia,  Castellone's                                                _____ ____                                         -5-                                          5            involvement--or  lack thereof--in  the  third sale.   At  the            close  of the hearing, the trial court expressed concern over            what  it   thought  to   be  an  inconsistency   between  the            government's plea agreement obligation not to hold Castellone            responsible for  the third sale, and  the probation officer's            statement  that in  response to  Castellone's objection,  the            government  was  prepared   to  present  evidence   regarding            Castellone's role in the third sale.   Accordingly, the trial            court gave  Castellone the  option of withdrawing  his guilty            plea.    Castellone  declined,  and  the  sentencing  hearing            reconvened   on  June  15,  1992,  whereupon  the  government            reiterated   its   position   that  defendant   was   legally            responsible only for  the 908.7 grams  of marijuana from  the            first  two  sales.     The  court,  however,  questioned  the            government's  decision  to  forego  inclusion of  the  2300.3            grams.  In response, the government cited the plea agreement,            which,  in turn, was based on its conclusion that the element            of  foreseeability of  the  third  sale,  as  it  related  to            Castellone, was "questionable."  The trial court then ordered            further testimony from  Purro, to elaborate on what,  if any,            nexus   existed   between   Purro   and   Castellone's   last            conversation and the third sale.                       Following Purro's testimony, and  defense argument,            the court found that Castellone initiated the third  sale and            that  he  took two  actions in  furtherance  of that  sale by                                         -6-                                          6            initiating the negotiations  with Purro and by  communicating            Purro's  marijuana and  handgun order  to  Chaput.   Based on            those  findings,   the  court  ruled  that   the  third  sale            constituted relevant conduct  for which Castellone  should be            held responsible.                      Next, having heard argument  regarding Castellone's            role in the  offense, the trial court found that Castellone's            negotiations  in the first  two sales and  involvement in the            third supported  an offense  level increase for  a managerial            role.  Castellone appeals these two findings.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                      At the outset, we  note that remand is in  order to            correct   an  apparent  mathematical   error  in  calculating            Castellone's offense level,  irrespective of our decision  on            the  merits  of   the  trial  court's  findings.2    A  brief            explanation follows.                      The court found that  the third sale, involving the            2300.3  grams  of marijuana  and  the  handgun, was  relevant            conduct  for  purposes  of  determining  Castellone's offense            level.    As noted,  supra, p.  3,  this amount  of marijuana                                 _____            yielded a  BOL of 12.   The firearm added two  levels, to 14.                                            ____________________            2.  Although Castellone failed to raise this  argument before            the trial  court, we do  have jurisdiction  to correct  plain            error.  United States v. Morales-Diaz, 925 F.2d 535, 539 (1st                    _____________    ____________            Cir. 1991).                                         -7-                                          7            U.S.S.G.   2D1.1(b)(1).3   The court's ruling on Castellone's            managerial  role  added  two  more levels,  resulting  in  an            adjusted offense level of 16.  U.S.S.G.   3B1.1(c).  Finally,            the court agreed that Castellone was entitled to a  two-level            reduction for  his acceptance  of responsibility, U.S.S.G.               3E1.1(a),  suggesting an  offense  level of  14, which,  when            coupled  with  a  criminal   history  category  I,  yields  a            sentencing range of 15  to 21 months. U.S.S.G.    5, Part  A,            Sentencing Table.  The court, however, after factoring in the            relevant conduct, erroneously began  with an offense level of            18, which it  reduced to 16 based on  Castellone's acceptance            of  responsibility.    Thereafter, consistent  with  the plea            agreement,  the  trial  court  sentenced  Castellone  at  the            lenient end of the 21 to 27 month range called for by offense            level  16.   While we  might assume  that the  district court            would again follow the plea agreement and sentence Castellone            to the bottom end of the corrected guideline range, our other            rulings relative  to the  instant sentence require  remand of                                            ____________________            3.  The PSR  omitted reference to  the firearm, and  thus did            not account for the two-point  upward adjustment.  The  trial            court, however, explicitly found that the gun, as part of the            third sale, was relevant conduct  attributable to Castellone.            While Castellone does not  specifically appeal the  propriety            of  the handgun increase, he  did object to  and has appealed            the  inclusion of  the  third sale.    The handgun  increase,            therefore, succeeds or fails concomitant with the third sale,            without meriting separate discussion.                                         -8-                                          8            this item  as well.4   We turn now to  the substantive issues            on appeal.            A.  Relevant Conduct--The Third Sale            A.  Relevant Conduct--The Third Sale            ____________________________________                      Pursuant to  U.S.S.G.   2D1.1(c), the  BOL for drug            trafficking offenses  depends on  the quantity of  contraband            attributable to the defendant.  For sentencing purposes, this            total  includes  the amount  to  which  the defendant  pleads            guilty, as well as any  relevant uncharged conduct.   Garcia,                                                                  ______            954 F.2d at 15  (citations omitted).  "[D]rugs not  specified            in  the count of conviction are to be included in determining            the offense  level if they  were part  of the same  course of            conduct or  part of a common  scheme or plan as  the count of            conviction."   U.S.S.G.    1B1.3, comment. (background).   In            cases  involving  drug  conspiracies,  relevant  conduct also            includes "all reasonably  foreseeable acts  and omissions  of            others  in  furtherance  of"  the  conspiracy.    U.S.S.G.               1B1.3(a)(1)(B); Garcia, 954 F.2d  at 15.  In order  to factor                            ______            the  quantities  associated with  relevant  conduct into  the            sentencing  formula,  the  government  must  establish  by  a            preponderance of the evidence  that a sufficient nexus exists            between the conduct  at issue and the  offense of conviction.            United  States v. Sklar, 920  F.2d 107, 110  (1st Cir. 1990).            ______________    _____                                            ____________________            4.  Because  of  our  decision  today,  the low  end  of  the            applicable  guideline  range  may  lead  to  a  sentence  not            involving  incarceration.   We  leave  that  decision to  the            district court.                                         -9-                                          9            We will set aside  the district court's findings  on relevant            conduct only if they are clearly erroneous.  United States v.                                                         _____________            Camuti, 950 F.2d 72, 74 (1st Cir. 1991).            ______                      As he  did below,  Castellone argues here  that the            government's  decision to "cut him out" of the third sale and            deal directly  with Chaput  without his  knowledge inoculates            him  from responsibility for the  sale.  Castellone bases his            argument  on  the following  undisputed facts.   Castellone's            relationship  with Purro was  severed after  only preliminary            conversations  relative to  the  third sale  wherein the  two            never agreed  that a sale would take place, or on a price for            such  a sale.   Furthermore,  due to  his own  profit motive,            Castellone did  not want Purro to deal  directly with Chaput,            did not know Purro was going to do so, and  did not know that            the third sale had occurred until after his arrest.                        The trial court, however, found that Castellone and            Chaput  had formed a  conspiracy to sell  marijuana, and that            Castellone initiated  the negotiation for the  third sale and            communicated Purro's third sale request to Chaput.  The court            then determined that  the third sale was both  foreseeable to            Castellone and in furtherance  of the conspiracy.  Therefore,            the trial court  concluded that the  third sale was  relevant            conduct for purposes  of sentence calculation.   Based on the            following, we disagree.                                         -10-                                          10                      In analyzing  this situation,  we find that  two of            our  recent decisions offer  direction.  In  United States v.                                                         _____________            Wood,  924  F.2d  399  (1st Cir.  1991),  the  defendant  was            ____            convicted of one narcotics sale.  At sentencing, the district            court placed  additional, uncharged  sales into the  relevant            conduct category.   We ruled  that an uncharged  sale between            defendant's wife and  a drug supplier, of which the defendant            had  no  knowledge  until  after  the  fact,   could  not  be            considered relevant conduct for  sentencing purposes.  Id. at                                                                   ___            404-05.   We  rested  our  decision  on  the  fact  that  the            defendant  "in  no  way  conspired to  facilitate  the  deal;            indeed, he had no knowledge that his wife was engaged in drug            transactions   with   anyone   other   than   himself."   Id.                                                                      ___            Subsequently,  we  upheld  a  district  court's  decision  to            include   as   relevant  conduct   drug  sales   between  the            defendant's  coconspirator and  an undercover  agent, despite            the  fact that the  defendant was not  personally involved in            the later sales.  Garcia, 954 F.2d at 16-17.   A fair reading                              ______            of  Garcia, however,  indicates  that the  defendant and  his                ______            coconspirator   worked  as  a  team  to  sell  drugs  to  the            undercover officer.  As we noted:                       "Garcia introduced [his coconspirator to                        _______________________________________                      the  undercover  agent]  for the  express                      _______________________                      purpose     of      facilitating     drug                      transactions.  He was aware of the nature                                     __________________________                      and salient details  of the  relationship                      _________________________________________                      that  developed  between  the   two  men.                      _________________________________________                      There   was   no  evidence   of  Garcia's                      affirmative    withdrawal     from    the                                         -11-                                          11                      conspiracy  or  of any  other intervening                                  _____________________________                      event     materially    affecting     the                      _________________________________________                      trafficking calculus."                        _____________________            Id. at 16 (emphasis added).  We stated that "the measure of a            ___            defendant's  accountability for drug transactions in which he            was  not personally  involved is  usually congruent  with the            scope of  his agreement with  the other  participants in  the            enterprise."     Id.  (citation   omitted).     We  therefore                             ___            distinguished  Wood  on the  ground that  "Garcia's agreement                           ____            with  his  coconspirator  []  could  reasonably  be  said  to            transcend the initial series of transactions."  Id.                                                             ___                      Here, with  Wood and  Garcia as our  guideposts, we                                  ____      ______            find that Castellone was sufficiently detached from the third            sale  so that it stands alone, and  not as part of an overall            course of  conduct.  Based  on our  review of the  record, we            doubt whether  Castellone could have foreseen  that the third            sale, about which  he knew  nothing, would take  place as  it            did,  from  Chaput  directly  to  Purro.   And  although  the            evidence  supports  the   district  court's  conclusion  that            Castellone  and  Chaput  had  formed  a  conspiracy  to  sell            marijuana,  there is no evidence  that the third  sale was in            furtherance of  a common plan between  Castellone and Chaput.            Just as the defendant in Wood  had no knowledge that his wife                                     ____            dealt  with anybody  but  him, Castellone  had  no reason  to            expect Purro to  deal directly  with Chaput.   The record  is            clear  that Castellone  was little  more than  a street-level                                         -12-                                          12            "retail" dealer, and that Chaput was his "wholesaler," rather            than  his  partner.   This  conclusion  is  supported by  the            circumstances  of the  first  two sales,  wherein  Castellone            bought  marijuana from  Chaput, and  sold it  to Purro  for a            several hundred dollar profit.5   As for the third  sale, the            record  does not  support the  trial court's  conclusion that            Castellone  initiated  the negotiations.    Purro's testimony            indicated  only that  the two  "had communication"  after the            second sale, but is  silent as to the instigator.   Moreover,            while  the record  does support  the finding  that Castellone            told Chaput  of Purro's  interest in another  sale, there  is            nothing in the  record to indicate that  Castellone's call to            Chaput  was anything  other than part  of the  previous modus                                                                    _____            operandi.  In other  words, after Purro made the  request for            ________            more marijuana and a gun, Castellone attempted to accommodate            him  by contacting  his supplier.   There  is nothing  in the            record  to  indicate that  Castellone's  call  to Chaput  was            intended to facilitate the Chaput-Purro transaction.  Indeed,            such   a  conclusion   defies  logic,   because   the  record            demonstrates  that  Castellone's  only  source  of narcotics-            related income  was his own  "retail" operation.   Unlike the            defendant in Garcia, Castellone  was in business for himself.                         ______            Also   unlike  the  scenario   in  Garcia,  Castellone  never                                               ______                                            ____________________            5.  The  exact amount  of  Castellone's  per-pound profit  is            disputed.      Resolution   of   that   issue,   however,  is            insignificant to our analysis.                                         -13-                                          13            introduced Purro to  Chaput.   Had events  taken their  usual            course, as Castellone had  every reason to expect, Castellone            would  have  again  purchased  the  contraband  from  Chaput,            factored in a profit,  and re-sold it to Purro.   Castellone,            however, never again discussed the sale with Purro, as he had            been,  unbeknownst to  him, bypassed.   This  is akin  to the            "intervening  event" adverted to in  Garcia.  Thus, there was                                                 ______            no evidence from which the court could properly find that the            third sale  was in furtherance  of a common  scheme involving            Castellone  and Chaput.   Accordingly,  we find  the district            court's inclusion of the third sale as relevant conduct to be            clearly erroneous.6            B.  The Managerial Role            B.  The Managerial Role            _______________________                      Despite  entreaties  from  both  the   defense  and            government, the trial  court assessed Castellone a  two-level            increase in  his BOL  for his role  as a manager  of criminal            activity  pursuant to U.S.S.G   3B1.1(c).  Upon review of the            record, we find this increase legally insupportable.                      At the  outset, we  note that the  government bears            the  burden   of  proving  that  an   upward  adjustment  was            warranted.   United States v.  Ortiz, 966 F.2d  707, 717 (1st                         _____________     _____            Cir.  1992), cert.  denied, 61 U.S.L.W.  3479 (U.S.  Jan. 11,                         _____  ______                                            ____________________            6.  We are not  unmindful of  our recent  decision in  United                                                                   ______            States  v.  Moran,  No.  91-1772  (1st  Cir.  Jan 20,  1993).            ______      _____            However, we  view the  facts of this  case quite  differently            than those in Moran.                          _____                                         -14-                                          14            1993) (No. 92-6552).  To meet its burden, the government must            demonstrate that Castellone exercised "some degree of control            over others involved in  the commission of the offense  or he            must  have been  responsible  for organizing  others for  the            purpose of carrying out the crime."  United States v. Fuller,                                                 _____________    ______            897  F.2d  1217, 1220  (1st Cir.  1990).   Here, we  find the            record devoid  of evidence  of such control  or organization.            On appeal, the  government argues that Castellone  determined            who purchased, when and  where sales took place, prices,  and            profit.  Thus,   the  argument  goes,   it  was  Castellone's            decisions on those matters  that effectuated his control over            when and where Chaput and  others presented themselves.  With            respect to  the first part of  the argument, the  same can be            said of  any independent, street-level  dealer.  In  fact, no            street-level drug sale could ever be made without a customer,            a time and  location for the sale, and a price.  Furthermore,            the profit  Castellone determined was his  own, not Chaput's.            Moreover, the second part of the argument is unsubstantiated.            There  is simply  no evidence  that Castellone  exercised any            control  over the  movement of  Chaput--or  anyone else.   In            ruling in favor of the increase, the trial court stated:                      It's  not necessary that a [d]efendant be                      the  CEO  of the  operation  to  be in  a                      managerial  role.    Here,  there  is  no                      question    but   that    the   Defendant                      negotiated the first two transactions and                      began  the  negotiations  for  the  third                      transaction, and along  with Mr.  Chaput,                      the  transactions were  carried out.   It                                         -15-                                          15                      seems to me  those facts  do establish  a                      managerial role on his part. . . .            Conspicuously lacking from the  court's analysis, however, is            any finding  that Castellone  organized or  exercised control            over  others--that  is,  that  he "managed"  or  "organized,"            within the meaning  of section 3B1.1(c).7   We have  recently            stated that an upward  BOL adjustment "must be based  on more            than  the  trial  judge's  hunch, no  matter  how  sound  his            instincts or how  sagacious his judgment."   Ortiz, 966  F.2d                                                         _____            707, 717 (1st Cir. 1992).  The evidence in this case does not            support such an adjustment.                      Appellant's  sentence  is vacated  and the  case is                      Appellant's  sentence  is vacated  and the  case is                      ___________________________________________________            remanded to the district court for resentencing in accordance            remanded to the district court for resentencing in accordance            _____________________________________________________________            with this opinion.            with this opinion.            __________________                                            ____________________            7.  By  comparison, Chaput,  who  also  received a  two-level            managerial   role   adjustment,   was   accompanied   by  his            subordinates at the third sale.                                         -16-                                          16
