
USCA1 Opinion

	




        December 30, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 93-1029                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                              DANIEL A. ATILIO-ADINOLFI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Benicio  Sanchez Rivera, Federal  Public Defender, and Miguel A.A.            _______________________                                ___________        Nogueras-Castro, Assistant  Federal  Public  Defender,  on  brief  for        _______________        appellant.            Charles  E. Fitzwilliam, United  States Attorney, Carlos A. P rez,            _______________________                           _______________        Assistant United States Attorney, and  Jos  A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Defendant-appellant  Daniel  Atilio                      ___________            Adinolfi  pleaded guilty  on September  10,  1992 to  several            counts  of  an  indictment charging  him  with  conspiracy to            possess with intent to distribute narcotics, distribution  of            narcotics,   and  possession   with   intent  to   distribute            narcotics.   From  October 22  to 29,  1992, one  of Atilio's            alleged co-conspirators, Jairo Giraldo Parra, was tried under            the same indictment.  On December 16, 1992, following receipt            of the presentence  investigation report ("the PSI  report"),            the  district court sentenced  Atilio to concurrent  terms of            ninety-two months'  imprisonment on each  count, a supervised            release term of five years, and a special monetary assessment            of $ 350.   In arriving at this sentence under the sentencing            guidelines,  the  district  court  made  a  two-level  upward            adjustment in Atilio's  offense level pursuant to  U.S.S.G.              3B1.1(c)  on  the  ground  that  Atilio  was a  "manager"  or            "supervisor"  in   the  narcotics   distribution  conspiracy.            Atilio appeals from this upward adjustment.  We affirm.                       In  explaining  its   ruling  that  Atilio   was  a            "manager" or  "supervisor" in this criminal organization, the            district court stated,                      The Court  has heard argument  of counsel                      and  has heard  the defendant and  is now                      ready to  rule on  the issue  of the  two                      points  on  the  issue of  supervisor  --                      supervisory  role.  The  -- this Court is                      in  a  position  to rule  on  this  issue                      particularly because I  presided over the                      trial   of  Jairo   Giraldo  Parra,   and                                         -3-                      certainly   the   facts  in   that   case                      establish that -- those facts establish -                      -   establishes   that    the   defendant                      Adinolfi, Atilio Adinolfi, certainly held                      a position of trust and confidence with -                      - within Giraldo Parra's drug trafficking                      organization  and he  certainly played  a                      supervisory role, a very important role.                      He   was   present   at   most   of   the                      transactions.   He also drove with one of                      the  agents   who  was  acting   as  a[n]                      undercover agent.   He  also participated                      in the transactions, and certainly he was                      there  in charge  of  the business,  too,                      sometimes  in the  counter, and he  was a                      very  important  cog in  the  trafficking                      machinery  constantly  oiled   by  Parra.                      Therefore, I shall  deny you[r] counsel's                      motion   to   eliminate   the  two-points                      enhancement under Section 3B1.1B [sic] of                      the sentencing guidelines.                      Atilio objects on appeal, as he did in the district            court, that it  was impermissible for  the district court  to            rely on  evidence introduced  at the trial  of Jairo  Giraldo            Parra.  Since Atilio, having  pleaded guilty, was not a party            to that  trial, Atilio argues  that he had no  opportunity to            cross-examine  the witnesses  who provided  the evidence  the            district court used against him.  Once that trial evidence is            excluded, Atilio  contends, there  was insufficient  evidence            before the district court to justify the upward adjustment.                      We  have stated  that "[i]t  is  well settled  that            during the sentencing proceedings, a district court has broad            discretion  in   determining  the  information  that  may  be            received  and  considered  regarding a  defendant."    United                                                                   ______            States v. Pellerito, 918 F.2d 999, 1002 (1st Cir. 1990).   As            ______    _________                                         -4-            long  as the district court complies with the requirements of            Fed. R. Crim.  P. 32 by making  a finding as to  each factual            matter controverted by the defendant, the district court "has            a right to use the evidence presented at trial in determining            the  sentence to  be imposed."    Id.   Accordingly, we  have                                              __            upheld the sentencing judge's reliance on trial evidence when            the trial  had resulted in  a mistrial and the  defendant had            subsequently pleaded guilty, United States v. Hanono-Surujun,                                         _____________    ______________            914 F.2d 15,  19 (1st Cir.  1990), and --  as in the  instant            case --  when the  defendant had pleaded  guilty and  did not            stand trial, and the trial evidence stemmed from the trial of            co-defendants.  United States v. Fuentes-Moreno, 895 F.2d 24,                            _____________    ______________            26 (1st  Cir. 1990).   Our  review of  the record shows  that            Atilio did not controvert any specific facts from that trial.            Accordingly,  the  district  court was  entitled  to  rely on            evidence from  the  trial of  Giraldo Parra  in reaching  its            determination under   3B1.1.                      In  any event,  even  if  the  district  court  had            disregarded  the evidence from the trial of Giraldo Parra, we            find that there  remained sufficient evidence to  sustain the            challenged ruling.   Since the question whether  Atilio was a            manager or  supervisor "is a  question of the  application of            the Guidelines to the particular facts" of this  case, United                                                                   ______            States  v. Wright,  873 F.2d  437,  443 (1st  Cir. 1989),  we            ______     ______            review the  district court's determination  that the evidence                                         -5-            was  sufficient  only for  clear  error.    United States  v.                                                        _____________            Corcimiglia,  967  F.2d  724, 726  (1st  Cir.  1992); Wright,            ___________                                           ______            supra, 873 F.2d at 444.            _____                      To  meet its  burden  of  proving  that  an  upward            adjustment is warranted, the government must demonstrate that            the defendant 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. Castellone,  985                                       ______________    __________            F.2d 21, 26 (1st Cir. 1993) (quoting United States v. Fuller,                                                 _____________    ______            897 F.2d 1217,  1220 (1st Cir. 1990)).  At the change of plea            hearing, the  prosecution offered  the  following account  of            Atilio's  actions  as  part  of  the  narcotics  distribution            conspiracy.                      Atilio . .  . and others operated  from a                      business   establishment   known   as  Mi                      Pequena  Colombia  Restaurant .  .   . in                      Hato  Rey, Puerto  Rico to  carry  out an                      operation of distribution  of cocaine and                      heroin. . . .                       On  September  25, 1991,  the  undercover                      agent  met  again with  Victor  Rodriquez                      Alvarez at  the Magno's  Pizza Restaurant                      at  which  time  another  transaction  of                      heroin took place for $7,000.  At that --                      after that transaction took place, Victor                      Rodriguez Alvarez carried the brown paper                      bag  containing  the  $7,000  to  the  Mi                      Pequena Colombia Restaurant  where Victor                      Rodriguez,  where  Daniel  Alberto Atilio                      Adinolfi, Jairo  Giraldo Parra  and Edgar                      Rodriguez Alvarez were waiting.                      Victor Rodriguez  Alvarez gave  the brown                      paper    bag    to     codefendant    and                                         -6-                      coconspirator   Daniel   Alberto   Atilio                      Adinolfi at which  time they entered  the                      rear room of the restaurant.                      On December 6, 1991, an informant  of the                      Drug   Enforcement  Administration   made                      arrangements with  Daniel Alberto  Atilio                      Adinolfi  to  buy  half   a  kilogram  of                      cocaine  for  $5,000.   The  confidential                      informant  proceeded  to the  Mi  Pequena                      Colombia  Restaurant  where he  met  with                      Daniel Alberto  Atilio Adinolfi  at which                      time  they entered  a  vehicle, and  they                      drove  around  the  block  at which  time                      agents  conducting  surveillance  noticed                      Jorge  Omar   Lopez  Almeida   performing                      counter-surveillance      during      the                      transaction.                      Once the transaction was completed inside                      the vehicle,  they  returned  to  the  Mi                      Pequena  Colombia  Restaurant  where both                      the  confidential  informant  and  Atilio                      Adinolfi exited the car.  The cooperating                      individual entered an  undercover vehicle                      being  driven  at  that  time by  Special                      Agent Hector  Ortiz at which  time agents                      conducting   surveillance  noticed   when                      Atilio Adinolfi signaled Jorge Omar Lopez                      Almeida who was directly across from  the                      Mi Pequena Colombia  Restaurant, and they                      also saw -- observed when Atilio Adinolfi                      boarded  the  vehicle  and  proceeded  to                      follow the undercover car being driven by                      Special Agent Hector Ortiz.                      An   undercover  agent   from  the   Drug                      Enforcement   Administration   who    was                      conducting   surveillance    inside   the                      restaurant listened when  codefendant and                      coconspirator  Edgar  Rodriguez Velazquez                      told Daniel Alberto  Atilio Adinolfi that                      the undercover  vehicle was  heading west                      on Domenech Avenue.                      Subsequently, on  December 11,  1991, the                      cooperating  individual  informed  Daniel                      Alberto  Atilio  Adinolfi that  the  half                      kilogram  of  cocaine was  short  several                      grams.                                         -7-                      On December  12th, 1991,  the cooperating                      individual   went  to   the  Mi   Pequena                      Colombia Restaurant where  Daniel Alberto                      Atilio  Adinolfi  provided him  with  six                      grams   of  cocaine   missing  from   the                      original half kilogram of cocaine, and he                      also  provided  him   with  a  sample  of                      heroin.   Both the  missing six  grams of                      cocaine  and the  sample  of heroin  were                      given to  Daniel Alberto  Atilio Adinolfi                      by  codefendant  and  coconspirator Jairo                      Giraldo Parra.                      Atilio  agreed at the  change of plea  hearing that            this statement of facts was  accurate, at least insofar as it            related  to Atilio's  own conduct.   The  PSI report  set out            essentially the same  version of the  facts, to which  Atilio            made no objection at the sentencing hearing.                      Although it is true  that this account by no  means            establishes  unambiguously  that  Atilio  was  a  manager  or            supervisor, we  cannot say  that such a  finding was  clearly            erroneous.  Atilio's conduct in  negotiating the details of a            sale  of  cocaine  and  agreeing  to  supply  a  shortfall in            delivery would reasonably suggest a managerial or supervisory            role if coupled with some evidence that Atilio to some degree                 __            directed   or   controlled  at   least  one   other  criminal            participant.   See United  States v. Veilleux,  949 F.2d 522,                           ___ ______________    ________            525  (1st   Cir.  1991)   ("Setting  the   details  of   drug            transactions in such  a manner as  to orchestrate the  sales,            where the offender  also directs at least one  accomplice, is            sufficient  to uphold  a     3B1.1(c) sentencing  enhancement            against a  challenge of clear error").   See also Castellone,                                                     ________ __________                                         -8-            supra,  985  F.2d   at  26  (the  fact  that   the  defendant            _____            "determined who purchased,  when and where sales  took place,            prices,  and profit .  . .  can be  said of  any independent,            street-level dealer"  and is insufficient  where "[t]here  is            simply no evidence that [the defendant] exercised any control            over . . . anyone else").                      The necessary  evidence that Atilio to  some degree            directed  or  controlled  at least  one  other  accomplice is            present here.  When  Victor Rodriguez Alvarez entered  the Mi            Pequena  Colombia restaurant on September 25, 1991, he handed            over a brown paper bag -- containing $ 7,000 of proceeds from            the  sale of heroin  -- to Atilio.   The fact  that Rodriguez            Alvarez  rendered the  proceeds of  the  drug transaction  to            Atilio  reasonably suggests  that Atilio  exercised at  least            some degree of direction or control over Rodriguez Alvarez as            part of  the  criminal organization.   Certainly  it was  not            clear error for the  sentencing judge to interpret the  facts            in that light.                      The judgment of the district court is affirmed.                                                            ________                                         -9-
