
USCA1 Opinion

	




          November 16, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2471                                    UNITED STATES,                                      Appellee,                                          v.                                   WESLEY GONZALEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Barbara A.H. Smith on brief for appellant.            __________________            Edwin  J. Gale,  United  States  Attorney,  and Zechariah  Chafee,            ______________                                  _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant Wesley  Gonzalez  pleaded                      ___________            guilty  to  a  one-count indictment  which  charged  him with            possession of a  substance containing a detectable  amount of            cocaine with intent to distribute in violation of 21 U.S.C.              841(a)(1).  He appeals two aspects of the sentence imposed by            the  district   court  under  the  United  States  Sentencing            Guidelines (U.S.S.G.).   Because the appeal does  not present            any  substantial  questions,  we   summarily  dispose  of  it            pursuant to Local Rule 27.1.                      1.    Appellant  claims  that  the  district  court            improperly fined  him for the  cost of his five-year  term of            supervised release.  This fine amounts to $6,918 and is to be            paid in  monthly installments  of $115.30  once appellant  is            released.  According  to appellant, U.S.S.G.    5E1.2(i) does            not permit such a fine in his case because the district court            "waived" the  assessment of a punitive fine.                      U.S.S.G.   5E1.2(a) states that "[t]he  court shall            impose  a  fine  in all  cases,  except  where the  defendant            establishes that  he is unable  to pay  and is not  likely to            become able  to pay  any fine."   U.S.S.G.    5E1.2(i) states            that [n]otwithstanding . . . the provisions of subsection (c)            [list  of  minimum   and  maximum  fines],  but   subject  to            subsection (f)  [waiver or  imposition of  lesser fine],  the            court shall impose an additional fine amount that is at least            sufficient to pay  the costs to the  government of any .  . .            supervised release ordered."  In United States v. Corral, 964                                             _____________    ______            F.2d  83 (1st Cir. 1992), we held  that "a district court may            not  impose a duty  to pay for the  costs of incarceration or            supervised  release if the defendant is indigent for purposes            of  a  [punitive] fine  under  Sentencing Guidelines  section            5E1.2(a)."  Id. at 84.                        ___                      Corral is of no avail  to appellant for the  simple                      ______            reason  that the  district  court,  in  fact,  did  impose  a            punitive fine under  U.S.S.G.   5E1.2(a).   Appellant's claim            to the  contrary rests  upon page 5  of the Judgment  form on            which  the district  court  checked  the  box  preceding  the            following words:   "Fine is waived or is  below the guideline            range, because of the defendant's inability to pay."  By only            focussing   on  the  "inability  to  pay"  language  for  the            proposition  that a  punitive  fine  was "waived,"  appellant            conveniently  ignores what the  district court judge  said at            the sentencing hearing concerning a fine under   5E1.2(a):                           As far as the fine is concerned,  it                      does  not  appear  you  have  substantial                      assets.  You  have some assets  and based                      on  that, the Court will impose a fine in                                _______________________________                      the amount of one  hundred dollars and  a                      __________________________________                      special assessment in the amount of fifty                      dollars as required by law.            Transcript of Sentencing Hearing,  at 17-18 (emphasis added).            Indeed, page 4 of the Judgment form specifically  states that            the total fine  of $7,018 is composed  of a fine of  $100 and                                                        ____                                         -3-            the cost of  supervised release of $6,918.   Thus, this claim            is without merit.                      2.  Appellant's second assignment of error concerns            the conversion  of $29,990  into 1,000  grams of  cocaine for            sentencing purposes under U.S.S.G.   1B1.3(a)(2) and   2D1.1.            This  sum was  part  of the  cash seized  during a  search of            appellant's  apartment  conducted  by  the  Drug  Enforcement            Administration  (DEA).  Also  seized were 3  plastic sandwich            bags containing a total of 17.6 grams of 80% pure  cocaine, a            pager, a cellular  telephone, a shoe box filled  with plastic            bags, three  sifters, a spoon  and a triple-beam scale.   The            latter three  items were  found  to have  cocaine residue  on            them;  it is  undisputed that  all of  the seized  items were            "common" implements of the cocaine trade.                      As for  the cash,  DEA agents  found $4,450 in  the            bedroom and $3,990 on a table in the living room.   They also            discovered $26,000 hidden beneath  a stereo speaker.  Out  of            the total  amount, the government  accepted appellant's claim            that $4,450 represented the settlement of an insurance claim.            This  left the  $29,990 which  the  Presentence Report  (PSI)            concluded represented the proceeds of sales of 1,000 grams of            cocaine.                      Appellant  did  not object  at  sentencing  to this            calculation.   Normally, such a  failure results in a waiver.            See United States v. Dietz,  950 F.2d 50, 55 (1st Cir.  1991)            ___ _____________    _____                                         -4-            ("in connection with  sentencing as in other contexts,  . . .            arguments not seasonably addressed to the trial court may not            be  raised  for  the  first  time  in  an  appellate venue").            Appellant urges, nonetheless, that where a fundamental  error            in  the application  of the Guidelines  affects "substantial"            rights,  review  is  proper  to  prevent  a  "miscarriage  of            justice."   See United States  v. Agoro, 996 F.2d  1288, 1291                        ___ _____________     _____            (1st  Cir. 1993) (where government agreed with defendant that            sentence  imposed  by district  court exceeded  the allowable            guideline range, court  would address claim raised  for first            time on appeal).                      This  is  not  such a  case.    Indeed, appellant's            arguments  fall  short  of demonstrating  any  defect  in the                                                      ___            court's  sentencing calculations.    Pursuant  to U.S.S.G.               1B1.3(a)(2),  appellant is responsible for all acts that were            "part of the same course of  conduct or common scheme or plan            as the offense  of conviction. . .  ."  See United  States v.                                                    ___ ______________            Figueroa, 976 F.2d 1446, 1460 (1st  Cir. 1992), cert. denied,            ________                                        ____________            113 S. Ct.  1346 (1993).  When applied to  drug offenses, the            district court  may take into  account "the amount  of drugs,            whether or not  `specified in the  count of conviction,'"  so            long  as the  drugs  are  part of  the  conduct underlying  a            defendant's conviction.   United States v. Tabares,  951 F.2d                                      _____________    _______            405, 410 (1st  Cir. 1991) (quoting    1B1.3(a)(2) &  comment.            (backg'd)).    Further,  in  determining  a  defendant's base                                         -5-            offense level where  "the amount seized does not  reflect the            scale  of  the  offense,  the  court  shall  approximate  the            quantity of  the controlled  substance."   U.S.S.G.    2D1.1,            commentary (n.12).                      Appellant argues  that  the  government  failed  to            establish by a preponderance of the evidence that there was a            sufficient  connection between the $29,990 and the offense to            which he  pleaded guilty.   Specifically,  appellant contends            that  the PSI  merely concluded  that  the money  represented            proceeds from other drug transactions without  presenting any            evidence of  actual sales  or any  evidence of  a conspiracy.            Instead,  appellant asserts,  the only concrete  evidence was            the  17.6 grams  found in  his apartment.   This  should have            resulted,  he goes on,  in a finding that  he was involved in            only a "very small scale operation."  Thus, he concludes that            our decision in  United States v. Gerante, 891  F.2d 364 (1st                             _____________    _______            Cir.  1989), does  not  control  and  an  "approximation"  by            converting  the  cash into  1,000  grams of  cocaine  was not            permitted.                      In  Gerante, defendant was arrested while he was in                          _______            possession of 4.98 kilograms of cocaine.  A subsequent search            of  his home revealed small additional quantities of cocaine,            five loaded guns  and $68,000.  Upon being  questioned by DEA            agents, defendant  stated, among  other things,  that he  had            been trafficking in multi-kilogram amounts of cocaine for six                                         -6-            months and that the $68,000 represented proceeds from a prior            deal.  We  held that the district  court's determination that            the drugs  purchased with the  $68,000 were part of  the same            course  of conduct  under  U.S.S.G.     1B1.3(a)(2)  was  not            clearly  erroneous.   891  F.2d at  368.   As  a result,  the            conversion  of  the cash  into  a  quantity  of  cocaine  was            permitted by the Guidelines, in  part, because the amount  of            drugs seized did  not reflect the scale of the  offense.  Id.                                                                      ___            at 369 (citation omitted).                      Appellant's  effort   to  distinguish   Gerante  is                                                              _______            unavailing.   Conspicuously absent  from his  version of  the            events  is  the  admission,  made  by  his  attorney  at  the            sentencing hearing,  that the  $29,990, in fact,  represented            proceeds from sales of cocaine.  See Transcript of Sentencing                                             ___            Hearing, at 4, 14 (in  arguing for a reduction for acceptance            of responsibility, counsel emphasized the fact that appellant            did  not "fight"  the conversion  of the  money into  sums of            cocaine and acknowledged that the money appellant made to buy            cocaine put him in a higher guideline range).  As in Gerante,                                                                 _______            this admission  provides sufficient evidence that the $29,990            was  part of  the same  course of  conduct as the  offense of            conviction.  See United States v. Figueroa, 976 F.2d at 1460-                         ___ _____________    ________            61 (where defendants in taped  telephone conversations stated            that they  sold $6,000  worth of "dime"  bags of  cocaine per            day,  no clear error  in approximating the  amount of cocaine                                         -7-            based on "the  sums of money admittedly  received") (footnote            omitted).                      Finally, we  reject appellant's  argument that  the            result of the conversion (which raised his base offense level            from   12   to    26)   rendered   his    sentence   "grossly            disproportionate" and  "inequitable."   Similar increases  in            sentencing ranges due to the addition of  quantities of drugs            not included in  the offense conduct have been  upheld.  See,                                                                     ___            e.g., United States v. Sklar,  920 F.2d 107, 112-14 (1st Cir.            ____  _____________    _____            1990)  (despite  seizure  of  only  one   package  containing            cocaine,  court's   addition  for   sentencing  purposes   of            estimated   quantities   of  cocaine   contained   in  eleven            previously  mailed  packages  --  which  essentially  doubled            guideline range --  not clearly erroneous); United  States v.                                                        ______________            Vazzano, 906 F.2d 879, 884  (2d Cir. 1990) (addition of extra            _______            amount  of cocaine defendant  told informant he  had recently            sold for  purposes of calculating base offense level held not            clear error; addition almost tripled guideline range).                      Appellant adds  the claim  that  his trial  counsel            provided  ineffective assistance  in violation  of  the Sixth            Amendment by, among other omissions, failing to object at the            sentencing  hearing to  the conversion  of  the $29,990  into            1,000  grams of  cocaine.   "We have  held with  a regularity            bordering on  the  monotonous that  fact-specific  claims  of            ineffective  assistance cannot  make  their debut  on  direct                                         -8-            review of criminal convictions,  but, rather, must originally            be presented to, and acted upon by, the trial court."  United                                                                   ______            States  v. Mala,  No. 91-2229,  slip  op. at  9-10 (1st  Cir.            ______     ____            October 27,  1993).  Because  this claim may turn  on factual            matters outside of the record now before us, the claim is not            ripe for appellate review.                      We,  therefore, affirm  the judgment  of conviction                                      ______            without prejudice to appellant's right to file a motion under            28  U.S.C.     2255  concerning  his  claims  of  ineffective            assistance of counsel.   We express no opinion  on the merits            of any such claims.                                         -9-
