United States v. Serna
U.S. Court of Appeals for the First Circuit
United States v. Serna
Opinion
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[NOT FOR PUBLICATION]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
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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
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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
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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,
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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.
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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. ________
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