
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2124                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     PEDRO REYES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Feinberg,* Senior Circuit Judge,                                      ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Randy Olen, by Appointment  of the Court, with whom  John M.               __________                                           _______          Cicilline, was on brief for appellant.          _________               Margaret E. Curran, Assistant  United States Attorney,  with               __________________          whom Lincoln  C. Almond,  United States Attorney  and Kenneth  P.               __________________                               ___________          Madden,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                   August 30, 1993                                 ____________________                                        ____________________          *  Of the Second Circuit, sitting by designation.                    TORRUELLA,  Circuit   Judge.     Pursuant  to   a  plea                                _______________          agreement,  defendant-appellant Pedro  Reyes pled  guilty to  one          count of conspiracy to  distribute and to possess with  intent to          distribute  cocaine and one count of distribution of cocaine.  In          this appeal, Reyes challenges the district court's calculation of          his guideline sentencing range ("GSR"), contesting the inclusion,          as relevant conduct, of  transactions involving his  codefendant,          which  were the subject of  charges dropped pursuant  to the plea          agreement.  Finding no clear error, we affirm.                                          I                                          I                                          _                    Because Reyes  pled  guilty, we  distill  the  relevant          facts from the Pre-Sentence Report ("PSR") and the  transcript of          the sentencing hearing.   United States  v. Castellone, 985  F.2d                                    _____________     __________          21,  22 (1st  Cir. 1993).   Reyes  and codefendant  Jos  Tav rez-          Tolentio  ("Tav rez")  were  the  subjects  of  a  combined  Drug          Enforcement Administration ("DEA") and local law enforcement drug          investigation.                    On  the  evening  of  Monday, January  27,  1992,  West          Warwick detective Sergeant Peter Appollonia met Tav rez outside a          building at 61 Whipple  Street in Providence, Rhode Island.   The          two  men proceeded  to a  second floor  apartment where  they met          Reyes.   Electric Company records  indicate that Reyes leased the          apartment.  Once inside, Tav rez  produced a bag containing  27.4          grams  of  cocaine  from   the  bathroom;  Reyes  and  Appollonia          negotiated the price of this transaction  and a quantity discount          for  a future  sale of  two ounces of  cocaine.   Appollonia then                                         -2-          inquired if he  could purchase  the two ounces  on Wednesday  and          Reyes told Appollonia  to come  by at anytime.   The  transaction          concluded  when Appollonia paid Reyes $900 for the 27.4 grams and          Reyes counted the money.                    The  next  day, January  28,  1992,  DEA Special  Agent          Botelho  met  Tav rez  at 1455  Mineral  Spring  Avenue  in North          Providence.   Tav rez brought Botelho to  apartment sixteen where          they met a man known  as "Tony."  Tav rez gave Botelho  124 grams          of  cocaine and Botelho paid  him $3,100.   Shortly after Botelho          entered the building on Mineral Street, DEA agents observed Reyes          drive  his BMW,  accompanied by  a grey  Oldsmobile, from  his 61          Whipple Street address to  the building on Mineral Street.   When          the two vehicles arrived, the Oldsmobile proceeded to the rear of          the  building.  Reyes  parked nearby, exited  his vehicle, walked          around the parking lot  adjacent to the Mineral Street  building,          and returned  to his  car where  he waited.   Shortly  before the          transaction between Botelho and  Tav rez was completed, Reyes and          the  Oldsmobile departed  the  area and  returned  to 61  Whipple          Street.     The  DEA  interpreted  Reyes'   actions  as  counter-          surveillance for the deal occurring above in apartment sixteen.                    On  Saturday,   February  1,  1992,   at  approximately          5:30 p.m., detective Appollonia returned  to 61 Whipple Street to          purchase more  cocaine.   He  encountered Reyes  entering a  Ford          Escort  and inquired whether Reyes  had cocaine for  sale.  Reyes          directed Appollonia to  return later,  at which  time he,  Reyes,          would have the cocaine.   Reyes then departed.   At approximately                                         -3-          6:00  p.m., Reyes  returned  to 61  Whipple  Street in  his  BMW,          followed  by  the  grey  Oldsmobile, and  entered  the  building.          Appollonia returned  at 6:07 p.m. and  met Tav rez in  the second          floor  apartment.   Reyes  was not  present.   Tav rez  left  the          apartment  and returned with  54.9 grams of  cocaine.  Appollonia          inquired whether  Reyes had informed  Tav rez that the  price was          set  at  $1,700,  representing the  quantity  discount previously          negotiated.     Tav rez  indicated   that  Reyes  had   done  so.          Appollonia paid for the cocaine and left the premises.                    On  Monday,  February 10,  1992, at  approximately 1:15          p.m., agent Botelho returned  to 1455 Mineral Street to  buy more          cocaine.   He met Tav rez, who  agreed to sell him  four and one-          half ounces of cocaine.  Tav rez left Mineral Street and drove in          a red Toyota wagon registered to Reyes to 61 Whipple Street.                    Approximately 35 minutes later, Tav rez returned to the          Mineral  Street  address.   Botelho  observed  Tav rez and  Reyes          inspecting Botelho's car,  which was parked in the  adjacent lot.          Tav rez again  met with Botelho and claimed that he would have to          go to South Providence to obtain the cocaine.  Tav rez departed a          second time, and  the Toyota and  Reyes' BMW went  to 61  Whipple          Street.   DEA agents observed Tav rez,  Reyes and an unidentified          man  entering the  building.   Tav rez then  returned  to Mineral          Street with 124.1 grams of cocaine.  Botelho alerted other agents          and  Tav rez was  arrested.   Later,  Reyes  was arrested  at  61          Whipple Street, where the police found .18 grams of cocaine.                    Count  one  charged  that  from a  time  unknown  until                                         -4-          February 10, 1992, Reyes and Tav rez conspired to distribute, and          to possess with intent to distribute, cocaine, in violation of 21          U.S.C.    841(a)(1) and 846.  Counts two, three, and four charged          Reyes  and Tav rez with distribution of cocaine on January 27 and          28, and February 1, 1992, in violation of 21 U.S.C.    841(a)(1),          841(b)(1)(B), and  18 U.S.C.    2.  Count five  charged Reyes and          Tav rez  possessed  cocaine  with  intent  to  distribute  it  on          February 10,  1992,  in  violation  of 21  U.S.C.      841(a)(1),          841(b)(1)(C), and 18 U.S.C.   2.  Reyes pled guilty to counts one          and two and the  government dropped the charges in  counts three,          four, and five.                    At sentencing,  the district court  determined the  GSR          based  on the quantity of drugs involved in all the transactions,          including amounts related to the  dropped charges.  The  quantity          therefore was  330.58 grams,  which resulted  in  a base  offense          level of 22.  United States  Sentencing Guidelines   2D1.1(c)(11)          (Drug Quantity Table).  The judge adjusted the base offense level          downward   by  two  levels   for  acceptance  of  responsibility.          U.S.S.G.   3E1.1(a).  With an offense level of 20  and a criminal          history category of  I, the GSR was 33  to 41 months.   The judge          sentenced Reyes to 33 months.                    On appeal,  Reyes contests the calculation  of the GSR,          arguing that he should  be sentenced based  on the 27.4 grams  of          cocaine involved in the  January 27 transaction to which  he pled          guilty.   Based on a 27.4 grams,  the base offense level would be          14,   yielding  an  offense  level  of  12  after  reduction  for                                         -5-          acceptance of responsibility.   Reyes contends therefore that the          GSR ought to have been 10 to 16 months.                                          II                                          II                                          __                    For  the purposes of sentencing,  the key factor is the          quantity of  drugs involved.   That quantity  is "the sum  of the          charged  conduct to  which defendant  pleads plus  his 'relevant'          uncharged  conduct."  United States v. Bradley, 917 F.2d 601, 604                                _____________    _______          (1st Cir.  1990).  "The drug  quantity is to be  derived from all          acts  'that were  part of the  same course  of conduct  or common          scheme or plan  as the offense of conviction.'"  United States v.                                                           _____________          Garc a,  954  F.2d 12,  15 (1st  Cir.  1992) (quoting  U.S.S.G.            ______          1B1.3(a)(2)).  "This court has repeatedly upheld the inclusion as          relevant conduct  of  acts  either not  charged  or  charged  but          dropped."  Id. (citing cases).  In the case of jointly undertaken                     ___          criminal  activity  (whether or  not  charged  as a  conspiracy),          relevant conduct includes all  acts reasonably foreseeable by the          defendant and committed in  furtherance of the jointly undertaken          activity.  U.S.S.G.   1B1.3, comment. (n.1); Castellone, 985 F.2d                                                       __________          at 24; Garc a, 954 F.2d at  15.  To include disputed transactions                 ______          as relevant conduct, the government must prove by a preponderance          of the evidence a sufficient nexus between the conduct underlying          the  dropped charges and the  offense of conviction.  Castellone,                                                                __________          985 F.2d  at 24; United States  v. Sklar, 920 F.2d  107, 110 (1st                           _____________     _____          Cir.  1990).   We accord  considerable deference to  the district          court's  determination that drug  transactions in dropped charges          form part of the  same course of conduct as  counts of conviction                                         -6-          and, absent mistake of law, will set aside those findings only if          clearly  erroneous.  Castellone, 985 F.2d at 24; Garc a, 954 F.2d                               __________                  ______          at 15.                    Reyes  contends that the government  did not prove by a          preponderance  of the  evidence  a sufficient  nexus between  the          charges  of  convictions  and the  January  28,  February  1, and          February 10, 1992 transactions.  Reyes emphasizes that he was not          physically  present  during  these   transactions  and  that  the          district court found that Tav rez operated his own heroin concern          without  Reyes'  participation.   Reyes  asserts  that, like  the          heroin business, Tav rez was distributing cocaine  without Reyes'          knowledge  and   in  furtherance  of   only  Tav rez'  individual          interests.                    With respect to the February  1, and February 10,  1992          drug  deals, Reyes'  assertions are  ridiculous.  To  begin with,          Reyes indicated at the January 27, drug sale, to which Reyes pled          guilty,  that  detective  Appollonia  could come  by  anytime  to          purchase cocaine.  The natural inference is that Reyes operated a          cocaine  distribution   business.    On   February  1,  detective          Appollonia encountered  Reyes outside  Reyes'  61 Whipple  Street          address,  and asked to purchase cocaine.   Reyes asked Appollonia          to  return  later  when the  cocaine  arrived.    Reyes left  the          building and returned.   Moments later, Appollonia entered Reyes'          second floor apartment and purchased cocaine from Tav rez.  Reyes          was  not observed leaving the building.  The district judge could          fairly infer that Reyes  had brought the cocaine back  to Whipple                                         -7-          Street, allowing Tav rez to conduct the actual sale.                    The  February 10  transaction  is  similarly linked  to          Reyes.     Although  the  drug  buy   involved  a  different  law          enforcement agent, Botelho, and  occurred at a different address,          1455 Mineral Street, Tav rez drove a vehicle  registered to Reyes          to Reyes' apartment; returned with Reyes to Mineral Street, where          the  two observed  Botelho's  vehicle and  the surrounding  area;          again returned  to Whipple  Street with Reyes;  and finally  went          back to Mineral Street to sell Botelho the cocaine.   This series          of  actions supports an inference  that Tav rez had  to clear the          sale  with Reyes,  that  the two  conducted  an investigation  of          Mineral  Street before  proceeding, and  that Reyes  provided the          cocaine from the Whipple Street address.                    The  evidence   connecting  Reyes  to  the  January  28          transaction admittedly is less  convincing.  When considered with          the  three other drug deals, however, we cannot conclude that the          district court's  inclusion of this evidence  as relevant conduct          was clearly erroneous.  The  other three transactions support the          inference  that  Tav rez and  Reyes  worked  closely together  on          cocaine  sales  and  that Reyes  was  the  supplier.   Given  the          reconnaissance mission  during the  February 10 transaction,  the          visit  paid to the parking lot at  Mineral Street by Reyes in his          BMW and the grey Oldsmobile during the January 28 deal would also          appear to be surveillance.   The district court could  reasonably          infer  from  all the  evidence  that the  conduct  underlying the          dropped charges formed part of the same course of conduct.  As we                                         -8-          made clear in United States v. Ruiz, 905 F.2d 499,  508 (1st Cir.                        _____________    ____          1990),  "where there  is  more than  one  plausible view  of  the          circumstances,  the sentencing  court's choice  among supportable          alternatives cannot  be clearly  erroneous."  The  district court          therefore was entitled to include the quantities  of cocaine from          all the transactions when determining the GSR.                    Finding no clear error, we affirm.                                               ______                                         -9-
