                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 91-1621
                        UNITED STATES,
                          Appellee,

                              v.

                        DAVID ELWELL,
                    Defendant, Appellant.
                                       
No. 91-1674
                        UNITED STATES,
                          Appellee,

                              v.

                        HOBART WILLIS,
                    Defendant, Appellant.
                                        
No. 91-1742
                        UNITED STATES,
                          Appellee,

                              v.

                       RICHARD MORETTO,
                    Defendant, Appellant.
                                        

                         ERRATA SHEET

   The opinion of  this Court  issued on January  20, 1993,  is

amended to delete, on page 21, line 10, the sentence which reads:

          "Further,   Elwell   himself   had   been
          recorded  as advising Polito  in the fall
          of  1988 that  Polito still  owed twenty-
          four  something,  a  figure that  in  the
          context  of  this  case   suggests  prior
          deliveries of $24,000 worth of cocaine."

January 20, 1993

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 91-1621

                        UNITED STATES,

                          Appellee,

                              v.

                        DAVID ELWELL,

                    Defendant, Appellant.

                                        

No. 91-1674

                        UNITED STATES,

                          Appellee,

                              v.

                        HOBART WILLIS,

                    Defendant, Appellant.

                                         

No. 91-1742

                        UNITED STATES,

                          Appellee,

                              v.

                       RICHARD MORETTO,

                    Defendant, Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]
                                                    

                                         

                            Before

                    Selya, Circuit Judge,
                                        

                Campbell, Senior Circuit Judge,
                                              

                  and Boudin, Circuit Judge.
                                           

                                         

Stephen  J. Weymouth  with whom  Balliro, Mondano &amp;  Balliro, P.C.
                                                                 

was on brief for appellant David Elwell.

Dana Alan  Curhan with whom Barry  M. Haight  and Buckley, Haight,
                                                                 

Muldoon, Jubinville  &amp; Gilligan  were  on brief  for appellant  Hobart
                           

Willis.

James J. Cipoletta  with whom Cipoletta  &amp; Ogus was  on brief  for
                                               

appellant Richard Moretto.

George W.  Vien, Assistant  United States  Attorney, with whom  A.
                                                                  

John  Pappalardo,  United  States  Attorney,  and  Heidi  E.  Brieger,
                                                                 

Assistant United States Attorney, were on brief for appellee.  

                                         

                                         

     BOUDIN, Circuit Judge.  The grand jury indicted a number
                          

of  persons  for conspiring  to  distribute  cocaine and  for

related offenses.  Several of  those indicted pled guilty but

three were  tried jointly and convicted.    The appeal of one

of those convicted  is decided today in  a separate decision.

United  States v. Moran, No.  91-1772.  In  this decision, we
                       

address  the appeals  of the  other two  defendants  who were

convicted  at  trial, together  with  the  appeal of  another

defendant who pleaded guilty  but contests his sentence.   In

two of the three cases we  affirm; and in one we remand  on a

single issue for resentencing.

                              I.

     We begin with a  brief outline of the facts  and history

of the  case, reserving additional detail  for our discussion

of individual claims of error.  The evidence submitted to the

jury is, of  course, to be viewed in the light most favorable

to  the verdict, the  jury being  accorded great  latitude in

resolving  credibility  and  drawing  reasonable  inferences.

United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st
                                

Cir.), cert. denied, 492 U.S. 910 (1989).  
                   

     On August  9, 1990,  the grand  jury indicted  the three

appellants now in this  court (Richard Moretto, David Elwell,

and  Hobart  Willis),  as  well as  six  other  persons,  for

conspiracy  to distribute cocaine.   21 U.S.C.    846.  Other

countsin the indictment chargedvarious of the defendants with

                             -5-

related  crimes.   Willis  and  several  others pled  guilty,

Willis pleading to conspiracy and five counts of distribution

under  21 U.S.C.     841.   After  trial the  jury  convicted

Moretto,  Elwell, and  George  Moran (whose  appeal has  been

separately decided) of conspiracy.   In addition, Moretto was

found  guilty of witness intimidation, 18  U.S.C.   1512, and

Elwell  of three counts of distribution, 21 U.S.C.   841, and

one of filing a false tax return.  26 U.S.C.   7206.

     The critical testimony at  trial, except in the case  of

Moran,  came primarily  from Mark  Polito, whose  account was

bolstered  by  police  testimony  and tape  recordings.    He

testified that during  the spring of 1988  he purchased ounce

quantities  of  cocaine  every  week  or  two  from  Moretto.

Because Moretto was scheduled to report to prison for a prior

offense, Moretto--according to Polito's testimony--arranged a

meeting between Polito  and Willis, "the man he [Moretto] got

his stuff from."   At the meeting Willis agreed  to introduce

Polito to  the  distributor  who  managed  Willis'  "northern

territory."  A  few days  later Willis  introduced Polito  to

Elwell and  for the  next few months  Elwell supplied  Polito

with cocaine at the same price previously charged by Moretto.

     Polito  eventually  fell behind  in payments  and, under

pressure  for payment  exerted by  Willis and  Elwell, Polito

began to cooperate secretly with law enforcement authorities.

Now buying  drugs  with  government  money,  Polito  recorded

                             -6-

conversations with Elwell and, on one occasion, brought a DEA

undercover  agent to a meeting  with Elwell.   During a later

sale,  Elwell  told  Polito  that  Willis  wanted  Polito  to

"remember"  Moretto  at  Christmas,  Moretto  then  being  in

prison.   This  reminder  was repeated  at  a later  meeting.

Eventually Elwell became suspicious of Polito, ceased to deal

with  him and in 1989 Willis began to supply Polito directly.

The last reported transaction  occurred on February 16, 1989,

when  Polito  paid Willis  part of  the  money still  owed to

Elwell for prior purchases.

     Moretto  was released from prison  on June 5,  1990.  On

June 11 and 12, 1990,  three telephone calls occurred between

Moretto and  Polito, which  Polito secretly recorded.   Those

calls, described  below, formed the basis  of the obstruction

count against Moretto.  Nothing pertinent to the  charges was

proved at trial  to have occurred after  June 12.   In August

1990, the indictment was returned.

     Following Willis'  guilty plea and the  trial of Elwell,

Moretto and Moran,  the defendants were  sentenced.    Willis

and Moretto  were  found to  be  career offenders  under  the

Sentencing Guidelines and each was sentenced to 210 months in

prison.   Elwell  was sentenced  to 78  months.   The present

appeals followed.

                             -7-

                             II.

     Moretto's main  argument on appeal is  that the evidence

of his adherence to the  conspiracy charged in the indictment

was  too weak  to permit a  reasonable jury  to convict.   He

further  argues that,  at most,  the evidence  showed several

conspiracies  rather  than  the  single one  charged  in  the

indictment,  and  he  asserts  that  this  supposed  variance

between the conspiracy charged  and any conspiracy proved was

prejudicial.    We  need  not treat  the  prejudice  argument

separately because we conclude that the evidence  adequately,

if  not amply, supported  the government's claim  of a single

conspiracy  involving Willis  and  others  in  which  Moretto

participated.

     Moretto does not dispute  that Willis directed a cocaine

ring  but,  carving his  own role  into  phases, he  seeks to

distance himself from  the ring.  Moretto's repeated sales of

cocaine to Polito in the first part of 1988, which were amply

proved, are claimed by  Moretto to fall outside the  ambit of

the  Willis ring.1   Moretto  then argues  that he  could not

                    

     1Moretto   places  stress  upon   a  statement   of  the
prosecutor, made to  the judge in a pretrial conference, that
the conspiracy charged by the  government began in March 1988
when  Moretto  introduced Polito  to  Willis.   Although  the
prosecutor did make such a statement--seemingly a slip of the
tongue--the government's actual theory of  the conspiracy was
that it reached  back to embrace Moretto's  earlier sales, as
the  prosecutor made fairly clear  at the bottom  of the same
transcript page  and even clearer  two pages  later.   There,
responding to the judge's question ("The Government's  theory
is that there  was some association between them [Moretto and

                             -8-

have  participated in the ring  from March 1988  to June 1990

since he  was in prison.  As to the conversations with Polito

on June 11-12, 1990, Moretto says that--even assuming them to

be  obstructive--they  occurred well  after  the last  proved

transaction of  Willis and Polito  on February 16,  1989, and

therefore occurred after the conspiracy.  

     The jury was entitled  to link these supposedly separate

events together with  certain connecting  facts that  Moretto

omits.   The drug  sales he made to  Polito during early l988

were,  the  jury  could  have concluded,  based  on  supplies

furnished  by   Willis;   Moretto,  according   to   Polito's

testimony, said that  Willis was  "the man he  got his  stuff

from."    The jury could  also have thought  that the Willis-

Moretto relationship was a continuing one since, when Moretto

was forced to  report to  prison, he introduced  Willis as  a

substitute supplier.  Willis  then arranged for further sales

to Polito at Moretto's  original price.  One act,  after all,

can take  color from others,  and drawing such  inferences is

the jury's task.

     During  Moretto's first  year in  prison there  is ample

evidence of continued  sales by Elwell and  Willis to Polito.

Moretto, although  in prison,  was  not entirely  out of  the

picture: Elwell twice  told Polito that Willis  wanted him to

                    

Willis] prior  to that  introduction [of Polito  to Willis]),
the  prosecutor stated, "Yes, from Moretto up the ladder  . .
. ." 

                             -9-

"remember" or not forget Moretto at Christmas.  While various

inferences  can be drawn from these reminders, the jury could

have believed that they reinforced Moretto's connection  with

the  ongoing  conspiracy (even  assuming,  as the  government

seems to do  in its brief, that Moretto was not a participant

while  imprisoned).2   Specifically,  the evidence  increases

the  likelihood, however  slightly, that  Moretto was  once a

conspirator and might rejoin the conspiracy after prison.

     The jury could then  have concluded that, in making  the

telephone calls to  Polito in June  1990, Moretto did  rejoin

the conspiracy.   It is  true that  the time gap  between the

last proved Willis ring transaction  in February 1989 and the

calls in  June 1990  is substantial.   But the  jury was  not

obliged to  believe that  a well  organized drug  ring, which

enjoyed  a  "northern  territory"  and  remembered  a  former

associate at Christmas, had suddenly expired.  When this same

former foot soldier is discovered in June  1990 threatening a

witness, who  is believed  likely to  testify  to the  ring's

                    

     2The government's brief in  fact points to evidence that
Moretto  while  in  prison  telephoned  Polito's  mother   to
threaten Polito for failing to pay his drug-purchasing debts.
That  evidence may  not have been  admissible because  of its
hearsay  character--apparently  the  initial  source  of  the
evidence was Polito's mother, who  did not testify.  However,
this  evidence  is not  challenged  on this  appeal,  and the
remaining evidence  against Moretto is adequate  even if this
evidence, largely  embodied in a single  sentence of Polito's
testimony, is ignored.  

                             -10-

activities,  the  jury might  well  have  concluded that  the

conspiracy was ongoing and the soldier had just reenlisted.

      Grunewald  v.  United  States,  353  U.S.  391  (1957),
                                   

heavily relied on by Moretto, does not forbid this inference.

It  dealt  with  entirely  different  facts--specifically,  a

conspiracy that had achieved its single objective well before

the  acts of concealment that  were claimed to  extend it for

purposes  of the statute  of limitations.3   Perhaps  more in

point  is the statement in  United States v.  Mayes, 512 F.2d
                                                   

637,  642 (6th Cir.), cert. denied, 422 U.S. 1008 (1975) that
                                  

"[w]here  a conspiracy  contemplates a continuity  of purpose

and  a continued performance of acts, it is presumed to exist

until  there  has been  an  affirmative showing  that  it has

terminated . . . ."  In all events, the jury in this case was

certainly entitled  to infer from all  of the circumstances--

apparent  size  of the  drug  ring,  its duration,  Moretto's

threats, and the threats' references to others--that the ring

continued and Moretto rejoined it.

     Separately,  Moretto claims  that the  evidence  did not

support the jury's  guilty verdict against him on  the charge

of  witness intimidation  under 18  U.S.C.    1512(b).   That

statute in  pertinent part forbids any  act of "intimidation"

                    

     3Similarly, in United States v. Serrano, 870 F.2d 1 (1st
                                            
Cir. 1989), statements sought to be introduced under  the co-
conspirator exception to the  hearsay rule occurred after the
fraudulent scheme had "collapsed."

                             -11-

done  with intent  to induce  anyone to  "withhold testimony"

from  a grand jury or  other official proceeding.   The three

telephone conversations in this  case, recorded by Polito and

played to the  jury, are replete  with statements by  Moretto

that the jury could reasonably  have found to be intimidating

in both nature  and intent.   A brief  sampling of  Moretto's

statements, omitting some rejoinders by Polito, conveys their

flavor:

          "I just have a  message . . . .  You have
          one  chance to  hear  this  and then  its
          gonna be  somtin' that you  never want to
          hear  and it's  like a  hairline fracture
          away from it.   People knew  what's going
          on."

          "Mark, we got friends all over the place,
          right?  DEA,  state troopers,  everything
          . . . .  [Y]ou  don't seem  to understand
          that  everybody knows  that you  went and
          talked  [to law enforcement agents] . . .
          .  I got to call these people back .  . .
          .  [T]hey just  want some assurance  that
          nobody's going to no Grand Jury . . . ." 

     The heart  of  Moretto's appeal  on this  count is  that

during the  first of  the conversations  on  June 12,  Polito

asked  Moretto if  Moretto  was threatening  him and  Moretto

responded:  "No, I'm not.   I am not.  I'm  relaying indirect

messages.  I'm  not threatening anybody.   I'm--I would never

hurt  nobody.  I'm not that kind  of person."  The jury could

reasonably view  this  statement, lodged  among  many  veiled

threats,  as  a  boilerplate  disclaimer,  coupled  with  the

intimation that others  ("I got to  call these people  back")

                             -12-

would inflict the harm if Moretto's warning were ignored.  If

anything,  the statement enhances  the sinister  character of

the conversation.4

                             III.

     Willis, Elwell  and Moretto  each appeals his  sentence.

We consider their respective claims in that order.

     Willis.  Willis was sentenced as a career offender under
           

U.S.S.G.   4B1.1.  That  provision provides that a  defendant

is placed in the  highest criminal history category and  that

specified minimum  offense levels apply,  if three conditions

are met:   first, the defendant must be at least 18 years old

at  the time of the instant offense; second, the offense must

be  a felony  that is either  a crime  of violence  or a drug

offense; and third, the defendant must have "two prior felony

convictions" for such offenses.  It is undisputed that Willis

meets the  age condition,  that the  instant conviction is  a

drug offense  and  that he  had five  prior convictions,  one

state and  four federal, for five bank robberies committed on

different dates during a brief period in 1968.

     Willis  argued  unsuccessfully  at  sentencing  that the

prior bank  robberies should  be treated  as a  single felony

                    

     4Moretto's  brief  adopts  by   cross-reference  Moran's
argument   that   the  trial   judge  gave   a  supplementary
instruction that  invited the  jury to ignore  the conspiracy
charged  in  the  indictment   and  convict  of  a  different
conspiracy.  That argument is considered and rejected  in our
separate opinion in Moran. 
                         

                             -13-

because  the  definitions  provision  of  U.S.S.G.     4B  ( 

4B1.2(3))  provides   in   part  that   "`two  prior   felony

convictions' means .  . .  [that the convictions  were for  a

crime of  violence or drug offense and  that] at least two of

the  .  . .  convictions  are  counted separately  under  the

provisions  of     4A1.1(a),  (b),  or  (c)."    This  latter

provision,  designed to  determine the  number and  length of

"prior  sentence[s]"  in  order  to   compute  a  defendant's

criminal  history  category  under  U.S.S.G.    4A,  in  turn

provides  in a  related  definition that  "[p]rior  sentences

imposed  in related cases are  to be treated  as one sentence
                         

for  purposes  of     4A1.1(a),   (b)  and  (c)."    U.S.S.G.

  4A1.2(a)(2)  (emphasis  added).   The  commentary  to  that

section, id., app. note 3, pertinently provides:
           

          [P]rior sentences  are considered related
          only if they resulted from  offenses that
          (1)  occurred on  the same  occasion, (2)
          were part of a  common scheme or plan, or
          (3)  were  consolidated   for  trial   or
          sentencing.  

     Based on this language  Willis argued at sentencing that

his five  bank robberies were  part of  a common plan  to rob

banks and, in any event, that the sentences imposed--although

not   formally   in   consolidated   cases--were   concurrent

sentences,   part  of   the   same  bargain,   and  thus   in

"constructively"   consolidated   cases.     Willis   further

requested that,  if  his  proffer  of  these  facts  was  not

accepted,  he  be   afforded  an   evidentiary  hearing   and

                             -14-

opportunity  for  fellow bank  robbers  to  testify to  their

common  plan and  for  a former  attorney  to show  that  the

sentences were concurrent and part  of the same plea bargain.

The district  court declined  to hold an  evidentiary hearing

and concluded that the bank robbery convictions were separate

crimes.

     At  first  blush,  it   might  seem  unlikely  that  the

Sentencing Commission intended  a defendant to escape  career

offender status,  in the teeth  of two prior  convictions for

different  bank  robberies  at  different  times  and places,

simply because those  prior robberies were  assertedly linked

by a further felony, namely, an overarching conspiracy to rob

banks that  could literally  be  called a  "common scheme  or

plan."  Of course,  two crimes might be so  closely related--

for example, an  assault committed  in the course  of a  bank

robbery--that  it  would  disserve  the plain  purpose  of  a

"repeat offender"  statute to  treat convictions for  each as

two  prior convictions.   But  five separate  bank robberies,

committed with  the opportunity to pause  and reflect between

them  and  memorialized  by   convictions,  are  surely  what

Congress  had in mind as  identifying a career  offender.  28

U.S.C.     994(h).    One  might  therefore  doubt,  at least

initially, whether the Commission was aware that the contrary

result would follow from its commentary language whenever the

bank robberies were part of a common plan.

                             -15-

     If  we were  satisfied  that the  outcome departed  from

Commission intent, we might disregard the literal language of

the commentary  and treat as  a single conviction  only those

convictions  so closely  related  in time  and function  that

separate treatment  would disserve the purpose  of the career

offender provision.  Yet  a broader perspective suggests that

the Commission, in defining  related convictions, did mean to

adopt binding "rules of  thumb," such as this one, as well as

the even  more mechanical rule that  convictions for entirely

separate crimes should be treated as one if they happen to be

consolidated for trial or  sentence.  U.S.S.G.   4A1.2(a)(2).

In fact, the Commission in the same paragraph recognized that

these rules  of thumb could understate  criminal history, and

it said that the remedy in  such cases was for the sentencing

judge to employ an upward departure.  Id.5
                                        

     To  conclude that the  Commission intended  the apparent

result  of its literal  language does not  resolve the matter

since  we  might  still decide  that  a  rule  of thumb  that

produces  such a result is unfaithful to the guideline and to

the career  offender  statute  that  lies  behind  it.    But

                    

     5In the commentary paragraph containing both the "single
scheme  or   plan"  and   the  "consolidated  for   trial  or
sentencing" provisions, the Commission continued:  "The court
should be aware  that there  may be instances  in which  this
definition is overly broad and will result in [an inadequate]
criminal history score  . . .  .  In  such circumstances,  an
upward departure may  be warranted."  U.S.S.G.    4A1.2, app.
note 3.

                             -16-

Congress in 28 U.S.C.    994(h) authorized the  Commission to
                                                          

develop  guidelines to assure  that career  offenders receive

high sentences; and we  are loath to hold that  the mechanism

developed by the Commission (and submitted to Congress) falls

outside  that authority,  even if  there is  a Rube  Goldberg

aspect to the use of overbroad rules of thumb tempered by the

power  to depart.  The Second Circuit has treated the "common

scheme or plan" language  as binding, while eloquently urging

the  Commission to reexamine  its "related cases" commentary.

United States Butler, 970 F.2d 1017  (2d Cir.), cert. denied,
                                                            

113 S. Ct. 480 (1992). 

     Once  we  decide  that   the  "common  scheme  or  plan"

definition is both intentional and valid, it follows that the

"common scheme or plan" language should be given its ordinary

meaning.  This same language is used in Fed. R. Crim P. 8 (to

determine joinder) and there is no doubt that in that context

a conspiracy to rob banks would constitute a common scheme or

plan.   Willis offered to call fellow bank robbers to confirm

that  his  robberies were  part of  the same  conspiracy, and

there is  nothing implausible about his  proffer, however odd

it might seem to  conduct this inquiry.  Other  circuits have

required such evidentiary  hearings which, not  surprisingly,

tend to  produce findings that the  multiple convictions were

not part of a common scheme  or plan.  E.g., United States v.
                                                          

Chartier, 970 F.2d 1009 (2d Cir. 1992). 
        

                             -17-

     For the reasons indicated, we feel constrained to accept

the guideline commentary, to  conclude that the proffer could

not  be  ignored,  and  thus   to  remand  Willis'  case  for

resentencing.6   We do not, however, think  that the district

court is required to hold an evidentiary hearing if the court

concludes that it would impose the same sentence even without

the "career offender" label.  The guideline commentary itself

asserts  that the  rule of  thumb here  invoked by  Willis is

overinclusive and  invites judges to depart  upward where the

rule  of  thumb  operates  to  understate  criminal  history.

Accordingly,  the requirements for departure are satisfied if

the judge supportably concludes that--even assuming the truth

of Willis'  proffer--five prior  bank robberies, united  by a

conspiracy to rob banks, makes Willis deserving of a sentence

similar to  that he would receive if  he were classified as a

career offender.  U.S.S.G.   5K2.0.

     Whether or not  the outcome  proves to be  the same  for

Willis, it is important  for future cases that the  integrity

of the guideline regime  be preserved.  Under our  reading of

the guideline commentary, the district court may not classify

                    

     6The  government  says   that  the  district court  here
"found" that there  was no common scheme or  plan and it says
correctly  that  there  is  no automatic  requirement  of  an
evidentiary hearing for every  contested issue.  But in  this
case,  Willis' proffer  is not  implausible on  its face  and
there  was  apparently  no  other  evidence  about  the  bank
robberies.   As we read the  transcript, the district court's
"finding" actually derived from a narrowing interpretation of
the guideline language.

                             -18-

Willis  as  a  career offender,  assuming  the  truth of  his

proffer proposing to  show a  common scheme or  plan; but  we

repeat (without prejudging  the facts of this  case) that the

district court does have  authority to depart upward, subject

to appellate review.  18 U.S.C.   3742(e)(3).  The net effect

is  to increase the range of discretion of the district judge

in these situations,  which may be  just what the  Commission

intended.   As we have  noted, an evidentiary  hearing is not

automatically  required in cases  like this  one--not because

the judge can "find" no common scheme or plan in  the face of

a proffer like  this one  and without a  hearing, but  rather

because  the judge may depart  rather readily even  if such a

scheme or plan is assumed.7

     Although Willis' case is to be remanded, we consider his

other  claims of error, both for the guidance of the district

court   and  to   reduce  the   need  for   further  appeals.

Specifically,  Willis argues  that he  was wrongly  denied an

evidentiary  hearing   on  two   issues   important  to   his

sentencing, namely, the  amount of cocaine  for which he  was

                    

     7We  reject  Willis'  further  argument  that  the  bank
robbery convictions, even  though not formally  consolidated,
should be deemed "constructively" consolidated because of the
alleged plea bargain and concurrent  sentences.  The fact  is
that  the cases  were not  consolidated.   Whatever anomalies
result  from  the  accident  of consolidation  vel  non,  the
                                                       
situation   is  not   going  to   be  improved   by  treating
unconsolidated   cases   as  "constructively"   consolidated,
thereby broadening  beyond its language an  already overbroad
rule of  thumb.  See  United States v.  Rivers, 929 F.2d  136
                                              
(4th Cir.), cert. denied, 112 S. Ct. 431 (1991).
                        

                             -19-

responsible and his leadership status.  We think the district

court properly resolved these matters.

     At the sentencing, the  judge determined that Willis was

responsible for 2.2 kilos,  resulting in a base level  of 28,

U.S.S.G.       2D1.1(a)(3),  (c)(8),   and  was  a   "leader"

warranting an upward adjustment.  U.S.S.G.   3B1.1.  However,

instead of  adopting the  resulting offense level,  the judge

ruled that Willis was a  career offender, making him  subject

(in light of the maximum sentence to which  he was liable) to

a  base level of  32.  U.S.S.G.    4B1.1    The court reduced

this  figure by  2 levels  for acceptance  of responsibility.

The  court  then sentenced  Willis at  the  top of  the range

provided  by  the sentencing  table  for a  criminal  with an

offense level of  30 and  a criminal history  category of  VI

(which  is automatic  under U.S.S.G.      4B1.1 for  a career

offender).

     In finding  Willis  to be  a  leader and  computing  the

amount of cocaine, the  judge relied upon information adduced

at the trial of Willis' co-defendants and on other government

tape  recordings  not  introduced   at  the  trial  but  made

available for the sentencing.   On appeal Willis insists that

he  was entitled to an  evidentiary hearing on  the amount of

cocaine.   Neither the amount  of cocaine nor  the leadership

finding affected the guideline  range adopted by the district

court  since  the career  offender  guideline superseded  the

                             -20-

"otherwise  applicable  offense level."    U.S.S.G.    4B1.1.

Nevertheless, because  the leadership role of  Willis and the

amounts  of  cocaine  handled  by  his  ring  might  well  be

pertinent  to  the district  court's  sentencing decision  on

remand, we address Willis' objections.

     The law concerning the need for evidentiary hearings has

been  left  primarily   to  development  through   individual

decisions, which themselves  reflect the tension between  two

attitudes: the  history  of almost  unreviewable trial  judge

discretion in  sentencing and the present  specificity of the

guidelines.  See U.S.S.G.    6A1.3.  Here, however,  there is
                

no  need for any lengthy discourse on sentencing hearings.  A

prima facie case existed, based on the presentence report and

the evidence  adduced at the co-defendants'  trial, to regard

Willis  as  playing  a leading  role  in  a  ring dealing  in

substantial quantities of  cocaine.  At  no point did  Willis

ever  specify or proffer evidence that would be adduced in an

evidentiary hearing  to negate the amounts or Willis' role as

leader.    Under these  circumstances, it  is patent  that no

hearing  was required.   United States v.  Shattuck, 961 F.2d
                                                   

1012, 1015 (1st Cir. 1992).   Lastly,   Willis  argues   that

because the prior convictions were used to trigger the career

offender  guideline,  the government  had  to  file a  notice

specifying the  prior convictions before  Willis' guilty plea

in  this case.  21 U.S.C.    851 (prior notice is a condition

                             -21-

of "increased punishment").   Willis'  argument that  section

851  applies to  guideline  increases, as  well as  statutory

maximums,  was rejected  by this  court in  United States  v.
                                                         

Sanchez, 917 F.2d 607,  616 (1st Cir.), cert. denied,  111 S.
                                                    

Ct. 1625 (1991).  We decline the invitation to reexamine that

decision.

     Elwell.    Elwell  was   convicted  of  conspiracy,  two
           

distribution counts, and wilfully  filing a false tax return,

and he was sentenced to 78 months imprisonment.  The sentence

was the minimum allowed under the guideline range in light of

the finding  that  he had  distributed  at least  500  grams.

U.S.S.G.    2D1.1(a)(3), (c)(3).

     Elwell first contests the finding that he did distribute

at least 500 grams.  He  admits the distribution to Polito of

about  3 ounces  (approximately  84 grams)  for which  he was

convicted; indeed, Elwell admitted  at sentencing that he had

sold  more to Polito without  specifying a number.   At trial

Polito testified  that, apart from  the 3 ounces,  Elwell had

delivered "18, maybe 20"  ounces of cocaine to  Polito during

the summer of 1988.  The judge accepted this evidence despite

Elwell's denial at the sentencing hearing that he had sold so

large a  quantity.  Even the  low-end figure of 18  ounces is

504 grams, exceeding the guideline minimum of 500 grams.

     The  critical facts by which a  guideline range is fixed

must  be proved  by a  preponderance of  the  evidence, e.g.,
                                                            

                             -22-

United States v. Blanco,  888 F.2d 907, 909 (1st  Cir. 1989).
                       

While inviting us to raise or at least stiffen this standard,

Elwell's  main argument  is  that Polito's  estimate was  too

casual  to  support the  drastic  increase  in sentence  that

results  for  distributing  18  rather than  3  ounces.    He

stresses  the fact that Polito was himself a user during this

period  and admitted  to  hazy recollections  or mistakes  in

other  testimony.   Combining these  arguments, he  argues on

appeal that the judge's determination was  clearly erroneous,

the standard properly  applied on review.   United States  v.
                                                         

Aymelek, 926 F.2d 64, 69 (1st Cir. 1991).
       

     We disagree.   The district court,  which heard Polito's

testimony at  trial and Elwell's testimony  at the sentencing

hearing,  was entitled  to  choose between  them.   The  time

period  over which  Elwell  supplied Polito  and the  size of

Polito's purchases were also  consistent with the 18-20 ounce

figure.  Against this  backdrop and in light of  the standard

of review, we find  no error.  This conclusion  also disposes

of Elwell's claim  that the larger  ounce figure was  wrongly

used  in  determining  the  amount of  unreported  income  in

sentencing under the tax count.

     Elwell  objects  lastly  to  the  special  condition  of

supervised release that requires him to submit to random drug

testing,  as well as drug and  alcohol treatment, as directed

by the Probation  Service.   Elwell objects that  his use  of

                             -23-

drugs (cocaine  and previously  amphetamines) lay 5  years or

more  in the past, that nothing else supports this condition,

and that  supervised release conditions  should "involve[] no

greater  deprivation of liberty than necessary   . . . ."  18

U.S.C.    3583(d)(2).  We  believe that the  drug testing and

treatment requirement--if  deemed necessary by  the Probation

Service--lay  well  within the  district  court's discretion,

given Elwell's past  use and  past dealing in  drugs.  As  to

alcohol,  the failure  of Elwell  to raise this  objection at

sentencing  or by  post-trial motion  makes it  impossible to

assess  the  district  court's  reasons for  adding  in  this

condition  and,   in  our  view,  this   failure  waived  the

objection. 

     Moretto.   Moretto's sentence was based  on the district
            

court's  finding  that  he  should  be  treated  as a  career

offender.  His  record showed two state court convictions for

assault and related conduct in October 1987 and February 1990

respectively and a drug conviction for possession with intent

to  distribute in March 1988.  In the district court, Moretto

argued that  the assault convictions were  misdemeanors under

state  law,  but the  trial judge  found  them to  qualify as

felonies for guideline purposes.  See U.S.S.G.   4B1.2,  app.

note  3 (prior felony  conviction includes offense punishable

by  more than one year imprisonment even if not designated as

a felony).

                             -24-

     On appeal,  Moretto asserts that the  trial court relied

on  the  two   state  assault  charges  to  find   two  prior

convictions.  Moretto then argues that while the October 1987

conviction  may be  a "prior"  felony conviction,  the latter

assault conviction in February  1990 occurred after the start
                                                   

in 1988 of the conspiracy for which  he was convicted in this

case.   In reply, the  government says that  this argument is

waived  because not made below; that in any event the instant

conspiracy  continued  after  the February  1990  conviction,

making it a prior  conviction under the guidelines;  and that

the  first  assault   conviction  and  the   drug  possession

conviction  both  remain  even   if  the  second  assault  is

disregarded. 

     Waivers  are occasionally forgiven  and the government's

reliance on  the March 1988 drug  conviction could presumably

be assailed on  the same  ground that Moretto  now offers  to

exclude  the  February  1990  conviction  from consideration,

namely, that it occurred  after the instant conspiracy began.

But  we   think  the  ground  is   clearly  wrong:  continued

participation  in  a  conspiracy after  a  felony  conviction

renders that conviction  a prior felony conviction.   This is

apparent from  both the letter and intent  of the guidelines,

U.S.S.G.   4B1.2(3)("defendant committed the  instant offense

subsequent to sustaining at least two felony convictions  . .

                             -25-

. ."), and thus there was no error in sentencing Moretto as a

career offender.

     The  judgments are  affirmed except  as to  Willis whose
                                 

case  is remanded  for resentencing  in accordance  with this
                 

opinion.

                             -26-
