

December 15, 1994

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2453

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        DAVID PHELAN,

                    Defendant, Appellant.

                                         

No. 92-2454

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                       STEPHEN LILLIS,

                    Defendant, Appellant.

                                         

No. 92-2455

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        RAYMOND LUCE,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET                                     ERRATA SHEET

The opinion of this court issued  on December 6, 1994,  is amended

as follows:

On page 4,  last line, replace the  word "undertake" with the word

"undertaken".

December 6, 1994        [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 92-2453

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        DAVID PHELAN,

                    Defendant, Appellant.

                                         

No. 92-2454

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                       STEPHEN LILLIS,

                    Defendant, Appellant.

                                         

No. 92-2455

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        RAYMOND LUCE,

                    Defendant, Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

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

                                         

                            Before

                    Selya, Cyr and Boudin,

                       Circuit Judges.                                                 

                                         

Roger A. Cox, by Appointment of  the Court, for appellant  Stephen                        

Lillis.

David Phelan on brief pro se.                        

Raymond Luce on brief pro se.                        

Ronald Cohen, by Appointment of the  Court, on brief for appellant                        

Raymond Luce.

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

John Pappalardo, United States  Attorney, and Donald K. Stern,  United                                                                     

States Attorney, were on briefs for the United States. 

                                         

                                         

     BOUDIN,  Circuit  Judge.     From  1988  through   1991,                                        

appellant    Stephen    Lillis'   drug    organization   sold

phencyclidine  ("PCP"   or  "angel  dust")   in  and   around

Cambridge, Somerville and Charlestown, Massachusetts.  PCP is

usually  smoked   after  it  has  been   diluted  with  other

substances.   Lillis and his associates  would procure PCP in

liquid  form, and  then treat  mint leaves  with  the liquid,

making  it smokable.  These treated mint leaves would be sold

in packages to customers who contacted the ring by calling an

electronic-beeper "800"  telephone number.   A street  dealer

for the ring--such as  co-appellants David Phelan and Raymond

Luce--would return the call  and arrange for a place  to meet

to complete the sale.  

     Lillis, Phelan,  and Luce  stood trial together  in late

April 1992.  All were convicted of one count of conspiracy to

possess  PCP  with  intent  to  distribute.    21  U.S.C.    

841(a)(1), 846.  Lillis was also convicted  of several counts

of  possession  with  intent   to  distribute,  21  U.S.C.   

841(a)(1), and Luce was convicted of one such count.  Lillis,

classified as  an organizer, U.S.S.G.    3B1.1(a), received a

262-month sentence,  and Phelan a 151-month  sentence.  Luce,

largely  due to  the  trial judge's  finding  that he  was  a

"career offender," see  U.S.S.G.   4B1.1 et  seq., received a                                                             

360-month sentence.  

                             -3-                                         -3-

     On this  appeal, each  of the appellants  challenges his

sentence.  Lillis' target  is the trial judge's determination

that the  Lillis organization distributed  or possessed  with

intent to distribute between three and ten kilograms of  PCP.

Findings as  to drug  quantities are  factual, and  we review

them only for clear error.  United States v. Whiting, 28 F.3d                                                                

1296, 1304 (1st Cir.),  cert. denied, 115 S. Ct.  379 (1994).                                                

"[T]he  sentencing  court has  broad discretion  to determine

what data is, or  is not, sufficiently dependable to  be used

in imposing sentence."   United States  v. Tardiff, 969  F.2d                                                              

1283,  1287  (1st  Cir.   1992).    Yet,  because  guidelines

sentences vary  dramatically depending upon drug quantity, we

have  stressed that  district  courts must  exercise care  in

making quantity assessments.   United States v. Sepulveda, 15                                                                     

F.3d 1161, 1196  (1st Cir.  1993), cert. denied,  114 S.  Ct.                                                           

2714 (1994).

     Here, the  district court attributed  to the  conspiracy

between  three and  ten kilograms  of a mixture  or substance

containing PCP.  U.S.S.G.    2D1.1(a)(3),  (c).  The district

judge  based his findings on the evidence presented at trial.

At sentencing,  he set  forth and  explained his  findings in

detail.   The district  court  relied most  heavily upon  the

trial  testimony of  Robert Knapik,  a dealer  in the  Lillis

organization  through  much  of  1988  and  1989.   Based  on

Knapik's   testimony,  the  district  court  found  that  the

                             -4-                                         -4-

conspiracy had in its possession two one-gallon containers of

PCP.   Using  the unchallenged  figure  of 2.64  kilograms  a

gallon, this is obviously more than three kilograms.

     Lillis' claim that the district court erred is based  on

a misreading  of the  Knapik testimony.   Knapik  agreed that

"throughout  the entire course of [his]  stay there [he] only

observed  one liquid gallon of  PCP."  But immediately before

that  statement, Knapik  made  clear that  he was  testifying

solely about a Reading location  used by the ring.  In  other

testimony, he testified that  he saw a gallon of  PCP at what

was apparently a Cambridge  location also used by the  ring. 

We  note  also  that none  of  the  parties  objected at  the

sentencing  hearing when  the  district court  said that  two

gallons were proved.

     Even  if  Knapik   observed  only   one  liquid   gallon

altogether,  it  appears  that  this  would  not  affect  the

outcome.  He also testified to the  presence of at least five

pounds of  treated  mint  leaves,  which--together  with  one

liquid  gallon--would  more  than exceed  the  three kilogram

minimum.    Further,  while  these  were  the  most  specific

figures,   there  was   considerable  testimony   from  other

witnesses  at trial  about  the  scope  and duration  of  the

conspiracy that made the  three kilogram figure plausible, if

not  modest, as  an  estimate of  the  conspiracy's scale  of

operations.

                             -5-                                         -5-

     Luce and Phelan argue  that they were essentially street

dealers  and not responsible for the large amount of PCP that

the organization  sold.   Under the Sentencing  Guidelines, a

conspirator  is responsible  for "all  reasonably foreseeable

acts and  omissions of others  in furtherance of  the jointly

undertaken  criminal  activity,   that  occurred  during  the

commission of  the offense of conviction,  in preparation for

that  offense,  or  in  the  course  of attempting  to  avoid

detection or  responsibility for  that offense."   U.S.S.G.  

1B1.3(a)(1)(B).  This guideline language was added  effective

November 1, 1992, after the appellants were sentenced, but so

far as pertinent it is merely a clarification of more oblique

earlier  language   in  force  when  Luce   and  Phelan  were

sentenced.   See United  States v. Valencia-Lucena,  988 F.2d                                                              

228, 234 n.5 (1st Cir. 1993).

     The    organization's    activities   were    reasonably

foreseeable to  both  Luce and  Phelan.   Although  the  ring

handled a large volume  of PCP, the  number of people in  the

ring  was  comparatively small,  and the  small size  of this

group suggests that each of its members knew generally of the

organization's   scope  and   the  amount   of  PCP   it  was

distributing.  Moreover, Knapik saw Phelan deliver liquid PCP

and  treated mint  leaves to  the Reading  apartment "two  to

three times,"  and testified  that Phelan delivered  PCP from

New  York to  Massachusetts.   Knapik observed  Phelan making

                             -6-                                         -6-

anywhere from 200 to  1,000 sales for the organization.   The

district court was  entitled to believe that Phelan  had more

sales than those seen by Knapik.

     For his part,  Luce was an  important street dealer  who

worked several shifts for  the Lillis organization and played

a role in preparing  the PCP for market.   Theresa Marrapodi,

Luce's former girlfriend, gave  grand jury testimony that she

saw Luce assist Lillis  in treating the mint leaves.   Knapik

testified that Luce worked a regular evening shift as well as

Saturdays,  and  a number  of  customers  testified to  their

dealing with  him.  While  these purchases  do not add  up to

three kilograms, they indicate that  Luce worked at the heart

of the Lillis organization.

     Luce  challenges the  court's use  of Marrapodi's  grand

jury testimony in sentencing, since she was not presented for

cross-examination.    But reliable  hearsay  can  be used  at

sentencing.  United States v. Zuleta-Alvarez, 922 F.2d 33, 36                                                        

(1st  Cir.  1990), cert.  denied, 500  U.S.  927 (1991).   In                                            

particular, it is settled that district  judges may use grand

jury  testimony   provided  it  has  sufficient   indicia  of

reliability.   See United  States v.  Williams, 10  F.3d 910,                                                          

914-15  (1st Cir.  1993).   The  factors  that we  listed  in

Williams--testimony given  under oath  and in a  formal grand                    

jury proceeding--apply with equal force here.

                             -7-                                         -7-

     Luce also contends that the trial judge acted unlawfully

in sentencing him as a "career offender" pursuant to U.S.S.G.

  4B1.1.   He points to  21 U.S.C.   851(a)(1),  which states

that "[n]o person  who stands convicted  of an offense  under

this  part  shall be  sentenced  to  increased punishment  by

reason  of  one  or  more prior  convictions,  unless  before

trial . . . the United States  attorney files an  information

with   the  court . . . stating   in  writing   the  previous

conviction to  be relied  upon."   Since  no information  was

filed, and since he received a greater sentence due to career

offender  status,  Luce reasons  that  his  sentence must  be

vacated.

     Section 851(a)(1)  does not apply to  sentence increases

under the Sentencing Guidelines but  only to increases in the

statutory  maximum  or  minimum  penalty  based  on  a  prior                     

conviction.  United States v. Sanchez, 917 F.2d 607, 616 (1st                                                 

Cir. 1990), cert. denied, 499 U.S. 977 (1991).  Every circuit                                    

to  consider the issue agrees.   See, e.g.,  United States v.                                                                      

Koller,  956  F.2d 1408  (7th  Cir. 1992);  United  States v.                                                                      

Whitaker,  938 F.2d 1551 (2d Cir. 1991), cert. denied, 112 S.                                                                 

Ct. 977  (1992).   Here, Luce's  indictment charged  him with

conspiracy  to possess more than one kilogram of PCP with the

intent  to  distribute  it,  a felony  that  carries  with  a

statutory  minimum  of  ten  years  and  a  maximum  of  life

                             -8-                                         -8-

imprisonment,  21  U.S.C.    841(b)(1)(A)(iv),  and  he   was

sentenced within that range.

     Finally, the district  court did not err  by refusing to

sever Luce's trial from that of Phelan and Lillis.  We review

the trial judge's refusal to sever "only for a manifest abuse

of discretion resulting in a miscarriage of justice."  United                                                                         

States  v. Welch, 15 F.3d  1202, 1210 (1st  Cir. 1993), cert.                                                                         

denied, 114 S. Ct. 1661 (1994).  Luce   has   made  no   such                  

showing of unfair prejudice  and, because a single conspiracy

was  plausibly  charged,  the  testimony  against  Lillis and

Phelan would generally have been admissible against Luce even

if  his trial  had  been  severed.    See  United  States  v.                                                                     

Innamorati, 996  F.2d 456, 469 (1st Cir.),  cert. denied, 114                                                                    

S. Ct. 409, 114 S. Ct. 459 (1993).

     Affirmed.                         

                             -9-                                         -9-
