February 8, 1993
                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1709

                        UNITED STATES,

                          Appellee,

                              v.

                     PAUL J. CASTELLONE,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Francis J. Boyle, U.S. District Judge]
                                                    

                                         

                            Before

                     Selya, Circuit Judge,
                                         
              Bownes, Senior Circuit Judge, and
                                          
                    Stahl, Circuit Judge.
                                        

                                         

Edward  J.  Romano with  whom  Michael  Devlin  was  on brief  for
                                              
appellant.

Stephanie S. Browne,  Assistant United States Attorney, with  whom
                   
Margaret E.  Curran, Assistant United  States Attorney and  Lincoln C.
                                                                  
Almond, United States Attorney, were on brief for appellee.
  

                                         

                       February 8, 1993
                                         

          STAHL,  Circuit Judge.  Defendant-appellant Paul J.
                               

Castellone pled guilty to a two-count information in which he

was charged  with distribution of marijuana,  in violation of

21  U.S.C.    841(a)(1).  He  was sentenced  to 21  months of

imprisonment and three years of  supervised release.  In this

appeal,  Castellone challenges  his sentence  on two  grounds

related to  the district  court's calculation of  the offense

level assigned to  his conviction.   Specifically,  defendant

argues:  1) that  the court erroneously included as  relevant

conduct certain amounts of marijuana sold by a coconspirator;

and  2) that  the court  should not  have ascribed  to him  a

managerial role in the  offense.  As we find  these arguments

persuasive, and the government has candidly made us aware  of

an  apparent   mathematical  error   in  the   offense  level

calculation, we remand for resentencing.

                              I.
                                

                          Background
                                    

          Because  Castellone  pled  guilty,  we  garner  the

relevant  facts from  the  probation  officer's  Pre-Sentence

Report (PSR)  and the  transcript of the  sentencing hearing.

United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).  In
                       

early   January   1992,  Detective   Michael  Purro   of  the

Providence,   Rhode  Island,   Police  Department   began  an

undercover   investigation   of   marijuana  trafficking   by

Castellone  and Roland R. Chaput.   Purro was  assisted by an

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                              2

agent  from  the  federal  Bureau  of  Alcohol,  Tobacco  and

Firearms.

          On  January  9,  1992,  Detective  Purro,  in   his

undercover  capacity, purchased  one pound of  marijuana from

Castellone  for $2,200  ("the first  sale").   The next  day,

Purro purchased  another pound  of marijuana  from Castellone

for  the same  price ("the  second sale").   Both  sales took

place in the late afternoon at a Dunkin Donuts on East Street

in Providence.   Prior  to the  second  sale, Purro  followed

Castellone  to the  Dunkin  Donuts parking  lot and  observed

Chaput  arrive  and  enter  Castellone's  car.    Purro  then

approached  Castellone's  vehicle   and  introduced   himself

directly to Chaput, whom he believed, correctly, as it  later

turned out, to be Castellone's supplier.

          At some point between January 10 and 16, Castellone

and Purro discussed  a sale of five pounds of marijuana and a

handgun.  Castellone told  Purro that he had been  in contact

with Chaput and would be able to execute the sale.  Since law

enforcement officials  considered Chaput to be a higher-level

dealer and a more important target than Castellone, Detective

Purro decided  to exclude  Castellone from any  future deals,

and  instead  buy  directly  from Chaput.    After  obtaining

Chaput's  phone number from  a confidential  informant, Purro

contacted him and after discussion was offered five pounds of

marijuana for $1700 per pound ("the third sale").  Castellone

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                              3

was totally unaware of  the third sale or the  direct contact

between Purro and Chaput.

          On January  16, 1992, at  approximately 6:30  p.m.,

Chaput,  Purro, and two other men, Robert Laiter and Peter M.

Leite, all arrived at the Dunkin Donuts in separate vehicles.

Chaput retrieved a handgun from Laiter's car and delivered it

to  Purro.   Chaput, Laiter  and Leite  were all  arrested as

Chaput was removing the marijuana  from the trunk of  Leite's

car.   Law enforcement agents found  five, approximately one-

pound packages of marijuana in the trunk.1

          Castellone was  not present at the  third sale, but

was later  arrested pursuant to  a warrant.   He subsequently

agreed to plead  guilty to an  information charging him  with

the first two marijuana deals.   He also agreed to assist the

government  in its  attempts  to arrest  others  in the  drug

trade.  In  return for his cooperation, the government agreed

not to charge him with  conspiring with Chaput to  distribute

marijuana.  The plea agreement also indicated that the weight

of the two sales  to which Castellone was pleading  was 908.7

grams.   Moreover, the government agreed it would not seek to

hold  Castellone responsible  at sentencing  for the  2,300.3

grams  or the firearm seized at the January 16, 1992, arrest.

                    

1.  The total weight of the five packages was  2,300.3 grams.
As  a  pound  contains  454 grams,  the  contraband  slightly
exceeded five pounds.

                             -4-
                              4

Finally, the government agreed to recommend a sentence at the

low end of the applicable guideline range.

                             II.
                                

                          Sentencing
                                    

          In  calculating  Castellone's  base  offense  level

("BOL"), the probation officer used a total quantity  of 3209

grams  of marijuana.  This  amount included the 2,300.3 grams

Chaput  delivered to Purro at the third  sale, as well as the

908.7 grams  Castellone sold directly  to Purro at  the first

two sales.  Applying the Sentencing Guidelines' Drug Quantity

Table, U.S.S.G.   2D1.1(c), the probation officer tabulated a

BOL of 12, applicable to  quantities of marijuana between 2.5

and five  kilograms.  The BOL was increased by two levels for

Castellone's  managerial  role  in the  offense,  U.S.S.G.   

3B1.1(c),  and  decreased by  two  levels  for acceptance  of

responsibility.     After  assigning  Castellone  a  criminal

history category  of I, the probation  officer concluded that

Castellone's offense level was 12, with a resulting guideline

range of 10 to 16 months.

          Prior to  sentencing,  Castellone objected  to  the

inclusion of  the 2300.3  grams of  marijuana from  the third

sale  as  relevant  conduct,  as  well  as  to  the two-level

adjustment for a managerial role in the offense.   At the May

19, 1992, sentencing hearing, the defense put Detective Purro

on  the  stand to  testify  about,  inter alia,  Castellone's
                                              

                             -5-
                              5

involvement--or  lack thereof--in  the  third sale.   At  the

close  of the hearing, the trial court expressed concern over

what  it   thought  to   be  an  inconsistency   between  the

government's plea agreement obligation not to hold Castellone

responsible for  the third sale, and  the probation officer's

statement  that in  response to  Castellone's objection,  the

government  was  prepared   to  present  evidence   regarding

Castellone's role in the third sale.   Accordingly, the trial

court gave  Castellone the  option of withdrawing  his guilty

plea.    Castellone  declined,  and  the  sentencing  hearing

reconvened   on  June  15,  1992,  whereupon  the  government

reiterated   its   position   that  defendant   was   legally

responsible only for  the 908.7 grams  of marijuana from  the

first  two  sales.     The  court,  however,  questioned  the

government's  decision  to  forego  inclusion of  the  2300.3

grams.  In response, the government cited the plea agreement,

which,  in turn, was based on its conclusion that the element

of  foreseeability of  the  third  sale,  as  it  related  to

Castellone, was "questionable."  The trial court then ordered

further testimony from  Purro, to elaborate on what,  if any,

nexus   existed   between   Purro   and   Castellone's   last

conversation and the third sale. 

          Following Purro's testimony, and  defense argument,

the court found that Castellone initiated the third  sale and

that  he  took two  actions in  furtherance  of that  sale by

                             -6-
                              6

initiating the negotiations  with Purro and by  communicating

Purro's  marijuana and  handgun order  to  Chaput.   Based on

those  findings,   the  court  ruled  that   the  third  sale

constituted relevant conduct  for which Castellone  should be

held responsible.

          Next, having heard argument  regarding Castellone's

role in the  offense, the trial court found that Castellone's

negotiations  in the first  two sales and  involvement in the

third supported  an offense  level increase for  a managerial

role.  Castellone appeals these two findings.

                             III.
                                 

                          Discussion
                                    

          At the outset, we  note that remand is in  order to

correct   an  apparent  mathematical   error  in  calculating

Castellone's offense level,  irrespective of our decision  on

the  merits  of   the  trial  court's  findings.2    A  brief

explanation follows.

          The court found that  the third sale, involving the

2300.3  grams  of marijuana  and  the  handgun, was  relevant

conduct  for  purposes  of  determining  Castellone's offense

level.    As noted,  supra, p.  3,  this amount  of marijuana
                          

yielded a  BOL of 12.   The firearm added two  levels, to 14.

                    

2.  Although Castellone failed to raise this  argument before
the trial  court, we do  have jurisdiction  to correct  plain
error.  United States v. Morales-Diaz, 925 F.2d 535, 539 (1st
                                     
Cir. 1991).

                             -7-
                              7

U.S.S.G.   2D1.1(b)(1).3   The court's ruling on Castellone's

managerial  role  added  two  more levels,  resulting  in  an

adjusted offense level of 16.  U.S.S.G.   3B1.1(c).  Finally,

the court agreed that Castellone was entitled to a  two-level

reduction for  his acceptance  of responsibility, U.S.S.G.   

3E1.1(a),  suggesting an  offense  level of  14, which,  when

coupled  with  a  criminal   history  category  I,  yields  a

sentencing range of 15  to 21 months. U.S.S.G.    5, Part  A,

Sentencing Table.  The court, however, after factoring in the

relevant conduct, erroneously began  with an offense level of

18, which it  reduced to 16 based on  Castellone's acceptance

of  responsibility.    Thereafter, consistent  with  the plea

agreement,  the  trial  court  sentenced  Castellone  at  the

lenient end of the 21 to 27 month range called for by offense

level  16.   While we  might assume  that the  district court

would again follow the plea agreement and sentence Castellone

to the bottom end of the corrected guideline range, our other

rulings relative  to the  instant sentence require  remand of

                    

3.  The PSR  omitted reference to  the firearm, and  thus did
not account for the two-point  upward adjustment.  The  trial
court, however, explicitly found that the gun, as part of the
third sale, was relevant conduct  attributable to Castellone.
While Castellone does not  specifically appeal the  propriety
of  the handgun increase, he  did object to  and has appealed
the  inclusion of  the  third sale.    The handgun  increase,
therefore, succeeds or fails concomitant with the third sale,
without meriting separate discussion.

                             -8-
                              8

this item  as well.4   We turn now to  the substantive issues

on appeal.

A.  Relevant Conduct--The Third Sale
                                    

          Pursuant to  U.S.S.G.   2D1.1(c), the  BOL for drug

trafficking offenses  depends on  the quantity of  contraband

attributable to the defendant.  For sentencing purposes, this

total  includes  the amount  to  which  the defendant  pleads

guilty, as well as any  relevant uncharged conduct.   Garcia,
                                                            

954 F.2d at 15  (citations omitted).  "[D]rugs not  specified

in  the count of conviction are to be included in determining

the offense  level if they  were part  of the same  course of

conduct or  part of a common  scheme or plan as  the count of

conviction."   U.S.S.G.    1B1.3, comment. (background).   In

cases  involving  drug  conspiracies,  relevant  conduct also

includes "all reasonably  foreseeable acts  and omissions  of

others  in  furtherance  of"  the  conspiracy.    U.S.S.G.   

1B1.3(a)(1)(B); Garcia, 954 F.2d  at 15.  In order  to factor
                      

the  quantities  associated with  relevant  conduct into  the

sentencing  formula,  the  government  must  establish  by  a

preponderance of the evidence  that a sufficient nexus exists

between the conduct  at issue and the  offense of conviction.

United  States v. Sklar, 920  F.2d 107, 110  (1st Cir. 1990).
                       

                    

4.  Because  of  our  decision  today,  the low  end  of  the
applicable  guideline  range  may  lead  to  a  sentence  not
involving  incarceration.   We  leave  that  decision to  the
district court.

                             -9-
                              9

We will set aside  the district court's findings  on relevant

conduct only if they are clearly erroneous.  United States v.
                                                          

Camuti, 950 F.2d 72, 74 (1st Cir. 1991).
      

          As he  did below,  Castellone argues here  that the

government's  decision to "cut him out" of the third sale and

deal directly  with Chaput  without his  knowledge inoculates

him  from responsibility for the  sale.  Castellone bases his

argument  on  the following  undisputed facts.   Castellone's

relationship  with Purro was  severed after  only preliminary

conversations  relative to  the  third sale  wherein the  two

never agreed  that a sale would take place, or on a price for

such  a sale.   Furthermore,  due to  his own  profit motive,

Castellone did  not want Purro to deal  directly with Chaput,

did not know Purro was going to do so, and  did not know that

the third sale had occurred until after his arrest.  

          The trial court, however, found that Castellone and

Chaput  had formed a  conspiracy to sell  marijuana, and that

Castellone initiated  the negotiation for the  third sale and

communicated Purro's third sale request to Chaput.  The court

then determined that  the third sale was both  foreseeable to

Castellone and in furtherance  of the conspiracy.  Therefore,

the trial court  concluded that the  third sale was  relevant

conduct for purposes  of sentence calculation.   Based on the

following, we disagree.

                             -10-
                              10

          In analyzing  this situation,  we find that  two of

our  recent decisions offer  direction.  In  United States v.
                                                          

Wood,  924  F.2d  399  (1st Cir.  1991),  the  defendant  was
    

convicted of one narcotics sale.  At sentencing, the district

court placed  additional, uncharged  sales into the  relevant

conduct category.   We ruled  that an uncharged  sale between

defendant's wife and  a drug supplier, of which the defendant

had  no  knowledge  until  after  the  fact,   could  not  be

considered relevant conduct for  sentencing purposes.  Id. at
                                                          

404-05.   We  rested  our  decision  on  the  fact  that  the

defendant  "in  no  way  conspired to  facilitate  the  deal;

indeed, he had no knowledge that his wife was engaged in drug

transactions   with   anyone   other   than   himself."   Id.
                                                             

Subsequently,  we  upheld  a  district  court's  decision  to

include   as   relevant  conduct   drug  sales   between  the

defendant's  coconspirator and  an undercover  agent, despite

the  fact that the  defendant was not  personally involved in

the later sales.  Garcia, 954 F.2d at 16-17.   A fair reading
                        

of  Garcia, however,  indicates  that the  defendant and  his
          

coconspirator   worked  as  a  team  to  sell  drugs  to  the

undercover officer.  As we noted:

           "Garcia introduced [his coconspirator to
                                                   
          the  undercover  agent]  for the  express
                                 
          purpose     of      facilitating     drug
          transactions.  He was aware of the nature
                                                   
          and salient details  of the  relationship
                                                   
          that  developed  between  the   two  men.
                                                   
          There   was   no  evidence   of  Garcia's
          affirmative    withdrawal     from    the

                             -11-
                              11

          conspiracy  or  of any  other intervening
                                                   
          event     materially    affecting     the
                                                   
          trafficking calculus."  
                               

Id. at 16 (emphasis added).  We stated that "the measure of a
   

defendant's  accountability for drug transactions in which he

was  not personally  involved is  usually congruent  with the

scope of  his agreement with  the other  participants in  the

enterprise."     Id.  (citation   omitted).     We  therefore
                    

distinguished  Wood  on the  ground that  "Garcia's agreement
                   

with  his  coconspirator  []  could  reasonably  be  said  to

transcend the initial series of transactions."  Id. 
                                                   

          Here, with  Wood and  Garcia as our  guideposts, we
                                      

find that Castellone was sufficiently detached from the third

sale  so that it stands alone, and  not as part of an overall

course of  conduct.  Based  on our  review of the  record, we

doubt whether  Castellone could have foreseen  that the third

sale, about which  he knew  nothing, would take  place as  it

did,  from  Chaput  directly  to  Purro.   And  although  the

evidence  supports  the   district  court's  conclusion  that

Castellone  and  Chaput  had  formed  a  conspiracy  to  sell

marijuana,  there is no evidence  that the third  sale was in

furtherance of  a common plan between  Castellone and Chaput.

Just as the defendant in Wood  had no knowledge that his wife
                             

dealt  with anybody  but  him, Castellone  had  no reason  to

expect Purro to  deal directly  with Chaput.   The record  is

clear  that Castellone  was little  more than  a street-level

                             -12-
                              12

"retail" dealer, and that Chaput was his "wholesaler," rather

than  his  partner.   This  conclusion  is  supported by  the

circumstances  of the  first  two sales,  wherein  Castellone

bought  marijuana from  Chaput, and  sold it  to Purro  for a

several hundred dollar profit.5   As for the third  sale, the

record  does not  support the  trial court's  conclusion that

Castellone  initiated  the negotiations.    Purro's testimony

indicated  only that  the two  "had communication"  after the

second sale, but is  silent as to the instigator.   Moreover,

while  the record  does support  the finding  that Castellone

told Chaput  of Purro's  interest in another  sale, there  is

nothing in the  record to indicate that  Castellone's call to

Chaput  was anything  other than part  of the  previous modus
                                                             

operandi.  In other  words, after Purro made the  request for
        

more marijuana and a gun, Castellone attempted to accommodate

him  by contacting  his supplier.   There  is nothing  in the

record  to  indicate that  Castellone's  call  to Chaput  was

intended to facilitate the Chaput-Purro transaction.  Indeed,

such   a  conclusion   defies  logic,   because   the  record

demonstrates  that  Castellone's  only  source  of narcotics-

related income  was his own  "retail" operation.   Unlike the

defendant in Garcia, Castellone  was in business for himself.
                   

Also   unlike  the  scenario   in  Garcia,  Castellone  never
                                         

                    

5.  The  exact amount  of  Castellone's  per-pound profit  is
disputed.      Resolution   of   that   issue,   however,  is
insignificant to our analysis.

                             -13-
                              13

introduced Purro to  Chaput.   Had events  taken their  usual

course, as Castellone had  every reason to expect, Castellone

would  have  again  purchased  the  contraband  from  Chaput,

factored in a profit,  and re-sold it to Purro.   Castellone,

however, never again discussed the sale with Purro, as he had

been,  unbeknownst to  him, bypassed.   This  is akin  to the

"intervening  event" adverted to in  Garcia.  Thus, there was
                                           

no evidence from which the court could properly find that the

third sale  was in furtherance  of a common  scheme involving

Castellone  and Chaput.   Accordingly,  we find  the district

court's inclusion of the third sale as relevant conduct to be

clearly erroneous.6

B.  The Managerial Role
                       

          Despite  entreaties  from  both  the   defense  and

government, the trial  court assessed Castellone a  two-level

increase in  his BOL  for his role  as a manager  of criminal

activity  pursuant to U.S.S.G   3B1.1(c).  Upon review of the

record, we find this increase legally insupportable.

          At the  outset, we  note that the  government bears

the  burden   of  proving  that  an   upward  adjustment  was

warranted.   United States v.  Ortiz, 966 F.2d  707, 717 (1st
                                    

Cir.  1992), cert.  denied, 61 U.S.L.W.  3479 (U.S.  Jan. 11,
                          

                    

6.  We are not  unmindful of  our recent  decision in  United
                                                             
States  v.  Moran,  No.  91-1772  (1st  Cir.  Jan 20,  1993).
                 
However, we  view the  facts of this  case quite  differently
than those in Moran.
                   

                             -14-
                              14

1993) (No. 92-6552).  To meet its burden, the government must

demonstrate that Castellone exercised "some degree of control

over others involved in  the commission of the offense  or he

must  have been  responsible  for organizing  others for  the

purpose of carrying out the crime."  United States v. Fuller,
                                                            

897  F.2d  1217, 1220  (1st Cir.  1990).   Here, we  find the

record devoid  of evidence  of such control  or organization.

On appeal, the  government argues that Castellone  determined

who purchased, when and  where sales took place, prices,  and

profit.  Thus,   the  argument  goes,   it  was  Castellone's

decisions on those matters  that effectuated his control over

when and where Chaput and  others presented themselves.  With

respect to  the first part of  the argument, the  same can be

said of  any independent, street-level  dealer.  In  fact, no

street-level drug sale could ever be made without a customer,

a time and  location for the sale, and a price.  Furthermore,

the profit  Castellone determined was his  own, not Chaput's.

Moreover, the second part of the argument is unsubstantiated.

There  is simply  no evidence  that Castellone  exercised any

control  over the  movement of  Chaput--or  anyone else.   In

ruling in favor of the increase, the trial court stated:

          It's  not necessary that a [d]efendant be
          the  CEO  of the  operation  to  be in  a
          managerial  role.    Here,  there  is  no
          question    but   that    the   Defendant
          negotiated the first two transactions and
          began  the  negotiations  for  the  third
          transaction, and along  with Mr.  Chaput,
          the  transactions were  carried out.   It

                             -15-
                              15

          seems to me  those facts  do establish  a
          managerial role on his part. . . .

Conspicuously lacking from the  court's analysis, however, is

any finding  that Castellone  organized or  exercised control

over  others--that  is,  that  he "managed"  or  "organized,"

within the meaning  of section 3B1.1(c).7   We have  recently

stated that an upward  BOL adjustment "must be based  on more

than  the  trial  judge's  hunch, no  matter  how  sound  his

instincts or how  sagacious his judgment."   Ortiz, 966  F.2d
                                                  

707, 717 (1st Cir. 1992).  The evidence in this case does not

support such an adjustment.

          Appellant's  sentence  is vacated  and the  case is
                                                             

remanded to the district court for resentencing in accordance
                                                             

with this opinion.
                  

                    

7.  By  comparison, Chaput,  who  also  received a  two-level
managerial   role   adjustment,   was   accompanied   by  his
subordinates at the third sale.

                             -16-
                              16
