
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1839                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                  RICHARD MORETTO,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                             and Boudin, Circuit Judge.                                ____________________            Bernard Grossberg  with  whom  Erin K.  Kelly  was  on brief  for       appellant.            George  W.  Vien, Assistant  United  States  Attorney, with  whom       Donald K.  Stern, United States Attorney, was on  brief for the United       States.                                ____________________                                    June 11, 1997                                ____________________                 Per Curiam.   Richard Moretto was  convicted in 1991  of            conspiracy to  distribute cocaine, 21  U.S.C. S  846, and  of            witness intimidation, 18 U.S.C. S 1512.  At sentencing he was            found to  be a career  offender based  on prior  convictions,            U.S.S.G.                     S                       4B1.1,                             and                                 sentenced to 210 months' imprisonment and            a term of supervised  release.  This court affirmed both  the            conviction and sentence  on direct appeal.  United States  v.            Elwell, 984 F.2d 1289 (1st Cir.), cert. denied, 508 U.S.  945            (1993).                 Thereafter,                             Moretto succeeded in having a state court set            aside  two prior  state convictions,  undermining his  career            offender status.  He petitioned under 28 U.S.C. S 2255 to set            aside his original sentence.  The district court agreed  and,            after                  further proceedings in June 1996, resentenced Moretto to            108 months' imprisonment, a term of supervised release, and a            fine of $12,500.  Moretto now appeals from this new sentence,            arguing                    that                         the district court miscalculated the sentence and            improperly imposed a fine.                 Although                          Moretto's                                   appeal has been well briefed, we do not            think that  the district  court erred  on any  of the  issues            presented in this court.  The only difficult question is  the            calculation  of drugs  attributed  to Moretto,  which  became            decisive after the career offender label was lifted.  The key            evidence was the testimony of Moretto's customer that over  a            four                 to                    five                        month                              period, he had purchased between one and two                                         -2-                                         -2-            ounces of cocaine from  Moretto every week or other week  "or            so."                 Averaging, the district court found that it was fair  to            attribute to  Moretto  14 deliveries  of 1.5  ounces  apiece.            Twenty ounces (rounded down from 21) equates to 567 grams  of            cocaine, which  is well  over the  500 gram  minimum used  to            determine Moretto's base offense level of 26.  U.S.S.G.                  S 2D1.1(c)(7).  Moretto argues now, as he did in the district            court, that such  averaging is forbidden by United States  v.            Sepulveda                    ,                       15                         F.3d                              1161,                                    1197-98 (1st Cir. 1993), cert. denied,            512 U.S. 1223 (1994).                 In                    United                          States                                                                v.                                    Webst                                        er, 54 F.3d 1, 6 (1st Cir. 1995),            this                 court                       upheld estimates "drawn from ranges with relatively            tight margins,"  distinguishing Sepulveda  as involving  much            wider ranges.  Sepulveda itself made clear that the court was            not adopting a  "per se rule" in  favor of selecting the  low            point                  in                     an                        estimated range.  15 F.3d at 1199.  We think there            is no magic rule to determine when a mid-range estimate seems            to make sense but the use  of such an estimate here does  not            appear to us to be clear error.                 Further,                          the                             district                                      court attributed to Moretto, but did            not  include in  its calculus,  an additional  ten ounces  of            cocaine  provided to  the witness  by another  member of  the            conspiracy after  Moretto  had departed  for prison.    Since            Moretto had introduced the new seller to the witness for  the                                         -3-                                         -3-            specific  purpose  of   continuing  the  sales,  Moretto   is            presumptively liable under the relevant conduct guideline for            foreseeable                        transactions effectively arranged by Moretto while            still a working member of the conspiracy.  U.S.S.G. S 1B1.3 &            comment.                     n.2(c)(6).  Even if the district court had arrived at            a  low-end estimate  of Moretto's  own cocaine  sales to  the            witness, the  inclusion of  this additional  ten ounces  (283            grams) in the  drug quantity calculus would have resulted  in            sentencing                       at the same base offense level as the court applied            below.  Id. S 2D1.1(c)(7).                 Moretto also objects to the district court's refusal  to            treat him as a minimal or minor participant deserving a four-            or two-level downward  adjustment in his  favor on either  of            these grounds.  U.S.S.G. S 3B1.2.  If a lesser member of  the            conspiracy were automatically a minimal or minor participant,            Moretto                    might                          have                              a                                point; but we do not read the guideline in            that  fashion.    Here,  Moretto  played  a  substantial  and            continuing role in the  conspiracy, and the district  court's            refusal                    to                       award him "minimal" or "minor" status was not clear            error.                 The                     district                              court's refusal to depart downward, based on            diminished                       capacity, U.S.S.G. S 5K2.13, was a factual judgment            not  infected by  legal error  and therefore  not subject  to            review.  United States v. Robles-Torres, 109 F.3d 83, 87 (1st            Cir. 1997).  The two-level obstruction of justice  adjustment                                         -4-                                         -4-            was amply  justified on  the facts  and provided  for by  the            guidelines.  U.S.S.G. S 3C1.1.  And, there being no  evidence            whatever of vindictiveness, the court had authority to impose            a fine  on resentencing even though  none was imposed in  the            initial sentence.   North Carolina  v. Pearce,  395 U.S.  711            (1969); see also Alabama v. Smith, 490 U.S. 794 (1989).                 Affirmed.                                         -5-                                         -5-
