

                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 96-1839

                  UNITED STATES OF AMERICA,

                          Appellee,

                             v.

                      RICHARD MORETTO,

                    Defendant, Appellant.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. A. David Mazzone, Senior U.S. District Judge]

                                        

                           Before

                    Selya, Circuit Judge,

                 Cyr, Senior Circuit Judge,

                 and Boudin, Circuit Judge.

                                        

Bernard Grossberg  with  whom  Erin K.  Kelly  was  on brief  for
appellant.
George  W.  Vien, Assistant  United  States  Attorney, with  whom
Donald K.  Stern, United States Attorney, was on  brief for the United
States.

                                        

                        June 11, 1997
                                        

     Per Curiam.   Richard Moretto was  convicted in 1991  of

conspiracy to  distribute cocaine, 21  U.S.C. S  846, and  of

witness intimidation, 18 U.S.C. S 1512.  At sentencing he was

found to  be a career  offender based  on prior  convictions,

U.S.S.G.                     S                       4B1.1,                             and                                 sentenced to 210 months' imprisonment and

a term of supervised  release.  This court affirmed both  the

conviction and sentence  on direct appeal.  United States  v.

Elwell, 984 F.2d 1289 (1st Cir.), cert. denied, 508 U.S.  945

(1993).

     Thereafter,                             Moretto succeeded in having a state court set

aside  two prior  state convictions,  undermining his  career

offender status.  He petitioned under 28 U.S.C. S 2255 to set

aside his original sentence.  The district court agreed  and,

after                  further proceedings in June 1996, resentenced Moretto to

108 months' imprisonment, a term of supervised release, and a

fine of $12,500.  Moretto now appeals from this new sentence,

arguing                    that                         the district court miscalculated the sentence and

improperly imposed a fine.

     Although                          Moretto's                                   appeal has been well briefed, we do not

think that  the district  court erred  on any  of the  issues

presented in this court.  The only difficult question is  the

calculation  of drugs  attributed  to Moretto,  which  became

decisive after the career offender label was lifted.  The key

evidence was the testimony of Moretto's customer that over  a

four                 to                    five                        month                              period, he had purchased between one and two

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ounces of cocaine from  Moretto every week or other week  "or

so."

     Averaging, the district court found that it was fair  to

attribute to  Moretto  14 deliveries  of 1.5  ounces  apiece.

Twenty ounces (rounded down from 21) equates to 567 grams  of

cocaine, which  is well  over the  500 gram  minimum used  to

determine Moretto's base offense level of 26.  U.S.S.G.      

S 2D1.1(c)(7).  Moretto argues now, as he did in the district

court, that such  averaging is forbidden by United States  v.

Sepulveda                    ,                       15                         F.3d                              1161,                                    1197-98 (1st Cir. 1993), cert. denied,

512 U.S. 1223 (1994).

     In                    United                          States                                                                v.                                    Webst                                        er, 54 F.3d 1, 6 (1st Cir. 1995),

this                 court                       upheld estimates "drawn from ranges with relatively

tight margins,"  distinguishing Sepulveda  as involving  much

wider ranges.  Sepulveda itself made clear that the court was

not adopting a  "per se rule" in  favor of selecting the  low

point                  in                     an                        estimated range.  15 F.3d at 1199.  We think there

is no magic rule to determine when a mid-range estimate seems

to make sense but the use  of such an estimate here does  not

appear to us to be clear error.

     Further,                          the                             district                                      court attributed to Moretto, but did

not  include in  its calculus,  an additional  ten ounces  of

cocaine  provided to  the witness  by another  member of  the

conspiracy after  Moretto  had departed  for prison.    Since

Moretto had introduced the new seller to the witness for  the

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specific  purpose  of   continuing  the  sales,  Moretto   is

presumptively liable under the relevant conduct guideline for

foreseeable                        transactions effectively arranged by Moretto while

still a working member of the conspiracy.  U.S.S.G. S 1B1.3 &amp;

comment.                     n.2(c)(6).  Even if the district court had arrived at

a  low-end estimate  of Moretto's  own cocaine  sales to  the

witness, the  inclusion of  this additional  ten ounces  (283

grams) in the  drug quantity calculus would have resulted  in

sentencing                       at the same base offense level as the court applied

below.  Id. S 2D1.1(c)(7).

     Moretto also objects to the district court's refusal  to

treat him as a minimal or minor participant deserving a four-

or two-level downward  adjustment in his  favor on either  of

these grounds.  U.S.S.G. S 3B1.2.  If a lesser member of  the

conspiracy were automatically a minimal or minor participant,

Moretto                    might                          have                              a                                point; but we do not read the guideline in

that  fashion.    Here,  Moretto  played  a  substantial  and

continuing role in the  conspiracy, and the district  court's

refusal                    to                       award him "minimal" or "minor" status was not clear

error.

     The                     district                              court's refusal to depart downward, based on

diminished                       capacity, U.S.S.G. S 5K2.13, was a factual judgment

not  infected by  legal error  and therefore  not subject  to

review.  United States v. Robles-Torres, 109 F.3d 83, 87 (1st

Cir. 1997).  The two-level obstruction of justice  adjustment

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was amply  justified on  the facts  and provided  for by  the

guidelines.  U.S.S.G. S 3C1.1.  And, there being no  evidence

whatever of vindictiveness, the court had authority to impose

a fine  on resentencing even though  none was imposed in  the

initial sentence.   North Carolina  v. Pearce,  395 U.S.  711

(1969); see also Alabama v. Smith, 490 U.S. 794 (1989).

     Affirmed.

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