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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 96-2187 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                      LUIS A. MARRERO-ORTIZ, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                  <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>           Aldrich and Coffin, Senior Circuit Judges. <br>                                 <br> <br> <br>     Ivan Dominguez for appellant. <br>     Grace Chung Becker, Trial Attorney, U.S. Dept. of Justice, <br>with whom John C. Keeney, Acting Assistant Attorney General, and <br>Theresa M.B. Van Vliet  were on brief, for the United States. <br> <br> <br> <br> <br> <br>November 17, 1998 <br> <br> <br> <br>

  SELYA, Circuit Judge.  In the wake of his conviction on <br>a charge of conspiracy to possess controlled substances with intent <br>to distribute, see 21 U.S.C.  841(a)(1), 846 (1994), defendant- <br>appellant Luis Marrero-Ortiz (Marrero), one of thirty-one <br>defendants named in a wide-ranging indictment, claims that the <br>district court committed a host of errors.  We have reviewed the <br>trial record with care and find Marrero's multi-pronged attack on <br>his conviction meritless.  Withal, one aspect of the trial court's <br>sentencing determination gives us pause. <br>  With this brief prelude, we proceed to discuss Marrero's <br>principal assignments of error, segregating those points that <br>relate to his conviction from those that relate to sentencing. <br>                          Trial Issues   <br>     We start by addressing those assignments of error that <br>center on the trial.   <br>     1.  Sufficiency of the Evidence.  On a defendant's timely <br>motion, a federal trial court is constrained to order a judgment of <br>acquittal with respect to any given charge if the government fails <br>to present sufficient evidence to sustain a conviction.  See Fed. <br>R. Crim. P. 29(a).  In this instance, the appellant sought   but <br>did not secure   judgment of acquittal under Rule 29.  We review <br>the district court's determination de novo, applying precisely the <br>same standard that obtained below:  "whether, after assaying all <br>the evidence in the light most amiable to the government, and <br>taking all reasonable inferences in its favor, a rational fact- <br>finder could find, beyond a reasonable doubt, that the prosecution <br>successfully proved the essential elements of the crime."  United <br>States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998) (citation and <br>internal quotation marks omitted). <br>     "To prove a drug conspiracy charge under 21 U.S.C.  846, <br>the government is obliged to show beyond a reasonable doubt that a <br>conspiracy existed and that a particular defendant agreed to <br>participate in it, intending to commit the underlying substantive <br>offense. . . ."  United States v. Sepulveda, 15 F.3d 1161, 1173 <br>(1st Cir. 1993).  The prosecution may meet its burden through <br>either direct or circumstantial evidence, or through some <br>combination thereof.  See United States v. Houlihan, 92 F.3d 1271, <br>1292 (1st Cir. 1996). <br>     In this case, the appellant claims that the government's <br>proof fell short in two respects because the evidence failed to <br>show either that he agreed to participate in the conspiracy or that <br>he possessed an intent to commit the underlying offense.  This <br>claim rests mainly on the assertion that the prosecution offered no <br>direct proof that the appellant personally engaged in drug <br>transactions.  The claim is groundless:  proof of direct <br>participation in the sale of drugs is not required to convict in a <br>drug conspiracy case.  See, e.g., United States v. David, 940 F.2d <br>722, 735 (1st Cir. 1991). <br>     In all events, a percipient witness, Marcos Hidalgo <br>Melendez (Hidalgo), himself a coconspirator, testified that he <br>received money from the appellant after delivering narcotics to <br>him.  Furthermore, Hidalgo and another admitted coconspirator <br>testified in substance that Marrero served as a supervisor at the <br>drug ring's distribution center in Corozal.  This evidence, in <br>conjunction with testimony concerning (i) the appellant's frequent <br>presence at the ring's distribution center in Arecibo, (ii) the <br>appellant's wounding during a skirmish between rival drug gangs <br>(see infra Point 3), (iii) the inclusion of the appellant's name <br>and telephone number in a drug ledger and related records seized <br>from the ringleader's home, and (iv) the appellant's repeated <br>posting of bail for members of the conspiracy, was sufficient to <br>ground the jury's verdict.  See United States v. Ortiz, 966 F.2d <br>707, 712 (1st Cir. 1992) (permitting factfinders to "draw <br>reasonable inferences from the evidence based on shared perceptions <br>and understandings of the habits, practices, and inclinations of <br>human beings," and warning that, in assessing sufficiency <br>challenges, factfinders are required neither "to divorce themselves <br>from their common sense nor to abandon the dictates of mature <br>experience"). <br>     2.  Variance.  A variance occurs when the facts adduced <br>at trial differ meaningfully from those adumbrated in the <br>indictment.  The appellant contends that the instant indictment <br>contained a fatal variance because it charged him with supervising <br>a drug point in Arecibo, while the evidence introduced at trial <br>linked him primarily to drug transactions in Corozal.  We reject <br>this contention. <br>     In a criminal case, not every difference between the <br>indictment and the proof justifies relief; only those instances in <br>which a disparity is material and affects a defendant's substantial <br>rights warrant reversal.  See United States v. Tormos-Vega, 959 <br>F.2d 1103, 1115 (1st Cir. 1992) (explaining that a variance <br>justifies reversal only if it materially impairs the defendant's <br>right to "have sufficient knowledge of the charge against him in <br>order to prepare an effective defense and avoid surprise at <br>trial"); accord United States v. Fisher, 3 F.3d 456, 463 (1st Cir. <br>1993).  We think that the charging document suffices in this case. <br>     The indictment describes the manner and means of the <br>conspiracy as the retail distribution of narcotics at numerous <br>locations ("puntos") controlled by the so-called Santiago <br>organization, specifically, Arecibo and "elsewhere."  It then limns <br>42 overt acts, including some acts committed at Arecibo and some at <br>Corozal.  In paragraph 22 the indictment charges the appellant, <br>acting in furtherance of the conspiracy, with possession of a <br>firearm in Corozal.  These allegations provided an adequate preview <br>of the proof to come. <br>     The government need not recite all its evidence in the <br>indictment, nor is its trial proof limited to the overt acts <br>specified therein.  See United States v. Bradstreet, 135 F.3d 46, <br>53 (1st Cir. 1998); United States v. Innamorati, 996 F.2d 456, 477 <br>(1st Cir. 1993); United States v. Bello-Perez, 977 F.2d 664, 669 <br>(1st Cir. 1992).  In this instance, the indictment, despite its <br>emphasis in paragraph 10 on the appellant's control over the sale <br>of drugs in Arecibo, put him squarely on notice that the <br>prosecution viewed his dealings in Corozal as an integral part of <br>the conspiratorial mix.  Because the appellant cannot credibly <br>claim surprise, the asserted variance does not warrant setting <br>aside the verdict.  <br>     3.  The Shooting Incident.  The appellant protests a <br>district court ruling permitting the prosecution to introduce <br>evidence about his involvement in a shooting incident in Corozal.  <br>The nature of the evidence is described in the margin.  We <br>conclude that the court acted within its discretion in admitting <br>the evidence. <br>     Relevant evidence is evidence that has a "tendency to <br>make the existence of any fact . . . more probable or less probable <br>than it would be without the evidence."  Fed. R. Evid. 401.  <br>Evidence, though relevant, nonetheless may be excluded if its <br>probative value is overbalanced by other considerations, such as by <br>the danger of unfair prejudice.  See United States v. McKeeve, 131 <br>F.3d 1, 13 (1st Cir. 1997) (citing Fed. R. Evid. 403).  Virtually <br>all evidence is meant to be prejudicial, and it is only unfairprejudice against which Rule 403 protects.  See United States v. <br>Pitrone, 115 F.3d 1, 8 (1st Cir. 1997); Houlihan, 92 F.3d at 1297.  <br>Because such determinations are peculiarly within the ken of trial <br>courts, we review them only for abuse of discretion.  See Pitrone, <br>115 F.3d at 7; Houlihan, 92 F.3d at 1297. <br>     Concluding that evidence of the shooting incident made it <br>more probable that Marrero was a member of the conspiracy, and that <br>the evidence's probative worth outweighed any unfairly prejudicial <br>effect, the district court admitted the evidence.  We decline to <br>second-guess this ruling.  See Freeman v. Package Mach. Co., 865 <br>F.2d 1331, 1340 (1st Cir. 1988) ("Only rarely   and in <br>extraordinarily compelling circumstances   will we, from the vista <br>of a cold appellate record, reverse a district court's on-the-spot <br>judgment concerning the relative weighing of probative value and <br>unfair effect."). <br>     4.  Rule 12(d)(2).  Citing Fed. R. Crim. P. 12(d)(2), the <br>appellant assigns error to the district court's admission of <br>certain evidence during trial.  The background is as follows.  <br>Because of the numerosity of defendants, the district court ordered <br>two separate trials on the indictment.  The court placed the <br>appellant in the second group.  The government designated all its <br>evidence prior to the first trial, but did not renew the <br>designation prior to the second trial. <br>     Without citing any pertinent authority, the appellant <br>claims that the government had an obligation to redesignate the <br>evidence before using it at the second trial.  The applicable test <br>is for abuse of discretion, see United States v. de la Cruz- <br>Paulino, 61 F.3d 986, 993 n.3 (1st Cir. 1995), and we are not <br>persuaded that the district court perpetrated an abuse when it <br>ruled that the initial designation satisfied Rule 12(d)(2)'s notice <br>requirements.  Under the circumstances, redesignation would have <br>served no useful purpose. <br>     We add that, even if the government's failure to <br>redesignate the evidence technically violated the rule, the <br>violation did not prejudice the defense.  The appellant's main <br>emphasis in this aspect of his appeal relates to certain <br>incriminating statements allegedly made by him after the shooting <br>incident described in Point 3, supra.  Rule 12(d)'s function is <br>procedural; compliance with its terms enables a defendant to move <br>for suppression in a timely manner.  Here, the district court <br>permitted the appellant, out of time, to file a suppression motion <br>addressed to the incriminating statements.  See de la Cruz-Paulino, <br>61 F.3d at 994 n.5 (endorsing this practice).  The court then <br>denied the motion, holding that the government had a right to use <br>the statements.  Given that eminently correct ruling, the <br>appellant's claim of prejudice rings hollow. <br>     Taking an alternate tack, the appellant also suggests <br>that the government's failure to designate evidence relating to <br>both his possession of firearms and his relationship with other <br>participants in a drug transaction violated Rule 12(d)(2).  But the <br>appellant is firing blanks; he makes no developed argument for the <br>suppression of such evidence.  Absent some articulation of a <br>convincing rationale for quashal, the lack of an opportunity to <br>file a pretrial suppression motion cannot be viewed as prejudicial.  <br>See id. at 994. <br>     5.  Cross-Examination.  The appellant complains that the <br>district court transgressed his fundamental right to cross-examine <br>adverse witnesses when it barred him from eliciting testimony, <br>through cross-examination of a prosecution witness, that local <br>charges related to his arrest for weapons possession had been <br>dismissed.  Managing the scope of cross-examination is a matter <br>that falls within the district court's sound discretion.  SeeUnited States v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990).  We are <br>confident that the  court did not abuse its discretion when it <br>prohibited the appellant from cross-examining the witness regarding <br>the prior proceeding. <br>     This court recently joined several other circuits in <br>holding that a district court has discretion to exclude from <br>evidence acquittals or other favorable outcomes of prior state <br>court proceedings involving the same subject matter.  See United <br>States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998); accord United <br>States v. Thomas, 114 F.3d 228, 249-50 (D.C. Cir.), cert. denied, <br>118 S. Ct. 635 (1997); United States v. Jones, 808 F.2d 561, 566 <br>(7th Cir. 1986); United States v. Irvin, 787 F.2d 1506, 1516-17 <br>(11th Cir. 1986); United States v. Sutton, 732 F.2d 1483, 1493 <br>(10th Cir. 1984); United States v. Viserto, 596 F.2d 531, 537 (2d <br>Cir. 1979).  The rationale is plain:  such evidence ordinarily does <br>not prove innocence.  After all, cases are dismissed for a variety <br>of reasons, many of which are unrelated to culpability.  Because <br>evidence of a dismissal may have served to confuse the jury rather <br>than to assist it, the district court had the authority to exclude <br>such evidence here.  See Fed. R. Evid. 403. <br>     Undaunted, the appellant makes a related argument.  He <br>says that, even if the district court ordinarily can exclude such <br>evidence, it should not have done so here because it permitted a <br>government witness to testify that Marrero had been arrested <br>locally.  The law is against the appellant's position:  other <br>courts have held routinely that a district judge does not abuse his <br>discretion by allowing some evidence related to a local proceeding, <br>yet barring evidence of the outcome of that proceeding.  See, e.g., <br>Jones, 808 F.2d at 566-67; Sutton, 732 F.2d at 1493.  We need not <br>go so far, however, for in this instance, the appellant opened the <br>door by inquiring during cross-examination if the witness <br>personally arrested Marrero.  He cannot now be heard to complain <br>that the government followed his lead and elicited the challenged <br>testimony on redirect. <br>     6.  Jencks Act.  The Jencks Act, 18 U.S.C.  3500, in <br>concert with Fed. R. Crim. P 26.2, controls the production of <br>certain witness statements in the government's possession.  In this <br>case, the appellant sought to inspect rough notes taken by an <br>Internal Revenue Service agent, Felicia Ramos, during an interview <br>of Hidalgo (who testified at the trial as a government witness).  <br>The appellant maintains that the notes comprised a "statement" <br>under 18 U.S.C.  3500(e)(1), that the government therefore was <br>obliged to produce them, and that their availability would have <br>enabled him to impeach Hidalgo's credibility.  We do not agree. <br>     The Jencks Act ordains that "[a]fter a witness called by <br>the United States has testified on direct examination, the court <br>shall, on motion of the defendant, order the United States to <br>produce any statement . . . of the witness in the possession of the <br>United States which relates to the subject matter as to which the <br>witness has testified."  18 U.S.C.  3500(b).  The question here is <br>whether the notes constitute a "statement."  The statute itself <br>provides some enlightenment, defining a "statement" as one "made by <br>said witness and signed or otherwise adopted or approved by h[er]" <br>18 U.S.C.  3500(e)(1).  A written summary of a witness interview <br>is not a statement unless the evidence shows that the witness <br>adopted the notes, a phenomenon that would occur, for example, if <br>"the interviewer read the statement back to the witness and . . . <br>the witness approved the statement."  United States v. Gonzalez- <br>Sanchez, 825 F.2d 572, 586 (1st Cir. 1987). <br>     In this instance, the record is barren of any evidence <br>that Hidalgo adopted the notes in question or that they otherwise <br>satisfied the Jencks Act's definition of a statement.  Hence, the <br>government had no obligation to produce them and the denial of <br>discovery was proper. <br>     7.  Anonymous Jury.  Under 28 U.S.C.  1863(b)(7), a <br>district court may empanel an anonymous jury in any case in which <br>"the interests of justice so require."  We recently held that this <br>standard is satisfied when "there are strong grounds for concluding <br>that [anonymity] is necessary to enable the jury to perform its <br>factfinding function, or to ensure juror protection."  United <br>States v. DeLuca, 137 F.3d 24, 31 (1st Cir.), cert. denied, 67 <br>U.S.L.W. 3084 (U.S. Oct. 5, 1998) (No. 98-141).  The trial court <br>must take care, however, to implement reasonable safeguards "to <br>minimize any risk of infringement upon the fundamental rights of <br>the accused."  Id.  Under these criteria, Judge Fust did not <br>exceed the scope of his discretion when he empaneled an anonymous <br>jury in this case. <br>     The indictment charged the appellant and his <br>coconspirators with membership in a sprawling drug ring that often <br>resorted to violence in its pursuit of profits.  The government's <br>evidence indicated, for example, that a co-defendant, Miranda, <br>ordered the murders of six people during 1993 and 1994 in <br>retaliation for the slaying of Santiago's bodyguard.  The appellant <br>himself suffered a bullet wound while in the organization's <br>service.  See supra Point 3.  During the arraignment that followed <br>the  return of this indictment, a brawl erupted.  Last   but surely <br>not least   the government proffered evidence indicating that the <br>Santiago drug ring was plotting to murder federal agents and local <br>police officers to improve the odds at trial.  Under these ominous <br>circumstances, the court reasonably could have believed that the <br>jurors were in harm's way.  In turn, this reasonable belief <br>adequately supported the empanelment of an anonymous jury. <br>     By like token, Judge Fust took satisfactory precautions <br>to protect the defendants' rights.  He did not mention any threat <br>to juror safety, but, rather, informed the jurors that they would <br>remain anonymous during the trial because of publicity concerns.  <br>He then instructed the jury on the presumption of innocence, and <br>periodically repeated that instruction as the trial progressed.  No <br>more was exigible.  See id. at 32. <br>     8.  Peremptory Challenges.  In a related vein, the <br>appellant argues that the empanelment of an anonymous jury created <br>a need for additional peremptory challenges, beyond those <br>ordinarily allowed.  See Fed. R. Crim. P. 24(b) (delineating <br>allotment and distribution of peremptories).  Although the <br>applicable rule allows a judge to grant additional challenges, the <br>judge has wide discretion in administering this authority.  SeeUnited States v. Cox, 752 F.2d 741, 747-48 (1st Cir. 1985).  The <br>empanelling of an anonymous jury neither curtails the scope of this <br>discretion nor obligates a district court to afford more <br>peremptories to the defense.  We therefore reject the appellant's <br>assignment of error. <br>                        Sentencing Issues <br>     We turn next to the appellant's myriad challenges to the <br>360-month sentence that the district court imposed. <br>     9.  Continuance of Dispostion Hearing.  Fed. R. Crim. P. <br>32(a) requires, inter alia, that the trial court impose sentence <br>without undue delay.  Such a dispositon occurs following the <br>preparation of the presentence investigation report (PSI Report) <br>and the lodging of objections thereto.  See Fed. R. Crim. P. <br>32(b)(6)(C) ("Not later than 7 days before the sentencing hearing, <br>the probation officer must submit the presentence report to the <br>court, together with an addendum setting forth any unresolved <br>objections . . . [a]t the same time, the probation officer must <br>furnish the revisions of the presentence report and the addendum to <br>the defendant.").  In this instance, the probation officer did not <br>distribute the addendum to the PSI Report in a timely manner.  The <br>appellant   who unsuccessfully sought a continuance   makes three <br>arguments in regard to this lapse:  (1) that the probation <br>officer's failure to comply strictly with Rule 32 denied him the <br>opportunity adequately to prepare a rebuttal to the PSI Report; (2) <br>that the probation officer's belated response to the appellant's <br>objections created unfair surprise; and (3) that, as a result of <br>this surprise, defense counsel was unable either to explain the PSI <br>Report to his client or to discuss the proceedings with him. <br>     Appellate review of a trial court's ruling on a <br>sentencing continuance is deferential.  See United States v. <br>Ottens, 74 F.3d 357, 359-60 (1st Cir. 1996) (adopting abuse of <br>discretion standard).  The focus is on what constitutes a <br>reasonable period of time for preparation, not on defense counsel's <br>"subjective satisfaction with his level of preparedness."  Id. at <br>359.  In sifting the entire panoply of relevant considerations, the <br>district court may consider factors such as prior continuances, <br>time available for preparation, and how efficiently defense counsel <br>used the available time.  See id. <br>     In the case at bar, the lower court postponed the <br>disposition hearing for two months to give defense counsel more <br>time to review the PSI Report.  During this two-month interlude, <br>defense counsel filed several objections (which prompted the  <br>addendum).  Defense counsel at no time sought to introduce any new <br>evidence, despite ample time to prepare rebuttal arguments.  <br>Finally, although defense counsel did not receive a copy of the <br>addendum until the day before the new sentencing date, that <br>document did  no more than respond to points that defense counsel <br>himself had raised.  He obviously had enough time to review it <br>because he argued eloquently concerning the conclusions that it <br>contained.  Hence, the appellant's first argument founders. <br>     Nor can the appellant convincingly claim undue surprise.  <br>Defense counsel already had been granted a generous continuance.  <br>He knew the information contained within the PSI Report, and he had <br>two months in which to prepare his rebuttal.  The addendum did not <br>contain any new information; it merely referenced trial testimony <br>to refute the appellant's objections and, concomitantly, to support <br>the probation officer's recommendation of a base offense level <br>(BOL) of 38, a two-level upward adjustment for possession of a <br>firearm, and a two-level enhancement for a supervisory role.  The <br>fact that the appellant received the addendum the day before <br>sentencing, although violative of Rule 32(b)(6)(C), is not <br>sufficient, in and of itself, to establish undue surprise.  SeeUnited States v. Williams, 499 F.2d 52, 54-55 (1st Cir. 1974) <br>(holding an analogous violation harmless on the ground that the PSI <br>Report did not contain any information that the defendant could not <br>have anticipated, despite the fact that the defendant received it <br>five minutes before the disposition hearing).  <br>     Finally, the appellant's claim that he did not have the <br>opportunity to discuss the sentencing materials with his defense <br>counsel is unsupported.  The sentencing transcript reflects that <br>the judge asked the appellant whether he had reviewed the PSI <br>Report with his attorney and the appellant replied "yes."  When <br>asked if he had any further objections to it, the appellant replied <br>"no."  Courts long have held that a defendant cannot make solemn <br>representations at sentencing and freely disclaim them at a later <br>date, when it is to his advantage to do so.  See  United States v. <br>Mata-Grullon, 887 F.2d 23, 24 (1st Cir. 1989). <br>     10.  Written Findings.  Fed. R. Crim. P. 32(c)(1) <br>requires that the trial court make a finding in respect to each <br>matter controverted at sentencing (or, alternatively, make a <br>finding that the controverted matter has no bearing).  The rule <br>also directs the sentencing court to append a written record of its <br>findings to the judgment.  See id.  The appellant complains that <br>the sentencing court neglected to follow this regimen. <br>     When the sentencing court makes specific findings oretenus, the court may append the sentencing transcript to the PSI <br>Report and thus effect compliance with Rule 32(c)(1).  See United <br>States v. Bruckman, 874 F.2d 57, 65 (1st Cir. 1989).  Preparing an <br>additional written record of findings is merely "ministerial," and <br>will not be required.  Id.; accord United States v. Mena-Robles, 4 <br>F.3d 1026, 1037 n.14 (1st Cir. 1993).  The same is true when the <br>court makes implicit findings by reference to detailed suggestions <br>in the PSI Report.  See United States v. Ovalle-Mrquez, 36 F.3d <br>212, 227 (1st Cir. 1994). <br>     Against this backdrop, the record rebuts the appellant's <br>contention that the district court did too little.  It shows that, <br>at the disposition hearing, the judge made a specific finding as to <br>each controverted matter:  drug quantity, possession of a firearm, <br>and role in the offense.  If the transcript that embodies those <br>findings has not already been appended to the PSI Report, we direct <br>that this amalgamation be made.  No more is necessary.  <br>     11.  Possession of a Firearm.  In this case, the district <br>court increased the BOL by two levels because the appellant <br>possessed a firearm in connection with his drug-trafficking <br>activities.  See USSG 2D1.1(b)(1).  The appellant urges us to <br>nullify this enhancement.  He bases his argument on an analogy to <br>Bailey v. United States, 116 S. Ct. 501 (1995).  For purposes of a <br>prosecution under 18 U.S.C.  924(c)(1), Bailey requires proof that <br>the defendant's "use" of a firearm had an active relation to the <br>underlying drug offense (e.g., that the defendant displayed, fired, <br>or brandished the weapon).  See id. at 503.  We agree with the <br>sentencing judge that Bailey is not controlling here. <br>     The sentencing guidelines govern this sentence <br>enhancement.  The applicable guideline provides that "[i]f a <br>dangerous weapon (including a firearm) was possessed," the court <br>should increase the defendant's BOL by two levels.  USSG <br>2D1.1(b)(1).  The appellant argues that this guideline provision <br>should be construed in pari materia with section 924(c)(1)   but he <br>does not explain why this parallelism must exist.  The language of <br>the two provisions is dissimilar.  So, too, is their effect:  a <br>conviction under 18 U.S.C. 924(c)(1) results in an incremental <br>five-year consecutive sentence, while a sentence enhancement under <br>USSG 2D1.1(b)(1) results merely in a two-level adjustment to the <br>defendant's BOL.  Most importantly, the interpretation of the <br>guideline provision is colored by the Sentencing Commission's <br>instruction that "[t]he adjustment should be applied if the weapon <br>was present, unless it is clearly improbable that the weapon was <br>connected with the offense."  USSG 2D1.1(b)(2), comment. (n.3).  <br>This is a far cry from the way in which the Bailey Court instructs <br>judges to approach section 924(c)(1). <br>     We need not tarry.  Bailey is inapposite here.  And, <br>moreover, the evidence amply supports a finding, by a <br>preponderance, that the appellant possessed a firearm for potential <br>use in connection with his drug-trafficking activities.  See, e.g., <br>United States v. Berrios, 132 F.3d 834, 839 (1st Cir. 1998); United <br>States v. Gonzalez-Vazquez, 34 F.3d 19, 24 (1st Cir. 1994); United <br>States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990).  Accordingly, <br>the district court did not err in enhancing the appellant's <br>sentence under USSG 2D1.1(b)(1). <br>     12.  Supervisory Role.  The district court also boosted <br>the appellant's BOL for his role as a supervisor in the narcotics <br>enterprise.  The appellant claims that the finding lacks support.  <br>We disagree. <br>     In order to qualify for a two-level enhancement as a <br>supervisor in a criminal enterprise, a defendant must exercise <br>control over at least one other culpable individual.  See United <br>States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991) (discussing <br>USSG 3B1.1(c)).  The appellant's argument here boils down to a <br>plaint that the district court made no specific findings in support <br>of its determination that he deserved the enhancement.  Although <br>such findings are always helpful, they are unnecessary when the <br>record clearly reflects the basis of the court's determination.  <br>See United States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994) <br>(indicating a willingness to overlook the absence of findings "if <br>the reasons for the judge's choice are obvious or if an explanation <br>can fairly be implied from the record as a whole").  This is such <br>a case. <br>     At trial, the government presented two witnesses who <br>indicated that the appellant was in charge of the conspiracy's drug <br>point in Corozal.  The government also presented testimony as to <br>how the drug points were managed and the number of individuals <br>involved.  This evidence is self-explanatory and provides adequate <br>support for the district court's determination that the appellant <br>ran a drug point and supervised others in so doing.  See United <br>States v. Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc).  <br>     13.  Drug Quantity.  In a narcotics case, drug quantity <br>is an important integer in calculating the BOL (and, hence, the <br>sentence itself).  See Sepulveda, 15 F.3d at 1197.  To determine <br>the drug quantity attributable to a particular defendant, a court <br>looks to the quantity of drugs associated with the count(s) of <br>conviction, plus all "relevant conduct," i.e., those acts that were <br>part of the same "'common scheme or plan as the offense of <br>conviction', whether or not charged in the indictment."  United <br>States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990) (quoting USSG <br>1B1.3(a)(2)).  In the case of a conspiracy, however, a defendant <br>cannot be saddled with quantities of drugs that he could not <br>reasonably have foreseen.  See United States v. Garcia, 954 F.2d <br>12, 15 (1st Cir. 1992). <br>     Different types of drugs affect the offense-level <br>calculation in different ways.  For instance, a defendant whose <br>relevant conduct involved 30 kilograms or more of heroin would <br>merit a BOL of 38, as would a defendant whose relevant conduct <br>involved 150 kilograms of cocaine, or one whose relevant conduct <br>involved 1.5 kilograms of cocaine base (crack cocaine).  See USSG <br>2D1.1(c)(1) (Drug Quantity Table).  The Santiago organization <br>trafficked indiscriminately in heroin, powdered cocaine, and crack, <br>and the sentencing guidelines contain an elaborate conversion <br>formula that can be used in such cases.  See USSG 2D1.1, comment. <br>(n.10). <br>     At the disposition hearing, the judge set the appellant's <br>BOL at 38, but without much in the way of elaboration.  The <br>appellant challenges this assessment.  On the evidence, the judge <br>easily could have found, by the requisite preponderance-of-the- <br>evidence standard, see Sklar, 920 F.2d at 110, that the appellant <br>was a member of the Santiago organization, whose relevant conduct <br>encompassed drug transactions occurring at the Arecibo and Corozal <br>drop points.  But the court did not reference any evidence to <br>support an assessment of the volume of drugs sold at either <br>location, and the PSI Report contains no such quantification.  <br>While we may agree with the government that the Santiago <br>organization did a substantial amount of narcotics business, and <br>that the totals necessary for a BOL of 38 (e.g., 1.5 kilograms of <br>crack) seem attainable given the appellant's role in the <br>conspiracy, we cannot uphold a drug quantity calculation on the <br>basis of hunch or intuition.  See Sepulveda, 15 F.3d at 1199; <br>Sklar, 920 F.2d at 113. <br>     In this case, drug quantity dictated the appellant's <br>sentence in large part.  In the absence of particularized findings <br>to support the assigned BOL, we have no principled choice but to <br>vacate the sentence and remand for further findings and <br>resentencing.  See Sepulveda, 15 F.3d at 1199; United States v. <br>O'Campo, 973 F.2d 1015, 1026 (1st Cir. 1992). <br>                            Conclusion <br>     We need go no further.  Although the appellant has raised <br>a gallimaufry of arguments anent his conviction, all of them   <br>including some that do not warrant discussion   are unavailing.  <br>For aught that appears, the appellant was fairly tried and justly <br>convicted.  A question lingers, however, as to the appropriateness <br>of the appellant's sentence.  That question apparently turns on the <br>issue of drug quantity, since the appellant's other sentence- <br>related arguments all are groundless.  To enable this final <br>question to be answered, we vacate the appellant's sentence and <br>remand for resentencing. <br> <br>     The appellant's conviction is affirmed, his sentence is <br>vacated, and the case is remanded for resentencing.</pre>

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