
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1686                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  PRISCILLA JACKSON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                             Torruella, Oakes,* and Cyr,                                   Circuit Judges.                                   ______________                                _____________________               Norman  E. V.  D'Andrea, by  Appointment of  the Court,  for               _______________________          appellant.               Kenneth P.  Madden, Assistant United  States Attorney,  with               __________________          whom  Lincoln C. Almond, United States Attorney, was on brief for                _________________          appellee.                                 ____________________                                   August 31, 1993                                 ____________________                                        ____________________          *  Of the Second Circuit, sitting by designation.                    TORRUELLA,  Circuit  Judge.   On  December  4, 1991,  a                                ______________          federal  grand  jury  indicted appellant  Priscilla  Jackson  and          codefendant Juan Familia, charging conspiracy  to possess cocaine          with  intent to distribute it (Count I) and possession of cocaine          with intent to distribute it  (Count II).  See 21 U.S.C.     846,                                                     ___          841(a)(1) and 841(b)(1)(C).  Familia, whose appeal is not part of          this case,  was also charged with  using a firearm  during and in          relation to a drug trafficking crime  in violation of 18 U.S.C.            924(c).  Jackson  was not charged  with this third count.   After          trial, a jury convicted both defendants  on Counts I and II,  but          acquitted Familia of the firearm charge.  Jackson does not appeal          her conviction, but contests  the district court's calculation of          her  guideline sentencing range ("GSR")  on several grounds.  For          the reasons that follow, we affirm.                                          I                                          I                                          _                    On November 11, 1991,  police officers from Providence,          Rhode Island went to execute a search warrant at the second floor          apartment of  142 Bowdoin  Street, Providence.   At approximately          7:00 p.m., Familia departed from the apartment and drove away  in          a Dodge minivan.   The officers stopped the vehicle  and returned          with Familia to his apartment.                      They entered  the kitchen  through the rear  door using          Familia's  keys.    The  kitchen  leads  directly to  the  master          bedroom, which contained  a bed,  a crib, an  upright dresser,  a          bureau  and a television table.  Jackson  was on the bed with the          couple's child.                    Upon entering the apartment,  Familia declared:  "All I          have  is a gun.  It's under  the mattress."  The police proceeded          to  search  the  apartment.   They  found  the  pistol under  the          mattress.  A bottle of inositol, a chemical used to cut or dilute          cocaine,  sat on  top of the  bureau.   The bottom  drawer of the          dresser was nailed shut.  The officers discovered that the drawer          itself had  been removed and  only the facade  remained.   On the          floor behind the false drawer front, they found a paper bag and a          metal box.  The paper bag  held three plastic bags that contained          299.22 grams of cocaine.  The metal box contained $3866 in United          States  currency and  two  Rhode Island  state lottery  receipts,          which indicated that  Familia had  received a total  of $2085  in          winnings  on August  28, 1991.    The police  also found  a small          plastic bag containing  ten rounds of  .38 caliber ammunition  in          plain view on the floor in front of the bedroom closet.                    After trial,  a jury  convicted Familia and  Jackson of          conspiring to possess, and possession of,  cocaine with intent to          distribute  it.  The sentencing judge  held a hearing at which he          considered objections raised by the government and Jackson to the          Presentence  Investigation Report  ("PSR").   After  argument, he          determined  the GSR.   The  judge assigned  a base  offense level          ("BOL") of 24  for the quantity of drugs involved in the offense.          He arrived at the BOL by converting  the $3866 in currency seized          into 109.6  grams of cocaine based on the going price at the time          of the  offense.1   To that  amount, the  judge added the  299.22                                        ____________________          1   Based  on  advice from  the  Drug Enforcement  Administration          ("DEA"), the  probation officer who prepared  the PSR established          $1000 as  the going  price for an  ounce of cocaine  in November,                                         -3-          grams of cocaine  actually seized.  Thus, the  BOL derived from a          total  quantity of  408.82  grams of  cocaine.   See  U.S.S.G.                                                              ___          2D1.1(c)(10) (Drug Quantity Table) & comment. (n.12) (Nov. 1991).          The court  increased the BOL  by two levels  for possession of  a          dangerous  firearm, as required  by U.S.S.G.    2D1.1(b)(1).  The          court  rejected   the  two-level   decrease  for  a   minor  role          recommended by the PSR,  finding insufficient evidence to warrant          such  a reduction.   See id.  at    3B1.2(b).   Based on  a total                               ___ ___          offense level  of 26 and  Jackson's criminal history  category of          III, the court determined that the GSR was 78 to 97 months.                    Jackson   appeals  from  the   sentencing  judge's  GSR          calculation,  raising three contentions:  The  court erred by (1)          denying  her a  downward adjustment  of two  levels based  on her          minor role in the offense;  (2) raising the offense level by  two          points for presence of a firearm; and (3) converting the $3866 in          currency into  a quantity of  cocaine to  determine the BOL.   We          consider each in turn.                                          II                                          II                                          __                    Mitigating  Role.    Guideline    3B1.2  allows  for  a                    ________________          downward adjustment of  the offense level for  defendants who are          less  culpable than other participants in the crime.  A defendant          bears the  burden of  establishing that  she deserves a  downward          adjustment.  United States v. Ortiz, 966 F.2d 707, 717 (1st  Cir.                       _____________    _____          1992),  cert. denied, 113 S. Ct. 1005 (1993).  Since role-in-the-                  ____________                                        ____________________          1991.   Therefore,  $3866 converts  to  3.866 ounces  of cocaine,          which is equivalent to 109.6 grams.                                         -4-          offense determinations  are fact-bound,  we review  such findings          only for clear error.   See, e.g., United  States v. Sostre,  967                                  ___  ____  ______________    ______          F.2d  728, 732 (1st  Cir. 1992); United States  v. Brum, 948 F.2d                                           _____________     ____          817, 820 (1st Cir. 1991).                    In this  case, Jackson  was convicted of  conspiring to          possess, and possession of, cocaine with intent to distribute it.          Familia testified that neither defendant was involved with drugs,          and that the drugs might have belonged to his brother (he was not          certain  to  whom  they belonged).    Neither  the  jury nor  the          sentencing  judge  credited Familia's  contentions,  however, and          Jackson offered nothing else  to meet her burden of  proving that          she acted in  a lesser  capacity.  We  therefore cannot  conclude          that the judge  clearly erred in denying the downward adjustment.          See  United States v.  Ruiz, 905  F.2d 499,  508 (1st  Cir. 1990)          ___  _____________     ____          ("where   there  is   more  than   one  plausible  view   of  the          circumstances,  the sentencing  court's choice  among supportable          alternatives cannot be clearly erroneous").                    Weapon   Possession   Adjustment.      The   sentencing                    ________________________________          guidelines require that the offense level be raised two points if          a  firearm  was  possessed  during a  drug  trafficking  offense.          U.S.S.G.    2D1.1(b)(1).   "We have  held that,  if a  weapon was          present,  the  adjustment should  be  made unless  it  is clearly          improbable  that  the weapon  and  the  offense were  connected."          United  States v. McDowell, 918  F.2d 1004, 1011  (1st Cir. 1990)          ______________    ________          (citing Ruiz, 905  F.2d at  507; United States  v. Mocciola,  891                  ____                     _____________     ________          F.2d 13, 17 (1st Cir. 1989)).                                         -5-                    Jackson argues  that her offense level  should not have          been raised for presence of a weapon.  Jackson asserts that there          was no  evidence  showing that  she knew  the gun  was under  the          mattress or that she had ever used the firearm.  On the contrary,          Familia testified that the gun was  his and that she knew nothing          about the weapon.   Moreover, she was not charged  for possession          of a weapon and Familia was acquitted of possession during a drug          trafficking crime.  The adjustment, she argues, was unwarranted.                    The  determination that  a weapon  is present  during a          drug  offense is  factual; it  will be  set aside only  for clear          error.  United States v. Corcimiglia, 967 F.2d 724, 726 (1st Cir.                  _____________    ___________          1992);  United  States v.  Pineda, 981  F.2d  569, 572  (1st Cir.                  ______________     ______          1992).    Neither  the fact  that  Jackson  was  not charged  for          possession   of   the   weapon   nor   Familia's   acquittal   is          determinative.   The  decision  not to  charge  Jackson may  have          resulted from the government's belief that it could not prove her          guilt beyond a reasonable doubt.  The acquittal of Familia merely          established that the government failed  to prove his guilt beyond          a reasonable  doubt.  At sentencing however,  the government need          only  prove facts by a preponderance of the evidence, Pineda, 981                                                                ______          F.2d at 574  (citing United States v.  Wright, 873 F.2d  437, 441                               _____________     ______          (1st  Cir. 1989)), and uncharged conduct may be attributed to the          defendant  for sentencing  purposes, U.S.S.G.    1B1.3,  comment.          (backg'd.)  ("Conduct that is not  formally charged or  is not an          element  of  the  offense  of  conviction   may  enter  into  the          determination  of the  applicable guideline  sentencing range.");                                         -6-          see, e.g.,United States v. Garc a,954 F.2d 12, 15(1st Cir. 1992).          ___  ____ _____________    ______                    The facts are not nearly as favorable to Jackson as she          believes.  The weapon was definitely present; the police found it          under  the mattress  where  Familia said  it  was located.    The          sentencing  court reasonably  inferred that  Jackson knew  of its          presence:   Jackson  lived  in the  apartment  with Familia;  the          firearm was hidden under their bed, the ammunition for the pistol          lay on the floor, next  to the bed, plainly within her  view; the          apartment  was used to traffic narcotics; and the gun was located          only a few feet from where  the cocaine and inositol were  found.          Given Familia's numerous other implausible statements,  the judge          was entitled  to disregard Familia's  exculpatory statement  that          Jackson knew nothing of  the weapon and that  he purchased it  to          deter car thieves.  Even  if Familia owned the weapon, under  the          circumstances  detailed above,  it  was reasonable  to find  that          Jackson  also possessed the weapon.  See Corcimiglia, 967 F.2d at                                               ___ ___________          727.   Moreover,  "an alternative  legal  basis for  the  weapons          possession, in  and of  itself, does  not prevent  the sentencing          court from granting the enhancement."  Id. (citing United  States                                                 ___         ______________          v. Almonte, 952 F.2d 20, 25 (1st Cir. 1991), cert. denied, 112 S.             _______                                   ____________          Ct. 1776 (1992); Ruiz, 905 F.2d at 508).                             ____                    In any event, when  it has been shown that  the firearm          was present,  the  relevant inquiry  is  whether it  is  "clearly          improbable"  that the  weapon  could have  been  used during  the          offense.   E.g., Corcimiglia, 967 F.2d at 727; McDowell, 918 F.2d                     ____  ___________                   ________          at  1011.  Defendant bears  the burden of  demonstrating that the                                         -7-          connection was clearly improbable.  Corcimiglia, 967 F.2d at 728.                                              ___________          Nothing in the record disputes  the reasonable inference that the          gun was connected to the  offense.  The sentencing judge did  not          clearly err in imposing the two-level increase.                    Conversion of  Currency.  The PSR  recommended that the                    _______________________          $3866  of currency found in the  metal box, which was stored next          to the cocaine  in the  bedroom, be considered  proceeds of  drug          trafficking  for  sentencing purposes.    As  a  result, the  PSR          converted the  seized  currency into a quantity of  cocaine based          on  an approximation of the  going price of  cocaine in November,          1991  ($1000).2   The sentencing  court agreed  and computed  the          total  quantity of  cocaine relevant  to setting  the BOL  as the          amount  of cocaine actually seized  and the amount  that could be          purchased by the seized currency.  Including this extra amount of          cocaine raised the BOL by two levels.                    Jackson  contests the  conversion  of  the currency  on          three grounds.  She argues first that because the $1000 price per          ounce  was  an  approximation,  it is  unfair  to  calculate  the          quantity on  that basis.  She  next contends that the  DEA source          for  the conversion  price  was never  called  as a  witness  and          "technically there was a  denial of confrontation."  (Appellant's          Brief  at 9).    Finally,  she  urges  that  the  district  court          incorrectly  deemed  the  $3866  of  currency  proceeds  of  drug          transactions because there was evidence that the money could have                                        ____________________          2   A DEA  agent provided  the  price estimate  to the  probation          officer.  See supra note 1.                    ___ _____                                         -8-          come from at least two or three other sources.                    In  sentencing  cases  involving  disputed  amounts  of          illicit substances, we  have required  that reliable  information          support,  by  a  preponderance  of  the  evidence,  the  quantity          attributed  to the defendant.  See, e.g., United States v. Sklar,                                         ___  ____  _____________    _____          920  F.2d  107,  113 (1st  Cir.  1990).    Under the  Guidelines,          "[w]here there is no drug  seizure or the amount seized  does not          reflect  the scale  of the  offense,  the sentencing  judge shall          approximate the quantity of  the controlled substance."  U.S.S.G.            2D1.4 comment. (n.2).  In  making the estimate, "the judge  may          consider,  for  example, the  price  generally  obtained for  the          controlled  substance,  .  .  .  [and]  similar  transactions  in          controlled  substances by the defendant  . . . ."  Id.3   We have                                                             ___          sanctioned  the use of estimates  when an exact  figure cannot be          determined, but we demand that "when choosing between a number of          plausible estimates  of drug quantity .  . . a court  must err on          the side  of caution."   Sklar, 920 F.2d  at 113  (quoting United                                   _____                             ______          States  v.  Walton, 908  F.2d  1289,  1301 (6th  Cir.)  (internal          ______      ______          quotation  omitted),  cert.  denied,  111  S.  Ct.  273  (1990)).                                _____________          Ultimately, however,  the determination  that an amount  of money          represents  proceeds from drug transactions that  are part of the          same  course of  conduct as  the charged  offense,  and therefore          represents  relevant conduct  attributable to  the defendant,  is          predominantly  factual  and  reviewable  only  for  clear  error.                                        ____________________          3  The current  Guidelines allow for estimation of  quantities as          well.  The language  of the commentary has been  moved to   2D1.1          comment. (n.12).                                         -9-          United  State  v. Gerante,  891 F.2d  364,  368 (1st  Cir. 1989);          _____________     _______          Sklar, 920 F.2d  at 114;  see also United  States v. Duarte,  950          _____                     ________ ______________    ______          F.2d 1255, 1265 (7th Cir. 1991) (ascertaining quantity  of drugs,          which  involves  conversion  of  currency  into  equivalent  drug          quantity, is  factual determination subject  to clearly erroneous          standard), cert. denied, 113 S. Ct. 174 (1992).                     ____________                    In United States v. Gerante, the defendant was arrested                       _____________    _______          with  4.98 kilograms  of cocaine  and $68,000  in cash.   Gerante          objected  to  treating  money  found   in  his  residence  as  an          equivalent quantity of contraband  for the purpose of determining          relevant conduct  under   1B1.3.   Following  the command  of the          Guidelines, we  approved the practice of  estimating the quantity          of cocaine that a defendant had exchanged for a sum  of money and          holding the defendant accountable for that quantity, provided the          money represents  drug transactions  that are  part  of the  same          course  of conduct as the instant offense.   See id., 891 F.2d at                                                       ___ ___          369; see also Sklar, 920 F.2d at 113 (approving same practice).                 ________ _____                    Several  other circuits have  approved the  practice in          cases  involving large  quantities  of contraband  and  currency.          See, e.g.,  United States v. Hicks, 948  F.2d 877 (4th Cir. 1991)          ___  ____   _____________    _____          (involving  two  kilograms  of  cocaine and  $279,550  in  cash);          Duarte,  950 F.2d at 1265  (approving principle in case involving          ______          five  kilograms and  $117,000 cash,  but remanding  because price          range estimate could have resulted in two different GSRs); United                                                                     ______          States  v.  Stephenson, 924  F.2d 753  (8th  Cir.) (233  grams of          ______      __________          cocaine  and $112,867 cash);  but cf. United  States v. Gonz lez-                                        _______ ______________    _________                                         -10-          S nchez,  953  F.2d  1184,  1186-87 (9th  Cir.  1992)  (approving          _______          principle  of  converting  $1541  into quantity  of  heroin,  but          rejecting conversion where  no evidence  supported connection  of          currency to drug transactions).  Cases involving large amounts of          currency  more readily  support a  reasonable inference  that the          amount seized  does not reflect  the scale of the  offense.  When          drug traffickers possess large amounts of cash in ready proximity          to  their drug supply, a  reasonable inference may  be drawn that          the money represents drug profits.                    Small amounts  of currency do not present  such a clear          case.    Nonetheless,  the  obligation of  the  sentencing  judge          remains  the  same.   The judge  must  determine the  quantity of          cocaine  involved, taking into account  all relevant conduct.  If          the judge supportably finds that  the quantity of cocaine  seized          does  not reflect "the scale of the offense," and concludes, by a          preponderance of the evidence, that certain  amounts of money are          drug proceeds from  the same  course of conduct,  then the  judge          must estimate  the amount of  drugs that the  defendant exchanged          for the currency seized.                    We   turn  now   to  Jackson's  argument   against  the          conversion  of  the $3866  to 109.6  grams  of cocaine.   Neither          Jackson's written objections to  the PSR nor her argument  at the          sentencing hearing  challenged the $1000 conversion  price or the          failure of the  DEA agent  who provided the  conversion price  to          testify  at the sentencing hearing.  Having failed to raise these          contentions before the  sentencing court, they may not  be raised                                         -11-          for the first time on appeal.  See, e.g., United States v. Dietz,                                         ___  ____  _____________    _____          950 F.2d 50,  56 (1st  Cir. 1991); United  States v.  Uricoechea-                                             ______________     ___________          Casallas,  946 F.2d  162, 166  (1st Cir.  1991), see  also United          ________                                         _________ ______          States v. Zuleta-Alvarez,  922 F.2d  33, 36 (1st  Cir. 1990)  ("A          ______    ______________          sentencing hearing  need not  meet all the  procedural safeguards          and strict evidentiary limitations  of a criminal trial."), cert.                                                                      _____          denied, 111 S. Ct. 2039 (1991).          ______                    We  are unpersuaded  by Jackson's  third contention  as          well.  She  argues that the  currency could have come  from other          sources and, as  a consequence,  the evidence did  not support  a          finding that these funds were proceeds of drug transactions which          were part of the same course of conduct.  In many cases involving          small amounts of currency it will be difficult for the government          to  prove by a  preponderance of the  evidence that  the money is          tied to drug trafficking.  This, however, is not such a case.                    Jackson claims  that $2085 of the  seized currency were          winnings  from the Rhode  Island Lottery and  offered the lottery          receipts from August 28,  1991 found in the metal  box containing          the  currency  to  prove  that  contention.    The  balance,  she          contends, was given to Familia to purchase his van and ship it to          his  sister in  Puerto Rico.   These  appear to  be superficially          appealing explanations.  They prove unavailing, however.                      The sentencing judge rejected her story because Familia          never   claimed   that  monies   were   lottery   winnings,  thus          contradicting   Jackson's  assertions.     Where   their  stories          overlapped,  the judge did not believe Familia or his sister, who                                         -12-          testified that she sent him $3600 for his car.  At the sentencing          hearing,  Familia's  sister  was  unable to  provide  any  detail          concerning  the purchase of  the car.  She  could not recall what          denominations of currency she  sent to her brother.   She did not          know the  make of the vehicle, its age, its mileage, how much her          brother charged for the van, or the cost of shipping it to Puerto          Rico.    The judge  therefore  rejected  the various  alternative          sources of the currency  and determined that the funds  were drug          proceeds.                    We cannot say  that the sentencing judge's  conclusions          were clearly erroneous.  It is possible that Familia's sister was          not knowledgeable regarding motor vehicles and that she entrusted          the details of the transaction to her brother, satisfied that her          kin  would  treat  her  honestly.    The  judge  present  at  the          sentencing  hearing is  in  the best  position  to determine  the          credibility  of  the witnesses  and the  source of  the currency,          however.   See  Wainwright  v. Witt,  469  U.S. 412,  428  (1985)                     ___  __________     ____          (credibility determinations are peculiarly within a trial judge's          province).   Here,  the court  discredited a  remotely plausible,          lawful  explanation  for the  monies and  found  them to  be drug          profits.                    Finding no clear error, we affirm.                                               ______                                         -13-
