
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                  __________________                                  __________________          No. 91-1621                                    UNITED STATES,                                      Appellee,                                          v.                                    DAVID ELWELL,                                Defendant, Appellant.                                  _________________          No. 91-1674                                    UNITED STATES,                                      Appellee,                                          v.                                    HOBART WILLIS,                                Defendant, Appellant.                                  __________________          No. 91-1742                                    UNITED STATES,                                      Appellee,                                          v.                                   RICHARD MORETTO,                                Defendant, Appellant.                                  __________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this Court  issued on January  20, 1993,  is          amended to delete, on page 21, line 10, the sentence which reads:                      "Further,   Elwell   himself   had   been                      recorded  as advising Polito  in the fall                      of  1988 that  Polito still  owed twenty-                      four  something,  a  figure that  in  the                      context  of  this  case   suggests  prior                      deliveries of $24,000 worth of cocaine."          January 20, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1621                                    UNITED STATES,                                      Appellee,                                          v.                                    DAVID ELWELL,                                Defendant, Appellant.                                 ___________________        No. 91-1674                                    UNITED STATES,                                      Appellee,                                          v.                                    HOBART WILLIS,                                Defendant, Appellant.                                _____________________        No. 91-1742                                    UNITED STATES,                                      Appellee,                                          v.                                   RICHARD MORETTO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Campbell, Senior Circuit Judge,                                      ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Stephen  J. Weymouth  with whom  Balliro, Mondano &  Balliro, P.C.            ____________________             ________________________________        was on brief for appellant David Elwell.            Dana Alan  Curhan with whom Barry  M. Haight  and Buckley, Haight,            _________________           ________________      _______________        Muldoon, Jubinville  & Gilligan  were  on brief  for appellant  Hobart        _______________________________        Willis.            James J. Cipoletta  with whom Cipoletta  & Ogus was  on brief  for            __________________            _________________        appellant Richard Moretto.            George W.  Vien, Assistant  United States  Attorney, with whom  A.            _______________                                                 __        John  Pappalardo,  United  States  Attorney,  and  Heidi  E.  Brieger,        ________________                                   __________________        Assistant United States Attorney, were on brief for appellee.                                   ____________________                                 ____________________                 BOUDIN, Circuit Judge.  The grand jury indicted a number                         _____________            of  persons  for conspiring  to  distribute  cocaine and  for            related offenses.  Several of  those indicted pled guilty but            three were  tried jointly and convicted.    The appeal of one            of those convicted  is decided today in  a separate decision.            United  States v. Moran, No.  91-1772.  In  this decision, we            ______________    _____            address  the appeals  of the  other two  defendants  who were            convicted  at  trial, together  with  the  appeal of  another            defendant who pleaded guilty  but contests his sentence.   In            two of the three cases we  affirm; and in one we remand  on a            single issue for resentencing.                                          I.                 We begin with a  brief outline of the facts  and history            of the  case, reserving additional detail  for our discussion            of individual claims of error.  The evidence submitted to the            jury is, of  course, to be viewed in the light most favorable            to  the verdict, the  jury being  accorded great  latitude in            resolving  credibility  and  drawing  reasonable  inferences.            United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st            _____________    _______________            Cir.), cert. denied, 492 U.S. 910 (1989).                     ____  ______                 On August  9, 1990,  the grand  jury indicted  the three            appellants now in this  court (Richard Moretto, David Elwell,            and  Hobart  Willis),  as  well as  six  other  persons,  for            conspiracy  to distribute cocaine.   21 U.S.C.    846.  Other            countsin the indictment chargedvarious of the defendants with                                         -5-                                         -5-            related  crimes.   Willis  and  several  others pled  guilty,            Willis pleading to conspiracy and five counts of distribution            under  21 U.S.C.     841.   After  trial the  jury  convicted            Moretto,  Elwell, and  George  Moran (whose  appeal has  been            separately decided) of conspiracy.   In addition, Moretto was            found  guilty of witness intimidation, 18  U.S.C.   1512, and            Elwell  of three counts of distribution, 21 U.S.C.   841, and            one of filing a false tax return.  26 U.S.C.   7206.                 The critical testimony at  trial, except in the case  of            Moran,  came primarily  from Mark  Polito, whose  account was            bolstered  by  police  testimony  and tape  recordings.    He            testified that during  the spring of 1988  he purchased ounce            quantities  of  cocaine  every  week  or  two  from  Moretto.            Because Moretto was scheduled to report to prison for a prior            offense, Moretto--according to Polito's testimony--arranged a            meeting between Polito  and Willis, "the man he [Moretto] got            his stuff from."   At the meeting Willis agreed  to introduce            Polito to  the  distributor  who  managed  Willis'  "northern            territory."  A  few days  later Willis  introduced Polito  to            Elwell and  for the  next few months  Elwell supplied  Polito            with cocaine at the same price previously charged by Moretto.                 Polito  eventually  fell behind  in payments  and, under            pressure  for payment  exerted by  Willis and  Elwell, Polito            began to cooperate secretly with law enforcement authorities.            Now buying  drugs  with  government  money,  Polito  recorded                                         -6-                                         -6-            conversations with Elwell and, on one occasion, brought a DEA            undercover  agent to a meeting  with Elwell.   During a later            sale,  Elwell  told  Polito  that  Willis  wanted  Polito  to            "remember"  Moretto  at  Christmas,  Moretto  then  being  in            prison.   This  reminder  was repeated  at  a later  meeting.            Eventually Elwell became suspicious of Polito, ceased to deal            with  him and in 1989 Willis began to supply Polito directly.            The last reported transaction  occurred on February 16, 1989,            when  Polito  paid Willis  part of  the  money still  owed to            Elwell for prior purchases.                 Moretto  was released from prison  on June 5,  1990.  On            June 11 and 12, 1990,  three telephone calls occurred between            Moretto and  Polito, which  Polito secretly recorded.   Those            calls, described  below, formed the basis  of the obstruction            count against Moretto.  Nothing pertinent to the  charges was            proved at trial  to have occurred after  June 12.   In August            1990, the indictment was returned.                 Following Willis'  guilty plea and the  trial of Elwell,            Moretto and Moran,  the defendants were  sentenced.    Willis            and Moretto  were  found to  be  career offenders  under  the            Sentencing Guidelines and each was sentenced to 210 months in            prison.   Elwell  was sentenced  to 78  months.   The present            appeals followed.                                         -7-                                         -7-                                         II.                 Moretto's main  argument on appeal is  that the evidence            of his adherence to the  conspiracy charged in the indictment            was  too weak  to permit a  reasonable jury  to convict.   He            further  argues that,  at most,  the evidence  showed several            conspiracies  rather  than  the  single one  charged  in  the            indictment,  and  he  asserts  that  this  supposed  variance            between the conspiracy charged  and any conspiracy proved was            prejudicial.    We  need  not treat  the  prejudice  argument            separately because we conclude that the evidence  adequately,            if  not amply, supported  the government's claim  of a single            conspiracy  involving Willis  and  others  in  which  Moretto            participated.                 Moretto does not dispute  that Willis directed a cocaine            ring  but,  carving his  own role  into  phases, he  seeks to            distance himself from  the ring.  Moretto's repeated sales of            cocaine to Polito in the first part of 1988, which were amply            proved, are claimed by  Moretto to fall outside the  ambit of            the  Willis ring.1   Moretto  then argues  that he  could not                                            ____________________                 1Moretto   places  stress  upon   a  statement   of  the            prosecutor, made to  the judge in a pretrial conference, that            the conspiracy charged by the  government began in March 1988            when  Moretto  introduced Polito  to  Willis.   Although  the            prosecutor did make such a statement--seemingly a slip of the            tongue--the government's actual theory of  the conspiracy was            that it reached  back to embrace Moretto's  earlier sales, as            the  prosecutor made fairly clear  at the bottom  of the same            transcript page  and even clearer  two pages  later.   There,            responding to the judge's question ("The Government's  theory            is that there  was some association between them [Moretto and                                         -8-                                         -8-            have  participated in the ring  from March 1988  to June 1990            since he  was in prison.  As to the conversations with Polito            on June 11-12, 1990, Moretto says that--even assuming them to            be  obstructive--they  occurred well  after  the last  proved            transaction of  Willis and Polito  on February 16,  1989, and            therefore occurred after the conspiracy.                   The jury was entitled  to link these supposedly separate            events together with  certain connecting  facts that  Moretto            omits.   The drug  sales he made to  Polito during early l988            were,  the  jury  could  have concluded,  based  on  supplies            furnished  by   Willis;   Moretto,  according   to   Polito's            testimony, said that  Willis was  "the man he  got his  stuff            from."    The jury could  also have thought  that the Willis-            Moretto relationship was a continuing one since, when Moretto            was forced to  report to  prison, he introduced  Willis as  a            substitute supplier.  Willis  then arranged for further sales            to Polito at Moretto's  original price.  One act,  after all,            can take  color from others,  and drawing such  inferences is            the jury's task.                 During  Moretto's first  year in  prison there  is ample            evidence of continued  sales by Elwell and  Willis to Polito.            Moretto, although  in prison,  was  not entirely  out of  the            picture: Elwell twice  told Polito that Willis  wanted him to                                            ____________________            Willis] prior  to that  introduction [of Polito  to Willis]),            the  prosecutor stated, "Yes, from Moretto up the ladder  . .            . ."                                          -9-                                         -9-            "remember" or not forget Moretto at Christmas.  While various            inferences  can be drawn from these reminders, the jury could            have believed that they reinforced Moretto's connection  with            the  ongoing  conspiracy (even  assuming,  as the  government            seems to do  in its brief, that Moretto was not a participant            while  imprisoned).2   Specifically,  the evidence  increases            the  likelihood, however  slightly, that  Moretto was  once a            conspirator and might rejoin the conspiracy after prison.                 The jury could then  have concluded that, in making  the            telephone calls to  Polito in June  1990, Moretto did  rejoin            the conspiracy.   It is  true that  the time gap  between the            last proved Willis ring transaction  in February 1989 and the            calls in  June 1990  is substantial.   But the  jury was  not            obliged to  believe that  a well  organized drug  ring, which            enjoyed  a  "northern  territory"  and  remembered  a  former            associate at Christmas, had suddenly expired.  When this same            former foot soldier is discovered in June  1990 threatening a            witness, who  is believed  likely to  testify  to the  ring's                                            ____________________                 2The government's brief in  fact points to evidence that            Moretto  while  in  prison  telephoned  Polito's  mother   to            threaten Polito for failing to pay his drug-purchasing debts.            That  evidence may  not have been  admissible because  of its            hearsay  character--apparently  the  initial  source  of  the            evidence was Polito's mother, who  did not testify.  However,            this  evidence  is not  challenged  on this  appeal,  and the            remaining evidence  against Moretto is adequate  even if this            evidence, largely  embodied in a single  sentence of Polito's            testimony, is ignored.                                           -10-                                         -10-            activities,  the  jury might  well  have  concluded that  the            conspiracy was ongoing and the soldier had just reenlisted.                  Grunewald  v.  United  States,  353  U.S.  391  (1957),                  _________      ______________            heavily relied on by Moretto, does not forbid this inference.            It  dealt  with  entirely  different  facts--specifically,  a            conspiracy that had achieved its single objective well before            the  acts of concealment that  were claimed to  extend it for            purposes  of the statute  of limitations.3   Perhaps  more in            point  is the statement in  United States v.  Mayes, 512 F.2d                                        _____________     _____            637,  642 (6th Cir.), cert. denied, 422 U.S. 1008 (1975) that                                  ____  ______            "[w]here  a conspiracy  contemplates a continuity  of purpose            and  a continued performance of acts, it is presumed to exist            until  there  has been  an  affirmative showing  that  it has            terminated . . . ."  In all events, the jury in this case was            certainly entitled  to infer from all  of the circumstances--            apparent  size  of the  drug  ring,  its duration,  Moretto's            threats, and the threats' references to others--that the ring            continued and Moretto rejoined it.                 Separately,  Moretto claims  that the  evidence  did not            support the jury's  guilty verdict against him on  the charge            of  witness intimidation  under 18  U.S.C.    1512(b).   That            statute in  pertinent part forbids any  act of "intimidation"                                            ____________________                 3Similarly, in United States v. Serrano, 870 F.2d 1 (1st                                _____________    _______            Cir. 1989), statements sought to be introduced under  the co-            conspirator exception to the  hearsay rule occurred after the            fraudulent scheme had "collapsed."                                         -11-                                         -11-            done  with intent  to induce  anyone to  "withhold testimony"            from  a grand jury or  other official proceeding.   The three            telephone conversations in this  case, recorded by Polito and            played to the  jury, are replete  with statements by  Moretto            that the jury could reasonably  have found to be intimidating            in both nature  and intent.   A brief  sampling of  Moretto's            statements, omitting some rejoinders by Polito, conveys their            flavor:                      "I just have a  message . . . .  You have                      one  chance to  hear  this  and then  its                      gonna be  somtin' that you  never want to                      hear  and it's  like a  hairline fracture                      away from it.   People knew  what's going                      on."                      "Mark, we got friends all over the place,                      right?  DEA,  state troopers,  everything                      . . . .  [Y]ou  don't seem  to understand                      that  everybody knows  that you  went and                      talked  [to law enforcement agents] . . .                      .  I got to call these people back .  . .                      .  [T]hey just  want some assurance  that                      nobody's going to no Grand Jury . . . ."                  The heart  of  Moretto's appeal  on this  count is  that            during the  first of  the conversations  on  June 12,  Polito            asked  Moretto if  Moretto  was threatening  him and  Moretto            responded:  "No, I'm not.   I am not.  I'm  relaying indirect            messages.  I'm  not threatening anybody.   I'm--I would never            hurt  nobody.  I'm not that kind  of person."  The jury could            reasonably view  this  statement, lodged  among  many  veiled            threats,  as  a  boilerplate  disclaimer,  coupled  with  the            intimation that others  ("I got to  call these people  back")                                         -12-                                         -12-            would inflict the harm if Moretto's warning were ignored.  If            anything,  the statement enhances  the sinister  character of            the conversation.4                                         III.                 Willis, Elwell  and Moretto  each appeals his  sentence.            We consider their respective claims in that order.                 Willis.  Willis was sentenced as a career offender under                 ______            U.S.S.G.   4B1.1.  That  provision provides that a  defendant            is placed in the  highest criminal history category and  that            specified minimum  offense levels apply,  if three conditions            are met:   first, the defendant must be at least 18 years old            at  the time of the instant offense; second, the offense must            be  a felony  that is either  a crime  of violence  or a drug            offense; and third, the defendant must have "two prior felony            convictions" for such offenses.  It is undisputed that Willis            meets the  age condition,  that the  instant conviction is  a            drug offense  and  that he  had five  prior convictions,  one            state and  four federal, for five bank robberies committed on            different dates during a brief period in 1968.                 Willis  argued  unsuccessfully  at  sentencing  that the            prior bank  robberies should  be treated  as a  single felony                                            ____________________                 4Moretto's  brief  adopts  by   cross-reference  Moran's            argument   that   the  trial   judge  gave   a  supplementary            instruction that  invited the  jury to ignore  the conspiracy            charged  in  the  indictment   and  convict  of  a  different            conspiracy.  That argument is considered and rejected  in our            separate opinion in Moran.                                 _____                                         -13-                                         -13-            because  the  definitions  provision  of  U.S.S.G.     4B  (             4B1.2(3))  provides   in   part  that   "`two  prior   felony            convictions' means .  . .  [that the convictions  were for  a            crime of  violence or drug offense and  that] at least two of            the  .  . .  convictions  are  counted separately  under  the            provisions  of     4A1.1(a),  (b),  or  (c)."    This  latter            provision,  designed to  determine the  number and  length of            "prior  sentence[s]"  in  order  to   compute  a  defendant's            criminal  history  category  under  U.S.S.G.    4A,  in  turn            provides  in a  related  definition that  "[p]rior  sentences            imposed  in related cases are  to be treated  as one sentence                     ________________            for  purposes  of     4A1.1(a),   (b)  and  (c)."    U.S.S.G.              4A1.2(a)(2)  (emphasis  added).   The  commentary  to  that            section, id., app. note 3, pertinently provides:                     __                      [P]rior sentences  are considered related                      only if they resulted from  offenses that                      (1)  occurred on  the same  occasion, (2)                      were part of a  common scheme or plan, or                      (3)  were  consolidated   for  trial   or                      sentencing.                   Based on this language  Willis argued at sentencing that            his five  bank robberies were  part of  a common plan  to rob            banks and, in any event, that the sentences imposed--although            not   formally   in   consolidated   cases--were   concurrent            sentences,   part  of   the   same  bargain,   and  thus   in            "constructively"   consolidated   cases.     Willis   further            requested that,  if  his  proffer  of  these  facts  was  not            accepted,  he  be   afforded  an   evidentiary  hearing   and                                         -14-                                         -14-            opportunity  for  fellow bank  robbers  to  testify to  their            common  plan and  for  a former  attorney  to show  that  the            sentences were concurrent and part  of the same plea bargain.            The district  court declined  to hold an  evidentiary hearing            and concluded that the bank robbery convictions were separate            crimes.                 At  first  blush,  it   might  seem  unlikely  that  the            Sentencing Commission intended  a defendant to escape  career            offender status,  in the teeth  of two prior  convictions for            different  bank  robberies  at  different  times  and places,            simply because those  prior robberies were  assertedly linked            by a further felony, namely, an overarching conspiracy to rob            banks that  could literally  be  called a  "common scheme  or            plan."  Of course,  two crimes might be so  closely related--            for example, an  assault committed  in the course  of a  bank            robbery--that  it  would  disserve  the plain  purpose  of  a            "repeat offender"  statute to  treat convictions for  each as            two  prior convictions.   But  five separate  bank robberies,            committed with  the opportunity to pause  and reflect between            them  and  memorialized  by   convictions,  are  surely  what            Congress  had in mind as  identifying a career  offender.  28            U.S.C.     994(h).    One  might  therefore  doubt,  at least            initially, whether the Commission was aware that the contrary            result would follow from its commentary language whenever the            bank robberies were part of a common plan.                                         -15-                                         -15-                 If  we were  satisfied  that the  outcome departed  from            Commission intent, we might disregard the literal language of            the commentary  and treat as  a single conviction  only those            convictions  so closely  related  in time  and function  that            separate treatment  would disserve the purpose  of the career            offender provision.  Yet  a broader perspective suggests that            the Commission, in defining  related convictions, did mean to            adopt binding "rules of  thumb," such as this one, as well as            the even  more mechanical rule that  convictions for entirely            separate crimes should be treated as one if they happen to be            consolidated for trial or  sentence.  U.S.S.G.   4A1.2(a)(2).            In fact, the Commission in the same paragraph recognized that            these rules  of thumb could understate  criminal history, and            it said that the remedy in  such cases was for the sentencing            judge to employ an upward departure.  Id.5                                                  __                 To  conclude that the  Commission intended  the apparent            result  of its literal  language does not  resolve the matter            since  we  might  still decide  that  a  rule  of thumb  that            produces  such a result is unfaithful to the guideline and to            the career  offender  statute  that  lies  behind  it.    But                                            ____________________                 5In the commentary paragraph containing both the "single            scheme  or   plan"  and   the  "consolidated  for   trial  or            sentencing" provisions, the Commission continued:  "The court            should be aware  that there  may be instances  in which  this            definition is overly broad and will result in [an inadequate]            criminal history score  . . .  .  In  such circumstances,  an            upward departure may  be warranted."  U.S.S.G.    4A1.2, app.            note 3.                                         -16-                                         -16-            Congress in 28 U.S.C.    994(h) authorized the  Commission to                                                       _______________            develop  guidelines to assure  that career  offenders receive            high sentences; and we  are loath to hold that  the mechanism            developed by the Commission (and submitted to Congress) falls            outside  that authority,  even if  there is  a Rube  Goldberg            aspect to the use of overbroad rules of thumb tempered by the            power  to depart.  The Second Circuit has treated the "common            scheme or plan" language  as binding, while eloquently urging            the  Commission to reexamine  its "related cases" commentary.            United States Butler, 970 F.2d 1017  (2d Cir.), cert. denied,            _____________ ______                            ____  ______            113 S. Ct. 480 (1992).                  Once  we  decide  that   the  "common  scheme  or  plan"            definition is both intentional and valid, it follows that the            "common scheme or plan" language should be given its ordinary            meaning.  This same language is used in Fed. R. Crim P. 8 (to            determine joinder) and there is no doubt that in that context            a conspiracy to rob banks would constitute a common scheme or            plan.   Willis offered to call fellow bank robbers to confirm            that  his  robberies were  part of  the same  conspiracy, and            there is  nothing implausible about his  proffer, however odd            it might seem to  conduct this inquiry.  Other  circuits have            required such evidentiary  hearings which, not  surprisingly,            tend to  produce findings that the  multiple convictions were            not part of a common scheme  or plan.  E.g., United States v.                                                   ___   _____________            Chartier, 970 F.2d 1009 (2d Cir. 1992).             ________                                         -17-                                         -17-                 For the reasons indicated, we feel constrained to accept            the guideline commentary, to  conclude that the proffer could            not  be  ignored,  and  thus   to  remand  Willis'  case  for            resentencing.6   We do not, however, think  that the district            court is required to hold an evidentiary hearing if the court            concludes that it would impose the same sentence even without            the "career offender" label.  The guideline commentary itself            asserts  that the  rule of  thumb here  invoked by  Willis is            overinclusive and  invites judges to depart  upward where the            rule  of  thumb  operates  to  understate  criminal  history.            Accordingly,  the requirements for departure are satisfied if            the judge supportably concludes that--even assuming the truth            of Willis'  proffer--five prior  bank robberies, united  by a            conspiracy to rob banks, makes Willis deserving of a sentence            similar to  that he would receive if  he were classified as a            career offender.  U.S.S.G.   5K2.0.                 Whether or not  the outcome  proves to be  the same  for            Willis, it is important  for future cases that the  integrity            of the guideline regime  be preserved.  Under our  reading of            the guideline commentary, the district court may not classify                                            ____________________                 6The  government  says   that  the  district court  here            "found" that there  was no common scheme or  plan and it says            correctly  that  there  is  no automatic  requirement  of  an            evidentiary hearing for every  contested issue.  But in  this            case,  Willis' proffer  is not  implausible on  its face  and            there  was  apparently  no  other  evidence  about  the  bank            robberies.   As we read the  transcript, the district court's            "finding" actually derived from a narrowing interpretation of            the guideline language.                                         -18-                                         -18-            Willis  as  a  career offender,  assuming  the  truth of  his            proffer proposing to  show a  common scheme or  plan; but  we            repeat (without prejudging  the facts of this  case) that the            district court does have  authority to depart upward, subject            to appellate review.  18 U.S.C.   3742(e)(3).  The net effect            is  to increase the range of discretion of the district judge            in these situations,  which may be  just what the  Commission            intended.   As we have  noted, an evidentiary  hearing is not            automatically  required in cases  like this  one--not because            the judge can "find" no common scheme or plan in  the face of            a proffer like  this one  and without a  hearing, but  rather            because  the judge may depart  rather readily even  if such a            scheme or plan is assumed.7                 Although Willis' case is to be remanded, we consider his            other  claims of error, both for the guidance of the district            court   and  to   reduce  the   need  for   further  appeals.            Specifically,  Willis argues  that he  was wrongly  denied an            evidentiary  hearing   on  two   issues   important  to   his            sentencing, namely, the  amount of cocaine  for which he  was                                            ____________________                 7We  reject  Willis'  further  argument  that  the  bank            robbery convictions, even  though not formally  consolidated,            should be deemed "constructively" consolidated because of the            alleged plea bargain and concurrent  sentences.  The fact  is            that  the cases  were not  consolidated.   Whatever anomalies            result  from  the  accident  of consolidation  vel  non,  the                                                           ___  ___            situation   is  not   going  to   be  improved   by  treating            unconsolidated   cases   as  "constructively"   consolidated,            thereby broadening  beyond its language an  already overbroad            rule of  thumb.  See  United States v.  Rivers, 929 F.2d  136                             ___  _____________     ______            (4th Cir.), cert. denied, 112 S. Ct. 431 (1991).                        ____  ______                                         -19-                                         -19-            responsible and his leadership status.  We think the district            court properly resolved these matters.                 At the sentencing, the  judge determined that Willis was            responsible for 2.2 kilos,  resulting in a base level  of 28,            U.S.S.G.       2D1.1(a)(3),  (c)(8),   and  was  a   "leader"            warranting an upward adjustment.  U.S.S.G.   3B1.1.  However,            instead of  adopting the  resulting offense level,  the judge            ruled that Willis was a  career offender, making him  subject            (in light of the maximum sentence to which  he was liable) to            a  base level of  32.  U.S.S.G.    4B1.1    The court reduced            this  figure by  2 levels  for acceptance  of responsibility.            The  court  then sentenced  Willis at  the  top of  the range            provided  by  the sentencing  table  for a  criminal  with an            offense level of  30 and  a criminal history  category of  VI            (which  is automatic  under U.S.S.G.      4B1.1 for  a career            offender).                 In finding  Willis  to be  a  leader and  computing  the            amount of cocaine, the  judge relied upon information adduced            at the trial of Willis' co-defendants and on other government            tape  recordings  not  introduced   at  the  trial  but  made            available for the sentencing.   On appeal Willis insists that            he  was entitled to an  evidentiary hearing on  the amount of            cocaine.   Neither the amount  of cocaine nor  the leadership            finding affected the guideline  range adopted by the district            court  since  the career  offender  guideline superseded  the                                         -20-                                         -20-            "otherwise  applicable  offense level."    U.S.S.G.    4B1.1.            Nevertheless, because  the leadership role of  Willis and the            amounts  of  cocaine  handled  by  his  ring  might  well  be            pertinent  to  the district  court's  sentencing decision  on            remand, we address Willis' objections.                 The law concerning the need for evidentiary hearings has            been  left  primarily   to  development  through   individual            decisions, which themselves  reflect the tension between  two            attitudes: the  history  of almost  unreviewable trial  judge            discretion in  sentencing and the present  specificity of the            guidelines.  See U.S.S.G.    6A1.3.  Here, however,  there is                         ___            no  need for any lengthy discourse on sentencing hearings.  A            prima facie case existed, based on the presentence report and            the evidence  adduced at the co-defendants'  trial, to regard            Willis  as  playing  a leading  role  in  a  ring dealing  in            substantial quantities of  cocaine.  At  no point did  Willis            ever  specify or proffer evidence that would be adduced in an            evidentiary hearing  to negate the amounts or Willis' role as            leader.    Under these  circumstances, it  is patent  that no            hearing  was required.   United States v.  Shattuck, 961 F.2d                                     _____________     ________            1012, 1015 (1st Cir. 1992).   Lastly,   Willis  argues   that            because the prior convictions were used to trigger the career            offender  guideline,  the government  had  to  file a  notice            specifying the  prior convictions before  Willis' guilty plea            in  this case.  21 U.S.C.    851 (prior notice is a condition                                         -21-                                         -21-            of "increased punishment").   Willis'  argument that  section            851  applies to  guideline  increases, as  well as  statutory            maximums,  was rejected  by this  court in  United States  v.                                                        _____________            Sanchez, 917 F.2d 607,  616 (1st Cir.), cert. denied,  111 S.            _______                                 ____  ______            Ct. 1625 (1991).  We decline the invitation to reexamine that            decision.                 Elwell.    Elwell  was   convicted  of  conspiracy,  two                 ______            distribution counts, and wilfully  filing a false tax return,            and he was sentenced to 78 months imprisonment.  The sentence            was the minimum allowed under the guideline range in light of            the finding  that  he had  distributed  at least  500  grams.            U.S.S.G.    2D1.1(a)(3), (c)(3).                 Elwell first contests the finding that he did distribute            at least 500 grams.  He  admits the distribution to Polito of            about  3 ounces  (approximately  84 grams)  for which  he was            convicted; indeed, Elwell admitted  at sentencing that he had            sold  more to Polito without  specifying a number.   At trial            Polito testified  that, apart from  the 3 ounces,  Elwell had            delivered "18, maybe 20"  ounces of cocaine to  Polito during            the summer of 1988.  The judge accepted this evidence despite            Elwell's denial at the sentencing hearing that he had sold so            large a  quantity.  Even the  low-end figure of 18  ounces is            504 grams, exceeding the guideline minimum of 500 grams.                 The  critical facts by which a  guideline range is fixed            must  be proved  by a  preponderance of  the  evidence, e.g.,                                                                    ____                                         -22-                                         -22-            United States v. Blanco,  888 F.2d 907, 909 (1st  Cir. 1989).            _____________    ______            While inviting us to raise or at least stiffen this standard,            Elwell's  main argument  is  that Polito's  estimate was  too            casual  to  support the  drastic  increase  in sentence  that            results  for  distributing  18  rather than  3  ounces.    He            stresses  the fact that Polito was himself a user during this            period  and admitted  to  hazy recollections  or mistakes  in            other  testimony.   Combining these  arguments, he  argues on            appeal that the judge's determination was  clearly erroneous,            the standard properly  applied on review.   United States  v.                                                        _____________            Aymelek, 926 F.2d 64, 69 (1st Cir. 1991).            _______                 We disagree.   The district court,  which heard Polito's            testimony at  trial and Elwell's testimony  at the sentencing            hearing,  was entitled  to  choose between  them.   The  time            period  over which  Elwell  supplied Polito  and the  size of            Polito's purchases were also  consistent with the 18-20 ounce            figure.  Against this  backdrop and in light of  the standard            of review, we find  no error.  This conclusion  also disposes            of Elwell's claim  that the larger  ounce figure was  wrongly            used  in  determining  the  amount of  unreported  income  in            sentencing under the tax count.                 Elwell  objects  lastly  to  the  special  condition  of            supervised release that requires him to submit to random drug            testing,  as well as drug and  alcohol treatment, as directed            by the Probation  Service.   Elwell objects that  his use  of                                         -23-                                         -23-            drugs (cocaine  and previously  amphetamines) lay 5  years or            more  in the past, that nothing else supports this condition,            and that  supervised release conditions  should "involve[] no            greater  deprivation of liberty than necessary   . . . ."  18            U.S.C.    3583(d)(2).  We  believe that the  drug testing and            treatment requirement--if  deemed necessary by  the Probation            Service--lay  well  within the  district  court's discretion,            given Elwell's past  use and  past dealing in  drugs.  As  to            alcohol,  the failure  of Elwell  to raise this  objection at            sentencing  or by  post-trial motion  makes it  impossible to            assess  the  district  court's  reasons for  adding  in  this            condition  and,   in  our  view,  this   failure  waived  the            objection.                  Moretto.   Moretto's sentence was based  on the district                 _______            court's  finding  that  he  should  be  treated  as a  career            offender.  His  record showed two state court convictions for            assault and related conduct in October 1987 and February 1990            respectively and a drug conviction for possession with intent            to  distribute in March 1988.  In the district court, Moretto            argued that  the assault convictions were  misdemeanors under            state  law,  but the  trial judge  found  them to  qualify as            felonies for guideline purposes.  See U.S.S.G.   4B1.2,  app.            note  3 (prior felony  conviction includes offense punishable            by  more than one year imprisonment even if not designated as            a felony).                                         -24-                                         -24-                 On appeal,  Moretto asserts that the  trial court relied            on  the  two   state  assault  charges  to  find   two  prior            convictions.  Moretto then argues that while the October 1987            conviction  may be  a "prior"  felony conviction,  the latter            assault conviction in February  1990 occurred after the start                                                          _____            in 1988 of the conspiracy for which  he was convicted in this            case.   In reply, the  government says that  this argument is            waived  because not made below; that in any event the instant            conspiracy  continued  after  the February  1990  conviction,            making it a prior  conviction under the guidelines;  and that            the  first  assault   conviction  and  the   drug  possession            conviction  both  remain  even   if  the  second  assault  is            disregarded.                  Waivers  are occasionally forgiven  and the government's            reliance on  the March 1988 drug  conviction could presumably            be assailed on  the same  ground that Moretto  now offers  to            exclude  the  February  1990  conviction  from consideration,            namely, that it occurred  after the instant conspiracy began.            But  we   think  the  ground  is   clearly  wrong:  continued            participation  in  a  conspiracy after  a  felony  conviction            renders that conviction  a prior felony conviction.   This is            apparent from  both the letter and intent  of the guidelines,            U.S.S.G.   4B1.2(3)("defendant committed the  instant offense            subsequent to sustaining at least two felony convictions  . .                                         -25-                                         -25-            . ."), and thus there was no error in sentencing Moretto as a            career offender.                 The  judgments are  affirmed except  as to  Willis whose                                     ________            case  is remanded  for resentencing  in accordance  with this                     ________            opinion.                                         -26-                                         -26-
