
USCA1 Opinion

	




          September 3, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2248                                    UNITED STATES,                                      Appellee,                                          v.                                  JORGE L. LaBRADA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Oakes,* Circuit Judge.                                          _____________                                 ____________________            J. Hilary Billings for appellant.            __________________            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Richard S.  Cohen,  United States  Attorney,  and Timothy  Wing,              _________________                                 _____________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________        ____________________________        *Of the Second Circuit, sitting by designation.                 Per  Curiam.  Jorge Labrada was  charged in count I of a                 ___________            six-count indictment of conspiring with Rudolfo and Augustine            Benito  to possess  cocaine with  intent to  distribute.   21            U.S.C.     841(a)(1), 846.    The other  five counts  charged            specific  acts of distribution by  one or more  of the three.            Id.    841(a)(1).    Labrada was  named  in two  counts,  one            ___            charging the sale of  one ounce of  cocaine on June 5,  1991,            and the other the sale  of about 900 grams on July  15, 1991.            Labrada pled guilty to the June 5 count  and the other counts            were dismissed at the government's behest.                 After  an  extensive  sentencing  hearing,  the district            court found  that Labrada was  part of an  ongoing conspiracy            and that  he had engaged in  a common course  of conduct that            made him responsible inter alia for  both the June 5 sale and                                 __________            for  the July 15 sale.  These amounts together placed Labrada            well over the  half kilogram figure corresponding to level 26            under the  Sentencing Guidelines.   U.S.S.G.     2D1.1(a)(3),            (c)(9)(1991).  With a  two level reduction for acceptance  of            responsibility, this fixed the  sentencing range at 63  to 78            months (in view of  Labrada's category III criminal history).            The district  court in October  1991 sentenced Labrada  to 65            months in prison and six years of supervised release.                 Labrada  has now  appealed his  sentence, but  given the            guidelines and our precedents there is almost nothing  to his            arguments.   Under U.S.S.G.   1B1.3(a)(2)(1991),  as it stood                                         -2-                                         -2-            at  the  time Labrada  was sentenced  on  October 9,  1992, a            defendant convicted  of drug distribution is  also liable for            uncharged acts  of distribution that  were "part of  the same            course  of conduct or common  scheme or plan"  as the charged            act of distribution.  This liability is subject to the caveat            that any  conduct of others  attributed to  the defendant  as            part  of   a  conspiracy--"whether   or  not  charged   as  a            conspiracy"--be  "reasonably foreseeable" by  the defendant.             U.S.S.G.    1B1.3, application  note 1 (1991).   (Thereafter,            the guideline was amended to state the foreseeability test in            the  text of  the  guideline, see  U.S.S.G.    1B1.3(a)(1)(B)            (1992), but this is merely a clarification.)                 On  appeal,  Labrada does  not  argue that  the  July 15            transaction  was  not  reasonably foreseeable.    Rather,  he            argues strenuously that he did not participate in the July 15            sale,  was convicted only of  the June 5  sale, and therefore            cannot be held  liable for the  July 15  sale.  However,  the            guidelines just cited provide  that he can be held  liable at            sentencing for other foreseeable  transactions that are  part            of the same conspiracy as the one for which he was convicted,            and our cases so hold.  See United States v. Garcia, 954 F.2d                                        _____________    ______            12, 15 (1st Cir. 1992); United States v. Sklar, 920 F.2d 107,                                    _____________    _____            111  (1st  Cir. 1990).    Although  Labrada's brief  says  in            passing  that  this  is  not  constitutional,  no  supporting            argument is offered.                                         -3-                                         -3-                 Labrada  cites us to United States v. Wood, 924 F.2d 399                                      _____________    ____            (1st  Cir. 1991),  but that  case  acknowledged the  rules of            sentencing liability that we have just described (although it            found that one of  the third-party transactions attributed to            Wood had not been shown to  be part of the same  conspiracy).            The  case law in this  circuit is sufficiently  clear that we            have  no reason to discuss cases from other circuits cited to            us  by Labrada.  Ultimately, we think this appeal is premised            on  the  belief that,  at least  prior  to the  November 1992            version of the guidelines,  a defendant convicted of  one act            of drug distribution could  not be sentenced on the  basis of            other  acts  of  distribution  that were  part  of  the  same            uncharged conspiracy.  The belief is mistaken.1                 Because the  factual findings of the  district court are            not assigned as  error on  the appeal, it  is unnecessary  to            discuss the  evidence.    However, out  of  an  abundance  of            caution, we  have reviewed the  extensive factual recitations            provided as  background in both  Labrada's brief and  that of            the government.  Whether  or not Labrada is viewed  as having            participated in  the July 15 transaction--he  was present but            his  role  is  disputed--we  think that  the  district  court                                            ____________________                 1Contrary    to    Labrada's    brief,     U.S.S.G.                 1B1.3(a)(2)(1991), quoted  above, does  not require that  the            uncharged acts that  were part  of the  same conspiracy  have            occurred during the offense of conviction; rather it requires            that the  attributed acts  and the offense  of conviction  be            part of the same conspiracy.  Id.                                          ___                                         -4-                                         -4-            reasonably  concluded  that  Labrada  was  engaged  with  the            Benitos in an extensive ongoing drug  distribution conspiracy            and that the July 15 transaction was an integral part of that            scheme.                 Affirmed.                 ________                                         -5-                                         -5-
