
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2317                                    UNITED STATES,                                      Appellee,                                          v.                                   YVES LEREBOURS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Cummings* and Cyr, Circuit Judges.                                             ______________                                _____________________               Bjorn  Lange, Assistant  Federal  Public  Defender,  Federal               ____________          Defender Office, for appellant.               Jean B.  Weld, Assistant  United States Attorney,  with whom               _____________          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for          _______________          appellee.                                 ____________________                                    June 25, 1996                                 ____________________                                        ____________________          *  Of the Seventh Circuit, sitting by designation.                    CUMMINGS, Circuit Judge.   Defendant Yves Lerebours was                    CUMMINGS, Circuit Judge.                              _____________          convicted  for various  drug-related offenses.   He  raises three          issues  in this  appeal:   whether  the  district court  properly          refused  to dismiss based upon a Commerce Clause challenge to the          criminal statute; whether the  district court properly refused to          enter  a judgment  of  acquittal for  insufficient evidence;  and          whether  the  defendant's  sentence  was  appropriate  under  the          Sentencing   Guidelines.     We  affirm   the  district   court's          conclusions.                    In 1994  and 1995 the police  department of Manchester,          New Hampshire, investigated  the sale of crack  cocaine and other          narcotics in that city.  During September 1994 the police focused          on drug activities at  309 Cedar Street in  Manchester.  In  that          month a police  department detective  knocked at the  door of  an          apartment on the third  floor of that address.   A woman directed          him to the  driveway at the  rear of 315  Cedar Street.  At  that          place he  spoke to a  Hispanic male whom  he later  identified as          defendant  and said "I want  three."  Defendant  then entered the          rear door and  several minutes later  handed three small  plastic          baggies to a juvenile  who asked the detective to  accompany him.          The detective purchased  three baggies from the boy for $60.  The          contents consisted of .39 grams of crack cocaine.                    On  September 19  the  same detective  returned to  309          Cedar  Street.  Defendant was  inside an apartment  there and the          detective again asked for "three."   The defendant instructed him          to  wait downstairs in the alley where the detective bought three                                         -2-          baggies  from defendant for $60.  The contents again consisted of          .39  grams of crack cocaine.   Defendant told  the detective that          the next time  he came for "crack," he should  go to the driveway          in back of  315 Cedar Street,  ask for Tony,  and say that  Oshee          sent him.  Defendant later testified that his nickname was Yoshi.          In  January 1995  the same  detective identified a  photograph of          defendant  as  the individual  selling him  crack cocaine  in the          prior  September.   He also  identified defendant  in court.   He          testified that he was trained to remember faces of suspects.                    In  March  1995  another  detective of  the  Manchester          police  department  was investigating  drug  sales  at 249  Cedar          Street in Manchester.   On March 7 this detective  purchased five          rocks of crack cocaine  for $100 from Henry Favreau at 290 Auburn          Street.   On the  following day  Favreau took  him to  290 Auburn          Street where the detective  was told "they were in  there cutting          it up," and the detective then made a second purchase.   On March          14 he made his third  purchase of five rocks from Favreau  at 290          Auburn Street.                    On March 15, after  obtaining a search warrant, several          police officers  executed a search at 290  Auburn Street.  One of          the  detectives sketched the apartment for  his police report and          identified the rooms searched as including a kitchen, a northwest          bedroom  and  a  northeast  bedroom.    A  brown  vinyl  box  was          discovered above  the ceiling tiles in the kitchen that contained          baggies, tissue, a cup,  a 13-inch-long Ginsu knife,  a six-inch-          long  test tube, and scissors.  The knife, scissors and test tube                                         -3-          contained  cocaine residue.    One of  the detectives  identified          defendant as being present at 290 Auburn Street when the officers          arrived to execute the search warrant.                    Still  another  detective,  accompanied  by  his  drug-          detection  dog, searched the northwest bedroom.  The dog began to          bite and  scratch on one of  the two mattresses.   On lifting the          mattress, the detective observed a number  of rocks consisting of          1.88 grams  of  crack  cocaine.    During  the  search  defendant          informed a police sergeant that  the northwest bedroom was shared          by him and his girlfriend.                    In  April  1995  defendant  was  indicted for  offenses          involving  cocaine and cocaine base.   The indictment  was in six          counts.   The first count charged a conspiracy to distribute such          drugs  in 1994 and 1995 in violation  of 21 U.S.C.   846.  Counts          two and  four charged their  distribution in September  1994, and          counts  three, five and six  charged possession of  such drugs in          September 1994 and March  1995.  Finally, counts two  through six          alleged  violations of 21 U.S.C.   841(a)(1) providing that it is          unlawful  "to manufacture,  distribute,  or dispense,  or possess          with intent to manufacture, distribute, or dispense, a controlled          substance."    Counts  three  and  five  were  dismissed  by  the          government.                    After  the  government  presented  its  case, defendant          sought  acquittal  on  all counts  pursuant  to  Federal  Rule of          Criminal Procedure 29.  He also asked that  the case be dismissed          based upon  United States v. L pez,  __ U.S. __, 115  S. Ct. 1624                      _____________    _____                                         -4-          (1995).   The district judge commented that he would be surprised          "if the federal drug  laws could ever be brought within the scope          of those  category of laws  that cannot withstand  scrutiny under          the commerce clause test."  Before denying dismissal, he added:                      Cocaine trafficking is a  huge interstate                      economic enterprise.  Congress could well                      decide  to  regulate  that enterprise  by                      prohibiting  the distribution  of cocaine                      or  the possession of cocaine with intent                      to  distribute.    The crime  necessarily                      implicates    interstate   and    foreign                      commerce   since    cocaine   cannot   be                      manufactured and sold  solely within  any                      one  state's  boundaries.    So  for that                      reason  I'm  going  to  deny  your  L pez                                                          _____                      motion.                    Elizabeth Rivera, defendant's  fianc e, and her  mother          Margarita then offered alibi  testimony, obviously disbelieved by          the jury, concerning events  on September 16, 1994, and  in March          1995.   Defendant again moved for acquittal  under Rule 29 of the          Federal  Rules  of Criminal  Procedure  and  for dismissal  under          United States v. L pez, but both motions  were denied.  After the          _____________    _____          three-day jury trial defendant was found guilty on counts one and          four and not guilty on counts two and six.                    Both  sides  filed  sentencing  memoranda.    Defendant          requested that he be  held accountable for only the  .39 grams of          cocaine base  that was the subject  of count four.   Since he was          acquitted under counts two and six, he argued that  he should not          be held accountable  for the drugs  distributed on September  16,          1994,  and March  15, 1995.   In  turn, the  government requested          accountability for a total drug quantity of 4.15 grams of cocaine          base.     Based  upon   that  amount,  the   revised  presentence                                         -5-          investigation report  computed a  base  offense level  of 24  for          defendant.                    The district judge  decided that the following  amounts          were attributable to defendant:  .37 grams on September 16, 1994;          .39 grams  on September  19, 1994;  and 1.88  grams on  March 15,          1995, or a total of 2.64  grams.  The judge explained his rulings          as follows:                      . . . just because the jury found him not                      guilty,  [sic]  that March  event doesn't                      mean that  I have  to find that  he [sic]                      hasn't established by a  preponderance of                      the  evidence that  that cocaine  is his.                      . . .                      I have no difficulty  in finding that the                      .37 [sic] grams on 9/16, the .39 grams on                      9/19   that  was   the  subject   of  the                      conviction, and the .188 [sic] grams that                      was the subject of the acquittal in March                      are all part of the same conspiracy; that                      the   defendant   did   engage   in   the                      transactions on  9/16 and 9/19,  and that                      the   crack   cocaine  found   under  the                      defendant's bed was  his cocaine and  was                      possessed  by  him  with  the  intent  to                      distribute as part of the same conspiracy                      that led to the conspiracy conviction and                      the conviction for the 9/19 sale.                      With respect to  the 9/16 transaction,  I                      found  the  officer's  testimony   to  be                      persuasive   and    convincing,   and   I                      personally  have no  doubt about  in fact                      that that was the defendant who made that                      sale.                      And with respect to the 1.88 grams  found                      on  March 15,  I  have  no difficulty  in                      finding   by   a  preponderance   of  the                      evidence    that    that    cocaine    is                      attributable to the defendant and that it                      is related to the count of conviction.  I                      just  find   completely  implausible  the                      speculation that someone  else, like  Mr.                                         -6-                      Luna, would  come in and put  the cocaine                      where it was found.                      So for  those reasons I am  going to find                      attributable to the  defendant .37  grams                      on  9/16,  .39  grams on  9/19,  and 1.88                      grams on 3/15.          Defendant  was sentenced  to  57 months'  imprisonment and  three          years of supervised release.               Denial of Motion to Dismiss Under United States v. L pez               Denial of Motion to Dismiss Under United States v. L pez                                                 _____________    _____                    As the  Seventh Circuit  explained in United  States v.                                                          ______________          Bell,  70  F.3d 495,  497 (7th  Cir.  1995), L pez  challenges to          ____                                         _____          various   statutes   have  almost   invariably  failed.1     More          importantly, three courts of  appeals have already rejected L pez                                                                      _____          constitutional attacks on the Comprehensive Drug Abuse Prevention          and Control Act of 1970, 21 U.S.C.   801 et seq.   Thus in United                                                   _______           ______          States v. Leshuk, 65 F.3d  1105 (4th Cir. 1995), the court  noted          ______    ______          that  L pez  reaffirmed  the  principle  that  "where  a  general                _____          regulatory  statute  [like  the  one here]  bears  a  substantial          relation  to commerce,  the  de minimis  character of  individual          instances  arising under that statute is of no consequence."  Id.                                                                        ___          at 1112.   In United States v. Brown, 72 F.3d 96 (8th Cir. 1995),                        _____________    _____          in upholding a  conviction for use  of a firearm  during a  drug-          trafficking  offense, the court relied on  Leshuk for rejecting a                                                     ______          L pez  Commerce  Clause  challenge  and noted  that  the  statute          _____                                        ____________________          1  See,  e.g., United States  v. Kirk, 70  F.3d 791, 794-95  (5th             ___   ____  _____________     ____          Cir. 1995), reh'g  en banc granted,  78 F.3d 160 (Mar.  5, 1996);                      ______________________          United  States v.  Bishop, 66  F.3d 569,  575-89 (3d  Cir. 1995),          ______________     ______          cert. denied, __ U.S. __, 116 S. Ct. 681 (1995).          ____________                                         -7-          involved here had been found constitutional.  Id. at 97.   Accord                                                        ___          ______          United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995).          _____________    ______                    Finally, defendant argues that  this case amounts to an          abridgment  of the  reservation of  police powers  to  the states          under  the Tenth  Amendment.   Such an  argument was  rejected in          United  States  v. Owens,  996 F.2d  59,  60-61 (5th  Cir. 1993),          ______________     _____          because courts will  not strike  down a statute  under the  Tenth          Amendment where Congress was within its powers under the Commerce          Clause  to enact the statute.   As we  have already acknowledged,          Congress had  authority under the Commerce  Clause to criminalize          the conduct under the statutes involved here.                             Sufficiency of the Evidence                             Sufficiency of the Evidence                    Defendant contends that  he should have  been acquitted          on counts one and four because of  insufficient evidence, stating          that the affidavit for  the search warrant for 290  Auburn Street          on  March 15,  1995,  did   not  mention  him  and   because  the          detective's identification  of defendant as the  person from whom          he   purchased  crack   cocaine  on   September  19,   1994,  was          uncorroborated.                    As to  count one, it  is immaterial that  the affidavit          for  the March  15, 1995  search  at 290  Auburn  Street did  not          mention defendant because detective Boles identified him as being          present when the officers arrived  to execute the search  warrant          and  defendant informed one of the police officers that he shared          the northwest bedroom in  that apartment where a number  of rocks          of crack cocaine were found.                                         -8-                    Count  four, covering  the distribution  of cocaine  on          September 19,  was supported by  a detective's testimony  that he          requested  three  rocks  of   cocaine  and  purchased  them  from          defendant on September 19, 1994, in the alley outside defendant's          apartment.   Likewise, count one  related to the  events of March          15, 1995.  There was adequate evidence to support the convictions          on counts  one and four.  Thus the district court properly denied          defendant's Rule 29 motions.                                      Sentencing                                      Sentencing                    It  is  immaterial that  defendant  was  assessed crack          quantities  underlying  counts two  and  six,  for which  he  was          acquitted, because they were included in conspiracy count one, on          which he was convicted.  We so ruled in United  States v. Ovalle-                                                  ______________    _______          M rquez,  36 F.3d 212, 222-24  (1st Cir. 1994),  cert. denied, __          _______                                          ____________          U.S. __, 115 S.  Ct. 1322 (1995), and United  States v. Mocciola,                                                ______________    ________          891 F.2d 13, 16-17 (1st Cir. 1989).                    Here defendant was convicted of  conspiracy with others          to distribute and possess  with the intent to distribute  a total          of 2.66  grams of crack cocaine, as alleged in count one.  As the          district judge  found, the  drugs involved  in the  September 16,          1994,  and March  15, 1995,  incidents were  parts of  the scheme          underlying  the conspiracy count.   The judge also  found all the          cocaine was part of the same conspiracy charged in count one,  so          that it was  proper for  him to aggregate  them to determine  the          base offense level.  Ovalle-M rquez, 36 F.3d at 222-224; U.S.S.G.                               ______________            1B1.3(a)(1)(B).                                         -9-                    For  the foregoing reasons, defendant's convictions and          sentence are affirmed.                       ________                                         -10-
