USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________


       No. 96-1839


                              UNITED STATES OF AMERICA,


                                      Appellee,


                                         v.


                                  RICHARD MORETTO,


                                Defendant, Appellant.


                                ____________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                 [Hon. A. David Mazzone, Senior U.S. District Judge]


                                ____________________


                                       Before


                                Selya, Circuit Judge,


                             Cyr, Senior Circuit Judge,


                             and Boudin, Circuit Judge.


                                ____________________


            Bernard Grossberg  with  whom  Erin K.  Kelly  was  on brief  for

       appellant.

            George  W.  Vien, Assistant  United  States  Attorney, with  whom

       Donald K.  Stern, United States Attorney, was on  brief for the United

       States.



                                ____________________


                                    June 11, 1997

                                ____________________








                 Per Curiam.   Richard Moretto was  convicted in 1991  of


            conspiracy to  distribute cocaine, 21  U.S.C. S  846, and  of


            witness intimidation, 18 U.S.C. S 1512.  At sentencing he was


            found to  be a career  offender based  on prior  convictions,


            U.S.S.G. 
                    S 
                      4B1.1, 
                            and 
                                sentenced to 210 months' imprisonment and


            a term of supervised  release.  This court affirmed both  the


            conviction and sentence  on direct appeal.  United States  v.


            Elwell, 984 F.2d 1289 (1st Cir.), cert. denied, 508 U.S.  945


            (1993).


                 Thereafter, 
                            Moretto succeeded in having a state court set


            aside  two prior  state convictions,  undermining his  career


            offender status.  He petitioned under 28 U.S.C. S 2255 to set


            aside his original sentence.  The district court agreed  and,


            after 
                 further proceedings in June 1996, resentenced Moretto to


            108 months' imprisonment, a term of supervised release, and a


            fine of $12,500.  Moretto now appeals from this new sentence,


            arguing 
                   that 
                        the district court miscalculated the sentence and


            improperly imposed a fine.


                 Although 
                         Moretto's 
                                  appeal has been well briefed, we do not


            think that  the district  court erred  on any  of the  issues


            presented in this court.  The only difficult question is  the


            calculation  of drugs  attributed  to Moretto,  which  became


            decisive after the career offender label was lifted.  The key


            evidence was the testimony of Moretto's customer that over  a


            four 
                to 
                   five 
                       month 
                             period, he had purchased between one and two




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            ounces of cocaine from  Moretto every week or other week  "or


            so."


                 Averaging, the district court found that it was fair  to


            attribute to  Moretto  14 deliveries  of 1.5  ounces  apiece.


            Twenty ounces (rounded down from 21) equates to 567 grams  of


            cocaine, which  is well  over the  500 gram  minimum used  to


            determine Moretto's base offense level of 26.  U.S.S.G.      


            S 2D1.1(c)(7).  Moretto argues now, as he did in the district


            court, that such  averaging is forbidden by United States  v.


            Sepulveda
                    , 
                      15 
                        F.3d 
                             1161, 
                                   1197-98 (1st Cir. 1993), cert. denied,


            512 U.S. 1223 (1994).


                 In 
                   United 
                         States
                                
                                v. 
                                   Webst
                                        er, 54 F.3d 1, 6 (1st Cir. 1995),


            this 
                court 
                      upheld estimates "drawn from ranges with relatively


            tight margins,"  distinguishing Sepulveda  as involving  much


            wider ranges.  Sepulveda itself made clear that the court was


            not adopting a  "per se rule" in  favor of selecting the  low


            point 
                 in 
                    an 
                       estimated range.  15 F.3d at 1199.  We think there


            is no magic rule to determine when a mid-range estimate seems


            to make sense but the use  of such an estimate here does  not


            appear to us to be clear error.


                 Further, 
                         the 
                            district 
                                     court attributed to Moretto, but did


            not  include in  its calculus,  an additional  ten ounces  of


            cocaine  provided to  the witness  by another  member of  the


            conspiracy after  Moretto  had departed  for prison.    Since


            Moretto had introduced the new seller to the witness for  the




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            specific  purpose  of   continuing  the  sales,  Moretto   is


            presumptively liable under the relevant conduct guideline for


            foreseeable 
                       transactions effectively arranged by Moretto while


            still a working member of the conspiracy.  U.S.S.G. S 1B1.3 &


            comment. 
                    n.2(c)(6).  Even if the district court had arrived at


            a  low-end estimate  of Moretto's  own cocaine  sales to  the


            witness, the  inclusion of  this additional  ten ounces  (283


            grams) in the  drug quantity calculus would have resulted  in


            sentencing 
                      at the same base offense level as the court applied


            below.  Id. S 2D1.1(c)(7).


                 Moretto also objects to the district court's refusal  to


            treat him as a minimal or minor participant deserving a four-


            or two-level downward  adjustment in his  favor on either  of


            these grounds.  U.S.S.G. S 3B1.2.  If a lesser member of  the


            conspiracy were automatically a minimal or minor participant,


            Moretto 
                   might 
                         have 
                             a 
                               point; but we do not read the guideline in


            that  fashion.    Here,  Moretto  played  a  substantial  and


            continuing role in the  conspiracy, and the district  court's


            refusal 
                   to 
                      award him "minimal" or "minor" status was not clear


            error.


                 The 
                    district 
                             court's refusal to depart downward, based on


            diminished 
                      capacity, U.S.S.G. S 5K2.13, was a factual judgment


            not  infected by  legal error  and therefore  not subject  to


            review.  United States v. Robles-Torres, 109 F.3d 83, 87 (1st


            Cir. 1997).  The two-level obstruction of justice  adjustment




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            was amply  justified on  the facts  and provided  for by  the


            guidelines.  U.S.S.G. S 3C1.1.  And, there being no  evidence


            whatever of vindictiveness, the court had authority to impose


            a fine  on resentencing even though  none was imposed in  the


            initial sentence.   North Carolina  v. Pearce,  395 U.S.  711


            (1969); see also Alabama v. Smith, 490 U.S. 794 (1989).


                 Affirmed.








































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