
USCA1 Opinion

	




          April 26, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2067                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   PHILIP PLOURDE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                        and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Tina Schneider, by Appointment of the Court, for appellant.            ______________            Margaret  D. McGaughey,  Assistant  United  States Attorney,  with            ______________________        whom  Jay  P.  McCloskey,  United  States Attorney,  and  Jonathan  R.              __________________                                  ____________        Chapman, Assistant United States Attorney, were on brief for appellee.        _______                                 ____________________                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.               COFFIN, Senior  Circuit Judge.   Appellant was  convicted of                       _____________________          conspiracy  to  possess  with  intent to  distribute  heroin  and          possession  with intent to distribute heroin,  in violation of 21          U.S.C.     841(a)(1)  and  (b)(1)(c) and  21  U.S.C.    846.   He          appeals  on  two  grounds:  first, that  there  was  insufficient          evidence  of conspiracy  to support  his conviction;  and second,          that  the  district court  erred in  calculating his  sentence by          underestimating  the quantity  of  heroin appellant  had for  his          personal use.  We conclude that neither claim succeeds.               Sufficiency  of the evidence.  We shall, of course, take the               ____________________________          evidence and  reasonable inferences  therefrom in the  light most          favorable to the verdict.  United States v. Moran, 984 F.2d 1299,                                     _____________    _____          1300 (1st Cir. 1993).  And we shall, without narrating the entire          series of events leading to this prosecution,  allude to evidence          only insofar as the sufficiency issue requires.                 Appellant,  who  bought  heroin from  Wilfredo  Figueroa,  a          Lawrence,  Massachusetts  supplier,  and  sold  to  a  number  of          customers  in Maine, argues that the evidence proves only that he          was a mere customer of Figueroa.   He makes the following points:          others  bought  in  larger  quantities  from  the  supplier;  the          supplier  knew that  appellant,  who  customarily  consumed  some          heroin at the  time of purchase, had  a serious addiction to  the          drug; the supplier never  requested appellant to sell for  him or          discussed distribution  with him or  extended any credit  to him;          and no drug  distribution paraphernalia (such  as scales or  drug          ledgers) were found that could be attributed to appellant.               The contrary evidence, however, was cumulatively impressive.          This  included:  the  continuity   and  duration  of  appellant's          dealings with Figueroa (at least five trips and fifty bags a week          for ten  weeks); appellant's  actual knowledge  that some of  the          heroin he bought from Figueroa was supplied by Soto, and inferred          knowledge of a third  source of the heroin bought  from Figueroa;          sales on a fairly steady basis to several identified customers in          Maine (Babbitt, Poland, Kierstead), as well as some customers not          identified but  whose existence could be  inferred; conversations          in  which  appellant  revealed  to  Figueroa  the  prices  he was          charging Maine buyers, apologized to Soto for "the people here in          Maine" who preferred another product to his, and in which he told          of future plans to sell heroin in Maine; the quantities purchased          by appellant, which were significantly in excess  of any estimate          of  appellant's own  consumption;  and, finally,  the fact  that,          although  appellant was  without income  and living  on workman's          compensation at  the time, some  $500 in  cash was  found in  his          bedroom  when he was arrested.   This was  sufficient evidence to          support both a jury determination that appellant had joined  with          others  in an agreement to distribute heroin and that he intended          to commit the substantive offense.               Calculation of  drug quantity  and base  offense level.   In               ______________________________________________________          determining   appellant's  sentence,   the  judge   accepted  the          conservative estimates of the total quantities of heroin involved          set  forth in  the  Presentence Investigation  Report (PSR),  and          arrived at  a total figure of  175.4 grams.  Based  on an average                                         -3-          consumption of 25 bags per week, and applying appropriate weights          for  the different  time periods  involved, the  judge calculated          appellant's total  consumption at 60.25 grams.   Subtracting this          from  175.4 still left a net quantity of slightly over 115 grams.          Accordingly, the  judge concluded that, even  taking into account          appellant's  personal  heroin   consumption,  the  relevant  drug          quantity  would be  still  be  in excess  of  100 grams.    Thus,          regardless  of  whether  or   not  the  district  judge  excluded          appellant's  personal  heroin   consumption  in  determining  the          relevant  drug quantity,  his base  offense level  under U.S.S.G.          2D1.1(10) would be 26.                 Appellant now claims that the evidence was that  he consumed          an average of five  to six bags a day,  or 35 to 42 bags  a week.          Cumulating these  quantities at  appropriate weights per  bag, he          arrives  at a  personal use  figure of  84.35 grams,  which, when          deducted from the total  quantity, would produce a net  figure of          91.05 grams, and a base offense level of 24.               Even  if,  as  appellant  suggests,  the  trial  court  were          required  to exclude  the  quantity  of  drugs he  possessed  for          personal  use in  calculating his  base offense  level under  the          Sentencing Guidelines, see, e.g., United States v. Kipp,  10 F.3d                                 ___  ____  _____________    ____          1463, 1465-66 (9th  Cir. 1993), this  claim would  fail.  On  the          merits, there is sufficient evidence on the record from which the          trial judge properly could conclude that appellant's personal use          was,  on average, 25  bags per week, and  therefore, in excess of          100  grams of heroin were  involved in the  offense conduct.  And                                         -4-          wholly  apart from the  merits of the  claim, this issue  has not          been preserved for review.               To  begin,   appellant's  testimony  at  trial   as  to  his          consumption  was something less than  certain.  He testified that          after getting out  of a treatment program in October  8, 1991, he          felt "pretty good,"  but that  by the beginning  of November,  he          "ended  up using again."   At this  time, he bought  one bag at a          time,  and got high  once every four  or five days,  and then, by          mid-November,  three or four times every week.  He also testified          that at  the time of his  arrest in August 1992,  "maybe" he used          five bags a day.                 In  addition,  the  evidence  showed  that  appellant bought          fluctuating  amounts of  heroin over  time, and  that  during the          course of the conspiracy,  he spent two separate periods  of time          in a substance abuse treatment program, in an effort to treat his          heroin  addiction.    This  evidence  suggests  that  appellant's          personal  consumption likely  could have  varied relative  to the          amount  of heroin  available  to  him,  and  to  his  efforts  at          rehabilitation.   Finally,  the PSR stated  that "[p]rior  to his          arrest, the defendant reports that his habit involved using up to          20 bags of heroin a  week."  Based on  all of this evidence,  the          district judge fairly could  conclude that an average of  25 bags          per week  was representative  of appellant's  average consumption          over time.               In any event, appellant has waived this claim.  He raised no          objection to the PSR's estimate that he  had "up to" a 20 bag per                                         -5-          week habit.   Even  more  important, at  the sentencing  hearing,          appellant  made no  suggestion that  the judge  had erred  in his          calculations as to appellant's  personal consumption -- a subject          that the judge  himself had  introduced.  We  note, in  addition,          that at  oral argument  before us, appellant's  counsel contended          that anyone with a habit requiring  five bags a day could not get          by  on 25 bags a  week because he could not  "take off two days a          week."   But  at the  sentencing  proceeding, trial  counsel  for          appellant, in an effort to  minimize the total quantity involved,          argued  that when  appellant "couldn't  make the  five bag  a day          habit  which  his cross-examination  in  trial  showed he  simply          stayed home and suffered."  The judge was obviously committing no          error, clear or otherwise, in harboring the same assumption.               Finally, at  the conclusion  of the sentencing  hearing, the          judge asked  for any corrections.   Counsel for  both prosecution          and defense expressed themselves as satisfied.               We  conclude by observing that no injustice has been done in          this case.   The  court, by  accepting conservative  estimates of          total quantities  involved, which were  substantially below those          justified  by  some  of the  testimony,  has  been  most fair  to          appellant.               Affirmed.               ________                                                         -6-
