
USCA1 Opinion

	




          June 13, 1996         [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1486                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JENNIEROSE LYNCH,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              __________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              __________________________               Jeffrey  M.  Smith  and  Peters,  Smith  &  Moscardelli,  by               __________________       ______________________________          appointment of the court, on brief for appellant.               Donald K. Stern, United States Attorney, and Frank A. Libby,               _______________                              _______________          Jr., Assistant United  States Attorney, on  brief for the  United          ___          States.                              __________________________                              __________________________                                Per  Curiam.   In  this  sentencing appeal,  defendant-                    Per  Curiam.                    ___________          appellant Jennierose Lynch, represented  by able counsel, assigns          error  in  regard  to  two  district  court  determinations  that          materially affected the  length of her  sentence.  Discerning  no          hint of error, we summarily affirm.                    1.   The  appellant's  first complaint  relates to  the                    1.          district  court's  drug  quantity   determination.    The   court          determined   that  the   appellant  personally   participated  in          transactions  involving   between  two  and  one-half   and  four          kilograms  of cocaine;  that the  conspiracy of  which she  was a          member,  during   the   period  of   her   membership,   launched          transactions  involving another  five to  fifteen kilograms  at a          minimum; that many (if not all) of these transactions occurred in          the course  of jointly undertaken criminal  activity (the charged          conspiracy) and were foreseeable to her; and that, therefore, she          was  responsible (in  the  relevant conduct  sense, see  U.S.S.G.                                                              ___           1B1.3) for over five  kilograms of cocaine in toto,  bringing to                                                      __ ____          bear  a mandatory  minimum ten-year  sentence.   See 21  U.S.C.                                                             ___          841(b)(1)(A)(ii) (providing for mandatory minimum sentence of ten          years in cases involving five kilograms or more of cocaine).                    We review  the district court's findings  of fact anent          drug quantity only for clear error, and we will set such findings          aside only if we are persuaded that the sentencing court has made          a  "serious mistake."  United States v.  Morillo, 8 F.3d 864, 870                                 _____________     _______          (1st Cir. 1993).  We are not so persuaded here;  to the contrary,          we  believe  that  the   sentencing  court's  findings  are  both                                          2          sufficiently explicit and sufficiently record-rooted.                    Drug   quantities  need   not   be   determined  in   a          mathematically   precise   fashion.     Within  the   margins  of          reliability,  sentencing  courts  have  the  authority   to  make          reasonable estimates based on  available information.  See, e.g.,                                                                 ___  ____          United States v. Sepulveda,  15 F.3d 1161, 1199 (1st  Cir. 1993),          _____________    _________          cert. denied, 114 S. Ct. 2714 (1994); United States v. Sklar, 920          _____ ______                          _____________    _____          F.2d 107,  113 (1st Cir.  1990).   It is, moreover,  settled that          members of a drug-trafficking  conspiracy may be held accountable          at  sentencing for  different  drug quantities  depending on  the          circumstances of their involvement.   See United States v. Munoz,                                                ___ _____________    _____          36 F.3d  1229, 1237 (1st  Cir. 1994 ),  cert. denied, 115  S. Ct.                                                  _____ ______          1164  (1995); United States v. Garcia, 954  F.2d 12, 16 (1st Cir.                        _____________    ______          1992).   In  respect to  a  defendant's accountability  for  drug          transactions  in  which  she   did  not  personally  participate,          foreseeability is the key.  See Garcia, 954 F.2d at 16.   "In the                                      ___ ______          usual  case,  what is  foreseeable depends  on  the scope  of the          defendant's agreement with the other participants in the criminal          enterprise."  Munoz, 36 F.3d at 1237.                        _____                    Here, the record reveals  that the district court fully          understood these  principles, applied the correct legal standard,          and made a fact-sensitive  determination of what trafficked drugs          were, in  the court's words, "reasonably  foreseeable or actually          known to [Lynch]  . .  . during the  time she  was a knowing  and          willing participant in th[e]  conspiracy."  These findings cannot          be  set aside under the jurisprudence of clear error.  After all,                                          3          the district court heard  over ten weeks of trial  testimony, and          also had  the benefit of a  compendious presentence investigation          report  (PSI  Report)    a report  that  was not  contradicted by          countervailing  evidence  in  any  relevant  particulars.     The          testimony and the specifics in  the PSI Report, viewed  favorably          to the government, fully  substantiate the findings.  No  more is          exigible.  See, e.g., United States  v. Gonzalez-Vazquez, 34 F.3d                     ___  ____  _____________     ________________          19, 25 (1st Cir. 1994) (discussing utility at sentencing of facts          contained  in PSI Report); United  States v. Ruiz,  905 F.2d 499,                                     ______________    ____          508 (1st Cir. 1990) (discussing utility of trial testimony in the          sentencing phase);  see also United States  v. Jimenez-Otero, 898                              ___ ____ _____________     _____________          F.2d  813, 815 (1st Cir.  1990) (explaining that,  when there are          two  or  more plausible  views  of the  evidence,  the sentencing          court's choice among them cannot be clearly erroneous).1                    2.  The appellant's second issue involves the so-called                    2.          "safety valve" provision, 18  U.S.C.   3553(f), which  in certain          cases constrains the application of  mandatory minimum sentences.          Pursuant to this  provision, the sentencing court  is directed to          impose  a sentence  in  accordance with  the guidelines  (without          regard  to  any  statutory  minimum)  if  a  convicted  defendant          satisfies five set criteria.   See id.; see also  U.S.S.G.  5C1.2                                         ___ ___  ___ ____          (Nov. 1995)  (implementing the  statute).   The court below  held          that Lynch failed to meet the fifth of these criteria in that she                                        ____________________               1Lynch's contention  that the district court  failed to make          specific subsidiary findings of fact related to the drug quantity          issues  is unavailing.  The sentencing  court's findings need not          be  precise to the point of pedantry.  Here they are sufficiently          explicit and comprehensive to withstand criticism.                                          4          did  not  provide  complete  and  truthful  information  "to  the          Government"  in  the  appropriate  time   frame.    18  U.S.C.             3553(f)(5).  Lynch argues that she satisfied this  requirement by          providing the information  to the probation officer in the course          of  the  compilation  of the  PSI  Report.    The district  court          disagreed with Lynch's argument.  So do we.                    We  need not  tarry.   While this  case was  pending on          appeal, a panel of this court decided the precise point, contrary          to  the  appellant's  position,   in  United  States  v.  Jimenez                                                ______________      _______          Martinez, No. 95-1511,  slip op. at 19  (1st Cir. Apr.  24, 1996)          ________          (concluding that "government"  as used in 18  U.S.C.   3553(f)(5)          and U.S.S.G.   5C1.2(5) refers exclusively  to the  prosecutorial          authority, and not  to the probation department); see also United                                                            ___ ____ ______          States v. Montanez, No. 95-2096,  slip op. at 6-7 (1st Cir.  Apr.          ______    ________          24,  1996).   Jimenez Martinez  is binding  here, and  blocks the                        ________________          appellant's desired access to the safety valve.                    We  need  go  no  further.2   Because  the  appellant's          points are  unpersuasive, we summarily affirm  her conviction and          sentence.          Affirmed.  See 1st Cir. R. 27.1.          Affirmed.  See 1st Cir. R. 27.1.          ________   ___                                        ____________________               2Given the  view that  we take  of the  merits, we  need not          reach   and express no opinion upon   the government's contention          that  the appellant, in executing the  plea agreement, waived her          right to prosecute this appeal.                                          5
