
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1306                                    UNITED STATES,                                      Appellee,                                          v.                             PEDRO ARISMENDY OLIVIER-DIAZ                                     a/k/a ARTY,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                           and Barbadoro,* District Judge.                                           ______________                                 ____________________            George  L.  Garfinkle with  whom  Jeffrey  A. Denner  and Perkins,            _____________________             __________________      ________        Smith & Cohen were on brief for appellant.        _____________            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom Jay  P.  McCloskey, United  States Attorney,  and Jonathan  Toof,             __________________                                ______________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  December 22, 1993                                 ____________________        _____________________        *Of the District of New Hampshire, sitting by designation.                            BARBADORO, District  Judge.   Defendant Pedro                                       _______________             Arismendy Olivier-Diaz appeals from the sentence he received             after  he was found guilty  of conspiracy to possess cocaine             with  intent to  distribute  and  aiding  and  abetting  the             distribution of  cocaine.  See  21 U.S.C.     841(a)(1), 841                                        ___             (b)(1)(c), 846, and 18 U.S.C.    2. Arismendy challenges his             sentence  on  two grounds.    First,  he  contends that  the             district  court erred in calculating his offense level under             the federal sentencing guidelines when it (1) relied on  the             testimony of an allegedly untrustworthy witness to determine             the amount  of cocaine involved  in the  conspiracy and  (2)             concluded on the  basis of inadequate evidence that he acted             as an organizer or leader  of a criminal activity  involving             five or more participants.   Second, he claims for the first             time on appeal that  the court engaged in  "double counting"             when it  increased his  criminal history  category by  using             prior   convictions  that   allegedly   resulted  from   the             conspiracy on which his federal sentence was based.  Finding             no reversible error,  we affirm Arismendy's sentence  in all             respects.                                          I.                                       BACKGROUND          A.  The Offenses              ____________                            During  the  fall  of 1990,  Arismendy  met  Ramon          Verona, a small-time drug dealer,  and offered to sell him cocaine.                                           2          Verona initially declined.   However, he later  contacted Arismendy          on two occasions and purchased 125 grams of cocaine on credit.  Two          or   three  months  later,   Arismendy  persuaded  Verona   and  an          unidentified  woman  to  make  several  trips  from   New  York  to          Massachusetts  to transport cocaine.  Once in Massachusetts, Verona          and  the  courier  delivered  the  cocaine   to  a  confederate  of          Arismendy's whom  Verona knew only  as "Giovanni."  For  each trip,          Verona  was paid $500  and supplied  with 125  grams of  cocaine on          credit.                            Verona   used  the   cocaine  he   obtained   from          Arismendy to supply three of his customers in Maine, Peter Lauzier,          Vicki  Hall and  Pauline Rivard.   Because  Verona ran  the cocaine          operation  on credit,  however, debt  collection  quickly became  a          significant problem.  By May 1991, Rivard owed Verona approximately          $16,000  for  "fronted"  cocaine,  $4,000  of  which  was  owed  to          Arismendy.   Arismendy's solution  to this problem  was to  recruit          Verona's paramour,  Argentina Dalmassi,  and three  men, to  travel          with him to Maine to collect the debt.   On June 2, 1991, the group          arrived  at  Rivard's  home and  confronted  her  boyfriend, Robert          Pelletier.   When Pelletier  informed them that  Rivard was  not at          home, Arismendy and the three  men ransacked the house, taking some          cash and  some jewelry.   As they were leaving,  Arismendy proposed          that he take possession  of Pelletier's boat and provide  Pelletier          with cocaine to sell until he paid back what Rivard owed.                            Later  that day, Arismendy encountered Rivard at a          nearby flower  shop and  demanded payment.   Although  she believed                                           3          that  she  only  owed  money  to Verona,  Rivard  promised  to  pay          Arismendy the next day.  Moments later, Dalmassi  appeared, slapped          Rivard  in the  face and  demanded immediate  payment.   Arismendy,          however,  ordered Dalmassi  to leave.   The  group was  arrested on          charges  related  to  this collection  attempt  but  they  were all          released on bail later  that day.  Fearing for her  safety when she          learned  of  their release,  Rivard  went  to  the authorities  and          offered to cooperate.                            In  July 1991,  Arismendy, unbeknownst  to Verona,          began distributing cocaine  directly to Lauzier and Hall.   For the          next several months, Arismendy supplied them with two to ten ounces          of  cocaine  every  other  week.   In  early  October,  a  customer          contacted  Lauzier and  Hall and  asked  to purchase  cocaine.   In          response, Lauzier and Hall went to a trailer owned by their friend,          Elwin Baker, weighed the cocaine in Arismendy's presence, and drove          to a  local bar to make the sale.   They were immediately arrested,          however, because their  customer sold the cocaine  to an undercover          officer of the  Maine Bureau of Intergovernmental  Drug Enforcement          (MBIDE).   Arismendy, who  was waiting to be  paid for the cocaine,          became concerned  after Lauzier and  Hall failed to return,  and he          sent Baker  out to search  for them.   When Arismendy  learned that          they had been arrested, he had Baker  drive him back to his home in          New York.   Arismendy later placed  Baker in charge  of Lauzier and          Hall's business and sold him as much  as eight ounces of cocaine at          a time.                                            4                            Arismendy  was arrested  by the  MBIDE  in January          1992 and was subsequently convicted of the present  federal charges          in the United States District Court for the District of Maine.                                           5          B.  The Sentence              ____________                            The court  held a sentencing  hearing on  February          26, 1993.  Verona was called as a witness at the  hearing and cross          examined by the defense in an effort to attack his trial testimony.          During this examination, Verona testified that he had made at least          four  trips  from  New York  to  Massachusetts,  transporting seven          kilograms  of  cocaine on  the  first  trip,  and added,  "I  don't          remember  well,  but  I  think  the other  [trips]  were  about  10          kilograms each."   This testimony differed slightly  from his trial          testimony where he had claimed that he had made "five or six trips"          and had delivered seven kilograms of cocaine on the first two trips          and ten kilograms on each remaining trip.                            In  determining Arismendy's  total offense  level,          the district court first grouped  the two counts on which Arismendy          had  been convicted,  see U.S.S.G.     3D1.2(d), and  set his  base                                ___          offense level  at  34 because  it  found that  Arismendy's  conduct          involved approximately  36 kilograms  of cocaine.   See  U.S.S.G.                                                                ___          2D1.1(c)(5)  (Drug Quantity Table) (establishing base offense level          34 for conduct involving "[a]t  least 15 KG but less than 50  KG of          Cocaine").    The court  then  found  that  Arismendy had  been  an          organizer or leader  of a criminal activity involving  five or more          participants and added four levels to his base offense  level.  See                                                                          ___          U.S.S.G.   3B1.1(a).   Finally, because Arismendy had received  two          firearms  as  partial  payment  for  cocaine,  the  court  made  an          additional two-level increase to his offense level.  See U.S.S.G.                                                                 ___                                           6          2D1.1(b)(1).  These calculations resulted  in a total offense level          of 40.                              The   court  then  placed  Arismendy  in  criminal          history category  II  by assigning  one criminal  history point  to          prior State of Maine convictions for theft and criminal threatening          and a second  point to  a prior  State of New  York conviction  for          operating a motor vehicle while  impaired by alcohol.  See U.S.S.G.                                                                 ___             4A1.1(c).    Accordingly,   the  court  determined   Arismendy's          guideline sentencing  range to be  324-405 months.  The  court then          sentenced  Arismendy  to  365  months  in  prison,  five  years  of          supervised release and a $5,000 fine.  This appeal followed.                                          II.                                     DISCUSSION          A.  The Offense Level              _________________                           Arismendy  challenges  two steps  in  the  district          court's offense level computation.  We consider his claims "mindful          that we  must both  'accept the  findings of  fact of the  district          court unless they are clearly erroneous' and 'give due deference to          the district court's application of the guidelines to  the facts.'"          United States v. Ruiz, 905 F.2d 499,  507 (1st Cir. 1990)  (quoting          _____________    ____          18 U.S.C.            3742(e)).               1.  Cocaine Quantity                   ________________                            Arismendy's first argument is that the  sentencing          court erroneously relied  on Verona's testimony in  determining the                                           7          amount of cocaine involved in the conspiracy because Verona offered          uncorroborated  and self-contradictory  testimony in  an effort  to          receive favorable treatment  from the government.   We reject  this          contention.                             Arismendy's counsel forthrightly conceded at  oral          argument that if Verona's testimony were  believed, his claim would          collapse.   Given  this concession,  we  easily conclude  that  the          district court did not err in its drug quantity determination.  The          record  shows unequivocally that after considering the evidence and          rejecting the same arguments now  raised on appeal, the court found          Verona's testimony to be credible.  In the absence  of clear error,          such  assessments  are  exclusively  within  the  province  of  the          sentencing court.   We  find no such  error here.   Cf. id.  at 508                                                              ___ ___          ("where there is more than one plausible view of the circumstances,          the sentencing court's choice among supportable alternatives cannot          be clearly erroneous").                         2.  Leadership Role                           _______________                           Arismendy  next  claims  that  the  district  court          committed clear error  when it increased his offense  level by four          levels because  of his alleged  leadership role in  the conspiracy.          See  U.S.S.G.    3B1.1(a).   He contends  that the  enhancement was          ___          improper because the evidence established only that  he acted alone          in  selling  cocaine  to multiple  "independent  customers."     We          disagree.                            Two  conditions  must be  met before  a leadership          role enhancement is in order under U.S.S.G.   3B1.1(a).  See United                                                                   ___ ______                                           8          States v.  Preakos, 907  F.2d 7,  9 (1st Cir.  1990) (per  curiam).          ______     _______          First, the sentencing  court must find that the  defendant acted as          "an  organizer or  leader of  a  criminal activity."   Second,  the          activity must  have  "involved five  or  more participants  or  was          otherwise extensive."   See   United States  v. McDowell,  918 F.2d                                  ___________________     ________          1004, 1011 (1st Cir. 1990) (quoting U.S.S.G.   3B1.1(a)).                              In   determining  whether   a  defendant   had   a          leadership role  in criminal  activity, the  commentary to  section          3B1.1 instructs courts to consider such factors as decision  making          authority, recruitment  of accomplices, degree of  participation in          planning the offense, degree of  control over others, and a claimed          right to  a larger share  of the fruits  of the crime.   U.S.S.G.            3B1.1, comment.  (n.4); see also Preakos,  907 F.2d at 9.   Because                                  ___ ____ _______          such  "role  in  the offense"  assessments  are  fact-specific, the          district  court's views  must be  accorded  "considerable respect."          See United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).          ___ _____________    ______                           The  instant  record  amply  supports  the district          court's conclusion that Arismendy was an organizer or leader of the          drug  distribution conspiracy.   The  court  could reasonably  have          inferred  from the  trial evidence  that  Arismendy: (1)  initiated          cocaine discussions with  Verona; (2) convinced Lauzier and Hall to          work with him; (3) attempted  to persuade Pelletier to sell cocaine          for  him; (4)  actively  supervised the  collection  of debts;  (5)          instructed Baker to take over the Maine distribution business after          Lauzier and Hall were arrested; and (6) exercised a high  degree of          decision making  authority  both in  organizing the  multi-kilogram                                           9          cocaine shipments from  New York to Massachusetts  and in directing          and coordinating  Verona  and  the  female courier.    Given  these          permissible  inferences, the  court was  not  clearly erroneous  in          finding that Arismendy  was an organizer or leader  of the criminal          activity.    Cf.,  e.g.,  Preakos,  907  F.2d  at  9-10  (upholding                       ___   ____   _______          enhancement where defendant, among other things, "exercised control          over his distributors, at  least in the sense that he directed them          with  regard to  their role  in the  various cocaine  shipments and          apparently coordinated aspects of the distribution").                            The  district  court  also  could  have  plausibly          concluded  from the  record  that five  or  more participants  were          involved   in  Arismendy's  criminal  activity.      Under  section          3B1.1(a), a "participant"  is any person, including  the defendant,          who is "criminally responsible for  the commission of the offense .          . . ." See U.S.S.G.   3B1.1,  comment. (n.l); see also Preakos, 907                 ___                                    ___ ____ _______          F.2d at  10 (defendant included  as a participant under  U.S.S.G.            3B1.1(a)).  Even without counting the persons Arismendy claims were          merely  customers,  at  least  five  others,  including  Arismendy,          Verona, the female courier, Giovanni,  and one or more of the  four          debt collectors, could reasonably have been considered participants          in Arismendy's criminal activity.  Thus,  we find no clear error in          the sentencing court's determination.           B.  The Criminal History Category              _____________________________                            Arismendy's final contention is that the  district          court  engaged in  "double counting"  when  it used  the theft  and                                           10          criminal  threatening  convictions   --  which,  appellant  claims,          resulted  from his June 1991, collection  attempt against Rivard --          to increase his  criminal history category.    Arismendy bases this          claim on section 4A1.2(a)(1) of the Guidelines, which provides that          in computing a defendant's criminal history, a court may count only          sentences that were "previously imposed . . . for conduct not  part          of the  instant offense."   He contends  that because the theft and          criminal  threatening convictions  resulted from  conduct  that was          part of the federal drug distribution conspiracy, these convictions          cannot be  used to increase  his criminal history category.   Since          Arismendy  did not  raise this  claim  in the  district court,  his          sentence  can be  reversed on  this basis  only  upon a  showing of          "plain error."  See Fed. R. Crim. P. 52(b).   He has failed to make                          ___          such a showing here.                            Three  criteria   restrict  a  reviewing   court's          authority to reverse a sentence under the plain error rule.  First,          a  reviewable  error  must  have  occurred  during  the  sentencing          process.   Second, the error must be  "clear" or "obvious."  Third,          the error  must affect  "substantial rights,"  which in  most cases          means  that the  defendant must  make a  specific showing  that the          error probably affected his sentence.  United States v. Carrozza, 4                                                 _____________    ________          F.3d 70, 87-88  (1st Cir. 1993)(citing United States  v. Olano, 113                                          ______ _____________     _____          S. Ct. 1770, 1777-78 (1993)).  Even if all three criteria have been          satisfied,  the reviewing  court  retains  the  discretion  not  to          correct  an error,  however  plain,  unless  the  error  "seriously          affect[s]  the fairness, integrity or public reputation of judicial                                           11          proceedings."   Olano, 113 S. Ct. at 1779 (quoting United States v.                          _____                              _____________          Atkinson, 297 U.S. 157, 160 (1936)).          ________                            Applying  the  plain  error  standard,  we  reject          Arismendy's double counting  argument without reaching its  merits.          Where the error defendant asserts  on appeal depends upon a factual          finding the defendant neglected to  ask the district court to make,          the error cannot be "clear" or "obvious" unless the desired factual          finding is the  only one rationally supported by  the record below.          See  United States v. Gaudet,  966 F.2d 959,  962 (5th Cir.), reh'g          ___  _____________    ______                                  _____          denied, 973 F.2d 927 (1992), cert.  denied, 113 S. Ct. 1294 (1993).          ______                       _____  ______          Here, Arismendy's double  counting argument depends upon  his claim          that the theft  and criminal threatening convictions  resulted from          the unsuccessful effort to collect Rivard's cocaine debt.  However,          the record  on this subject is equivocal  at best.  The Presentence          Report  describes the  theft and  criminal  threatening convictions          without stating whether  they resulted from Arismendy's  attempt to          collect Rivard's debt.  Moreover,  the Report states that Arismendy          was  arrested  on the  theft  and criminal  threatening  charges on          August 7, 1991,  whereas the unrebutted evidence  produced at trial          established that  Arismendy was arrested  for his role in  the debt          collection  effort  on   June  2,  1991.    Since  Arismendy  never          challenged this portion of the Presentence Report, the only support          for  his argument  in the  record is  that  his attempt  to collect          Rivard's cocaine debt involved conduct that  could have resulted in          theft and criminal  threatening convictions.  While we  might infer          from this evidence that the  theft and criminal threatening charges                                           12          and the debt  collection effort are related, the  record also amply          supports the  opposite conclusion.   We  therefore cannot  conclude          that the district court committed  obvious error in using the theft          and  criminal  threatening  convictions  to  enhance  his  criminal          history category.                                                  III.                                       CONCLUSION                            For  the  reasons  expressed  above,   Arismendy's          sentence is          affirmed.          ________                                           13
