
USCA1 Opinion

	




          December 15, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2453                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    DAVID PHELAN,                                Defendant, Appellant.                                 ____________________        No. 92-2454                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   STEPHEN LILLIS,                                Defendant, Appellant.                                 ____________________        No. 92-2455                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    RAYMOND LUCE,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this court issued  on December 6, 1994,  is amended        as follows:            On page 4,  last line, replace the  word "undertake" with the word        "undertaken".        December 6, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2453                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    DAVID PHELAN,                                Defendant, Appellant.                                 ____________________        No. 92-2454                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   STEPHEN LILLIS,                                Defendant, Appellant.                                 ____________________        No. 92-2455                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    RAYMOND LUCE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Roger A. Cox, by Appointment of  the Court, for appellant  Stephen            ____________        Lillis.            David Phelan on brief pro se.            ____________            Raymond Luce on brief pro se.            ____________            Ronald Cohen, by Appointment of the  Court, on brief for appellant            ____________        Raymond Luce.            George W.  Vien, Assistant  United States  Attorney, with whom  A.            _______________                                                 __        John Pappalardo, United States  Attorney, and Donald K. Stern,  United        _______________                               _______________        States Attorney, were on briefs for the United States.                                  ____________________                                 ____________________                 BOUDIN,  Circuit  Judge.     From  1988  through   1991,                          ______________            appellant    Stephen    Lillis'   drug    organization   sold            phencyclidine  ("PCP"   or  "angel  dust")   in  and   around            Cambridge, Somerville and Charlestown, Massachusetts.  PCP is            usually  smoked   after  it  has  been   diluted  with  other            substances.   Lillis and his associates  would procure PCP in            liquid  form, and  then treat  mint leaves  with  the liquid,            making  it smokable.  These treated mint leaves would be sold            in packages to customers who contacted the ring by calling an            electronic-beeper "800"  telephone number.   A street  dealer            for the ring--such as  co-appellants David Phelan and Raymond            Luce--would return the call  and arrange for a place  to meet            to complete the sale.                   Lillis, Phelan,  and Luce  stood trial together  in late            April 1992.  All were convicted of one count of conspiracy to            possess  PCP  with  intent  to  distribute.    21  U.S.C.                841(a)(1), 846.  Lillis was also convicted  of several counts            of  possession  with  intent   to  distribute,  21  U.S.C.               841(a)(1), and Luce was convicted of one such count.  Lillis,            classified as  an organizer, U.S.S.G.    3B1.1(a), received a            262-month sentence,  and Phelan a 151-month  sentence.  Luce,            largely  due to  the  trial judge's  finding  that he  was  a            "career offender," see  U.S.S.G.   4B1.1 et  seq., received a                               ___                   ________            360-month sentence.                                           -3-                                         -3-                 On this  appeal, each  of the appellants  challenges his            sentence.  Lillis' target  is the trial judge's determination            that the  Lillis organization distributed  or possessed  with            intent to distribute between three and ten kilograms of  PCP.            Findings as  to drug  quantities are  factual, and  we review            them only for clear error.  United States v. Whiting, 28 F.3d                                        _____________    _______            1296, 1304 (1st Cir.),  cert. denied, 115 S. Ct.  379 (1994).                                    ____________            "[T]he  sentencing  court has  broad discretion  to determine            what data is, or  is not, sufficiently dependable to  be used            in imposing sentence."   United States  v. Tardiff, 969  F.2d                                     _____________     _______            1283,  1287  (1st  Cir.   1992).    Yet,  because  guidelines            sentences vary  dramatically depending upon drug quantity, we            have  stressed that  district  courts must  exercise care  in            making quantity assessments.   United States v. Sepulveda, 15                                           _____________    _________            F.3d 1161, 1196  (1st Cir.  1993), cert. denied,  114 S.  Ct.                                               ____________            2714 (1994).                 Here, the  district court attributed  to the  conspiracy            between  three and  ten kilograms  of a mixture  or substance            containing PCP.  U.S.S.G.    2D1.1(a)(3),  (c).  The district            judge  based his findings on the evidence presented at trial.            At sentencing,  he set  forth and  explained his  findings in            detail.   The district  court  relied most  heavily upon  the            trial  testimony of  Robert Knapik,  a dealer  in the  Lillis            organization  through  much  of  1988  and  1989.   Based  on            Knapik's   testimony,  the  district  court  found  that  the                                         -4-                                         -4-            conspiracy had in its possession two one-gallon containers of            PCP.   Using  the unchallenged  figure  of 2.64  kilograms  a            gallon, this is obviously more than three kilograms.                 Lillis' claim that the district court erred is based  on            a misreading  of the  Knapik testimony.   Knapik  agreed that            "throughout  the entire course of [his]  stay there [he] only            observed  one liquid gallon of  PCP."  But immediately before            that  statement, Knapik  made  clear that  he was  testifying            solely about a Reading location  used by the ring.  In  other            testimony, he testified that  he saw a gallon of  PCP at what            was apparently a Cambridge  location also used by the  ring.             We  note  also  that none  of  the  parties  objected at  the            sentencing  hearing when  the  district court  said that  two            gallons were proved.                 Even  if  Knapik   observed  only   one  liquid   gallon            altogether,  it  appears  that  this  would  not  affect  the            outcome.  He also testified to the  presence of at least five            pounds of  treated  mint  leaves,  which--together  with  one            liquid  gallon--would  more  than exceed  the  three kilogram            minimum.    Further,  while  these  were  the  most  specific            figures,   there  was   considerable  testimony   from  other            witnesses  at trial  about  the  scope  and duration  of  the            conspiracy that made the  three kilogram figure plausible, if            not  modest, as  an  estimate of  the  conspiracy's scale  of            operations.                                         -5-                                         -5-                 Luce and Phelan argue  that they were essentially street            dealers  and not responsible for the large amount of PCP that            the organization  sold.   Under the Sentencing  Guidelines, a            conspirator  is responsible  for "all  reasonably foreseeable            acts and  omissions of others  in furtherance of  the jointly            undertaken  criminal  activity,   that  occurred  during  the            commission of  the offense of conviction,  in preparation for            that  offense,  or  in  the  course  of attempting  to  avoid            detection or  responsibility for  that offense."   U.S.S.G.              1B1.3(a)(1)(B).  This guideline language was added  effective            November 1, 1992, after the appellants were sentenced, but so            far as pertinent it is merely a clarification of more oblique            earlier  language   in  force  when  Luce   and  Phelan  were            sentenced.   See United  States v. Valencia-Lucena,  988 F.2d                         ___ ______________    _______________            228, 234 n.5 (1st Cir. 1993).                 The    organization's    activities   were    reasonably            foreseeable to  both  Luce and  Phelan.   Although  the  ring            handled a large volume  of PCP, the  number of people in  the            ring  was  comparatively small,  and the  small size  of this            group suggests that each of its members knew generally of the            organization's   scope  and   the  amount   of  PCP   it  was            distributing.  Moreover, Knapik saw Phelan deliver liquid PCP            and  treated mint  leaves to  the Reading  apartment "two  to            three times,"  and testified  that Phelan delivered  PCP from            New  York to  Massachusetts.   Knapik observed  Phelan making                                         -6-                                         -6-            anywhere from 200 to  1,000 sales for the organization.   The            district court was  entitled to believe that Phelan  had more            sales than those seen by Knapik.                 For his part,  Luce was an  important street dealer  who            worked several shifts for  the Lillis organization and played            a role in preparing  the PCP for market.   Theresa Marrapodi,            Luce's former girlfriend, gave  grand jury testimony that she            saw Luce assist Lillis  in treating the mint leaves.   Knapik            testified that Luce worked a regular evening shift as well as            Saturdays,  and  a number  of  customers  testified to  their            dealing with  him.  While  these purchases  do not add  up to            three kilograms, they indicate that  Luce worked at the heart            of the Lillis organization.                 Luce  challenges the  court's use  of Marrapodi's  grand            jury testimony in sentencing, since she was not presented for            cross-examination.    But reliable  hearsay  can  be used  at            sentencing.  United States v. Zuleta-Alvarez, 922 F.2d 33, 36                         _____________    ______________            (1st  Cir.  1990), cert.  denied, 500  U.S.  927 (1991).   In                               _____________            particular, it is settled that district  judges may use grand            jury  testimony   provided  it  has  sufficient   indicia  of            reliability.   See United  States v.  Williams, 10  F.3d 910,                           ___ ______________     ________            914-15  (1st Cir.  1993).   The  factors  that we  listed  in            Williams--testimony given  under oath  and in a  formal grand            ________            jury proceeding--apply with equal force here.                                         -7-                                         -7-                 Luce also contends that the trial judge acted unlawfully            in sentencing him as a "career offender" pursuant to U.S.S.G.              4B1.1.   He points to  21 U.S.C.   851(a)(1),  which states            that "[n]o person  who stands convicted  of an offense  under            this  part  shall be  sentenced  to  increased punishment  by            reason  of  one  or  more prior  convictions,  unless  before            trial . . . the United States  attorney files an  information            with   the  court . . . stating   in  writing   the  previous            conviction to  be relied  upon."   Since  no information  was            filed, and since he received a greater sentence due to career            offender  status,  Luce reasons  that  his  sentence must  be            vacated.                 Section 851(a)(1)  does not apply to  sentence increases            under the Sentencing Guidelines but  only to increases in the            statutory  maximum  or  minimum  penalty  based  on  a  prior            _________            conviction.  United States v. Sanchez, 917 F.2d 607, 616 (1st                         _____________    _______            Cir. 1990), cert. denied, 499 U.S. 977 (1991).  Every circuit                        ____________            to  consider the issue agrees.   See, e.g.,  United States v.                                             _________   _____________            Koller,  956  F.2d 1408  (7th  Cir. 1992);  United  States v.            ______                                      ______________            Whitaker,  938 F.2d 1551 (2d Cir. 1991), cert. denied, 112 S.            ________                                 ____________            Ct. 977  (1992).   Here, Luce's  indictment charged  him with            conspiracy  to possess more than one kilogram of PCP with the            intent  to  distribute  it,  a felony  that  carries  with  a            statutory  minimum  of  ten  years  and  a  maximum  of  life                                         -8-                                         -8-            imprisonment,  21  U.S.C.    841(b)(1)(A)(iv),  and  he   was            sentenced within that range.                 Finally, the district  court did not err  by refusing to            sever Luce's trial from that of Phelan and Lillis.  We review            the trial judge's refusal to sever "only for a manifest abuse            of discretion resulting in a miscarriage of justice."  United                                                                   ______            States  v. Welch, 15 F.3d  1202, 1210 (1st  Cir. 1993), cert.            ______     _____                                        _____            denied, 114 S. Ct. 1661 (1994).  Luce   has   made  no   such            ______            showing of unfair prejudice  and, because a single conspiracy            was  plausibly  charged,  the  testimony  against  Lillis and            Phelan would generally have been admissible against Luce even            if  his trial  had  been  severed.    See  United  States  v.                                                  ___  ______________            Innamorati, 996  F.2d 456, 469 (1st Cir.),  cert. denied, 114            __________                                  ____________            S. Ct. 409, 114 S. Ct. 459 (1993).                 Affirmed.                 ________                                         -9-                                         -9-
