
USCA1 Opinion

	




          March 27, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1915                                    UNITED STATES,                                      Appellee,                                          v.                     JORGE SILVA, A/K/A VICTOR MALDONADO-GARCIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Boudin, Circuit Judge.                                             _____________                                 ____________________            Eileen M. Donoghue on brief for appellant.            __________________            Donald K. Stern, United States  Attorney, and Carole  S. Schwartz,            _______________                               ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                                 Per  Curiam.      Appellant,  Jorge Silva,  pleaded                      ___________            guilty  to  charges of  conspiracy  to  possess cocaine  with            intent to distribute and possession of cocaine with intent to            distribute.   The district court, after a  lengthy hearing on            the issue of  the amount  of cocaine that  appellant knew  or            reasonably foresaw was involved  in the relevant transaction,            found  that the full nine  kilograms was attributable to him.            Accordingly,  on  July 21,  1994,  it  imposed the  mandatory            minimum ten-year prison sentence  prescribed by statute.  See                                                                      ___            21 U.S.C.    841(b)(1)(A)(ii).  Appellant's  sole argument on            appeal is that  it was clear error for the  district court to            find that  the government  proved by  a preponderance  of the            evidence that  Silva knew or reasonably foresaw  that five or            more kilograms  of cocaine  were involved in  the transaction            underlying the  possession charge.  Appellant  urges that his            sentence be recalculated based upon a quantity of one-to-four            kilograms of cocaine.  We affirm.                 The statements and findings by the district court at the            sentencing hearing, as well  as the parties' briefs,  seem to            assume that only the  amount of drugs that appellant  knew or            reasonably foresaw  as being involved  in his conduct  can be            attributed to him for  purposes of imposing mandatory minimum            sentence.   See United States  v. Ekwunoh, 813  F. Supp. 168,                        ___ _____________     _______            178 (E.D.N.Y.  1993), vacated on  other grounds, 12  F.3d 368                                  _________________________            (2d Cir. 1994).  Although that argument has been presented to            this  court, we  have not  yet been  required to  resolve the            issue.   See United States v. Ortiz, 23 F.3d 21, 28 (1st Cir.                     ___ _____________    _____            1994); United States  v. Beasley,  12 F.3d 280, 285 (1st Cir.                   ______________    _______            1993).   Nor are we required to  resolve it here.  The record            clearly supports a finding by a preponderance of the evidence            that appellant reasonably foresaw  the quantity of drugs upon            which his sentence was based.                 "For sentencing purposes, the government must prove drug            quantities by a preponderance of the evidence." United States                                                            _____________            v.  Sepulveda, 15  F.3d  1161, 1198  (1st  Cir. 1993).    The                _________            district  court's  judgment  as  to  the  quantity  of  drugs            reasonably foreseen  by the  appellant will not  be disturbed            unless  clearly erroneous.  See, e.g., United States v. De La                                        ___  ____  _____________    _____            Cruz, 996 F.2d 1307,  1314 (1st Cir.), cert. denied,  __ U.S.            ____                                   ____  ______            __, 114 S.Ct. 356  (1993).  Given that the  mandatory minimum            sentence  applies so long as quantities of five grams or more            are  involved, this  court  need only  determine whether  the            court clearly  erred in attributing that amount of cocaine to            Silva. See Sepulveda, 15 F.3d at 1200.                   ___ _________                 The  record  supports  the   court's  finding  that  the            government  proved by  a preponderance  of the  evidence that            Silva knew or reasonably foresaw that the drug transaction in            which  he participated  involved  five or  more kilograms  of            cocaine.   Both appellant and  the government  relied at  the            sentencing hearing  on transcripts  from the  trial of a  co-                                         -3-            defendant,  Jaime  Corrales, at  which  the  sentencing judge            presided.    Those  transcripts  demonstrate  that Silva  was            responsible  for  making  deliveries  of the  drugs  for  the            conspirators. They further show that at some point during the            transaction, Silva  brought the bag containing nine kilograms            of cocaine to  the owner of the  cocaine. From the weight  of            the  bag alone,  he could  have reasonably  foreseen  that it            contained  five or  more  kilogramos of  cocaine. See  United                                                              ___  ______            States  v. Ortiz, 23 F.3d at 28 (concluding that "there would            ______     _____            be no basis for  finding that defendant did not  foresee that            at least  five  kilograms of  cocaine  were involved  in  his            crimes" where  the bags containing the  cocaine "were visibly            heavy"   and  actually  contained  twenty-five  kilograms  of            cocaine);  United   States  v.   Beasley,  12  F.3d   at  284                       _______________       _______            (concluding   that  record   supported  finding   of  "actual            knowledge"  that transaction involved  more than one kilogram            of heroin  where  the suitcase  in fact  contained more  than            three  kilograms  and defendant  had  lifted  and shaken  the            suitcase.)       There being no clear  error in the  district            court's finding  with respect  to drug  quantity, appellant's            sentence is affirmed.   See 1st Cir. Loc. R. 27.1.                          ________    ___                                         -4-
