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USCA1 Opinion
November 16, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2471
UNITED STATES,
Appellee,
v.
WESLEY GONZALEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Barbara A.H. Smith on brief for appellant.
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Edwin J. Gale, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Wesley Gonzalez pleaded
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guilty to a one-count indictment which charged him with
possession of a substance containing a detectable amount of
cocaine with intent to distribute in violation of 21 U.S.C.
841(a)(1). He appeals two aspects of the sentence imposed by
the district court under the United States Sentencing
Guidelines (U.S.S.G.). Because the appeal does not present
any substantial questions, we summarily dispose of it
pursuant to Local Rule 27.1.
1. Appellant claims that the district court
improperly fined him for the cost of his five-year term of
supervised release. This fine amounts to $6,918 and is to be
paid in monthly installments of $115.30 once appellant is
released. According to appellant, U.S.S.G. 5E1.2(i) does
not permit such a fine in his case because the district court
"waived" the assessment of a punitive fine.
U.S.S.G. 5E1.2(a) states that "[t]he court shall
impose a fine in all cases, except where the defendant
establishes that he is unable to pay and is not likely to
become able to pay any fine." U.S.S.G. 5E1.2(i) states
that [n]otwithstanding . . . the provisions of subsection (c)
[list of minimum and maximum fines], but subject to
subsection (f) [waiver or imposition of lesser fine], the
court shall impose an additional fine amount that is at least
sufficient to pay the costs to the government of any . . .
supervised release ordered." In United States v. Corral, 964
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F.2d 83 (1st Cir. 1992), we held that "a district court may
not impose a duty to pay for the costs of incarceration or
supervised release if the defendant is indigent for purposes
of a [punitive] fine under Sentencing Guidelines section
5E1.2(a)." Id. at 84.
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Corral is of no avail to appellant for the simple
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reason that the district court, in fact, did impose a
punitive fine under U.S.S.G. 5E1.2(a). Appellant's claim
to the contrary rests upon page 5 of the Judgment form on
which the district court checked the box preceding the
following words: "Fine is waived or is below the guideline
range, because of the defendant's inability to pay." By only
focussing on the "inability to pay" language for the
proposition that a punitive fine was "waived," appellant
conveniently ignores what the district court judge said at
the sentencing hearing concerning a fine under 5E1.2(a):
As far as the fine is concerned, it
does not appear you have substantial
assets. You have some assets and based
on that, the Court will impose a fine in
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the amount of one hundred dollars and a
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special assessment in the amount of fifty
dollars as required by law.
Transcript of Sentencing Hearing, at 17-18 (emphasis added).
Indeed, page 4 of the Judgment form specifically states that
the total fine of $7,018 is composed of a fine of $100 and
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the cost of supervised release of $6,918. Thus, this claim
is without merit.
2. Appellant's second assignment of error concerns
the conversion of $29,990 into 1,000 grams of cocaine for
sentencing purposes under U.S.S.G. 1B1.3(a)(2) and 2D1.1.
This sum was part of the cash seized during a search of
appellant's apartment conducted by the Drug Enforcement
Administration (DEA). Also seized were 3 plastic sandwich
bags containing a total of 17.6 grams of 80% pure cocaine, a
pager, a cellular telephone, a shoe box filled with plastic
bags, three sifters, a spoon and a triple-beam scale. The
latter three items were found to have cocaine residue on
them; it is undisputed that all of the seized items were
"common" implements of the cocaine trade.
As for the cash, DEA agents found $4,450 in the
bedroom and $3,990 on a table in the living room. They also
discovered $26,000 hidden beneath a stereo speaker. Out of
the total amount, the government accepted appellant's claim
that $4,450 represented the settlement of an insurance claim.
This left the $29,990 which the Presentence Report (PSI)
concluded represented the proceeds of sales of 1,000 grams of
cocaine.
Appellant did not object at sentencing to this
calculation. Normally, such a failure results in a waiver.
See United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)
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("in connection with sentencing as in other contexts, . . .
arguments not seasonably addressed to the trial court may not
be raised for the first time in an appellate venue").
Appellant urges, nonetheless, that where a fundamental error
in the application of the Guidelines affects "substantial"
rights, review is proper to prevent a "miscarriage of
justice." See United States v. Agoro, 996 F.2d 1288, 1291
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(1st Cir. 1993) (where government agreed with defendant that
sentence imposed by district court exceeded the allowable
guideline range, court would address claim raised for first
time on appeal).
This is not such a case. Indeed, appellant's
arguments fall short of demonstrating any defect in the
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court's sentencing calculations. Pursuant to U.S.S.G.
1B1.3(a)(2), appellant is responsible for all acts that were
"part of the same course of conduct or common scheme or plan
as the offense of conviction. . . ." See United States v.
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Figueroa, 976 F.2d 1446, 1460 (1st Cir. 1992), cert. denied,
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113 S. Ct. 1346 (1993). When applied to drug offenses, the
district court may take into account "the amount of drugs,
whether or not `specified in the count of conviction,'" so
long as the drugs are part of the conduct underlying a
defendant's conviction. United States v. Tabares, 951 F.2d
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405, 410 (1st Cir. 1991) (quoting 1B1.3(a)(2) & comment.
(backg'd)). Further, in determining a defendant's base
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offense level where "the amount seized does not reflect the
scale of the offense, the court shall approximate the
quantity of the controlled substance." U.S.S.G. 2D1.1,
commentary (n.12).
Appellant argues that the government failed to
establish by a preponderance of the evidence that there was a
sufficient connection between the $29,990 and the offense to
which he pleaded guilty. Specifically, appellant contends
that the PSI merely concluded that the money represented
proceeds from other drug transactions without presenting any
evidence of actual sales or any evidence of a conspiracy.
Instead, appellant asserts, the only concrete evidence was
the 17.6 grams found in his apartment. This should have
resulted, he goes on, in a finding that he was involved in
only a "very small scale operation." Thus, he concludes that
our decision in United States v. Gerante, 891 F.2d 364 (1st
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Cir. 1989), does not control and an "approximation" by
converting the cash into 1,000 grams of cocaine was not
permitted.
In Gerante, defendant was arrested while he was in
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possession of 4.98 kilograms of cocaine. A subsequent search
of his home revealed small additional quantities of cocaine,
five loaded guns and $68,000. Upon being questioned by DEA
agents, defendant stated, among other things, that he had
been trafficking in multi-kilogram amounts of cocaine for six
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months and that the $68,000 represented proceeds from a prior
deal. We held that the district court's determination that
the drugs purchased with the $68,000 were part of the same
course of conduct under U.S.S.G. 1B1.3(a)(2) was not
clearly erroneous. 891 F.2d at 368. As a result, the
conversion of the cash into a quantity of cocaine was
permitted by the Guidelines, in part, because the amount of
drugs seized did not reflect the scale of the offense. Id.
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at 369 (citation omitted).
Appellant's effort to distinguish Gerante is
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unavailing. Conspicuously absent from his version of the
events is the admission, made by his attorney at the
sentencing hearing, that the $29,990, in fact, represented
proceeds from sales of cocaine. See Transcript of Sentencing
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Hearing, at 4, 14 (in arguing for a reduction for acceptance
of responsibility, counsel emphasized the fact that appellant
did not "fight" the conversion of the money into sums of
cocaine and acknowledged that the money appellant made to buy
cocaine put him in a higher guideline range). As in Gerante,
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this admission provides sufficient evidence that the $29,990
was part of the same course of conduct as the offense of
conviction. See United States v. Figueroa, 976 F.2d at 1460-
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61 (where defendants in taped telephone conversations stated
that they sold $6,000 worth of "dime" bags of cocaine per
day, no clear error in approximating the amount of cocaine
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based on "the sums of money admittedly received") (footnote
omitted).
Finally, we reject appellant's argument that the
result of the conversion (which raised his base offense level
from 12 to 26) rendered his sentence "grossly
disproportionate" and "inequitable." Similar increases in
sentencing ranges due to the addition of quantities of drugs
not included in the offense conduct have been upheld. See,
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e.g., United States v. Sklar, 920 F.2d 107, 112-14 (1st Cir.
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1990) (despite seizure of only one package containing
cocaine, court's addition for sentencing purposes of
estimated quantities of cocaine contained in eleven
previously mailed packages -- which essentially doubled
guideline range -- not clearly erroneous); United States v.
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Vazzano, 906 F.2d 879, 884 (2d Cir. 1990) (addition of extra
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amount of cocaine defendant told informant he had recently
sold for purposes of calculating base offense level held not
clear error; addition almost tripled guideline range).
Appellant adds the claim that his trial counsel
provided ineffective assistance in violation of the Sixth
Amendment by, among other omissions, failing to object at the
sentencing hearing to the conversion of the $29,990 into
1,000 grams of cocaine. "We have held with a regularity
bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct
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review of criminal convictions, but, rather, must originally
be presented to, and acted upon by, the trial court." United
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States v. Mala, No. 91-2229, slip op. at 9-10 (1st Cir.
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October 27, 1993). Because this claim may turn on factual
matters outside of the record now before us, the claim is not
ripe for appellate review.
We, therefore, affirm the judgment of conviction
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without prejudice to appellant's right to file a motion under
28 U.S.C. 2255 concerning his claims of ineffective
assistance of counsel. We express no opinion on the merits
of any such claims.
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Document Info
Docket Number： 92-2471
Filed Date： 11/16/1993
Precedential Status： Precedential
Modified Date： 9/21/2015