
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2360                                    DAVID ELWELL,                                Petitioner-Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Respondent-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Joseph K. Kenyon with whom Stephen Weymouth was on brief for            ________________           ________________        appellant.            George W. Vien, Assistant U.S. Attorney, and Donald K. Stern,            ______________                               _______________        United States Attorney, U.S. Department of Justice, was on brief for        appellee.                                 ____________________                                  September 9, 1996                                 ____________________                               CAMPBELL, Senior Circuit Judge.  David Elwell                                ____________________            appeals from the denial by the district court of his motion            under 28 U.S.C.   2255 to vacate, set aside or correct the            sentence it imposed following his conviction for drug-related            offenses.  Elwell contends, inter alia, that the court made            errors in determining the amount of cocaine to attribute to            him for sentencing purposes.                            I.  Procedural and Factual History                          I.  Procedural and Factual History                      After a jury trial in the district court, Elwell            was convicted on February 15, 1991, of one count of            conspiracy to distribute cocaine, in violation of 21 U.S.C.              846; two substantive counts of possession of cocaine with            intent to distribute, in violation of 21 U.S.C.   841(a)(1);            and one count of willfully subscribing to a false income tax            return, in violation of 21 U.S.C.   7206(1).  He was            sentenced to 78 months imprisonment concurrently on each of            the drug counts, and 36 months on the tax count, to be served            concurrently.  Elwell took a direct appeal to this court,            which affirmed the judgment of the district court.  United                                                                ______            States v. Elwell, 984 F.2d 1289 (1st Cir. 1993), cert denied,            ______    ______                                 ___________            113 S. Ct. 2429 (1993).  He then brought the present motion            under 28 U.S.C.   2255.  This was denied in a comprehensive            opinion by the same judge who had sentenced him.  Elwell now            appeals.                        The primary witness against Elwell at his criminal            trial was Mark Polito, a cocaine addict turned government            informant.  Polito testified to having purchased "an ounce--            two ounces" from Richard Moretto every other week or so over            a period of four to five months in the spring of 1988.  When            Moretto had to report to prison in or around April 1988, he            introduced Polito to his distributor, Hobart Willis.  Willis,            in turn, put Polito in touch with Elwell, who managed Willis'            "northern territory."  Elwell supplied Polito's cocaine needs            throughout the summer of 1988.  Polito eventually fell into            debt to Elwell because of his cocaine habit and, under            pressure for payment, began to cooperate with law enforcement            authorities.  While cooperating, Polito made two more cocaine            purchases from Elwell, on November 17, 1988, and December 19,            1988.  In a tape recorded statement, Elwell stated that            Polito owed him "twenty-four somethin'."                      Elwell's conviction was for the final two            purchases, which amounted to a total of three ounces of            cocaine.  At sentencing, the district court found that Elwell            had also distributed an additional 20 ounces of cocaine to            Polito during the course of the previous summer of 1988.  The            court, therefore, attributed sales of over 500 grams to him                                         -3-            for purposes of determining the Base Offense Level.1  Polito            testified at trial that he had purchased "18, maybe 20"            ounces of cocaine from Elwell during the summer.  At            sentencing, the judge stated, among other remarks,                           What that [the rule allowing the                      court to consider relevant information                      without regard to its admissibility under                      the rules of evidence] means to me is                      that I can review all of the material I                      have.  I can assess the credibility of                      Mr. Polito, the evidence which tended to                      corroborate Mr. Polito or contradict him,                      the testimony of other participants, such                      as Mr. Willis--not of the testimony, but                      of the evidence that pertained to Mr.                      Willis and Mr. Willis's connection with                      Mr. Elwell, and make a decision as to the                      disputed findings of fact.  I heard that                      evidence.                           Mr. Polito testified, in summary,                      that he bought one or two ounces, one or                      two ounces every week or every two weeks                      from Mr. Moretto over a period of four to                      five months.  I calculated that had to be                      about 14 purchases, not every week but                      for a period of 14 weeks, not 20 weeks                      but 14 weeks of one to two ounces.  I                      took the one to two ounces to be one and                      a half ounces, and I added 14 purchases                      to one and and [sic] a half ounces to 20                      ounces.  That's a conclusion, a factual                      conclusion I made.                                            ____________________            1.  United States Sentencing Guidelines   1B1.3(a)(2)            provides that in determining the Base Offense Level, the            court shall include acts and omissions committed by the            defendant as part of the same course of conduct or common            scheme or plan as the offense of conviction when, inter alia,            the offense level is determined largely on the basis of the            total quantity of a substance involved.  See U.S.S.G.                                                        ___            3D1.2(d).  U.S.S.G.   2D1.1(c)(7) provides for a Base Offense            Level of 26 for unlawfully selling between 500 grams and two            kilograms of cocaine in a continuing criminal enterprise.                                         -4-                      Appellant relies on the second paragraph of the            judge's above statement to argue (1) that the judge            improperly included cocaine sold by a co-conspirator before            Elwell joined the conspiracy to arrive at the 23-ounce            figure; and (2) that the judge improperly used averages to            calculate the amount of cocaine sold by Elwell in purported            violation of new case law, entitling Elwell to reopen this            court's previous affirmance on direct appeal of his sentence.             Appellant further contends that the district court should            have scrutinized more closely Polito's drug quantity            estimates because of Polito's status as an addict-informant,            and that appellant should receive reductions in his sentence            for being a "minor participant" in the criminal activity in            which he was involved and for "acceptance of responsibility"            under U.S.S.G.    3B1.2(b) and 3E1.1.2                                         II.                                         II.            A.   Inclusion of Cocaine Sold by a Co-conspirator                 _____________________________________________                      In arguing that the judge improperly enlarged            Elwell's offense level by counting cocaine sold earlier by a            co-conspirator, appellant relies upon a November 1, 1994                                            ____________________            2.  The United States Sentencing Guidelines provide for a            two-level decrease in the defendant's Base Offense Level if            he or she was a minor participant in the criminal activity.             The Guidelines also provide for a two-level decrease if the            defendant clearly demonstrates acceptance of responsibility            for his or her offense.                                         -5-            amendment to the Application Notes of U.S.S.G.   1B1.3 which            states, "A defendant's relevant conduct does not include the            conduct of members of a conspiracy prior to the defendant            joining the conspiracy, even if the defendant knows of that            conduct. . . "  U.S.S.G.   1B1.3, comment. (n.2).                           The government correctly points out, however, that            the total amount of cocaine counted by the district court as            relevant conduct for sentencing purposes did not include            amounts sold earlier to Polito by Moretto.  Rather the court            arrived at its finding that Elwell had sold 20 ounces in            addition to the three ounces underlying his conviction from            Polito's sworn testimony of having purchased "18, maybe 20"            ounces of cocaine from Elwell in the summer of 1988.3  Hence            there is no occasion to consider the law relative to a co-            conspirator's drug sales.                        It is true, as earlier mentioned, that the court            also referred to Polito's testimony about cocaine purchases            from Moretto earlier that spring, over a four to five month            period.  But the judge's language in doing so suggests that            the court was discussing the prior transactions simply as            part of its assessment of the overall credibility of Polito's                                            ____________________            3.  As this court pointed out on direct appeal, since even            the low-end figure of 18 ounces is 504 grams, exceeding the            Guidelines' 500 gram minimum for the sentence in issue, the            court's finding of 20 ounces rather than 18 is of no            consequence.  Elwell, 984 F.2d at 1297.  Elwell makes no                          ______            argument based on the two-ounce difference.                                         -6-            testimony, comparing the amounts earlier purchased from            Moretto with the "18, maybe 20" ounces Polito claimed to have            bought from Elwell within a comparable time frame.  This            interpretation dove-tails with the district court's finding            at sentencing, "I conclude that Mr. Elwell distributed at                                            __________            least 20 ounces of cocaine to the witness . . . during the                                                            __________            summer of 1988 . . . "  (Emphasis supplied).  Had the court            ______________            meant that some or all of the 20 ounces came from Moretto, it            would not have said that "Mr. Elwell distributed at least 20                                      __________            ounces . . .", nor would it have referred to sales in the            summer, rather than the spring, of 1988.                        That this was what the court meant was confirmed by            the trial judge himself in his opinion disposing of Elwell's            motion under   2255.  The judge flatly stated, "I was            referring to the twenty ounces which Elwell sold directly to            Polito."  This court earlier reached the same conclusion when            deciding Elwell's direct appeal, i.e. we stated that the            district court's findings were based upon cocaine Elwell sold                                                              ______            during the summer of 1988.  Elwell, 984 F.2d at 1297-98.              _________________________   ______                      As the district court rested its finding of 23            ounces on amounts sold by Elwell in the summer and fall, not            amounts sold earlier to Polito by another supplier, we see no            merit in appellant's contention that the district court            violated the November 1, 1994 amendment to the Application            Notes of U.S.S.G.   1B1.3.                                         -7-                      Appellant also seems to argue that the events which            occurred before he personally sold drugs to Polito may not be            considered even for background corroborative and credibility            purposes.  We disagree.  United States Sentencing Guidelines              6A1.3(a) provides, in part, "In resolving any reasonable            dispute concerning a factor important to the sentencing            determination, the court may consider relevant information            without regard to its admissibility under the rules of            evidence applicable at trial, provided that the information            has sufficient indicia of reliability to support its probable            accuracy."  While the Moretto sales, standing alone, would be            inadequate to establish the amounts Elwell later sold, they            have some general relevance to Polito's testimony of the            specific amounts he purchased from Elwell, since they help            show the pattern of Polito's purchases during the year.                      It is commonplace that a conspiracy's past            activities may be considered at sentencing for various            purposes, e.g., to determine the volume of drugs a late-            joining co-conspirator reasonably foresaw would be sold by            the conspiracy in the future.  United States v. O'Campo, 973                                           _____________    _______            F.2d 1015, 1025-26 & 1024-25 n.9 (1st Cir. 1992).  See also                                                               ________            United States v. Carreon, 11 F.3d 1225, 1236 (5th Cir. 1994);            _____________    _______            United States v. Madkins, 14 F.3d 277, 279 n.10 (5th Cir.            _____________    _______            1994); United States v. Patriarca, 912 F. Supp. 596, 606, 610                   _____________    _________            (D. Mass. 1995).  Here, the frequency and quantity of drugs                                         -8-            previously purchased by Polito, before Elwell began to supply            him, helped verify the amounts later said to have been            furnished by Elwell, since it might be thought that Polito's            requirements and habits would remain somewhat consistent over            time.            B.   The Use of Averages to Calculate Amounts                 ________________________________________                      Elwell complains that the district court wrongly            used "averaging" in holding him responsible for the sale of            23 ounces. He bases this argument on the district court's            quoted review of the sales by Moretto to Polito in which the            judge indicated that the amounts sold each time averaged out            to one and one-half ounces.  Elwell also finds fault with the            court's estimates of the frequency of Moretto's sales.                        As already pointed out, however, the district            court's finding of 23 ounces does not rest upon Moretto's            previous sales to Polito but rather is based on Polito's            testimony that he had purchased "18, maybe 20" ounces of            cocaine from Elwell in the summer of 1988 (and, in addition,            on evidence of the three ounces sold by Elwell to Polito in            November and December of that year).  This evidence of summer            sales was not the product of averaging nor did it call for            averaging.  It is true that the court also made certain            inferences about the earlier transactions with Moretto,             including the average quantities purchased, but as we have            indicated, the court did so merely to assist in its overall                                         -9-            evaluation of Polito's testimony concerning Elwell's own            sales to him, upon which the finding of 23 ounces was based.                      Elwell argues also that the deductions the court            drew from the Moretto evidence were flawed, leading it to            attribute too much cocaine to this earlier period, and to err            in believing that these previous sales corroborated the            quantities attributed to Elwell in the latter period.  The            short answer to this argument is that Elwell is not entitled            on collateral review to relitigate issues raised on direct            appeal, absent an intervening change in the law.  Davis v.                                                              _____            United States, 417 U.S. 333, 342 (1974) (holding that a              _____________            2255 hearing is permitted on an issue previously addressed on            direct appeal when there has been an intervening change in            the law).  Cf. Singleton v. United States, 26 F.3d 233, 240                       ___ _________    _____________            (1st Cir. 1993) ("'[I]ssues disposed of in a prior appeal            will not be reviewed again by way of a 28 U.S.C.   2255            motion.'" (quoting Dirring v. United States, 370 F.2d 862,                               _______    _____________            864 (1st Cir. 1967))), cert. denied, 115 S. Ct. 517 (1994);                                   ____________            United States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990) ("We            _____________    _______            note that certain other claims raised in the   2255 motion            were decided on direct appeal and may not be relitigated            under a different label on collateral review.").  Likewise,            Elwell is not entitled to relitigate issues that could have            been raised on direct appeal, but were not, absent a showing            of cause excusing the default and actual prejudice resulting                                         -10-            from the error of which he complains.  See United States v.                                                   ___ _____________            Frady, 456 U.S. 152, 167-68 (1982); Suveges v. United States,            _____                               _______    _____________            7 F.3d 6, 10 (1st Cir. 1993) (holding that a party must show            cause and prejudice to raise an objection not argued on            direct appeal in a   2255 motion (citing Frady)).  Elwell                                                     _____            vigorously argued on direct appeal that the 20 ounces            attributed to him was unsupported and too high; this court            considered those arguments expressly, and to the extent he            now seeks to repeat and embellish these contentions, he has            failed to show cause for being allowed to do so.                      In particular, there is nothing to Elwell's            argument that two cases decided by this court, United States                                                           _____________            v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), cert. denied, 114               _________                                ____________            S. Ct. 2714 (1994) and United States v. Welch, 15 F.3d 1202                                   _____________    _____            (1st Cir. 1993), cert. denied, 114 S. Ct. 1161 and 114 S. Ct.                             ____________            1863, have so changed the law since Elwell's direct appeal as            to warrant the reopening of our earlier affirmance of            Elwell's sentence on direct appeal.                          This court did not rule in Sepulveda and Welch that                                                 _________     _____            averaging was no longer permissible.  We merely held in the            circumstances of those cases that the particular calculations            used, based on very broadly based averages, were            insufficiently precise to determine the amount of drugs used.             In later cases, where averages were taken from ranges with            tighter margins, we accepted their use.  See, e.g., United                                                     ___  ____  ______                                         -11-            States v. Webster, 54 F.3d 1, 5-6 (1st Cir. 1995).  In the            ______    _______            present case, unlike Sepulveda and Welch, the main evidence                                 _________     _____            upon which the court relied    Polito's testimony as to the            amounts Elwell sold him in the summer of 1988    did not            involve averaging at all.  The averaging employed related            merely to Moretto's earlier sales, discussed for purposes of            analogy only.  The one and a half ounce average, moreover,            fell arguably within tight margins, although we need not get            into this in order to conclude that Sepulveda and Welch did                                                _________     _____            not alter the law applicable on direct appeal.  This being            so, Elwell may not relitigate collaterally his challenge to            the sufficiency of the evidence on which his Base Offense            Level rests.  See Singleton, 26 F.3d at 240.                            ___ _________            C.   Reliance on Addict-Informant Witnesses                 ______________________________________                      In his third claim of error, Elwell contends that            the district court should have more carefully scrutinized            Polito's testimony because of his status as an addict-            informant.                      This argument was litigated and rejected in            Polito's direct appeal.  Elwell, 984 F.2d at 1297-98.  As                                     ______            explained in Part B, above, relitigation of the issue is thus            barred unless there has been an intervening change in the            law.  See Singleton, 26 F.3d at 240.                  ___ _________                      In support of his contention that there has been            such a change, Elwell points to several recent decisions in                                         -12-            other circuits which have imposed a "heightened standard of            scrutiny" on testimony by drug addicts who are cooperating            with the government.  See United States v. Beler, 20 F.3d                                  ___ _____________    _____            1428, 1435 (7th Cir. 1994); Miele, 989 F.2d at 666-68; United                                        _____                      ______            States v. Simmons, 964 F.2d 763, 776 (8th Cir. 1992), cert.            ______    _______                                     _____            denied, 506 U.S. 1011 (1992); United States v. Robison, 904            ______                        _____________    _______            F.2d 365, 371-72 (6th Cir. 1990), cert. denied, 498 U.S. 946                                              ____________            (1990).  See also United States v. Richards, 27 F.3d 465, 469                     ________ _____________    ________            n.2 (10th Cir. 1994) (noting this line of cases but            expressing neither agreement nor disagreement).  But see                                                             _______            United States v. Browning, 61 F.3d 752, 755 n.2 (10th Cir.            _____________    ________            1995) (distinguishing the Simmons line of cases on their                                      _______            facts as dealing only with addict-informants whose testimony            contradicted itself and/or who admitted to hazy memories).                        Whether or not the law can be said to have changed            in other circuits, this circuit has not adopted such a rule            of heightened scrutiny, nor are we aware of any recent            congressional enactments or pronouncements by the Supreme            Court making an alteration in the law in such instances.  In            Webster, we allowed the district court to base its sentence            _______            on the testimony of a witness who was "an admitted perjurer,            a drug user, and a turncoat who received a substantially            reduced sentence for implicating others."  Webster, 54 F.3d                                                       _______                                         -13-            at 5.  We concluded that the trial judge was able to make the            requisite credibility assessments concerning that witness.4              D.   Minor Participant and Acceptance of Responsibility                 __________________________________________________                 Reductions                 __________                      In appellant's fourth point of error, he argues            that, should he prevail on any of his previous three points            of error, he should receive a reduction in his sentence for            being a minor participant in the conspiracy and for accepting            responsibility for the amount of cocaine he distributed.  We            find little merit in these arguments on their face, but since            we reject Elwell's first three points of error, they are in            any case moot.                      Affirmed.                      ________                                                         ____________________            4.   We add that the mere movement of one or more other            circuits towards heightened scrutiny in certain cases would            not amount to intervening new law which would allow Elwell to            relitigate an issue already decided by this court on direct            appeal.  Both Simmons and Robison, upon which Elwell in part                          _______     _______            relies, were, moreover, decided before the direct appeal in            this case was argued.                                         -14-
