
USCA1 Opinion

	




          August 11, 1992   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1132                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    AUGUSTO SERNA,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The cover of the opinion of this Court  issued on August 4,  1992,        is amended as follows:            "[Hon.  Nicholas  Tsoucalas,  U.S.  District  Judge]" should  read                                          _____________________        "[Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]".                                    _________________________________                                                 _________________________________        *The  Honorable  Nicholas  Tsoucalas,  Judge  of  the  U.S.  Court  of        International Trade, sitting by designation.August 4, 1992                                [NOT FOR PUBLICATION]                                 ____________________        No. 92-1132                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    AUGUSTO SERNA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE            [Hon. Nicholas Tsoucalas,* U.S. Court of International Trade]                                       _________________________________                                 ____________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                                 ____________________            John C. Doherty on brief for appellant.            _______________            Jeffrey R. Howard,  United States Attorney, Peter E. Papps,  First            _________________                           ______________        Assistant  United  States Attorney,  and  Robert  J. Veiga,  Assistant                                                  ________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________        ______________________________        *The  Honorable  Nicholas  Tsoucalas,  Judge  of  the  U.S.  Court  of        International Trade, sitting by designation.                      Per Curiam.  In April 1991, appellant Augusto Serna                      __________            was charged  in a  one-count  indictment with  conspiring  to            distribute cocaine in violation of 21 U.S.C.    841(a)(1) and            846.   Seven  other  individuals  were  indicted  along  with            appellant,  including  appellant's  brother,   Carlos  Serna.            Appellant pled guilty to  the charge.  His brother  never has            been  apprehended  and remains  a  fugitive.   Appellant  was            sentenced on January 13, 1992 to 120 months imprisonment.                      1.    Appellant contends  that  the district  court            erred in  calculating the  amount of cocaine  attributable to            him  under  the United  States  Sentencing  Guidelines.   The            district court properly relied  on the Presentence Report and            the  testimony  presented at  the  sentencing  hearing.   See                                                                      ___            United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).  It            _____________    ______            attributed to appellant between five and fifteen kilograms of            cocaine.   Under  the Guidelines,  this  resulted in  a  base            offense  level of 32.  See U.S.S.G.   2D1.1(c)(6).  Appellant                                   ___            received   a   two-level    decrease   for   acceptance    of            responsibility.  Combined with  his criminal history category            of  I, the  sentencing table  provides for  97 to  121 months            imprisonment.    Under  21  U.S.C.     841(b)(1)(A)(ii),  the            minimum  mandatory term of  imprisonment is  10 years  -- the            sentence appellant received.                      Appellant admits to  having sold, on  approximately            five  occasions,  a  total of  224  ounces  of  cocaine to  a            codefendant, Bradley Frost, during  1987.  Appellant had been            introduced  to Frost by a  co-worker who knew  that Frost was            looking  for someone  from  whom he  could purchase  cocaine.            Appellant indicated  that he knew  where to get  the cocaine.            He  supplied Frost  with the  drug until  appellant  left the                                         -3-            United States in January  1988 to return to Colombia.   Frost            stated   that   he  had   purchased   all   of  his   cocaine            (approximately 11  kilograms) from appellant  and his brother            Carlos.                      At the  sentencing hearing and on appeal, appellant            maintains  that when he left this country in January 1988, he            abandoned the  conspiracy, had no further  contact with Frost            and  had ceased to sell  cocaine altogether.   He also stated            that  he  had  never sold  cocaine  to  anyone  prior to  his            involvement with  Frost.   He specifically testified  that he            never had made any  arrangement with his brother to  have him            continue to provide cocaine to Frost or to anyone else during            appellant's absence.          When   appellant   returned  to            Lowell  in late  May or  early June  of 1988,  he found  that            others were  living  in  the  apartment he  shared  with  his            brother.  Appellant then moved to  New Jersey.  He went  back            to  Lowell, however, when he found out that the Lowell police            had  raided his apartment.  When appellant went to the Lowell            police  station  to retrieve  his  passport,  which had  been            seized along with 700 grams of cocaine and $2,900 in cash, he            was arrested.                      U.S.S.G.   1B1.3(a) controls  the manner in which a            court  calculates the  quantity  of drugs  attributable to  a            defendant for purposes of determining his or her base offense            level.  Even where a defendant was not personally involved in                                         -4-            all of the drug  transactions described in an  indictment for            conspiracy,    1B1.3(a)(1) requires  the sentencing  court to            consider  "all  acts and  omissions  committed  or aided  and            abetted by the defendant, or for which the defendant would be            otherwise accountable, that occurred during the commission of            the offense of conviction . . . ."   An application note to              1B1.3  explains  that "[i]n  the  case  of criminal  activity            undertaken in concert with others . . . the conduct for which            the defendant 'would be otherwise accountable'  also includes            conduct  of  others in  furtherance of  the execution  of the            jointly-undertaken  criminal  activity  that  was  reasonably                                                               __________            foreseeable by  the defendant."   U.S.S.G.    1B1.3, comment.            ___________            (n.1) (emphasis added).                      We will not overturn  the district court's decision            to  include in its calculation all  the drugs Frost purchased            unless it is  clearly erroneous.  See Garcia, 954 F.2d at 16;                                              ___ ______            United States v. Bianco,  922 F.2d 910, 913 (1st  Cir. 1991).            _____________    ______            The government  must prove by a preponderance of the evidence            facts sufficient to support  the sentence.  Bianco,  922 F.2d                                                        ______            at 913; United States v. Blanco, 888 F.2d  907, 909 (1st Cir.                    _____________    ______            1989).  Under this standard, we find that the record contains            adequate  support  for  the   court's  finding  that  it  was            reasonably foreseeable that appellant's role as  the supplier                                         -5-            of  Frost's  cocaine  would be  continued  by  Carlos in  his            absence.                      Appellant  relies primarily  on  the argument  that            because  he was  not  in  Massachusetts  during most  of  the            conspiracy there was no  way he could have known  that Carlos            was supplying  Frost  with  cocaine.   The  evidence  in  the            Presentence Report  and the evidence presented  by government            at  the sentencing hearing,  however, was to  the effect that            appellant had  told Frost that  Carlos would take  over while            appellant  was gone.       To  support this  contention,  the            government pointed to grand jury and other testimony provided            by  Frost's   stepfather,  James  Alexander.    According  to            Alexander, he and  Frost had  met on at  least six  occasions            with appellant  and Carlos  after appellant's return  to this                                        _____            country.   Alexander stated that Frost  would hand money over            to  appellant.   Carlos would  then leave  the  apartment and            return with the cocaine.  Indeed, Carlos continued to live in            the apartment  after appellant left for Colombia and when the            police  raided  the  apartment  they  found  cocaine  on  the            premises.   Finally,  there was  no  link between  Frost  and            Carlos other than appellant.                      Appellant  makes  much   of  the   fact  that   the            government  did not  have Alexander,  who was  present during            appellant's  sentencing hearing,  testify.   However,  "[t]he            sentencing  court  is free  to  rely  upon outside  evidence,                                         -6-            including  hearsay evidence  that has  never been  subject to            cross-examination."   United  States v.  Zuleta-Alvarez,  922                                  ______________     ______________            F.2d 33, 36  (1st Cir.  1990), cert. denied,  111 S.Ct.  2039                                           ____________            (1991).   Alexander's testimony and the information contained            in the  Presentence Report  provided a sufficient  basis upon            which  the district court could infer  that it was reasonably            foreseeable that  Carlos would continue to  supply Frost with            cocaine.  See id. at 36-37; Garcia, 954 F.2d at 17.  "[W]here                      ___ ___           ______            there is more than  one plausible view of the  circumstances,            the  sentencing court's choice among supportable alternatives            cannot be  clearly erroneous."   United States  v. Ruiz,  905                                             _____________     ____            F.2d 499, 508 (1st Cir. 1990).                      2.   Appellant  next claims  that under  U.S.S.G.              3B1.2  he  should  have  received a  downward  adjustment  of            between  2 and 4 levels as a "minimal" or "minor" participant            in the conspiracy.   The government argues that the  issue is            moot.    It points  out that  the  finding that  appellant is            responsible  for  over five  kilograms  triggers a  statutory            minimum of 10  years (which is  what appellant recieved)  and            this  minimum   becomes   the  minimum   guideline   sentence            regardless of any  reduction in the offense  level on account            of  minimal or minor participation.  U.S.S.G.   5G1.1(b).  We            agree with the government but  note that the district court's            refusal to  declare appellant a minor  or minimal participant            would not in any event constitute error.                                         -7-                      We review a district  court's "role in the offense"            decision  only for clear error.   United States  v. Brum, 948                                              _____________     ____            F.2d  817, 820  (1st  Cir. 1991);  United  States v.  Rosado-                                               ______________     _______            Sierra,  938  F.2d  1,  1-2  (1st  Cir.  1991)  (per curiam).            ______            Appellant bears  the burden of  proving his entitlement  to a            downward adjustment  under   3B1.2.   Rosado-Sierra, 938 F.2d                                                  _____________            at 1.                      The  commentary  to     3B1.2 makes  plain  that  a            defendant is not entitled to a downward adjustment unless the            defendant is  "substantially less culpable  than the  average            participant."   Comment. (backg'd).  "It is intended that the            downward adjustment  for a  minimal participant will  be used            infrequently."    U.S.S.G.     3B1.2,  comment.  (n.2).    As            examples of  minimal actors, this  note cites one  whose only            role is to off-load a single shipment of marijuana or one who            was recruited only as a courier in a single transaction.  Id.                                                                      ___            comment.  n.1.                        Here, appellant  admitted to  being  a supplier  of                                                             ________            cocaine, hardly a  minor role  in any drug  operation.  As  a            result, we cannot conclude  that the district court's finding            in  this regard was clearly erroneous.  For cases in which we            have reached similar  results, see Brum,  948 F.2d at  820-21                                               ____            (when police conducted search, defendant found  standing next            to  table   on  which  cocaine   packaging  operation   being            conducted); United States  v. DiIorio, 948  F.2d 1, 5-6  (1st                        _____________     _______                                         -8-            Cir. 1991) (defendant had knowledge  of codefendants' ongoing            plans  to  sell  cocaine,  received  money  for  cocaine  and            participated in setting up meeting place); Rosado-Sierra, 938                                                       _____________            F.2d at 2(defendant worked asa "broker" forseller ofcocaine).                      3.  Appellant's  final argument is that  he did not            receive a fair sentencing hearing.  He lists  eight instances            in  which he  claims that  the sentencing  judge  was biased,            evinced a predisposition  to defend  the government,  already            had prejudged  appellant's guilt  and made findings  prior to            hearing appellant's evidence and testimony.  Having carefully            reviewed  the transcript and  read the eight  excerpts in the            context of the  entire hearing,  it is plain  that the  judge            allowed  appellant to  present evidence and  to testify.   It            also  is clear  that he  listened to  what appellant  and his            attorney  had to say before imposing sentence.  That he found            appellant's version of the facts not credible does not render            the  hearing biased  or  unfair.   See  18 U.S.C.     3742(e)                                               ___            ("court of appeals shall  give due regard to the  opportunity            of  the  district  court  to  judge the  credibility  of  the            witnesses").                      The judgment of the district court is affirmed.                                                            ________                                         -9-
