
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1883                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    LOUIS ANDRADE,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Nancy Gertner, U.S.District Judge]                                            __________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                 ____________________            Daniel J. Johnedis on brief for appellant.            __________________            Donald K. Stern, United States Attorney,  and Ralph F. Boyd,  Jr.,            _______________                               ___________________        Assistant United States Attorney, on brief for appellees.                                 ____________________                                   August 26, 1996                                 ____________________                      LYNCH, Circuit Judge.  Louis Andrade was  convicted                      LYNCH, Circuit Judge.                             _____________            of possessing cocaine base with intent  to distribute. He was            sentenced to  168 months in prison.  He appeals from both his            conviction and his sentence.                       Andrade's main argument is that the evidence seized            when the car in which he  was riding was stopped by  officers            from  the Boston  Anti-Gang  Violence Unit  should have  been            suppressed.  He says that the ostensible reason for the stop,            a traffic violation, was  only a pretext to search the car in            hope  of proving more serious charges.  For these charges, he            says,  there then  existed  no probable  cause or  reasonable            suspicion.  His argument is foreclosed by the Supreme Court's            decision in Whren v.  United States, 116 S. Ct.  1769 (1996),                        _____     _____________            decided  after  this case  was  initially briefed.    He also            argues that the 14.21 grams of cocaine base with which he was            caught  was so  small an  amount that  it is  unreasonable to            infer  that he  had the  needed intent  to distribute.   This            argument  is without merit.   As for  Andrade's challenges to            his  sentence,  his  argument  based on  the  distinction  in            severity  of  sentences  between  crack  cocaine  and  powder            cocaine  is foreclosed.  That distinction  does not  permit a            downward  departure in sentence.   There was no  error in the            enhancement of his sentence  for his attempt to shoot  one of            the arresting officers.                                         -3-                                          3                                          I                      We recite  the facts  as the jury  could reasonably            have found them.  Andrade was a passenger in a car which made            an  ill-considered and  illegal U-turn  in front  of oncoming            traffic on Columbia Road in Boston on February 20, 1994. This            maneuver was  observed at around  8:00 p.m by  Officers Byrne            and Linskey  of  the  Anti-Gang Violence  Unit.    Byrne  and            Linskey were patrolling the area in an unmarked car driven by            Officer  Freeman   of  the  same  unit.    The  Unit  gathers            intelligence on gangs, leading to arrests  of gang members in            the Roxbury, Mattapan,  and Dorchester areas of Boston.   The            Unit uses motor  vehicle violations as a  tool to investigate            gang activities.                      The officers followed the car, and saw three adults            in the  vehicle.   They also  saw that the  car had  a broken            taillight.    As the  car  slowed to  a  stop in  front  of a            building on Seaver Street, the officers turned  on their wig-            wag  light  and then  approached the  car  on foot.   Officer            Freeman  identified himself  and  asked  the  driver,  Sandra            Wright, for  her license, while Officer  Linskey detained the            front  seat  passenger,   Terrell  Andrade  (Louis  Andrade's            brother), who had  emerged from the  car. As Officer  Freeman            shone a flashlight into the car, he saw, in the center of the            front seat, a plastic  bag containing an off-white, rock-like            substance which looked  like crack cocaine.   He leaned  into                                         -4-                                          4            the car and picked up the bag and then signalled to the other            officers to handcuff Wright and Terrell Andrade.                        Officer Freeman  then went to open  the right rear            passenger  door, next  to  where Louis  Andrade was  sitting.            While Officer Freeman  spoke to Andrade, he  saw that Andrade            was  sitting stiffly  with  his left  hand  behind his  back.            Andrade ignored  Officer Freeman's  several commands  that he            take  his hand from behind  his back.   Drawing their service            pistols,  Officers Freeman  and  Byrne yelled  at Andrade  to            remove his hand  from behind  his back.   Andrade pulled  his            left  hand from  behind  his back  and  threw out,  onto  the            street, a  bag containing  a substance  which appeared  to be            crack  cocaine.    When  Officer Freeman  then  attempted  to            handcuff Andrade,  Andrade lurched backward into  the car and            tried to reach down to the floor.  As Officer  Freeman leaned            into  the  car  toward Andrade,  he  suddenly  saw  a gun  in            Andrade's hand.  He screamed "gun," pushed  himself away from            Andrade, saw a flash,  and heard a noise.   Believing Officer            Freeman had been  shot (he  was not), Officer  Byrne fired  a            single shot at Andrade, hitting him in the leg and ending the            confrontation.                      Officer Linskey then pulled  Andrade out of the car            and asked  him where the  gun was.   Andrade denied  having a            gun, but  Sandra Wright yelled  "check his ankles;  check his            ankles." The officers did so and  found the gun, not on Louis                                         -5-                                          5            Andrade's ankle,  but on the  floor of the car  near to where            Andrade had been sitting.  A spent cartridge was found jammed            in the  gun's chamber,  indicating that  the weapon  had been            fired, and, fortuitously, that  no additional rounds could be            fired.   An upset Sandra Wright continued to scream "the dude            in  the back shot at  a cop; the  dude in the back  shot at a            cop; I could have gotten shot."                      Accompanying  Louis  Andrade  on  the ride  to  the            hospital,  Linskey  observed  Andrade  attempting  to  remove            $260.00,  in  mostly ten  and twenty  dollar bills,  from his            pants pocket.  Linskey later found another plastic bag in the            same pocket.   That bag,  like the others,  contained cocaine            base  ("crack");  the two  bags  connected  to Louis  Andrade            totalled  some 14.21 grams in weight.  That amount of cocaine            is enough for 140 "jums" (doses) or "dime bags."                      In a  four  count indictment,  Andrade was  charged            with possession with intent  to distribute cocaine base, with            unlawful  possession by  a convicted  felon of a  firearm and            ammunition,  with   possession  of   a  firearm  bearing   an            obliterated serial  number, and  with using a  firearm during            and  in relation  to  a drug  trafficking  crime.   The  jury            convicted on  the drug  possession  count under  21 U.S.C.               841(a)(1)  and  deadlocked  on  the  firearms  counts.    The            district  court denied  subsequent  motions for  judgment  of            acquittal and for a new trial.   Andrade was sentenced to 168                                         -6-                                          6            months in prison  and four years  supervised release.   After            sentencing, the  court dismissed  the firearms counts  on the            government's motion.                                           II                      Andrade makes three attacks  on his conviction.  He            argues that the trial judge erroneously denied his  motion to            suppress  the  evidence   seized  during  the   "warrantless,            pretextual traffic stop of  the car in which defendant  was a            passenger."   He  also says  that the  evidence of  intent to            distribute   the  drugs   was   insufficient  to   support  a            conviction, and that  the thinness of that evidence  at least            entitles him to a new trial.  Although ably  briefed, none of            these arguments prevails.            A. The Suppression Motion            _________________________                      Andrade  filed  a motion  to suppress  the evidence            seized during the  car stop on the  theory that the  stop was            pretextual.   The district court held  an evidentiary hearing            and determined the stop  was not pretextual but was  made, as            the  officers said,  to investigate  why the  car had  made a            "sharp, harsh U-turn" into oncoming traffic.  The court later            modified  its  ruling to  note  that  there was  evidence  to            suggest  a second  motive for  the stop,  but that  under the            objective test of United States v. Miller, 589 F.2d 1117 (1st                              _____________    ______            Cir.  1978), cert.  denied,  440 U.S.  958 (1979),  any mixed                         _____  ______            motive was irrelevant.  Our review of the ultimate conclusion                                         -7-                                          7            as to whether the  Fourth Amendment was violated is  de novo.                                                                 __ ____            Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996).            _______    _____________                      In support of his claim that the motion to suppress            should have  been granted, Andrade relies on  a theory firmly            rejected  by the  Supreme  Court in  Whren.   In  Whren,  the                                                 _____        _____            Supreme Court  affirmed the denial  of a  motion to  suppress            drugs  seized when  the police  stopped a  car for  a traffic            violation.   The Court held that the temporary detention of a            motorist upon probable cause to believe the traffic laws have            been  violated does  not  transgress the  Fourth  Amendment's            prohibition on  unreasonable seizures,  even  if the  officer            would not  have stopped  the motorist absent  some additional            law  enforcement  objective.  Whren,  116  S.  Ct.  at  1774.                                          _____            Because  the Fourth  Amendment allows  certain actions  to be            taken in certain  circumstances, regardless  of motives,  the            Court rejected  any  inquiry into  the  officers'  subjective            intent or into what a "reasonable officer" would have done in            similar  circumstances.  Id.  at  1775.      The  Court  thus                                     ___            foreclosed any  argument that ulterior motives can invalidate            an otherwise justified traffic stop. Id. at 1774.                                                 ___                      Here, the illegal  U-turn plainly provided probable            cause to stop  the car  for violating the  traffic laws,  and            Andrade does not  argue otherwise.  Under  Whren, the inquiry                                                       _____                                         -8-                                          8            stops there, as does  Andrade's appeal on this point.1   Id.;                                                                     __            see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.            ___ ____ _____________    _________            1996) (officers on  undercover investigatory narcotics detail            may lawfully make traffic violation stop).            B. Evidence of Intent to Distribute            ___________________________________                      Andrade's  remaining attacks  are  premised on  his            contention  that the  evidence did  not show  that he  had an            intent to distribute the cocaine  base, even if the  evidence            were sufficient to show  that he did possess it  for personal            use.  He challenges  the district court's denial of  both his            Rule 29  motion for a judgment  of acquittal and his  Rule 33            motion for a new trial.                      1. Motion for Judgment of Acquittal                         ________________________________                      In  a sufficiency challenge,  we determine whether,            drawing   all   reasonable  inferences   in   favor   of  the            prosecution,  a  rational  jury  could find  guilt  beyond  a            reasonable doubt.  United States v. Luciano-Mosquera, 63 F.3d                               _____________    ________________                                            ____________________            1.  In his reply brief, Andrade argues that the potential for            discriminatory  treatment of members  of minority communities            requires courts  to invalidate pretextual traffic  stops.  He            suggests that circumstantial  evidence, particularly  Officer            Byrne's description of  the occupants of the car  as "black,"            indicates that racial animus was at work  here.  This line of            argument  was  rejected in  Whren,  where  the Supreme  Court                                        _____            pointed out  that "the constitutional basis  for objecting to            intentionally discriminatory application  of the laws  is the            Equal Protection Clause,  not the  Fourth Amendment."  Whren,                                                                   _____            116  S. Ct. at 1774.   In any event,  we need not pursue this            issue further; it was not raised in Andrade's principal brief            to this court and is therefore waived.  See United  States v.                                                    ___ ______________            Edgar, 82 F.3d 499, 510 (1st Cir.), petition for cert. filed,            _____                               ________________________            65 U.S.L.W. 3110 (U.S. July 16, 1996)(No. 96-5082).                                         -9-                                          9            1142,  1149(1st  Cir. 1995),  cert. denied,  116 S.  Ct. 1879                                          ____________            (1996).                      It would,  of course,  be unusual  for there  to be            direct  evidence of  a defendant's  intent to  distribute the            drugs in his  possession where the defendant  is not observed            dealing drugs but instead is merely found with the drugs.  As            a result, juries,  and courts, have to decide what inferences            may  be  reasonably drawn  from the  available circumstantial            evidence. See United States  v. Echeverri, 982 F.2d 675,  678                      ___ _____________     _________            (1st Cir. 1993).  That evidence may include information about            the  amounts and types of  the drugs possessed  and about the            accompanying accoutrements,  such as  the sums of  money also            found, whether there is drug weighing, cutting, and packaging            paraphernalia,  whether a weapon is used, and the like.  See,                                                                     ___            e.g.,  id.  at  678-79  (considering  layout  of  defendant's            ____   ___            apartment, amount  of cocaine  found, and  the presence of  a            scale and a ledger as corroborative of intent).                      To  support  his  insufficiency  argument,  Andrade            relies  upon United States v.  Valerio, 48 F.3d  58 (1st Cir.                         _____________     _______            1995).  There, this court vacated a conviction for possession            of  powder  cocaine with  intent  to  distribute because  the            evidence was  insufficient to  prove that the  defendant knew            about the large quantities of cocaine which were hidden in an            apartment in which  she was  a short-term guest.  Id. at  64.                                                              ___            The court found that the defendant could only have been found                                         -10-                                          10            to be  aware of 14.83  grams of cocaine hidden  in her baby's            shoe;  this was "not large  enough" a quantity  to support an            inference of distributive intent. Id.2                                              ___                      This  is a  different case and  we have  no trouble            affirming the jury verdict.  To start, this case involves not            cocaine  powder, but cocaine base  or "crack."   The cases on            which   Andrade  relies   involve  powder   cocaine  (cocaine            hydrochloride),  not  crack cocaine  (cocaine base)  which is            more  potent  and  is  sold  in  much  smaller  doses.    The            legislative  history  of  the  federal  drug  laws repeatedly            indicates that  crack's greater  potency is a  primary reason            that offenses involving crack  receive higher penalties  than            do those  involving similar amounts of powder  cocaine.  See,                                                                     ___            e.g., United  States v.  Buckner, 894  F.2d 975,  978-80 (8th            ____  ______________     _______            Cir. 1990)(compiling statements  of members  of Congress  and            hearing testimony of  drug abuse experts).  For example, when                                            ____________________            2.  Andrade  also draws  our  attention to  United States  v.                                                        _____________            Martinez, 44 F.3d 148 (2d Cir. 1995), in which a panel of the            ________            Second  Circuit (over Judge Walker's dissent) initially found            the evidence  of intent to distribute  insufficient where the            defendant  possessed 3.5 grams of powder  cocaine, as well as            one-half ounce  of "cut," a one gram scale, and a gun. Id. at                                                                   ___            151.   However, the panel later  reconsidered its disposition            of  the  case and  decided  to  affirm Martinez's  conviction            because "any amount of drugs,  however small, will support  a            conviction  when there  is additional  evidence of  intent to            distribute."  See Martinez  v. United  States, 54  F.3d 1040,                          ___ ________     ______________            1043  (2d Cir.),  cert. denied,  116 S.  Ct. 545  (1995). The                              ____________            "cut,"  the scale,  and particularly  the firearm,  which "by            itself  provided strong  evidence of  intent to  distribute,"            supported  the inference  that the  defendant was  engaged in            drug trafficking. Id.                                ___                                         -11-                                          11            Congress    disapproved   proposed    Sentencing   Guidelines            amendments  that  would  have  equalized  the  penalties  for            offenses involving crack and powder cocaine, the House Report            noted the "unique  nature of the  crack cocaine trade,  which            often  entails trafficking  in much  smaller  quantities than            with  powder cocaine."  H.R.  Rep. No. 272,  104th Cong., 1st            Sess. 3  (1995).   Thus,  whether  or not  14.21  grams is  a                                          "small" amount of powder cocaine, it is not a small amount of            crack cocaine.                        Nor was  unadorned evidence of amount  all that the            jury had to  go on.   The government's  expert witness,  Sgt.            Kevin Buckley, who had  been involved in more than  1000 drug            investigations, testified  that the  amount of  crack cocaine            Andrade possessed  could make  more than  140 "jums,"  with a            street value of at least $1400; that he had never seen a mere            user with more  than 8-10 "jums" at  a time; that  mere users            typically use all of  their cash to feed their habit;  that a            mere user usually smokes all of the crack he can obtain right            away;  and that, in Boston, crack is  usually sold in $10 and            $20 bags.  Also, Andrade had no implements  with him to smoke            the crack.   This was  enough, even without  consideration of            the presence of  the firearm.   The jury  had ample  evidence            from which  to draw  the inference  of intent  to distribute.            Cf.  United States v. Bergodere,  40 F.3d 512,  518 (1st Cir.            ___  _____________    _________            1994)(affirming  intent finding  where total value  of heroin                                         -12-                                          12            seized was $1500  and gun and  drug packaging materials  were            found), cert. denied, 115 S. Ct. 1439 (1995).  The inferences                    ____________            drawn by the  jury were  thus proper and  reasonable, and  we            affirm  the  district court's  denial  of  Andrade's Rule  29            motion.                      2. Motion for a New Trial                      _________________________                      Andrade  asks that,  even if  we find  the evidence            sufficient  to sustain the jury  verdict, we grant  him a new            trial in the interest of justice. See Fed. R. Crim. P. 33.3                                                ___            However,  "the decision  to  grant or  deny  a new  trial  is            committed  to the  sound discretion  of the  district court."            United States v. Soto-Alvarez, 958  F.2d 473, 479 (1st Cir.),            _____________    ____________            cert. denied,  506 U.S. 877 (1992).  Thus, we will affirm the            ____________            district  court's denial of a new trial unless there has been            a  "manifest abuse of discretion."   United States v. Tibolt,                                                 _____________    ______            72 F.3d 965,  972 (1st Cir. 1995),  cert. denied, 116  S. Ct.                                                ____________            2554 (1996); see also 3 Charles A. Wright, Federal Practice &                         ________                      __________________            Procedure: Criminal     559  (2d  ed.  1982)(appellate  court            ___________________                                            ____________________            3.  The  government argues  that Andrade's  motion for  a new            trial   was  untimely,   and  that   the  court   thus  lacks            jurisdiction to consider  it.  However, on December 22, 1994,            just two  days after the guilty  verdict, defendant's counsel            filed a motion  for leave to file a Rule 33 motion at a later            date;  the district  judge  allowed  that  motion.   Rule  33            expressly permits  the court  to extend  the  time limit  for            filing a motion. Motions  shall be made "within 7  days after            verdict or finding of  guilty or within such further  time as                                             ____________________________            the court may fix during the 7-day period." Fed. R.  Crim. P.            _________________            33 (emphasis  added).   Andrade's  Rule  33 motion  was  thus            timely, and we reach the merits of this claim.                                         -13-                                          13            "properly  defers" to trial court on motion for a new trial).                      The remedy of  a new  trial is rarely  used; it  is            warranted  "only  where  there  would  be  a  miscarriage  of            justice" or "where the evidence preponderates heavily against            the verdict."  United States v. Indelicato, 611 F.2d 376, 386                           _____________    __________            (1st Cir.  1979)(internal quotations omitted).   Andrade does            not present any new  evidence or point to any grave errors by            the  trial judge,  but merely  reiterates his claim  that the            evidence of intent was thin.  As we find that the evidence in            the record fully supported the jury's verdict, neither of the            necessary     conditions  for  a  new   trial  is  satisfied.            Accordingly, the district court  did not abuse its discretion            when it denied Andrade's Rule 33 motion.                                              III                      Andrade's   appeals  from  his  sentence  are  also            without merit.  Andrade's first  claim is that because  there            is a disparity between  the punishments for crack and  powder            cocaine, the trial judge  erred in not departing  downward to            the comparable  base offense  level for powder  cocaine.   He            argues that  the recent report of  the Sentencing Commission,            which   recommended   a  modification   of   this  disparity,            demonstrates that there are factors not adequately considered            by the current  Guidelines. See  U.S.S.G   5K2.0,  p.s.   The                                        ___            district  court agreed  with Andrade  that the  disparity was                                         -14-                                          14            "unfair" and  that, in  the right circumstances,  a departure            based on the  Commission findings would be justified.   Here,            however, the  district judge  found that  were she  to depart            downward,  Andrade's extensive  criminal  record  would  then            require   a   substantial   compensatory  upward   departure.            Accordingly, the  court set  Andrade's base offense  level at            26,  the  required  level  under  the  Guidelines  for  cases            involving between five and twenty grams of cocaine base.  See                                                                      ___            U.S.S.G.   2D1.1(c)(7).                       The district court thus rejected Andrade's request            for a  departure  on a  discretionary,  not a  legal,  basis.            While in other circumstances,  this court lacks  jurisdiction            to  review  the  discretionary decisions  of  the  sentencing            judge,  United States v. Sanchez,  81 F.3d 9,  10 (1st Cir.),                    _____________    _______            petition for cert. filed (U.S. July 8, 1996)(No. 96-5082), we            ________________________            would reject Andrade's  appeal here regardless.   As we  have            held, the Sentencing Commission's findings with regard to the            sentence disparity between crack  and powder cocaine are "not            a  ground for departure under   5K2.0."   Id. at 11; see also                                                      ___        ___ ____            United   States  v.  Camilo,  71  F.3d  984,  990  (1st  Cir.            _______________      ______            1995)(noting congressional rejection of Guidelines amendments            that would  have eliminated disparity), cert.  denied, 116 S.                                                    _____________            Ct. 1555 (1996).4   The district court thus had no discretion                                            ____________________            4.  Andrade  emphasizes  that  Congress, when  rejecting  the            proposed equalization of crack and powder cocaine  penalties,            invited  the  Sentencing  Commission   to  come  up  with  an                                         -15-                                          15            to  depart  downward  based  on  the  sentencing  distinction            between crack and powder  cocaine.  This court has  also held            the  distinction  to be  constitutional.    United States  v.                                                        _____________            Singleterry, 29  F.3d 733,  739-41 (1st Cir.),  cert. denied,            ___________                                     _____ ______            115 S. Ct. 647 (1994).                       Andrade also attacks  the district court's decision            to  increase his sentence by  three levels for his aggravated            assault  on  a  police  officer.   See  U.S.S.G.    3A1.2(b).                                               ___            Andrade contends  that  the presentence  report finding  that            Andrade "retrieved a gun,  which he had earlier  attempted to            conceal . .  . and discharged it in the  direction of Officer            Freeman" was  unreliable and  unsupported by trial  evidence.            Andrade argues that  the district judge  erred in relying  on            that report and on unreliable trial evidence.                      In  a  sentencing appeal,  we  review  the district            court's  findings of fact for  clear error, giving due regard            to  the district  court's  credibility judgments.  18  U.S.C.              3742(e).   Here, the district judge's  finding that Andrade            assaulted  Officer  Freeman  was  clearly based  on  her  own            assessment  of the evidence presented at trial.  Her findings            on this point were explicit:                                            ____________________            alternative  proposal.   However,  as has  been observed,  "a            direction to  study a matter,  even from Congress,  cannot be            said  to change the  state of the  law (here,  the legal fact            that the  Commission has considered the  'circumstance'-- the            difference between crack and powder cocaine)."  United States                                                            _____________            v. Anderson, 82 F.3d 436, 440 (D.C. Cir. 1996).               ________                                         -16-                                          16                      I saw the testimony, I saw the witnesses.                      I  heard what  Officer Freeman  said.   I                      listened   to  him   with  25   years  of                      experience behind me.  And I believe him.            Andrade  points to nothing  in the record  that renders these            findings  clearly  erroneous.    As the  evidence,  including            Wright's exclamation that "that dude shot at a cop," supports            a  finding of aggravated assault on an officer, we affirm the            three-level enhancement.                      Andrade's conviction and sentence are affirmed.                                                                                       -17-                                          17
