
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1830                                    UNITED STATES,                                      Appellee,                                          v.                                   MARK H. SHRADER,                                Defendant, Appellant.                                 ____________________        No. 94-2002                                    UNITED STATES,                                      Appellee,                                          v.                                    RICKY GAGNON,                                Defendant, Appellant.                                  __________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Tony F.  Soltani, with whom  Soltani Law Office  was on brief  for            ________________             __________________        appellant Mark H. Shrader; Jonathan R. Saxe, with  whom Twomey & Sisti                                   ________________             ______________        Law Offices was on brief for appellant Ricky Gagnon.        ___________            Jean L. Ryan, Assistant United States  Attorney, with whom Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for appellee.        ______                                 ____________________                                     May 23, 1995                                 ____________________                      BOWNES,  Senior  Circuit Judge.    In  this appeal,                      BOWNES,  Senior  Circuit Judge.                               _____________________            defendants-appellants Mark Shrader and Ricky Gagnon challenge            the sentences imposed upon them  after they pleaded guilty to            conspiring to possess marijuana with the intent to distribute            it.   Having  carefully  reviewed the  record and  considered            defendants' arguments, we affirm.                                          I.                                          I.                                          __                      The facts, which  are derived from the  presentence            investigation  reports  and  oral  and  documentary  evidence            introduced at the sentencing hearings, are as follows.                      In late 1991 or early 1992, Gagnon, then a Colorado            resident,  met with  two  co-conspirators --  Lee Zahler  and            Robert  Audette  --  at   Bea's  Restaurant  in  Epping,  New            Hampshire.   Knowing that  Gagnon had  previously distributed            marijuana  in  New Hampshire,  Audette  queried  Gagnon about            marijuana availability.  Gagnon responded that,  in Colorado,            Audette could obtain large quantities of marijuana  for a low            price.                      In  February  1992,  Zahler  and  Audette  flew  to            Denver, Colorado.  Gagnon  picked them up at the  airport and            eventually took  them to  his residence in  Aurora, Colorado,            where they examined  seventeen pounds of  marijuana.  Ten  to            twelve pounds of this marijuana  were high quality; the rest,            however, was  moldy.   Zahler expressed displeasure  with the            overall quality and theprice of the marijuana hehad examined.                                         -3-                                          3                      At  some  point, Shrader  --  Gagnon's  supplier --            showed  up at the Aurora residence.  Gagnon introduced him to            Zahler and Audette  as "Mark" and "Bandido  Mark."  Shrader's            nickname stemmed  from  his  association  with  the  Bandidos            Motorcycle  Club.    After  Zahler informed  Shrader  of  his            displeasure  with the  price  of the  marijuana he  had seen,            Shrader told Zahler he would have to go to Texas -- the point            of  origin  for  the  marijuana   Shrader's  associates  were            bringing into Colorado -- if he wanted it any cheaper.                        Zahler and Audette then discussed with Shrader  the            possibility of their purchasing  fifty pounds of marijuana in            Texas.   They  agreed  that the  Texas  transaction would  be            "middled"  by Gagnon, who knew Shrader's last name and how to            reach  him.  Zahler and  Audette also agreed  to purchase the            seventeen  pounds  of marijuana  they  had  already examined.            Subsequently,  they  concealed  it  in  a  couple  of  stereo            speakers  and  shipped  it  back to  New  Hampshire.   Gagnon            received  $850 for  putting the  deal together.   Thereafter,            Zahler and Audette returned home.                      Later   that  month,   Gagnon  called   Zahler  and            confirmed that Shrader  could and would deal  with Zahler and            Audette in Texas.  On March  4, 1992, Zahler and Audette flew            to Austin, Texas, checked into  the Radisson Plaza Hotel, and            called Gagnon to let him know where they were staying.  Later            that same day, Shrader came to the hotel in order to view the                                         -4-                                          4            $40,000  Zahler and Audette had brought with them in order to            complete  the fifty-pound deal discussed in Aurora.  The deal            was scheduled  for the  next day.   Zahler  became concerned,            however, when he  learned that, on  the following day,  there            also would  be a law  enforcement convention at  the Radisson            Plaza.   He  and Audette  therefore moved  to a  Holiday Inn.            Because he had no other way to contact Shrader, Zahler called            Gagnon  in Colorado and informed him of his and Audette's new            location.     Despite  the   move,  Audette's  anxiety  level            increased and he flew back to New Hampshire.                      At 6:00  p.m. on that same  evening, Shrader showed            up  at the  Holiday  Inn with  a  marijuana sample.    Zahler            rejected  it as  low-quality.    Shrader  told him  he  could            procure better marijuana,  but that it would  take some time.            Shrader  also  told  Zahler   of  his  association  with  the            Bandidos, and  that  the  source of  the  marijuana  was  the            president of  the  Bandidos' local  chapter.   Over the  next            couple of days, ten telephone calls were placed from Gagnon's            Aurora,  Colorado,  residence to  the  Holiday  Inn at  which            Zahler was staying.  In addition, four calls were placed from            Zahler's  room to  Gagnon's home  in Aurora.   Most  of these            calls were of short duration.                      On  March  7,  1992,  Zahler  purchased thirty-five            pounds of marijuana  from Shrader  and four other  men.   The            sale  took place  at the  Holiday Inn.   Zahler  paid Shrader                                         -5-                                          5            $31,500 in cash,  of which Shrader  took $3,200 for  himself.            One of the four other men present  at the sale -- the one who            carried the duffel bag of marijuana into Zahler's room -- was            wearing Bandidos paraphernalia.  Shrader accompanied this man            into Zahler's room.   Zahler subsequently shipped the thirty-            five  pounds of  marijuana to  an acquaintance  in Haverhill,            Massachusetts.                      On August  25, 1993, a federal  grand jury returned            an indictment against Shrader, Gagnon, and six others.  Inter                                                                    _____            alia,  the   indictment  charged  Shrader   and  Gagnon  with            ____            conspiring to possess marijuana with the intent to distribute            it.  21  U.S.C.   846.   On December 1, 1993, the  grand jury            returned a  superseding indictment against Shrader  and seven            others (including one of the original six co-defendants).  On            December 8,  1993,  Gagnon pleaded  guilty to  the conspiracy            charge.  On March 1, 1994, Shrader followed suit.            A.  Shrader's Sentencing            A.  Shrader's Sentencing            ________________________                      On  July  15, 1994,  the  district court  sentenced            Shrader.  The  court assigned  Shrader a  base offense  level            ("BOL")  of  eighteen  based  upon the  fifty-two  pounds  of            marijuana involved in the two deals.  See U.S.S.G.   2D1.1(c)                                                  ___            (November  1, 1993)  (drug quantity table).   The  court then            added two  levels because  it determined  that Shrader  was a            manager/supervisor of the offense, see   3B1.1(c), subtracted                                               ___                                         -6-                                          6            two levels for acceptance  of responsibility, see   3E1.1(a),                                                          ___            and arrived at a total offense level ("TOL") of eighteen.                        Shrader's criminal history,  which included,  inter                                                                    _____            alia,  five  driving-while-intoxicated  ("DWI")  convictions,            ____            dictated  that he  be  assigned a  criminal history  category            ("CHC")  of III.  This assignment did not, however, take into            account  two of the DWI  convictions and one careless driving            conviction which  involved Shrader's use of  alcohol; nor did            it take into account the fact that Shrader was arrested again                                                                    _____            for DWI (and for criminal mischief) after his guilty plea but            prior to  sentencing  in this  case,  and that,  in  revoking            Shrader's bail, the federal district court had found probable            cause to  believe that Shrader had  driven while intoxicated.            See   4A1.1(c) (capping at  4 the number of CHC points  to be            ___            assigned  for previous  sentences of  less than  sixty days).            The record reflects that, in connection with prior sentences,            Shrader  had   been  ordered  to   complete  substance  abuse            rehabilitation programs on at least three occasions.                        Taking  note of  the uncounted  conduct,  the court            decided to depart upward  because Shrader's CHC significantly            understated both his criminal  history and his predisposition            towards recidivist  behavior.  See    4A1.3 (endorsing upward                                           ___            departures where the CHC "significantly  under-represents the            seriousness  of  the  defendant's  criminal  history  or  the            likelihood that the  defendant will commit  further crimes").                                         -7-                                          7            Following  the procedure  prescribed  in    4A1.3, the  court            found that Shrader's criminal history most  closely resembled            that of  a defendant  with a  CHC of IV.   It  then sentenced            Shrader at the upper end of the guideline range applicable to            a  defendant with a TOL of eighteen and  a CHC of IV:  fifty-            one months' imprisonment.            B.  Gagnon's Sentencing            B.  Gagnon's Sentencing            _______________________                      On August 31, 1994,  following a two-day hearing at            which Gagnon testified that  he was involved in the  Colorado            transaction but not the Texas transaction, the district court            sentenced Gagnon.  Relying  on affidavits submitted by Zahler            and Audette  which stated that  Gagnon had middled  the Texas            transaction,  testimony  from  New  Hampshire  State  Trooper            Robert  Quinn which,  inter  alia, vouched  for Zahler's  and                                  _____  ____            Audette's credibility and rebutted Gagnon's testimony that he            was never involved  in any drug deals  other than the  one in            Colorado, and documentary evidence of the phone calls between            Gagnon's Aurora residence and  the hotels in Austin at  which            Zahler and Audette stayed,  the court rejected Gagnon's claim            regarding the Texas transaction.                        The  court  therefore  assigned  Gagnon  a  BOL  of            eighteen  based  upon  the  fifty-two   pounds  of  marijuana            involved in the two  transactions.  The court then  added two            levels  for  obstruction  of  justice  (finding  that  Gagnon            perjured  himself at  the sentencing  hearing), see    3C1.1,                                                            ___                                         -8-                                          8            subtracted three levels for acceptance of responsibility, and            arrived  at a  TOL of seventeen.   There was  no dispute that            Gagnon's CHC  was I.   The court thereafter  sentenced Gagnon            near the lower  end of  the guideline range  applicable to  a            defendant with  a TOL of seventeen  and a CHC of  I:  twenty-            five months' imprisonment.                                         II.                                         II.                                         ___                      On appeal, Shrader  assigns error  to the  district            court's   determinations   that    his   CHC    significantly            underrepresented both his criminal history and his recidivist            proclivities.   Shrader also challenges the court's two-level            manager/supervisor  enhancement  under    3B1.1(c).    Gagnon            assigns  error to  the  court's  attribution  to him  of  the            thirty-five  pounds  of  marijuana   involved  in  the  Texas            transaction, and to its two-level enhancement for obstruction            of justice.   He  also contends that  he was deprived  of his            Sixth  Amendment  confrontation  rights  at   his  sentencing            hearing.  We discuss each appeal in turn.            A.  Shrader's Appeal            A.  Shrader's Appeal            ____________________                      Shrader's challenge to his  CHC enhancement is two-            pronged.   First, Shrader contends that a CHC of III does not            "significantly  under-represent[]  the  seriousness of  [his]            criminal  history or  the  likelihood that  [he] will  commit            further crimes."  Second,  he asserts that the extent  of the                                         -9-                                          9            departure was unreasonable in light  of the departure-related            circumstances.  Neither argument persuades us.                      We have observed:                       [A]ppellate  review  of  a   decision  to                      depart   may  involve   three  subsidiary                      questions:   1) review  of the departure-                      related   circumstances   to    determine                      whether  or not  they  are of  a kind  or                      degree  that  they  may appropriately  be                      relied  upon  to  justify  departure;  2)                      review of  the  evidence  to  see  if  it                      supports  the departure-related  findings                      of  fact;  and  3) review  of  the record                      support for  the direction and  degree of                      departure.            United  States v. Rivera, 994  F.2d 942, 950  (1st Cir. 1993)            ______________    ______            (citation and internal  quotation marks omitted).   Shrader's            second argument -- which falls  squarely within the third  of            these  three  categories  --  is  subject  to  a  deferential            standard of review.  Id. ("review  of departure direction and                                 ___            degree  will take place  with full awareness  of, and respect            for,  the sentencing  court's  superior feel  for the  case")            (citation and internal quotation marks omitted).                        Shrader's first argument  falls within a subset  of            the first  of these three  categories, a subset  described in            Rivera  as  involving "a  judgment  about  whether the  given            ______            circumstances, as  seen  from  the  district  court's  unique            vantage  point,  are  usual   or  unusual,  ordinary  or  not            ordinary,  and to what extent."  Id. at 951 (contrasting this                                             ___            subset with the "quintessentially legal" type of category one            question, which  requires that we simply  interpret the words                                         -10-                                          10            of a guideline).  Because a district court may  have a better            take  on  the unique  circumstances  of  the particular  case            before  it  and  is  likely  to  have  seen  more  "ordinary"            Guidelines cases (and  therefore will more  readily recognize            the  extraordinary   case),  we  review  a  district  court's            "unusualness"  determination  "with  full awareness  of,  and            respect for, the trier's superior feel for the case, not with            the understanding that review is plenary."  See id. at 951-52                                                        ___ ___            (citation and  internal quotation marks omitted).   Thus, the            district  court's findings  that a  CHC of  III significantly            understated  both   Shrader's   criminal  history   and   his            predisposition  towards recidivist  behavior are  entitled to            deference.                      Shrader devotes  great energy  to arguing  that his            criminal  history was  accurately  captured by  CHC III,  but            spends   little  effort   addressing  the   district  court's            determination  that  CHC III  significantly under-represented            the  likelihood that he would commit further crimes.  We note            that this  latter "recidivist determination" alone, if within            the district  court's discretion, is sufficient  to support a            departure.  See   4A1.3 ("A departure . . . is warranted when                        ___            the criminal history category  significantly under-represents            the seriousness  of the  defendant's criminal history  or the                                                                   __            likelihood that  the defendant will  commit further crimes.")            (emphasis supplied).   In this case,  however, we think  that                                         -11-                                          11            the  record  evidence of  Shrader's  tendency  to repeat  the            extremely dangerous  offense of  DWI is sufficient  to uphold            both of the court's findings.            ____                      We acknowledge that  any criminal defendant  with a            CHC  of III  --  which covers  defendants  with four  to  six            criminal  history points -- is likely  to have been convicted            more than once  and therefore likely  to have exhibited  some            recidivist tendencies.  See   4A1.1 (assigning  (a) three CHC                                    ___            points  for each  prior sentence  exceeding one year  and one            month; (b) two points  for sentences of more than  sixty days            not counted under  section (a); (c) one point (up  to a total            of four) for sentences not counted under (a) or (b); and (d)-            (f)  additional points  for specific  offense characteristics            not  relevant here).   And  we further  acknowledge that,  by            capping at four the number  of less-than-sixty-days sentences            that can be counted,   4A1.1(c) contemplates the disregarding            of some  misdemeanor criminal  behavior.  Even  so, Shrader's            record  of persistently  disregarding the  law strikes  us as            unusual.                        Because Shrader  somehow  never received  a  prison            sentence  of more  than sixty  days for any  of his  five DWI            convictions, only  three of  these convictions (along  with a            fourth, non-DWI misdemeanor conviction) were counted  for CHC            purposes.  Thus, as we have noted, Shrader's CHC did not take            account of two DWI convictions.  Nor did it take into account                                         -12-                                          12            his careless-driving  conviction.   Finally, it did  not take            account of the DWI arrest on which the federal district court            had held a probable cause hearing in revoking Shrader's bail.            See supra at 7.            ___ _____                      In all, Shrader's CHC took account of only three of            seven incidents during which  Shrader threatened the lives of            _____            himself  and  others  by  operating  a  motor  vehicle  while            compromised by alcohol.   And it did not account for the fact            that   Shrader   had   thrice   been   ordered   to   undergo            rehabilitation programs  designed to deter  the very behavior            underlying these incidents.   In view of all this,  we cannot            say  that  the  district   court  abused  its  discretion  in            determining that  Shrader was  more likely to  commit further            crimes than  the typical defendant with a CHC of III.  And in            light of  the life-threatening nature of  the illegal conduct                                           ______            in  which Shrader has repeatedly  engaged, we cannot say that            the  court abused  its discretion  in finding  that Shrader's            criminal  history is  more serious  than that of  the typical            defendant with a CHC of III.                      Shrader also argues that the degree of departure --            ten months beyond  the upper end of  the applicable guideline            range   --  constituted  an  abuse  of  discretion.    In  so            asserting,  Shrader points out that even if his two other DWI            convictions had been counted,  he still would have had  a CHC            of III.   He contends that,  in essence, he was  given a ten-                                         -13-                                          13            month  sentence  for his  most  recent DWI  arrest  which, he            asserts, should not have been considered at all.  See   4A1.3                                                              ___            ("a prior arrest record itself should not be considered under                                    ______              4A1.3")  (emphasis  supplied).    His  argument  completely            overlooks  the careless  driving conviction  and  the court's            probable cause  determination on the most  recent DWI arrest.            More importantly, it  disregards the recidivist  implications            of  his  constantly  repeating  the same  dangerous  criminal            behavior despite previous sentences containing rehabilitative            components aimed directly at the behavior.  When evaluated in                             ________ __            this context, Shrader's argument falls far short.                          The  record  reflects  that  the  court  faithfully            followed the  recommendation of    4A1.3 by  determining that            Shrader's criminal  history  and recidivist  tendencies  most            closely resembled  that of a defendant with  a CHC of IV, and            then sentencing Shrader within the guideline  range specified            for a  defendant with a CHC  of IV.  The  court's process and            reasoning were impeccable, and resulted in a sentence that is            facially reasonable.  There was no abuse of discretion in the            district court's degree of departure.                      Shrader's  challenge  to   the  court's   two-level            manager/supervisor   enhancement   pursuant  to      3B1.1(c)            requires   less   discussion.      We   review  the   court's            determination  only for  clear  error, see  United States  v.                                                   ___  _____________                                         -14-                                          14            Morillo, 8 F.3d 864,  871 (1st Cir. 1993), and  perceive none            _______            here.                        Shrader argues  that the record, read  in the light            most favorable  to the  government, establishes no  more than            that he was  a "steerer," a "go-between,"  or a "functionary"            in the Texas and Colorado transactions.  See United States v.                                                     ___ _____________            Sostre, 967 F.2d  728, 733  (1st Cir. 1992)  (one who  merely            ______            "steers"  drug  buyers   to  sellers  ordinarily  cannot   be            considered a  manager/supervisor  under    3B1.1).    Shrader            misreads the record in making this argument.                      As  the  district court  observed  in its  detailed            findings  of fact,  Shrader did  far more  than bring  people            together;  he was,  in fact, the  principal through  whom the            Bandidos  conducted the  Colorado and  Texas sales.   At  the            meeting and  sale in Aurora, Colorado,  Shrader committed his            organization   --  an   organization   with   several   other            participants  --  to  the  deal  subsequently  consummated in            Texas.   When Zahler balked  at the quality  of the marijuana            first presented in Texas,  Shrader stated that he  could, and            later  did,  procure  higher-grade  material.    And  Shrader            oversaw  the  execution  of  the Texas  deal;  while  another            Bandido  carried  the  marijuana  into Zahler's  hotel  room,            Shrader accepted and  counted the money, and  paid himself on            the spot.   In sum,  Shrader managed the  Colorado and  Texas            transactions, and supervised at least one other individual in                                         -15-                                          15            the course of so doing.  No  more is required.  See    3B1.1,                                                            ___            comment.  (n.2) ("To  qualify  for an  adjustment under  this            section, the defendant must  have been the organizer, leader,            manager, or  supervisor of one or  more other participants.")            The district court's role-in-the-offense enhancement  was not            clearly erroneous.              B.  Gagnon's Appeal            B.  Gagnon's Appeal            ___________________                      Gagnon concedes that his challenges to the district            court's attribution  to him of  the marijuana from  the Texas            transaction  and imposition  of  the obstruction  of  justice            enhancement (for denying involvement in the Texas transaction            at the sentencing hearing) rise or fall on the sustainability            of the court's  factual finding that  Gagnon was involved  in                            _______            the Texas transaction.  Because the court's finding is easily            sustainable, Gagnon's arguments necessarily fail.                      We will affirm  a district court's  obstruction-of-            justice enhancement  unless it is clearly  erroneous.  United                                                                   ______            States v. Ovalle-Marquez, 36  F.3d 212, 225 (1st Cir.  1994),            ______    ______________            cert.  denied, 115 S. Ct. 947 (1995).   And in the absence of            _____  ______            clear  error, so too will  we affirm a  district court's drug            attribution, relevant-conduct determination, United States v.                                                         _____________            Innamorati, 996  F.2d 456, 489 (1st Cir.),  cert. denied, 114            __________                                  _____ ______            S. Ct. 409 (1993),  and credibility assessment, United States                                                            _____________            v.  Olivier-Diaz, 13  F.3d 1, 4  (1st Cir. 1993).   Thus, our                ____________            inquiry reduces  to whether the district  court clearly erred                                         -16-                                          16            in disbelieving Gagnon's  testimony and  finding that  Gagnon            was involved in the  Texas transaction.  We discern  no clear            error in the court's finding.                      As  we already  have explained, the  court premised            its  finding  on  the  affidavits  submitted  by  Zahler  and            Audette,  the  testimony  from New  Hampshire  State  Trooper            Robert Quinn, and the documentary evidence of the phone calls            between Gagnon's Aurora residence and the hotels  in Texas at            which Zahler and Audette stayed during the days preceding the            Texas drug deal.  Gagnon does not dispute that, if the Zahler            and  Audette affidavits  are credited,  this  is a  more than            adequate basis  to support the  court's finding.   He argues,            however, that the court erred in crediting these "unreliable"            affidavits over his own sworn testimony.  He further contends            that the other  evidence is  insufficiently corroborative  or            probative  to  ground the  challenged  finding.   Because  we            disagree  with Gagnon's  argument  regarding the  Zahler  and            Audette  affidavits,  we need  not  consider the  independent            effect of Quinn's testimony and the telephone records.                       It is  settled that  a "sentencing judge  is vested            with wide  discretion to  determine the information  on which            sentencing  guideline  decisions  will  be   based,  and  may            consider  reliable  hearsay  evidence."    United  States  v.                                                       ______________            Montoya,  967 F.2d 1, 3 (1st  Cir.) (citation omitted), cert.            _______                                                 _____            denied, 113 S.  Ct. 507  (1992); see also    6A1.3  (evidence            ______                           ___ ____                                         -17-                                          17            with  "sufficient  indicia  of  reliability  to  support  its            probable  accuracy" may be  considered at sentencing "without            regard  to  its admissibility  under  the  rules of  evidence            applicable at trial").  The judge also has "wide  discretion"            in  determining whether  sentencing information  is reliable.            Montoya, 967 F.2d  at 3  n.6.   Mindful of  these tenets,  we            _______            believe that  the district court acted  within its discretion            in crediting the Zahler and Audette affidavits.                      The thrust of Gagnon's  argument is that Zahler and            Audette,  as cooperating  co-conspirators,  had  such  strong            incentives    to   inculpate   Gagnon    that   the   largely            uncorroborated  statements  contained  in their  self-serving            affidavits  should  be  rejected  out  of  hand.    While  we            certainly   concede   that    uncorroborated,   or    largely            uncorroborated,  affidavits  of  cooperating  co-conspirators            should  be viewed with some  skepticism, we see  no basis for            adopting what would amount to a per se rule of unreliability.                                            ___ __            We think the wiser  course is to leave reliability  decisions            and credibility  determinations to the informed discretion of            the district court, while rigorously ensuring that defendants            have a sufficient opportunity  to impeach tenuous evidence in            appropriate ways, such as through cross-examination or by the            introduction of evidence of their own.                      Here,  the district  court  provided Gagnon  with a            fair  process.   The  record shows  that  Gagnon had  a  full                                         -18-                                          18            opportunity  to  tell  the  court  his  side  of  the  story.            Moreover,  during  his  cross-examination  of  Quinn,  Gagnon            elicited the  self-serving nature of  Zahler's and  Audette's            cooperation  with the  government.  Gagnon  also was  able to            emphasize  the  almost  complete  absence  of  hard  evidence            corroborating the statements made in the affidavits.                      Gagnon  makes  a  post  hoc argument  that  he  was                                        ____  ___            entitled  to  cross-examine Zahler  and  Audette;  indeed, he            frames  the argument  as  a constitutional  challenge to  his            sentencing, arguing  that it violated  the Sixth  Amendment's            Confrontation Clause.   Whatever merit there might be  in the            contention   that  the   Confrontation   Clause  applies   in            situations  such  as this  (and we  take  no position  on the            contention here, but  see United States v.  Tardiff, 969 F.2d                             ___  ___ _____________     _______            1283, 1287 (1st Cir. 1992) ("in the usual case, a defendant's            Sixth Amendment  right to confront the  witnesses against him            does not attach during the sentencing phase")), Gagnon cannot            assert it in  this appeal because he did  not attempt to call            Zahler and Audette as witnesses at his sentencing, cf. United                                                               ___ ______            States  v.  Garcia,  34  F.3d  6,  10  n.1  (1st  Cir.  1994)            ______      ______            (sentencing challenges not first  presented to the sentencing            court are  ordinarily waived on appeal).   Application of the            waiver rule is especially appropriate in this instance, where            the district court indicated on the record that it would have            allowed Gagnon to  cross-examine Zahler and Audette had he so                                         -19-                                          19            requested, see United States  v. Gagnon, Cr. No. 93-61-02-JD,                       ___ _____________     ______            order at 2  (D.N.H. Sept.  13, 1994), and  where the  court's            failure  to order  Zahler  and Audette  to  appear cannot  be            considered plain error under Fed. R. Crim. P. 52(b).                      In the end, we  see no clear error in  the district            court's determination  that Gagnon was involved  in the Texas            transaction.   We accordingly  reject Gagnon's  challenges to            the court's  relevant conduct  determination and to  its two-            level enhancement for obstruction of justice.                                         III.                                         III.                                         ____                      For the reasons stated,  we affirm the sentences of                                                  ______            defendants Mark Shrader and Ricky Gagnon.                                               -20-                                          20
