
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2031                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                GERARDO DELGADO MUNOZ,                                Defendant, Appellant.                                _____________________        No. 92-2032                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                SAUL ANDINO FIGUEROA,                                     a/k/a BRUNO,                                Defendant, Appellant.                                 ____________________        No. 92-2033                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JUAN MARTINEZ,                                Defendant, Appellant.                                 ____________________        No. 92-2034                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  LEANDRO QUINONES,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Owen S. Walker for appellant Gerardo Delgado Munoz.            ______________            John C. Doherty, by Appointment of  the Court, for appellant  Saul            _______________        Andino Figueroa.            Raymond E. Gillespie, by Appointment  of the Court,  for appellant            ____________________        Leandro Quinones.            Nicholas B. Soutter, by Appointment of  the Court, with whom  Paul            ___________________                                           ____        S. McGovern was on brief for appellant Juan Martinez.        ___________            Dina  Michael  Chaitowitz,  Assistant   United  States   Attorney,            _________________________        Organized  Crime Drug  Enforcement  Task Force,  with  whom Donald  K.                                                                    __________        Stern, United States Attorney, was on brief for the United States.        _____                                 ____________________                                   October 13, 1994                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.        *Of the District of Rhode Island, sitting by designation.                 BOUDIN,  Circuit Judge.    Appellants  Gerardo  Delgado-                          _____________            Munoz, Leandro  Quinones,  Juan Martinez,  and  Saul  Andino-            Figueroa were  indicted on June  21, 1991, for  conspiracy to            distribute cocaine base,  commonly known as  "crack" cocaine,            in violation of  21 U.S.C.    841(a)(1) and 846.  Delgado was            alleged to  have been the  ringleader of the  operation, with            Quinones  serving  as his  chief  lieutenant  and Andino  and            Martinez  filling  various  subordinate  roles   as  lookout,            courier, driver and guard.                 The indictment  alleged that members  of the  conspiracy            had  sold cocaine base to an undercover operative of the Drug            Enforcement Administration,  Pamela Mersky, on  six different            occasions in April and May 1991.  The transactions, which all            took place in  Boston and  its suburbs, involved  a total  of            896.2 grams of cocaine base, 506 grams of which changed hands            in the  final transaction  on May 30,  1991.  In  addition to            conspiracy,  each  defendant was  charged  with  one or  more            substantive counts  of cocaine distribution  corresponding to            the transactions in which he participated.1                 Appellants and  two other co-defendants were  tried to a            jury  in April  1992.   The  government's evidence  consisted                                            ____________________                 1Specifically,  Delgado and  Quinones were  charged with            six   substantive   distribution   counts  arising   out   of            transactions on April 9, 19, 23, May 6, 16, and May 30, 1991.            Andino was charged with four substantive  distribution counts            pertaining  to  the  April   23,  May  6,  16,  and   May  30            transactions.   Martinez  was  charged with  one distribution            count for the May 30 transaction.                                         -3-                                         -3-            primarily of Special  Agent Mersky's testimony, supported  by            tape-recordings of her conversations with the  defendants and            testimony   of   surveillance   agents  who   monitored   the            transactions.   The jury convicted appellants  on all counts.            One co-defendant,  Paulita Cadiz,  was also convicted  on all            counts but has not  appealed; the remaining defendant, Lazaro            Delgado,  was  acquitted.    On  June  29,  1992,  the  court            sentenced Andino to 151 months' imprisonment, Martinez to 240            months' imprisonment, and sentenced Delgado and Quinones each            to 360 months' imprisonment.                 These appeals followed.   Each appellant  except Delgado            challenges his conviction, and all challenge their sentences.            We   first   consider  appellants'   challenges   to  various            evidentiary rulings and instructions at  trial, as well as to            the   sufficiency   of  the   evidence  on   various  counts.            Thereafter, the sentencing issues are addressed.                                 I.  THE CONVICTIONS                 A.  Andino                 We  begin  with the  conviction of  Andino, who  is also            referred to in the indictment as "Bruno."  Andino was alleged            to have assisted Delgado and the others on at least four drug            transactions by watching over the  drugs, conducting counter-            surveillance,  and sometimes by  making the  actual delivery.            He  argues first that the trial  court erroneously admitted a            spontaneous confession made upon his arrest in Puerto Rico.                                         -4-                                         -4-                 Andino was not present at the  May 30, 1991, transaction            between his  co-defendants and Mersky, after  which the other            defendants were arrested.  Instead, Andino was apprehended on            November 26,  1991, when  United States Marshals  executed an            arrest warrant  for Andino  in Catalina,  Puerto Rico.   Upon            arriving  at Andino's home, the marshals were met at the door            by   appellant's  brother,  Cuco  Andino-Figueroa,  whom  the            marshals initially mistook for  appellant.  When the marshals            told  the brother  that they  had a  warrant from  Boston for            narcotics offenses,  appellant entered the  room and shouted,            "I'm the one you are looking for.   I'm the guilty one.  He's            never been to Boston.  I'm the one that's been to Boston."                   Prior  to  trial, Andino  filed  a motion  in  limine to                                                            __________            preclude testimony  as to his  spontaneous confession.   At a            hearing, Andino argued that the confession should be excluded            because it would guarantee conviction.  Construing this as an            argument under Fed. R. Evid.  403, the district court  denied            the motion  on the ground  that the confession  was "strongly            probative of  [Andino's] knowledge  and his intent,"  and was            "not  unfairly  prejudicial."   Andino  now  argues that  the            district court failed to  adequately consider the prejudicial            impact of the confession in striking the Rule 403 balance.                 The  district  court's  wide  latitude  in admitting  or            excluding  evidence  under  Rule  403  is  well  established.            Daigle v. Maine Medical  Center, Inc., 14 F.3d 684,  690 (1st            ______    ___________________________                                         -5-                                         -5-            Cir.  1994).   The district  court found--and  we agree--that            Andino's  outburst  "shows  knowledge  on  the  part  of  the            defendant . .  . that a particular  crime involving narcotics            was the subject of the arrest, and it took place  in Boston."            The admission  has special  importance since at  trial Andino            argued that the government  had arrested the wrong man.   The            damage done to the defense is not a basis for exclusion;  the            question under Rule 403 is "one of `unfair' prejudice--not of            prejudice alone."   United States v. Moreno Morales, 815 F.2d                                _____________    ______________            725, 740 (1st Cir. 1987).                 We turn next  to a hearsay issue.  At  trial, Mersky was            allowed, over Andino's objection,  to testify that a landlord            had  given federal  drug agents a  rent receipt  showing that            Andino  rented a  room at  6 Michigan  Avenue in  Dorchester,            Massachusetts.   That address was shown at trial to have been            a center of  the conspiracy.  Andino argued both at trial and            on appeal that he was prejudiced by any reference to the rent            receipt--which, he contends, was "blatant hearsay" and should            not have been admitted.                 Although the government might  have argued that the rent            receipt itself was not  hearsay, cf. Fed. R. Evid.  801(a) (a                                             ___            "statement"  is  an  oral  or  written  "assertion"),  it  is            apparently willing to  treat the testimony in  question as if            it were a report of what  the landlord said orally to the DEA            agents.  But  the government insists  that the testimony  was                                         -6-                                         -6-            not  elicited  or used  for purposes  of proving  that Andino            actually  lived at 6 Michigan  Avenue.  Rather,  it says that            the  testimony was brought out on redirect merely in order to            explain that Mersky had some colorable reason--whether or not            correct--for attaching Andino's name  to the description  she            furnished to the marshals in Puerto Rico.                 This   redirect  was  important,  the  government  says,            because during  the drug deals, about  which Mersky testified            at  length, she had  known Andino only as  "Bruno" and had no            knowledge of his real name.   On cross-examination of Mersky,            Andino's  defense  counsel  had  brought out  this  fact;  he            suggested in further questions  that Mersky's description  of            Bruno,  given to the marshals  in Puerto Rico,  did not match            Andino's appearance  in the  courtroom; and arguably  he left            the impression through his questions that there was something            suspicious in  the  unexplained appearance  of Andino's  real            name in the information given to the marshals.                 It is quite true  that an out-of-court statement is  not            hearsay if it  is used  only to show  that the statement  was            made  and that the  listener heard the words  uttered.  See 6                                                                    ___            Fed. R.  Evid. 801(c)  (hearsay is an  out-of-court statement            offered "to prove  the truth  of the matter  asserted").   We            have no  doubt that it  was on this theory  that the district            judge  overruled the  hearsay  objection, saying  that Mersky            "doesn't know whether it is true or not [that Andino lived at                                         -7-                                         -7-            6 Michigan Avenue].  She just knows how she found out.  It is            not offered for the truth  of the matter, just how  she found            out."   Whether or not  there is still  an underlying hearsay            problem is  an issue that could be  debated at length; and in            some  measure   it  might  depend  on   matters  not  clearly            developed:    exactly  what  the  landlord  said;  just  what            information  was relayed to Mersky  and then to the marshals;            and  precisely what  inference  the government  is aiming  to            refute.                 We see no reason to engage in these speculations because            the admission of this evidence was patently harmless.  Mersky            had  dealt  face  to  face with  "Bruno"  on  four  different            occasions.   Her ability to identify Andino as Bruno could be            easily  tested in  the courtroom  and was  in fact  tested on            cross-examination.   The jury  was also apprised  of Andino's            virtual confession at the time of his arrest ("I'm the guilty            one."),  and his  further  incriminating statement  after his            arrest (Andino told  his father that there was  no point in a            removal hearing since "[Mersky]  would come over and identify            me").  The alleged hearsay did not alter the outcome.                 Andino next claims that  there was insufficient evidence            to support  his conviction for the May  30, 1991, transaction            in which other defendants sought to sell 506 grams of cocaine            base  to Mersky.    The parties  agree  that Andino  was  not            present at this transaction.  At trial, the government argued                                         -8-                                         -8-            that Andino was liable under Pinkerton  v. United States, 328                                         _________     _____________            U.S.  640 (1946).  Pinkerton  permits a defendant  to be held                               _________            liable  for actions  committed  by a  co-conspirator if  that            crime is in  furtherance of the  conspiracy and is  committed            while the defendant  is a member of  the conspiracy.   Id. at                                                                   ___            328.  See United States v. O'Campo,  973 F.2d 1015, 1021 (1st                  ___ _____________    _______            Cir. 1992).                 In  this court, Andino  does not dispute  the theory but            argues that the evidence at trial was so thin that his motion            for judgment of  acquittal should  have been  granted.   This            requires Andino  to "bear  the heavy burden  of demonstrating            that no reasonable jury could  have found [him] guilty beyond            a reasonable  doubt."  United States v.  Innamorati, 996 F.2d                                   _____________     __________            456, 469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993).  We                                 ____________            review the  evidence  in  the  light most  favorable  to  the            government,  "drawing all plausible  inferences in  its favor            and resolving all credibility determinations in line with the            jury's verdict."  Id.                              ___                   Under Pinkerton,  the government was required to prove                         _________            that the May 30 transaction was carried out by members of the            conspiracy, in furtherance  of the conspiracy, and  at a time            when Andino was still a member of the conspiracy.  Andino has            not  claimed a  lack of  evidence to  support his  conspiracy            conviction.   Nor does he dispute that the May 30 transaction            was  in furtherance of the  conspiracy.  But  he does dispute                                         -9-                                         -9-            that he was still a member as of May 30, 1991, arguing in his            brief that  he  "disappeared entirely  from the  Government's            radar  screen" after  May 16,  1991.   In fact,  there is  no            evidence in  the record concerning his  activities after that            date until his arrest in Puerto Rico on November 26, 1991.                 A  "`mere  cessation of  activity  in  furtherance of  a            conspiracy does  not constitute withdrawal.'"   United States                                                            _____________            v. Nason, 9 F.3d  155, 162 (1st Cir. 1993), cert. denied, 114               _____                                    ____________            S. Ct.  1331 (1994) (quoting  United States v.  Juodakis, 834                                          _____________     ________            F.2d 1099, 1102 (1st Cir. 1987)).  To withdraw, a conspirator            must  take  some  affirmative  action "either  to  defeat  or            disavow the  purposes of the conspiracy."  Juodakis, 834 F.2d                                                       ________            at 1102.  Typically,  we have required "evidence either  of a            full  confession to  authorities  or a  communication by  the            accused  to his  co-conspirators  that he  has abandoned  the            enterprise  and its  goals."   Id.   Even if a  very extended                                           ___            lapse  of time might  be sufficient to  infer withdrawal, the            two-week interval in this case is not enough.                 B.  Martinez                 Appellant Martinez also challenges his conviction.  Both            Martinez  and  his  co-defendant,  Gerardo  Delgado,  pleaded            guilty  on October  30, 1985, in  Connecticut state  court to            possession  of cocaine  with intent  to distribute  it.   The            government  introduced these  convictions  at trial  over the            defendants'  objections  in   order  to  show,   inter  alia,                                                             ___________                                         -10-                                         -10-            "knowledge  and intent in a common scheme or plan."  Martinez            now asserts that "[a]dmission  of evidence of Martinez' prior            conviction impermissibly prejudiced his defense," but adds no            explanation  to this one-line allegation.  "[I]ssues adverted            to in a  perfunctory manner, unaccompanied by  some effort at            developed argumentation,  are deemed waived."   United States                                                            _____________            v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.               _______                             ____________            1082 (1990).                 Martinez also says that the evidence was insufficient to            support his  convictions for conspiracy,  and for  possession            with  intent to distribute on May 30, 1991.  The government's            evidence on both  counts arises from the  May 30 transaction.            Martinez was first spotted at about 6:50 p.m. that evening by            a state police officer  who saw Martinez walking up  and down            the  street   outside  SkipJack's  restaurant   in  Brookline            Village.   Mersky,  who  had been  told  by Delgado  to  wait            outside SkipJack's at 7:30 p.m.  in order to purchase  drugs,            testified  that Martinez  greeted her  there and  then walked            away.                 Shortly   thereafter,   Delgado   contacted  Mersky   by            signaling  her beeper.  When Mersky called Delgado from a pay            phone, Mersky was told to meet Paulita Cadiz, who (along with            Lazaro Delgado) accompanied her to a  blue-colored Oldsmobile            occupied  by Martinez and a female  juvenile.  Martinez, then            sitting in the driver's seat, pushed a large piece of luggage                                         -11-                                         -11-            located on the passenger-side floor toward Lazaro Delgado and            assisted him in opening it.  The bag contained numerous vials            of  cocaine base.    Mersky took  the  bag and  walked  away,            announcing that she was "going to get the money."                 As Mersky walked away, she signalled to two officers who            were waiting in an  unmarked car nearby.  The  officers, each            of  whom  were  wearing   raid  jackets  marked  with  police            insignia, got out  of their  car and turned  toward the  blue            Oldsmobile, displaying firearms and shouting "police."   Both            officers testified  that Martinez then  threw the  Oldsmobile            into reverse and backed up Brookline Avenue at a high rate of            speed.  After crashing  into another unmarked police cruiser,            Martinez put the car back in forward gear and sought to flee.            He was eventually stopped and arrested.                 The testimony was ample to convict Martinez on  both the            conspiracy and substantive distribution counts.  A reasonable            jury  could  have  inferred  that  Martinez  was   conducting            counter-surveillance  when  he  was  first  observed  outside            SkipJack's.    Martinez  was  the  only  adult  in  the  blue            Oldsmobile  along with  the  suitcase  containing the  drugs;            since he then pushed the drugs over to Lazaro Delgado to give            to Mersky, the jury could reasonably have found that Martinez            had  possessed the  drugs.2   His  intent  to distribute  can                                            ____________________                 2Martinez argues  that he  could not have  possessed the            drugs  because  he  did not  have  sole  access  to the  bag.            Exclusive access is not a prerequisite to possession; indeed,                                         -12-                                         -12-            likewise  be  inferred  from this  same  event  and from  his            participation  in the  overall transaction.   The  attempt to            flee further corroborates his guilt.                 The jury was also entitled to infer that Martinez agreed            to cooperate with his alleged co-conspirators in carrying out            the  transaction.  The many  steps of the  dance performed by            the  participants indicate careful planning and coordination,            and  Martinez's own multiple  roles--lookout, initial contact            with Mersky,  guardian of  the drugs--do  not  look like  the            unplanned actions of an unwitting victim who was merely along            for the ride.  In any  event, the evidence was sufficient for            a reasonable jury to convict  Martinez on both the conspiracy            and substantive distribution counts.                 C.  Quinones                 The  remaining  appellant is  Quinones.   The government            alleged at trial that Quinones was Delgado's partner in their            drug distribution  activities.  Quinones now  argues that the            district  court erred in instructing the jury on the issue of            liability for crimes committed  by co-conspirators under  the            Pinkerton doctrine.  As already explained, Pinkerton allows a            _________                                  _________            defendant  to be held criminally liable for the acts of a co-            conspirator carried out in furtherance of the conspiracy at a            time when the defendant  is a member of the  conspiracy, even                                            ____________________            "joint possession"  is one of the  possibilities mentioned in            the  standard charge.  See, e.g., United States v. Maldonado,                                   ___  ____  _____________    _________            23 F.3d 4, 6-7 (1st Cir. 1994).                                         -13-                                         -13-            though  the defendant  himself did  not participate  in those            acts.  See 328 U.S. at 645-48.                   ___                 Quinones  argues that  the  district court  should  have            emphasized  the jury's  obligation  to find  each element  of            Pinkerton beyond  a reasonable doubt.   Although the district            _________            court gave a separate reasonable doubt instruction applicable            to  the  entire  case,  Quinones  cites  us  to  the  Seventh            Circuit's  decision in  United States  v. McKenzie,  922 F.2d                                    _____________     ________            1323, 1330 (7th Cir.),  cert. denied, 112 S. Ct.  163 (1991),                                    ____________            which suggested that a complete Pinkerton instruction  should                                            _________            inter alia  "`advise jurors  that the government  [bears] the            __________            burden  of proving  .  .  .  all  elements  of  the  powerful            Pinkerton doctrine . . . beyond a reasonable doubt'" (quoting            _________            United  States v.  Elizondo, 920  F.2d 1308,  1317 (7th  Cir.            ______________     ________            1990)).                 This  court "evaluate[s]  [a] challenged  instruction in            the context of the  overall charge."  E.g., United  States v.                                                  ____  ______________            Vavlitis,  9 F.3d 206, 212  (1st Cir. 1993).   Similarly, the            ________            Supreme  Court in   Cupp  v. Naughten,  414 U.S.  141, 146-47                                ____     ________            (1973), referred to "the  well-established proposition that a            single  instruction to a jury may not be judged in artificial            isolation, but must be  viewed in the context of  the overall            charge."    Here, the  district  court  began its  charge  by            stating  that the  government was  obligated to  "prove every            element  of every  offense  beyond a  reasonable doubt,"  and                                         -14-                                         -14-            referred  to that burden of  proof over a  dozen times during            the course of its instructions.                 Pinkerton may  be a powerful  doctrine, but there  is no                 _________            reason  to think that the jury is especially likely to forget            the general instruction on reasonable  doubt when it comes to            applying  Pinkerton.  We have no  intention of constructing a                      _________            special requirement that reasonable doubt be mentioned again,            after an adequate general  statement, in relation to selected            elements  in an offense or  theory of liability.   Indeed, in            United States v. Mount, 896 F.2d 612, 623-24 (1st Cir. 1990),            _____________    _____            cert. denied, 114 S. Ct. 415 (1993), we rejected just such an            ____________            argument pertaining  to the  district court's instruction  on            interstate transportation of stolen property.                                  II.  THE SENTENCES                 Appellants  also  challenge  numerous aspects  of  their            sentences under  the  federal sentencing  guidelines, and  we            consider  each  appellant's  claims  in  turn--starting  with            Delgado,  the  alleged ringleader  of  the drug  distribution            conspiracy.                 A.  Delgado                 At Delgado's sentencing, the district court began with a            base offense  level of  36 in  light of  the amount  of drugs            involved, added one level because drug  distribution activity            took place in proximity  to a school, U.S.S.G.    2D1.2, then            added four levels  for Delgado's leadership role.  U.S.S.G.                                           -15-                                         -15-            3B1.1(a).  The court denied Delgado a two-level reduction for            acceptance  of  responsibility,  see  U.S.S.G.    3E1.1,  and                                             ___            placed  him in criminal history  category II based  on a 1985            Connecticut  conviction for possession of cocaine with intent            to  distribute.   The  court then  sentenced  Delgado to  360            months, the bottom of the resulting guideline range.                 On appeal,  Delgado first contests the  district court's            denial  of  a  reduction  for acceptance  of  responsibility.            Shortly after  his arrest, Delgado made a statement to police            officers in which, he asserts, he accepted responsibility for            his crime.   In that statement, according to  police reports,            Delgado acknowledged that  he had called someone  who had the            cocaine  in order  to set  up the  transaction, and  had then            called Special  Agent Mersky to  arrange a meeting.   Despite            this admission,  Delgado subsequently pled not  guilty to the            indictment and went to trial.                 Delgado now  contends that the district  court failed to            consider his post-arrest statement  and refused to reduce his            offense level  under section  3E1.1 solely as  punishment for            invoking his constitutional  right to a trial.   The district            court addressed the statement  made by Delgado, but concluded            in  substance  that   it  was  not   a  full  acceptance   of            responsibility.   Indeed, while  the statement  admitted that            Delgado played  some role in  the offense, it  downplayed his            own role and  asserted that some  unnamed individual was  the                                         -16-                                         -16-            true source of the  drugs.  The court's decision  is reviewed            only  for  clear error,  and  no  such  error occurred  here.            United  States v.  Donovan,  996 F.2d  1343,  1346 (1st  Cir.            ______________     _______            1993); U.S.S.G.   3E1.1, application note 5.                  At sentencing,  the district  court said that  Delgado's            failure to plead guilty was an important factor in the denial            of credit.   This  is consistent  with the guidelines,  which            provide  that  "[c]onviction  by  trial   .  .  .  does   not            automatically  preclude a  defendant  from consideration  for            such  a  reduction" but  ordinarily  the  adjustment "is  not            intended to apply to  a defendant who puts the  government to            its burden of proof at trial by denying the essential factual            elements of  guilt, is convicted, and only  then admits guilt            and expresses  remorse."  U.S.S.G.    3E1.1, application note            2.3                 Obviously, the guideline, consistent  with pre-guideline            practice, means that a defendant who declines to plead guilty            reduces the chance of  a lightened sentence.  But  "not every            burden on the  exercise of  a constitutional  right, and  not                                            ____________________                 3There  are  exceptions;  the   guidelines  specifically            mention one  who "litigates  to preserve  issues that  do not            relate to factual  guilt . .  . ."   Id.   Delgado argues  on                                                 ___            appeal  that  he  failed  to  plead  guilty  to  avoid  being            immunized and  forced to testify against  his brother, Lazaro            Delgado, on  behalf of  the government.   Since  neither this            argument  nor  any  evidence  in  support  of  it  were  ever            presented  to the  district  court, we  do  not consider  the            claim.   United States v.  Dietz, 950 F.2d  50, 55 (1st  Cir.                     _____________     _____            1991).                                         -17-                                         -17-            every pressure or  encouragement to  waive such  a right,  is            invalid."   Corbitt v. New  Jersey, 439 U.S.  212, 218 (1978)                        _______    ___________            (possibility of a lesser sentence through a plea bargain does            not unconstitutionally burden the right to stand trial).  The            guidelines "merely codify a tradition of leniency [for guilty            pleas] and are not an impermissible burden on the exercise of            constitutional  rights."   United States  v. Uribe,  891 F.2d                                       _____________     _____            396, 400 (1st Cir. 1989), cert. denied, 495 U.S. 951 (1990).                                      ____________                 Delgado   also   objects   to   the   district   court's            consideration,  in calculating his criminal history category,            of a prior  Connecticut conviction for  unlawfully possessing            cocaine with intent to distribute.  At his sentencing hearing            in the  present case,  Delgado sought to  attack collaterally            the prior state conviction, asserting that his guilty plea in            that case was constitutionally  invalid.  The district court,            relying upon our decision in United States v. Paleo, 967 F.2d                                         _____________    _____            7  (1st Cir.  1992),  considered Delgado's  arguments on  the            merits  but   determined  that   the   guilty  plea   "passed            constitutional muster."                 After  Delgado's sentencing, Paleo  was greatly narrowed                                              _____            by  United States v. Isaacs,  14 F.3d 106,  108-110 (1st Cir.                _____________    ______            1994), which  held that the sentencing  guidelines provide no            independent   authority  for   collateral  review   of  prior            convictions  used  in   calculating  a  defendant's  criminal            history   category.     Although  Isaacs   preserved  certain                                              ______                                         -18-                                         -18-            exceptions  based  upon  the  Constitution  rather  than  the            guidelines, the Supreme Court  subsequently held in Custis v.                                                                ______            United States, 114 S. Ct.  1732 (1994), that the Constitution            _____________            requires  collateral review  of  a prior  conviction used  to            enhance  a   defendant's  federal  sentence  only  where  the            defendant alleges  a complete  denial of his  Sixth Amendment                                 ________            right to counsel in the prior proceeding.                 Although  Custis considered collateral  attack under the                           ______            Armed   Career  Criminal  Act   rather  than  the  sentencing            guidelines  themselves,  the constitutional  question  is the                                         ______________            same  in each  context.   Like Delgado  in the  present case,            Custis alleged that one of his prior convictions was procured            pursuant  to   a  guilty  plea  that  was   not  knowing  and            intelligent as  required by Boykin  v. Alabama, 395  U.S. 238                                        ______     _______            (1969).   The  Supreme Court  rejected this  argument, noting            that  "when  a guilty  plea is  at  issue, `the  concern with            finality served  by the  limitation on collateral  attack has            special force.'"  114  S. Ct. at 1738 (quoting  United States                                                            _____________            v. Timmreck, 441 U.S.  780, 784 (1979)).  Given Custis, we do               ________                                     ______            not  reach the merits  of Delgado's challenge  to his earlier            conviction.                 B.  Andino                 We  turn now  to the  sentencing claims  of Andino.  The            district court began with a base offense level of 36, finding            that Andino was  responsible for 745.1 grams of cocaine base.                                         -19-                                         -19-            U.S.S.G.   2D1.1(c).   The court then deducted two  levels on            the ground  that  Andino  was  a  minor  participant  in  the            conspiracy, U.S.S.G.    3B1.2(b).   Given a  criminal history            category of I, the guideline range was 151 to 188 months, and            the  district court imposed a sentence of 151 months.  Andino            now asserts that the court erred in several respects, firstly            by attributing to him 506 grams of cocaine base sold by other            defendants to Mersky on May 30, 1991, when Andino was neither            present nor involved in the transaction.                 Individuals convicted of membership in a drug conspiracy            are held responsible at sentencing not only for "drugs [they]            personally handled or anticipated handling," but also, "under            the relevant conduct rubric, for drugs involved in additional            acts  that were  reasonably  foreseeable by  [them] and  were            committed in  furtherance of the conspiracy."   United States                                                            _____________            v. Sepulveda,  15 F.3d  1161, 1197 (1st  Cir. 1993).   In the               _________            usual case, what is  foreseeable depends on the scope  of the            defendant's  agreement  with the  other  participants in  the            criminal enterprise.  United  States v. Garcia, 954  F.2d 12,                                  ______________    ______            16 (1st Cir.  1992).  Accordingly, the district  court's task            was  to   determine  whether  the  May   30  transaction  was            reasonably  foreseeable  based  upon  the scope  of  Andino's            agreement with his  co-conspirators.  Our review  is only for            clear error. United States v. De la Cruz, 996 F.2d 1307, 1314                         _____________    __________            (1st Cir.), cert. denied, 114 S. Ct. 356 (1993).                        ____________                                         -20-                                         -20-                 The record leaves little  question that the May  30 sale            was the "natural progression of the earlier series of sales,"            Garcia, 954 F.2d at 16, and thus within the scope of Andino's            ______            agreement with his  co-conspirators.  True,  the government's            evidence  did not mention Andino  after May 16,  but there is            also  no evidence  that  he affirmatively  withdrew from  the            conspiracy.  Nor is it conclusive that the May 30 transaction            was larger than earlier  transactions.  In fact, co-defendant            Quinones told Special Agent  Mersky that the conspirators had            other customers who bought in larger quantities than she did.                 Next, the district  court found that Andino was  a minor            participant  in the  conspiracy and  accordingly  reduced his            base offense  level by  two  levels, pursuant  to U.S.S.G.               3B1.2(b).  In so doing,  the court rejected Andino's argument            that he was entitled to an even larger reduction as a minimal            participant.   See U.S.S.G.    3B1.2(a).   Andino now  renews                           ___            this argument on appeal, stressing his unfamiliarity with the            English  language  and his  absence  at  the group's  largest            transaction on May 30, 1991.                 The  guidelines  note  that  the  "minimal  participant"            reduction should  be "used  infrequently," U.S.S.G.    3B1.2,            application  note  2, and  the  defendant has  the  burden of            showing his entitlement  to the reduction.   United States v.                                                         _____________            Figueroa,  976 F.2d 1446, 1461 (1st  Cir. 1992) cert. denied,            ________                                        ____________            113 S.  Ct. 1346  (1993).   Here, Andino  was involved  in at                                         -21-                                         -21-            least  four cocaine  transactions and  performed a  number of            different functions, including guarding the drugs, conducting            counter-surveillance, and delivering  cocaine base to Special            Agent Mersky.   Compare U.S.S.G.   3B1.2,  application note 2                            _______            (minimal  participant "played  no other  role .  . .  than to            offload part  of  a  single  marijuana shipment,"  or  was  a            courier in "a single smuggling transaction").  We sustain the            district  court's  finding  that  Andino's role  was  "minor"            rather than something less.                 Last,  the  guidelines distinguish  dramatically between            cocaine and cocaine  base (or "crack"), treating one  gram of            the  latter as  the equivalent  of 100  grams of  the former.            Andino argues that the  government's trial evidence failed to            distinguish   clearly  between  cocaine   base  and  ordinary            cocaine.  He also  claims that the jury's finding  of cocaine            base  rests upon "untrustworthy  evidence and faulty although            well intended instruction[s]" by the court.                 Whether the substance distributed was cocaine or cocaine            base  was a matter to be determined  by the district judge at            sentencing, not the  jury. United States v. Barnes,  890 F.2d                                       _____________    ______            545, 551 n.6  (1st Cir.  1989), cert. denied,  494 U.S.  1019                                            ____________            (1990).   Under 21 U.S.C.    841(a), the jury need  only find            that  the defendant distributed  a substance  containing some            mixture of  cocaine as defined  in schedule  II. Barnes,  890                                                             ______            F.2d at 551  n.6; see 21  U.S.C.    812,  841(a).  On  appeal                              ___                                         -22-                                         -22-            from the sentence, we  need only review the  district court's            sentencing  determination  that  the  substance  involved was            cocaine base. Barnes, 890 F.2d at 551 n.6.                          ______                 Andino's argument is directed  to the trial testimony of            DEA   chemist  Florence   Wong,  who   testified   about  the            differences  between  ordinary   cocaine  and  cocaine  base.            Although Wong did  misspeak at one  point in the  transcript,            her  overall testimony was  not confusing or  misleading:  it            was that ordinary cocaine (cocaine hydrochloride) and cocaine            base  are distinct  forms of  the drug,  and that  the latter            commonly goes by  the street  name of "crack";  that she  had            tested samples  from each  of the transactions  involving the            defendants;  and that  each  sample  contained cocaine  base.            Corroborated  by   recorded   statements  of   Andino's   co-            defendants, and  by field  tests conducted by  Mersky, Wong's            testimony  amply supports the  district court's  finding that            the defendants distributed cocaine base.                 C.  Martinez                 In sentencing Martinez, the  district court began with a            base offense level of  36 based on its finding  that Martinez            was accountable for  506 grams  of cocaine base.   The  court            granted  a  four-level  reduction  (because  Martinez  was  a            minimal  participant in the  conspiracy, U.S.S.G.   3B1.2(a))            and added two levels (because Martinez had obstructed justice            by  recklessly  endangering others  in  fleeing from  police,                                         -23-                                         -23-            U.S.S.G.   3C1.2).  Martinez's total offense level of 34, and            his  criminal history  category  of II,  yielded a  guideline            range of 168 to 210 months' imprisonment.  But because of his            prior Connecticut drug conviction,  Martinez was subject to a            mandatory  minimum  sentence  of  240  months,  21  U.S.C.               841(b)(1)(A); U.S.S.G.    5G1.1(b), which the  district judge            imposed.                 On appeal, Martinez makes three claims of error.  First,            although he  was present  at the  May  30, 1991  transaction,            Martinez complains on appeal that he  could not have foreseen            that there  would  be 506  grams  of cocaine  base  involved.            Martinez did not raise this  argument below.  Accordingly our            review  is  only for  plain error,  Fed.  R. Crim.  P. 52(b);            United  States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993),            ______________    ___________            a difficult  assertion here  since foreseeability is  a fact-            based inquiry.                 We  have  already  determined  that  the  evidence   was            sufficient  to establish  that Martinez  was a member  of the            conspiracy  who  joined in  its general  objectives.   It was            entirely  reasonable  to  infer  that Martinez  knew  that  a            substantial quantity of drugs were to  be sold on May 30.  As            we  held in  De  la Cruz,  "[a]  defendant who  conspires  to                         ___________            transport  for distribution  a large  quantity of  drugs, but            happens not to know the precise amount, pretty much takes his            chances  that  the amount  actually  involved  will be  quite                                         -24-                                         -24-            large."  996 F.2d at 1314.                  Second,   Martinez  claims  that   there  is  an  unfair            disparity between his sentence and those meted out to his co-            defendants.  We have held that at least in the ordinary case,            "[t]he  guidelines do  not  require the  sentencing court  to            consider related cases or  to justify a sentence in  terms of            the punishment meted out to co-defendants."  United States v.                                                         _____________            Font-Ramirez, 944 F.2d 42, 50 (1st Cir.  1991), cert. denied,            ____________                                    ____________            112  S. Ct. 954 (1992).   In this  case, moreover, Martinez's            sentence  was  wholly  determined  by  a  mandatory   minimum            prescribed by statute.  See 21 U.S.C.   841(b)(1)(A).                                    ___                 Martinez's  final  claim  is  a  vague  and  perfunctory            collection of  challenges to  the validity of  the sentencing            guidelines under  the  heading "Sentencing  is  Impermissibly            Draconian."   Martinez  does  not  explain in  what  way  the            sentencing  guidelines  are  inflexible  or  what  mitigating            circumstances they have failed  to reflect in this case.   In            any event, Martinez's sentence  was determined by a statutory            minimum sentence for  defendants in Martinez's  circumstances            and   any  alleged   inflexibility  in   the  guidelines   is            irrelevant.                 Martinez's   further  argument--that   the  Constitution            provides  a right  to  "punishment that  fits the  crime"--is            resolved by  Harmelin v. Michigan,  111 S.  Ct. 2680  (1991).                         ________    ________            That  decision upheld, against a proportionality challenge, a                                         -25-                                         -25-            state regime  imposing a  mandatory sentence of  life without            parole for  possessing more  than 650 grams  of cocaine.  See                                                                      ___            also United States  v. Lowden,  955 F.2d 128,  131 (1st  Cir.            ____ _____________     ______            1992) (upholding,  under Harmelin, a sentence  of seven years                                     ________            for  distribution  of  7.7  grams of  LSD).    Conspiracy  to            distribute  a large  quantity  of cocaine  base is  a serious            crime, the more so when committed by a prior offender.  Given            Harmelin,  we  cannot   say  that  Martinez's  sentence   was            ________            unconstitutionally excessive.                                         -26-                                         -26-                 D.  Quinones                 In sentencing Quinones, the  district court began with a            base offense  level of  36, based  on a  finding that  he was            accountable  for 896.2 grams of cocaine base.  The court then            added three levels on account of Quinones' managerial role in            the conspiracy.  U.S.S.G.   3B1.1(b).  The  resulting offense            level of  39, along with Quinones'  criminal history category            of IV,  yielded a guideline range of 360 months to life.  The            court  sentenced  Quinones  at  the  bottom  of  that  range.            Quinones now challenges the  district court's decisions as to            his role  in the offense and the amount of drugs for which he            should be held accountable.                 Section 3B1.1(b)  of the guidelines provides  that "[i]f            the  defendant  was  a  manager or  supervisor  (but  not  an            organizer or leader) and  the criminal activity involved five            or more  participants  or was  otherwise extensive,  increase            [the base offense  level] by  3 levels."   Quinones does  not            dispute that  the conspiracy in  this case involved  at least            five participants; he argues, however, that he did not play a            managerial role.  The government had the burden at sentencing            of  proving by a preponderance of the evidence that an upward            adjustment was  warranted.  United States v.  Ortiz, 966 F.2d                                        _____________     _____            707,  717  (1st Cir.  1992), cert.  denied,  113 S.  Ct. 1005                                         _____________            (1993).   Despite Quinones'  assertion that he  was merely "a            foot  soldier" like Martinez and  Andino, we think that there                                         -27-                                         -27-            was  sufficient  evidence  to  sustain the  district  court's            finding.   Special Agent  Mersky testified that  Delgado, the            acknowledged   ringleader   of  the   conspiracy,  introduced            Quinones  to her  as his "partner."   Moreover,  the district            court found that Quinones  had exercised supervisory  control            over  Andino at the abortive transaction on May 3.  Quinones'            action  in renegotiating the price  of the drugs  at the more            successful  May 6  transaction  also suggests  a position  of            authority.                 Quinones rightly  points out  that one can  imagine more            than  one explanation for all  of these events,  but we think            that the view taken by the district court is not implausible.            United  States v. Savoie, 985  F.2d 612, 616  (1st Cir. 1993)            ______________    ______            (sentencing court's choice between two plausible views of the            record cannot  be clearly erroneous).   Additionally, we have            said  that  "[m]anagerial  status  may  attach  if  there  is            evidence that a defendant, in committing the crime, exercised            control over, or was otherwise responsible for overseeing the            activities  of, at  least  one  other  person."    Id.    The                                                               ___            imposition  of the  sentence enhancement  here was  not clear            error.                 Like  Andino, Quinones  was not present  at the  May 30,            1991 transaction and thus claims that he should not have been            held  accountable for the 506 grams  of cocaine base involved            in  that  transaction.   As we  have  noted above,  there was                                         -28-                                         -28-            considerable  evidence  at  trial  that   Quinones  played  a            prominent  role in  the conspiracy,  making it  reasonable to            infer that Quinones was well-acquainted with the scope of the            group's activities  and plans.  Quinones does  not argue that            he  had  withdrawn  from  the conspiracy  prior  to  May  30.            Accordingly,  we uphold  the  district court's  determination            that Quinones was  accountable for the full amount of cocaine            base distributed over the life of the conspiracy.                 Appellants' convictions and sentences are affirmed.                                                           ________                                         -29-                                         -29-
